CHANGE OF CONTROL BONUS AND SEVERANCE AGREEMENT
EXHIBIT 10.1
THIS CHANGE OF CONTROL BONUS AND SEVERANCE AGREEMENT (this “Agreement”) is made and entered
into as of this 26th day of June, 2007 (the “Effective Date”) by and between Xxxx X. Xxxxxxx (the
“Executive”), and Arrow International, Inc., a Pennsylvania corporation, having its principal
offices at 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the “Company”).
WITNESSTH:
WHEREAS, the Executive has extensive experience in the business and affairs of the Company and
is a valuable member of the management team; and
WHEREAS, the Board of Directors of Arrow International, Inc. (the “Board”) has determined that
it is appropriate to reinforce the continued attention of certain key management employees,
including the Executive, to their assigned duties without distraction upon a change in control of
the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
the parties hereto agree as follows:
1. TERM OF AGREEMENT. This Agreement shall expire on the date which is three months
after the date on which a Change in Control (as defined herein) occurs (the “Term”).
2. CHANGE IN CONTROL. No benefits other than as described in Section 3 shall be
payable hereunder unless there shall have been a Change in Control (as defined below) of the
Company. For purposes of this Agreement, a “Change in Control” shall mean the occurrence of any of
the following events after the date of this Agreement:
(a) the acquisition after the Effective Date by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange
Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than 30% of the combined voting power of the voting securities of the Company entitled
to vote generally in the election of directors (the “Voting Securities”); provided, however, that
the following acquisitions shall not constitute a Change in Control: (a) any acquisition, directly
or indirectly by or from the Company or any subsidiary of the Company, or by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any subsidiary of the Company,
(b) any acquisition by any underwriter in connection with any firm commitment underwriting of
securities to be issued by the Company, or (c) any acquisition by any corporation if, immediately
following such acquisition, 70% or more of the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting securities of such
corporation (entitled to vote generally in the election of directors), are beneficially owned,
directly or indirectly, by all or substantially all of the individuals and entities who,
immediately prior to such acquisition, were the beneficial owners of the then outstanding common
stock of the Company (“Common Stock”)
and the Voting Securities in substantially the same proportions, respectively, as their
ownership, immediately prior to such acquisition, of the Common Stock and Voting Securities; or
(b) The occurrence after the Effective Date of a reorganization, merger or consolidation,
other than a reorganization, merger or consolidation with respect to which all or substantially all
of the individuals and entities who were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of the Common Stock and Voting Securities, beneficially
own, directly or indirectly, immediately after such reorganization, merger or consolidation, 70% or
more of the then outstanding common stock and voting securities (entitled to vote generally in the
election of directors) of the corporation resulting from such reorganization, merger or
consolidation in substantially the same proportions as their respective ownership, immediately
prior to such reorganization, merger or consolidation, of the Common Stock and Voting Securities;
or
(c) The occurrence after the Effective Date of (a) a complete liquidation or substantial
dissolution of the Company, or (b) the sale or other disposition of all or substantially all of the
assets of the Company, in each case other than to a subsidiary, wholly-owned, directly or
indirectly, by the Company or to a holding company of which the Company is a direct or indirect
wholly owned subsidiary prior to such transaction; or
(d) During any period of twelve (12) consecutive months commencing upon the Effective Date,
the individuals at the beginning of any such period who constitute the Board and any new director
(other than a director designated by a person or entity who has entered into an agreement with the
Company or other person or entity to effect a transaction described in Sections 2(a), 2(b) or 2(c)
above) whose election by the Board or nomination for election by the Company’s stockholders was
approved by a vote of at least a majority of the directors then still in office who either were
directors at the beginning of any such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the Board.
Notwithstanding the above, a “Change in Control” shall not include any event, circumstance or
transaction which results from the action of any entity or group which includes, is affiliated with
or is wholly or partially controlled by one or more executive officers of the Company and in which
the Executive participates
3. OPTIONS. Provided that the Executive is still employed by the Company on the date
on which a Change in Control occurs, the Executive will become fully vested in all outstanding,
unvested stock options granted to the Executive by the Company (the “Options”). In addition, if
no Change in Control occurs as of August 31, 2007, all of Executive’s unvested options will vest at
such time and Executive’s employment may continue if agreed upon by Executive and the Company;
however, either the Executive or the Company may subsequently terminate the Executive’s employment
at any time without any obligation on the part of the Company to pay any severance benefits.
