CHANGE IN CONTROL AGREEMENT
Exhibit
10.2
THIS
AGREEMENT, dated January 1, 2010 is made by and between AngioDynamics, Inc., a
Delaware corporation (the "Company"), and
[ ] (the
"Executive").
WHEREAS,
the Company considers it essential to the best interests of its shareholders to
xxxxxx the continued employment of key management personnel; and
WHEREAS,
the Board recognizes that, as is the case with many publicly held corporations,
the possibility of a Change in Control 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 shareholders; and
WHEREAS,
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;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Executive hereby agree as follows:
1. Defined Terms. The
definitions of capitalized terms used in this Agreement are provided in the last
Section hereof.
2. Term of Agreement.
The Term of this Agreement shall commence on the date hereof and shall continue
in effect through December 31, 2010; provided, however, that effective January
1, 2011 and each January 1 thereafter, the Term that is then in effect shall
automatically be extended for one additional year unless the Company has given
notice before the January 1 in question that the Term that is in effect at the
time such notice is given will not be extended; and further provided, however,
that if a Change in Control occurs during the Term, the Term shall expire no
earlier than twelve (12) calendar months after the calendar month in which such
Change in Control occurs. Notwithstanding the foregoing, this Agreement shall
terminate if the Executive ceases to be an employee of the Company and its
subsidiaries for any reason prior to a Change in Control. However, anything in this
Agreement (including the preceding sentence) to the contrary notwithstanding, if
a Change in Control occurs and if, within three months prior to the date on
which such Change in Control occurs, the Executive's employment with the Company
is terminated by the Company without Cause or an event occurs that would, if it
took place after the Change in Control, constitute Good Reason for termination
of employment by the Executive, and if it is reasonably demonstrated by the
Executive that such termination of employment by the Company or event
constituting Good Reason for termination of employment by the Executive (a) was
undertaken at the request of a third party who has taken steps reasonably
calculated to effect the Change in Control, or (b) otherwise arose in connection
with or in anticipation of the Change in Control, then for purposes of this
Agreement such termination of employment by the Company without Cause or event
constituting Good Reason shall be deemed to occur during the 12 month period
following the Change in Control and, if the Executive terminates his employment
for such Good Reason before the Change in Control, such termination of
employment by the Executive shall likewise be deemed to occur during the 12
month period following the Change in Control.
3. Company's Covenants
Summarized. In order to induce the Executive
to remain in the employ of the Company and in consideration of the Executive's
covenants set forth in Section 4 hereof, the Company agrees, under the
conditions described herein, to pay the Executive the Severance Payments and
the other
payments and benefits described herein. Except as provided in Section 2, Section
6.3, Section 9.1 or Section 14.2 hereof, no amounts shall be payable under this
Agreement unless the Executive's employment with the Company terminates
following a Change in Control and during the Term. This Agreement shall not be
construed as creating an express or implied contract of employment enforceable
against the Company nor, except as provided in Section 4 below, enforceable
against the Executive, 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.
4. The Executive's
Covenants. The Executive agrees to remain in the employ of the Company,
subject to the terms and conditions of this Agreement, if a Potential Change in
Control occurs during the Term and the Executive is then in the employ of the
Company, until the earliest of (a) the date which is six (6) months from the
date of such Potential Change in Control, (b) the date of a Change in Control,
(c) the date of termination by the Executive of the Executive's employment for
Good Reason or by reason of death, Disability or Retirement, or (d) the
termination by the Company of the Executive's employment for any reason;
provided that Executive’s agreement to remain in the employ of the Company shall
be subject to the condition that no adverse change occurs after the Potential
Change in Control in his title, duties, responsibilities, authority, reporting
relationships, compensation, benefits or indemnification rights.
5. Certain Compensation Other
Than Severance Payments.
