Delaware
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000-50761
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11-3146460
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(State or Other Jurisdiction
of Incorporation)
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(Commission File
Number)
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(IRS Employer
Identification No.)
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14 Plaza Drive Latham, New York
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12110 | ||
(Address of Principal Executive Offices)
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(Zip Code) |
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2 (b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4 (c)) |
Item 1.01. |
Entry into a Material Definitive Agreement.
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Item 3.02. |
Unregistered Sale of Equity Securities.
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Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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Exhibit No. | Description | |
10.1
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Employment Agreement, dated April 1, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.2
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Change in Control Agreement, dated April 1, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.3
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Performance Share Award Agreement, with a grant date of April 4, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.4
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AngioDynamics, Inc. Total Shareholder Return Performance Share Award Program – Performance Period Ending July 2019.
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10.5
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Stock Option Award Agreement, with a grant date of April 4, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.6
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Restricted Stock Unit Award Agreement, with a grant date of April 4, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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99.1
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Press release dated April 4, 2016.
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ANGIODYNAMICS, INC.
(Registrant) |
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Date: April 5, 2016
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By:
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/s/ Stephen A. Trowbridge | |
Stephen A. Trowbridge | |||
Senior Vice President and General Counsel |
Exhibit No. | Description | |
10.1
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Employment Agreement, dated April 1, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.2
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Change in Control Agreement, dated April 1, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.3
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Performance Share Award Agreement, with a grant date of April 4, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.4
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AngioDynamics, Inc. Total Shareholder Return Performance Share Award Program – Performance Period Ending July 2019.
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10.5
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Stock Option Award Agreement, with a grant date of April 4, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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10.6
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Restricted Stock Unit Award Agreement, with a grant date of April 4, 2016, between AngioDynamics, Inc. and James C. Clemmer.
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99.1
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Press release dated April 4, 2016.
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1.
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Term and Duties.
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3.
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Compensation
.
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3.3
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Long Term Incentives
.
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(a) Initial Performance Share Award. Executive shall receive an initial performance share award (“Initial Performance Share Award”) of 250,000 Performance Shares, subject to the terms and conditions (including forfeiture provisions) of a performance share award agreement to be executed on Executive’s first day of employment in a form substantially similar to the form in
Exhibit A
. The Initial Performance Share Award shall be an
“inducement” award under the NASDAQ Marketplace Rules.
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(b) Non-Qualified Options. Executive will receive a non-qualified stock option grant to purchase 200,000 shares of Company stock (the “Initial Option Grant”). All such options will be subject to Executive commencing and continuing employment and will vest 25% per year on the first four (4) anniversaries of the grant date. The strike price of the options will be the fair market value of the Company’s stock as of the close of the market on the date of grant. The Initial Option Grant will be subject to the terms and conditions of a separate grant agreement to be executed on Executive’s first day of employment in a form substantially similar to the form in
Exhibit A
.
The Initial Option Grant shall be an “inducement” award under the NASDAQ Marketplace Rules.
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(c) Restricted Stock Units. Executive will also receive 50,000 Restricted Stock Units (the “Initial RSU Grant”) subject to the terms and conditions (including forfeiture provisions) of a separate grant agreement to be executed on Executive’s first day of employment in a form substantially similar to the form in
Exhibit A
, which will vest 25% per year on the first four (4) anniversaries of the grant date.
The Initial RSU Grant shall be an “inducement” award under the NASDAQ Marketplace Rules.
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(d) Fiscal Year 2017 Equity Grant. Executive will be eligible to receive an equity award in accordance with the Company’s customary procedures pursuant to the annual equity award program.
The exact amount and allocation of the award shall be made in the sole discretion of the Compensation Committee of the Board. The Board and the Compensation Committee reserve the right to reduce this award, particularly with respect to Performance Shares, due to the grant set forth in 3.3(a) above, and Executive acknowledges that such a reduction is likely to occur. Specific metrics that determine the actual number of shares granted annually will be subject to the limits contained in the Plan, as amended.
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(e) Annual Equity Awards. In addition to the equity awards noted above, Executive will be eligible, after the Company’s fiscal year ending May 31, 2017, for participation in the Company’s annual equity award program, consistent with the Company’s programs and policies governing these awards. It is the current policy of the Board that the CEO will receive, for his
annual equity grant, an award valued at two hundred and twenty five percent (225%) of Base Salary, and that such award will be comprised of twenty five percent (25%) stock options, twenty five percent (25%) restricted stock units, and fifty percent (50%) performance share awards. The Board may modify this policy, in its sole discretion, at any time.
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4.
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Benefits
.
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(a) Medical, Dental, Prescription, & Vision insurance
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(b) Standard and Voluntary Life Insurance
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(c) Statutory Short Term & Voluntary Short Term Disability Insurance
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(d) Long Term Disability Insurance
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(e) Executive will be eligible to participate in the Company’s employee-contribution 401(k) Retirement Plan beginning on the first Monday of the month following the Effective Date
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(f) Tuition Assistance Program
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(g) Paid Time Off: Executive will be eligible to accrue up to 20
days of paid vacation per calendar year, pro-rated for the remainder of this calendar year. Vacation accrues per the Company’s vacation policy.