4. CHANGE IN CONTROL RETENTION BONUS. Provided that the Executive is then still
employed by the Company on the date on which a Change in Control
occurs the Executive shall receive a lump sum payment equal to 0.5 times the annual base
salary the Executive received from the Company as of the Effective Date.
(a) Cause. The Company shall have the right to terminate Executive’s employment for
“Cause” upon: (i) the Executive’s conviction of or plea of guilty or nolo contendere to a felony;
(ii) the Executive’s gross negligence or willful misconduct in the performing of his duties that
xxxxx the Company; (iii) the Executive’s failure to comply with this Agreement or to carry out his
duties and responsibilities, which failure results in harm to the Company or diminution in the
value of the Company; or (iv) the Executive’s commission of fraud, theft against or embezzlement
from the Company.
(b) Good Reason. The Executive shall have the right to terminate his employment for
“Good Reason” if: (i) the Executive’s base salary is reduced; (ii) the Executive’s primary office
location is relocated to a place that increases the distance from Executive’s home (as of the
Effective Date of this Agreement) to such new location, by more than 40 miles; or (iii) the duties
of the Executive immediately prior to the Change in Control are substantially reduced after the
Change in Control; provided however, that no such reduction shall constitute Good Reason if after
any such reduction, the Executive has or is assigned duties commensurate with those of a director
of human resources.
5. CONFIDENTIAL INFORMATION AND NON-DISPARAGEMENT.
(a) Confidential Information. The Executive shall not, without the prior express
written consent of the Company, directly or indirectly divulge, disclose or make available or
accessible any Confidential Information (as defined below) to any person, firm, partnership,
corporation, trust or any other entity or third party (other than when required to do so by a
lawful order of a court of competent jurisdiction, any governmental authority or agency, or any
recognized subpoena power). In addition, the Executive shall not create any derivative work or
other product based on or resulting from any Confidential Information (except in the good faith
performance of his duties under this Agreement). The Executive shall also proffer to the Board’s
designee, no later than the date on which the Executive’s employment with the Company terminates
for any reason (the “Termination Date”), and without retaining any copies, notes or excerpts
thereof, all memoranda, computer disks or other media, computer programs, diaries, notes, records,
data, customer or client lists, marketing plans and strategies, and any other documents consisting
of or containing Confidential Information that are in the Executive’s actual or constructive
possession or which are subject to his control at such time. For purposes of this Agreement,
“Confidential Information” shall mean all information respecting the business and activities of the
Company, or any affiliate of the Company, including, without limitation, the clients, customers,
suppliers, employees, consultants, computer or other files, projects, products, computer disks or
other media, computer hardware or computer software programs, marketing plans, financial
information, methodologies, know-how, processes, practices, approaches, projections, forecasts,
formats, systems, data gathering methods and/or strategies of the Company or any affiliate.
Notwithstanding the immediately preceding sentence, Confidential Information shall not include any
information that is, or becomes, generally available to the public (unless such availability occurs
as a result of the Executive’s breach of any portion of this Section 6(a) or any information or
knowledge possessed by the Executive other than by reason of his employment by the Company).
(b) Non-disparagement. The Executive shall not, directly or indirectly, make or
publish any disparaging statements (whether written or oral) regarding the Company or any of its
affiliated companies or businesses, or the affiliates, directors, officers, agents, principal
stockholders or customers of any of them.
