UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
Date of Report
(Date of earliest event reported)
February 12, 2010
CANTEL
MEDICAL CORP.
(Exact name of
registrant as specified in its charter)
Delaware
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001-31337
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22-1760285
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(State or other
jurisdiction
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(Commission
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(IRS
Identification
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of
incorporation)
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File Number)
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Number)
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150
Clove Road, Little Falls, New Jersey
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07424
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Address of
principal executive offices)
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(Zip Code)
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Registrants
telephone number, including area code:
(973) 890-7220
(Former name or
former address, if changed since last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item
5.02(e)
Compensatory
Arrangements of Certain Officers
On
February 12, 2010, Cantel Medical Corp. (the Company) entered into
Executive Severance Agreements and Confidentiality and Non-Competition
Agreements with Andrew A. Krakauer (President and Chief Executive Officer), Seth
R. Segel (Executive Vice President), Craig A. Sheldon (Senior Vice President,
Chief Financial Officer and Treasurer), Eric W. Nodiff (Senior Vice President,
General Counsel and Secretary), and Steven C. Anaya (Vice President and
Controller). On the same date, Minntech
Corporation (Minntech), a subsidiary of the Company, entered into an
Executive Severance Agreement and a Non-Competition Agreement with Roy K.
Malkin (President and Chief Executive Officer of Minntech). Said Executive Severance Agreements are
referred to herein as the Severance Agreements, said Confidentiality and
Non-Competition Agreements are referred to herein as the Non-Compete
Agreements, and Messrs. Krakauer, Segel, Sheldon, Nodiff, Anaya and
Malkin are referred to herein as the Executives. All of the Severance Agreements and all of
the Non-Compete Agreements are based on the same form of agreements. A summary of the material terms of the
Agreements is as follows:
Term
: The
Severance Agreements commence as of January 1, 2010 and continue through July 31,
2010; however on August 1 of each year, the term extends by one year
unless either the Company (which for purposes of Mr. Malkins agreement
refers to Minntech) or the Executive has provided at least 6 months notice
that the term will not be extended. However, if a Change of Control (as defined
in the Severance Agreements) occurs, the term will not end before the second
anniversary of the Change in Control.
Accrued Compensation:
Upon termination of employment for any
reason, the Executive will be entitled to his (a) earned but unpaid base
salary through the termination date, (b) accrued and unused paid time off
(PTO) through the termination date, and (c) reimbursement of expenses.
Non-Change of Control
Severance:
Subject to certain conditions (e.g., signing a
Release), if an Executive is terminated (i) by the Company without cause
or (ii) by the Employee for Adequate Reason (as defined in the Severance
Agreement), then the Executive will be entitled to the following, unless termination
occurs during a Change in Control Coverage Period (as defined in the Severance
Agreements and described below):
(a) One years base salary (18 months in case of CEO), paid in
a lump sum.
(b) If the termination occurs subsequent to a fiscal year end
in which the Executive did not yet receive his earned bonus, then the Executive
will be entitled to his bonus to the extent earned under his applicable bonus
plan.
(c) For the partial fiscal year in which
the termination occurs, the Executive will be entitled to a pro-rata portion
(based on number of days worked in fiscal year) of his bonus to the extent
earned under his applicable bonus plan.
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(d)
The most current tranche of
unvested options and restricted stock will vest on a pro rata basis through the
termination date.
(e) 12 months of COBRA benefits.
(f) 12 months of outplacement services, up to $20,000.
Change of Control
Severance:
Subject to certain conditions (e.g., signing a
Release), if an Executive is terminated during a Change in Control Coverage
Period (generally, the period commencing 6 months prior to a Change in Control
and ending 2 years following a Change in Control), the Executive will be
entitled to the following compensation if (A) the Company terminates the
Executives employment (other than a termination for Cause or death), or (B) the
Executive voluntarily terminates his employment for Adequate Reason or Good
Reason (as such terms are defined in the Severance Agreements):
(a) Two times the sum of the Executives
base salary and target bonus (or if higher, the average of the prior two years
bonuses).
(b) If the termination occurs subsequent
to a fiscal year end in which the Executive did not yet receive his earned
bonus, then the Executive will be entitled to his target bonus for such fiscal
year.
(c) For the partial fiscal year in which
the termination occurs, the Executive will be entitled to a pro-rata portion
(based on number of days worked in fiscal year) of his target bonus for such
partial fiscal year.
(d) 12 months of COBRA benefits.
(e) Continuation of term life insurance
policy for 24 months.
(f) 12 months of outplacement services,
up to $20,000.
(g) Reimbursement of income taxes payable
in connection with benefits under (d), (e) and (f) above.
Termination of Employment by the Company:
The Company may cause a Termination of an Executives
Employment for Unacceptable Performance at any time other than during a Change
in Control Coverage Period. The Board must provide the Executive with a notice
of termination specifying the specific acts or failures constituting
Unacceptable Performance, accompanied by a resolution adopted by a 2/3 Board
vote. The Executive will have the ability to cure if the act of failure is
correctable.
The Company may cause a Termination of the Executives
Employment for Cause at any time. The Board
must provide the Executive with a notice of termination specifying the specific
acts or failures constituting Cause, accompanied by a resolution adopted by a ¾
Board vote. The Executive will have the ability to cure if the act of failure
is correctable.
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In the case of a termination
due to disability or death, the Company will continue to pay the Executives
base salary for a 3-month period.
Clawback:
If an Executive
intentionally and materially breaches any provision of the Non-Compete
Agreement and fails to cure such breach (if curable) within thirty (30) days,
he shall promptly repay to the Company any and all severance amounts previously
paid to him under the Severance Agreement.
Disputes:
In any judicial
or other proceedings in which the Executives right to, or the amount of,
benefits is disputed, the ultimate burden of proof will be on the Company. In addition, the Company will be obligated to
pay all reasonable out-of-pocket expenses, including reasonable legal fees and
legal expenses, incurred by an Executive in connection with any proceeding to
enforce the Severance Agreement or to construe, determine, or defend the
validity of the Severance Agreement.
Non-Competition:
the Non-Compete Agreements require the
Executives to comply with confidentiality, non-compete and non-solicitation
covenants.
The
summary of the Severance Agreements and Non-Compete Agreements in this Current
Report on Form 8-K is qualified in its entirety to the full text of the agreements,
the same (for NEOs) being attached hereto as Exhibits and incorporated herein
by reference.
Item
9.01
Financial Statements,
Pro-Forma Financial Information and Exhibits
(d)
Exhibit
10.1
Executive Severance
Agreement between Registrant and Andrew A. Krakauer.
10.2
Executive Severance
Agreement between Registrant and Seth R. Segel.
10.3
Executive Severance Agreement
between Registrant and Craig A. Sheldon.
10.4
Executive Severance
Agreement between Registrant and Eric W. Nodiff.
10.5
Executive Severance
Agreement between Minntech Corporation and Roy K. Malkin.
10.6
Confidentiality and
Non-Competition Agreement between Registrant and Andrew A. Krakauer.
10.7
Confidentiality and
Non-Competition Agreement between Registrant and Seth R. Segel.
4
10.8
Confidentiality and
Non-Competition Agreement between Registrant and Craig A. Sheldon.
10.9
Confidentiality and
Non-Competition Agreement between Registrant and Eric W. Nodiff.
10.10
Confidentiality and
Non-Competition Agreement between Minntech Corporation and Roy K. Malkin.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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CANTEL
MEDICAL CORP.
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By:
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/s/
Andrew A. Krakauer
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Andrew
A. Krakauer
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President
and CEO
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Dated: February 12, 2010
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Exhibit 10.1
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (Agreement) is
entered into, effective as of January 1, 2010, by and between Andrew A.
Krakauer (Executive) and Cantel Medical Corp. (Company).
Background
A. The Company considers the establishment and maintenance
of a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its shareholders. The Company believes that, to attract and
retain experienced and valuable key executive employees, it is important and
prudent to provide such executives with fair compensation should their
employment be terminated under certain circumstances, including but not limited
to change in control situations.
B. The Company wishes to encourage the Executive to devote
his full time and attention to the performance of his management
responsibilities and to assist the Board of Directors and other management
employees in evaluating business options and pursuing the best interests of the
Companys shareholders without being influenced by the uncertainty of his own
employment situation.
In consideration of the
premises, the Executives employment by the Company on an at-will basis, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Executive and the Company agree as follows:
Agreement
1.
Defined
Terms.
Throughout this
Agreement, when the first letter of a word (or the first letter of each word in
a phrase) is capitalized, the word or phrase shall have the meaning specified
in Appendix A (beginning on page 13)
2.
Term.
This initial term of this
Agreement shall commence as of January 1, 2010, and shall continue through
July 31, 2011; provided, however, that beginning on August 1, 2010,
and on the first day of each following August, the term of this Agreement shall
automatically be extended by one year, unless either the Company or the
Executive shall have provided notice to the other at least six (6) months
before such date that the term shall not be extended. Notwithstanding the preceding provisions of
this Section, (i) if a Change in Control occurs during the term of this
Agreement, such term (other than with respect to the provisions of Section 4)
shall not end before the second anniversary of the Change in Control; provided,
however, this sentence shall apply only to the first Change of Control while
this Agreement is in effect; and (ii) termination of this Agreement shall
not affect the obligations of the Company hereunder on account of the Executives
Termination of Employment during the Term.
3.
Termination of
Employment; Resignation of Officer and Director Positions
. The Executive is an at-will employee. The Company may Terminate the Executives
Employment at any time, for any reason whatsoever or for no reason, subject to
its payment obligations under this Section and, if applicable, Section 4
or 5. The Executive may voluntarily
Terminate his Employment at any time by providing at least twenty (20) days
prior notice to the
Company.
Regardless of whether the Executives Termination of Employment is
voluntary or involuntary, the Executive shall resign from any and all of his
director positions and offices with the Company and each Related Employer,
effective as of his Termination Date.
Upon Termination of Employment, the Executive shall be entitled to the
following, in addition to any benefits payable under Section 4 or 5:
(a) Any earned but unpaid base salary through his Termination
Date, plus any accrued and unused paid time off (PTO) due to the Executive
under the Companys PTO program through his Termination Date, which amounts
shall be paid to the Executive not later than the payment date for the payroll
period next following his Termination Date.
(b) Provided that the Executive applies for reimbursement in
accordance with the Companys established reimbursement procedures (within the
period required by such procedures but under no circumstances later than ninety
(90) days after his Termination Date), the Company shall pay the Executive any
reimbursements to which he is entitled under such procedures not later than the
payment date for the payroll period next following the date on which the
Executive applies for reimbursement.
(c) Any benefits (other than severance) payable to the
Executive under any of the Companys cash or equity incentive compensation
plans and employee benefit plans or programs (collectively, Benefit Plans),
to the extent not provided for herein, shall be payable in accordance with the
provisions of those plans or programs. To the extent that the terms herein
conflict with the terms of the Benefit Plans, the terms herein shall be deemed
to supersede those of the Benefit Plans.
4.
Non-Change of Control
Severance and Other Benefits
.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 4, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if at any time during the Term other than during a
Change in Control Coverage Period either (i) the Company Terminates the
Executives Employment (other than a termination for Cause, Unacceptable
Performance, Disability, or death pursuant to Section 7), or (ii) the
Executive voluntarily Terminates his Employment for Adequate Reason pursuant to
Section 8. Notwithstanding the
preceding provisions of this Subsection, the Executive shall not be entitled to
benefits pursuant to this Section 4, if he is entitled to benefits
pursuant to Section 5.
(b) As soon as administratively feasible (and not more than
ten (10) days) after the Companys receipt of the duly executed Release,
and the Release becoming effective and irrevocable, the Company shall pay to
the Executive a single lump sum payment equal to the product of (i) the
Executives Monthly Base Salary Rate as of his Termination Date multiplied by (ii) 18. For purposes of determining the Executives
Monthly Base Salary Rate pursuant to the preceding sentence, any reduction to
the Executives salary during the six-month period preceding his Termination of
Employment shall be disregarded.
2
(c) If the Termination Date of an Executive occurs subsequent
to the last day of a Fiscal Year for which the Executive has not been paid his
Bonus, then the Executive shall be entitled to his full Bonus for such Fiscal
Year to the extent otherwise earned under the terms of the Bonus Plan for such
Fiscal Year (as if the Executives employment had not been Terminated). Such
amount shall be paid to the Executive not later than seventy five (75) days
following the close of such Fiscal Year.
Amounts payable under this Subparagraph (c) will be deemed payments
attributable to Executives employment prior to or on the Termination Date and
not as severance.
(d) The Company shall pay to the
Executive a pro-rata Bonus for the Fiscal Year in which the Termination Date
occurs, determined by multiplying (i) the amount of the Executives full
Bonus for such Fiscal Year to the extent otherwise earned under the terms of
the Bonus Plan for such Fiscal Year as in effect immediately prior to the
Termination Date by (ii) a fraction, (A) the numerator of which is
the number of full or partial months since the end of the prior Fiscal Year in
which the Executive has been employed by the Company, and (B) the
denominator of which is 12. Such amount
shall be paid to the Executive not later than seventy five (75) days following
the close of such Fiscal Year.
Notwithstanding the forgoing, if no Bonus Plan has been finalized (i.e.,
approved by the Compensation Committee and disseminated to the Executive) for
such Fiscal Year either prior to the commencement of such Fiscal Year or within
three months following the commencement of such Fiscal Year, then the Bonus for
such Fiscal Year payable under this Subparagraph (d) will be determined in
accordance with the first sentence of Section 5(b)(2) (as if the pro
rata Bonus payment under that Section was required). Amounts payable under
this Subparagraph (d) will be deemed payments attributable to Executives
employment prior to or on the Termination Date and not as severance.
(e)
In
the
event such termination occurs
prior to the full vesting of
stock
options
and restricted stock held by the participant (i.e., the options becoming exercisable
in their entirety and the restricted stock ceasing to have any risks of
forfeiture), then, effective as of the Termination Date, the vesting of the
annual installment
of such options and restricted stock that would be
due to vest on the first vesting date following the Termination Date shall
accelerate on a pro rata basis based on the number of days elapsed from the
prior vesting date of such options and restricted stock to and including the
Termination Date
.
(f) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the eighteen (18) month period following the Executives
Termination of Employment (or such shorter period during which such person is
eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Executive to the extent required by law.
(g) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
made by the Company promptly following the Companys receipt of appropriate
invoices documenting such expenses.
3
(h) Notwithstanding the preceding provisions or any other
provisions herein to the contrary, if the Executives Employment is Terminated
during a Change in Control Coverage Period, either by the Executive for
Adequate Reason or Good Reason or by the Company for any reason other than for
Cause or death, then the Executive shall be entitled to the payments and
benefits that would have been provided to him pursuant to Section 5 if the
Company had Terminated his Employment without Cause during a Change in Control
Coverage Period (reduced by any payments or benefits provided to him pursuant
to this Section 4). In such a case,
the Executive shall not be required to execute an additional Release, and any
Release requirement specified in Section 5 shall be deemed satisfied on
the Change in Control Date.
(i) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i) the
Company shall promptly deliver written notice to the Executive advising him of
the application of such Code Section and, to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall accrue on unpaid amounts
delayed under this subparagraph at the prime rate from time to time in effect
at the JP Morgan Chase Bank of New York or any successor bank commencing from
the date that such amounts would otherwise have been due under the applicable
provision.
5.
Change of Control
Severance and Other Benefits.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 5, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if during a Change in Control Coverage Period, (A) the
Company Terminates the Executives Employment (other than a termination for
Cause or death pursuant to Section 7), or (B) the Executive
voluntarily Terminates his Employment for Adequate Reason or Good Reason
pursuant to Section 8. Amounts
payable pursuant to this Section shall be subject to the limitations and
reimbursement expressly provided in this Agreement.
(b) As soon as administratively feasible (and not more than
five (5) business days) after the Companys receipt of the duly executed
Release, and the Release becoming effective and irrevocable in accordance with
its terms, the Company shall pay to the Executive a single lump sum payment in
an amount equal to the sum of the following:
(1) the product of (i) two (2) times (ii) the
sum of (A) the Executives Annual Base Salary, at the greater of the rate
in effect on the Change in Control Date or the Termination Date (disregarding
any reduction in the rate of the Executives salary during the six-month period
immediately preceding his Termination of Employment), plus (B) the greater
of (I) 70% of the amount determined under clause (A) or (II) the
average of the annual Bonuses paid to the Executive for the two Fiscal Years
preceding the year in which the Executives Employment is Terminated. Amounts payable under this Subparagraph (b)(1) will
deemed severance.
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(2) a pro-rata Bonus amount, determined by multiplying (i) the
greater of (A) 70% of the amount determined under clause (A) of the
preceding Subparagraph (b)(1) or (B) the average of the annual
Bonuses paid to the Executive for the two years Fiscal Years preceding the year
in which the Executives Employment is Terminated, by (ii) a fraction, (A) the
numerator of which is the number of full or partial months since the end of the
prior Fiscal Year in which the Executive has been employed by the Company, and (B) the
denominator of which is 12. However, if
the Executive did not receive his annual Bonus under a Bonus Plan for such
prior Fiscal Year, then the numerator shall be the number of full or partial
months since the beginning of the prior Fiscal Year in which the Executive has
been employed by the Company. Amounts payable under this Subparagraph (b)(2) will
be deemed payments attributable to Executives employment prior to or on the
Termination Date and not as severance.
(c) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twenty-four (24) month period following the Executives
Termination of Employment (or such shorter period during which such person is
eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Participant to the extent required by law.
(d) For the twenty-four (24) month period following the
Executives Termination of Employment, the Company shall continue to provide
term life insurance coverage substantially the same as that provided for the
Executive immediately before his Termination Date (if any).
(e) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
paid directly by the Company promptly following the Companys receipt of
appropriate invoices documenting such expenses.
(f) To the extent that coverage or benefits under Subsection
(c), (d), or (e) result in taxable income to the Executive, the Company
shall reimburse the Executive for any taxes payable on account of such
coverage, so that the Executive is in the same after-tax position in which he
would have been had such reimbursements not been taxable. The Company shall pay the reimbursement
required by the preceding sentence as soon as administratively practicable
after the Executive demonstrates payment of the related taxes and not later
than the last day of the calendar year following the calendar year in which
such taxes are paid.
(g) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i),
the Company shall promptly deliver written notice to the Executive advising him
of the application of such Code Section and to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall
accrue on unpaid amounts delayed under this subparagraph at the prime rate from
time to
5
time in effect at the JP Morgan Chase Bank of New
York or any successor bank commencing from the date that such amounts would
otherwise have been due under the applicable provision.
6.
Provisions Relating to
Parachute Payments.
If
payments and benefits to or for the benefit of the Executive, whether pursuant
to this Agreement or otherwise, would result in total Parachute Payments to the
Executive with a value equal to or greater than one hundred percent (100%) of
the Parachute Payment Limit, the Executive may, in his sole discretion, elect
to reduce the amount payable pursuant to Section 5(b) so that the
value of all Parachute Payments to the Executive, whether or not made pursuant
to this Agreement, is equal to the Parachute Payment Limit minus One Dollar
($1.00).
7.
Termination of
Employment by the Company for Cause, Unacceptable Performance, Disability, or
Death.
(a) The Company may cause a Termination of the Executives
Employment for Disability at any time.
To do so, the Board must provide the Executive with a notice of
termination specifying the Termination Date and the circumstances constituting
Disability.
(b) Company may cause a Termination of the Executives
Employment for Unacceptable Performance at any time during the Term other than
during a Change in Control Coverage Period. To do so, the Board must provide
the Executive with a notice of termination specifying the Termination Date and
the specific act(s) or failure(s) constituting Unacceptable
Performance. If the Boards notice
identifies an act or failure constituting Unacceptable Performance, it shall be
accompanied by a resolution duly adopted by not less than two-thirds (2/3) of
the entire membership of the Board and, if the act of failure is subject to
correction under the definition of Unacceptable Performance and related
definitions in this Agreement, the notice shall also specify the period during
which the act or failure must be corrected, which in no event shall be less
than thirty (30) days. If the Board
reasonably determines that the Executive has not corrected the act or failure
in all material respects within the required correction period, the Board must
then provide a second notice of termination stating the reasons for the
termination and the Termination Date, and the Executives Employment shall
terminate on such date.
(c) The Company may cause a Termination of the Executives
Employment for Cause at any time. To do
so, the Board must provide the Executive with a notice of termination
specifying the Termination Date and the specific act(s) or failure(s) constituting
Cause. If the Boards notice identifies
an act or failure constituting Cause, it shall be accompanied by a resolution
duly adopted by not less than three-quarters (¾) of the entire membership of
the Board (after reasonable notice to the Executive and an opportunity for the
Executive, together with legal counsel, to be heard by the Board), finding, in
the reasonable opinion of the Board, that one or more of the events of Cause
has occurred and specifying the details thereof. If the act or failure constituting Cause is
subject to correction under the definition of Cause and related definitions in
this Agreement, the notice shall also specify the period during which the act
or failure must be corrected, which in no event shall be less than thirty (30)
days. If the Board acting in good faith
determines that the Executive has not corrected the act or failure in all
material respects within the required correction period, the Board must then
provide a
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second notice of termination stating the reasons for
the termination and the Termination Date, and the Executives Employment shall
terminate on such date.
(d) If the Executive dies before Termination of Employment,
his Employment shall terminate automatically on the date of his death.
(e) In the case of a Termination of Employment for Cause or
Unacceptable Performance pursuant to this Section, the Executive shall not be
entitled to benefits or payments pursuant to Section 4 or 5; provided,
however, if the Company causes a Termination of the Executives Employment for
Unacceptable Performance and the Termination Date of such termination occurs
during a Change in Control Coverage Period, then such termination shall be
deemed a Termination of the Executives Employment other than a termination
for Cause under Section 5(a) and thereby obligate the Company to
provide the Executive with the payments and benefits set forth in Section 5.
(f) In the case of a Termination of
Employment due to Disability or death pursuant to this Section, the Company
shall continue to pay to the Executive, if living, or other person or persons
as the Executive may from time to time designate in writing as the beneficiary
of such payments, the Base Salary in effect at the time which such Disability
or death occurred, during the three-month period following such Disability or death. Except for such Base Salary, the Company
shall have no further obligation pursuant to this Section.
8.
Resignation by
Executive for Adequate Reason or Good Reason.
If an event of Adequate Reason or Good Reason
occurs during the Term, the Executive may, at any time within the ninety (90)
day period following such event, provide the Company with a notice of
termination specifying the event of Adequate Reason or Good Reason and
notifying the Company of his intention to Terminate Employment upon the Companys
failure to correct the event of Adequate Reason or Good Reason within thirty
(30) days following receipt of the Executives notice of termination. If the Company fails to correct the event of
Adequate Reason or Good Reason and provide the Executive with notice of such
correction within such thirty (30) day period, the Executives Employment shall
terminate as of the end of such period, and the Executive shall be entitled to
benefits as provided in Section 3 and Section 4 or 5, as applicable.
9.
Limitation
on Payments and Benefits.
Notwithstanding
any other provision of this Agreement, payments pursuant to this Agreement
shall be subject to the following limitations:
(a) No payment (other than a payment
pursuant to Section 3) shall be made pursuant to this Agreement until the
Release has become effective according to its terms.
(b) If the Executive intentionally and
materially breaches any provision of the Confidentiality and Non-Competition
Agreement, and fails to cure such breach (if curable) within thirty (30) days,
he shall promptly repay to the Company any and all severance amounts previously
paid to him pursuant to Section 4 and/or 5, and he shall have no further
rights pursuant to this Agreement.
(c) Payments hereunder shall be limited
to the extent provided in Section 6.
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10.
No
Obligation to Mitigate.
The
Executive shall not be required to mitigate the amount of any payment or
benefits provided for under Section 4 or 5 by seeking other employment or
otherwise, and the amount of any payment or benefits provided for under Section 4
or 5 shall not be reduced by any payments or benefits received by the Executive
as the result of employment by another employer after the Termination Date, or
otherwise; provided, however, that the amount payable under Section 4 or 5
shall be reduced by the amount of any severance, termination, or notice pay (or
any other similar amounts) required by law to be paid to the Executive by the
Company or its subsidiaries and by any salary or other amounts paid to the
Executive during any notice period that the Company or its subsidiaries is
required by law to provide.
11.
Withholding and
Taxes.
The Company may
withhold from any payment made hereunder (i) any taxes that the Company
reasonably determines are required to be withheld under federal, state, or
local tax laws or regulations, and (ii) any other amounts that the Company
is authorized to withhold. Except for
employment taxes that are the obligation of the Company, the Executive shall
pay all federal, state, local, and other taxes (including, without limitation,
interest, fines, and penalties) imposed on him under applicable law by virtue
of or relating to the payments and/or benefits contemplated by this Agreement,
subject to any reimbursement provisions of this Agreement.
12.
Indemnification.
The Executive shall continue to be
entitled to any rights to insurance and indemnification under the Companys or
a Related Employers directors and officers liability insurance (D&O
Insurance), Certificate of Incorporation, and Bylaws, as in effect before the
earlier of the Executives Termination of Employment or a Change in Control (or
rights to insurance and indemnification that are substantially the same
thereto), with respect to any claims relating to the period before his
Termination Date. Additionally, any and
all D&O Insurance policies obtained by the Company or a Related Employer
following the Termination Date that are claims made polices shall cover the
Executive to the same extent as other former officers of the Company.
13.
Default
in Payment.
Any payment not
made within ten (10) days after it is due in accordance with this
Agreement shall thereafter bear interest, compounded quarterly, at 5% above the
prime rate from time to time in effect at the JP Morgan Chase Bank of New York
or any successor bank.
14.
Effect
on Other Plans, Agreements, and Benefits.
Except to the extent expressly set forth herein, any benefit
or compensation to which the Executive is entitled under any agreement between
the Executive and the Company or any of its subsidiaries or under any plan
maintained by the Company or any of its subsidiaries in which the Executive
participates or participated shall not be modified or lessened in any way, but
shall be payable according to the terms of the applicable plan or agreement.
The terms of this Agreement shall supersede and terminate any prior change in
control and/or severance agreement, and the provisions of any other agreement
providing benefits following a change in control or termination of employment,
entered into between the Executive and the Company or any subsidiary
thereof. Notwithstanding the above, any
severance benefits received by the Executive pursuant to this Agreement shall
be in lieu of any severance benefits to which the Executive would otherwise be
entitled under any general severance policy maintained by the Company or the
relevant subsidiary for its
8
management personnel or
under any employment contract between the Executive and the Company or any
subsidiary thereof. Any and all
employment agreements between the Company and the Executive, inclusive of
provisions that in accordance with the terms of such agreements survive
termination, are hereby terminated and void.
15.
Unsecured
Obligation.
All rights of the
Executive or any beneficiary of the Executive who succeeds to the Executives
rights to payments or benefits under this Agreement shall at all times be
entirely unfunded and no provision shall at any time be made with respect to
segregating any assets of the Company or payment of any amounts due
hereunder. Neither the Executive nor any
such beneficiary shall have any interest in or rights against any specific
assets of the Company or any of its subsidiaries, and the Executive and any
such beneficiary shall have only the rights of a general unsecured creditor of
the Company.
16.
Prohibition
Against Assignment.
The
Executive may not assign, pledge, anticipate, or transfer any benefit or amount
payable hereunder (other than benefits payable upon or following his death),
and any attempt to assign, pledge, anticipate, or transfer such and benefit or
amount hereunder, whether voluntary or involuntary, shall be null and void.
17.
Successors.
(a) The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive, 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 it if no such
succession had taken place. Failure of
the Company to obtain such agreement before the effectiveness of any such
succession shall be a material breach of this Agreement. As used in this Agreement, Company shall
mean the Company as hereinbefore defined, and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided
for in this Subsection or otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executives devisee,
legatee, or other designee or, if there be no such designee, to the Executives
estate.
18.
Release.
In consideration of the Companys
promises and covenants and the performance thereof, the Executive agrees that
the Companys payment obligations under Sections 4 and 5 shall be conditioned
on the Executives release of the Company and all other persons named in the
Release from any and all causes of causes of action that the Executive has or
may have against the Company or any such person before the effective date of
the Release, other than a cause based on a breach hereof. The Release shall be substantially in the
form attached hereto as Exhibit I.
For the Release to be effective, the Executive (or his representative or
agent) must have provided a signed version of the Release to the Company and
such Release
9
shall have become effective and irrevocable by its
terms within sixty (60) days after the Executives Termination of Employment.
19.
Disputes.
(a) In any judicial or other proceedings
in which the Executives right to, or the amount of, benefits hereunder is
disputed, the ultimate burden of proof shall be on the Company.
(b) Any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Little Falls, New Jersey by three arbitrators, one of whom shall
be appointed by the Company, one of whom shall be appointed by the Executive,
and the third of whom shall be appointed by the first two arbitrators. If either the Company or the Executive fails
to appoint an arbitrator within 20 days of a request in writing by the other to
do so, or if the first two arbitrators cannot agree on the appointment of a
third arbitrator within 20 days after the second arbitrator is designated, then
such arbitrator shall be appointed by the Chief Judge of the United States
District Court located in the city of Newark, New Jersey, or upon his failure
to act, by the American Arbitration Association so as to enable the arbitrators
to render an award within 90 days after the three arbitrators have been
appointed. Following the selection of
arbitrators as set forth above, the arbitration shall be conducted promptly and
expeditiously and in accordance with the rules of the American Arbitration
Association. Judgment may be entered on
the arbitrators award in any court having jurisdiction; provided, however,
that the Executive shall be entitled to seek specific performance of his right
to be paid during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
(c) The Company shall pay all reasonable
out-of-pocket expenses, including reasonable legal fees and legal expenses,
incurred by the Executive in connection with any judicial or other proceeding,
including any arbitration proceeding, to enforce this Agreement or to construe,
determine, or defend the validity of this Agreement. The Company shall pay (or reimburse the
Executive) for any such expense as soon as administratively practicable after
the Executive demonstrates evidence that such expense have been incurred and
not later than thirty (30) days following the Executives submission of such
expenses to the Company with a request for reimbursement.
20.
Miscellaneous
Provisions.
(a)
Entire
Agreement.
This Agreement contains the entire
agreement and understanding of the parties regarding the transactions
contemplated herein and supersedes all prior agreements, arrangements, or
understandings, whether written or oral, relating to the subject matter hereof,
including, without limitation, any letters, agreements, or understandings
between the Executive and the Company or any subsidiary thereof before the date
hereof. By entering into this Severance
Agreement, the Executive waives any right that he may otherwise have to
participate in any generally applicable severance plan of the Company or any
Related Employer.