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(h) Health & Dependent Care Reimbursement Accounts
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(i) Employee Stock Purchase Program: Executive will be eligible to participate in the Company’s Employee Stock Purchase Plan beginning on September 1, 2016, as long as he has met the 30-day service requirement.
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(j) Executive Automobile Allowance: Executive will be eligible to participate in the Company’s executive car program, which includes an allowance of up to $1,500.00 per month (less applicable taxes).
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(k) Executive’s participation in these and any other Company benefit plans are subject to the terms and conditions of such plans, as they may be amended from time to time.
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5.
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Termination
.
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(a) The Company
shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as such term is defined in Section 5.5).
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(b) If, during the Term, the Executive’s employment with the Company terminates as a result of an Involuntary Termination (as such term is defined in Section 5.5), the Company shall pay the Executive (in addition to the Accrued Obligations), subject to tax withholding and other authorized deductions, a severance benefit in certain amounts (“
Severance Benefit
”) over certain periods of time (“
Severance Period
”) depending upon the timing of the Involuntary Termination, as follows:
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(i) the Company shall pay the Executive (in addition to the Accrued Obligations), subject to tax withholding and other authorized deductions, Base Salary for a twelve (12) month Severance Period. Subject to Section 5.7, the Company shall pay the Severance Benefit to the Executive in substantially equal installments in accordance with the Company’s standard payroll practices over a period of twelve (12) months, with the first installment payable in the month following the month in which the Executive’s employment with the Company terminates, except as otherwise provided in Section 5.7. Except as provided in this Section 5,
all unvested equity awards shall terminate in accordance with their terms
;
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(ii) Except to the extent deemed discriminatory pursuant to the Affordable Care Act, state law or other federal law, the Company shall also pay the continuing COBRA/insurance premium for the shorter of (x) twelve 12 months, or (y) such time as the Executive secures new full-time employment; and
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(iii) Notwithstanding anything to the contrary in the governing award agreement, the Board shall take such necessary steps to provide that any performance shares, stock options and restricted stock units will continue to vest according to their terms during the twelve (12) month period following the Severance Date. For the avoidance of doubt, unvested options shall continue to vest as if Executive were still employed during this twelve (12) month period, and vested options shall remain exercisable until the end of this twelve (12) month period.
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(iv) The Company shall pay the Executive a prorated annual bonus for the fiscal year of the Company in which the Severance Date occurs, such prorated bonus to be determined by multiplying the “Applicable Average Bonus” as defined below in this subsection (iv) by a fraction the
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numerator of which shall be the number of days elapsed in such fiscal year through (and including) the Severance Date and the denominator of which shall be the number 365. For purposes of this Agreement, the “Applicable Average Bonus” means the average of all annual bonuses (including any deferred bonuses) awarded to the Executive during the 36 months immediately preceding the Severance Date or, if the Executive was employed by the Company for less than 36 months before the Severance Date, during the period of his employment by the Company prior to the Severance Date (annualizing any bonus awarded for less than a full year of employment).
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(c) Notwithstanding the foregoing provisions of this Section 5.3, if the Executive materially breaches his obligations under Section 6 or any material obligation under any other agreement signed by the Executive and the Company or any of its Affiliates that imposes restrictions with respect to the Executive’s activities at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit; provided, however, that the Company shall have provided the Executive with written notice in accordance with
Section
17
specifying with particularity the conduct that the Company contends constitutes such a breach and shall have provided the Executive with a reasonable period (not less than 30 days) in which to respond and/or to cure such alleged breach; and provided further that, if the Executive provides the release contemplated by Section 5.4, in no event shall the Executive be entitled to a Severance Benefit payment of less than $5,000, which amount the parties agree is good and adequate consideration, standing alone, for the Executive’s release contemplated by Section 5.4.
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(d) The foregoing provisions of this Section 5.3 shall not affect: (i) the Executive’s receipt of any benefits otherwise due terminated employees under group insurance coverage consistent with the terms of an applicable Company welfare benefit plan; (ii) the Executive’s rights to continued health coverage under COBRA; and (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Company’s 401(k) plan (if any).
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5.4
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Release; Exclusive Remedy
.
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(a) This Section 5.4 shall apply notwithstanding anything else contained in this Agreement or any stock option or other equity-based award agreement to the contrary. As a condition precedent to payment of the Severance Benefit, the Executive shall, upon or promptly following his last day of employment with the Company, provide the Company with a valid, executed general release agreement in a form reasonably acceptable to the Company and substantially in the form attached as Exhibit D, but in no event shall any modifications to the form of release materially impair the rights of the Executive pursuant to the release agreement, and such release agreement shall have not been revoked by the Executive pursuant to any revocation rights afforded by applicable law.
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(b) The Executive agrees that the payments and benefits contemplated by Section 5.3 shall constitute the exclusive and sole remedy for any termination of his employment and the Executive covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment.
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(c) The Executive agrees to resign, on the Severance Date, as an officer
and director of the Company and any Affiliate of the Company, and as a fiduciary of any benefit plan of the Company and any Affiliate of the Company, and to promptly execute and provide to the Company any further documentation, as requested by the Company, to confirm such resignation. The Severance Benefit will not be paid unless and until the Company has received adequate documentation, in its sole discretion, of all such resignations from Executive.
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5.5
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Certain Defined Terms
.