6. STANDSTILL RESTRICTIONS. The Executive agrees that during his employment with the
Company and for one year after the Termination Date (the “Restricted Period”), neither the
Executive nor any of the Executive’s affiliates or representatives will, in any manner, directly or
indirectly, unless requested by the Board (i) acquire or make any proposal to acquire any
securities, or rights or options to acquire securities, or property of the Company, (ii) propose to
enter into any merger or business combination involving the Company or purchase a material portion
of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or
seek to advise or influence any person with respect to the voting of any securities of the Company,
(iv) form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) with respect to any voting securities of the Company, (v)
otherwise act or seek to control or influence the management, Board or policies of the Company,
(vi) disclose any intention, plan or arrangement inconsistent with the foregoing, (vii) take any
action which might require the Company to make a public announcement regarding the possibility of a
business combination or merger or (viii) advise, assist or encourage or direct any person to
advise, assist or encourage any other persons in connection with the foregoing. The Executive
also agrees during the Restricted Period not to request the Company (or its directors, officers,
employees, agents or representatives) to amend or waive any provision of this Section 7 unless
specifically invited to do so by the Board.
7. NON-COMPETE AND NON-SOLICITATION.
(a) Non-Competition. The Executive shall not, during the Restricted Period, directly
or indirectly, within or with respect to any country where the Company does business as of the
Termination Date, (1) engage, without the prior express written consent of the Company, in any
business or activity, whether as an employee, consultant, partner, principal, agent,
representative, director, stockholder or in any other individual, corporate or representative
capacity, or render any services or provide any advice to any business, activity, service, person
or entity, if such business, activity, service, person or entity, directly or indirectly, competes
in any material manner with (A) the Company, (B) any subsidiary or affiliate of the Company, or (C)
any product, service or other business of any such entities which is in production, distribution or
development as of the Termination Date, including without limitation, rendering advice or other
services to or in respect of the development, manufacture or marketing of catheters and/or other
medical products used in critical and/or cardiac care and/or (2) meaningfully assist, help or
otherwise support, without the prior express written consent of the Company, any person, business,
corporation, partnership or other entity or activity, whether as an employee, consultant, partner,
principal, agent, representative, director, stockholder or in any other individual, corporate or
representative capacity, to create, commence or otherwise initiate, or to develop, enhance or
otherwise further, any business or activity if such business or activity, directly or indirectly,
competes (or is reasonably likely to compete) in any manner with any significant business or
activity of the Company or any subsidiary or affiliate of the Company, including without
limitation, rendering advice or other services to or in respect of the development, manufacture or
marketing of catheters and/or other medical products used in
critical and/or cardiac care. Notwithstanding the foregoing, the Executive shall not be
prohibited during the Restricted Period (a) from being a passive investor where the Executive owns
not more than five percent (5%) of the outstanding capital stock of any publicly-held company (b)
from being employed or engaged by a competitor of the Company, provided that the Executive is
employed solely in the human resources department of such competitor.
(b) Non-Solicitation. The Executive shall not, directly or indirectly, during the
Restricted Period or, if later, during the period in which the Executive is receiving any severance
benefits under Section 5 above, including without limitation any medical benefits provided under
Section 5(b), (1) take any action to solicit or divert any business (or potential business) or
clients or customers away from the Company or any subsidiary or affiliate of the Company, (2)
induce customers, clients, business partners, suppliers, agents or other persons under contract or
otherwise associated or doing business with the Company or any subsidiary or affiliate of the
Company to terminate, reduce or alter any such association or business with or from the Company or
any subsidiary or affiliate, and/or (3) induce any person in the employment of the Company or any
subsidiary or affiliate of the Company or any consultant to the Company or any subsidiary or
affiliate of the Company to (A) terminate such employment, or consulting arrangement, (B) accept
employment, or enter into any consulting arrangement, with anyone other than the Company or any
subsidiary or affiliate, and/or (C) interfere with the customers, suppliers, or clients of the
Company, any subsidiary or affiliate of the Company in any manner or the business of the Company,
any subsidiary, or any affiliate in any manner. For purposes of this Section 8(b), “potential
business” shall mean any current or reasonably foreseeable commercial activity or any current or
reasonably foreseeable commercial opportunities associated in any way with the Company’s
activities.
8. SCOPE OF AGREEMENT ENFORCEABILITY. This Agreement constitutes the entire
understanding and agreement between the Company and the Executive with regard to all matters herein
and supersedes all prior oral and written agreements and understandings of the parties with respect
to such matters, whether express or implied. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s heirs, beneficiaries and/or legal representatives. This Agreement
shall inure to the benefit of and be enforceable by the Company and its respective successors and
assigns. If any term or provision of this Agreement, or the application thereof to any person or
circumstances, will to any extent be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, will not be affected thereby, and each term and provision of this
Agreement will be valid and enforceable to the fullest extent permitted by law.