5.1 If the Executive's employment shall be terminated for any reason following a Change in Control and during the Term, the Company shall pay the Executive his full salary through the date of termination at the rate in effect immediately prior to the date of termination or, if higher, the rate in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason, together with all compensation and benefits payable to the Executive through the date of termination under the terms of the Company's compensation and benefit plans, programs and arrangements as in effect immediately prior to the date of termination or, if more favorable to the Executive, as in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason.
5.2 Subject
to Section 6.1 hereof, if the Executive's employment shall be terminated for any
reason following a Change in Control and during the Term, the Company shall pay
to the Executive the Executive's normal post-termination compensation and
benefits as such payments become due. Any such post-termination compensation and
benefits shall be determined under, and paid in accordance with, the Company's
retirement, insurance and other compensation and benefit plans, programs and
arrangements as in effect immediately prior to the date of termination or, if
more favorable to the Executive, as in effect immediately prior to the
occurrence of the first event or circumstance constituting Good
Reason.
6. Severance
Payments.
6.1 Subject
to Section 6.2 and Section 6.3 hereof, if the Executive's employment is
terminated following a Change in Control and during the Term either by the
Company or by the Executive, other than (a) by the Company for Cause, (b) by
reason of death or Disability, or (c) by the Executive without Good
Reason, (any such employment termination being hereafter sometimes referred to
as a "Compensable
Termination"), then the Company shall pay the Executive the amounts, and
provide the Executive the benefits, described in this Section 6.1 ("Severance Payments"),
in addition to any payments and benefits to which the Executive is entitled
under Sections 5 and 6.3 hereof. Notwithstanding the foregoing, the Executive
shall not be eligible to receive any payment or benefit provided for in this
Section 6.1 unless the Executive shall have executed a release substantially in
the form of Exhibit A hereto effective as of the date of the Compensable
Termination or a date subsequent thereto and shall not have revoked said
release. The Severance Payments are in lieu of any severance benefits
that would otherwise be payable or provided pursuant to any severance plan or
practice of the Company.
(i) The
Company shall pay the Executive, at the time provided in Section 6.2 below, his
annual bonus for the fiscal year of the Company preceding the fiscal year of the
Company in which the Compensable Termination occurs, if unpaid at the time of
the Compensable Termination, the amount of such bonus to be determined by the
Compensation Committee of the Board on a basis no less favorable to the
Executive than its bonus determinations with respect to the Executive prior to
the Change in Control, unless the Committee made no bonus determinations with
respect to the Executive before the Change in Control, in which case on a basis
no less favorable to the Executive than its bonus determinations with respect to
other executives of comparable rank before the Change in Control.
(ii) The
Company shall pay the Executive, at the time provided in Section 6.2 below, a
prorated annual bonus for the fiscal year of the Company in which the
Compensable Termination occurs, such prorated bonus to be determined by
multiplying the “Applicable Average Bonus” as defined below in this subsection
(ii) by a fraction the numerator of which shall be the number of days elapsed in
such fiscal year through (and including) the date on which the Compensable
Termination occurs and the denominator of which shall be the number
365. For purposes of this Agreement, the “Applicable Average
Bonus” means the higher of (A) the average of all annual bonuses
(including any deferred bonuses) awarded to the Executive during the 36 months
immediately preceding the Compensable Termination or, if the Executive was
employed by the Company for less than 36 months before the Compensable
Termination, during the period of his employment by the Company prior to the
Compensable Termination (annualizing any bonus awarded for less than a full year
of employment), or (B) the average of all annual bonuses (including any deferred
bonuses) awarded to the Executive during the three fiscal years of the Company
that precede the fiscal year in which the Compensable Termination occurs or
during the portion of such three fiscal years in which he was employed by the
Company (annualizing any bonus awarded for less than a full year of employment),
or (C) the average of all annual bonuses (including any deferred bonuses)
awarded to the Executive during the 36 months preceding the date on which the
Change in Control occurred or during the portion of such 36 month period in
which he was employed by the Company (annualizing any bonus awarded for less
than a full year of employment).