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(a) As used herein, “Accrued Obligations” means:
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(i) any Base Salary and Paid Time Off that had accrued but had not been paid on or before the Severance Date; and
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(ii) any payments or grants that had accrued but had not been paid on or before the Severance Date under Section 4.1 and 4.3 (subject to any required return of funds under Section 5.2); and
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(iii) any reimbursement due to the Executive pursuant to Section 4.2 for expenses reasonably incurred by the Executive on or before the Severance Date and documented and pre-approved, to the extent applicable, in accordance with the Company’s expense reimbursement policies in effect at the applicable time.
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(b) As used herein, “Affiliate” of the Company means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company. As used in this definition, the term “control,” including the correlative terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of
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the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person.
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(c) As used herein, “Cause” shall mean: (i) the willful and persistent failure by the Executive to substantially perform the Executive’s duties with the Company (other than any failure resulting from the Executive’s Disability); (ii) the engaging by the Executive in willful and persistent conduct that is injurious to the Company or its subsidiaries, monetarily or otherwise; (iii) the Executive’s refusal to follow a reasonable and lawful instruction from the Board after written notice and opportunity to comply; or (iv) the Executive’s conviction of (a) a felony or (b) a misdemeanor involving fraud, dishonesty, or moral turpitude; provided however that, with respect to items (i), (ii), and (iii) above, the Company must provide the Executive with written notice in accordance with Section 17 specifying with particularity the conduct that it contends constitutes Cause, plus the provision of the Cause definition that applies, and must provide the Executive a reasonable period (not less than 30 days) in which to respond and/or cure such alleged grounds to the Board’s satisfaction; and provided further that the Executive shall thereafter be granted the opportunity within a reasonable period (not more than 30 days) to appear before the Board, with counsel, to address any such claimed grounds, during which period the Company may not implement such termination.
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(d) As used herein, “Disability” shall mean a physical or mental impairment as a result of which, as reasonably determined by the Board, the Executive has been unable to perform the essential functions of his employment with the Company, even with reasonable accommodation that does not impose an undue hardship on the Company, for more than 90 days in any 180-day period, unless a longer period is required by federal or state law, in which case such longer period shall apply.
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(e) As used herein, “Good Reason” shall mean (i) a material diminution of the Executive’s duties, responsibilities, authority, title, position, compensation,
or bonus opportunity
as set forth in this Agreement; (ii) a material breach by the Company of any material provision of this Agreement; or (iii) relocation of the Executive’s place of employment, against the Executive’s wishes, more than fifty (50) miles from the location specified in Section 17; provided however that, with respect to items (i) and (ii) above, the Executive must provide the Company with written notice within ninety (90) days of the initial existence of the alleged Good Reason event or condition in accordance with Section 17 specifying with particularity the conduct that he contends constitutes Good Reason, and must provide the Company a reasonable period (not less than 30 days) in which to respond and/or cure such alleged grounds.
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(f) As used herein, “Involuntary Termination” shall mean a termination of the Executive’s employment (i) by the Company without Cause (and other than due to Executive’s death or in connection with a good faith determination by the
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Board that the Executive has a Disability), and other than in connection with a “Change in Control,” as it is defined in the change in control agreement entered into between the Company and the Executive pursuant to Section 4.4 or (ii) by the Executive for Good Reason.
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(g) As used herein, the term “Person” shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, and a governmental entity, or any department, agency or political subdivision thereof.
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(h) As used herein, a “Separation from Service” occurs when the Executive dies, retires, or otherwise has a termination of employment with the Company that constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1).
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6.
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Protective Covenants
.
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6.1
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Confidential Information; Inventions
.
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(a) Executive’s commencement of employment with the Company is contingent upon the execution (and delivery to an officer of the Company) of the Company’s Confidentiality, Non-Solicitation and Invention Disclosure Agreement for U.S Employees and the Non-Competition Agreement by Executive in the forms attached as
Exhibit E
(collectively, the “Form Agreements”), on or prior to the Effective Date.
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(b) As used in this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade names, logos, and all similar or related information (whether
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patentable or unpatentable, copyrightable, registerable as a trademark, reduced to writing, or otherwise) that relates to the Company’s or any of its Affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Executive (whether or not during usual business hours, whether or not by the use of the facilities of the Company or any of its Affiliates, and whether or not alone or in conjunction with any other person) while employed by the Company (including those conceived, developed or made prior to the Effective Date) together with all patent applications, letters patent, trademark, trade name and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing. All Work Product that the Executive may have discovered, invented, or originated during his employment by the Company or any of its Affiliates prior to the Effective Date, that he may discover, invent or originate during the Term or at any time in the period of twelve (12) months after the Severance Date, shall be the exclusive property of the Company and its Affiliates, as applicable, and Executive hereby assigns all of Executive’s right, title and interest in and to such Work Product to the Company or its applicable Affiliate, including all intellectual property rights therein. Executive shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or other documents the Company may deem necessary to protect or perfect its (or any of its Affiliates’, as applicable) rights therein, and shall assist the Company, at the Company’s expense, in obtaining, defending and enforcing the Company’s (or any of its Affiliates’, as applicable) rights therein. The Executive hereby appoints the Company as his attorney-in-fact to execute on his behalf any assignments or other documents deemed necessary by the Company to protect the Company, or to protect or perfect the Company’s (and any of its Affiliates’, as applicable) rights to any Work Product. In addition, Executive agrees that he shall also be bound by the restrictions and requirements in the Form Agreements.