9. MATERIAL INDUCEMENTS. The provisions of Sections 6, 7 and 8 of this Agreement are
material inducements to the Company entering into and performing this Agreement. In the event of
any breach or threatened breach of the provisions of Sections 6, 7 and/or 8 of this Agreement by
the Executive, in addition to all other remedies at law or in equity possessed by the Company, the
Company shall have the right to (i) terminate and not pay any amounts payable to the Executive
hereunder (ii) cease the provision of any benefits otherwise due to the Executive hereunder and/or
(iii) require that the Executive repay any payments received by the Executive from any Options
accelerated through the application of Section 3 above. The Executive acknowledges and agrees that
the Company will have no adequate remedy
at law, and would be irreparably harmed, if the Executive breaches or threatens to breach any
of the provisions of Sections 6, 7 and/or 8 of this Agreement. The Executive further agrees that
the Company shall be entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of Sections 6, 7 and/or 8 of this Agreement, and to specific performance of each
of the terms of such Sections in addition to any other legal or equitable remedies that the Company
may have, without any requirement to post bond or other security. The Executive also agrees that
he shall not, in any equity proceeding relating to the enforcement of the terms of this Agreement,
raise the defense that the Company has an adequate remedy at law.
10. ASSISTANCE. The Executive agrees to personally provide reasonable assistance and
cooperation to the Company in activities related to the prosecution or defense of any pending or
future lawsuits or claims involving the Company.
11. AMENDMENTS/WAIVER. This Agreement may not be amended, waived, or modified
otherwise than by a written agreement executed by the parties to this Agreement or their respective
successors and legal representatives. No waiver by any party to this Agreement of any breach of
any term, provision or condition of this Agreement by the other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time, or any prior or subsequent time.
12. NOTICES. All notices and other communications hereunder shall be in writing and
shall be deemed given when received by hand-delivery to the other party, by facsimile transmission,
by overnight courier, or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive, at his residence address most recently filed with the Company;
and
| If to the Company: | Arrow International, Inc. | |||
| 0000 Xxxxxxxxx Xxxx | ||||
| Xxxxxxx, Xxxxxxxxxxxx 00000 | ||||
| Att: Corporate Secretary | ||||
| with a copy to: | Xxxxxxx X. Xxxxxxxxxx, Esq. Xxxxxxx LLP |
|||
| 00 Xxxxxxxxxxx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 |
or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notices and communications shall be effective when actually received by the addressee.
13. SUCCESSORS; BINDING AGREEMENT. The Company shall require any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of
the business, equity and/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. Failure of the Company to obtain such agreement prior to the effective date of any such
succession 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 that which the Executive would be entitled
to hereunder as if the Executive’s employment by the Company were terminated without Cause or for
Good Reason after a Change in Control. If the Executive should die while any amount would still be
payable hereunder, all such amounts shall be paid in accordance with the terms of this Agreement to
the Executive’s estate.
14. SURVIVAL. The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement for any reason to the extent necessary to the intended
provision of such rights and the intended performance of such obligations.
15. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with
the laws of the Commonwealth of Pennsylvania without reference to its choice of law provisions and
shall be binding upon the parties and their respective heirs, executors, successors and assigns.
Each party agrees that the state and federal courts of Pennsylvania shall have sole and exclusive
jurisdiction over the parties hereto and the subject matter herein. Neither party to this
Agreement shall contest such jurisdiction or assert that Pennsylvania is a forum non convenience in
respect of any dispute. No dispute shall be submitted for arbitration without the express written
consent of each party hereto.
16. COUNTERPARTS. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument.
17. WITHHOLDING. All payments hereunder shall be subject to any required withholding
of federal, state and local taxes pursuant to any applicable law or regulation.
