Exhibit 10.2


 


ANIKA THERAPEUTICS, INC.


 


Form of Change in Control, Bonus and Severance
Agreement


 


AGREEMENT made as of
September 16, 2004 by and among Anika Therapeutics, Inc., a Massachusetts
corporation with its principal place of business in Woburn, Massachusetts (the
“Company”), and Elizabeth Chen, of Lexington, Massachusetts (the “Executive”),
an individual presently employed as the Senior Vice President Marketing and
Business Development of the Company.


 


1.                                       Purpose.  The Company considers it essential to the
best interests of its stockholders to foster the continuous employment of key
management personnel.  The Board of
Directors of the Company (the “Board”) recognizes, however, that, as is the
case with many publicly held corporations, the possibility of a Change in
Control (as defined in Section 2 hereof) exists and that such possibility,
and the uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to the detriment
of the Company and its stockholders. 
Therefore, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of
members of the Company’s management, including the Executive, to their assigned
duties without distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change in Control.  Nothing in this Agreement shall be construed as creating an
express or implied contract of employment and, except as otherwise agreed in
writing between the Executive and the Company, the Executive shall not have any
right to be retained in the employ of the Company.


 


2.                                       Change
in Control.  A “Change in Control”
shall mean the occurrence of any one of the following events:


 


(a)                                  any
“person,” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the “Act”) (other than the Company, any of its
subsidiaries, any trustee, fiduciary or other person or entity holding
securities under any employee benefit plan or trust of the Company or any of
its subsidiaries), together with all “affiliates” and “associates” (as such
terms are defined in Rule 12b-2 under the Act) of such person, shall become the
“beneficial owner” (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing 51% or more
of the combined voting power of the Company’s then outstanding securities
having the right to vote in an election of the Company’s Board of Directors
(“Voting Securities”); or


 


(b)                                 persons
who, as of the date hereof, constitute the Company’s Board of Directors (the
“Incumbent Directors”) cease for any reason, including, without limitation, as
a result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board, provided that any person becoming
a director of the Company subsequent to the date hereof whose election or
nomination for election was approved by a vote of at least a majority of the
Incumbent Directors shall, for purposes of this Agreement, be considered an
Incumbent Director; or


 


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(c)                                  the
stockholders of the Company shall approve (A) any consolidation or merger of
the Company where the shareholders of the Company, immediately prior to the
consolidation or merger, would not, immediately after the consolidation or
merger, beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 51% of the voting
shares of the corporation issuing cash or securities in the consolidation or
merger (or of its ultimate parent corporation, if any), (B) any sale, lease,
exchange or other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or substantially
all of the assets of the Company or (C) any plan or proposal for the
liquidation or dissolution of the Company.


 


Notwithstanding the
foregoing, a “Change in Control” shall not be deemed to have occurred for
purposes of the foregoing clause (a) solely as the result of an acquisition of
securities by the Company which, by reducing the number of shares of Voting
Securities outstanding, increases the proportionate voting power represented by
the Voting Securities beneficially owned by any person to 51% or more of the
combined voting power of all then outstanding Voting Securities; provided,
however, that if any person referred to in this sentence shall thereafter
become the beneficial owner of any additional shares of Voting Securities
(other than pursuant to a share split, stock dividend or similar transaction or
direct purchase from the Company), then a “Change in Control” shall be deemed
to have occurred for purposes of the foregoing clause (a).


 


3.                                       Terminating
Event.  A “Terminating Event” shall
mean any of the events provided in this Section 3 occurring within twelve
(12) months subsequent to a Change in Control as defined in Section 2:


 


(a)                                  termination
by the Company of the employment of the Executive with the Company for any
reason other than for Cause or the death of the Executive.  “Cause” shall mean, and shall be limited to,
the occurrence of any one or more of the following events:


 


(i)                                     a
willful act of dishonesty by the Executive with respect to any matter involving
the Company;


 


(ii)                                  conviction
of the Executive of a crime involving moral turpitude; or


 


(iii)                               the
deliberate or willful failure by the Executive (other than by reason of the
Executive’s physical or mental illness, incapacity or disability) to
substantially perform the Executive’s duties with the Company and the
continuation of such failure for a period of 30 days after delivery by the
Company to the Executive of written notice specifying the scope and nature of
such failure and its intention to terminate the Executive for Cause.


 


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A Terminating
Event shall not be deemed to have occurred pursuant to this Section 3(a)
solely as a result of the Executive being an employee of any direct or indirect
successor to the business or assets of the Company, rather than continuing as
an employee of the Company following a Change in Control.