(iii) The
Company shall pay the Executive, at the time provided in Section 6.2 below, a
lump sum cash payment equal to two (2) times the Executive's annual base
salary at the rate in effect immediately prior to the Compensable Termination
or, if higher, in effect immediately prior to the first occurrence of an event
or circumstance constituting Good Reason (“Base
Salary”).
(iv) The
Company will pay the Executive for all earned but unused vacation leave at the
time of the Compensable Termination.
(v) At
the time provided in Section 6.2 below, the Company shall, in accordance with
the Company’s automobile policy for officers as in effect on the date of this
Agreement (the “Auto Policy”), (A) transfer title to the Executive's
Company-provided automobile to the Executive at the Company’s expense, or (B) if
the Company leases rather than owns such automobile, purchase such automobile
and transfer title to such automobile to the Executive at the Company's expense,
or (C) if the Executive is receiving a car allowance in lieu of being provided
with a Company-owned or Company-leased automobile, pay the Executive the book
value of the automobile for which the allowance is paid, up to the amount
provided in the Auto Policy.
6.2 All
payments to be made pursuant to subsection (i), (ii), (iii), and (v) of
Section 6.1 above shall be made within thirty (30) calendar days after the
date on which a Separation from Service occurs coincident with or following, or
within 30 days before, the date on which the Compensable Termination occurs (the
“Separation from
Service Date”) unless on the Separation from Service Date the
Executive is a Specified Employee, in which case such payments shall be made six
months and one day after the Separation from Service Date (or, if earlier, the
date of the Executive’s death). For purposes of the preceding
sentence, a Specified Employee means a “specified employee” who is
subject to the special rule set forth in subsection (a)(2)(B)(i) of section 409A
of the Code and the regulations thereunder (including, without limitation,
Proposed Treasury Regulation section 1.409A-1(i)) with respect to such
payments.
7. Payments During
Dispute. Any payments to which the Executive may be entitled under this
Agreement, including, without limitation, under sections 5 and 6 hereof, shall
be made forthwith on the applicable date(s) for payment specified in this
Agreement. If for any reason the amount of any payment due to the
Executive cannot be finally determined on that date, such amount shall be
estimated on a good faith basis by the Company and the estimated amount shall be
paid no later than 10 days after such date. As soon as practicable
thereafter, the final determination of the amount due shall be made and any
adjustment requiring a payment to or from the Executive shall be made as
promptly as
practicable.
8. No Mitigation. The
Company agrees that, if the Executive's employment with the Company terminates
during the Term, 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 Section 6 hereof or any other provision of this Agreement. Further,
the amount of any payment or benefit provided for in this Agreement shall not be
reduced (a) by any compensation earned by the Executive as the result of
employment by another employer, (b) by retirement benefits, (c) by offset
against any amount claimed to be owed by the Executive to the Company, or (d)
otherwise.
9. Successors; Binding
Agreement.
9.1 In
addition to any obligations imposed by law upon any successor
to the Company, 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 expressly
assume and agree to perform the Company’s obligations under 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. Failure of the Company to obtain
such assumption and agreement prior to the effectiveness of any such succession
during the Term shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as the Executive would be entitled to hereunder if the Executive were to
terminate the Executive's employment for Good Reason after a Change in Control
and during the Term, except that, for purposes of implementing the foregoing,
the date on which the Executive’s employment terminates (for any reason other
than Cause) within 30 days before, or at any time during the Term and on or
after, the date on which any such succession becomes effective during the Term
shall be deemed the date of the Compensable Termination.
9.2 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 shall die while any amount
would still be payable to the Executive hereunder (other than amounts which, by
their terms, terminate upon the death of the Executive) 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 the executors, personal
representatives or administrators of the Executive's estate.
10. Notices. For the
purpose of this Agreement, notices and all other communications provided for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, addressed, if to the Executive, to his most recent
address shown on the books and records of the Company at the time notice is
given and, if to the Company, to the address set forth below, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
actual receipt:
To
the Company:
AngioDynamics,
Inc.