(b)
Amendment.
No
provision of this Agreement may be amended or waived, except by written
agreement signed by both the Company and the Executive.
10
(c)
Governing
Law.
This Agreement is intended to
comply with the requirements of Code Section 409A, and it shall be
construed in accordance with such intent.
Subject to the preceding sentence, this Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of New Jersey
without regard to principles of conflict of laws.
(d)
Headings
.
The headings in this Agreement have been
inserted solely for ease of reference and shall not be considered in the
interpretation or enforcement of this Agreement.
(e)
Severability.
If
any provision of the Agreement is held to be invalid, illegal, or
unenforceable, the remainder of this Agreement shall not be affected
thereby. If any provision of this
Agreement is held by a court of competent jurisdiction to conflict with any
federal, state, or local law, such provision is hereby declared to be of such
force and effect as is permissible in such jurisdiction.
(f)
Rights
and Waivers.
All rights and
remedies of the parties hereto are separate and cumulative, and no one of them,
whether exercised or not, shall be deemed to exclude, limit, or prejudice any
other right or remedy that either of the parties hereto may have. No party to this Agreement shall be deemed to
waive any right or remedy under this Agreement, unless such waiver is in
writing and signed by such party. No
delay or omission on the part of either party in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or
remedy. A waiver on any one occasion
shall not be construed as a bar to or a waiver of any right or remedy on any
future occasion.
(g)
Notices.
All
notices hereunder shall be in writing. A
notice by the Company shall be deemed to have been given only when delivered in
person to the Executive or mailed by first class United States Mail, Return
Receipt Requested, or sent by overnight delivery (or the fastest delivery
available, if overnight delivery is not available) by means of an
internationally recognized delivery service, to the Executive at his most
recent address on the records of the Company.
A notice by the Executive to the Company shall be deemed to have been
given only when delivered in person to the Companys General Counsel or mailed
by first class United States Mail, Return Receipt Requested, or sent by
overnight delivery (or the fastest delivery available, if overnight delivery is
not available) by means of an internationally recognized delivery service, to
the Companys General Counsel at the Companys headquarters.
(h)
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same instrument, and may be delivered by facsimile or pdf.
21.
No
Reliance
. The Executive
represents and acknowledges that in executing this Agreement, the Executive
does not rely and has not relied upon any representation or statement by the
Company or its agents, other than statements contained in this Agreement.
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CANTEL MEDICAL CORP.
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By:
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Andrew A. Krakauer
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Date:
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Date:
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12
APPENDIX A
DEFINED TERMS
For purposes of this
Agreement, the following terms shall have the meanings specified below:
Adequate Reason means any of the following without
the express written consent of the Executive:
(1) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(2) a
reduction in the Executives base compensation or failure to include the
Executive with other similarly situated employees in any incentive, bonus, or
benefit plans as may be offered by the Company from time to time;
(3) a
change in the primary location at which the Executive is required perform the
duties of his employment to a location that is more than thirty (30) miles from
the location at which his office is located on the effective date of this
Agreement; or
(4) the
Companys material breach of this Agreement.
Annual Base Salary means
the annual base cash compensation payable to the Executive at the rate in
effect as of the applicable date (excluding bonuses, incentive compensation,
taxable fringe benefits, and any other type of special pay), before any
reduction on account of salary reduction contributions pursuant to Code Section 125
or 401(k) or pursuant to a nonqualified deferred compensation plan.
Board means the Companys
Board of Directors.
Bonus means an annual
cash bonus payable under any Bonus Plan.
Bonus Plan means any
bonus plan, short term incentive compensation plan or other like benefit plan
in which the Executive participates, whether or not awards thereunder are
discretionary.
Cause
means the Executives:
(1) act of fraud, embezzlement, theft, or other intentional
material violation of the law in connection with or in the course of his
employment,
(2) willful gross misconduct that is likely to materially
injure the reputation, business, or a business relationship of the Company; or
(3) willful material violation of the Confidentiality and
Non-Competition Agreement.
For purposes of the definition of Cause,
the following shall apply:
13
·
no act, or failure to act,
on the part of the Executive shall be deemed willful, if it was done or
omitted by the Executive in good faith or with a reasonable belief that the act
or omission was not opposed to the best interests of the Company; and
·
the Executives employment
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard by the Board), finding that in the Boards
good faith opinion, the Executive was guilty of conduct constituting Cause and
describing the specific acts or omissions constituting such conduct.
Change
in Control means the first to occur of the following during the Term:
(1) any one person, or more than one person acting as a group
(as determined by Treas. Reg. § 1.409A-3(i)(5)(B)), acquires ownership of
stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of the Company; or
(2) a majority of the members of the Companys board of
directors is replaced during any 12-month period by directors whose appointment
or election is not endorsed by a majority of the members of the Companys board
of directors before the date of the appointment or election.
Notwithstanding the preceding provisions, a Change of
Control will be deemed to occur only to the extent that the event or events
described above constitute a change in the ownership or effective control of
the corporation, or in the ownership of a substantial portion of the assets of
the corporation within the meaning of Code Section 409A(a)(2)(A)(v) and
the regulations thereunder.
Change in Control Date
means the effective date of an event constituting a Change in Control.
Change in Control Period
means the period beginning on the date of a Change in Control and ending two
years thereafter.
Change in Control
Coverage Period means the period (A) commencing on the earlier to occur
of (i) the first day of a Potential Change Period or (ii) the first
day of the six (6) month period ending on the Change in Control Date and (B) ending
on the last day of a Change in Control Period.
Code means the Internal
Revenue Code of 1986, as amended from time to time.
Company means Cantel
Medical Corp. and any successor, to the extent provided in Section 17.
14
Continuation Coverage
means continuation coverage within the meaning of ERISA Sections 601 through 607.
Confidentiality and
Non-Competition Agreement means the confidentiality and non-competition
agreement between the Company and the Executive, as in effect from time to
time.
Disability means an
illness or injury that qualifies the Executive for disability benefits under a
long-term disability plan of the Company or a Related Employer in which the
Executive is a participant; provided, however, that a Disability shall not be
deemed to have occurred hereunder unless the Executive is absent from work or
otherwise substantially unable to assume his normal duties for a period of
ninety (90) successive days or an aggregate of one hundred twenty (120) days
during any consecutive twelve-month period during the Term.
ERISA means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
Exchange Act means the
Securities Exchange Act of 1934, as in effect on the date of this Agreement.
Fiscal Year means the
fiscal year of the Company.
Good Reason means any of
the following without the Executives express written consent:
(1) a material reduction in the Executives base compensation
or failure to include the Executive with other similarly situated employees in
any incentive, bonus, or benefit plans as may be offered by the Company from
time to time;
(2) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(3) a material reduction in the authority, duties, or
responsibilities of the supervisor to whom the Executive is required to report;
(4) a material reduction in the budget over which the
Executive retains authority or responsibility;
(5) a change in the primary location at which the Executive is
required perform the duties of his employment to a location that is more than
thirty (30) miles from the location at which his office is located on the
Change in Control Date; or
(6) the Companys material breach of this Agreement.
Monthly Base Salary means
Annual Base Salary, divided by twelve (12).
Parachute Payment has the meaning give to such term
in Code Section 280G(b)(2).
15
Parachute Payment Limit means three (3) times
the base amount, as defined by Code Section 280G(b)(3).
Potential Change in Control
means that:
(1) the Company has entered into an agreement with any person
or persons, the consummation of which would constitute or result in a Change in
Control; or
(2) any person has publicly announced its intention to take or
consider taking actions that, if consummated, would constitute or result in a
Change in Control; or
(3) any person has begun a solicitation (as defined in Rule 14a-1
of the Securities Exchange Act) of proxies or consents that has the purpose of
effecting or would (if successful) result in a Change in Control; or
(4) any person has initiated a tender offer or exchange offer
that would, if consummated, result in a Change in Control; or
(5) the Board has adopted a resolution to the effect that any
person has begun actions that, if consummated, would result a Change in
Control.
Potential Change Period
means the period beginning on the first day of a Potential Change in Control
and ending on the adoption by the Board of a resolution to the effect that the
agreement, announced intention or actions, solicitation, tender offer, exchange
offer, or other actions constituting a Potential Change in Control has been
consummated.
Related Employer means the
Company and any other employer that is required to be aggregated with the
Company pursuant to Code Section 414(b), (c), or (m).
Release means a Release of
All Claims, in substantially the same form as set out in Exhibit A hereto.
Term means the term of
this Agreement, as determined pursuant to Section 2.
Terminates Employment, Terminate(s) the
Executives Employment, Termination of Employment, or any other variation of
such term means a separation from service within the meaning of Code Section 409A(a)(2)(A).
Termination Date means the
effective date of the Executives Termination of Employment.
Unacceptable Performance means any of the following:
(1) the Executives act or failure to act constituting willful
misconduct or gross negligence that is materially injurious to the Company or
its reputation;
(2) the
Executives material failure to perform the duties of his employment (except in
the case of a Termination of Employment for Good Reason or Adequate Reason or
on account of the Executives physical or mental inability to perform such
16
duties)
and the failure to correct such failure within a reasonable period after
receiving written notice from the Board of Directors describing such failure in
detail; provided, however, that the quality of the Executives performance
(determined by achievement of Company or personal targets or otherwise) shall
not be a factor in determining whether Executive has performed his duties.
(3) the
Executives violation of any code of ethics or business conduct or written
harassment policies of the Company that continues after the Board has provided
notice to the Executive that the continuation of such conduct will result in
Termination of the Executives Employment;
(4) willful material violation of the Confidentiality and
Non-Competition Agreement;
(5) the
Executives arrest or indictment for (i) a felony or (ii) lesser
criminal offense involving dishonesty, breach of trust, or moral turpitude; or
(6) the
Executives breach of a material term, condition, or covenant of this Agreement
and the failure to correct such breach promptly following receipt of written
notice from the Board of Directors describing such breach in detail.
17
EXHIBIT I
RELEASE OF ALL CLAIMS
This Release of All
Claims (Release) has been signed by
(Executive) on the date indicated below.
Background
A. The Executive and Cantel Medical
Corp. (Company) previously entered into an Executive Severance Agreement,
dated as of January 1, 2010 (Agreement), which provides for the payment
of benefits to the Executive under certain circumstances following his
Termination of Employment.
B. The Executives Employment with the
Company Terminated/will Terminate on
,
under circumstances that entitle him to payments under the Agreement, subject
to the terms thereof.
C. The Companys obligations under the
Agreement are contingent on the Executive signing and providing this Release to
the Company within 21 days after receiving it and allowing this Release to
become effective as provided herein.
D. As a condition of receiving benefits
under the Agreement, the Executive wishes to sign this Release.
In
consideration of the premises and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Executive agrees as
follows:
Release
1. If the Executive (i) signs and
dates this Release and submits it to the Company not later than 21 days after
it is provided to the Executive, (ii) complies with the other requirements
of this Release and the Agreement, and (iii) and does not provide written
revocation of this Agreement to the Company within the seven-day revocation
period referred to in Paragraph 8, the Company shall make the payments and pay
the benefits required by the Agreement.
2. In consideration of the Companys payment obligations
under this Agreement, the Executive releases and discharges the Company, all of
its past and/or present divisions, affiliates, officers, directors,
shareholders, partners, trustees, employees, agents, representatives,
administrators, attorneys, insurers, fiduciaries, successors, and assigns, in
their individual and/or representative capacities (hereinafter collectively
referred to as Released Persons), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims, and demands of any kind whatsoever (Claims)
that the Executive and/or his heirs, executors, administrators, successors, and
assigns ever had, now have, or may have against any Released Person by reason
of his employment and/or cessation of employment with the Company or a Related
Employer, or otherwise involving facts that occurred on or before the date on
which the Executive signed this Release, other than (i) a Claim that the
Company has failed to pay the Executive a payment described in or contemplated
by the
18
Agreement or has
otherwise breached the terms of the Agreement, or (ii) a Claim that the
Company has failed to pay the Executive any vested benefits to which he is
entitled under a plan or program of the Company or a Related Employer
(collectively, Excluded Claims).
Claims, other than Excluded Claims, are hereafter referred to a Released
Claims. The Executive gives this
Release regardless of whether the Released Claims are known or unknown. Such Released Claims include, without
limitation, any and all Claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Civil Rights Act of 1871,
the Civil Rights Act of 1991, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1993, and any and all other federal, state
or local laws, statutes, rules, and regulations pertaining to employment, as
well as any and all claims under state contract or tort law including, but not
limited, to those based on allegations of wrongful discharge, breach of
contract, promissory estoppel, defamation, and infliction of emotional
distress.
3. The Executive hereby covenants not to sue or commence or
maintain any action or proceeding against any Released Person, none of whom
admit any liability, as to any Released Claim.
The Executive hereby agrees that if he hereafter institutes or maintains
an action against any Released Person with respect to a Released Claim, and it
is determined in such action that a claim or claims brought by the Executive in
such action is barred by this Release, he will pay the Released Person for all
costs and expenses, including attorneys fees, incurred in defending against
such claims. The Executive understands
that this Release is final and binding, except as expressly provided
herein. Nothing herein shall (i) prevent
the Executive from filing a charge or complaint, including a challenge to the
validity of this Agreement, with the Equal Employment Opportunity Commission (EEOC),
(ii) prevent the Executive from participating in any investigation or
proceeding conducted by the EEOC, or (iii) establish a condition precedent
or other barrier to exercising the aforesaid rights. While the Executive has a right to
participate in any such investigation, he understands that he is waiving his
right to any monetary recovery arising from any investigation or pursuit of a
claim on his behalf. The Executive acknowledges
that he has the right to file a charge alleging a violation of the ADEA with
any administrative agency and/or to challenge the validity of the waiver and
release of any claim that he may have under the ADEA without either (i) repaying
the Company the amounts paid to him as a result of this Release or (ii) paying
the Company any other monetary amounts (such as attorneys fees and damages).
4. The Executive agrees that if this
Release is ever held to be invalid or unenforceable (in whole or in part) as to
any particular type of claim or as to any particular circumstance, it shall
remain fully valid and enforceable as to all other claims and circumstances.
5. Except as permitted by paragraph 3,
the Executive represents that he has not filed, and will not hereafter file,
any lawsuit against any Released Person relating to his employment and/or
cessation of employment with the Company or any Related Employer, or otherwise
involving facts that occurred on or before the date on which he signed this Release,
other than with respect to any Excluded Claim.
The Executive further understands and agrees that, other than as
provided under paragraph 3, if he commences, continues, joins in, or in any
other manner attempts to assert any lawsuit released herein against a Released
Person with regard to a Released Claim, or otherwise violates the terms of this
Release, he shall be required to return all severance payments paid to him by
the Company pursuant to the Executive Severance Agreement (together
19
with
interest thereon), and he agrees to reimburse the Released Person for all
attorneys fees and expenses incurred by it in defending against such a
lawsuit, provided that the right to receive such payments is without prejudice
to the Released Persons other rights hereunder.
6. The Executive understands and
agrees that the Companys payments to him and the signing of this Release do
not in any way indicate that he has any viable Claims against the a Released
Person or that any Released Person admits any liability to him whatsoever.
7. The Executive has read this Release
carefully, has been given at least 21 days to consider all of its terms, has
been advised to consult with an attorney and any other advisors of his choice,
and fully understands that by signing below he is giving up any right that he
may have to sue or bring any Claims (other than the Excluded Claims) against a
Released Person. The Executive has not
been forced or pressured in any manner whatsoever to sign this Release, and he
agrees to all of its terms voluntarily.
8. The Executive understands that he
has seven days from the date on which he signed this Release below to revoke
this Release by notifying the Company of his revocation, that this Release will
not become effective until the eighth day following the date on which he has
signed this Release, and that if he revokes this Release within such period,
the Executive Severance Agreement shall be void.
9. The Executive understands and
agrees that this Release will be governed by the internal laws of the State of
New Jersey, without regard to conflict of law principles, to the extent not
preempted by federal law.
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Exhibit 10.2
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (Agreement) is
entered into, effective as of January 1, 2010, by and between Seth R.
Segel (Executive) and Cantel Medical Corp. (Company).
Background
A.
The Company considers the establishment and
maintenance of a sound and vital management to be essential to protecting and
enhancing the best interests of the Company and its shareholders. The Company believes that, to attract and retain
experienced and valuable key executive employees, it is important and prudent
to provide such executives with fair compensation should their employment be
terminated under certain circumstances, including but not limited to change in
control situations.
B.
The Company wishes to encourage the Executive to
devote his full time and attention to the performance of his management
responsibilities and to assist the Board of Directors and other management
employees in evaluating business options and pursuing the best interests of the
Companys shareholders without being influenced by the uncertainty of his own
employment situation.
In consideration of the
premises, the Executives employment by the Company on an at-will basis, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Executive and the Company agree as follows:
Agreement
1.
Defined
Terms.
Throughout this Agreement,
when the first letter of a word (or the first letter of each word in a phrase)
is capitalized, the word or phrase shall have the meaning specified in Appendix
A (beginning on page 13)
2.
Term.
This initial term of this
Agreement shall commence as of January 1, 2010, and shall continue through
July 31, 2011; provided, however, that beginning on August 1, 2010,
and on the first day of each following August, the term of this Agreement shall
automatically be extended by one year, unless either the Company or the
Executive shall have provided notice to the other at least six (6) months
before such date that the term shall not be extended. Notwithstanding the preceding provisions of
this Section, (i) if a Change in Control occurs during the term of this
Agreement, such term (other than with respect to the provisions of Section 4)
shall not end before the second anniversary of the Change in Control; provided,
however, this sentence shall apply only to the first Change of Control while
this Agreement is in effect; and (ii) termination of this Agreement shall
not affect the obligations of the Company hereunder on account of the Executives
Termination of Employment during the Term.
3.
Termination
of Employment; Resignation of Officer and Director Positions
. The Executive is an at-will employee. The Company may Terminate the Executives
Employment at any time, for any reason whatsoever or for no reason, subject to
its payment obligations under this Section and, if applicable, Section 4
or 5. The Executive may voluntarily
Terminate his Employment at any time by providing at least twenty (20) days
prior notice to the
Company. Regardless of whether
the Executives Termination of Employment is voluntary or involuntary, the
Executive shall resign from any and all of his director positions and offices
with the Company and each Related Employer, effective as of his Termination
Date. Upon Termination of Employment,
the Executive shall be entitled to the following, in addition to any benefits
payable under Section 4 or 5:
(a)
Any earned but unpaid base
salary through his Termination Date, plus any accrued and unused paid time off
(PTO) due to the Executive under the Companys PTO program through his
Termination Date, which amounts shall be paid to the Executive not later than
the payment date for the payroll period next following his Termination Date.
(b)
Provided that the Executive
applies for reimbursement in accordance with the Companys established
reimbursement procedures (within the period required by such procedures but
under no circumstances later than ninety (90) days after his Termination Date),
the Company shall pay the Executive any reimbursements to which he is entitled
under such procedures not later than the payment date for the payroll period
next following the date on which the Executive applies for reimbursement.
(c)
Any benefits (other than
severance) payable to the Executive under any of the Companys cash or equity
incentive compensation plans and employee benefit plans or programs
(collectively, Benefit Plans), to the extent not provided for herein, shall
be payable in accordance with the provisions of those plans or programs. To the
extent that the terms herein conflict with the terms of the Benefit Plans, the
terms herein shall be deemed to supersede those of the Benefit Plans.
4.
Non-Change
of Control Severance and Other Benefits
.
(a)
Subject to (i) the
Executives timely filing of a duly executed Release in accordance with Section 18,
(ii) such Release becoming effective and irrevocable in accordance with
its terms not later than sixty (60) days after the Executives Termination of
Employment, (iii) the provisions of this Section 4, and (iv) the
limitations provided in Section 9, the Company shall provide the Executive
with the payments and benefits set forth in this Section, if at any time during
the Term other than during a Change in Control Coverage Period either (i) the
Company Terminates the Executives Employment (other than a termination for
Cause, Unacceptable Performance, Disability, or death pursuant to Section 7),
or (ii) the Executive voluntarily Terminates his Employment for Adequate
Reason pursuant to Section 8.
Notwithstanding the preceding provisions of this Subsection, the
Executive shall not be entitled to benefits pursuant to this Section 4, if
he is entitled to benefits pursuant to Section 5.
(b)
As soon as administratively
feasible (and not more than ten (10) days) after the Companys receipt of
the duly executed Release, and the Release becoming effective and irrevocable,
the Company shall pay to the Executive a single lump sum payment equal to the
product of (i) the Executives Monthly Base Salary Rate as of his
Termination Date multiplied by (ii) 12.
For purposes of determining the Executives Monthly Base Salary Rate
pursuant to the preceding sentence, any reduction to the Executives salary
during the six-month period preceding his Termination of Employment shall be
disregarded.
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(c)
If the Termination Date of
an Executive occurs subsequent to the last day of a Fiscal Year for which the
Executive has not been paid his Bonus, then the Executive shall be entitled to
his full Bonus for such Fiscal Year to the extent otherwise earned under the
terms of the Bonus Plan for such Fiscal Year (as if the Executives employment
had not been Terminated). Such amount shall be paid to the Executive not later
than seventy five (75) days following the close of such Fiscal Year. Amounts payable under this Subparagraph (c) will
be deemed payments attributable to Executives employment prior to or on the
Termination Date and not as severance.
(d)
The Company shall pay to the
Executive a pro-rata Bonus for the Fiscal Year in which the Termination Date
occurs, determined by multiplying (i) the amount of the Executives full
Bonus for such Fiscal Year to the extent otherwise earned under the terms of
the Bonus Plan for such Fiscal Year as in effect immediately prior to the
Termination Date by (ii) a fraction, (A) the numerator of which is
the number of full or partial months since the end of the prior Fiscal Year in
which the Executive has been employed by the Company, and (B) the
denominator of which is 12. Such amount
shall be paid to the Executive not later than seventy five (75) days following
the close of such Fiscal Year.
Notwithstanding the forgoing, if no Bonus Plan has been finalized (i.e.,
approved by the Compensation Committee and disseminated to the Executive) for
such Fiscal Year either prior to the commencement of such Fiscal Year or within
three months following the commencement of such Fiscal Year, then the Bonus for
such Fiscal Year payable under this Subparagraph (d) will be determined in
accordance with the first sentence of Section 5(b)(2) (as if the pro
rata Bonus payment under that Section was required). Amounts payable under
this Subparagraph (d) will be deemed payments attributable to Executives
employment prior to or on the Termination Date and not as severance.
(e)
In
the
event such termination occurs
prior to the full vesting of
stock
options
and restricted stock held by the participant (i.e., the options becoming exercisable
in their entirety and the restricted stock ceasing to have any risks of
forfeiture), then, effective as of the Termination Date, the vesting of the
annual installment
of such options and restricted stock that would be
due to vest on the first vesting date following the Termination Date shall
accelerate on a pro rata basis based on the number of days elapsed from the
prior vesting date of such options and restricted stock to and including the
Termination Date
.
(f)
If the Executive is eligible
for and properly elects Continuation Coverage for himself and/or one or more
qualified beneficiaries (as defined in ERISA Section 607(3)) under the
Companys medical plan, the Company shall pay the premiums for such coverage
(or reimburse the Participant for such premiums) for the twelve (12) month
period following the Executives Termination of Employment (or such shorter
period during which such person is eligible for Continuation Coverage). Such payments or reimbursements shall
constitute taxable income of the Executive to the extent required by law.
(g)
The Company shall pay the
cost of outplacement services incurred by the Executive during the twelve (12)
month period following his Termination of Employment and provided by a firm of
the Executives choice, up to a total of Twenty Thousand Dollars
($20,000). Payment for outplacement
expenses shall be made by the Company promptly following the Companys receipt
of appropriate invoices documenting such expenses.
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(h)
Notwithstanding the
preceding provisions or any other provisions herein to the contrary, if the
Executives Employment is Terminated during a Change in Control Coverage
Period, either by the Executive for Adequate Reason or Good Reason or by the
Company for any reason other than for Cause or death, then the Executive shall
be entitled to the payments and benefits that would have been provided to him
pursuant to Section 5 if the Company had Terminated his Employment without
Cause during a Change in Control Coverage Period (reduced by any payments or
benefits provided to him pursuant to this Section 4). In such a case, the Executive shall not be
required to execute an additional Release, and any Release requirement
specified in Section 5 shall be deemed satisfied on the Change in Control
Date.
(i)
Notwithstanding the
preceding provisions of this Section, if the Executive is a specified employee
within the meaning of Code Section 409A(a)(2)(B)(i) the Company shall
promptly deliver written notice to the Executive advising him of the
application of such Code Section and, to the extent required by such Code
Section, payments otherwise required by this Section shall be delayed to
the earliest date on which such payments are permitted. Interest shall accrue on unpaid amounts
delayed under this subparagraph at the prime rate from time to time in effect
at the JP Morgan Chase Bank of New York or any successor bank commencing from
the date that such amounts would otherwise have been due under the applicable provision.
5.
Change of
Control Severance and Other Benefits.
(a)
Subject to (i) the
Executives timely filing of a duly executed Release in accordance with Section 18,
(ii) such Release becoming effective and irrevocable in accordance with
its terms not later than sixty (60) days after the Executives Termination of
Employment, (iii) the provisions of this Section 5, and (iv) the
limitations provided in Section 9, the Company shall provide the Executive
with the payments and benefits set forth in this Section, if during a Change in
Control Coverage Period, (A) the Company Terminates the Executives
Employment (other than a termination for Cause or death pursuant to Section 7),
or (B) the Executive voluntarily Terminates his Employment for Adequate
Reason or Good Reason pursuant to Section 8. Amounts payable pursuant to this Section shall
be subject to the limitations and reimbursement expressly provided in this
Agreement.
(b)
As soon as administratively
feasible (and not more than five (5) business days) after the Companys
receipt of the duly executed Release, and the Release becoming effective and
irrevocable in accordance with its terms, the Company shall pay to the
Executive a single lump sum payment in an amount equal to the sum of the
following:
(1)
the product of (i) two (2) times
(ii) the sum of (A) the Executives Annual Base Salary, at the
greater of the rate in effect on the Change in Control Date or the Termination
Date (disregarding any reduction in the rate of the Executives salary during
the six-month period immediately preceding his Termination of Employment), plus
(B) the greater of (I) 50% of the amount determined under clause (A) or
(II) the average of the annual Bonuses paid to the Executive for the two
Fiscal Years preceding the year in which the Executives Employment is
Terminated. Amounts payable under this
Subparagraph (b)(1) will deemed severance.
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(2)
a pro-rata Bonus amount,
determined by multiplying (i) the greater of (A) 50% of the amount
determined under clause (A) of the preceding Subparagraph (b)(1) or (B) the
average of the annual Bonuses paid to the Executive for the two years Fiscal
Years preceding the year in which the Executives Employment is Terminated, by (ii) a
fraction, (A) the numerator of which is the number of full or partial
months since the end of the prior Fiscal Year in which the Executive has been
employed by the Company, and (B) the denominator of which is 12. However, if the Executive did not receive his
annual Bonus under a Bonus Plan for such prior Fiscal Year, then the numerator
shall be the number of full or partial months since the beginning of the prior
Fiscal Year in which the Executive has been employed by the Company. Amounts
payable under this Subparagraph (b)(2) will be deemed payments
attributable to Executives employment prior to or on the Termination Date and
not as severance.
(c)
If the Executive is eligible
for and properly elects Continuation Coverage for himself and/or one or more
qualified beneficiaries (as defined in ERISA Section 607(3)) under the
Companys medical plan, the Company shall pay the premiums for such coverage
(or reimburse the Participant for such premiums) for the twenty-four (24) month
period following the Executives Termination of Employment (or such shorter
period during which such person is eligible for Continuation Coverage). Such payments or reimbursements shall
constitute taxable income of the Participant to the extent required by law.
(d)
For the twenty-four (24)
month period following the Executives Termination of Employment, the Company
shall continue to provide term life insurance coverage substantially the same
as that provided for the Executive immediately before his Termination Date (if
any).
(e)
The Company shall pay the
cost of outplacement services incurred by the Executive during the twelve (12)
month period following his Termination of Employment and provided by a firm of
the Executives choice, up to a total of Twenty Thousand Dollars
($20,000). Payment for outplacement
expenses shall be paid directly by the Company promptly following the Companys
receipt of appropriate invoices documenting such expenses.
(f)
To the extent that coverage
or benefits under Subsection (c), (d), or (e) result in taxable income to
the Executive, the Company shall reimburse the Executive for any taxes payable
on account of such coverage, so that the Executive is in the same after-tax
position in which he would have been had such reimbursements not been taxable. The Company shall pay the reimbursement
required by the preceding sentence as soon as administratively practicable
after the Executive demonstrates payment of the related taxes and not later
than the last day of the calendar year following the calendar year in which
such taxes are paid.
(g)
Notwithstanding the
preceding provisions of this Section, if the Executive is a specified employee
within the meaning of Code Section 409A(a)(2)(B)(i), the Company shall
promptly deliver written notice to the Executive advising him of the
application of such Code Section and to the extent required by such Code
Section, payments otherwise required by this Section shall be delayed to
the earliest date on which such payments are permitted. Interest shall accrue
on unpaid amounts delayed under this subparagraph at the prime rate from time
to
5
time in effect at the JP Morgan Chase Bank of New York or any successor
bank commencing from the date that such amounts would otherwise have been due
under the applicable provision.
6.
Provisions
Relating to Parachute Payments.
If payments and
benefits to or for the benefit of the Executive, whether pursuant to this
Agreement or otherwise, would result in total Parachute Payments to the Executive
with a value equal to or greater than one hundred percent (100%) of the
Parachute Payment Limit, the Executive may, in his sole discretion, elect to
reduce the amount payable pursuant to Section 5(b) so that the value
of all Parachute Payments to the Executive, whether or not made pursuant to
this Agreement, is equal to the Parachute Payment Limit minus One Dollar
($1.00).
7.
Termination
of Employment by the Company for Cause, Unacceptable Performance, Disability,
or Death.
(a)
The Company may cause a
Termination of the Executives Employment for Disability at any time. To do so, the Board must provide the
Executive with a notice of termination specifying the Termination Date and the
circumstances constituting Disability.
(b)
Company may cause a Termination
of the Executives Employment for Unacceptable Performance at any time during
the Term other than during a Change in Control Coverage Period. To do so, the
Board must provide the Executive with a notice of termination specifying the
Termination Date and the specific act(s) or failure(s) constituting
Unacceptable Performance. If the Boards
notice identifies an act or failure constituting Unacceptable Performance, it
shall be accompanied by a resolution duly adopted by not less than two-thirds
(2/3) of the entire membership of the Board and, if the act of failure is subject to correction under the definition
of Unacceptable Performance and related definitions in this Agreement, the
notice shall also specify the period during which the act or failure must be
corrected, which in no event shall be less than thirty (30) days. If the Board reasonably determines that the
Executive has not corrected the act or failure in all material respects within
the required correction period, the Board must then provide a second notice of
termination stating the reasons for the termination and the Termination Date,
and the Executives Employment shall terminate on such date.