 


(b)                                 termination
by the Executive of the Executive’s employment with the Company for Good
Reason.  “Good Reason” shall mean the
occurrence of any of the following events:


 


(i)                                     a
substantial adverse change in the nature or scope of the Executive’s
responsibilities or duties from the responsibilities or duties exercised by the
Executive immediately prior to the Change in Control, it being understood by
the parties hereto, that so long as the Executive retains primary marketing and
business development responsibilities for the business conducted by Anika
immediately prior to the Change in Control, Good Reason shall not exist under
this Section 3(b)(i); or


 


(ii)                                  a
reduction in the Executive’s annual base salary and/or benefits as in effect on
the date hereof or as the same may be increased from time to time except for
across-the-board salary and/or benefits reductions similarly affecting all or
substantially all management employees.


 


For purposes of this
Section 3, unless the context otherwise requires, Company shall mean the
Company or any successor thereto or to the business thereof in a transaction
involving a Change in Control.


 


4.                                       Special
Termination Payments.  In the event
a Terminating Event occurs within twelve (12) months after a Change in Control
in lieu of any payments under the Employment Letter (as hereinafter defined),


 


(a)                                  the
Company shall pay to the Executive, in addition to the payment, if any,
required by Section 5, an amount equal to 100% of the Executive’s annual
salary as in effect immediately prior to the Change in Control, said amount
shall be paid in one lump sum payment no later than thirty-one (31) days
following the Date of Termination (as such term is defined in
Section 9(b)); and


 


(b)                                 the
Company shall continue to provide health, dental, long-term disability, life
insurance and other fringe benefits to the Executive, on the same terms and
conditions (including any required co-payments) as though the Executive had
remained an active employee, for twelve (12)  months; and


 


(c)                                  to
the extent permitted under applicable documents, the Company shall provide
COBRA benefits to the Executive following the end of the period referred to in


 


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Section 4(b) above,
such benefits to be determined as though the Executive’s employment had
terminated at the end of such period.


 


5.                                       Payment
Upon Effective Date of Change in Control. 
Upon the effective date of a Change in Control, regardless of whether a
Terminating Event has occurred, in addition to any other payment required by
Section 4, the Company shall pay the Executive an amount in cash
representing fifty percent (50%) of the Executive’s annual salary as in effect
immediately prior to the Change in Control. 
Said amount shall be paid in one lump sum payment no later than
thirty-one (31) days following the effective date of a Change in Control.


 


6.                                       Certain
Limitations.  It is the intention of
the Executive and of the Company that no payments by the Company to or for the
benefit of the Executive under this Agreement or any other agreement or plan,
if any, pursuant to which the Executive is entitled to receive payments or
benefits shall be nondeductible to the Company by reason of the operation of
Section 280G of the Code relating to parachute payments or any like
statutory or regulatory provision. 
Accordingly, and notwithstanding any other provision of this Agreement
or any such agreement or plan, if by reason of the operation of said
Section 280G or any like statutory or regulatory provision, any such
payments exceed the amount which can be deducted by the Company, such payments
shall be reduced to the maximum amount which can be deducted by the
Company.  To the extent that payments
exceeding such maximum deductible amount have been made to or for the benefit
of the Executive, such excess payments shall be refunded to the Company with
interest thereon at the applicable Federal rate determined under
Section 1274(d) of the Code, compounded annually, or at such other rate as
may be required in order that no such payments shall be nondeductible to the
Company by reason of the operation of said Section 280G or any like
statutory or regulatory provision.  To
the extent that there is more than one method of reducing the payments to bring
them within the limitations of said Section 280G or any like statutory or
regulatory provision, the Executive shall determine which method shall be
followed, provided that if the Executive fails to make such determination
within forty-five (45) days after the Company has given notice of the need for
such reduction, the Company may determine the method of such reduction in its
sole discretion.


 


7.                                       Term.  This Agreement shall take effect on the date
first set forth above and shall terminate upon the earliest of (a) the
termination by the Company of the employment of the Executive for Cause; (b)
the cessation of the Executive’s employment with the Company for any reason or
the resignation or termination of the Executive for any reason, in each case,
prior to a Change in Control; or (c) the resignation of the Executive after a
Change in Control for any reason other than for Good Reason.


 


8.                                       Withholding.  All payments made by the Company under this
Agreement shall be net of any tax or other amounts required to be withheld by
the Company under applicable law.


 


9.                                       Notice
and Date of Termination; Disputes; Etc.


 


(a)                                  Notice
of Termination.  After a Change in
Control and during the term of this Agreement, any purported termination of the
Executive’s employment (other than by


 


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reason of death) shall be
communicated by written Notice of Termination from one party hereto to the
other party hereto in accordance with this Section 9.  For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and the Date of Termination.  Further, a Notice of Termination for Cause
is required to include a copy of a resolution duly adopted by the affirmative
vote of not less than a majority of the entire membership of the Board (exclusive
of the Executive) at a meeting of the Board (after reasonable notice to the
Executive and an opportunity for the Executive, accompanied by the Executive’s
counsel, to be heard before the Board) finding that, in the good faith opinion
of the Board, the termination met the criteria for Cause set forth in
Section 3(a) hereof.


