Exhibit 10.21
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT ("Agreement") is made between
PHYSIO-CONTROL INTERNATIONAL, INC. a Washington corporation (the "Company")
and ____________________, an individual (the "Executive"), as of November
12, 1997 with respect to the following facts:
RECITALS:
A. The Executive is a principal officer of the Company and
an integral part of its management.
B. The Company wishes to assure both itself and the
Executive of continuity of management in the event of
any actual or threatened change of control of the
Company.
C. This Agreement is not intended to alter materially the
compensation and benefits that the Executive could
reasonably expect in the absence of a change in control
of the Company and, accordingly, this Agreement, though
taking effect upon execution thereof, will be operative
only upon a change of control of the Company, as that
term is defined herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and the
agreements of the parties contained herein, the parties do hereby agree as
follows:
1. Operation of Agreement
----------------------
This Agreement shall be effective immediately upon its execution by
the parties hereto. Anything in this Agreement to the contrary
notwithstanding, neither this Agreement nor any provision thereof shall be
operative unless and until there has been a "Change in Control" of the
Company as defined in Section 5 below. Upon such a Change in Control of the
Company, this Agreement and all provisions hereof shall become operative
immediately.
2. Purpose and Intent
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The Board of Directors of the Company (the "Board") recognizes the
possibility of a Change in Control of the Company exists and that such
possibility, and the uncertainty and questions which it necessarily raises
among management, may result in the departure or distraction of key
management personnel to the detriment of the
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Company and its shareholders in this period when their undivided attention
and commitment to the best interests of the Company and its shareholders are
particularly important. Accordingly, 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 of the Company.
3. Term of Agreement
-----------------
This Agreement shall be effective upon the execution thereof by the
parties, and shall remain in effect until December 31, 2002, at which time it
shall terminate; provided, however, that the term of this Agreement shall be
extended by one day for each day after December 31, 2000 that notice of
termination by either party has not been given to the other, so that at all
times after December 31, 2000, if neither party has given notice of
termination then this Agreement shall extend for two years. If any notice of
termination is given after December 31, 2000, then this Agreement shall
terminate on that date two years after such notice is given.
4. Termination Following Change in Control
---------------------------------------
For purposes hereof only, a termination of the Executive's
employment following a Change in Control ("Termination Following Change in
Control") shall be deemed to occur if at any time during the two-year period
immediately following a Change in Control:
(a) there has been an actual termination by the Company of
the Executive's employment, other than "for cause" as
defined herein;
(b) the Company reduces the Executive's base salary, bonus
computation or title;
(c) the Company substantially reduces the Executive's
responsibilities as in effect immediately prior to the
Change in Control or as the same may be increased from
time to time, or there is a change in employment
conditions deemed by the Executive to be materially
adverse as compared to those in effect immediately
prior to the Change in Control, any of which is not
remedied within 30 days after receipt by the Company of
notice by the Executive, of such reduction in
responsibilities or change in employment conditions;
(d) without the Executive's express written consent, the
Company requires the Executive to be based anywhere
other than King County, Washington,
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except for required travel on the Company's business to an
extent substantially consistent with that prior to the Change
in Control;
(e) the Company fails to obtain the assumption of the
performance of this Agreement by any successor of the
Company; or
(f) the Company takes any action which would deprive the
Executive of any material fringe benefit enjoyed by the
executive at the time of the Change in Control, or the
Company fails to provide the Executive with the number
of paid vacation days to which the Executive is then
entitled in accordance with the Company's normal
vacation policy in effect on the date of the Change in
Control.
The voluntary termination by the Executive of his employment by the Company
shall in no event constitute a "Termination Following Change in Control".
5. Definition of Change in Control
-------------------------------
A Change in Control will be deemed to have occurred if:
(a) any "person," as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1943
(the "Exchange Act"), is or becomes a beneficial
owner, directly or indirectly, of securities of the
Company representing 25% or more of the combined voting
power of the Company's then outstanding equity
securities;
(b) during any period of twenty-four (24) consecutive
months, commencing before or after the date of this
Agreement, individuals who at the beginning of such
twenty-four (24) month period were directors of the
Company for whom the Executive shall have voted cease
for any reason to constitute at least a majority of the
Board of Directors of the Company;
(c) an event occurs which constitutes a change in control
of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, whether or not the
Company is then subject to such reporting requirements;
(d) there is a merger or consolidation of the Company in
which the Company does not survive as an independent
public company; or
(e) the business or businesses of the Company for which the
Executive's services are principally performed are
disposed of by the Company pursuant to a partial or
complete liquidation of the Company, a sale of assets
(including stock of a subsidiary) of the Company, or
otherwise.