(c)
The Company may cause a
Termination of the Executives Employment for Cause at any time. To do so, the Board must provide the Executive
with a notice of termination specifying the Termination Date and the specific
act(s) or failure(s) constituting Cause. If the Boards notice identifies an act or
failure constituting Cause, it shall be accompanied by a resolution duly
adopted by not less than three-quarters (¾) of the entire membership of the
Board (after reasonable notice to the Executive and an opportunity for the
Executive, together with legal counsel, to be heard by the Board), finding, in
the reasonable opinion of the Board, that one or more of the events of Cause
has occurred and specifying the details thereof. If the act or failure constituting Cause is
subject to correction under the definition of Cause and related definitions in
this Agreement, the notice shall also specify the period during which the act
or failure must be corrected, which in no event shall be less than thirty (30)
days. If the Board acting in good faith
determines that the Executive has not corrected the act or failure in all
material respects within the required correction period, the Board must then
provide a
6
second notice of termination stating the reasons for the termination
and the Termination Date, and the Executives Employment shall terminate on
such date.
(d)
If the Executive dies before
Termination of Employment, his Employment shall terminate automatically on the
date of his death.
(e)
In the case of a Termination
of Employment for Cause or Unacceptable Performance pursuant to this Section,
the Executive shall not be entitled to benefits or payments pursuant to Section 4
or 5; provided, however, if the Company causes a Termination of the Executives
Employment for Unacceptable Performance and the Termination Date of such
termination occurs during a Change in Control Coverage Period, then such
termination shall be deemed a Termination of the Executives Employment other
than a termination for Cause under Section 5(a) and thereby obligate
the Company to provide the Executive with the payments and benefits set forth
in Section 5.
(f)
In the case of a Termination
of Employment due to Disability or death pursuant to this Section, the Company
shall continue to pay to the Executive, if living, or other person or persons
as the Executive may from time to time designate in writing as the beneficiary
of such payments, the Base Salary in effect at the time which such Disability
or death occurred, during the three-month period following such Disability or
death. Except for such Base Salary, the
Company shall have no further obligation pursuant to this Section.
8.
Resignation
by Executive for Adequate Reason or Good Reason.
If an event of Adequate Reason or Good Reason
occurs during the Term, the Executive may, at any time within the ninety (90)
day period following such event, provide the Company with a notice of
termination specifying the event of Adequate Reason or Good Reason and
notifying the Company of his intention to Terminate Employment upon the Companys
failure to correct the event of Adequate Reason or Good Reason within thirty
(30) days following receipt of the Executives notice of termination. If the Company fails to correct the event of
Adequate Reason or Good Reason and provide the Executive with notice of such
correction within such thirty (30) day period, the Executives Employment shall
terminate as of the end of such period, and the Executive shall be entitled to
benefits as provided in Section 3 and Section 4 or 5, as applicable.
9.
Limitation
on Payments and Benefits.
Notwithstanding
any other provision of this Agreement, payments pursuant to this Agreement
shall be subject to the following limitations:
(a)
No payment (other than a
payment pursuant to Section 3) shall be made pursuant to this Agreement
until the Release has become effective according to its terms.
(b)
If the Executive
intentionally and materially breaches any provision of the Confidentiality and
Non-Competition Agreement, and fails to cure such breach (if curable) within
thirty (30) days, he shall promptly repay to the Company any and all severance
amounts previously paid to him pursuant to Section 4 and/or 5, and he
shall have no further rights pursuant to this Agreement.
(c)
Payments hereunder shall be
limited to the extent provided in Section 6.
7
10.
No
Obligation to Mitigate.
The Executive
shall not be required to mitigate the amount of any payment or benefits
provided for under Section 4 or 5 by seeking other employment or
otherwise, and the amount of any payment or benefits provided for under Section 4
or 5 shall not be reduced by any payments or benefits received by the Executive
as the result of employment by another employer after the Termination Date, or
otherwise; provided, however, that the amount payable under Section 4 or 5
shall be reduced by the amount of any severance, termination, or notice pay (or
any other similar amounts) required by law to be paid to the Executive by the
Company or its subsidiaries and by any salary or other amounts paid to the
Executive during any notice period that the Company or its subsidiaries is
required by law to provide.
11.
Withholding
and Taxes.
The Company may
withhold from any payment made hereunder (i) any taxes that the Company
reasonably determines are required to be withheld under federal, state, or
local tax laws or regulations, and (ii) any other amounts that the Company
is authorized to withhold. Except for
employment taxes that are the obligation of the Company, the Executive shall
pay all federal, state, local, and other taxes (including, without limitation,
interest, fines, and penalties) imposed on him under applicable law by virtue
of or relating to the payments and/or benefits contemplated by this Agreement,
subject to any reimbursement provisions of this Agreement.
12.
Indemnification.
The Executive shall continue
to be entitled to any rights to insurance and indemnification under the Companys
or a Related Employers directors and officers liability insurance (D&O
Insurance), Certificate of Incorporation, and Bylaws, as in effect before the
earlier of the Executives Termination of Employment or a Change in Control (or
rights to insurance and indemnification that are substantially the same
thereto), with respect to any claims relating to the period before his
Termination Date. Additionally, any and
all D&O Insurance policies obtained by the Company or a Related Employer
following the Termination Date that are claims made polices shall cover the
Executive to the same extent as other former officers of the Company.
13.
Default in
Payment.
Any payment not made within
ten (10) days after it is due in accordance with this Agreement shall
thereafter bear interest, compounded quarterly, at 5% above the prime rate from
time to time in effect at the JP Morgan Chase Bank of New York or any successor
bank.
14.
Effect on
Other Plans, Agreements, and Benefits.
Except to the
extent expressly set forth herein, any benefit or compensation to which the
Executive is entitled under any agreement between the Executive and the Company
or any of its subsidiaries or under any plan maintained by the Company or any
of its subsidiaries in which the Executive participates or participated shall
not be modified or lessened in any way, but shall be payable according to the
terms of the applicable plan or agreement. The terms of this Agreement shall
supersede and terminate any prior change in control and/or severance agreement,
and the provisions of any other agreement providing benefits following a change
in control or termination of employment, entered into between the Executive and
the Company or any subsidiary thereof.
Notwithstanding the above, any severance benefits received by the
Executive pursuant to this Agreement shall be in lieu of any severance benefits
to which the Executive would otherwise be entitled under any general severance
policy maintained by the Company or the relevant subsidiary for its
8
management personnel or under any employment contract between the
Executive and the Company or any subsidiary thereof. Any and all employment agreements between the
Company and the Executive, inclusive of provisions that in accordance with the
terms of such agreements survive termination, are hereby terminated and void.
15.
Unsecured
Obligation.
All rights of
the Executive or any beneficiary of the Executive who succeeds to the Executives
rights to payments or benefits under this Agreement shall at all times be
entirely unfunded and no provision shall at any time be made with respect to
segregating any assets of the Company or payment of any amounts due
hereunder. Neither the Executive nor any
such beneficiary shall have any interest in or rights against any specific
assets of the Company or any of its subsidiaries, and the Executive and any
such beneficiary shall have only the rights of a general unsecured creditor of
the Company.
16.
Prohibition
Against Assignment.
The Executive
may not assign, pledge, anticipate, or transfer any benefit or amount payable
hereunder (other than benefits payable upon or following his death), and any
attempt to assign, pledge, anticipate, or transfer such and benefit or amount
hereunder, whether voluntary or involuntary, shall be null and void.
17.
Successors.
(a)
The Company shall require
any successor (whether direct or indirect, by purchase, merger, consolidation,
or otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive, 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 it if no such
succession had taken place. Failure of
the Company to obtain such agreement before the effectiveness of any such
succession shall be a material breach of this Agreement. As used in this Agreement, Company shall
mean the Company as hereinbefore defined, and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided
for in this Subsection or otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b)
This Agreement shall inure
to the benefit of and be enforceable by the Executives personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executives devisee,
legatee, or other designee or, if there be no such designee, to the Executives
estate.
18.
Release.
In consideration of the
Companys promises and covenants and the performance thereof, the Executive
agrees that the Companys payment obligations under Sections 4 and 5 shall be
conditioned on the Executives release of the Company and all other persons
named in the Release from any and all causes of causes of action that the
Executive has or may have against the Company or any such person before the
effective date of the Release, other than a cause based on a breach
hereof. The Release shall be
substantially in the form attached hereto as Exhibit I. For the Release to be effective, the
Executive (or his representative or agent) must have provided a signed version
of the Release to the Company and such Release
9
shall have become effective and irrevocable by its terms within sixty
(60) days after the Executives Termination of Employment.
19.
Disputes.
(a)
In any judicial or other
proceedings in which the Executives right to, or the amount of, benefits
hereunder is disputed, the ultimate burden of proof shall be on the Company.
(b)
Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Little Falls, New Jersey by three arbitrators, one of whom
shall be appointed by the Company, one of whom shall be appointed by the
Executive, and the third of whom shall be appointed by the first two
arbitrators. If either the Company or
the Executive fails to appoint an arbitrator within 20 days of a request in
writing by the other to do so, or if the first two arbitrators cannot agree on
the appointment of a third arbitrator within 20 days after the second
arbitrator is designated, then such arbitrator shall be appointed by the Chief
Judge of the United States District Court located in the city of Newark, New
Jersey, or upon his failure to act, by the American Arbitration Association so
as to enable the arbitrators to render an award within 90 days after the three
arbitrators have been appointed.
Following the selection of arbitrators as set forth above, the
arbitration shall be conducted promptly and expeditiously and in accordance
with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement.
(c)
The Company shall pay all
reasonable out-of-pocket expenses, including reasonable legal fees and legal
expenses, incurred by the Executive in connection with any judicial or other
proceeding, including any arbitration proceeding, to enforce this Agreement or
to construe, determine, or defend the validity of this Agreement. The Company shall pay (or reimburse the
Executive) for any such expense as soon as administratively practicable after
the Executive demonstrates evidence that such expense have been incurred and
not later than thirty (30) days following the Executives submission of such
expenses to the Company with a request for reimbursement.
20.
Miscellaneous
Provisions.
(a)
Entire
Agreement.
This Agreement contains the entire agreement and understanding of the
parties regarding the transactions contemplated herein and supersedes all prior
agreements, arrangements, or understandings, whether written or oral, relating
to the subject matter hereof, including, without limitation, any letters,
agreements, or understandings between the Executive and the Company or any
subsidiary thereof before the date hereof.
By entering into this Severance Agreement, the Executive waives any
right that he may otherwise have to participate in any generally applicable
severance plan of the Company or any Related Employer.
(b)
Amendment.
No provision of this
Agreement may be amended or waived, except by written agreement signed by both
the Company and the Executive.
10
(c)
Governing
Law.
This Agreement is intended
to comply with the requirements of Code Section 409A, and it shall be
construed in accordance with such intent.
Subject to the preceding sentence, this Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of New Jersey
without regard to principles of conflict of laws.
(d)
Headings
.
The headings in this Agreement have been
inserted solely for ease of reference and shall not be considered in the
interpretation or enforcement of this Agreement.
(e)
Severability.
If any provision of the
Agreement is held to be invalid, illegal, or unenforceable, the remainder of
this Agreement shall not be affected thereby.
If any provision of this Agreement is held by a court of competent
jurisdiction to conflict with any federal, state, or local law, such provision
is hereby declared to be of such force and effect as is permissible in such
jurisdiction.
(f)
Rights and
Waivers.
All rights
and remedies of the parties hereto are separate and cumulative, and no one of
them, whether exercised or not, shall be deemed to exclude, limit, or prejudice
any other right or remedy that either of the parties hereto may have. No party to this Agreement shall be deemed to
waive any right or remedy under this Agreement, unless such waiver is in
writing and signed by such party. No
delay or omission on the part of either party in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or
remedy. A waiver on any one occasion
shall not be construed as a bar to or a waiver of any right or remedy on any
future occasion.
(g)
Notices.
All notices hereunder shall
be in writing. A notice by the Company
shall be deemed to have been given only when delivered in person to the
Executive or mailed by first class United States Mail, Return Receipt
Requested, or sent by overnight delivery (or the fastest delivery available, if
overnight delivery is not available) by means of an internationally recognized
delivery service, to the Executive at his most recent address on the records of
the Company. A notice by the Executive
to the Company shall be deemed to have been given only when delivered in person
to the Companys General Counsel or mailed by first class United States Mail,
Return Receipt Requested, or sent by overnight delivery (or the fastest
delivery available, if overnight delivery is not available) by means of an
internationally recognized delivery service, to the Companys General Counsel
at the Companys headquarters.
(h)
Counterparts.
This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which together will constitute one and the same
instrument, and may be delivered by facsimile or pdf.
21.
No Reliance
. The Executive represents and acknowledges
that in executing this Agreement, the Executive does not rely and has not
relied upon any representation or statement by the Company or its agents, other
than statements contained in this Agreement.
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CANTEL MEDICAL CORP.
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By:
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Seth R. Segel
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Date:
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Date:
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12
APPENDIX A
DEFINED TERMS
For purposes of this
Agreement, the following terms shall have the meanings specified below:
Adequate Reason means any of the following without
the express written consent of the Executive:
(1)
a material reduction in the
Executives authority, duties, or responsibilities or the assignment to Executive
of duties of a substantial nature and on a continuous or regular basis that are
materially inconsistent with, the duties of the Executive;
(2)
a reduction in the Executives base compensation or
failure to include the Executive with other similarly situated employees in any
incentive, bonus, or benefit plans as may be offered by the Company from time
to time;
(3)
a change in the primary location at which the
Executive is required perform the duties of his employment to a location that
is more than thirty (30) miles from the location at which his office is located
on the effective date of this Agreement; or
(4)
the Companys material breach of this Agreement.
Annual Base Salary means
the annual base cash compensation payable to the Executive at the rate in
effect as of the applicable date (excluding bonuses, incentive compensation,
taxable fringe benefits, and any other type of special pay), before any
reduction on account of salary reduction contributions pursuant to Code Section 125
or 401(k) or pursuant to a nonqualified deferred compensation plan.
Board means the Companys
Board of Directors.
Bonus means an annual
cash bonus payable under any Bonus Plan.
Bonus Plan means any
bonus plan, short term incentive compensation plan or other like benefit plan
in which the Executive participates, whether or not awards thereunder are
discretionary.
Cause
means the Executives:
(1)
act of fraud, embezzlement,
theft, or other intentional material violation of the law in connection with or
in the course of his employment,
(2)
willful gross misconduct
that is likely to materially injure the reputation, business, or a business
relationship of the Company; or
(3)
willful material violation
of the Confidentiality and Non-Competition Agreement.
For purposes of the definition of Cause,
the following shall apply:
13
·
no act, or failure to act,
on the part of the Executive shall be deemed willful, if it was done or
omitted by the Executive in good faith or with a reasonable belief that the act
or omission was not opposed to the best interests of the Company; and
·
the Executives employment
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard by the Board), finding that in the Boards
good faith opinion, the Executive was guilty of conduct constituting Cause and
describing the specific acts or omissions constituting such conduct.
Change
in Control means the first to occur of the following during the Term:
(1)
any one person, or more than
one person acting as a group (as determined by Treas. Reg.
§ 1.409A-3(i)(5)(B)), acquires ownership of stock of the Company that,
together with stock held by such person or group, constitutes more than 50% of
the total fair market value or total voting power of the stock of the Company;
or
(2)
a majority of the members of
the Companys board of directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Companys board of directors before the date of the appointment
or election.
Notwithstanding the preceding provisions, a Change of
Control will be deemed to occur only to the extent that the event or events
described above constitute a change in the ownership or effective control of
the corporation, or in the ownership of a substantial portion of the assets of
the corporation within the meaning of Code Section 409A(a)(2)(A)(v) and
the regulations thereunder.
Change in Control Date
means the effective date of an event constituting a Change in Control.
Change in Control Period
means the period beginning on the date of a Change in Control and ending two
years thereafter.
Change in Control
Coverage Period means the period (A) commencing on the earlier to occur
of (i) the first day of a Potential Change Period or (ii) the first
day of the six (6) month period ending on the Change in Control Date and (B) ending
on the last day of a Change in Control Period.
Code means the Internal
Revenue Code of 1986, as amended from time to time.
Company means Cantel
Medical Corp. and any successor, to the extent provided in Section 17.
14
Continuation Coverage
means continuation coverage within the meaning of ERISA Sections 601 through 607.
Confidentiality and
Non-Competition Agreement means the confidentiality and non-competition
agreement between the Company and the Executive, as in effect from time to
time.
Disability means an
illness or injury that qualifies the Executive for disability benefits under a
long-term disability plan of the Company or a Related Employer in which the
Executive is a participant; provided, however, that a Disability shall not be
deemed to have occurred hereunder unless the Executive is absent from work or
otherwise substantially unable to assume his normal duties for a period of
ninety (90) successive days or an aggregate of one hundred twenty (120) days
during any consecutive twelve-month period during the Term.
ERISA means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
Exchange Act means the
Securities Exchange Act of 1934, as in effect on the date of this Agreement.
Fiscal Year means the
fiscal year of the Company.
Good Reason means any of
the following without the Executives express written consent:
(1)
a material reduction in the
Executives base compensation or failure to include the Executive with other
similarly situated employees in any incentive, bonus, or benefit plans as may
be offered by the Company from time to time;
(2)
a material reduction in the
Executives authority, duties, or responsibilities or the assignment to
Executive of duties of a substantial nature and on a continuous or regular
basis that are materially inconsistent with, the duties of the Executive;
(3)
a material reduction in the
authority, duties, or responsibilities of the supervisor to whom the Executive
is required to report;
(4)
a material reduction in the
budget over which the Executive retains authority or responsibility;
(5)
a change in the primary
location at which the Executive is required perform the duties of his
employment to a location that is more than thirty (30) miles from the location
at which his office is located on the Change in Control Date; or
(6)
the Companys material
breach of this Agreement.
Monthly Base Salary means
Annual Base Salary, divided by twelve (12).
Parachute Payment has the meaning give to such term
in Code Section 280G(b)(2).
15
Parachute Payment Limit means three (3) times
the base amount, as defined by Code Section 280G(b)(3).
Potential Change in Control
means that:
(1)
the Company has entered into
an agreement with any person or persons, the consummation of which would constitute
or result in a Change in Control; or
(2)
any person has publicly
announced its intention to take or consider taking actions that, if
consummated, would constitute or result in a Change in Control; or
(3)
any person has begun a
solicitation (as defined in Rule 14a-1 of the Securities Exchange Act) of
proxies or consents that has the purpose of effecting or would (if successful)
result in a Change in Control; or
(4)
any person has initiated a
tender offer or exchange offer that would, if consummated, result in a Change
in Control; or
(5)
the Board has adopted a
resolution to the effect that any person has begun actions that, if
consummated, would result a Change in Control.
Potential Change Period
means the period beginning on the first day of a Potential Change in Control
and ending on the adoption by the Board of a resolution to the effect that the
agreement, announced intention or actions, solicitation, tender offer, exchange
offer, or other actions constituting a Potential Change in Control has been
consummated.
Related Employer means the
Company and any other employer that is required to be aggregated with the
Company pursuant to Code Section 414(b), (c), or (m).
Release means a Release of
All Claims, in substantially the same form as set out in Exhibit A hereto.
Term means the term of
this Agreement, as determined pursuant to Section 2.
Terminates Employment, Terminate(s) the
Executives Employment, Termination of Employment, or any other variation of
such term means a separation from service within the meaning of Code Section 409A(a)(2)(A).
Termination Date means the
effective date of the Executives Termination of Employment.
Unacceptable Performance means any of the following:
(1)
the Executives act or
failure to act constituting willful misconduct or gross negligence that is
materially injurious to the Company or its reputation;
(2)
the Executives material failure to perform the
duties of his employment (except in the case of a Termination of Employment for
Good Reason or Adequate Reason or on account of the Executives physical or
mental inability to perform such
16
duties) and the failure to correct such failure within a reasonable
period after receiving written notice from the Board of Directors describing
such failure in detail; provided, however, that the quality of the Executives
performance (determined by achievement of Company or personal targets or
otherwise) shall not be a factor in determining whether Executive has performed
his duties.
(3)
the Executives violation of any code of ethics or
business conduct or written harassment policies of the Company that continues
after the Board has provided notice to the Executive that the continuation of
such conduct will result in Termination of the Executives Employment;
(4)
willful material violation
of the Confidentiality and Non-Competition Agreement;
(5)
the Executives arrest or indictment for (i) a
felony or (ii) lesser criminal offense involving dishonesty, breach of
trust, or moral turpitude; or
(6)
the Executives breach of a material term,
condition, or covenant of this Agreement and the failure to correct such breach
promptly following receipt of written notice from the Board of Directors
describing such breach in detail.
17
EXHIBIT I
RELEASE OF ALL CLAIMS
This Release of All
Claims (Release) has been signed by
(Executive) on the date indicated below.
Background
A.
The Executive
and Cantel Medical Corp. (Company) previously entered into an Executive
Severance Agreement, dated as of January 1, 2010 (Agreement), which
provides for the payment of benefits to the Executive under certain
circumstances following his Termination of Employment.
B.
The Executives
Employment with the Company Terminated/will Terminate on
,
under circumstances that entitle him to payments under the Agreement, subject
to the terms thereof.
C.
The Companys
obligations under the Agreement are contingent on the Executive signing and
providing this Release to the Company within 21 days after receiving it and
allowing this Release to become effective as provided herein.
D.
As a condition
of receiving benefits under the Agreement, the Executive wishes to sign this
Release.
In
consideration of the premises and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Executive agrees as
follows:
Release
1.
If the
Executive (i) signs and dates this Release and submits it to the Company
not later than 21 days after it is provided to the Executive, (ii) complies
with the other requirements of this Release and the Agreement, and (iii) and
does not provide written revocation of this Agreement to the Company within the
seven-day revocation period referred to in Paragraph 8, the Company shall make
the payments and pay the benefits required by the Agreement.
2.
In consideration of the Companys payment obligations
under this Agreement, the Executive releases and discharges the Company, all of
its past and/or present divisions, affiliates, officers, directors,
shareholders, partners, trustees, employees, agents, representatives,
administrators, attorneys, insurers, fiduciaries, successors, and assigns, in
their individual and/or representative capacities (hereinafter collectively
referred to as Released Persons), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims, and demands of any kind whatsoever (Claims)
that the Executive and/or his heirs, executors, administrators, successors, and
assigns ever had, now have, or may have against any Released Person by reason
of his employment and/or cessation of employment with the Company or a Related
Employer, or otherwise involving facts that occurred on or before the date on
which the Executive signed this Release, other than (i) a Claim that the
Company has failed to pay the Executive a payment described in or contemplated
by the
18
Agreement or has otherwise breached the terms of the Agreement, or (ii) a
Claim that the Company has failed to pay the Executive any vested benefits to
which he is entitled under a plan or program of the Company or a Related
Employer (collectively, Excluded Claims).
Claims, other than Excluded Claims, are hereafter referred to a Released
Claims. The Executive gives this
Release regardless of whether the Released Claims are known or unknown. Such Released Claims include, without
limitation, any and all Claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Civil Rights Act of 1871,
the Civil Rights Act of 1991, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1993, and any and all other federal, state
or local laws, statutes, rules, and regulations pertaining to employment, as
well as any and all claims under state contract or tort law including, but not
limited, to those based on allegations of wrongful discharge, breach of
contract, promissory estoppel, defamation, and infliction of emotional
distress.
3.
The Executive hereby covenants not to sue or commence
or maintain any action or proceeding against any Released Person, none of whom
admit any liability, as to any Released Claim.
The Executive hereby agrees that if he hereafter institutes or maintains
an action against any Released Person with respect to a Released Claim, and it
is determined in such action that a claim or claims brought by the Executive in
such action is barred by this Release, he will pay the Released Person for all
costs and expenses, including attorneys fees, incurred in defending against
such claims. The Executive understands
that this Release is final and binding, except as expressly provided
herein. Nothing herein shall (i) prevent
the Executive from filing a charge or complaint, including a challenge to the
validity of this Agreement, with the Equal Employment Opportunity Commission (EEOC),
(ii) prevent the Executive from participating in any investigation or
proceeding conducted by the EEOC, or (iii) establish a condition precedent
or other barrier to exercising the aforesaid rights. While the Executive has a right to
participate in any such investigation, he understands that he is waiving his
right to any monetary recovery arising from any investigation or pursuit of a
claim on his behalf. The Executive acknowledges
that he has the right to file a charge alleging a violation of the ADEA with
any administrative agency and/or to challenge the validity of the waiver and
release of any claim that he may have under the ADEA without either (i) repaying
the Company the amounts paid to him as a result of this Release or (ii) paying
the Company any other monetary amounts (such as attorneys fees and damages).
4.
The Executive
agrees that if this Release is ever held to be invalid or unenforceable (in
whole or in part) as to any particular type of claim or as to any particular
circumstance, it shall remain fully valid and enforceable as to all other
claims and circumstances.
5.
Except as
permitted by paragraph 3, the Executive represents that he has not filed, and
will not hereafter file, any lawsuit against any Released Person relating to
his employment and/or cessation of employment with the Company or any Related
Employer, or otherwise involving facts that occurred on or before the date on
which he signed this Release, other than with respect to any Excluded
Claim. The Executive further understands
and agrees that, other than as provided under paragraph 3, if he commences,
continues, joins in, or in any other manner attempts to assert any lawsuit
released herein against a Released Person with regard to a Released Claim, or
otherwise violates the terms of this Release, he shall be required to return
all severance payments paid to him by the Company pursuant to the Executive
Severance Agreement (together
19
with interest thereon), and he agrees to reimburse the Released Person
for all attorneys fees and expenses incurred by it in defending against such a
lawsuit, provided that the right to receive such payments is without prejudice
to the Released Persons other rights hereunder.
6.
The Executive
understands and agrees that the Companys payments to him and the signing of
this Release do not in any way indicate that he has any viable Claims against
the a Released Person or that any Released Person admits any liability to him
whatsoever.
7.
The Executive
has read this Release carefully, has been given at least 21 days to consider
all of its terms, has been advised to consult with an attorney and any other
advisors of his choice, and fully understands that by signing below he is
giving up any right that he may have to sue or bring any Claims (other than the
Excluded Claims) against a Released Person.
The Executive has not been forced or pressured in any manner whatsoever
to sign this Release, and he agrees to all of its terms voluntarily.
8.
The Executive
understands that he has seven days from the date on which he signed this
Release below to revoke this Release by notifying the Company of his
revocation, that this Release will not become effective until the eighth day
following the date on which he has signed this Release, and that if he revokes
this Release within such period, the Executive Severance Agreement shall be
void.
9.
The Executive
understands and agrees that this Release will be governed by the internal laws
of the State of New Jersey, without regard to conflict of law principles, to
the extent not preempted by federal law.
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(Printed Name)
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20
Exhibit 10.3
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (Agreement) is
entered into, effective as of January 1, 2010, by and between Craig A.
Sheldon (Executive) and Cantel Medical Corp. (Company).
Background
A. The Company considers the establishment and maintenance
of a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its shareholders. The Company believes that, to attract and
retain experienced and valuable key executive employees, it is important and
prudent to provide such executives with fair compensation should their
employment be terminated under certain circumstances, including but not limited
to change in control situations.
B. The Company wishes to encourage the Executive to devote
his full time and attention to the performance of his management
responsibilities and to assist the Board of Directors and other management
employees in evaluating business options and pursuing the best interests of the
Companys shareholders without being influenced by the uncertainty of his own
employment situation.
In consideration of the
premises, the Executives employment by the Company on an at-will basis, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Executive and the Company agree as follows:
Agreement
1.
Defined
Terms.
Throughout this
Agreement, when the first letter of a word (or the first letter of each word in
a phrase) is capitalized, the word or phrase shall have the meaning specified
in Appendix A (beginning on page 13)
2.
Term.
This initial term of this
Agreement shall commence as of January 1, 2010, and shall continue through
July 31, 2011; provided, however, that beginning on August 1, 2010,
and on the first day of each following August, the term of this Agreement shall
automatically be extended by one year, unless either the Company or the
Executive shall have provided notice to the other at least six (6) months
before such date that the term shall not be extended. Notwithstanding the preceding provisions of
this Section, (i) if a Change in Control occurs during the term of this
Agreement, such term (other than with respect to the provisions of Section 4)
shall not end before the second anniversary of the Change in Control; provided,
however, this sentence shall apply only to the first Change of Control while
this Agreement is in effect; and (ii) termination of this Agreement shall
not affect the obligations of the Company hereunder on account of the Executives
Termination of Employment during the Term.
3.
Termination of
Employment; Resignation of Officer and Director Positions
. The Executive is an at-will employee. The Company may Terminate the Executives
Employment at any time, for any reason whatsoever or for no reason, subject to
its payment obligations under this Section and, if applicable, Section 4
or 5. The Executive may voluntarily
Terminate his Employment at any time by providing at least twenty (20) days
prior notice to the
Company.
Regardless of whether the Executives Termination of Employment is
voluntary or involuntary, the Executive shall resign from any and all of his
director positions and offices with the Company and each Related Employer,
effective as of his Termination Date.
Upon Termination of Employment, the Executive shall be entitled to the
following, in addition to any benefits payable under Section 4 or 5:
(a) Any earned but unpaid base salary through his Termination
Date, plus any accrued and unused paid time off (PTO) due to the Executive
under the Companys PTO program through his Termination Date, which amounts
shall be paid to the Executive not later than the payment date for the payroll
period next following his Termination Date.
(b) Provided that the Executive applies for reimbursement in
accordance with the Companys established reimbursement procedures (within the
period required by such procedures but under no circumstances later than ninety
(90) days after his Termination Date), the Company shall pay the Executive any
reimbursements to which he is entitled under such procedures not later than the
payment date for the payroll period next following the date on which the
Executive applies for reimbursement.
(c) Any benefits (other than severance) payable to the
Executive under any of the Companys cash or equity incentive compensation
plans and employee benefit plans or programs (collectively, Benefit Plans),
to the extent not provided for herein, shall be payable in accordance with the
provisions of those plans or programs. To the extent that the terms herein
conflict with the terms of the Benefit Plans, the terms herein shall be deemed
to supersede those of the Benefit Plans.
