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EXHIBIT 10.10
CHANGE OF CONTROL AGREEMENT
This Agreement is entered into as of December 5, 1997, by and between
HealthCor Holdings, Inc. (the "Company") and ______________ (the "Key
Executive").
PRELIMINARY STATEMENTS
A. The Company has determined that it is appropriate to reinforce
and encourage the continued attention and dedication of members of the
Company's management, including the Key Executive, to their assigned duties
without distraction in potentially disturbing circumstances arising from the
possibility of a Change in Control (as defined below); and
B. This Agreement sets forth the compensation which the Company
agrees it will pay to the Key Executive if the Key Executive's employment with
the Company terminates under the circumstances described herein.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements contained herein and to induce the Key Executive to
continue to exert his best efforts on behalf of the Company, the parties agree
as follows:
STATEMENT OF AGREEMENT
1. Severance Compensation upon Termination Following Change in
Control.
The Company shall pay to the Key Executive the Severance
Payment (defined below) under the following circumstances: (i) if within 360
days following a Change in Control the Key Executive terminates his employment
with the Company for Good Reason (as defined in Section 2(c) below), or (ii)
if within 360 days following a Change of Control or during the 60 day period
immediately preceding a Change of Control, the Company terminates the Key
Executive without Cause (as defined in Section 2(d) below). The Severance
Payment shall be
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payable in equal biweekly payments during the 12 month period immediately
following such termination.
2. Definitions.
(a) SEVERANCE PAYMENT. Severance Payment" shall mean an
amount equal to the Key Executive's biweekly salary as of the day
immediately preceding the date of the Change of Control (or as of the
date on which the Key Executive was terminated without Cause within 90
days prior to a Change of Control) multiplied by 26.
(b) CHANGE IN CONTROL. For purposes of this Agreement, a
"Change in Control" of the Company shall be deemed to have occurred if
(i) any "person", as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), shall become a beneficial owner, other than any currently
existing beneficial owner of common stock as of the date of this
Agreement, (within the meaning of Rule 13d-3 under the Exchange Act)
of 50 percent or more of the Company's outstanding common stock; (ii)
both of S. Xxxxx Xxxxxx and Xxxxxx X. Xxxxxx are no longer employed by
the Company; or (iii) the Company sells substantially all of its
assets.
(c) GOOD REASON. For purposes of this Agreement, "Good
Reason" for the Key Executive to terminate his employment after a Change in
Control shall mean any of the following events which take place after a Change
of Control or within the 60 day period immediately preceding a Change of
Control:
(i) any reduction of the Key Executive's base
salary in effect on the date hereof or as increased from time
to time during the term of this Agreement;
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(ii) a relocation of the place of Key Executive's
employment to a location which is more than 50 miles from the
place of his employment immediately prior to the Change in
Control; or
(iii) a change in the assignment of duties to the
Key Executive which are not commensurate with the duties
normally performed by the Key Executive.
(d) CAUSE. For purposes of this Agreement, the Company
shall have "Cause" to terminate the Key Executive's employment and shall not be
obligated to make any payments hereunder in the event the Key Executive has:
(i) committed an act of deceit or breach of fiduciary duty in the performance of
Key Executive's duties as an employee of the Company; (ii) grossly neglected or
willfully failed in any way to perform substantially the duties of such
employment; or (iii) acted or failed to act in any other way that reflects
materially and adversely upon the Company. In the event of a termination of
Key Executive's employment by the Company for Cause, the Company shall deliver
to Key Executive at the time the Key Executive is notified of the termination
of his employment a written statement setting forth in reasonable detail the
facts and circumstances claimed by the Company to provide a basis for the
termination of the Key Executive's employment for Cause.
(e) TERMINATION DATE. For the purposes of this
Agreement, "Termination Date" shall mean the date on which the Key Executive's
employment with the Company is terminated.
3. Term. This Agreement shall remain in full force and effect
until October 31, 2000.
4. Successor to the Company.
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(a) The Company will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company, by
written agreement with the Key Executive, to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform this Agreement if no such succession or assignment had
taken place. Any failure of the Company to obtain such agreement prior to the
effectiveness of any such succession or assignment shall be a material breach
of this Agreement and shall entitle the Key Executive to terminate the Key
Executive's employment for Good Reason irrespective of whether or not a Change
in Control has occurred. As used in this Agreement, "Company" include any
successor or assign to its business and/or assets as described above.
(b) If the Key Executive should die while any amounts are
still payable to him hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the Key
Executive's devisee, legatee or other designee or, if there be no such
designee, to the Key Executive's estate. This Agreement shall, therefore,
inure to the benefit of and be enforceable by the Key Executive's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
5. Applicable Law . Any and all disputes, controversies or claims
arising under or in connection with this Agreement, including without
limitation, the general validity or enforceability of this Agreement, shall be
governed by the laws of the State of Texas, without giving effect to its
conflict of laws provisions and shall be submitted to binding arbitration
before one arbitrator of the American Arbitration Association conducted in
Dallas County under the laws of the State of Texas. All fees and expenses of
any arbitration, including the Key Executive's reasonable legal fees and costs,
shall be paid by the Company. The award of the
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arbitrator shall be final and enforceable in the courts of Texas. All costs of
enforcement shall be borne by the Company.
6. Validity. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
8. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Key Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior to subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
HEALTHCOR HOLDINGS, INC.
By:
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S. Xxxxx Xxxxxx
Chairman and Chief Executive Officer
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Name:
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Schedule of HealthCor Officers with Change of Control Agreement
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxx
M. Xxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
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