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COMPANY | |||
AngioDynamics, Inc. | |||
By:
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/s/ Howard W. Donnelly | ||
Name: Howard W. Donnelly | |||
Title: Chairman of the Board of Directors | |||
EXECUTIVE | |||
/s/ James C. Clemmer | |||
James C. Clemmer |
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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
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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.
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A.
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“Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act.
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B.
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“Applicable Average Bonus” shall have the meaning set forth in subsection (ii) of Section 6.1.
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C.
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“Base Salary” shall have the meaning set forth in subsection (iii) of Section 6.1.
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D.
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“Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.
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E.
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“Board” shall mean the Board of Directors of the Company.
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F.
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“Cause” for termination by the Company of the Executive's employment shall mean: (i) the willful and persistent 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, Disability [as such term is defined in the governing employment agreement] 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 and persistent 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
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thirty (30) days following receipt by the Executive of a written demand from the Board to cease such conduct; (iii) the Executive’s refusal to follow a reasonable and lawful instruction from the Board after written notice and opportunity to comply ; 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 a writing that specifically identifies the provision of the Cause definition that applies, and must provide the Executive a reasonable period (not less than 30 days) in which to respond and/or cure such alleged grounds to the Board’s satisfaction; and provided further that the Executive shall thereafter be granted the opportunity within a reasonable period (not more than 30 days) to appear before the Board, with counsel, to address any such claimed grounds, during which period the Company may not implement 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. To the extent that this definition of “Cause ” is more beneficial to Executive than any definition of “Cause” in any granting document relating to his stock options, restricted stock units or performance shares, the Board shall take any such necessary steps to ensure that this definition, and not any more restrictive definition contained in any granting document, shall apply.
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G.
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A “Change in Control” shall mean that any of the following events has occurred:
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(a)
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They have read this Agreement;
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(b) | They have had the opportunity of being represented in the preparation, negotiation, and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel; | |
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(c)
|
They understand the terms and consequences of this Agreement and of the releases it contains;
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(d)
|
They are fully aware of the legal and binding effect of this Agreement.
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AngioDynamics, Inc.
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Participant |
By:
/s/ Howard W. Donnelly
|
By:
/s/ James C. Clemmer
|
|
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Name:
Howard W. Donnelly
|
Name:
James C. Clemmer
|
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Title:
Chairman of the Board
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I.
|
Company Performance Levels
|
TSR Performance
Percentile Rank
|
Performance Share as a Percent of Target
|
75th Percentile or above
|
200%
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50th Percentile
|
100%
|
25th Percentile
|
50%
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Below 25th Percentile
|
0%
|
II.
|
The Peer Group (as defined in the Program) with respect to this Agreement is set forth below.
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Abaxis Inc.
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Lakeland Industries Inc.
|
Abiomed Inc.
|
Lemaitre Vascular, Inc.
|
Accuray Inc.
|
Masimo Corporation
|
AlphaTec Holdings Inc.
|
Merit Medical Systems, Inc.
|
Articure, Inc.
|
Mine Safety Appliances Company
|
Atrion Corporation
|
Natus Medical Incorporated
|
C.R. Bard, Inc.
|
NuVasive, Inc.
|
Becton, Dickinson & Company
|
NxStage Medical, Inc.
|
Boston Scientific Corporation
|
Resmed Inc.
|
Cantel Medical Corp.
|
RTI Surgical, Inc.
|
Conmed Corporation
|
Span-America Medical Systems, Inc.
|
CryoLife, Inc.
|
Spectranetics Corporation
|
Cutera, Inc.
|
St. Jude Medical, Inc.
|
Cynosure, Inc.
|
Steris Corporation
|
Dexcom, Inc.
|
Stryker Corporation
|
Digirad Corp
|
Teleflex Incorporated
|
Edwards Lifesciences Corporation
|
Varian Medical Systems, Inc.
|
Endologix, Inc.
|
Vascular Solutions, Inc.
|
Exactech, Inc.
|
|
Haemonetics Corporation
|
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ICU Medical, Inc.
|
|
Insulet Corporation
|
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Integra Lifesciences Holdings Corporation
|
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Intricon Corporation
|
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Intuitive Surgical, Inc.
|
|
Invacare Corporation
|
TSR Performance
Percentile Rank
|
Performance Shares
as a Percent of Target
|
75th Percentile or above
|
200%
|
50th Percentile
|
100%
|
25th Percentile
|
50%
|
Below 25th Percentile
|
0%
|
Abaxis Inc.
|
Lakeland Industries Inc.
|
Abiomed Inc.
|
Lemaitre Vascular, Inc.
|
Accuray Inc.
|
Masimo Corporation
|
AlphaTec Holdings Inc.
|
Merit Medical Systems, Inc.
|
Articure, Inc.
|
Mine Safety Appliances Company
|
Atrion Corporation
|
Natus Medical Incorporated
|
C.R. Bard, Inc.
|
NuVasive, Inc.
|
Becton, Dickinson & Company
|
NxStage Medical, Inc.
|
Boston Scientific Corporation
|
Resmed Inc.
|
Cantel Medical Corp.
|
RTI Surgical, Inc.
|
Conmed Corporation
|
Span-America Medical Systems, Inc.
|
CryoLife, Inc.