 


(b)                                 Date
of Termination.  “Date of
Termination,” with respect to any purported termination of the Executive’s
employment after a Change in Control and during the term of this Agreement,
shall mean the date specified in the Notice of Termination.  In the case of a termination by the Company
other than a termination for Cause (which may be effective immediately), the
Date of Termination shall not be less than 30 days after the Notice of
Termination is given.  In the case of a
termination by the Executive, the Date of Termination shall not be less than 15
days from the date such Notice of Termination is given.  Notwithstanding Section 3(a) of this
Agreement, in the event that the Executive gives a Notice of Termination to the
Company, the Company may unilaterally accelerate the Date of Termination and
such acceleration shall not result in a second Terminating Event for purposes
of Section 3(a) of this Agreement.


 


(c)                                  No
Mitigation.  The Company agrees
that, if the Executive’s employment by the Company is terminated during the
term of this Agreement, the Executive is not required to seek other employment
or to attempt in any way to reduce any amounts payable to the Executive by the
Company pursuant to Sections 4 and 5 hereof. 
Further, the amount of any payment provided for in this Agreement shall
not be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.


 


(d)                                 Mediation
of Disputes.  The parties shall
endeavor in good faith to settle within 90 days any controversy or claim
arising out of or relating to this Agreement or the breach thereof through
mediation with J.A.M.S./Endispute or similar organizations.  If the controversy or claim is not resolved
within 90 days, the parties shall be free to pursue other legal remedies in law
or equity.


 


10.                                 Assignment;
Prior Agreements; Non-Solicitation. 
Except for an assignment by the Company in connection with a Change in
Control in which the successor, if other than the Company, shall assume and
agree to perform this Agreement in writing, neither the Company nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party, and without such consent any attempted transfer shall be null and void
and of no effect.  This Agreement shall
inure to the


 


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benefit of and be binding
upon the Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns. 
In the event of the Executive’s death after a Terminating Event but
prior to the completion by the Company of all payments due him under
Sections 4 and 5 of this Agreement, the Company shall continue such
payments to the Executive’s beneficiary designated in writing to the Company
prior to his death (or to his estate, if the Executive fails to make such
designation).  This Agreement supercedes
all prior Agreements, whether written or oral with respect to the subject
matter hereof.  Notwithstanding the
foregoing that certain Non-Disclosure and Non-Competition Agreement of
March 17, 2003, by and between Executive and the Company shall remain in
full force and effect in accordance with its terms.


 


Executive covenants to
the Company that during his employment with the Company and until one (1) year
from the date he is no longer employed by the Company, any affiliate thereof or
any successor thereto, he will not in any manner, on his own behalf, or as a
partner, officer, director, employee, agent or entity, directly or indirectly,
induce or attempt to influence any person serving as an employee of the Company
or any successor thereto to leave its employ or hire any such person.


 


11.                                 Enforceability.  If any portion or provision of this
Agreement shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as
to which it is so declared illegal or unenforceable, shall not be affected
thereby, and each portion and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.


 


12.                                 Waiver.  No waiver of any provision hereof shall be
effective unless made in writing and signed by the waiving party.  The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.


 


13.                                 Notices.  Any notices, requests, demands, and other
communications provided for by this Agreement shall be sufficient if in writing
and delivered in person or sent by registered or certified mail, postage
prepaid, to the Executive at the last address the Executive has filed in
writing with the Company, or to the Company at its main office, attention of
the Board of Directors.


 


14.                                 Effect
on Other Plans.  Except as provided
in Section 10 hereof, nothing in this Agreement shall be construed to
limit the rights of the Executive under the Company’s benefit plans, programs
or policies.


 


15.                                 Amendment.  This Agreement may be amended or modified
only by a written instrument signed by the Executive and by a duly authorized
representative of the Company.


 


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16.                                 Governing
Law.  This is a Massachusetts
contract and shall be construed under and be governed in all respects by the
laws of the Commonwealth of Massachusetts.


 


17.                                 Obligations
of Successors.  In addition to any
obligations imposed by law upon any successor to the Company, the Company will
use its commercially reasonable efforts to require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place.


 


IN WITNESS WHEREOF, this
Agreement has been executed as a sealed instrument by the Company by their duly
authorized officers and by the Executive, as of the date first above written.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  ANIKA THERAPEUTICS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles H. Sherwood

  	
   

  
	
   

  	
   

  	
  Charles H. Sherwood,
  Ph.D.

  
	
   

  	
   

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Elizabeth Chen

  	
   

  
	
   

  	
  Elizabeth Chen

  
					



 


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