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
11. Miscellaneous. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and such officer as may be specifically designated by the Board. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or of any lack of 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 or
subsequent time. This Agreement constitutes the entire agreement of the parties
concerning the specific subject matter addressed by this Agreement and
supersedes all prior agreements addressing the terms and conditions contained
herein. Nothing in this Agreement is intended to amend or otherwise
alter the change in control provisions or any other provisions of any (a) stock
option or other compensation or incentive award that may heretofore have been or
may hereafter be granted to the Executive, or (b) employee benefit or fringe
benefit plan in which the Executive may heretofore have been or may hereafter be
a participant. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York. All
references to sections of the Code or the Exchange Act shall be deemed also to
refer to any successor provisions to such sections and to IRS or SEC regulations
and official guidance published thereunder. Any payments provided for hereunder
shall be subject to any applicable withholding required under federal, state or
local law and any additional withholding to which the Executive has agreed. The
obligations of the Company and the Executive under this Agreement which by their
nature may require either partial or total performance after the expiration of
the Term (including, without limitation, those under Sections 6 and 7 hereof)
shall survive such expiration.
12. Validity. The
invalidity or unenforceability of any provision 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.
13. Counterparts. This
Agreement may be executed in several
counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Settlement of Disputes;
Arbitration.
14.1 All
claims by the Executive for benefits under this Agreement shall be directed to
and determined by the Board and shall be in writing. Any denial by the Board of
a claim for benefits under this Agreement shall be delivered to the Executive in
writing and shall set forth the specific reasons for the denial and the specific
provisions of this Agreement relied upon. The Board shall afford a
reasonable opportunity to the Executive for a review of the decision denying a
claim and shall further allow the Executive to appeal to the Board a decision of
the Board within sixty (60) days after notification
by the Board that the Executive's claim has been denied.
14.2 Any
further dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in the Albany, New York
metropolitan area in accordance with the employment dispute resolution rules of
the American Arbitration Association then in effect. The arbitrator shall have
the authority to require that the Company reimburse the Executive for the
payment of all or any portion of the legal fees and expenses incurred by the
Executive in connection with such dispute or controversy. Judgment may be
entered on the arbitrator's award in any court having jurisdiction.
14.3 The
Company agrees to use commercially reasonable efforts to administer this
Agreement, and operate any deferred compensation plans in which the Executive
participates from time to time that are aggregated with this Agreement or with
any payment or benefit provided by this Agreement for purposes of Section 409A
of the Code (e.g., account balance plans, nonaccount balance plans, separation
pay plans, and plans that are neither account balance nor nonaccount balance
plans), in good faith compliance with Code Section 409A to the extent necessary
to avoid inclusion of any amounts of benefits payable hereunder in the
Executive’s income pursuant to Section 409A(a)(1)(A) of the Code.
15. Definitions. For
purposes of this Agreement, the following terms shall have the meanings
indicated below:
(A) "Affiliate"
shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act.
(B) “Applicable
Average Bonus” shall have the meaning set forth in subsection (ii) of Section
6.1.
(C) “Base Salary” shall have the meaning set forth in subsection (iii) of Section 6.1.
(D) "Beneficial
Owner" shall have the meaning set forth in Rule 13d-3 under the Exchange
Act.
(E) "Board"
shall mean the Board of Directors of the Company.