|
Spectranetics Corporation
|
Cutera, Inc.
|
St. Jude Medical, Inc.
|
Cynosure, Inc.
|
Steris Corporation
|
Dexcom, Inc.
|
Stryker Corporation
|
Digirad Corp
|
Teleflex Incorporated
|
Edwards Lifesciences Corporation
|
Varian Medical Systems, Inc.
|
Endologix, Inc.
|
Vascular Solutions, Inc.
|
Exactech, Inc.
|
|
Haemonetics Corporation
|
|
ICU Medical, Inc.
|
|
Insulet Corporation
|
|
Integra Lifesciences Holdings Corporation
|
|
Intricon Corporation
|
|
Intuitive Surgical, Inc.
|
|
Invacare Corporation
|
|
1. | The Company hereby grants to Optionee a Non‑Statutory Stock Option to purchase 200,000 shares (the “Shares”) of Common Stock pursuant to this Agreement. |
2. | The option price per Share shall be $ __________. |
3. | The Option shall expire on April 4, 2023 unless earlier terminated. |
4. | In the event Optionee becomes employed by, associated in any way with, or the beneficial owner of more than 1% of the equity of any business which competes, directly or indirectly, with the Company's business in any geographical area where the Company then does business, the Option shall immediately expire and Optionee shall have no rights hereunder. |
5. |
Except as provided hereinafter, the Option shall become exercisable as to the Shares covered hereby, at a cumulative rate of
25%
on each of the first
four
anniversaries of
April 4, 2016
, provided that the Optionee has remained in the continuous employ of the Company from the date of this Agreement. Upon approval by the Compensation Committee of the Board of Directors of the Company, for purposes of this Agreement, service as a consultant or director of the Company shall be deemed to be employment by the Company.
Notwithstanding the foregoing, the Option shall be exercisable as to all Shares covered hereby upon a Change of Control” (if the Option has not expired under Section 3 or 4).
The Option may be exercised prior to the expiration date (or earlier termination or cancellation date under Section 3 or 4) at any time, and may be exercised in whole or in part as to the Shares then available for purchase. This Option may be exercised only to acquire whole shares. No fractional shares shall be issued, and an exercise that would otherwise result in the issuance of fractional shares shall be disregarded to the extent of the fraction.
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6. | The Option shall not be transferable otherwise than by will or by the laws of descent and distribution and during the lifetime of Optionee shall be exercisable only by Optionee. |
7. |
In the event Optionee ceases to be employed by the Company for any reason other than death or disability, the Option may be exercised (if it has not expired under Sections 3 or 4 and is exercisable under Section 5), to the extent the Optionee is entitled to do so on the date of termination, only during the period ending three months from the date of such cessation.
Notwithstanding the foregoing, in the event the Optionee’s employment is terminated by the Company for cause, the Option shall terminate at the time of such termination.
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8. | In the event Optionee ceases to be employed by the Company by reason of death or disability, the Option may be fully exercised as to all Shares covered hereby (if it has not expired under Sections 3 or 4 but regardless of whether it is exercisable under Section 5) only during the period ending one year from the date of such cessation. |
9. | Nothing herein shall confer upon any employee of the Company any right to continue in the employment of the Company. |
10. | [intentionally omitted] |
11. | This Agreement shall bind and inure to the benefit of the Company, Optionee and their respective successors, permitted assigns and personal representatives. |
12. | This Agreement will be governed by and construed under the laws of Delaware. |
13. | Any disputes, claims or interpretive issues arising hereunder shall be resolved by the Committee in its sole and absolute discretion, and the Committee's determinations shall be final and incontestable. |
ANGIODYNAMICS, INC. | |||
By:
|
/s/ Stephen A. Trowbridge | ||
Stephen A. Trowbridge | |||
Senior Vice President and General Counsel | |||
By: | /s/ James C. Clemmer | ||
James C. Clemmer |
1. | GRANT OF RESTRICTED STOCK UNIT AWARD. The Company hereby grants to the Employee an award of 50,000 restricted stock units on the terms and subject to the conditions set forth in this Agreement (each a “ Restricted Stock Unit ” and, collectively, the " Award "). The Award entitles the Employee to receive, without payment to the Company and at the applicable time provided by Section 4 (if any), a number of shares of Common Stock equal to the number of the Restricted Stock Units (if any) that become non-forfeitable pursuant to Section 2, subject, however, to Section 3 and the other provisions of this Agreement. Any provision of this Agreement to the contrary notwithstanding, in no event may the Employee receive pursuant to this Agreement a number of shares of Common Stock that exceeds the number of Restricted Stock Units stated above in this Section 1, unless the excess is attributable solely to an adjustment pursuant to Section 5 of this Agreement. |
2. | VESTING OF RESTRICTED STOCK UNITS. |
(a) | Vesting Dates . Subject to Sections 2(b), (c), and (d) and Section 3, if the Employee continues to be employed by the Company or a Subsidiary, then the Restricted Stock Units granted pursuant to this Agreement shall become non-forfeitable as follows: |
(i) | If the Employee continues to be employed by the Company or a Subsidiary through, April 4, 2017, then 25 percent of the Restricted Stock Units granted pursuant to this Agreement shall become non-forfeitable. |
(ii) | If the Employee continues to be employed by the Company or a Subsidiary through the second anniversary of April 4, 2016, then an additional 25 |
percent of the Restricted Stock Units granted pursuant to this Agreement shall become non-forfeitable. |
(iii) | If the Employee continues to be employed by the Company or a Subsidiary through the third anniversary of April 4, 2016, then an additional 25 percent of the Restricted Stock Units granted pursuant to this Agreement shall become non-forfeitable. |
(iv) | If the Employee continues to be employed by the Company or a Subsidiary through the fourth anniversary of April 4, 2016, (the “ Full Vesting Date ”), then the remaining 25 percent of the Restricted Stock Units granted pursuant to this Agreement shall become non-forfeitable. |