4.
Non-Change of Control
Severance and Other Benefits
.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 4, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if at any time during the Term other than during a
Change in Control Coverage Period either (i) the Company Terminates the
Executives Employment (other than a termination for Cause, Unacceptable
Performance, Disability, or death pursuant to Section 7), or (ii) the
Executive voluntarily Terminates his Employment for Adequate Reason pursuant to
Section 8. Notwithstanding the
preceding provisions of this Subsection, the Executive shall not be entitled to
benefits pursuant to this Section 4, if he is entitled to benefits
pursuant to Section 5.
(b) As soon as administratively feasible (and not more than
ten (10) days) after the Companys receipt of the duly executed Release,
and the Release becoming effective and irrevocable, the Company shall pay to
the Executive a single lump sum payment equal to the product of (i) the
Executives Monthly Base Salary Rate as of his Termination Date multiplied by (ii) 12. For purposes of determining the Executives
Monthly Base Salary Rate pursuant to the preceding sentence, any reduction to
the Executives salary during the six-month period preceding his Termination of
Employment shall be disregarded.
2
(c) If the Termination Date of an Executive occurs subsequent
to the last day of a Fiscal Year for which the Executive has not been paid his
Bonus, then the Executive shall be entitled to his full Bonus for such Fiscal
Year to the extent otherwise earned under the terms of the Bonus Plan for such
Fiscal Year (as if the Executives employment had not been Terminated). Such
amount shall be paid to the Executive not later than seventy five (75) days
following the close of such Fiscal Year.
Amounts payable under this Subparagraph (c) will be deemed payments
attributable to Executives employment prior to or on the Termination Date and
not as severance.
(d) The Company shall pay to the
Executive a pro-rata Bonus for the Fiscal Year in which the Termination Date
occurs, determined by multiplying (i) the amount of the Executives full
Bonus for such Fiscal Year to the extent otherwise earned under the terms of
the Bonus Plan for such Fiscal Year as in effect immediately prior to the
Termination Date by (ii) a fraction, (A) the numerator of which is
the number of full or partial months since the end of the prior Fiscal Year in
which the Executive has been employed by the Company, and (B) the
denominator of which is 12. Such amount
shall be paid to the Executive not later than seventy five (75) days following
the close of such Fiscal Year.
Notwithstanding the forgoing, if no Bonus Plan has been finalized (i.e.,
approved by the Compensation Committee and disseminated to the Executive) for
such Fiscal Year either prior to the commencement of such Fiscal Year or within
three months following the commencement of such Fiscal Year, then the Bonus for
such Fiscal Year payable under this Subparagraph (d) will be determined in
accordance with the first sentence of Section 5(b)(2) (as if the pro
rata Bonus payment under that Section was required). Amounts payable under
this Subparagraph (d) will be deemed payments attributable to Executives
employment prior to or on the Termination Date and not as severance.
(e)
In
the
event such termination occurs
prior to the full vesting of
stock
options
and restricted stock held by the participant (i.e., the options becoming exercisable
in their entirety and the restricted stock ceasing to have any risks of
forfeiture), then, effective as of the Termination Date, the vesting of the
annual installment
of such options and restricted stock that would be
due to vest on the first vesting date following the Termination Date shall
accelerate on a pro rata basis based on the number of days elapsed from the
prior vesting date of such options and restricted stock to and including the
Termination Date
.
(f) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twelve (12) month period following the Executives
Termination of Employment (or such shorter period during which such person is
eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Executive to the extent required by law.
(g) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
made by the Company promptly following the Companys receipt of appropriate
invoices documenting such expenses.
3
(h) Notwithstanding the preceding provisions or any other
provisions herein to the contrary, if the Executives Employment is Terminated
during a Change in Control Coverage Period, either by the Executive for
Adequate Reason or Good Reason or by the Company for any reason other than for
Cause or death, then the Executive shall be entitled to the payments and
benefits that would have been provided to him pursuant to Section 5 if the
Company had Terminated his Employment without Cause during a Change in Control
Coverage Period (reduced by any payments or benefits provided to him pursuant
to this Section 4). In such a case,
the Executive shall not be required to execute an additional Release, and any
Release requirement specified in Section 5 shall be deemed satisfied on
the Change in Control Date.
(i) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i) the
Company shall promptly deliver written notice to the Executive advising him of
the application of such Code Section and, to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall accrue on unpaid amounts
delayed under this subparagraph at the prime rate from time to time in effect
at the JP Morgan Chase Bank of New York or any successor bank commencing from
the date that such amounts would otherwise have been due under the applicable
provision.
5.
Change of Control
Severance and Other Benefits.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 5, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if during a Change in Control Coverage Period, (A) the
Company Terminates the Executives Employment (other than a termination for
Cause or death pursuant to Section 7), or (B) the Executive
voluntarily Terminates his Employment for Adequate Reason or Good Reason
pursuant to Section 8. Amounts
payable pursuant to this Section shall be subject to the limitations and
reimbursement expressly provided in this Agreement.
(b) As soon as administratively feasible (and not more than
five (5) business days) after the Companys receipt of the duly executed
Release, and the Release becoming effective and irrevocable in accordance with
its terms, the Company shall pay to the Executive a single lump sum payment in
an amount equal to the sum of the following:
(1) the product of (i) two (2) times (ii) the
sum of (A) the Executives Annual Base Salary, at the greater of the rate
in effect on the Change in Control Date or the Termination Date (disregarding
any reduction in the rate of the Executives salary during the six-month period
immediately preceding his Termination of Employment), plus (B) the greater
of (I) 45% of the amount determined under clause (A) or (II) the
average of the annual Bonuses paid to the Executive for the two Fiscal Years
preceding the year in which the Executives Employment is Terminated. Amounts payable under this Subparagraph (b)(1) will
deemed severance.
4
(2) a pro-rata Bonus amount, determined by multiplying (i) the
greater of (A) 45% of the amount determined under clause (A) of the
preceding Subparagraph (b)(1) or (B) the average of the annual
Bonuses paid to the Executive for the two years Fiscal Years preceding the year
in which the Executives Employment is Terminated, by (ii) a fraction, (A) the
numerator of which is the number of full or partial months since the end of the
prior Fiscal Year in which the Executive has been employed by the Company, and (B) the
denominator of which is 12. However, if
the Executive did not receive his annual Bonus under a Bonus Plan for such
prior Fiscal Year, then the numerator shall be the number of full or partial
months since the beginning of the prior Fiscal Year in which the Executive has
been employed by the Company. Amounts payable under this Subparagraph (b)(2) will
be deemed payments attributable to Executives employment prior to or on the
Termination Date and not as severance.
(c) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twenty-four (24) month period following the
Executives Termination of Employment (or such shorter period during which such
person is eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Participant to the extent required by law.
(d) For the twenty-four (24) month period following the
Executives Termination of Employment, the Company shall continue to provide
term life insurance coverage substantially the same as that provided for the
Executive immediately before his Termination Date (if any).
(e) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
paid directly by the Company promptly following the Companys receipt of
appropriate invoices documenting such expenses.
(f) To the extent that coverage or benefits under Subsection
(c), (d), or (e) result in taxable income to the Executive, the Company
shall reimburse the Executive for any taxes payable on account of such
coverage, so that the Executive is in the same after-tax position in which he
would have been had such reimbursements not been taxable. The Company shall pay the reimbursement
required by the preceding sentence as soon as administratively practicable
after the Executive demonstrates payment of the related taxes and not later
than the last day of the calendar year following the calendar year in which
such taxes are paid.
(g) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i),
the Company shall promptly deliver written notice to the Executive advising him
of the application of such Code Section and to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall
accrue on unpaid amounts delayed under this subparagraph at the prime rate from
time to
5
time in effect at the JP Morgan Chase Bank of New
York or any successor bank commencing from the date that such amounts would
otherwise have been due under the applicable provision.
6.
Provisions Relating to
Parachute Payments.
If
payments and benefits to or for the benefit of the Executive, whether pursuant
to this Agreement or otherwise, would result in total Parachute Payments to the
Executive with a value equal to or greater than one hundred percent (100%) of
the Parachute Payment Limit, the Executive may, in his sole discretion, elect
to reduce the amount payable pursuant to Section 5(b) so that the
value of all Parachute Payments to the Executive, whether or not made pursuant
to this Agreement, is equal to the Parachute Payment Limit minus One Dollar
($1.00).
7.
Termination of
Employment by the Company for Cause, Unacceptable Performance, Disability, or
Death.
(a) The Company may cause a Termination of the Executives
Employment for Disability at any time.
To do so, the Board must provide the Executive with a notice of
termination specifying the Termination Date and the circumstances constituting
Disability.
(b) Company may cause a Termination of the Executives
Employment for Unacceptable Performance at any time during the Term other than
during a Change in Control Coverage Period. To do so, the Board must provide
the Executive with a notice of termination specifying the Termination Date and
the specific act(s) or failure(s) constituting Unacceptable
Performance. If the Boards notice
identifies an act or failure constituting Unacceptable Performance, it shall be
accompanied by a resolution duly adopted by not less than two-thirds (2/3) of
the entire membership of the Board and, if the act of failure is subject to correction under the definition
of Unacceptable Performance and related definitions in this Agreement, the
notice shall also specify the period during which the act or failure must be
corrected, which in no event shall be less than thirty (30) days. If the Board reasonably determines that the
Executive has not corrected the act or failure in all material respects within
the required correction period, the Board must then provide a second notice of
termination stating the reasons for the termination and the Termination Date,
and the Executives Employment shall terminate on such date.
(c) The Company may cause a Termination of the Executives
Employment for Cause at any time. To do
so, the Board must provide the Executive with a notice of termination
specifying the Termination Date and the specific act(s) or failure(s) constituting
Cause. If the Boards notice identifies
an act or failure constituting Cause, it shall be accompanied by a resolution
duly adopted by not less than three-quarters (¾) of the entire membership of
the Board (after reasonable notice to the Executive and an opportunity for the
Executive, together with legal counsel, to be heard by the Board), finding, in
the reasonable opinion of the Board, that one or more of the events of Cause
has occurred and specifying the details thereof. If the act or failure constituting Cause is
subject to correction under the definition of Cause and related definitions in
this Agreement, the notice shall also specify the period during which the act
or failure must be corrected, which in no event shall be less than thirty (30)
days. If the Board acting in good faith
determines that the Executive has not corrected the act or failure in all
material respects within the required correction period, the Board must then
provide a
6
second notice of termination stating the reasons for
the termination and the Termination Date, and the Executives Employment shall
terminate on such date.
(d) If the Executive dies before Termination of Employment,
his Employment shall terminate automatically on the date of his death.
(e) In the case of a Termination of Employment for Cause or
Unacceptable Performance pursuant to this Section, the Executive shall not be
entitled to benefits or payments pursuant to Section 4 or 5; provided,
however, if the Company causes a Termination of the Executives Employment for
Unacceptable Performance and the Termination Date of such termination occurs
during a Change in Control Coverage Period, then such termination shall be
deemed a Termination of the Executives Employment other than a termination
for Cause under Section 5(a) and thereby obligate the Company to
provide the Executive with the payments and benefits set forth in Section 5.
(f) In the case of a Termination of
Employment due to Disability or death pursuant to this Section, the Company
shall continue to pay to the Executive, if living, or other person or persons
as the Executive may from time to time designate in writing as the beneficiary
of such payments, the Base Salary in effect at the time which such Disability
or death occurred, during the three-month period following such Disability or
death. Except for such Base Salary, the
Company shall have no further obligation pursuant to this Section.
8.
Resignation by
Executive for Adequate Reason or Good Reason.
If an event of Adequate Reason or Good Reason
occurs during the Term, the Executive may, at any time within the ninety (90)
day period following such event, provide the Company with a notice of
termination specifying the event of Adequate Reason or Good Reason and
notifying the Company of his intention to Terminate Employment upon the Companys
failure to correct the event of Adequate Reason or Good Reason within thirty
(30) days following receipt of the Executives notice of termination. If the Company fails to correct the event of
Adequate Reason or Good Reason and provide the Executive with notice of such
correction within such thirty (30) day period, the Executives Employment shall
terminate as of the end of such period, and the Executive shall be entitled to
benefits as provided in Section 3 and Section 4 or 5, as applicable.
9.
Limitation
on Payments and Benefits.
Notwithstanding
any other provision of this Agreement, payments pursuant to this Agreement
shall be subject to the following limitations:
(a) No payment (other than a payment
pursuant to Section 3) shall be made pursuant to this Agreement until the
Release has become effective according to its terms.
(b) If the Executive intentionally and
materially breaches any provision of the Confidentiality and Non-Competition
Agreement, and fails to cure such breach (if curable) within thirty (30) days,
he shall promptly repay to the Company any and all severance amounts previously
paid to him pursuant to Section 4 and/or 5, and he shall have no further
rights pursuant to this Agreement.
(c) Payments hereunder shall be limited
to the extent provided in Section 6.
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10.
No
Obligation to Mitigate.
The
Executive shall not be required to mitigate the amount of any payment or
benefits provided for under Section 4 or 5 by seeking other employment or
otherwise, and the amount of any payment or benefits provided for under Section 4
or 5 shall not be reduced by any payments or benefits received by the Executive
as the result of employment by another employer after the Termination Date, or
otherwise; provided, however, that the amount payable under Section 4 or 5
shall be reduced by the amount of any severance, termination, or notice pay (or
any other similar amounts) required by law to be paid to the Executive by the
Company or its subsidiaries and by any salary or other amounts paid to the
Executive during any notice period that the Company or its subsidiaries is
required by law to provide.
11.
Withholding and
Taxes.
The Company may
withhold from any payment made hereunder (i) any taxes that the Company
reasonably determines are required to be withheld under federal, state, or
local tax laws or regulations, and (ii) any other amounts that the Company
is authorized to withhold. Except for
employment taxes that are the obligation of the Company, the Executive shall
pay all federal, state, local, and other taxes (including, without limitation,
interest, fines, and penalties) imposed on him under applicable law by virtue
of or relating to the payments and/or benefits contemplated by this Agreement,
subject to any reimbursement provisions of this Agreement.
12.
Indemnification.
The Executive shall continue to be
entitled to any rights to insurance and indemnification under the Companys or
a Related Employers directors and officers liability insurance (D&O
Insurance), Certificate of Incorporation, and Bylaws, as in effect before the
earlier of the Executives Termination of Employment or a Change in Control (or
rights to insurance and indemnification that are substantially the same
thereto), with respect to any claims relating to the period before his
Termination Date. Additionally, any and
all D&O Insurance policies obtained by the Company or a Related Employer
following the Termination Date that are claims made polices shall cover the
Executive to the same extent as other former officers of the Company.
13.
Default
in Payment.
Any payment not
made within ten (10) days after it is due in accordance with this
Agreement shall thereafter bear interest, compounded quarterly, at 5% above the
prime rate from time to time in effect at the JP Morgan Chase Bank of New York
or any successor bank.
14.
Effect
on Other Plans, Agreements, and Benefits.
Except to the extent expressly set forth herein, any benefit
or compensation to which the Executive is entitled under any agreement between
the Executive and the Company or any of its subsidiaries or under any plan
maintained by the Company or any of its subsidiaries in which the Executive
participates or participated shall not be modified or lessened in any way, but
shall be payable according to the terms of the applicable plan or agreement.
The terms of this Agreement shall supersede and terminate any prior change in
control and/or severance agreement, and the provisions of any other agreement
providing benefits following a change in control or termination of employment,
entered into between the Executive and the Company or any subsidiary
thereof. Notwithstanding the above, any
severance benefits received by the Executive pursuant to this Agreement shall
be in lieu of any severance benefits to which the Executive would otherwise be
entitled under any general severance policy maintained by the Company or the
relevant subsidiary for its
8
management personnel or under
any employment contract between the Executive and the Company or any subsidiary
thereof. Any and all employment
agreements between the Company and the Executive, inclusive of provisions that
in accordance with the terms of such agreements survive termination, are hereby
terminated and void.
15.
Unsecured
Obligation.
All rights of the
Executive or any beneficiary of the Executive who succeeds to the Executives
rights to payments or benefits under this Agreement shall at all times be
entirely unfunded and no provision shall at any time be made with respect to
segregating any assets of the Company or payment of any amounts due
hereunder. Neither the Executive nor any
such beneficiary shall have any interest in or rights against any specific
assets of the Company or any of its subsidiaries, and the Executive and any
such beneficiary shall have only the rights of a general unsecured creditor of
the Company.
16.
Prohibition
Against Assignment.
The
Executive may not assign, pledge, anticipate, or transfer any benefit or amount
payable hereunder (other than benefits payable upon or following his death),
and any attempt to assign, pledge, anticipate, or transfer such and benefit or
amount hereunder, whether voluntary or involuntary, shall be null and void.
17.
Successors.
(a) The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive, 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 it if no such
succession had taken place. Failure of
the Company to obtain such agreement before the effectiveness of any such
succession shall be a material breach of this Agreement. As used in this Agreement, Company shall
mean the Company as hereinbefore defined, and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided
for in this Subsection or otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executives devisee,
legatee, or other designee or, if there be no such designee, to the Executives
estate.
18.
Release.
In consideration of the Companys
promises and covenants and the performance thereof, the Executive agrees that
the Companys payment obligations under Sections 4 and 5 shall be conditioned
on the Executives release of the Company and all other persons named in the
Release from any and all causes of causes of action that the Executive has or
may have against the Company or any such person before the effective date of
the Release, other than a cause based on a breach hereof. The Release shall be substantially in the
form attached hereto as Exhibit I.
For the Release to be effective, the Executive (or his representative or
agent) must have provided a signed version of the Release to the Company and
such Release
9
shall have become effective and irrevocable by its
terms within sixty (60) days after the Executives Termination of Employment.
19.
Disputes.
(a) In any judicial or other proceedings
in which the Executives right to, or the amount of, benefits hereunder is
disputed, the ultimate burden of proof shall be on the Company.
(b) Any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Little Falls, New Jersey by three arbitrators, one of whom shall
be appointed by the Company, one of whom shall be appointed by the Executive,
and the third of whom shall be appointed by the first two arbitrators. If either the Company or the Executive fails
to appoint an arbitrator within 20 days of a request in writing by the other to
do so, or if the first two arbitrators cannot agree on the appointment of a
third arbitrator within 20 days after the second arbitrator is designated, then
such arbitrator shall be appointed by the Chief Judge of the United States
District Court located in the city of Newark, New Jersey, or upon his failure
to act, by the American Arbitration Association so as to enable the arbitrators
to render an award within 90 days after the three arbitrators have been
appointed. Following the selection of
arbitrators as set forth above, the arbitration shall be conducted promptly and
expeditiously and in accordance with the rules of the American Arbitration
Association. Judgment may be entered on
the arbitrators award in any court having jurisdiction; provided, however,
that the Executive shall be entitled to seek specific performance of his right
to be paid during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
(c) The Company shall pay all reasonable
out-of-pocket expenses, including reasonable legal fees and legal expenses,
incurred by the Executive in connection with any judicial or other proceeding,
including any arbitration proceeding, to enforce this Agreement or to construe,
determine, or defend the validity of this Agreement. The Company shall pay (or reimburse the
Executive) for any such expense as soon as administratively practicable after
the Executive demonstrates evidence that such expense have been incurred and
not later than thirty (30) days following the Executives submission of such
expenses to the Company with a request for reimbursement.
20.
Miscellaneous
Provisions.
(a)
Entire
Agreement.
This Agreement contains the entire
agreement and understanding of the parties regarding the transactions
contemplated herein and supersedes all prior agreements, arrangements, or
understandings, whether written or oral, relating to the subject matter hereof,
including, without limitation, any letters, agreements, or understandings
between the Executive and the Company or any subsidiary thereof before the date
hereof. By entering into this Severance
Agreement, the Executive waives any right that he may otherwise have to
participate in any generally applicable severance plan of the Company or any
Related Employer.
(b)
Amendment.
No
provision of this Agreement may be amended or waived, except by written
agreement signed by both the Company and the Executive.
10
(c)
Governing
Law.
This Agreement is intended to
comply with the requirements of Code Section 409A, and it shall be
construed in accordance with such intent.
Subject to the preceding sentence, this Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of New Jersey
without regard to principles of conflict of laws.
(d)
Headings
.
The headings in this Agreement have been
inserted solely for ease of reference and shall not be considered in the
interpretation or enforcement of this Agreement.
(e)
Severability.
If
any provision of the Agreement is held to be invalid, illegal, or
unenforceable, the remainder of this Agreement shall not be affected
thereby. If any provision of this
Agreement is held by a court of competent jurisdiction to conflict with any
federal, state, or local law, such provision is hereby declared to be of such
force and effect as is permissible in such jurisdiction.
(f)
Rights
and Waivers.
All rights and
remedies of the parties hereto are separate and cumulative, and no one of them,
whether exercised or not, shall be deemed to exclude, limit, or prejudice any
other right or remedy that either of the parties hereto may have. No party to this Agreement shall be deemed to
waive any right or remedy under this Agreement, unless such waiver is in
writing and signed by such party. No
delay or omission on the part of either party in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or
remedy. A waiver on any one occasion
shall not be construed as a bar to or a waiver of any right or remedy on any
future occasion.
(g)
Notices.
All
notices hereunder shall be in writing. A
notice by the Company shall be deemed to have been given only when delivered in
person to the Executive or mailed by first class United States Mail, Return
Receipt Requested, or sent by overnight delivery (or the fastest delivery
available, if overnight delivery is not available) by means of an
internationally recognized delivery service, to the Executive at his most
recent address on the records of the Company.
A notice by the Executive to the Company shall be deemed to have been
given only when delivered in person to the Companys General Counsel or mailed
by first class United States Mail, Return Receipt Requested, or sent by
overnight delivery (or the fastest delivery available, if overnight delivery is
not available) by means of an internationally recognized delivery service, to
the Companys General Counsel at the Companys headquarters.
(h)
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same instrument, and may be delivered by facsimile or pdf.
21.
No
Reliance
. The Executive
represents and acknowledges that in executing this Agreement, the Executive
does not rely and has not relied upon any representation or statement by the
Company or its agents, other than statements contained in this Agreement.
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CANTEL MEDICAL CORP.
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By:
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Craig A. Sheldon
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Date:
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Date:
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12
APPENDIX A
DEFINED TERMS
For purposes of this
Agreement, the following terms shall have the meanings specified below:
Adequate Reason means any of the following without
the express written consent of the Executive:
(1) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(2) a
reduction in the Executives base compensation or failure to include the
Executive with other similarly situated employees in any incentive, bonus, or
benefit plans as may be offered by the Company from time to time;
(3) a
change in the primary location at which the Executive is required perform the
duties of his employment to a location that is more than thirty (30) miles from
the location at which his office is located on the effective date of this
Agreement; or
(4) the
Companys material breach of this Agreement.
Annual Base Salary means
the annual base cash compensation payable to the Executive at the rate in
effect as of the applicable date (excluding bonuses, incentive compensation,
taxable fringe benefits, and any other type of special pay), before any
reduction on account of salary reduction contributions pursuant to Code Section 125
or 401(k) or pursuant to a nonqualified deferred compensation plan.
Board means the Companys
Board of Directors.
Bonus means an annual
cash bonus payable under any Bonus Plan.
Bonus Plan means any
bonus plan, short term incentive compensation plan or other like benefit plan
in which the Executive participates, whether or not awards thereunder are
discretionary.
Cause
means the Executives:
(1) act of fraud, embezzlement, theft, or other intentional
material violation of the law in connection with or in the course of his
employment,
(2) willful gross misconduct that is likely to materially
injure the reputation, business, or a business relationship of the Company; or
(3) willful material violation of the Confidentiality and
Non-Competition Agreement.
For purposes of the definition of Cause,
the following shall apply:
13
·
no act, or failure to act,
on the part of the Executive shall be deemed willful, if it was done or
omitted by the Executive in good faith or with a reasonable belief that the act
or omission was not opposed to the best interests of the Company; and
·
the Executives employment
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard by the Board), finding that in the Boards
good faith opinion, the Executive was guilty of conduct constituting Cause and
describing the specific acts or omissions constituting such conduct.
Change
in Control means the first to occur of the following during the Term:
(1) any one person, or more than one person acting as a group
(as determined by Treas. Reg. § 1.409A-3(i)(5)(B)), acquires ownership of
stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of the Company; or
(2) a majority of the members of the Companys board of
directors is replaced during any 12-month period by directors whose appointment
or election is not endorsed by a majority of the members of the Companys board
of directors before the date of the appointment or election.
Notwithstanding the preceding provisions, a Change of
Control will be deemed to occur only to the extent that the event or events
described above constitute a change in the ownership or effective control of
the corporation, or in the ownership of a substantial portion of the assets of
the corporation within the meaning of Code Section 409A(a)(2)(A)(v) and
the regulations thereunder.
Change in Control Date
means the effective date of an event constituting a Change in Control.
Change in Control Period
means the period beginning on the date of a Change in Control and ending two
years thereafter.
Change in Control
Coverage Period means the period (A) commencing on the earlier to occur
of (i) the first day of a Potential Change Period or (ii) the first
day of the six (6) month period ending on the Change in Control Date and (B) ending
on the last day of a Change in Control Period.
Code means the Internal
Revenue Code of 1986, as amended from time to time.
Company means Cantel
Medical Corp. and any successor, to the extent provided in Section 17.
14
Continuation Coverage
means continuation coverage within the meaning of ERISA Sections 601 through 607.
Confidentiality and
Non-Competition Agreement means the confidentiality and non-competition
agreement between the Company and the Executive, as in effect from time to
time.
Disability means an
illness or injury that qualifies the Executive for disability benefits under a
long-term disability plan of the Company or a Related Employer in which the
Executive is a participant; provided, however, that a Disability shall not be
deemed to have occurred hereunder unless the Executive is absent from work or
otherwise substantially unable to assume his normal duties for a period of
ninety (90) successive days or an aggregate of one hundred twenty (120) days
during any consecutive twelve-month period during the Term.
ERISA means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
Exchange Act means the
Securities Exchange Act of 1934, as in effect on the date of this Agreement.
Fiscal Year means the
fiscal year of the Company.
Good Reason means any of
the following without the Executives express written consent:
(1) a material reduction in the Executives base compensation
or failure to include the Executive with other similarly situated employees in
any incentive, bonus, or benefit plans as may be offered by the Company from
time to time;
(2) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(3) a material reduction in the authority, duties, or
responsibilities of the supervisor to whom the Executive is required to report;
(4) a material reduction in the budget over which the
Executive retains authority or responsibility;
(5) a change in the primary location at which the Executive is
required perform the duties of his employment to a location that is more than
thirty (30) miles from the location at which his office is located on the
Change in Control Date; or
(6) the Companys material breach of this Agreement.
Monthly Base Salary means
Annual Base Salary, divided by twelve (12).
Parachute Payment has the meaning give to such term
in Code Section 280G(b)(2).
15
Parachute Payment Limit means three (3) times
the base amount, as defined by Code Section 280G(b)(3).
Potential Change in Control
means that:
(1) the Company has entered into an agreement with any person
or persons, the consummation of which would constitute or result in a Change in
Control; or
(2) any person has publicly announced its intention to take or
consider taking actions that, if consummated, would constitute or result in a
Change in Control; or
(3) any person has begun a solicitation (as defined in Rule 14a-1
of the Securities Exchange Act) of proxies or consents that has the purpose of
effecting or would (if successful) result in a Change in Control; or
(4) any person has initiated a tender offer or exchange offer
that would, if consummated, result in a Change in Control; or
(5) the Board has adopted a resolution to the effect that any
person has begun actions that, if consummated, would result a Change in
Control.
Potential Change Period
means the period beginning on the first day of a Potential Change in Control
and ending on the adoption by the Board of a resolution to the effect that the
agreement, announced intention or actions, solicitation, tender offer, exchange
offer, or other actions constituting a Potential Change in Control has been
consummated.
Related Employer means the
Company and any other employer that is required to be aggregated with the
Company pursuant to Code Section 414(b), (c), or (m).
Release means a Release of
All Claims, in substantially the same form as set out in Exhibit A hereto.
Term means the term of
this Agreement, as determined pursuant to Section 2.
Terminates Employment, Terminate(s) the
Executives Employment, Termination of Employment, or any other variation of
such term means a separation from service within the meaning of Code Section 409A(a)(2)(A).
Termination Date means the
effective date of the Executives Termination of Employment.
Unacceptable Performance means any of the following:
(1) the Executives act or failure to act constituting willful
misconduct or gross negligence that is materially injurious to the Company or
its reputation;
(2) the
Executives material failure to perform the duties of his employment (except in
the case of a Termination of Employment for Good Reason or Adequate Reason or
on account of the Executives physical or mental inability to perform such
16
duties) and the failure to correct such failure
within a reasonable period after receiving written notice from the Board of
Directors describing such failure in detail; provided, however, that the
quality of the Executives performance (determined by achievement of Company or
personal targets or otherwise) shall not be a factor in determining whether
Executive has performed his duties.
(3) the
Executives violation of any code of ethics or business conduct or written
harassment policies of the Company that continues after the Board has provided
notice to the Executive that the continuation of such conduct will result in
Termination of the Executives Employment;
(4) willful material violation of the Confidentiality and
Non-Competition Agreement;
(5) the
Executives arrest or indictment for (i) a felony or (ii) lesser
criminal offense involving dishonesty, breach of trust, or moral turpitude; or
(6) the
Executives breach of a material term, condition, or covenant of this Agreement
and the failure to correct such breach promptly following receipt of written
notice from the Board of Directors describing such breach in detail.
17
EXHIBIT I
RELEASE OF ALL CLAIMS
This Release of All
Claims (Release) has been signed by
(Executive) on the date indicated below.
Background
A. The Executive and Cantel Medical
Corp. (Company) previously entered into an Executive Severance Agreement,
dated as of January 1, 2010 (Agreement), which provides for the payment
of benefits to the Executive under certain circumstances following his
Termination of Employment.
B. The Executives Employment with the
Company Terminated/will Terminate on
,
under circumstances that entitle him to payments under the Agreement, subject
to the terms thereof.
C. The Companys obligations under the
Agreement are contingent on the Executive signing and providing this Release to
the Company within 21 days after receiving it and allowing this Release to
become effective as provided herein.
D. As a condition of receiving benefits
under the Agreement, the Executive wishes to sign this Release.
In
consideration of the premises and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Executive agrees as
follows:
Release
1. If the Executive (i) signs and
dates this Release and submits it to the Company not later than 21 days after
it is provided to the Executive, (ii) complies with the other requirements
of this Release and the Agreement, and (iii) and does not provide written
revocation of this Agreement to the Company within the seven-day revocation
period referred to in Paragraph 8, the Company shall make the payments and pay
the benefits required by the Agreement.