(F) "Cause"
for termination by the Company of the Executive's employment shall mean (i) the
willful and continued failure by the Executive to substantially perform the
Executive's duties with the Company as such duties were in effect prior to any
change therein constituting Good Reason (other than any such failure resulting
from the Executive's incapacity due to physical or mental illness or any such
failure after the occurrence of an event constituting Good Reason for
resignation by the Executive) after a written demand for substantial performance
is delivered to the Executive by the Board, which demand specifically identifies
the manner in which the Board believes that the Executive has not substantially
performed the Executive's duties, provided that such failure will constitute
Cause only if it remains uncured for more than thirty (30) days following
receipt by the Executive of such written demand from the Board; (ii) the
engaging by the Executive in willful conduct which is demonstrably and
materially injurious to the Company or its subsidiaries, monetarily or
otherwise, provided that such conduct will constitute Cause only if it remains
uncured for more than thirty (30) days following receipt by the Executive of a
written demand from the Board to cease such conduct; (iii) the Executive’s
insubordination, as defined from time to time by the Board, provided that
insubordination will constitute Cause only if it remains uncured for more than
thirty (30) days following receipt by the Executive of a written demand from the
Board to cease such insubordination; or (iv) the Executive's conviction of (a) a
felony or (b) a crime involving fraud, dishonesty or moral turpitude. For
purposes of clauses (i) and (ii) of this definition, no act, or failure to act,
on the Executive's part shall be deemed "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the
Executive's act, or failure to act, was in the best interest of the
Company. The Company shall notify the Executive in writing of any
employment termination purporting to be for Cause on or before the date of such
termination, which writing shall describe with specificity the conduct alleged
to constitute Cause for such termination. Any purported termination
of employment by the Company for Cause which does not satisfy the applicable
requirements of this Section 15(F) shall be conclusively deemed to be a
termination of employment by the Company without Cause for purposes of this
Agreement.
(G) A
"Change in Control" shall mean that any of the following events has
occurred:
(i) any
Person is or becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities beneficially owned by such Person any
securities acquired directly from the Company or its Affiliates)
representing more than 40% of the combined voting power of the Company's then
outstanding securities, excluding any Person who becomes such a Beneficial Owner
in connection with a transaction described in clause (A) of paragraph (iii)
below; or
(ii) the
following individuals cease for any reason to constitute a majority
of the number of directors serving on the Board: individuals who, at the
beginning of any period of two consecutive years or less (not including any
period prior to the date of this Agreement), constitute the Board and any new
director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board or nomination for election
by the Company's shareholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of such period or whose appointment, election or nomination for
election was previously so approved or recommended; or
(iii) there
is consummated a merger or consolidation of the Company or any Subsidiary with
any other corporation, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the ownership of
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company or any Subsidiary, at least 60% of the combined voting power of
the securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in
the securities beneficially owned by such Person any securities
acquired directly from the Company or its Affiliates) representing more than 40%
of the combined voting power of the Company's then outstanding securities;
or
(iv) the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for
the sale or disposition by the Company of all or substantially all of the
Company's assets, other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least 60% of the
combined voting power of the voting securities of which are owned by
shareholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
(H) "Code"
shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(I)
"Company" shall mean
AngioDynamics, Inc. and, except in determining under Section 15(G) hereof
whether or not any Change in Control of the Company has occurred, shall include
any successor to its business and/or assets which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
(J)
“Compensable
Termination” shall have the meaning set forth in Section 6.1.
(K) "Disability"
shall be deemed the reason for the termination by the Company of the Executive's
employment, if, as a result of the Executive's incapacity due to physical or
mental illness, the Executive shall have been absent from the full-time
performance of the Executive's duties with the Company for a period of six
consecutive months or for six non-consecutive months within any period of 12
consecutive months.
(L) "Exchange
Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(M) "Executive"
shall mean the individual named in the first paragraph of this
Agreement.