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6. COMPENSATION FOLLOWING TERMINATION
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(a) Subject to the terms and conditions of this Agreement,
upon a Termination Following Change in Control, as
defined in Section 4, which occurs during the term of
this Agreement, the Executive shall be entitled to (i)
a lump sum payment, within fifteen (15) days following
such termination, in an amount equal to
________________ times the highest annual level of
total cash compensation (including any and all bonus
amounts) paid to the Executive by the Company (as
reported on Form W-2) during the three calendar years
ended immediately prior to such termination, (ii) the
immediate vesting of all previously granted but
unvested stock options to acquire securities from the
Company which were outstanding on the date of the
termination, and (iii) payment by the Company of
continuing health coverage for a period of twenty-four
(24) months, at a level commensurate with that which
the Executive enjoyed with the Company immediately
prior to such Change in Control.
(b) The Executive shall not be required to mitigate the
amount of any payment provided for in this Section 6 by
seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in this
Section 6 be reduced by any amounts to which the
Executive shall be entitled by law (nor shall payment
hereunder be deemed in lieu of such amounts), by any
compensation earned by the Executive as the result of
employment by another employer or by retirement
benefits after the date of termination or voluntary
termination, or otherwise, provided however, if
Executive receives health coverage through subsequent
employment during such twenty-four (24) month period at
a level commensurate with that which Executive enjoyed
with the Company, the Company's obligations under
Section 6 (a) (iii) shall cease.
(c) Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the
Executive or his estate or beneficiaries shall be
subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the
Company may reasonably determine it should withhold
pursuant to any applicable law or registration. In
lieu of withholding such amounts, the Company may
accept other provisions to the end that it has
sufficient funds to pay all taxes required by law to be
withheld in respect of any or all of such payments.
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7. Definition of "For Cause"
-------------------------
The Termination of the Executive's employment by the Company
shall be deemed "For Cause" if it results from:
(a) the willful and continued failure by the Executive to
substantially perform his duties hereunder or regular
failure to follow the specific directives of the Board,
after demand for substantial performance that
specifically identifies the manner in which the Company
believes the Executive has not substantially performed
his duties is delivered by the Company;
(b) the willful engaging by the Executive in misconduct
which is materially injurious to the Company,
monetarily or otherwise;
(c) the Executive's death; or
(d) an accident or illness which renders the Executive
unable, for a period of at least six (6) consecutive
months, to perform the essential functions of his job,
notwithstanding the provision of reasonable
accommodation by Employer.
For purposes of this section, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that this action
or omission was in the best interest of the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated For
Cause under subsection (a) or (b) without (i) reasonable notice to the
Executive setting forth the reasons for the Company's intention to terminate
For Cause, (ii) an opportunity for the Executive, together with his counsel,
to be heard before the Board, and (iii) delivery to the Executive of a notice
of termination from the Board finding that, in the good faith opinion of the
Board, the Executive was guilty of conduct set forth above in clause (a) or
(b) of the preceding sentence and specifying the particulars thereof in
detail.
8. Tax Treatment
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It is the intention of the parties that no portion of the payment
made under Section 6 hereof (The "Termination Payment") or any other payment
under this Agreement, or payments to or for the Executive's benefit under any
other agreement or plan, be deemed to be an excess parachute payment as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), or its successors. However, should it be asserted that any amount
to be received by Executive hereunder is an excess parachute payment, it is
agreed that the present value of the Termination Payment and any other
payment to or for the Executive's benefit in the nature of
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compensation, receipt of which is contingent on the Change in Control of the
Company, and to which Section 280G of the Code or any successor provision
thereto applies (in the aggregate "Total Payments") exceeds an amount in
excess of the maximum amount which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code or any successor
provisions thereto, Executive shall nevertheless be entitled to all such
payments and the Company shall indemnify Executive for any tax imposed under
Section 4999 of the Code or any successor provisions thereto, including
payment of the tax due on any payments made to Executive or on behalf of
Executive to pay such taxes (i.e. "gross up").
Within six (6) days following delivery of written notice by the
Company to the Executive of the Company's belief that there is a payment or
benefit due which will result in an excess parachute payment as defined in
Section 280G of the Code or any successor provisions, the Company and the
Executive, at the Company's expense, shall obtain the opinion of legal
counsel and certified public accountants, as the Company and Executive may
mutually agree upon, which opinions need not be unqualified, which sets forth
(i) the amount of the Executive's Base Period Income, as defined in Section
280G of the Code, (ii) the present value of Total Payments, and (iii) the
amount and present value of any excess parachute payments.