2. In consideration of the Companys payment obligations
under this Agreement, the Executive releases and discharges the Company, all of
its past and/or present divisions, affiliates, officers, directors,
shareholders, partners, trustees, employees, agents, representatives,
administrators, attorneys, insurers, fiduciaries, successors, and assigns, in
their individual and/or representative capacities (hereinafter collectively
referred to as Released Persons), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims, and demands of any kind whatsoever (Claims)
that the Executive and/or his heirs, executors, administrators, successors, and
assigns ever had, now have, or may have against any Released Person by reason
of his employment and/or cessation of employment with the Company or a Related
Employer, or otherwise involving facts that occurred on or before the date on
which the Executive signed this Release, other than (i) a Claim that the
Company has failed to pay the Executive a payment described in or contemplated
by the
18
Agreement or has
otherwise breached the terms of the Agreement, or (ii) a Claim that the
Company has failed to pay the Executive any vested benefits to which he is
entitled under a plan or program of the Company or a Related Employer
(collectively, Excluded Claims).
Claims, other than Excluded Claims, are hereafter referred to a Released
Claims. The Executive gives this
Release regardless of whether the Released Claims are known or unknown. Such Released Claims include, without
limitation, any and all Claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Civil Rights Act of 1871,
the Civil Rights Act of 1991, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1993, and any and all other federal, state
or local laws, statutes, rules, and regulations pertaining to employment, as
well as any and all claims under state contract or tort law including, but not
limited, to those based on allegations of wrongful discharge, breach of
contract, promissory estoppel, defamation, and infliction of emotional
distress.
3. The Executive hereby covenants not to sue or commence or
maintain any action or proceeding against any Released Person, none of whom
admit any liability, as to any Released Claim.
The Executive hereby agrees that if he hereafter institutes or maintains
an action against any Released Person with respect to a Released Claim, and it
is determined in such action that a claim or claims brought by the Executive in
such action is barred by this Release, he will pay the Released Person for all
costs and expenses, including attorneys fees, incurred in defending against
such claims. The Executive understands
that this Release is final and binding, except as expressly provided
herein. Nothing herein shall (i) prevent
the Executive from filing a charge or complaint, including a challenge to the
validity of this Agreement, with the Equal Employment Opportunity Commission (EEOC),
(ii) prevent the Executive from participating in any investigation or
proceeding conducted by the EEOC, or (iii) establish a condition precedent
or other barrier to exercising the aforesaid rights. While the Executive has a right to
participate in any such investigation, he understands that he is waiving his
right to any monetary recovery arising from any investigation or pursuit of a claim
on his behalf. The Executive acknowledges
that he has the right to file a charge alleging a violation of the ADEA with
any administrative agency and/or to challenge the validity of the waiver and
release of any claim that he may have under the ADEA without either (i) repaying
the Company the amounts paid to him as a result of this Release or (ii) paying
the Company any other monetary amounts (such as attorneys fees and damages).
4. The Executive agrees that if this
Release is ever held to be invalid or unenforceable (in whole or in part) as to
any particular type of claim or as to any particular circumstance, it shall
remain fully valid and enforceable as to all other claims and circumstances.
5. Except as permitted by paragraph 3,
the Executive represents that he has not filed, and will not hereafter file,
any lawsuit against any Released Person relating to his employment and/or
cessation of employment with the Company or any Related Employer, or otherwise
involving facts that occurred on or before the date on which he signed this
Release, other than with respect to any Excluded Claim. The Executive further understands and agrees
that, other than as provided under paragraph 3, if he commences, continues,
joins in, or in any other manner attempts to assert any lawsuit released herein
against a Released Person with regard to a Released Claim, or otherwise
violates the terms of this Release, he shall be required to return all
severance payments paid to him by the Company pursuant to the Executive
Severance Agreement (together
19
with
interest thereon), and he agrees to reimburse the Released Person for all
attorneys fees and expenses incurred by it in defending against such a
lawsuit, provided that the right to receive such payments is without prejudice
to the Released Persons other rights hereunder.
6. The Executive understands and
agrees that the Companys payments to him and the signing of this Release do
not in any way indicate that he has any viable Claims against the a Released
Person or that any Released Person admits any liability to him whatsoever.
7. The Executive has read this Release
carefully, has been given at least 21 days to consider all of its terms, has
been advised to consult with an attorney and any other advisors of his choice,
and fully understands that by signing below he is giving up any right that he
may have to sue or bring any Claims (other than the Excluded Claims) against a
Released Person. The Executive has not
been forced or pressured in any manner whatsoever to sign this Release, and he
agrees to all of its terms voluntarily.
8. The Executive understands that he
has seven days from the date on which he signed this Release below to revoke
this Release by notifying the Company of his revocation, that this Release will
not become effective until the eighth day following the date on which he has
signed this Release, and that if he revokes this Release within such period,
the Executive Severance Agreement shall be void.
9. The Executive understands and
agrees that this Release will be governed by the internal laws of the State of
New Jersey, without regard to conflict of law principles, to the extent not
preempted by federal law.
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20
Exhibit 10.4
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (Agreement) is
entered into, effective as of January 1, 2010, by and between Eric W.
Nodiff (Executive) and Cantel Medical Corp. (Company).
Background
A. The Company considers the establishment and maintenance
of a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its shareholders. The Company believes that, to attract and
retain experienced and valuable key executive employees, it is important and
prudent to provide such executives with fair compensation should their
employment be terminated under certain circumstances, including but not limited
to change in control situations.
B. The Company wishes to encourage the Executive to devote
his full time and attention to the performance of his management
responsibilities and to assist the Board of Directors and other management
employees in evaluating business options and pursuing the best interests of the
Companys shareholders without being influenced by the uncertainty of his own
employment situation.
In consideration of the
premises, the Executives employment by the Company on an at-will basis, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Executive and the Company agree as follows:
Agreement
1.
Defined
Terms.
Throughout this
Agreement, when the first letter of a word (or the first letter of each word in
a phrase) is capitalized, the word or phrase shall have the meaning specified
in Appendix A (beginning on page 13)
2.
Term.
This initial term of this
Agreement shall commence as of January 1, 2010, and shall continue through
July 31, 2011; provided, however, that beginning on August 1, 2010, and
on the first day of each following August, the term of this Agreement shall
automatically be extended by one year, unless either the Company or the
Executive shall have provided notice to the other at least six (6) months
before such date that the term shall not be extended. Notwithstanding the preceding provisions of
this Section, (i) if a Change in Control occurs during the term of this
Agreement, such term (other than with respect to the provisions of Section 4)
shall not end before the second anniversary of the Change in Control; provided,
however, this sentence shall apply only to the first Change of Control while
this Agreement is in effect; and (ii) termination of this Agreement shall
not affect the obligations of the Company hereunder on account of the Executives
Termination of Employment during the Term.
3.
Termination of
Employment; Resignation of Officer and Director Positions
. The Executive is an at-will employee. The Company may Terminate the Executives
Employment at any time, for any reason whatsoever or for no reason, subject to
its payment obligations under this Section and, if applicable, Section 4
or 5. The Executive may voluntarily
Terminate his Employment at any time by providing at least twenty (20) days
prior notice to the
Company.
Regardless of whether the Executives Termination of Employment is
voluntary or involuntary, the Executive shall resign from any and all of his
director positions and offices with the Company and each Related Employer,
effective as of his Termination Date.
Upon Termination of Employment, the Executive shall be entitled to the
following, in addition to any benefits payable under Section 4 or 5:
(a) Any earned but unpaid base salary through his Termination
Date, plus any accrued and unused paid time off (PTO) due to the Executive
under the Companys PTO program through his Termination Date, which amounts
shall be paid to the Executive not later than the payment date for the payroll
period next following his Termination Date.
(b) Provided that the Executive applies for reimbursement in
accordance with the Companys established reimbursement procedures (within the
period required by such procedures but under no circumstances later than ninety
(90) days after his Termination Date), the Company shall pay the Executive any
reimbursements to which he is entitled under such procedures not later than the
payment date for the payroll period next following the date on which the
Executive applies for reimbursement.
(c) Any benefits (other than severance) payable to the
Executive under any of the Companys cash or equity incentive compensation
plans and employee benefit plans or programs (collectively, Benefit Plans),
to the extent not provided for herein, shall be payable in accordance with the
provisions of those plans or programs. To the extent that the terms herein
conflict with the terms of the Benefit Plans, the terms herein shall be deemed
to supersede those of the Benefit Plans.
4.
Non-Change of Control
Severance and Other Benefits
.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 4, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if at any time during the Term other than during a
Change in Control Coverage Period either (i) the Company Terminates the
Executives Employment (other than a termination for Cause, Unacceptable
Performance, Disability, or death pursuant to Section 7), or (ii) the
Executive voluntarily Terminates his Employment for Adequate Reason pursuant to
Section 8. Notwithstanding the
preceding provisions of this Subsection, the Executive shall not be entitled to
benefits pursuant to this Section 4, if he is entitled to benefits
pursuant to Section 5.
(b) As soon as administratively feasible (and not more than
ten (10) days) after the Companys receipt of the duly executed Release,
and the Release becoming effective and irrevocable, the Company shall pay to
the Executive a single lump sum payment equal to the product of (i) the
Executives Monthly Base Salary Rate as of his Termination Date multiplied by (ii) 12. For purposes of determining the Executives
Monthly Base Salary Rate pursuant to the preceding sentence, any reduction to
the Executives salary during the six-month period preceding his Termination of
Employment shall be disregarded.
2
(c) If the Termination Date of an Executive occurs subsequent
to the last day of a Fiscal Year for which the Executive has not been paid his
Bonus, then the Executive shall be entitled to his full Bonus for such Fiscal
Year to the extent otherwise earned under the terms of the Bonus Plan for such
Fiscal Year (as if the Executives employment had not been Terminated). Such
amount shall be paid to the Executive not later than seventy five (75) days
following the close of such Fiscal Year.
Amounts payable under this Subparagraph (c) will be deemed payments
attributable to Executives employment prior to or on the Termination Date and
not as severance.
(d) The Company shall pay to the
Executive a pro-rata Bonus for the Fiscal Year in which the Termination Date
occurs, determined by multiplying (i) the amount of the Executives full
Bonus for such Fiscal Year to the extent otherwise earned under the terms of
the Bonus Plan for such Fiscal Year as in effect immediately prior to the
Termination Date by (ii) a fraction, (A) the numerator of which is
the number of full or partial months since the end of the prior Fiscal Year in
which the Executive has been employed by the Company, and (B) the
denominator of which is 12. Such amount
shall be paid to the Executive not later than seventy five (75) days following
the close of such Fiscal Year.
Notwithstanding the forgoing, if no Bonus Plan has been finalized (i.e.,
approved by the Compensation Committee and disseminated to the Executive) for
such Fiscal Year either prior to the commencement of such Fiscal Year or within
three months following the commencement of such Fiscal Year, then the Bonus for
such Fiscal Year payable under this Subparagraph (d) will be determined in
accordance with the first sentence of Section 5(b)(2) (as if the pro
rata Bonus payment under that Section was required). Amounts payable under
this Subparagraph (d) will be deemed payments attributable to Executives
employment prior to or on the Termination Date and not as severance.
(e)
In
the
event such termination occurs
prior to the full vesting of
stock
options
and restricted stock held by the participant (i.e., the options becoming exercisable
in their entirety and the restricted stock ceasing to have any risks of
forfeiture), then, effective as of the Termination Date, the vesting of the
annual installment
of such options and restricted stock that would be
due to vest on the first vesting date following the Termination Date shall
accelerate on a pro rata basis based on the number of days elapsed from the
prior vesting date of such options and restricted stock to and including the
Termination Date
.
(f) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twelve (12) month period following the Executives
Termination of Employment (or such shorter period during which such person is
eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Executive to the extent required by law.
(g) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
made by the Company promptly following the Companys receipt of appropriate
invoices documenting such expenses.
3
(h) Notwithstanding the preceding provisions or any other
provisions herein to the contrary, if the Executives Employment is Terminated
during a Change in Control Coverage Period, either by the Executive for
Adequate Reason or Good Reason or by the Company for any reason other than for
Cause or death, then the Executive shall be entitled to the payments and
benefits that would have been provided to him pursuant to Section 5 if the
Company had Terminated his Employment without Cause during a Change in Control
Coverage Period (reduced by any payments or benefits provided to him pursuant
to this Section 4). In such a case,
the Executive shall not be required to execute an additional Release, and any
Release requirement specified in Section 5 shall be deemed satisfied on
the Change in Control Date.
(i) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i) the
Company shall promptly deliver written notice to the Executive advising him of
the application of such Code Section and, to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall accrue on unpaid amounts
delayed under this subparagraph at the prime rate from time to time in effect
at the JP Morgan Chase Bank of New York or any successor bank commencing from
the date that such amounts would otherwise have been due under the applicable provision.
5.
Change of Control
Severance and Other Benefits.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not later
than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 5, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if during a Change in Control Coverage Period, (A) the
Company Terminates the Executives Employment (other than a termination for
Cause or death pursuant to Section 7), or (B) the Executive
voluntarily Terminates his Employment for Adequate Reason or Good Reason
pursuant to Section 8. Amounts
payable pursuant to this Section shall be subject to the limitations and
reimbursement expressly provided in this Agreement.
(b) As soon as administratively feasible (and not more than
five (5) business days) after the Companys receipt of the duly executed
Release, and the Release becoming effective and irrevocable in accordance with
its terms, the Company shall pay to the Executive a single lump sum payment in
an amount equal to the sum of the following:
(1) the product of (i) two (2) times (ii) the
sum of (A) the Executives Annual Base Salary, at the greater of the rate
in effect on the Change in Control Date or the Termination Date (disregarding
any reduction in the rate of the Executives salary during the six-month period
immediately preceding his Termination of Employment), plus (B) the greater
of (I) 45% of the amount determined under clause (A) or (II) the
average of the annual Bonuses paid to the Executive for the two Fiscal Years
preceding the year in which the Executives Employment is Terminated. Amounts payable under this Subparagraph (b)(1) will
deemed severance.
4
(2) a pro-rata Bonus amount, determined by multiplying (i) the
greater of (A) 45% of the amount determined under clause (A) of the
preceding Subparagraph (b)(1) or (B) the average of the annual
Bonuses paid to the Executive for the two years Fiscal Years preceding the year
in which the Executives Employment is Terminated, by (ii) a fraction, (A) the
numerator of which is the number of full or partial months since the end of the
prior Fiscal Year in which the Executive has been employed by the Company, and (B) the
denominator of which is 12. However, if
the Executive did not receive his annual Bonus under a Bonus Plan for such
prior Fiscal Year, then the numerator shall be the number of full or partial
months since the beginning of the prior Fiscal Year in which the Executive has
been employed by the Company. Amounts payable under this Subparagraph (b)(2) will
be deemed payments attributable to Executives employment prior to or on the
Termination Date and not as severance.
(c) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twenty-four (24) month period following the
Executives Termination of Employment (or such shorter period during which such
person is eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Participant to the extent required by law.
(d) For the twenty-four (24) month period following the
Executives Termination of Employment, the Company shall continue to provide
term life insurance coverage substantially the same as that provided for the
Executive immediately before his Termination Date (if any).
(e) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
paid directly by the Company promptly following the Companys receipt of
appropriate invoices documenting such expenses.
(f) To the extent that coverage or benefits under Subsection
(c), (d), or (e) result in taxable income to the Executive, the Company
shall reimburse the Executive for any taxes payable on account of such
coverage, so that the Executive is in the same after-tax position in which he
would have been had such reimbursements not been taxable. The Company shall pay the reimbursement
required by the preceding sentence as soon as administratively practicable
after the Executive demonstrates payment of the related taxes and not later
than the last day of the calendar year following the calendar year in which
such taxes are paid.
(g) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i),
the Company shall promptly deliver written notice to the Executive advising him
of the application of such Code Section and to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall
accrue on unpaid amounts delayed under this subparagraph at the prime rate from
time to
5
time in effect at the JP Morgan Chase Bank of New
York or any successor bank commencing from the date that such amounts would
otherwise have been due under the applicable provision.
6.
Provisions Relating to
Parachute Payments.
If
payments and benefits to or for the benefit of the Executive, whether pursuant
to this Agreement or otherwise, would result in total Parachute Payments to the
Executive with a value equal to or greater than one hundred percent (100%) of
the Parachute Payment Limit, the Executive may, in his sole discretion, elect
to reduce the amount payable pursuant to Section 5(b) so that the
value of all Parachute Payments to the Executive, whether or not made pursuant
to this Agreement, is equal to the Parachute Payment Limit minus One Dollar
($1.00).
7.
Termination of
Employment by the Company for Cause, Unacceptable Performance, Disability, or
Death.
(a) The Company may cause a Termination of the Executives
Employment for Disability at any time.
To do so, the Board must provide the Executive with a notice of
termination specifying the Termination Date and the circumstances constituting
Disability.
(b) Company may cause a Termination of the Executives
Employment for Unacceptable Performance at any time during the Term other than
during a Change in Control Coverage Period. To do so, the Board must provide
the Executive with a notice of termination specifying the Termination Date and
the specific act(s) or failure(s) constituting Unacceptable
Performance. If the Boards notice
identifies an act or failure constituting Unacceptable Performance, it shall be
accompanied by a resolution duly adopted by not less than two-thirds (2/3) of
the entire membership of the Board and, if the act of failure is subject to correction under the definition
of Unacceptable Performance and related definitions in this Agreement, the
notice shall also specify the period during which the act or failure must be
corrected, which in no event shall be less than thirty (30) days. If the Board reasonably determines that the
Executive has not corrected the act or failure in all material respects within
the required correction period, the Board must then provide a second notice of
termination stating the reasons for the termination and the Termination Date,
and the Executives Employment shall terminate on such date.
(c) The Company may cause a Termination of the Executives
Employment for Cause at any time. To do
so, the Board must provide the Executive with a notice of termination
specifying the Termination Date and the specific act(s) or failure(s) constituting
Cause. If the Boards notice identifies
an act or failure constituting Cause, it shall be accompanied by a resolution
duly adopted by not less than three-quarters (¾) of the entire membership of
the Board (after reasonable notice to the Executive and an opportunity for the
Executive, together with legal counsel, to be heard by the Board), finding, in
the reasonable opinion of the Board, that one or more of the events of Cause
has occurred and specifying the details thereof. If the act or failure constituting Cause is
subject to correction under the definition of Cause and related definitions in
this Agreement, the notice shall also specify the period during which the act
or failure must be corrected, which in no event shall be less than thirty (30)
days. If the Board acting in good faith
determines that the Executive has not corrected the act or failure in all
material respects within the required correction period, the Board must then
provide a
6
second notice of termination stating the reasons for
the termination and the Termination Date, and the Executives Employment shall
terminate on such date.
(d) If the Executive dies before Termination of Employment,
his Employment shall terminate automatically on the date of his death.
(e) In the case of a Termination of Employment for Cause or
Unacceptable Performance pursuant to this Section, the Executive shall not be
entitled to benefits or payments pursuant to Section 4 or 5; provided,
however, if the Company causes a Termination of the Executives Employment for
Unacceptable Performance and the Termination Date of such termination occurs
during a Change in Control Coverage Period, then such termination shall be
deemed a Termination of the Executives Employment other than a termination
for Cause under Section 5(a) and thereby obligate the Company to
provide the Executive with the payments and benefits set forth in Section 5.
(f) In the case of a Termination of
Employment due to Disability or death pursuant to this Section, the Company
shall continue to pay to the Executive, if living, or other person or persons
as the Executive may from time to time designate in writing as the beneficiary
of such payments, the Base Salary in effect at the time which such Disability
or death occurred, during the three-month period following such Disability or
death. Except for such Base Salary, the
Company shall have no further obligation pursuant to this Section.
8.
Resignation by
Executive for Adequate Reason or Good Reason.
If an event of Adequate Reason or Good Reason
occurs during the Term, the Executive may, at any time within the ninety (90)
day period following such event, provide the Company with a notice of
termination specifying the event of Adequate Reason or Good Reason and
notifying the Company of his intention to Terminate Employment upon the Companys
failure to correct the event of Adequate Reason or Good Reason within thirty
(30) days following receipt of the Executives notice of termination. If the Company fails to correct the event of
Adequate Reason or Good Reason and provide the Executive with notice of such
correction within such thirty (30) day period, the Executives Employment shall
terminate as of the end of such period, and the Executive shall be entitled to
benefits as provided in Section 3 and Section 4 or 5, as applicable.
9.
Limitation
on Payments and Benefits.
Notwithstanding
any other provision of this Agreement, payments pursuant to this Agreement
shall be subject to the following limitations:
(a) No payment (other than a payment
pursuant to Section 3) shall be made pursuant to this Agreement until the
Release has become effective according to its terms.
(b) If the Executive intentionally and
materially breaches any provision of the Confidentiality and Non-Competition
Agreement, and fails to cure such breach (if curable) within thirty (30) days,
he shall promptly repay to the Company any and all severance amounts previously
paid to him pursuant to Section 4 and/or 5, and he shall have no further
rights pursuant to this Agreement.
(c) Payments hereunder shall be limited
to the extent provided in Section 6.
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10.
No
Obligation to Mitigate.
The
Executive shall not be required to mitigate the amount of any payment or
benefits provided for under Section 4 or 5 by seeking other employment or
otherwise, and the amount of any payment or benefits provided for under Section 4
or 5 shall not be reduced by any payments or benefits received by the Executive
as the result of employment by another employer after the Termination Date, or
otherwise; provided, however, that the amount payable under Section 4 or 5
shall be reduced by the amount of any severance, termination, or notice pay (or
any other similar amounts) required by law to be paid to the Executive by the
Company or its subsidiaries and by any salary or other amounts paid to the
Executive during any notice period that the Company or its subsidiaries is
required by law to provide.
11.
Withholding and
Taxes.
The Company may
withhold from any payment made hereunder (i) any taxes that the Company
reasonably determines are required to be withheld under federal, state, or
local tax laws or regulations, and (ii) any other amounts that the Company
is authorized to withhold. Except for
employment taxes that are the obligation of the Company, the Executive shall
pay all federal, state, local, and other taxes (including, without limitation,
interest, fines, and penalties) imposed on him under applicable law by virtue
of or relating to the payments and/or benefits contemplated by this Agreement,
subject to any reimbursement provisions of this Agreement.
12.
Indemnification.
The Executive shall continue to be
entitled to any rights to insurance and indemnification under the Companys or
a Related Employers directors and officers liability insurance (D&O
Insurance), Certificate of Incorporation, and Bylaws, as in effect before the
earlier of the Executives Termination of Employment or a Change in Control (or
rights to insurance and indemnification that are substantially the same
thereto), with respect to any claims relating to the period before his
Termination Date. Additionally, any and
all D&O Insurance policies obtained by the Company or a Related Employer
following the Termination Date that are claims made polices shall cover the
Executive to the same extent as other former officers of the Company.
13.
Default
in Payment.
Any payment not
made within ten (10) days after it is due in accordance with this
Agreement shall thereafter bear interest, compounded quarterly, at 5% above the
prime rate from time to time in effect at the JP Morgan Chase Bank of New York
or any successor bank.
14.
Effect
on Other Plans, Agreements, and Benefits.
Except to the extent expressly set forth herein, any benefit
or compensation to which the Executive is entitled under any agreement between
the Executive and the Company or any of its subsidiaries or under any plan
maintained by the Company or any of its subsidiaries in which the Executive
participates or participated shall not be modified or lessened in any way, but
shall be payable according to the terms of the applicable plan or agreement.
The terms of this Agreement shall supersede and terminate any prior change in
control and/or severance agreement, and the provisions of any other agreement
providing benefits following a change in control or termination of employment,
entered into between the Executive and the Company or any subsidiary
thereof. Notwithstanding the above, any
severance benefits received by the Executive pursuant to this Agreement shall
be in lieu of any severance benefits to which the Executive would otherwise be
entitled under any general severance policy maintained by the Company or the
relevant subsidiary for its
8
management personnel or under
any employment contract between the Executive and the Company or any subsidiary
thereof. Any and all employment
agreements between the Company and the Executive, inclusive of provisions that
in accordance with the terms of such agreements survive termination, are hereby
terminated and void.
15.
Unsecured
Obligation.
All rights of the
Executive or any beneficiary of the Executive who succeeds to the Executives
rights to payments or benefits under this Agreement shall at all times be
entirely unfunded and no provision shall at any time be made with respect to
segregating any assets of the Company or payment of any amounts due
hereunder. Neither the Executive nor any
such beneficiary shall have any interest in or rights against any specific
assets of the Company or any of its subsidiaries, and the Executive and any
such beneficiary shall have only the rights of a general unsecured creditor of
the Company.
16.
Prohibition
Against Assignment.
The
Executive may not assign, pledge, anticipate, or transfer any benefit or amount
payable hereunder (other than benefits payable upon or following his death),
and any attempt to assign, pledge, anticipate, or transfer such and benefit or
amount hereunder, whether voluntary or involuntary, shall be null and void.
17.
Successors.
(a) The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive, 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 it if no such
succession had taken place. Failure of
the Company to obtain such agreement before the effectiveness of any such
succession shall be a material breach of this Agreement. As used in this Agreement, Company shall
mean the Company as hereinbefore defined, and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided
for in this Subsection or otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executives devisee,
legatee, or other designee or, if there be no such designee, to the Executives
estate.
18.
Release.
In consideration of the Companys
promises and covenants and the performance thereof, the Executive agrees that
the Companys payment obligations under Sections 4 and 5 shall be conditioned
on the Executives release of the Company and all other persons named in the
Release from any and all causes of causes of action that the Executive has or
may have against the Company or any such person before the effective date of
the Release, other than a cause based on a breach hereof. The Release shall be substantially in the
form attached hereto as Exhibit I.
For the Release to be effective, the Executive (or his representative or
agent) must have provided a signed version of the Release to the Company and
such Release
9
shall have become effective and irrevocable by its
terms within sixty (60) days after the Executives Termination of Employment.
19.
Disputes.
(a) In any judicial or other proceedings
in which the Executives right to, or the amount of, benefits hereunder is
disputed, the ultimate burden of proof shall be on the Company.
(b) Any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Little Falls, New Jersey by three arbitrators, one of whom shall
be appointed by the Company, one of whom shall be appointed by the Executive,
and the third of whom shall be appointed by the first two arbitrators. If either the Company or the Executive fails
to appoint an arbitrator within 20 days of a request in writing by the other to
do so, or if the first two arbitrators cannot agree on the appointment of a
third arbitrator within 20 days after the second arbitrator is designated, then
such arbitrator shall be appointed by the Chief Judge of the United States
District Court located in the city of Newark, New Jersey, or upon his failure
to act, by the American Arbitration Association so as to enable the arbitrators
to render an award within 90 days after the three arbitrators have been
appointed. Following the selection of
arbitrators as set forth above, the arbitration shall be conducted promptly and
expeditiously and in accordance with the rules of the American Arbitration
Association. Judgment may be entered on
the arbitrators award in any court having jurisdiction; provided, however,
that the Executive shall be entitled to seek specific performance of his right
to be paid during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
(c) The Company shall pay all reasonable
out-of-pocket expenses, including reasonable legal fees and legal expenses,
incurred by the Executive in connection with any judicial or other proceeding,
including any arbitration proceeding, to enforce this Agreement or to construe,
determine, or defend the validity of this Agreement. The Company shall pay (or reimburse the
Executive) for any such expense as soon as administratively practicable after
the Executive demonstrates evidence that such expense have been incurred and
not later than thirty (30) days following the Executives submission of such
expenses to the Company with a request for reimbursement.
20.
Miscellaneous
Provisions.
(a)
Entire
Agreement.
This Agreement contains the entire
agreement and understanding of the parties regarding the transactions
contemplated herein and supersedes all prior agreements, arrangements, or
understandings, whether written or oral, relating to the subject matter hereof,
including, without limitation, any letters, agreements, or understandings
between the Executive and the Company or any subsidiary thereof before the date
hereof. By entering into this Severance
Agreement, the Executive waives any right that he may otherwise have to
participate in any generally applicable severance plan of the Company or any
Related Employer.
(b)
Amendment.
No
provision of this Agreement may be amended or waived, except by written
agreement signed by both the Company and the Executive.
10
(c)
Governing
Law.
This Agreement is intended to
comply with the requirements of Code Section 409A, and it shall be
construed in accordance with such intent.
Subject to the preceding sentence, this Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of New Jersey
without regard to principles of conflict of laws.
(d)
Headings
.
The headings in this Agreement have been
inserted solely for ease of reference and shall not be considered in the
interpretation or enforcement of this Agreement.
(e)
Severability.
If
any provision of the Agreement is held to be invalid, illegal, or
unenforceable, the remainder of this Agreement shall not be affected
thereby. If any provision of this
Agreement is held by a court of competent jurisdiction to conflict with any
federal, state, or local law, such provision is hereby declared to be of such
force and effect as is permissible in such jurisdiction.
(f)
Rights
and Waivers.
All rights and
remedies of the parties hereto are separate and cumulative, and no one of them,
whether exercised or not, shall be deemed to exclude, limit, or prejudice any
other right or remedy that either of the parties hereto may have. No party to this Agreement shall be deemed to
waive any right or remedy under this Agreement, unless such waiver is in
writing and signed by such party. No
delay or omission on the part of either party in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or
remedy. A waiver on any one occasion
shall not be construed as a bar to or a waiver of any right or remedy on any
future occasion.
(g)
Notices.
All
notices hereunder shall be in writing. A
notice by the Company shall be deemed to have been given only when delivered in
person to the Executive or mailed by first class United States Mail, Return
Receipt Requested, or sent by overnight delivery (or the fastest delivery
available, if overnight delivery is not available) by means of an
internationally recognized delivery service, to the Executive at his most
recent address on the records of the Company.
A notice by the Executive to the Company shall be deemed to have been
given only when delivered in person to the Companys General Counsel or mailed
by first class United States Mail, Return Receipt Requested, or sent by
overnight delivery (or the fastest delivery available, if overnight delivery is
not available) by means of an internationally recognized delivery service, to
the Companys General Counsel at the Companys headquarters.
(h)
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same instrument, and may be delivered by facsimile or pdf.
21.
No
Reliance
. The Executive
represents and acknowledges that in executing this Agreement, the Executive
does not rely and has not relied upon any representation or statement by the
Company or its agents, other than statements contained in this Agreement.
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CANTEL MEDICAL CORP.