18. SECTION HEADINGS. The section headings in this Agreement are for convenience of
reference only, and they form no part of this Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the Company and the Executive have caused this Agreement to be executed as
of the date first above written.
| ARROW INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | President and CEO | |||
| XXXX X. XXXXXXX |
||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxxx | ||||
EXHIBIT A
Form of General Release
IN CONSIDERATION OF good and valuable consideration, the receipt of which is hereby
acknowledged, and in consideration of the terms and conditions contained in the Change Of Control
Bonus and Severance Agreement, dated as of June ___, 2007, (the “Retention Agreement”) by and
between Xxxx X. Xxxxxxx (the “Executive”) and Arrow International, Inc. (the “Company”), the
Executive on behalf of himself and his heirs, executors, administrators, and assigns, releases and
discharges the Company and its past present and future subsidiaries, divisions, affiliates and
parents, and their respective current and former officers, directors, employees, agents, and/or
owners, and their respective successors, and assigns and any other person or entity claimed to be
jointly or severally liable with the Company or any of the aforementioned persons or entities (the
“Released Parties”) from any and all manner of actions and causes of action, suits, debts, dues,
accounts, bonds, covenants, contracts, agreements, judgments, charges, claims, and demands
whatsoever (“Losses”) which the Executive and his heirs, executors, administrators, and assigns
have, had, or may hereafter have, against the Released Parties or any of them arising out of or by
reason of any cause, matter, or thing whatsoever from the beginning of the world to the date
hereof, including without limitation, any and all matters relating to the Executive’s employment by
the Company and the cessation thereof, and any and all matters arising under any federal, state, or
local statute, rule, or regulation, or principle of contract law or common law, including but not
limited to, the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. §§ 2601
et seq., Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000 et seq., the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. §§ 621 et seq. (the “ADEA”), the Americans
with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et
seq., the Worker Adjustment and Retraining Notification Act of 1988, as
amended, 29 U.S.C. §§2101 et seq., the Employee Retirement Income Security
Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq., the
Pennsylvania Human Relations Act, as amended, 43 P.S. §§ 955 et.
seq., and any other equivalent or similar federal, state, or local statute; provided,
however, that the Executive does not release or discharge the Released Parties from any of the
Company’s obligations to him under the Retention Agreement, any vested benefit the Executive may be
due under a tax qualified plan sponsored or maintained by the Company or Losses arising under the
ADEA which arise after the date on which the Executive executes this general release. It is
understood that nothing in this general release is to be construed as an admission on behalf of the
Released Parties of any wrongdoing with respect to the Executive, any such wrongdoing being
expressly denied.
The Executive represents and warrants that he fully understands the terms of this general
release, that he has been encouraged to seek, and has sought, the benefit of advice of legal
counsel, and that he knowingly and voluntarily, of his own free will, without any duress, being
fully informed, and after due deliberation, accepts its terms and signs below as his own free act.
Except as otherwise provided herein, the Executive understands that as a result of executing this
general release, he will not have the right to assert that the Company or any other of the Released
Parties unlawfully terminated his employment or violated any of his rights in connection with his
employment or otherwise.
The Executive further represents and warrants that he has not filed, and will not initiate, or
cause to be initiated on his behalf any complaint, charge, claim, or proceeding against any of the
Released Parties before any federal, state, or local agency, court, or other body relating to any
claims barred or released in this General Release, and will not voluntarily participate in such a
proceeding. However, nothing in this general release shall preclude or prevent the Executive from
filing a claim, which challenges the validity of this general release solely with respect to the
Executive’s waiver of any Losses arising under the ADEA. The Executive shall not accept any relief
obtained on his behalf by any government agency, private party, class, or otherwise with respect to
any claims covered by this General Release.
The Executive may take twenty-one (21) days to consider whether to execute this General
Release. Upon the Executive’s execution of this general release, the Executive will have seven (7)
days after such execution in which he may revoke such execution. In the event of revocation, the
Executive must present written notice of such revocation to the office of the Company’s Corporate
Secretary. If seven (7) days pass without receipt of such notice of revocation, this General
Release shall become binding and effective on the eighth (8th) day after the execution hereof (the
“Effective Date’).
INTENDING TO BE LEGALLY BOUND, I hereby set my hand below:
| Dated: | ||||||