(N) "Good
Reason" for termination by the Executive of the Executive's employment shall
mean the occurrence (without the Executive's express written consent) after any
Change in Control, of any one of the following acts by the Company, or failures
by the Company to act, unless, in the case of any act or failure to act
described in paragraph (i), (iii), (iv) or (vii) below, such act or failure to
act is corrected within thirty (30) calendar days after the Company’s receipt of
written notice thereof given by the Executive within thirty (30) calendar days
of such act or failure to act:
(i) the
assignment to the Executive of any duties inconsistent with the Executive's
status or position in the Company immediately prior to the Change in Control, or
a substantial adverse alteration in the nature, status or scope of the
Executive's responsibilities or authority from his responsibilities or authority
immediately prior to the Change in Control, or a reduction in his
title;
(ii) a
reduction by the Company in the Executive's annual base salary as in effect on
the date of this Agreement or as the same may be increased from time to
time;
(iii) a
significant reduction in compensation, benefits or reimbursements provided under
any employment, compensation, employee benefit or reimbursement plan or program
in which the Executive is a participant which is not replaced with substantially
equivalent compensation, benefits or reimbursements under another plan, program
or arrangement at substantially the same cost (if any) to the Executive;
(iv) the
Company fails to pay or provide any amount or benefit that the Company is
obligated to pay or provide under this Agreement or any other employment,
compensation, benefit or reimbursement plan, agreement or arrangement of the
Company to which the Executive is a party or in which the Executive
participates;
(v) the
Company fails to pay the Executive a bonus, for each fiscal year of Employer
that terminates following a Change in Control and during the Term, at least
equal to 80% of the Applicable Average Bonus;
(vi) the
relocation of the Executive's principal place of employment to a location which
increases the Executive's one-way commuting distance by more than 40 miles, or
the Company's requiring the Executive to travel on business other than to an
extent substantially consistent with the Executive's business travel obligations
prior to the Change in Control;
(vii) a
significant adverse change occurs, whether of a quantitative or qualitative
nature, in the indemnification protection provided to the Executive for acts and
omissions arising out of his service on behalf of the Company or any other
entity at the request of the Company; or
(viii) The
Company fails to obtain the assumption of this Agreement pursuant to
Section 9.1.
The
Executive's right to terminate the Executive's employment for Good Reason shall
not be affected by the Executive's incapacity due to physical or mental illness.
The Executive's continued employment shall not constitute consent to, or a
waiver of rights with respect to, any act or failure to act constituting Good
Reason hereunder.
(O) "Person"
shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any of its Affiliates, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(P) "Potential
Change in Control" shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:
(i) the
Company enters into an agreement, the consummation of which would result in the
occurrence of a Change in Control;
(ii) the
Company or any Person publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in
Control;
(iii) any
Person becomes the Beneficial Owner, directly or indirectly, of securities of
the Company representing 15% or more of either the then outstanding shares of
common stock of the Company or the combined voting power of the Company's then
outstanding securities (not including in the securities beneficially owned by
such Person any securities acquired directly from the Company or its
Affiliates); or
(iv) the
Board adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(Q) "Retirement"
shall be deemed the reason for the termination by the Executive of the
Executive's employment if such employment is terminated in accordance with the
Company's retirement policy, including early retirement, generally applicable to
its salaried employees.
(R) “Separation
from Service” means termination of employment with the Company. However, the
Executive shall not be deemed to have a Separation from Service if he continues
to provide services to the Company in a capacity other than as an employee and
if he is providing services at an annual rate that is fifty percent or more of
the services he rendered, on average, during the immediately preceding three
full calendar years of employment with the Company (or if employed by the
Company less than three years, such lesser period) and the annual remuneration
for his services is fifty percent or more of the annual remuneration earned
during the final three full calendar years of employment (of if less, such
lesser period); provided, however, that a Separation from Service will be deemed
to have occurred if his service with the Company is reduced to an annual rate
that is less than twenty percent of the services he rendered, on average, during
the immediately preceding three full calendar years of employment with the
Company (or if employed by the Company less than three years, such lesser
period) or the annual remuneration for his services is less than twenty percent
of the annual remuneration earned during the three full calendar years of
employment with the Company (or if less, such lesser period).
(S) "Separation
from Service Date" shall have the meaning set forth in Section 6.2
hereof.
(T) "Severance
Payments" shall have the meaning set forth in Section
6.1 hereof.
(U) "Subsidiary"
means a corporation or other form of business association
of which shares (or other ownership interests) having more than 50% of the
voting power are owned or controlled, directly or indirectly, by the
Company.
(V) "Term"
shall mean the period of time described in Section 2 hereof (including any
extension or continuation described therein).
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
ANGIODYNAMICS,
INC.
By:
_____________________
Name:
Title:
________________________
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