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By:
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Eric W. Nodiff
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Date:
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Date:
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12
APPENDIX A
DEFINED TERMS
For purposes of this
Agreement, the following terms shall have the meanings specified below:
Adequate Reason means any of the following without
the express written consent of the Executive:
(1) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(2) a
reduction in the Executives base compensation or failure to include the
Executive with other similarly situated employees in any incentive, bonus, or
benefit plans as may be offered by the Company from time to time;
(3) a
change in the primary location at which the Executive is required perform the
duties of his employment to a location that is more than thirty (30) miles from
the location at which his office is located on the effective date of this
Agreement; or
(4) the
Companys material breach of this Agreement.
Annual Base Salary means
the annual base cash compensation payable to the Executive at the rate in
effect as of the applicable date (excluding bonuses, incentive compensation,
taxable fringe benefits, and any other type of special pay), before any
reduction on account of salary reduction contributions pursuant to Code Section 125
or 401(k) or pursuant to a nonqualified deferred compensation plan.
Board means the Companys
Board of Directors.
Bonus means an annual
cash bonus payable under any Bonus Plan.
Bonus Plan means any
bonus plan, short term incentive compensation plan or other like benefit plan
in which the Executive participates, whether or not awards thereunder are
discretionary.
Cause
means the Executives:
(1) act of fraud, embezzlement, theft, or other intentional
material violation of the law in connection with or in the course of his
employment,
(2) willful gross misconduct that is likely to materially
injure the reputation, business, or a business relationship of the Company; or
(3) willful material violation of the Confidentiality and
Non-Competition Agreement.
For purposes of the definition of Cause,
the following shall apply:
13
·
no act, or failure to act,
on the part of the Executive shall be deemed willful, if it was done or
omitted by the Executive in good faith or with a reasonable belief that the act
or omission was not opposed to the best interests of the Company; and
·
the Executives employment
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard by the Board), finding that in the Boards
good faith opinion, the Executive was guilty of conduct constituting Cause and
describing the specific acts or omissions constituting such conduct.
Change
in Control means the first to occur of the following during the Term:
(1) any one person, or more than one person acting as a group
(as determined by Treas. Reg. § 1.409A-3(i)(5)(B)), acquires ownership of
stock of the Company that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of the Company; or
(2) a majority of the members of the Companys board of
directors is replaced during any 12-month period by directors whose appointment
or election is not endorsed by a majority of the members of the Companys board
of directors before the date of the appointment or election.
Notwithstanding the preceding provisions, a Change of
Control will be deemed to occur only to the extent that the event or events
described above constitute a change in the ownership or effective control of
the corporation, or in the ownership of a substantial portion of the assets of
the corporation within the meaning of Code Section 409A(a)(2)(A)(v) and
the regulations thereunder.
Change in Control Date
means the effective date of an event constituting a Change in Control.
Change in Control Period
means the period beginning on the date of a Change in Control and ending two
years thereafter.
Change in Control
Coverage Period means the period (A) commencing on the earlier to occur
of (i) the first day of a Potential Change Period or (ii) the first
day of the six (6) month period ending on the Change in Control Date and (B) ending
on the last day of a Change in Control Period.
Code means the Internal
Revenue Code of 1986, as amended from time to time.
Company means Cantel
Medical Corp. and any successor, to the extent provided in Section 17.
14
Continuation Coverage
means continuation coverage within the meaning of ERISA Sections 601 through 607.
Confidentiality and
Non-Competition Agreement means the confidentiality and non-competition
agreement between the Company and the Executive, as in effect from time to
time.
Disability means an
illness or injury that qualifies the Executive for disability benefits under a
long-term disability plan of the Company or a Related Employer in which the
Executive is a participant; provided, however, that a Disability shall not be
deemed to have occurred hereunder unless the Executive is absent from work or
otherwise substantially unable to assume his normal duties for a period of
ninety (90) successive days or an aggregate of one hundred twenty (120) days
during any consecutive twelve-month period during the Term.
ERISA means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
Exchange Act means the
Securities Exchange Act of 1934, as in effect on the date of this Agreement.
Fiscal Year means the
fiscal year of the Company.
Good Reason means any of
the following without the Executives express written consent:
(1) a material reduction in the Executives base compensation
or failure to include the Executive with other similarly situated employees in
any incentive, bonus, or benefit plans as may be offered by the Company from
time to time;
(2) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(3) a material reduction in the authority, duties, or
responsibilities of the supervisor to whom the Executive is required to report;
(4) a material reduction in the budget over which the
Executive retains authority or responsibility;
(5) a change in the primary location at which the Executive is
required perform the duties of his employment to a location that is more than
thirty (30) miles from the location at which his office is located on the
Change in Control Date; or
(6) the Companys material breach of this Agreement.
Monthly Base Salary means
Annual Base Salary, divided by twelve (12).
Parachute Payment has the meaning give to such term
in Code Section 280G(b)(2).
15
Parachute Payment Limit means three (3) times
the base amount, as defined by Code Section 280G(b)(3).
Potential Change in Control
means that:
(1) the Company has entered into an agreement with any person
or persons, the consummation of which would constitute or result in a Change in
Control; or
(2) any person has publicly announced its intention to take or
consider taking actions that, if consummated, would constitute or result in a
Change in Control; or
(3) any person has begun a solicitation (as defined in Rule 14a-1
of the Securities Exchange Act) of proxies or consents that has the purpose of
effecting or would (if successful) result in a Change in Control; or
(4) any person has initiated a tender offer or exchange offer
that would, if consummated, result in a Change in Control; or
(5) the Board has adopted a resolution to the effect that any
person has begun actions that, if consummated, would result a Change in
Control.
Potential Change Period
means the period beginning on the first day of a Potential Change in Control
and ending on the adoption by the Board of a resolution to the effect that the
agreement, announced intention or actions, solicitation, tender offer, exchange
offer, or other actions constituting a Potential Change in Control has been
consummated.
Related Employer means the
Company and any other employer that is required to be aggregated with the
Company pursuant to Code Section 414(b), (c), or (m).
Release means a Release of
All Claims, in substantially the same form as set out in Exhibit A hereto.
Term means the term of
this Agreement, as determined pursuant to Section 2.
Terminates Employment, Terminate(s) the
Executives Employment, Termination of Employment, or any other variation of
such term means a separation from service within the meaning of Code Section 409A(a)(2)(A).
Termination Date means the
effective date of the Executives Termination of Employment.
Unacceptable Performance means any of the following:
(1) the Executives act or failure to act constituting willful
misconduct or gross negligence that is materially injurious to the Company or
its reputation;
(2) the
Executives material failure to perform the duties of his employment (except in
the case of a Termination of Employment for Good Reason or Adequate Reason or
on account of the Executives physical or mental inability to perform such
16
duties)
and the failure to correct such failure within a reasonable period after
receiving written notice from the Board of Directors describing such failure in
detail; provided, however, that the quality of the Executives performance
(determined by achievement of Company or personal targets or otherwise) shall
not be a factor in determining whether Executive has performed his duties.
(3) the
Executives violation of any code of ethics or business conduct or written
harassment policies of the Company that continues after the Board has provided
notice to the Executive that the continuation of such conduct will result in
Termination of the Executives Employment;
(4) willful material violation of the Confidentiality and
Non-Competition Agreement;
(5) the
Executives arrest or indictment for (i) a felony or (ii) lesser
criminal offense involving dishonesty, breach of trust, or moral turpitude; or
(6) the
Executives breach of a material term, condition, or covenant of this Agreement
and the failure to correct such breach promptly following receipt of written
notice from the Board of Directors describing such breach in detail.
17
EXHIBIT I
RELEASE OF ALL CLAIMS
This Release of All
Claims (Release) has been signed by
(Executive) on the date indicated below.
Background
A. The Executive and Cantel Medical
Corp. (Company) previously entered into an Executive Severance Agreement,
dated as of January 1, 2010 (Agreement), which provides for the payment
of benefits to the Executive under certain circumstances following his
Termination of Employment.
B. The Executives Employment with the
Company Terminated/will Terminate on
,
under circumstances that entitle him to payments under the Agreement, subject
to the terms thereof.
C. The Companys obligations under the
Agreement are contingent on the Executive signing and providing this Release to
the Company within 21 days after receiving it and allowing this Release to
become effective as provided herein.
D. As a condition of receiving benefits
under the Agreement, the Executive wishes to sign this Release.
In
consideration of the premises and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Executive agrees as
follows:
Release
1. If the Executive (i) signs and
dates this Release and submits it to the Company not later than 21 days after
it is provided to the Executive, (ii) complies with the other requirements
of this Release and the Agreement, and (iii) and does not provide written
revocation of this Agreement to the Company within the seven-day revocation
period referred to in Paragraph 8, the Company shall make the payments and pay
the benefits required by the Agreement.
2. In consideration of the Companys payment obligations
under this Agreement, the Executive releases and discharges the Company, all of
its past and/or present divisions, affiliates, officers, directors,
shareholders, partners, trustees, employees, agents, representatives,
administrators, attorneys, insurers, fiduciaries, successors, and assigns, in
their individual and/or representative capacities (hereinafter collectively
referred to as Released Persons), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims, and demands of any kind whatsoever (Claims)
that the Executive and/or his heirs, executors, administrators, successors, and
assigns ever had, now have, or may have against any Released Person by reason
of his employment and/or cessation of employment with the Company or a Related
Employer, or otherwise involving facts that occurred on or before the date on
which the Executive signed this Release, other than (i) a Claim that the
Company has failed to pay the Executive a payment described in or contemplated
by the
18
Agreement or has
otherwise breached the terms of the Agreement, or (ii) a Claim that the
Company has failed to pay the Executive any vested benefits to which he is
entitled under a plan or program of the Company or a Related Employer
(collectively, Excluded Claims).
Claims, other than Excluded Claims, are hereafter referred to a Released
Claims. The Executive gives this
Release regardless of whether the Released Claims are known or unknown. Such Released Claims include, without
limitation, any and all Claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Civil Rights Act of 1871,
the Civil Rights Act of 1991, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1993, and any and all other federal, state
or local laws, statutes, rules, and regulations pertaining to employment, as
well as any and all claims under state contract or tort law including, but not
limited, to those based on allegations of wrongful discharge, breach of
contract, promissory estoppel, defamation, and infliction of emotional
distress.
3. The Executive hereby covenants not to sue or commence or
maintain any action or proceeding against any Released Person, none of whom
admit any liability, as to any Released Claim.
The Executive hereby agrees that if he hereafter institutes or maintains
an action against any Released Person with respect to a Released Claim, and it
is determined in such action that a claim or claims brought by the Executive in
such action is barred by this Release, he will pay the Released Person for all
costs and expenses, including attorneys fees, incurred in defending against
such claims. The Executive understands
that this Release is final and binding, except as expressly provided
herein. Nothing herein shall (i) prevent
the Executive from filing a charge or complaint, including a challenge to the
validity of this Agreement, with the Equal Employment Opportunity Commission (EEOC),
(ii) prevent the Executive from participating in any investigation or
proceeding conducted by the EEOC, or (iii) establish a condition precedent
or other barrier to exercising the aforesaid rights. While the Executive has a right to
participate in any such investigation, he understands that he is waiving his
right to any monetary recovery arising from any investigation or pursuit of a
claim on his behalf. The Executive acknowledges
that he has the right to file a charge alleging a violation of the ADEA with
any administrative agency and/or to challenge the validity of the waiver and
release of any claim that he may have under the ADEA without either (i) repaying
the Company the amounts paid to him as a result of this Release or (ii) paying
the Company any other monetary amounts (such as attorneys fees and damages).
4. The Executive agrees that if this
Release is ever held to be invalid or unenforceable (in whole or in part) as to
any particular type of claim or as to any particular circumstance, it shall
remain fully valid and enforceable as to all other claims and circumstances.
5. Except as permitted by paragraph 3,
the Executive represents that he has not filed, and will not hereafter file,
any lawsuit against any Released Person relating to his employment and/or
cessation of employment with the Company or any Related Employer, or otherwise
involving facts that occurred on or before the date on which he signed this Release,
other than with respect to any Excluded Claim.
The Executive further understands and agrees that, other than as
provided under paragraph 3, if he commences, continues, joins in, or in any
other manner attempts to assert any lawsuit released herein against a Released
Person with regard to a Released Claim, or otherwise violates the terms of this
Release, he shall be required to return all severance payments paid to him by
the Company pursuant to the Executive Severance Agreement (together
19
with
interest thereon), and he agrees to reimburse the Released Person for all
attorneys fees and expenses incurred by it in defending against such a
lawsuit, provided that the right to receive such payments is without prejudice
to the Released Persons other rights hereunder.
6. The Executive understands and
agrees that the Companys payments to him and the signing of this Release do
not in any way indicate that he has any viable Claims against the a Released
Person or that any Released Person admits any liability to him whatsoever.
7. The Executive has read this Release
carefully, has been given at least 21 days to consider all of its terms, has
been advised to consult with an attorney and any other advisors of his choice,
and fully understands that by signing below he is giving up any right that he
may have to sue or bring any Claims (other than the Excluded Claims) against a
Released Person. The Executive has not
been forced or pressured in any manner whatsoever to sign this Release, and he
agrees to all of its terms voluntarily.
8. The Executive understands that he
has seven days from the date on which he signed this Release below to revoke
this Release by notifying the Company of his revocation, that this Release will
not become effective until the eighth day following the date on which he has
signed this Release, and that if he revokes this Release within such period,
the Executive Severance Agreement shall be void.
9. The Executive understands and
agrees that this Release will be governed by the internal laws of the State of
New Jersey, without regard to conflict of law principles, to the extent not
preempted by federal law.
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20
Exhibit 10.5
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (Agreement) is
entered into, effective as of January 1, 2010, by and between Roy K.
Malkin (Executive) and Minntech Corporation (Company), a wholly-owned
subsidiary of Cantel Medical Corp. (Cantel).
Background
A. The Company considers the establishment and maintenance
of a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its shareholders. The Company believes that, to attract and
retain experienced and valuable key executive employees, it is important and
prudent to provide such executives with fair compensation should their
employment be terminated under certain circumstances, including but not limited
to change in control situations.
B. The Company wishes to encourage the Executive to devote
his full time and attention to the performance of his management
responsibilities and to assist the Board of Directors and other management
employees in evaluating business options and pursuing the best interests of the
Companys shareholders without being influenced by the uncertainty of his own
employment situation.
In consideration of the
premises, the Executives employment by the Company on an at-will basis, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Executive and the Company agree as follows:
Agreement
1.
Defined
Terms.
Throughout this
Agreement, when the first letter of a word (or the first letter of each word in
a phrase) is capitalized, the word or phrase shall have the meaning specified
in Appendix A (beginning on page 13)
2.
Term.
This initial term of this
Agreement shall commence as of January 1, 2010, and shall continue through
July 31, 2011; provided, however, that beginning on August 1, 2010,
and on the first day of each following August, the term of this Agreement shall
automatically be extended by one year, unless either the Company or the
Executive shall have provided notice to the other at least six (6) months
before such date that the term shall not be extended. Notwithstanding the preceding provisions of
this Section, (i) if a Change in Control occurs during the term of this
Agreement, such term (other than with respect to the provisions of Section 4)
shall not end before the second anniversary of the Change in Control; provided,
however, this sentence shall apply only to the first Change of Control while
this Agreement is in effect; and (ii) termination of this Agreement shall
not affect the obligations of the Company hereunder on account of the Executives
Termination of Employment during the Term.
3.
Termination of
Employment; Resignation of Officer and Director Positions
. The Executive is an at-will employee. The Company may Terminate the Executives
Employment at any time, for any reason whatsoever or for no reason, subject to
its payment obligations under this Section and, if applicable, Section 4
or 5. The Executive may voluntarily
Terminate his Employment at any time by providing at least twenty (20) days
prior notice to the
Company.
Regardless of whether the Executives Termination of Employment is
voluntary or involuntary, the Executive shall resign from any and all of his
director positions and offices with the Company and each Related Employer,
effective as of his Termination Date.
Upon Termination of Employment, the Executive shall be entitled to the
following, in addition to any benefits payable under Section 4 or 5:
(a) Any earned but unpaid base salary through his Termination
Date, plus any accrued and unused paid time off (PTO) due to the Executive
under the Companys PTO program through his Termination Date, which amounts
shall be paid to the Executive not later than the payment date for the payroll
period next following his Termination Date.
(b) Provided that the Executive applies for reimbursement in
accordance with the Companys established reimbursement procedures (within the
period required by such procedures but under no circumstances later than ninety
(90) days after his Termination Date), the Company shall pay the Executive any
reimbursements to which he is entitled under such procedures not later than the
payment date for the payroll period next following the date on which the
Executive applies for reimbursement.
(c) Any benefits (other than severance) payable to the
Executive under any of the Companys cash or equity incentive compensation
plans and employee benefit plans or programs (collectively, Benefit Plans),
to the extent not provided for herein, shall be payable in accordance with the
provisions of those plans or programs. To the extent that the terms herein
conflict with the terms of the Benefit Plans, the terms herein shall be deemed
to supersede those of the Benefit Plans.
4.
Non-Change of Control
Severance and Other Benefits
.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 4, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if at any time during the Term other than during a
Change in Control Coverage Period either (i) the Company Terminates the
Executives Employment (other than a termination for Cause, Unacceptable
Performance, Disability, or death pursuant to Section 7), or (ii) the
Executive voluntarily Terminates his Employment for Adequate Reason pursuant to
Section 8. Notwithstanding the
preceding provisions of this Subsection, the Executive shall not be entitled to
benefits pursuant to this Section 4, if he is entitled to benefits
pursuant to Section 5.
(b) As soon as administratively feasible (and not more than
ten (10) days) after the Companys receipt of the duly executed Release,
and the Release becoming effective and irrevocable, the Company shall pay to
the Executive a single lump sum payment equal to the product of (i) the
Executives Monthly Base Salary Rate as of his Termination Date multiplied by (ii) 12. For purposes of determining the Executives
Monthly Base Salary Rate pursuant to the preceding sentence, any reduction to
the Executives salary during the six-month period preceding his Termination of
Employment shall be disregarded.
2
(c) If the Termination Date of an Executive occurs subsequent
to the last day of a Fiscal Year for which the Executive has not been paid his
Bonus, then the Executive shall be entitled to his full Bonus for such Fiscal
Year to the extent otherwise earned under the terms of the Bonus Plan for such
Fiscal Year (as if the Executives employment had not been Terminated). Such
amount shall be paid to the Executive not later than seventy five (75) days
following the close of such Fiscal Year.
Amounts payable under this Subparagraph (c) will be deemed payments
attributable to Executives employment prior to or on the Termination Date and
not as severance.
(d) The Company shall pay to the
Executive a pro-rata Bonus for the Fiscal Year in which the Termination Date
occurs, determined by multiplying (i) the amount of the Executives full
Bonus for such Fiscal Year to the extent otherwise earned under the terms of
the Bonus Plan for such Fiscal Year as in effect immediately prior to the
Termination Date by (ii) a fraction, (A) the numerator of which is
the number of full or partial months since the end of the prior Fiscal Year in
which the Executive has been employed by the Company, and (B) the
denominator of which is 12. Such amount
shall be paid to the Executive not later than seventy five (75) days following
the close of such Fiscal Year. Notwithstanding
the forgoing, if no Bonus Plan has been finalized (i.e., approved by the
Compensation Committee and disseminated to the Executive) for such Fiscal Year
either prior to the commencement of such Fiscal Year or within three months
following the commencement of such Fiscal Year, then the Bonus for such Fiscal
Year payable under this Subparagraph (d) will be determined in accordance
with the first sentence of Section 5(b)(2) (as if the pro rata Bonus
payment under that Section was required). Amounts payable under this
Subparagraph (d) will be deemed payments attributable to Executives
employment prior to or on the Termination Date and not as severance.
(e)
In
the
event such termination occurs
prior to the full vesting of
stock
options
and restricted stock held by the participant (i.e., the options becoming
exercisable in their entirety and the restricted stock ceasing to have any
risks of forfeiture), then, effective as of the Termination Date, the vesting
of the annual installment
of such options and restricted stock that
would be due to vest on the first vesting date following the Termination Date
shall accelerate on a pro rata basis based on the number of days elapsed from
the prior vesting date of such options and restricted stock to and including the
Termination Date
.
(f) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twelve (12) month period following the Executives
Termination of Employment (or such shorter period during which such person is
eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Executive to the extent required by law.
(g) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
made by the Company promptly following the Companys receipt of appropriate
invoices documenting such expenses.
3
(h) Notwithstanding the preceding provisions or any other
provisions herein to the contrary, if the Executives Employment is Terminated
during a Change in Control Coverage Period, either by the Executive for
Adequate Reason or Good Reason or by the Company for any reason other than for
Cause or death, then the Executive shall be entitled to the payments and
benefits that would have been provided to him pursuant to Section 5 if the
Company had Terminated his Employment without Cause during a Change in Control
Coverage Period (reduced by any payments or benefits provided to him pursuant
to this Section 4). In such a case,
the Executive shall not be required to execute an additional Release, and any
Release requirement specified in Section 5 shall be deemed satisfied on
the Change in Control Date.
(i) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i) the
Company shall promptly deliver written notice to the Executive advising him of
the application of such Code Section and, to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall accrue on unpaid amounts
delayed under this subparagraph at the prime rate from time to time in effect
at the JP Morgan Chase Bank of New York or any successor bank commencing from
the date that such amounts would otherwise have been due under the applicable
provision.
5.
Change of Control
Severance and Other Benefits.
(a) Subject to (i) the Executives timely filing of a
duly executed Release in accordance with Section 18, (ii) such
Release becoming effective and irrevocable in accordance with its terms not
later than sixty (60) days after the Executives Termination of Employment, (iii) the
provisions of this Section 5, and (iv) the limitations provided in Section 9,
the Company shall provide the Executive with the payments and benefits set
forth in this Section, if during a Change in Control Coverage Period, (A) the
Company Terminates the Executives Employment (other than a termination for
Cause or death pursuant to Section 7), or (B) the Executive
voluntarily Terminates his Employment for Adequate Reason or Good Reason
pursuant to Section 8. Amounts
payable pursuant to this Section shall be subject to the limitations and
reimbursement expressly provided in this Agreement.
(b) As soon as administratively feasible (and not more than
five (5) business days) after the Companys receipt of the duly executed
Release, and the Release becoming effective and irrevocable in accordance with
its terms, the Company shall pay to the Executive a single lump sum payment in
an amount equal to the sum of the following:
(1) the product of (i) two (2) times (ii) the
sum of (A) the Executives Annual Base Salary, at the greater of the rate
in effect on the Change in Control Date or the Termination Date (disregarding any
reduction in the rate of the Executives salary during the six-month period
immediately preceding his Termination of Employment), plus (B) the greater
of (I) 55% of the amount determined under clause (A) or (II) the
average of the annual Bonuses paid to the Executive for the two Fiscal Years
preceding the year in which the Executives Employment is Terminated. Amounts payable under this Subparagraph (b)(1) will
deemed severance.
4
(2) a pro-rata Bonus amount, determined by multiplying (i) the
greater of (A) 55% of the amount determined under clause (A) of the
preceding Subparagraph (b)(1) or (B) the average of the annual
Bonuses paid to the Executive for the two years Fiscal Years preceding the year
in which the Executives Employment is Terminated, by (ii) a fraction, (A) the
numerator of which is the number of full or partial months since the end of the
prior Fiscal Year in which the Executive has been employed by the Company, and (B) the
denominator of which is 12. However, if
the Executive did not receive his annual Bonus under a Bonus Plan for such
prior Fiscal Year, then the numerator shall be the number of full or partial
months since the beginning of the prior Fiscal Year in which the Executive has
been employed by the Company. Amounts payable under this Subparagraph (b)(2) will
be deemed payments attributable to Executives employment prior to or on the
Termination Date and not as severance.
(c) If the Executive is eligible for and properly elects
Continuation Coverage for himself and/or one or more qualified beneficiaries
(as defined in ERISA Section 607(3)) under the Companys medical plan, the
Company shall pay the premiums for such coverage (or reimburse the Participant
for such premiums) for the twenty-four (24) month period following the
Executives Termination of Employment (or such shorter period during which such
person is eligible for Continuation Coverage).
Such payments or reimbursements shall constitute taxable income of the
Participant to the extent required by law.
(d) For the twenty-four (24) month period following the
Executives Termination of Employment, the Company shall continue to provide
term life insurance coverage substantially the same as that provided for the
Executive immediately before his Termination Date (if any).
(e) The Company shall pay the cost of outplacement services
incurred by the Executive during the twelve (12) month period following his
Termination of Employment and provided by a firm of the Executives choice, up
to a total of Twenty Thousand Dollars ($20,000). Payment for outplacement expenses shall be
paid directly by the Company promptly following the Companys receipt of
appropriate invoices documenting such expenses.
(f) To the extent that coverage or benefits under Subsection
(c), (d), or (e) result in taxable income to the Executive, the Company
shall reimburse the Executive for any taxes payable on account of such
coverage, so that the Executive is in the same after-tax position in which he
would have been had such reimbursements not been taxable. The Company shall pay the reimbursement
required by the preceding sentence as soon as administratively practicable
after the Executive demonstrates payment of the related taxes and not later
than the last day of the calendar year following the calendar year in which
such taxes are paid.
(g) Notwithstanding the preceding provisions of this Section,
if the Executive is a specified employee within the meaning of Code Section 409A(a)(2)(B)(i),
the Company shall promptly deliver written notice to the Executive advising him
of the application of such Code Section and to the extent required by such
Code Section, payments otherwise required by this Section shall be delayed
to the earliest date on which such payments are permitted. Interest shall
accrue on unpaid amounts delayed under this subparagraph at the prime rate from
time to
5
time in effect at the JP Morgan Chase Bank of New York or any successor
bank commencing from the date that such amounts would otherwise have been due
under the applicable provision.
6.
Provisions Relating to
Parachute Payments.
If
payments and benefits to or for the benefit of the Executive, whether pursuant
to this Agreement or otherwise, would result in total Parachute Payments to the
Executive with a value equal to or greater than one hundred percent (100%) of
the Parachute Payment Limit, the Executive may, in his sole discretion, elect
to reduce the amount payable pursuant to Section 5(b) so that the
value of all Parachute Payments to the Executive, whether or not made pursuant
to this Agreement, is equal to the Parachute Payment Limit minus One Dollar
($1.00).
7.
Termination of
Employment by the Company for Cause, Unacceptable Performance, Disability, or
Death.
(a) The Company may cause a Termination of the Executives
Employment for Disability at any time.
To do so, the Board must provide the Executive with a notice of
termination specifying the Termination Date and the circumstances constituting
Disability.
(b) Company may cause a Termination of the Executives
Employment for Unacceptable Performance at any time during the Term other than
during a Change in Control Coverage Period. To do so, the Board must provide
the Executive with a notice of termination specifying the Termination Date and
the specific act(s) or failure(s) constituting Unacceptable
Performance. If the Boards notice
identifies an act or failure constituting Unacceptable Performance, it shall be
accompanied by a resolution duly adopted by not less than two-thirds (2/3) of
the entire membership of the Board and, if the act of failure is subject to correction under the definition
of Unacceptable Performance and related definitions in this Agreement, the
notice shall also specify the period during which the act or failure must be
corrected, which in no event shall be less than thirty (30) days. If the Board reasonably determines that the
Executive has not corrected the act or failure in all material respects within
the required correction period, the Board must then provide a second notice of
termination stating the reasons for the termination and the Termination Date,
and the Executives Employment shall terminate on such date.
(c) The Company may cause a Termination of the Executives
Employment for Cause at any time. To do
so, the Board must provide the Executive with a notice of termination
specifying the Termination Date and the specific act(s) or failure(s) constituting
Cause. If the Boards notice identifies
an act or failure constituting Cause, it shall be accompanied by a resolution
duly adopted by not less than three-quarters (¾) of the entire membership of
the Board (after reasonable notice to the Executive and an opportunity for the
Executive, together with legal counsel, to be heard by the Board), finding, in
the reasonable opinion of the Board, that one or more of the events of Cause
has occurred and specifying the details thereof. If the act or failure constituting Cause is
subject to correction under the definition of Cause and related definitions in
this Agreement, the notice shall also specify the period during which the act
or failure must be corrected, which in no event shall be less than thirty (30)
days. If the Board acting in good faith determines
that the Executive has not corrected the act or failure in all material
respects within the required correction period, the Board must then provide a
6
second notice of termination stating the reasons for the termination
and the Termination Date, and the Executives Employment shall terminate on
such date.
(d) If the Executive dies before Termination of Employment,
his Employment shall terminate automatically on the date of his death.
(e) In the case of a Termination of Employment for Cause or
Unacceptable Performance pursuant to this Section, the Executive shall not be
entitled to benefits or payments pursuant to Section 4 or 5; provided,
however, if the Company causes a Termination of the Executives Employment for
Unacceptable Performance and the Termination Date of such termination occurs
during a Change in Control Coverage Period, then such termination shall be
deemed a Termination of the Executives Employment other than a termination
for Cause under Section 5(a) and thereby obligate the Company to
provide the Executive with the payments and benefits set forth in Section 5.
(f) In the case of a Termination of
Employment due to Disability or death pursuant to this Section, the Company
shall continue to pay to the Executive, if living, or other person or persons
as the Executive may from time to time designate in writing as the beneficiary
of such payments, the Base Salary in effect at the time which such Disability
or death occurred, during the three-month period following such Disability or
death. Except for such Base Salary, the
Company shall have no further obligation pursuant to this Section.
8.
Resignation by
Executive for Adequate Reason or Good Reason.
If an event of Adequate Reason or Good Reason
occurs during the Term, the Executive may, at any time within the ninety (90)
day period following such event, provide the Company with a notice of
termination specifying the event of Adequate Reason or Good Reason and
notifying the Company of his intention to Terminate Employment upon the Companys
failure to correct the event of Adequate Reason or Good Reason within thirty
(30) days following receipt of the Executives notice of termination. If the Company fails to correct the event of
Adequate Reason or Good Reason and provide the Executive with notice of such
correction within such thirty (30) day period, the Executives Employment shall
terminate as of the end of such period, and the Executive shall be entitled to
benefits as provided in Section 3 and Section 4 or 5, as applicable.
9.
Limitation
on Payments and Benefits.
Notwithstanding
any other provision of this Agreement, payments pursuant to this Agreement
shall be subject to the following limitations:
(a) No payment (other than a payment
pursuant to Section 3) shall be made pursuant to this Agreement until the
Release has become effective according to its terms.
(b) If the Executive intentionally and
materially breaches any provision of the Confidentiality and Non-Competition Agreement,
and fails to cure such breach (if curable) within thirty (30) days, he shall
promptly repay to the Company any and all severance amounts previously paid to
him pursuant to Section 4 and/or 5, and he shall have no further rights
pursuant to this Agreement.