(b) | Partial Acceleration of Vesting in Event of Death or Disability . Notwithstanding Section 2(a) but subject to Section 3, if the Employee ceases to be employed by the Company or a Subsidiary before the Full Vesting Date as a result of the Employee’s death or Disability, then, to the extent not already non-forfeitable, on the date of such cessation of employment a number of the Restricted Stock Units (rounded to the nearest whole Restricted Stock Unit) will become non-forfeitable equal to the number of Restricted Stock Units set forth in Section 1 multiplied by a fraction which shall in no event exceed the number one, the numerator of which fraction shall be the number of full and partial months (rounded to the nearest half-month) that have elapsed from the Grant Date until the date of termination of employment as a result of death or Disability and the denominator of which fraction shall be the number of full and partial months (rounded to the nearest half-month) in the period from the Grant Date to the Full Vesting Date. For purposes of this Agreement, “ Disability ” shall mean (i) the Employee’s inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) the Employee’s receipt, by reason or any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, of income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Company. |
(c) | Acceleration of Vesting in Event Employment Terminates under Certain Circumstances after a Change in Control . Notwithstanding Section 2(a) but subject to Section 3, if the Employee continues to be employed by the Company or a Subsidiary from the Grant Date to the date on which a Change in Control occurs, and on or after the date on which such Change in Control occurs and before the Full Vesting Date the Employee ceases to be employed by the Company or a Subsidiary because his employment is terminated by the Company or a Subsidiary without Cause or because he terminates his employment for Good Reason, all of the Restricted Stock Units shall immediately become non-forfeitable. Solely for purposes of this Section 2(c), “Cause” means (i) the willful and continued failure by the Employee to substantially perform the same duties that he performed before the |
Change in Control, with the same title, authority, reporting relationships, office, compensation, benefits and indemnification as before the Change in Control (other than any such failure resulting from the Employee’s incapacity due to physical or mental illness), after he receives written notice of such failure from the Company or a Subsidiary and at least a 7 day period after his receipt of such written notice to discontinue the failure (which period is stated in the notice), (ii) any conduct by the Employee as an employee of the Company or a Subsidiary that constitutes a serious violation of state or federal laws, or Company policies or standards of conduct as in force and applied before the Change in Control, (iii) dishonesty by the Employee resulting or intended to result in gain or personal enrichment at the expense of the Company or a Subsidiary, or (iv) willful misconduct by the Employee in connection with the performance of his duties that demonstrably and materially injures the business of the Company or that the Employee knows (or should know) is likely to demonstrably and materially injure the business of the Company. For purposes of this Section 2(c), “Good Reason” for termination of the Employee’s employment by the Employee means that (A) the Employee’s title, authority, duties, reporting relationships, office, compensation, benefits or indemnification as they existed before the Change in Control are changed to the material detriment of the Employee without the Employee’s express written consent, or (B) the Company or a Subsidiary fails to pay the Employee any amount or provide the Employee with any benefit that it is obligated to pay or provide, when it is obligated to pay or provide it, and in either case (A) or (B) the situation is not remedied within 7 days after the Company or a Subsidiary receives written notice from the Employee of the situation. |
(d) | Additional Vesting Provisions . (i) Any provision above of this Section 2 to the contrary notwithstanding, a Restricted Stock Unit shall not become non-forfeitable pursuant to this Section 2 if, prior to the date (if any) on which such Restricted Stock Unit would become non-forfeitable pursuant to this Section 2, such Restricted Stock Unit was forfeited pursuant to Section 3(b). (ii) Engagement by the Company as a consultant shall not constitute “employment” for purposes of this Section 2. (iii) Entering into and/or receiving payments pursuant to a severance or termination arrangement shall not constitute “employment” for the purposes of this Section 2. |
3. | FORFEITURE OF RESTRICTED STOCK UNITS. |
(a) | Any Restricted Stock Units that have not become non-forfeitable pursuant to Section 2 above on or before the date on which the Employee ceases to be employed by the Company or a Subsidiary shall be forfeited as of that date, and all of the Employee’s rights and interest in and to such forfeited Restricted Stock Units shall thereupon terminate without payment of any consideration by the Company. A transfer of the Employee from the employ of the Company to the employ of a Subsidiary, or from the employ of a Subsidiary to the employ of the Company or another Subsidiary, will not be deemed a cessation of employment for purposes of this Agreement, including this Section 3 and Section 2 above. An approved leave of absence will also not be deemed a cessation of employment for purposes of this Agreement for the duration of such approved leave, unless the Committee provides |
otherwise at or before its meeting that coincides with or next follows the commencement of such leave. |