In the event such opinions determine that there would be an excess
parachute payment, included in the Termination Payment hereunder, or any
other payment determined by such counsel to be includable in Total Payments,
such opinions shall include the amount of tax due in relation thereto and the
amount of the total gross up payment required for indemnification of the
Executive by the Company. Such amounts shall then promptly be paid by the
Company to the Executive or to the Internal Revenue Service on behalf of the
Executive. The provisions of this Section, including the calculations,
notices and opinions provided herein, shall be based upon the conclusive
presumption that (i) the compensation and benefits provided herein and (ii)
any other compensation, including but not limited to any accrued benefits,
earned by the Executive prior to the Change in Control of the Company
pursuant to the Company's compensation programs, would have been reasonable
if made in the future in any event, even though the timing of such payment is
triggered by the Change in Control of the Company. In the event such legal
counsel so requests in connection with the Section 280G opinion required by
this Section, the Company and Executive shall obtain, at the Company's
expense, the advice of a firm of recognized executive compensation
consultants concerning the reasonableness of any item of compensation to be
received by the Executive, on which advice legal counsel may rely in
providing their opinion. In the event that the provisions of Sections 280G
and 4999 of the code for any successor provision are repealed without
succession, this Section shall be of no further force or effect.
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9. Miscellaneous
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(a) Intent. This Agreement is made by the Company in order
to induce the Executive to remain in the Company's
employ, with the Company's acknowledgment and intent
that it will be relied upon by the Executive, and in
consideration of the services to be performed by the
Executive from time to time hereafter. However, this
Agreement is not an agreement to employ the Executive
for any period of time or at all, and the terms and
conditions of the Executive's employment, other than
those expressly addressed herein, shall be subject to
and governed by a separate agreement of employment
between the Company and the Executive. This Agreement
is intended only as an agreement to provide the
Executive with a specified compensation and benefits if
he or she is terminated following a Change in Control.
(b) Attorney's Fees. If any action at law or in equity is
commenced to enforce any of the provisions or rights
under this Agreement, the unsuccessful party to such
litigation, as determined by the court in a final
judgment or decree, shall pay the successful party all
costs, expenses and reasonable attorneys' fees incurred
by the successful party or parties (including, without
limitation, costs, expenses and fees on any appeals),
and if the successful party recovers judgment in any
such action or proceeding, such costs, expenses and
attorneys' fees shall be included as part of the
judgment.
(c) Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws
of the State of Washington.
(d) Successors and Assigns
(i) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the
business and/or assets of the Company to assume
expressly and agree in writing to perform this
Agreement. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement
and shall require the Company to pay to the Executive
compensation from the Company in the same amount and on
the same terms as the Executive would be entitled
hereunder in the event of a Termination Following
Change in Control of the Company, except that for
purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be
deemed to be the date on which the Executive shall
receive such compensation from the Company. As used in
this Agreement, "Company" shall mean the Company as
herein above defined
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and any successor to its business and/or assets as aforesaid
which assumes and agrees to perform this Agreement by
operation or law or otherwise.
(ii) This Agreement shall inure to the benefit of, and
be enforceable by, the Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be
payable to the Executive hereunder if the Executive had
continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the
terms of this Agreement to Executive's devisee,
legatee, or other designee or, if there is no such
designee, to Executive's estate.
(e) Notices. Except as otherwise expressly provided
herein, any notice, demand or payment required or
permitted to be given or paid shall be deemed duly
given or paid only if personally delivered or sent by
United States mail and shall be deemed to have been
given when personally delivered or two (2) days after
having been deposited in the United States mail,
certified mail, return receipt requested, properly
addressed with postage prepaid. All notices or demands
shall be effective only if given in writing. For the
purpose hereof, the addresses of the parties hereto
(until notice of a change thereof is given as provided
in this Section 9(f), shall be as follows:
The Company: PHYSIO-CONTROL INTERNATIONAL
00000 Xxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
Attn.: Corporate Secretary
Executive: __________________
__________________
__________________
(f) Severability. In the event any provision in this
Agreement shall be invalid, illegal or unenforceable,
such provision shall be severed from the rest of this
Agreement and the validity, legality and enforceability
of the remaining provisions shall not in any way be
affected or impaired thereby.
(g) Entirety. This Agreement constitutes the entire
agreement of the parties with respect to the subject
matter hereof and supersedes any prior or
contemporaneous agreement or understandings relating to
the subject matter hereof.
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(h) Amendment. This Agreement may be amended only by a
written instrument signed by the parties hereto, which
makes specific reference to this Agreement.
(i) Setoff. There shall be no right of setoff or
counterclaim, in respect of any claim, debt or
obligation, against any payments to the Executive, his
dependents, beneficiaries or estate provided for in
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
THE COMPANY: PHYSIO-CONTROL INTERNATIONAL
By:
EXECUTIVE: ____________________________
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