(c) Payments hereunder shall be limited
to the extent provided in Section 6.
7
10.
No
Obligation to Mitigate.
The
Executive shall not be required to mitigate the amount of any payment or
benefits provided for under Section 4 or 5 by seeking other employment or
otherwise, and the amount of any payment or benefits provided for under Section 4
or 5 shall not be reduced by any payments or benefits received by the Executive
as the result of employment by another employer after the Termination Date, or
otherwise; provided, however, that the amount payable under Section 4 or 5
shall be reduced by the amount of any severance, termination, or notice pay (or
any other similar amounts) required by law to be paid to the Executive by the
Company or its subsidiaries and by any salary or other amounts paid to the
Executive during any notice period that the Company or its subsidiaries is
required by law to provide.
11.
Withholding and
Taxes.
The Company may withhold
from any payment made hereunder (i) any taxes that the Company reasonably
determines are required to be withheld under federal, state, or local tax laws
or regulations, and (ii) any other amounts that the Company is authorized
to withhold. Except for employment taxes
that are the obligation of the Company, the Executive shall pay all federal,
state, local, and other taxes (including, without limitation, interest, fines,
and penalties) imposed on him under applicable law by virtue of or relating to
the payments and/or benefits contemplated by this Agreement, subject to any
reimbursement provisions of this Agreement.
12.
Indemnification.
The Executive shall continue to be
entitled to any rights to insurance and indemnification under the Companys or
a Related Employers directors and officers liability insurance (D&O
Insurance), Certificate of Incorporation, and Bylaws, as in effect before the
earlier of the Executives Termination of Employment or a Change in Control (or
rights to insurance and indemnification that are substantially the same
thereto), with respect to any claims relating to the period before his
Termination Date. Additionally, any and
all D&O Insurance policies obtained by the Company or a Related Employer
following the Termination Date that are claims made polices shall cover the
Executive to the same extent as other former officers of the Company.
13.
Default
in Payment.
Any payment not
made within ten (10) days after it is due in accordance with this
Agreement shall thereafter bear interest, compounded quarterly, at 5% above the
prime rate from time to time in effect at the JP Morgan Chase Bank of New York
or any successor bank.
14.
Effect
on Other Plans, Agreements, and Benefits.
Except to the extent expressly set forth herein, any benefit
or compensation to which the Executive is entitled under any agreement between
the Executive and the Company or any of its subsidiaries or under any plan
maintained by the Company or any of its subsidiaries in which the Executive
participates or participated shall not be modified or lessened in any way, but
shall be payable according to the terms of the applicable plan or agreement.
The terms of this Agreement shall supersede and terminate any prior change in
control and/or severance agreement, and the provisions of any other agreement
providing benefits following a change in control or termination of employment,
entered into between the Executive and the Company or any subsidiary
thereof. Notwithstanding the above, any
severance benefits received by the Executive pursuant to this Agreement shall
be in lieu of any severance benefits to which the Executive would otherwise be
entitled under any general severance policy maintained by the Company or the
relevant subsidiary for its
8
management personnel or under any employment contract between the
Executive and the Company or any subsidiary thereof. Any and all employment agreements between the
Company and the Executive, inclusive of provisions that in accordance with the
terms of such agreements survive termination, are hereby terminated and void.
15.
Unsecured
Obligation.
All rights of the
Executive or any beneficiary of the Executive who succeeds to the Executives
rights to payments or benefits under this Agreement shall at all times be
entirely unfunded and no provision shall at any time be made with respect to
segregating any assets of the Company or payment of any amounts due
hereunder. Neither the Executive nor any
such beneficiary shall have any interest in or rights against any specific
assets of the Company or any of its subsidiaries, and the Executive and any
such beneficiary shall have only the rights of a general unsecured creditor of
the Company.
16.
Prohibition
Against Assignment.
The
Executive may not assign, pledge, anticipate, or transfer any benefit or amount
payable hereunder (other than benefits payable upon or following his death),
and any attempt to assign, pledge, anticipate, or transfer such and benefit or
amount hereunder, whether voluntary or involuntary, shall be null and void.
17.
Successors.
(a) The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive, 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 it if no such
succession had taken place. Failure of
the Company to obtain such agreement before the effectiveness of any such
succession shall be a material breach of this Agreement. As used in this Agreement, Company shall
mean the Company as hereinbefore defined, and any successor to its business
and/or assets as aforesaid that executes and delivers the agreement provided
for in this Subsection or otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the
benefit of and be enforceable by the Executives personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executives devisee,
legatee, or other designee or, if there be no such designee, to the Executives
estate.
18.
Release.
In consideration of the Companys
promises and covenants and the performance thereof, the Executive agrees that
the Companys payment obligations under Sections 4 and 5 shall be conditioned
on the Executives release of the Company and all other persons named in the
Release from any and all causes of causes of action that the Executive has or
may have against the Company or any such person before the effective date of
the Release, other than a cause based on a breach hereof. The Release shall be substantially in the
form attached hereto as Exhibit I.
For the Release to be effective, the Executive (or his representative or
agent) must have provided a signed version of the Release to the Company and
such Release
9
shall have become effective and irrevocable by its terms within sixty
(60) days after the Executives Termination of Employment.
19.
Disputes.
(a) In any judicial or other proceedings
in which the Executives right to, or the amount of, benefits hereunder is
disputed, the ultimate burden of proof shall be on the Company.
(b) Any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Little Falls, New Jersey by three arbitrators, one of whom shall
be appointed by the Company, one of whom shall be appointed by the Executive,
and the third of whom shall be appointed by the first two arbitrators. If either the Company or the Executive fails
to appoint an arbitrator within 20 days of a request in writing by the other to
do so, or if the first two arbitrators cannot agree on the appointment of a
third arbitrator within 20 days after the second arbitrator is designated, then
such arbitrator shall be appointed by the Chief Judge of the United States
District Court located in the city of Newark, New Jersey, or upon his failure
to act, by the American Arbitration Association so as to enable the arbitrators
to render an award within 90 days after the three arbitrators have been
appointed. Following the selection of
arbitrators as set forth above, the arbitration shall be conducted promptly and
expeditiously and in accordance with the rules of the American Arbitration
Association. Judgment may be entered on
the arbitrators award in any court having jurisdiction; provided, however,
that the Executive shall be entitled to seek specific performance of his right
to be paid during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
(c) The Company shall pay all reasonable
out-of-pocket expenses, including reasonable legal fees and legal expenses,
incurred by the Executive in connection with any judicial or other proceeding,
including any arbitration proceeding, to enforce this Agreement or to construe,
determine, or defend the validity of this Agreement. The Company shall pay (or reimburse the
Executive) for any such expense as soon as administratively practicable after
the Executive demonstrates evidence that such expense have been incurred and
not later than thirty (30) days following the Executives submission of such
expenses to the Company with a request for reimbursement.
20.
Miscellaneous
Provisions.
(a)
Entire
Agreement.
This Agreement contains the entire
agreement and understanding of the parties regarding the transactions
contemplated herein and supersedes all prior agreements, arrangements, or
understandings, whether written or oral, relating to the subject matter hereof,
including, without limitation, any letters, agreements, or understandings
between the Executive and the Company or any subsidiary thereof before the date
hereof. By entering into this Severance
Agreement, the Executive waives any right that he may otherwise have to participate
in any generally applicable severance plan of the Company or any Related
Employer.
(b)
Amendment.
No
provision of this Agreement may be amended or waived, except by written
agreement signed by both the Company and the Executive.
10
(c)
Governing
Law.
This Agreement is intended to
comply with the requirements of Code Section 409A, and it shall be
construed in accordance with such intent.
Subject to the preceding sentence, this Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of New Jersey
without regard to principles of conflict of laws.
(d)
Headings
.
The headings in this Agreement have been
inserted solely for ease of reference and shall not be considered in the
interpretation or enforcement of this Agreement.
(e)
Severability.
If
any provision of the Agreement is held to be invalid, illegal, or
unenforceable, the remainder of this Agreement shall not be affected
thereby. If any provision of this
Agreement is held by a court of competent jurisdiction to conflict with any
federal, state, or local law, such provision is hereby declared to be of such
force and effect as is permissible in such jurisdiction.
(f)
Rights
and Waivers.
All rights and
remedies of the parties hereto are separate and cumulative, and no one of them,
whether exercised or not, shall be deemed to exclude, limit, or prejudice any
other right or remedy that either of the parties hereto may have. No party to this Agreement shall be deemed to
waive any right or remedy under this Agreement, unless such waiver is in
writing and signed by such party. No
delay or omission on the part of either party in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or
remedy. A waiver on any one occasion
shall not be construed as a bar to or a waiver of any right or remedy on any
future occasion.
(g)
Notices.
All
notices hereunder shall be in writing. A
notice by the Company shall be deemed to have been given only when delivered in
person to the Executive or mailed by first class United States Mail, Return
Receipt Requested, or sent by overnight delivery (or the fastest delivery
available, if overnight delivery is not available) by means of an
internationally recognized delivery service, to the Executive at his most
recent address on the records of the Company.
A notice by the Executive to the Company shall be deemed to have been
given only when delivered in person to Cantels Chief Executive Officer or
General Counsel or mailed by first class United States Mail, Return Receipt
Requested, or sent by overnight delivery (or the fastest delivery available, if
overnight delivery is not available) by means of an internationally recognized
delivery service, to Cantels Chief Executive Officer and General Counsel at
Cantels headquarters.
(h)
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same instrument, and may be delivered by facsimile or pdf.
21.
No
Reliance
. The Executive
represents and acknowledges that in executing this Agreement, the Executive
does not rely and has not relied upon any representation or statement by the
Company or its agents, other than statements contained in this Agreement.
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MINNTECH CORPORATION
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By:
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Roy K. Malkin
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Date:
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Date:
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12
APPENDIX A
DEFINED TERMS
For purposes of this
Agreement, the following terms shall have the meanings specified below:
Adequate Reason means any of the following without
the express written consent of the Executive:
(1) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(2) a
reduction in the Executives base compensation or failure to include the
Executive with other similarly situated employees in any incentive, bonus, or
benefit plans as may be offered by the Company from time to time;
(3) a
change in the primary location at which the Executive is required perform the
duties of his employment to a location that is more than thirty (30) miles from
the location at which his office is located on the effective date of this
Agreement; or
(4) the
Companys material breach of this Agreement.
Annual Base Salary means
the annual base cash compensation payable to the Executive at the rate in
effect as of the applicable date (excluding bonuses, incentive compensation,
taxable fringe benefits, and any other type of special pay), before any
reduction on account of salary reduction contributions pursuant to Code Section 125
or 401(k) or pursuant to a nonqualified deferred compensation plan.
Board means the Companys
Board of Directors.
Bonus means an annual
cash bonus payable under any Bonus Plan.
Bonus Plan means any
bonus plan, short term incentive compensation plan or other like benefit plan
in which the Executive participates, whether or not awards thereunder are
discretionary.
Cause
means the Executives:
(1) act of fraud, embezzlement, theft, or other intentional
material violation of the law in connection with or in the course of his
employment,
(2) willful gross misconduct that is likely to materially
injure the reputation, business, or a business relationship of the Company; or
(3) willful material violation of the Confidentiality and
Non-Competition Agreement.
For purposes of the definition of Cause,
the following shall apply:
13
·
no act, or failure to act,
on the part of the Executive shall be deemed willful, if it was done or
omitted by the Executive in good faith or with a reasonable belief that the act
or omission was not opposed to the best interests of the Company; and
·
the Executives employment
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard by the Board), finding that in the Boards
good faith opinion, the Executive was guilty of conduct constituting Cause and
describing the specific acts or omissions constituting such conduct.
Change
in Control means the first to occur of the following during the Term:
(1) any one person, or more than one person acting as a group
(as determined by Treas. Reg. § 1.409A-3(i)(5)(B)), acquires ownership of
stock of Cantel that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of Cantel; or
(2) a majority of the members of Cantels board of directors
is replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Cantels board of
directors before the date of the appointment or election; or
(3) (a) the sale by Cantel of more than 50% of its
ownership interest in the Company, (b) the sale by the Company of its
business and all or substantially all of its assets, or (c) the sale of
the Company by Cantel through a merger, consolidation or other transaction
whereby the Company is no longer a direct or indirect subsidiary of Cantel,
provided in each such case that neither Employee nor an affiliate of Employee
is the party acquiring the Company (or its assets).
Notwithstanding the preceding provisions, a Change of
Control will be deemed to occur only to the extent that the event or events
described above constitute a change in the ownership or effective control of
the corporation, or in the ownership of a substantial portion of the assets of
the corporation within the meaning of Code Section 409A(a)(2)(A)(v) and
the regulations thereunder.
Change in Control Date
means the effective date of an event constituting a Change in Control.
Change in Control Period
means the period beginning on the date of a Change in Control and ending two
years thereafter.
Change in Control
Coverage Period means the period (A) commencing on the earlier to occur
of (i) the first day of a Potential Change Period or (ii) the first
day of the six (6) month period ending on the Change in Control Date and (B) ending
on the last day of a Change in Control Period.
14
Code means the Internal
Revenue Code of 1986, as amended from time to time.
Company means Minntech
Corporation and any successor, to the extent provided in Section 17.
Continuation Coverage
means continuation coverage within the meaning of ERISA Sections 601 through
607.
Confidentiality and
Non-Competition Agreement means the confidentiality and non-competition
agreement between the Company and the Executive, as in effect from time to
time.
Disability means an
illness or injury that qualifies the Executive for disability benefits under a
long-term disability plan of the Company or a Related Employer in which the
Executive is a participant; provided, however, that a Disability shall not be
deemed to have occurred hereunder unless the Executive is absent from work or
otherwise substantially unable to assume his normal duties for a period of
ninety (90) successive days or an aggregate of one hundred twenty (120) days
during any consecutive twelve-month period during the Term.
ERISA means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
Exchange Act means the
Securities Exchange Act of 1934, as in effect on the date of this Agreement.
Fiscal Year means the
fiscal year of the Company.
Good Reason means any of
the following without the Executives express written consent:
(1) a material reduction in the Executives base compensation
or failure to include the Executive with other similarly situated employees in
any incentive, bonus, or benefit plans as may be offered by the Company from
time to time;
(2) a material reduction in the Executives authority, duties,
or responsibilities or the assignment to Executive of duties of a substantial
nature and on a continuous or regular basis that are materially inconsistent
with, the duties of the Executive;
(3) a material reduction in the authority, duties, or
responsibilities of the supervisor to whom the Executive is required to report;
(4) a material reduction in the budget over which the
Executive retains authority or responsibility;
(5) a change in the primary location at which the Executive is
required perform the duties of his employment to a location that is more than
thirty (30) miles from the location at which his office is located on the
Change in Control Date; or
(6) the Companys material breach of this Agreement.
15
Monthly Base Salary means
Annual Base Salary, divided by twelve (12).
Parachute Payment has the meaning give to such term
in Code Section 280G(b)(2).
Parachute Payment Limit means three (3) times
the base amount, as defined by Code Section 280G(b)(3).
Potential Change in Control
means that:
(1) the Company has entered into an agreement with any person
or persons, the consummation of which would constitute or result in a Change in
Control; or
(2) any person has publicly announced its intention to take or
consider taking actions that, if consummated, would constitute or result in a
Change in Control; or
(3) any person has begun a solicitation (as defined in Rule 14a-1
of the Securities Exchange Act) of proxies or consents that has the purpose of
effecting or would (if successful) result in a Change in Control; or
(4) any person has initiated a tender offer or exchange offer
that would, if consummated, result in a Change in Control; or
(5) the Board has adopted a resolution to the effect that any
person has begun actions that, if consummated, would result a Change in
Control.
Potential Change Period
means the period beginning on the first day of a Potential Change in Control
and ending on the adoption by the Board of a resolution to the effect that the
agreement, announced intention or actions, solicitation, tender offer, exchange
offer, or other actions constituting a Potential Change in Control has been
consummated.
Related Employer means the
Company and any other employer that is required to be aggregated with the
Company pursuant to Code Section 414(b), (c), or (m).
Release means a Release of
All Claims, in substantially the same form as set out in Exhibit A hereto.
Term means the term of
this Agreement, as determined pursuant to Section 2.
Terminates Employment, Terminate(s) the
Executives Employment, Termination of Employment, or any other variation of
such term means a separation from service within the meaning of Code Section 409A(a)(2)(A).
Termination Date means the
effective date of the Executives Termination of Employment.
Unacceptable Performance means any of the following:
(1) the Executives act or failure to act constituting willful
misconduct or gross negligence that is materially injurious to the Company or
its reputation;
16
(2) the
Executives material failure to perform the duties of his employment (except in
the case of a Termination of Employment for Good Reason or Adequate Reason or
on account of the Executives physical or mental inability to perform such
duties) and the failure to correct such failure within a reasonable period
after receiving written notice from the Board of Directors describing such failure
in detail; provided, however, that the quality of the Executives performance
(determined by achievement of Company or personal targets or otherwise) shall
not be a factor in determining whether Executive has performed his duties.
(3) the
Executives violation of any code of ethics or business conduct or written
harassment policies of the Company that continues after the Board has provided
notice to the Executive that the continuation of such conduct will result in
Termination of the Executives Employment;
(4) willful material violation of the Confidentiality and
Non-Competition Agreement;
(5) the
Executives arrest or indictment for (i) a felony or (ii) lesser
criminal offense involving dishonesty, breach of trust, or moral turpitude; or
(6) the
Executives breach of a material term, condition, or covenant of this Agreement
and the failure to correct such breach promptly following receipt of written
notice from the Board of Directors describing such breach in detail.
17
EXHIBIT I
RELEASE OF ALL CLAIMS
This Release of All
Claims (Release) has been signed by
(Executive) on the date indicated below.
Background
A. The Executive and Minntech
Corporation (Company), a wholly-owned subsidiary of Cantel Medical Corp. (Cantel)
previously entered into an Executive Severance Agreement, dated as of January 1,
2010 (Agreement), which provides for the payment of benefits to the Executive
under certain circumstances following his Termination of Employment.
B. The Executives Employment with the
Company Terminated/will Terminate on
,
under circumstances that entitle him to payments under the Agreement, subject
to the terms thereof.
C. The Companys obligations under the
Agreement are contingent on the Executive signing and providing this Release to
the Company within 21 days after receiving it and allowing this Release to
become effective as provided herein.
D. As a condition of receiving benefits
under the Agreement, the Executive wishes to sign this Release.
In
consideration of the premises and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Executive agrees as
follows:
Release
1. If the Executive (i) signs and
dates this Release and submits it to the Company not later than 21 days after
it is provided to the Executive, (ii) complies with the other requirements
of this Release and the Agreement, and (iii) and does not provide written
revocation of this Agreement to the Company within the seven-day revocation
period referred to in Paragraph 8, the Company shall make the payments and pay
the benefits required by the Agreement.
2. In consideration of the Companys payment obligations
under this Agreement, the Executive releases and discharges the Company and
Cantel, all of their respective past and/or present divisions, affiliates,
officers, directors, shareholders, partners, trustees, employees, agents,
representatives, administrators, attorneys, insurers, fiduciaries, successors,
and assigns, in their individual and/or representative capacities (hereinafter
collectively referred to as Released Persons), from any and all causes of
action, suits, agreements, promises, damages, disputes, controversies,
contentions, differences, judgments, claims, and demands of any kind whatsoever
(Claims) that the Executive and/or his heirs, executors, administrators,
successors, and assigns ever had, now have, or may have against any Released
Person by reason of his employment and/or cessation of employment with the
Company or a Related Employer, or otherwise involving facts that occurred on or
before the date on which the Executive signed this Release, other than (i) a
Claim that the Company has failed to pay the Executive a payment described in
or
18
contemplated by the Agreement or has otherwise breached the terms of
the Agreement, or (ii) a Claim that the Company has failed to pay the
Executive any vested benefits to which he is entitled under a plan or program
of the Company or a Related Employer (collectively, Excluded Claims). Claims, other than Excluded Claims, are
hereafter referred to a Released Claims.
The Executive gives this Release regardless of whether the Released Claims
are known or unknown. Such Released
Claims include, without limitation, any and all Claims under Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the
Civil Rights Act of 1871, the Civil Rights Act of 1991, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, and
any and all other federal, state or local laws, statutes, rules, and
regulations pertaining to employment, as well as any and all claims under state
contract or tort law including, but not limited, to those based on allegations
of wrongful discharge, breach of contract, promissory estoppel, defamation, and
infliction of emotional distress.
3. The Executive hereby covenants not to sue or commence or
maintain any action or proceeding against any Released Person, none of whom
admit any liability, as to any Released Claim.
The Executive hereby agrees that if he hereafter institutes or maintains
an action against any Released Person with respect to a Released Claim, and it
is determined in such action that a claim or claims brought by the Executive in
such action is barred by this Release, he will pay the Released Person for all
costs and expenses, including attorneys fees, incurred in defending against
such claims. The Executive understands
that this Release is final and binding, except as expressly provided
herein. Nothing herein shall (i) prevent
the Executive from filing a charge or complaint, including a challenge to the
validity of this Agreement, with the Equal Employment Opportunity Commission (EEOC),
(ii) prevent the Executive from participating in any investigation or
proceeding conducted by the EEOC, or (iii) establish a condition precedent
or other barrier to exercising the aforesaid rights. While the Executive has a right to
participate in any such investigation, he understands that he is waiving his
right to any monetary recovery arising from any investigation or pursuit of a
claim on his behalf. The Executive
acknowledges that he has the right to file a charge alleging a violation of the
ADEA with any administrative agency and/or to challenge the validity of the
waiver and release of any claim that he may have under the ADEA without either (i) repaying
the Company the amounts paid to him as a result of this Release or (ii) paying
the Company any other monetary amounts (such as attorneys fees and damages).
4. The Executive agrees that if this
Release is ever held to be invalid or unenforceable (in whole or in part) as to
any particular type of claim or as to any particular circumstance, it shall
remain fully valid and enforceable as to all other claims and circumstances.
5. Except as permitted by paragraph 3,
the Executive represents that he has not filed, and will not hereafter file,
any lawsuit against any Released Person relating to his employment and/or
cessation of employment with the Company or any Related Employer, or otherwise
involving facts that occurred on or before the date on which he signed this
Release, other than with respect to any Excluded Claim. The Executive further understands and agrees
that, other than as provided under paragraph 3, if he commences, continues,
joins in, or in any other manner attempts to assert any lawsuit released herein
against a Released Person with regard to a Released Claim, or otherwise
violates the terms of this Release, he shall be required to return all
severance payments paid to him by the Company pursuant to the Executive Severance
Agreement (together
19
with interest thereon), and he agrees to reimburse the Released Person
for all attorneys fees and expenses incurred by it in defending against such a
lawsuit, provided that the right to receive such payments is without prejudice
to the Released Persons other rights hereunder.
6. The Executive understands and
agrees that the Companys payments to him and the signing of this Release do
not in any way indicate that he has any viable Claims against the a Released
Person or that any Released Person admits any liability to him whatsoever.
7. The Executive has read this Release
carefully, has been given at least 21 days to consider all of its terms, has
been advised to consult with an attorney and any other advisors of his choice,
and fully understands that by signing below he is giving up any right that he
may have to sue or bring any Claims (other than the Excluded Claims) against a
Released Person. The Executive has not
been forced or pressured in any manner whatsoever to sign this Release, and he
agrees to all of its terms voluntarily.
8. The Executive understands that he
has seven days from the date on which he signed this Release below to revoke
this Release by notifying the Company of his revocation, that this Release will
not become effective until the eighth day following the date on which he has
signed this Release, and that if he revokes this Release within such period,
the Executive Severance Agreement shall be void.
9. The Executive understands and
agrees that this Release will be governed by the internal laws of the State of
New Jersey, without regard to conflict of law principles, to the extent not
preempted by federal law.
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(Printed Name)
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20
Exhibit
10.6
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (Agreement) is made as of this
1st day of January, 2010, by and between Cantel Medical Corp. (Cantel) and
its subsidiaries, divisions, affiliates, successors, and assigns (collectively
referred to as the Company), and Andrew A. Krakauer (Employee).
Background
A. The Company is a leading manufacturer and provider of
infection prevention and control products in the healthcare market. The Companys
products include specialized medical device reprocessing systems for renal
dialysis and endoscopy, dialysate concentrates and other dialysis supplies,
disposable infection control products primarily for the dental industry, water
purification equipment, sterilants, disinfectants and cleaners, hollow fiber
membrane filtration and separation products for medical and non-medical
applications, and specialty packaging for infectious and biological specimens.
The Company also provides technical maintenance for its products and offers
compliance training services for the transport of infectious and biological
specimens.
B. The Company has developed
commercially valuable technical and non-technical information, the
safeguarding, secrecy, and confidentiality of which are necessary to the
operation and profitability of the Company.
Furthermore, it has spent and will continue to spend considerable time
and money establishing and maintaining business relationships and goodwill with
its current and prospective customers, vendors, suppliers, and distributors,
which relationships are vital to the continued goodwill, operation, and
profitability of the Company.
C. During the Employees employment or
continued employment with the Company, the Employee (i) will have access
to certain valuable proprietary confidential information developed, compiled,
or utilized by the Company in its business; (ii) may or will have frequent
contact with the Companys customers, vendors, suppliers, and distributors, and
(iii) may be able to control, in whole or in part, the business and
relationships between the Company and its customers, vendors, suppliers, and
distributors, and to take or otherwise appropriate business and relationships
if and when the Employee leaves the Companys employment.
D. The Company wishes to protect such
confidential information and business relationships.
Agreement
In
consideration of the premises, the Employees continued employment by the
Company, and the mutual covenants contained in this Agreement, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1.
Confidential Information
.
Employee acknowledges that the Company
possesses confidential information, know-how, customer lists, purchasing,
merchandising and selling techniques and strategies, and other information used
in its operations of which Employee has or will obtain knowledge, and that the
Company will suffer serious and irreparable damages and
harm if this confidential information were disclosed to any other party
or if Employee used this information to compete against the Company. Accordingly, Employee hereby agrees that
except as required by Employees duties to the Company, Employee, without the
consent of the Companys Board of Directors, shall not at any time during or
after the Employment Period disclose or use any secret or confidential
information of the Company, including, without limitation, such business
opportunities, customer lists, trade secrets, formulas, techniques and methods
of which Employee shall become informed during his employment, whether learned
by him as an employee of the Company, as a member of its Board of Directors or
otherwise, and whether or not developed by Employee, unless such information
shall be or becomes public knowledge other than as a result of Employees
direct or indirect disclosure of the same.
2.
Patent and Related Matters
.
2.1
Inventions
. Employee will promptly disclose in writing to
the Company complete information concerning each and every invention,
discovery, improvement and idea (whether or not shown or described in writing
or reduced to practice), and device, design, apparatus, process, and work of
authorship, whether or not patentable, copyrightable or registerable, which is
made, developed, perfected, devised, conceived or first reduced to practice by
Employee, either solely or in collaboration with others, during the Employment
Period, whether or not during regular working hours (hereinafter collectively
referred to as the Inventions).
Subject to Section 2.2, Employee, to the extent that he has the
legal right to do so, hereby assigns and agrees to assign to the Company any
and all of Employees right, title and interest in and to any and all of the
Inventions, and Employee acknowledges that such assigned inventions are and
shall remain the property of the Company.
2.2
Limitation
. It is further agreed and Employee is hereby
notified that the above agreement to assign the Inventions to the Company does
not apply to an Invention for which no equipment, supplies, facility or
confidential information of the Company was used and which was developed
entirely on Employees own time, and
(i) which does not relate (a) directly
to the business of the Company or (b) to the Companys actual or
demonstrably anticipated research or development, or
(ii) which does not result from any work
performed by Employee for the Company.
2.3
Assistance
.
Upon request and without further
compensation therefor, but at no expense to Employee, and whether during the
Employment Period or thereafter, Employee will do all lawful acts, including,
but not limited to, the execution of documents and instruments and the giving
of testimony, that in the opinion of the Company, its successors and assigns,
may be necessary or desirable in obtaining, sustaining, reissuing, extending or
enforcing United States and foreign copyrights and Letters Patent, including,
but not limited to, design patents, on any and all of the Inventions, and for
perfecting, affirming and recording the Companys complete ownership and title
thereto, and to cooperate otherwise in all proceedings and matters relating
thereto.
2
2.4
Records
.
Employee will keep complete, accurate and
authentic accounts, notes, data and records of all the Inventions in the manner
and form requested by the Company. Such
accounts, notes, data and records shall be the property of the Company, and
upon its request, Employee will promptly surrender the same to it.
Upon
the termination of his employment hereunder, Employee agrees to deliver
promptly to the Company all equipment (including computers, etc.), records,
manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,
reports, data, tables, accounts, calculations and copies thereof, which are the
property of the Company or which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession
or under his control.
3.
Non-interference
.
Employee
further agrees that for a period of two years following termination of
Employees employment hereunder, he will not (i) induce or attempt to
induce any other employee of the Company to leave the employ of the Company, or
in any way interfere with the relationship between the Company and any other
employee, or (ii) induce or attempt to induce any customer, supplier,
franchisee, licensee, distributor or other business relation of the Company to
cease doing business with the Company, or in any way interfere with the
relationship between any customer, franchisee or other business relation and
the Company without prior written consent of the Board of Directors of the
Company.
4.
Non-Compete
.
Employee agrees that for a period of six (6) months
following the termination of Employees employment hereunder, except as a
result of the breach by the Company of any material term or condition of the
Executive Severance Agreement between the Company and Employee of even date
herewith, Employee will not, directly or indirectly, alone or with others,
individually or through or by a corporate or other business entity in which he
may be interested as a partner, shareholder, joint venturer, officer, director,
employee or otherwise, own, manage, control, participate in, lend his name to,
or render services to or for any business within the continental United States
or Canada that is directly and materially competitive with a material business
of the Company, provided, however, that the foregoing shall not be deemed to
prevent the ownership by Employee of up to three (3%) percent of any class of
securities of any corporation which is regularly traded on any stock exchange
or over-the-counter market.
5.
Enforcement
.
If, at
the time of enforcement of any provisions of this Section, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
the circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances will be
substituted for the stated period, scope or area. Employee agrees that the covenants made in
this Section shall be construed as an agreement independent of any other
provision of this Agreement, and shall survive the termination of this
Agreement.
3
6
.
Dispute
Resolution
.