(b) | If, at any time before shares are delivered to the Employee pursuant to this Agreement, or within six months thereafter, the Employee: (i) directly or indirectly, whether as an owner, partner, shareholder, consultant, agent, employee, investor or in any other capacity, accepts employment with, renders services to or otherwise assists any other business which competes with the business conducted by the Company or any of its Subsidiaries at any time during the two years preceding the conduct in question; (ii) directly or indirectly, hires or solicits or arranges for or participates in the hiring or solicitation of any employee of the Company or any of its Subsidiaries, or encourages any such employee to leave such employment; (iii) uses, discloses, misappropriates or transfers confidential or proprietary information concerning the Company or any of its Subsidiaries (except as required by the Employee's work responsibilities with the Company or any of its Subsidiaries); (iv) commits a crime against the Company or any of its Subsidiaries; (v) engages in an act of moral turpitude that in the opinion of the Committee brings (or may bring) disrepute upon the Company if any payment or further payment of shares is made pursuant to this Agreement; (vi) engages in any activity in violation of the policies of the Company or any of its Subsidiaries, including without limitation the Company's Code of Business Conduct and Ethics, or (vii) engages in conduct adverse to the best interests of the Company or any of its Subsidiaries; then, unless the Committee, in its sole discretion, decides otherwise, and any provision of this Agreement to the contrary notwithstanding, (A) the Award (including but not limited to any Restricted Stock Units that became non-forfeitable before the Employee engaged in the conduct in question) shall be cancelled, and (B) the Employee shall forfeit and hereby agrees to return to the Company on demand any and all shares of Common Stock that had been delivered to the Employee pursuant to this Agreement; provided that, in the event of a Change in Control, the Award may not be cancelled and shares may not be forfeited for conduct described in clause (vi) or (vii) of this sentence unless the Committee as constituted before a Change in Control determines that the Award should be cancelled and the shares should be forfeited. The provisions of this Section 3(b) are in addition to any other agreements related to non-competition, non-solicitation and preservation of Company confidential and proprietary information entered into between the Employee and the Company, and nothing herein is intended to waive, modify, alter or amend the terms of any such other agreement. |
(c) | By executing this Agreement, the Employee irrevocably consents to any forfeiture of Restricted Stock Units required or authorized by this Agreement. |
4. | DELIVERY OF SHARES. |
(a) | If and when a Restricted Stock Unit becomes non-forfeitable pursuant to Section 2, a share of Common Stock shall be delivered to the Employee as provided in Section 4(b) in payment of such Restricted Stock Unit. Such share shall be delivered to the |
Employee no later than 30 days following the date that such share becomes non-forfeitable. |
(b) | The shares of Common Stock delivered pursuant to this Agreement will be duly authorized, validly issued, fully paid and non-assessable. The shares to be delivered shall be credited to a book entry account in the name of the Employee. At the election of the Employee, stock certificates representing such shares will be delivered to the Employee as soon as practicable after the Company’s receipt of the Employee’s election. |
5. | CAPITAL ADJUSTMENTS. |
(a) | In the case of a stock dividend or a stock split with respect to the Common Stock, the number of shares subject to the Award shall be increased by the number of shares the Employee would have received had he owned outright the shares subject to the Award on the record date for payment of the stock dividend or the stock split. |
(b) | Subject to Section 2(d), in the case of any reorganization or recapitalization of the Company (by reclassification of its outstanding Common Stock or otherwise), or its consolidation or merger with or into another corporation, or the sale, conveyance, lease or other transfer by the Company of all or substantially all of its property, pursuant to any of which events the then outstanding shares of Common Stock are combined, or are changed into or become exchangeable for other shares of stock, the Award shall entitle the Employee to earn and receive, on the terms and subject to the conditions set forth in this Agreement, the shares of stock which the Employee would have received upon such reorganization, recapitalization, consolidation, merger, sale or other transfer, if immediately prior thereto he had owned the shares in respect of this Award and had exchanged such shares in accordance with the terms of such reorganization, recapitalization, consolidation, merger, sale or other transfer. |
(c) | Except as expressly provided otherwise above in this Section 5, the issue by the Company of shares of stock of any class, or securities convertible into or exchangeable for shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of options, rights or warrants to subscribe therefor or to purchase the same, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or class of shares of stock subject to the Award. |
6. | TAXES AND WITHHOLDING. The Committee may cause to be made, as a condition precedent to any delivery or transfer of stock hereunder, appropriate arrangements to satisfy any Federal, state, local or foreign taxes that the Company determines it is required to withhold with respect to such delivery or transfer of stock, and the Committee may require the Employee to pay to the Company prior to delivery of such stock, the amount of any such taxes. |
7. | AWARD IS NON-TRANSFERABLE. In no event (a) may the Employee sell, exchange, transfer, assign, pledge, hypothecate, mortgage or dispose of the Award or any interest therein, nor (b) shall the Award or any interest therein be subject to anticipation, attachment, garnishment, levy, encumbrance or charge of any nature, voluntary or involuntary, by operation of law or otherwise. Any attempt, whether voluntary or involuntary, to sell, exchange, transfer, assign, pledge, hypothecate, mortgage, dispose, anticipate, attach, garnish, levy upon, encumber or charge the Award or any interest therein shall be null and void and the other party to the transaction shall not obtain any rights to or interest in the Award. The foregoing provisions of this Section 7 shall not prevent the Award or any Restricted Stock Unit from being forfeited pursuant to the terms and conditions of this Agreement, and shall not prevent the Employee from designating a Beneficiary to receive the Award in the event of his or her death. Any such Beneficiary shall receive the Award subject to all of the terms, conditions and restrictions set forth in this Agreement, including but not limited to the forfeiture provisions set forth in Section 3. |
8. | COMPLIANCE WITH LAW. If at any time the Committee shall determine, in its discretion, that the listing, registration or qualification of any shares subject to this Award upon any securities exchange or under any state or Federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of this Award or the issue of shares hereunder, no rights under the Award may be exercised and shares of Common Stock may not be delivered pursuant to the Award, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee and any delay caused thereby shall in no way affect the dates of vesting or forfeiture of the Award. The Employee acknowledges and understands that sales or other dispositions of any shares received under this Award may be subject to restrictions under the Federal securities laws, including Section 16(b) of and Rule 10b-5 under the Securities Exchange Act of 1934 and Rule 144 under the Securities Act of 1933, as well as the Company's policy on insider trading. |
9. | RELATION TO OTHER BENEFITS. The benefits received by the Employee under this Agreement will not be taken into account in determining any other benefits to which the Employee may be entitled under any profit sharing, retirement or other benefit or compensation plan maintained by the Company, including the amount of any life insurance coverage available to any beneficiary of the Employee under any life insurance plan covering employees of the Company. |
10. | AMENDMENTS; INTEGRATED AGREEMENT. This Agreement may only be amended in a writing signed by the Employee and an officer of the Company duly authorized to do so. This Agreement contains the entire agreement of the parties relating to the subject matter of this Agreement and supersedes and replaces all prior agreements and understandings with respect to such subject matter, and the parties have made no agreements, representations or warranties relating to the subject matter of this Agreement which are not set forth herein. |
11. | NO IMPLIED PROMISES. By accepting the Award and executing this Agreement, the Employee recognizes and agrees that the Company and its Subsidiaries, and each of their |
officers, directors, agents and employees, including but not limited to the Board and the Committee, in their oversight or conduct of the business and affairs of the Company and its Subsidiaries, may in good faith cause the Company and/or a Subsidiary to act or omit to act in a manner that will, directly or indirectly, prevent all or part of the Restricted Stock Units from becoming non-forfeitable. No provision of this Agreement shall be interpreted or construed to impose any liability upon the Company, any Subsidiary, or any officer, director, agent or employee of the Company or any Subsidiary, or the Board or the Committee, for any forfeiture of Restricted Stock Units that may result, directly or indirectly, from any such action or omission, or shall be interpreted or construed to impose any obligation on the part of any such entity or person to refrain from any such action or omission. |
12. | NOTICES. Any notice hereunder by the Employee shall be given to the Chief Executive Officer or Chief Financial Officer of the Company in writing and such notice by the Employee hereunder shall be deemed duly given or made only upon receipt by the addressee at AngioDynamics, Inc., 603 Queensbury Avenue, Queensbury, New York 12804, or at such other address as the Company may designate by notice to the Employee. Any notice to the Employee shall be in writing and shall be deemed duly given if delivered to the Employee in person or mailed or otherwise delivered to the Employee at such address as the Employee may have on file with the Company from time to time. |
13. | INTERPRETATION. The Committee shall interpret and construe this Agreement and make all determinations thereunder, and any such interpretation, construction or determination by the Committee shall be binding and conclusive on the Company and the Employee and on any person or entity claiming under or through either of them. |
14. | GENERAL. |
(a) | Nothing in this Agreement shall confer upon the Employee any right to continue in the employ or other service of the Company or any Subsidiary, or shall limit in any manner the right of the Company, its stockholders or any Subsidiary to terminate the employment or other service of the Employee or adjust the compensation of the Employee. |
(b) | The Employee shall have no rights as a s tockholder with respect to any shares that may be issued or transferred pursuant to this Agreement until the date of issuance to the Employee of a stock certificate for the shares or the date of entry of a credit for the shares in a book entry account in the Employee’s name. |
(c) | This Agreement shall be binding upon the successors and assigns of the Company and upon any Beneficiary of the Employee. |
(d) | Any waiver by a party of another party's performance of, or compliance with, a term or condition of this Agreement shall not operate, or be construed, as a waiver of any subsequent failure by such other party to perform or comply. |
(e) | Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. |
(f) | The titles to Sections of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the title of any Section. |
(g) | This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of laws thereof. |
(h) | Any provision of this Agreement that would cause any amount payable hereunder to be subject to tax pursuant to Section 409A of the Internal Revenue Code shall be administered, interpreted and construed to the end that such tax shall not apply to such amount. The Employee hereby agrees to execute any amendments to this Agreement that the Company determines are necessary or advisable to avoid subjecting any amount payable hereunder to tax pursuant to that Section of the Code. Nothing in this paragraph or elsewhere in this Agreement shall be construed as a representation or warranty by the Company that any amount payable hereunder will not be subject to tax pursuant to that Section of the Code. |
ANGIODYNAMICS, INC. | |||
By:
|
/s/ Stephen A. Trowbridge | ||
Stephen A. Trowbridge | |||
Senior Vice President and General Counsel | |||
Name
/s/ James C. Clemmer
|
|||
James C. Clemmer |