6.1
Subject to the provisions of Section 6.2,
any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in Little Falls, New Jersey by
three arbitrators, one of whom shall be appointed by the Company, one of whom
shall be appointed by the Executive, and the third of whom shall be appointed
by the first two arbitrators. If either
the Company or the Executive fails to appoint an arbitrator within 20 days of a
request in writing by the other to do so, or if the first two arbitrators
cannot agree on the appointment of a third arbitrator within 20 days after the
second arbitrator is designated, then such arbitrator shall be appointed by the
Chief Judge of the United States District Court located in the city of Newark,
New Jersey, or upon his failure to act, by the American Arbitration Association
so as to enable the arbitrators to render an award within 90 days after the
three arbitrators have been appointed.
Following the selection of arbitrators as set forth above, the
arbitration shall be conducted promptly and expeditiously and in accordance
with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. The Company shall bear
all of the expenses relating to any arbitration under this Agreement.
6.2 The
Employee recognizes that a breach or threatened breach of the provisions of
Sections 1, 2 and 3 Agreement may give rise to irreparable injury to the
Company, inadequately compensable in damages and, accordingly, agrees that the
Company may seek and obtain injunctive relief, temporary, preliminary, or
permanent, against such breach or threatened breach, in addition to recovering
monetary damages from the Employee. The Employee further agrees and
acknowledges that greater injury would result from a denial of injunctive
relief than from a grant of such relief.
7.
Miscellaneous Provisions
.
7.1 Section headings are for
convenience only and shall not be deemed to govern, limit, modify or supersede
the provisions of this Agreement.
7.2 This Agreement is entered into in the
State of New Jersey and shall be governed pursuant to the laws of the State of
New Jersey. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable, the remaining provisions hereof shall continue to be
fully effective.
7.3 This Agreement contains the entire
agreement of the parties regarding this subject matter and supersedes all prior
agreements, arrangements, or understandings, whether written or oral, relating
to the subject matter hereof, including, without limitation, any letters,
agreements, or understandings between the Employee and the Company or any
subsidiary thereof before the date hereof.
Execution of this Agreement shall supersede and terminate any existing
confidentiality and/or noncompetition agreement, or the provisions of any
employment agreement or other agreement related to confidentiality and/or
noncompetition, entered into between the Employee and the Company or any
subsidiary thereof.
4
7.4 This Agreement may be modified only
by means of a writing signed by the party to be charged with such modification.
7.5 Notices or other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed duly given upon receipt by the party to whom sent at the respective
addresses set forth below or to such other address as any party shall hereafter
designate to the other in writing delivered in accordance herewith:
If
to the Company:
Cantel
Medical Corp.
150
Clove Road
Little
Falls, NJ 07424
Attn: President
If to Employee:
Home address on file with
the Company
7.6 This Agreement shall inure to the
benefit of, and shall be binding upon, the Company, its successors and assigns,
including, without limitation, any entity that may acquire all or substantially
all of the Companys assets and business or into which the Company may be
consolidated or merged. This Agreement
may not be assigned by Employee.
7.7 This Agreement may be executed in
separate counterparts and may be delivered by facsimile or pdf, each of which
shall constitute the original hereof.
IN WITNESS WHEREOF,
the parties have set their
hands as of the date first above written.
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CANTEL
MEDICAL CORP.
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By:
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EMPLOYEE
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Name:
Andrew A. Krakauer
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5
Exhibit 10.7
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
This CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (Agreement)
is made as of this 1st day of January, 2010, by and between Cantel Medical
Corp. (Cantel) and its subsidiaries, divisions, affiliates, successors, and
assigns (collectively referred to as the Company), and Seth R. Segel (Employee).
Background
A.
The Company is a leading manufacturer and
provider of infection prevention and control products in the healthcare market.
The Companys products include specialized medical device reprocessing systems
for renal dialysis and endoscopy, dialysate concentrates and other dialysis
supplies, disposable infection control products primarily for the dental
industry, water purification equipment, sterilants, disinfectants and cleaners,
hollow fiber membrane filtration and separation products for medical and
non-medical applications, and specialty packaging for infectious and biological
specimens. The Company also provides technical maintenance for its products and
offers compliance training services for the transport of infectious and
biological specimens
.
B.
The Company has developed commercially
valuable technical and non-technical information, the safeguarding, secrecy,
and confidentiality of which are necessary to the operation and profitability
of the Company. Furthermore, it has
spent and will continue to spend considerable time and money establishing and
maintaining business relationships and goodwill with its current and
prospective customers, vendors, suppliers, and distributors, which
relationships are vital to the continued goodwill, operation, and profitability
of the Company.
C.
During the Employees employment or
continued employment with the Company, the Employee (i) will have access
to certain valuable proprietary confidential information developed, compiled,
or utilized by the Company in its business; (ii) may or will have frequent
contact with the Companys customers, vendors, suppliers, and distributors, and
(iii) may be able to control, in whole or in part, the business and
relationships between the Company and its customers, vendors, suppliers, and
distributors, and to take or otherwise appropriate business and relationships
if and when the Employee leaves the Companys employment.
D.
The Company wishes to protect such confidential
information and business relationships.
Agreement
In consideration of the premises, the Employees
continued employment by the Company, and the mutual covenants contained in this
Agreement, the receipt and sufficiency of which are acknowledged, the parties
agree as follows:
1.
Confidential
Information
.
Employee acknowledges that the Company possesses confidential
information, know-how, customer lists, purchasing, merchandising and selling
techniques and strategies, and other information used in its operations of
which Employee has or will obtain knowledge, and that the Company will suffer
serious and irreparable damages and
harm if this confidential information were disclosed to any other party
or if Employee used this information to compete against the Company. Accordingly, Employee hereby agrees that
except as required by Employees duties to the Company, Employee, without the
consent of the Companys Board of Directors, shall not at any time during or
after the Employment Period disclose or use any secret or confidential
information of the Company, including, without limitation, such business
opportunities, customer lists, trade secrets, formulas, techniques and methods
of which Employee shall become informed during his employment, whether learned
by him as an employee of the Company, as a member of its Board of Directors or
otherwise, and whether or not developed by Employee, unless such information
shall be or becomes public knowledge other than as a result of Employees
direct or indirect disclosure of the same.
2.
Patent and
Related Matters
.
2.1
Inventions
. Employee will promptly disclose in writing to
the Company complete information concerning each and every invention,
discovery, improvement and idea (whether or not shown or described in writing
or reduced to practice), and device, design, apparatus, process, and work of
authorship, whether or not patentable, copyrightable or registerable, which is
made, developed, perfected, devised, conceived or first reduced to practice by
Employee, either solely or in collaboration with others, during the Employment
Period, whether or not during regular working hours (hereinafter collectively
referred to as the Inventions).
Subject to Section 2.2, Employee, to the extent that he has the
legal right to do so, hereby assigns and agrees to assign to the Company any
and all of Employees right, title and interest in and to any and all of the
Inventions, and Employee acknowledges that such assigned inventions are and
shall remain the property of the Company.
2.2
Limitation
. It is further agreed and Employee is hereby
notified that the above agreement to assign the Inventions to the Company does
not apply to an Invention for which no equipment, supplies, facility or
confidential information of the Company was used and which was developed
entirely on Employees own time, and
(i)
which does not relate (a) directly to the
business of the Company or (b) to the Companys actual or demonstrably
anticipated research or development, or
(ii)
which does not result from any work performed by
Employee for the Company.
2.3
Assistance
.
Upon request and without
further compensation therefor, but at no expense to Employee, and whether
during the Employment Period or thereafter, Employee will do all lawful acts,
including, but not limited to, the execution of documents and instruments and
the giving of testimony, that in the opinion of the Company, its successors and
assigns, may be necessary or desirable in obtaining, sustaining, reissuing,
extending or enforcing United States and foreign copyrights and Letters Patent,
including, but not limited to, design patents, on any and all of the
Inventions, and for perfecting, affirming and recording the Companys complete
ownership and title thereto, and to cooperate otherwise in all proceedings and
matters relating thereto.
2
2.4
Records
.
Employee will keep complete,
accurate and authentic accounts, notes, data and records of all the Inventions
in the manner and form requested by the Company. Such accounts, notes, data and records shall
be the property of the Company, and upon its request, Employee will promptly
surrender the same to it.
Upon the termination of his employment
hereunder, Employee agrees to deliver promptly to the Company all equipment
(including computers, etc.), records, manuals, books, blank forms, documents,
letters, memoranda, notes, notebooks, reports, data, tables, accounts,
calculations and copies thereof, which are the property of the Company or which
relate in any way to the business, products, practices or techniques of the
Company, and all other property, trade secrets and confidential information of
the Company, including, but not limited to, all documents which in whole or in
part contain any trade secrets or confidential information of the Company,
which in any of these cases are in his possession or under his control.
3.
Non-interference
.
Employee further agrees that
for a period of two years following termination of Employees employment
hereunder, he will not (i) induce or attempt to induce any other employee
of the Company to leave the employ of the Company, or in any way interfere with
the relationship between the Company and any other employee, or (ii) induce
or attempt to induce any customer, supplier, franchisee, licensee, distributor
or other business relation of the Company to cease doing business with the
Company, or in any way interfere with the relationship between any customer,
franchisee or other business relation and the Company without prior written
consent of the Board of Directors of the Company.
4.
Non-Compete
.
Employee agrees that for a
period of six (6) months following the termination of Employees
employment hereunder, except as a result of the breach by the Company of any
material term or condition of the Executive Severance Agreement between the
Company and Employee of even date herewith, Employee will not, directly or
indirectly, alone or with others, individually or through or by a corporate or
other business entity in which he may be interested as a partner, shareholder,
joint venturer, officer, director, employee or otherwise, own, manage, control,
participate in, lend his name to, or render services to or for any business
within the continental United States or Canada that is directly and materially
competitive with a material business of the Company, provided, however, that
the foregoing shall not be deemed to prevent the ownership by Employee of up to
three (3%) percent of any class of securities of any corporation which is
regularly traded on any stock exchange or over-the-counter market.
5.
Enforcement
.
If, at the time of
enforcement of any provisions of this Section, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
the circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances will be
substituted for the stated period, scope or area. Employee agrees that the covenants made in
this Section shall be construed as an agreement independent of any other
provision of this Agreement, and shall survive the termination of this
Agreement.
3
6
.
Dispute
Resolution
.
6.1
Subject to the provisions of Section 6.2,
any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in Little Falls, New Jersey by
three arbitrators, one of whom shall be appointed by the Company, one of whom
shall be appointed by the Executive, and the third of whom shall be appointed
by the first two arbitrators. If either
the Company or the Executive fails to appoint an arbitrator within 20 days of a
request in writing by the other to do so, or if the first two arbitrators
cannot agree on the appointment of a third arbitrator within 20 days after the
second arbitrator is designated, then such arbitrator shall be appointed by the
Chief Judge of the United States District Court located in the city of Newark,
New Jersey, or upon his failure to act, by the American Arbitration Association
so as to enable the arbitrators to render an award within 90 days after the
three arbitrators have been appointed.
Following the selection of arbitrators as set forth above, the
arbitration shall be conducted promptly and expeditiously and in accordance
with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. The Company shall bear
all of the expenses relating to any arbitration under this Agreement.
6.2
The Employee recognizes that a breach or
threatened breach of the provisions of Sections 1, 2 and 3 Agreement may give
rise to irreparable injury to the Company, inadequately compensable in damages
and, accordingly, agrees that the Company may seek and obtain injunctive
relief, temporary, preliminary, or permanent, against such breach or threatened
breach, in addition to recovering monetary damages from the Employee. The
Employee further agrees and acknowledges that greater injury would result from
a denial of injunctive relief than from a grant of such relief.
7.
Miscellaneous Provisions
.
7.1
Section headings are for convenience only and
shall not be deemed to govern, limit, modify or supersede the provisions of
this Agreement.
7.2
This Agreement is entered into in the State of New
Jersey and shall be governed pursuant to the laws of the State of New
Jersey. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable, the remaining provisions hereof shall continue to be
fully effective.
7.3
This Agreement contains the entire agreement of the
parties regarding this subject matter
and supersedes all prior agreements, arrangements, or
understandings, whether written or oral, relating to the subject matter hereof,
including, without limitation, any letters, agreements, or understandings
between the Employee and the Company or any subsidiary thereof before the date
hereof. Execution of this Agreement
shall supersede and terminate any existing confidentiality and/or
noncompetition agreement, or the provisions of any employment agreement or
other agreement related to confidentiality and/or noncompetition, entered into
between the Employee and the Company or any subsidiary thereof.
4
7.4
This Agreement may be modified only by means of a
writing signed by the party to be charged with such modification.
7.5
Notices or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed duly
given upon receipt by the party to whom sent at the respective addresses set
forth below or to such other address as any party shall hereafter designate to
the other in writing delivered in accordance herewith:
If to the Company:
Cantel Medical Corp.
150 Clove Road
Little Falls, NJ 07424
Attn: President
If to Employee:
Home address on file with
the Company
7.6
This Agreement shall inure to the benefit of, and
shall be binding upon, the Company, its successors and assigns, including,
without limitation, any entity that may acquire all or substantially all of the
Companys assets and business or into which the Company may be consolidated or
merged. This Agreement may not be
assigned by Employee.
7.7
This Agreement may be executed in separate
counterparts and may be delivered by facsimile or pdf, each of which shall
constitute the original hereof.
IN WITNESS WHEREOF,
the parties
have set their hands as of the date first above written.
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CANTEL MEDICAL CORP.
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By:
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EMPLOYEE
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Name: Seth R. Segel
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5
Exhibit 10.8
CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
This CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (Agreement)
is made as of this 1st day of January, 2010, by and between Cantel Medical
Corp. (Cantel) and its subsidiaries, divisions, affiliates, successors, and
assigns (collectively referred to as the Company), and Craig A. Sheldon (Employee).
Background
A.
T
he Company is a leading manufacturer and provider of
infection prevention and control products in the healthcare market. The Companys
products include specialized medical device reprocessing systems for renal
dialysis and endoscopy, dialysate concentrates and other dialysis supplies,
disposable infection control products primarily for the dental industry, water
purification equipment, sterilants, disinfectants and cleaners, hollow fiber
membrane filtration and separation products for medical and non-medical
applications, and specialty packaging for infectious and biological specimens.
The Company also provides technical maintenance for its products and offers
compliance training services for the transport of infectious and biological
specimens
.
B.
The Company has developed commercially
valuable technical and non-technical information, the safeguarding, secrecy,
and confidentiality of which are necessary to the operation and profitability
of the Company. Furthermore, it has
spent and will continue to spend considerable time and money establishing and
maintaining business relationships and goodwill with its current and
prospective customers, vendors, suppliers, and distributors, which
relationships are vital to the continued goodwill, operation, and profitability
of the Company.
C.
During the Employees employment or
continued employment with the Company, the Employee (i) will have access
to certain valuable proprietary confidential information developed, compiled,
or utilized by the Company in its business; (ii) may or will have frequent
contact with the Companys customers, vendors, suppliers, and distributors, and
(iii) may be able to control, in whole or in part, the business and
relationships between the Company and its customers, vendors, suppliers, and
distributors, and to take or otherwise appropriate business and relationships
if and when the Employee leaves the Companys employment.
D.
The Company wishes to protect such confidential
information and business relationships.
Agreement
In consideration of the premises, the Employees
continued employment by the Company, and the mutual covenants contained in this
Agreement, the receipt and sufficiency of which are acknowledged, the parties
agree as follows:
1.
Confidential
Information
.
Employee acknowledges that the Company possesses confidential
information, know-how, customer lists, purchasing, merchandising and selling
techniques and strategies, and other information used in its operations of
which Employee has or will obtain knowledge, and that the Company will suffer
serious and irreparable damages and
harm if this confidential information were disclosed to any other party
or if Employee used this information to compete against the Company. Accordingly, Employee hereby agrees that
except as required by Employees duties to the Company, Employee, without the
consent of the Companys Board of Directors, shall not at any time during or
after the Employment Period disclose or use any secret or confidential
information of the Company, including, without limitation, such business
opportunities, customer lists, trade secrets, formulas, techniques and methods
of which Employee shall become informed during his employment, whether learned
by him as an employee of the Company, as a member of its Board of Directors or
otherwise, and whether or not developed by Employee, unless such information
shall be or becomes public knowledge other than as a result of Employees
direct or indirect disclosure of the same.
2.
Patent and
Related Matters
.
2.1
Inventions
. Employee will promptly disclose in writing to
the Company complete information concerning each and every invention,
discovery, improvement and idea (whether or not shown or described in writing
or reduced to practice), and device, design, apparatus, process, and work of
authorship, whether or not patentable, copyrightable or registerable, which is
made, developed, perfected, devised, conceived or first reduced to practice by
Employee, either solely or in collaboration with others, during the Employment
Period, whether or not during regular working hours (hereinafter collectively
referred to as the Inventions).
Subject to Section 2.2, Employee, to the extent that he has the
legal right to do so, hereby assigns and agrees to assign to the Company any
and all of Employees right, title and interest in and to any and all of the
Inventions, and Employee acknowledges that such assigned inventions are and
shall remain the property of the Company.
2.2
Limitation
. It is further agreed and Employee is hereby
notified that the above agreement to assign the Inventions to the Company does
not apply to an Invention for which no equipment, supplies, facility or
confidential information of the Company was used and which was developed
entirely on Employees own time, and
(i)
which does not relate (a) directly to the
business of the Company or (b) to the Companys actual or demonstrably
anticipated research or development, or
(ii)
which does not result from any work performed by
Employee for the Company.
2.3
Assistance
.
Upon request and without
further compensation therefor, but at no expense to Employee, and whether
during the Employment Period or thereafter, Employee will do all lawful acts,
including, but not limited to, the execution of documents and instruments and
the giving of testimony, that in the opinion of the Company, its successors and
assigns, may be necessary or desirable in obtaining, sustaining, reissuing,
extending or enforcing United States and foreign copyrights and Letters Patent,
including, but not limited to, design patents, on any and all of the
Inventions, and for perfecting, affirming and recording the Companys complete
ownership and title thereto, and to cooperate otherwise in all proceedings and
matters relating thereto.
2
2.4
Records
.
Employee will keep complete,
accurate and authentic accounts, notes, data and records of all the Inventions
in the manner and form requested by the Company. Such accounts, notes, data and records shall
be the property of the Company, and upon its request, Employee will promptly
surrender the same to it.
Upon the termination of his employment
hereunder, Employee agrees to deliver promptly to the Company all equipment
(including computers, etc.), records, manuals, books, blank forms, documents,
letters, memoranda, notes, notebooks, reports, data, tables, accounts,
calculations and copies thereof, which are the property of the Company or which
relate in any way to the business, products, practices or techniques of the
Company, and all other property, trade secrets and confidential information of
the Company, including, but not limited to, all documents which in whole or in
part contain any trade secrets or confidential information of the Company,
which in any of these cases are in his possession or under his control.
3.
Non-interference
.
Employee further agrees that
for a period of two years following termination of Employees employment
hereunder, he will not (i) induce or attempt to induce any other employee
of the Company to leave the employ of the Company, or in any way interfere with
the relationship between the Company and any other employee, or (ii) induce
or attempt to induce any customer, supplier, franchisee, licensee, distributor
or other business relation of the Company to cease doing business with the
Company, or in any way interfere with the relationship between any customer, franchisee
or other business relation and the Company without prior written consent of the
Board of Directors of the Company.
4.
Non-Compete
.
Employee agrees that for a
period of six (6) months following the termination of Employees
employment hereunder, except as a result of the breach by the Company of any
material term or condition of the Executive Severance Agreement between the
Company and Employee of even date herewith, Employee will not, directly or
indirectly, alone or with others, individually or through or by a corporate or
other business entity in which he may be interested as a partner, shareholder,
joint venturer, officer, director, employee or otherwise, own, manage, control,
participate in, lend his name to, or render services to or for any business
within the continental United States or Canada that is directly and materially
competitive with a material business of the Company, provided, however, that
the foregoing shall not be deemed to prevent the ownership by Employee of up to
three (3%) percent of any class of securities of any corporation which is
regularly traded on any stock exchange or over-the-counter market.
5.
Enforcement
.
If, at the time of
enforcement of any provisions of this Section, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
the circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances will be
substituted for the stated period, scope or area. Employee agrees that the covenants made in
this Section shall be construed as an agreement independent of any other
provision of this Agreement, and shall survive the termination of this
Agreement.
3
6
.
Dispute
Resolution
.
6.1
Subject to the provisions of Section 6.2,
any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in Little Falls, New Jersey by
three arbitrators, one of whom shall be appointed by the Company, one of whom
shall be appointed by the Executive, and the third of whom shall be appointed
by the first two arbitrators. If either
the Company or the Executive fails to appoint an arbitrator within 20 days of a
request in writing by the other to do so, or if the first two arbitrators
cannot agree on the appointment of a third arbitrator within 20 days after the
second arbitrator is designated, then such arbitrator shall be appointed by the
Chief Judge of the United States District Court located in the city of Newark,
New Jersey, or upon his failure to act, by the American Arbitration Association
so as to enable the arbitrators to render an award within 90 days after the
three arbitrators have been appointed.
Following the selection of arbitrators as set forth above, the
arbitration shall be conducted promptly and expeditiously and in accordance
with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. The Company shall bear
all of the expenses relating to any arbitration under this Agreement.
6.2
The Employee recognizes that a breach or
threatened breach of the provisions of Sections 1, 2 and 3 Agreement may give
rise to irreparable injury to the Company, inadequately compensable in damages
and, accordingly, agrees that the Company may seek and obtain injunctive
relief, temporary, preliminary, or permanent, against such breach or threatened
breach, in addition to recovering monetary damages from the Employee. The
Employee further agrees and acknowledges that greater injury would result from
a denial of injunctive relief than from a grant of such relief.
7.
Miscellaneous Provisions
.
7.1
Section headings are for convenience only and
shall not be deemed to govern, limit, modify or supersede the provisions of
this Agreement.
7.2
This Agreement is entered into in the State of New
Jersey and shall be governed pursuant to the laws of the State of New
Jersey. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable, the remaining provisions hereof shall continue to be
fully effective.
7.3
This Agreement contains the entire agreement of the
parties regarding this subject matter
and supersedes all prior agreements, arrangements, or
understandings, whether written or oral, relating to the subject matter hereof,
including, without limitation, any letters, agreements, or understandings
between the Employee and the Company or any subsidiary thereof before the date
hereof. Execution of this Agreement
shall supersede and terminate any existing confidentiality and/or
noncompetition agreement, or the provisions of any employment agreement or
other agreement related to confidentiality and/or noncompetition, entered into
between the Employee and the Company or any subsidiary thereof.
4
7.4
This Agreement may be modified only by means of a
writing signed by the party to be charged with such modification.
7.5
Notices or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed duly
given upon receipt by the party to whom sent at the respective addresses set
forth below or to such other address as any party shall hereafter designate to
the other in writing delivered in accordance herewith:
If to the Company:
Cantel Medical Corp.
150 Clove Road
Little Falls, NJ 07424
Attn: President
If to Employee:
Home address on file with
the Company
7.6
This Agreement shall inure to the benefit of, and
shall be binding upon, the Company, its successors and assigns, including,
without limitation, any entity that may acquire all or substantially all of the
Companys assets and business or into which the Company may be consolidated or
merged. This Agreement may not be
assigned by Employee.
7.7
This Agreement may be executed in separate
counterparts and may be delivered by facsimile or pdf, each of which shall
constitute the original hereof.
IN WITNESS WHEREOF,
the parties
have set their hands as of the date first above written.
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CANTEL MEDICAL CORP.
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By:
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EMPLOYEE
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Name:
Craig
A. Sheldon
|
5
Exhibit
10.9
CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
This CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
(Agreement) is made as of this 1st day of January, 2010, by and between
Cantel Medical Corp. (Cantel) and its subsidiaries, divisions, affiliates,
successors, and assigns (collectively referred to as the Company), and Eric
W. Nodiff (Employee).
Background
A.
The Company is a leading manufacturer and
provider of infection prevention and control products in the healthcare market.
The Companys products include specialized medical device reprocessing systems
for renal dialysis and endoscopy, dialysate concentrates and other dialysis
supplies, disposable infection control products primarily for the dental
industry, water purification equipment, sterilants, disinfectants and cleaners,
hollow fiber membrane filtration and separation products for medical and
non-medical applications, and specialty packaging for infectious and biological
specimens. The Company also provides technical maintenance for its products and
offers compliance training services for the transport of infectious and
biological specimens.
B.
The Company has developed commercially
valuable technical and non-technical information, the safeguarding, secrecy,
and confidentiality of which are necessary to the operation and profitability
of the Company. Furthermore, it has
spent and will continue to spend considerable time and money establishing and
maintaining business relationships and goodwill with its current and
prospective customers, vendors, suppliers, and distributors, which
relationships are vital to the continued goodwill, operation, and profitability
of the Company.
C.
During the Employees employment or
continued employment with the Company, the Employee (i) will have access
to certain valuable proprietary confidential information developed, compiled,
or utilized by the Company in its business; (ii) may or will have frequent
contact with the Companys customers, vendors, suppliers, and distributors, and
(iii) may be able to control, in whole or in part, the business and
relationships between the Company and its customers, vendors, suppliers, and
distributors, and to take or otherwise appropriate business and relationships
if and when the Employee leaves the Companys employment.
D.
The Company wishes to protect such
confidential information and business relationships.
Agreement
In consideration of the premises, the Employees
continued employment by the Company, and the mutual covenants contained in this
Agreement, the receipt and sufficiency of which are acknowledged, the parties
agree as follows:
1.
Confidential Information
.
Employee acknowledges that the Company possesses
confidential information, know-how, customer lists, purchasing, merchandising
and selling techniques and strategies, and other information used in its
operations of which Employee has or will obtain knowledge, and that the Company
will suffer serious and irreparable damages and
harm if this confidential information were disclosed
to any other party or if Employee used this information to compete against the
Company. Accordingly, Employee hereby
agrees that except as required by Employees duties to the Company, Employee,
without the consent of the Companys Board of Directors, shall not at any time
during or after the Employment Period disclose or use any secret or
confidential information of the Company, including, without limitation, such
business opportunities, customer lists, trade secrets, formulas, techniques and
methods of which Employee shall become informed during his employment, whether
learned by him as an employee of the Company, as a member of its Board of
Directors or otherwise, and whether or not developed by Employee, unless such
information shall be or becomes public knowledge other than as a result of
Employees direct or indirect disclosure of the same.
2.
Patent and Related
Matters
.
2.1
Inventions
.
Employee will promptly disclose in writing to the Company complete
information concerning each and every invention, discovery, improvement and
idea (whether or not shown or described in writing or reduced to practice), and
device, design, apparatus, process, and work of authorship, whether or not
patentable, copyrightable or registerable, which is made, developed, perfected,
devised, conceived or first reduced to practice by Employee, either solely or
in collaboration with others, during the Employment Period, whether or not
during regular working hours (hereinafter collectively referred to as the
Inventions). Subject to
Section 2.2, Employee, to the extent that he has the legal right to do so,
hereby assigns and agrees to assign to the Company any and all of Employees
right, title and interest in and to any and all of the Inventions, and Employee
acknowledges that such assigned inventions are and shall remain the property of
the Company.
2.2
Limitation
.
It is further agreed and Employee is hereby notified that the above
agreement to assign the Inventions to the Company does not apply to an
Invention for which no equipment, supplies, facility or confidential
information of the Company was used and which was developed entirely on
Employees own time, and
(i)
which does not relate (a) directly
to the business of the Company or (b) to the Companys actual or
demonstrably anticipated research or development, or
(ii)
which does not result from any work
performed by Employee for the Company.
2.3
Assistance
.
Upon request and without further compensation
therefor, but at no expense to Employee, and whether during the Employment
Period or thereafter, Employee will do all lawful acts, including, but not
limited to, the execution of documents and instruments and the giving of
testimony, that in the opinion of the Company, its successors and assigns, may
be necessary or desirable in obtaining, sustaining, reissuing, extending or
enforcing United States and foreign copyrights and Letters Patent, including,
but not limited to, design patents, on any and all of the Inventions, and for
perfecting, affirming and recording the Companys complete ownership and title
thereto, and to cooperate otherwise in all proceedings and matters relating
thereto.
2
2.4
Records
.
Employee will keep complete, accurate and authentic
accounts, notes, data and records of all the Inventions in the manner and form
requested by the Company. Such accounts,
notes, data and records shall be the property of the Company, and upon its
request, Employee will promptly surrender the same to it.
Upon the termination of his employment hereunder,
Employee agrees to deliver promptly to the Company all equipment (including
computers, etc.), records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, accounts, calculations and
copies thereof, which are the property of the Company or which relate in any
way to the business, products, practices or techniques of the Company, and all
other property, trade secrets and confidential information of the Company,
including, but not limited to, all documents which in whole or in part contain
any trade secrets or confidential information of the Company, which in any of
these cases are in his possession or under his control.
3.
Non-interference
.
Employee further agrees that for a period of two years
following termination of Employees employment hereunder, he will not
(i) induce or attempt to induce any other employee of the Company to leave
the employ of the Company, or in any way interfere with the relationship
between the Company and any other employee, or (ii) induce or attempt to
induce any customer, supplier, franchisee, licensee, distributor or other
business relation of the Company to cease doing business with the Company, or
in any way interfere with the relationship between any customer, franchisee or
other business relation and the Company without prior written consent of the
Board of Directors of the Company.
4.
Non-Compete
.
Employee agrees that for a period of six
(6) months following the termination of Employees employment hereunder, except
as a result of the breach by the Company of any material term or condition of
the Executive Severance Agreement between the Company and Employee of even date
herewith, Employee will not, directly or indirectly, alone or with others,
individually or through or by a corporate or other business entity in which he
may be interested as a partner, shareholder, joint venturer, officer, director,
employee or otherwise, own, manage, control, participate in, lend his name to,
or render services to or for any business within the continental United States
or Canada that is directly and materially competitive with a material business
of the Company, provided, however, that the foregoing shall not be deemed to
prevent the ownership by Employee of up to three (3%) percent of any class of
securities of any corporation which is regularly traded on any stock exchange
or over-the-counter market.
5.
Enforcement
.
If, at the time of enforcement of any provisions of
this Section, a court of competent jurisdiction holds that the restrictions
stated herein are unreasonable under the circumstances then existing, the
parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances will be substituted for the stated period,
scope or area. Employee agrees that the
covenants made in this Section shall be construed as an agreement
independent of any other provision of this Agreement, and shall survive the
termination of this Agreement.
3
6
.
Dispute Resolution
.
6.1
Subject to the provisions of
Section 6.2, any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Little
Falls, New Jersey by three arbitrators, one of whom shall be appointed by the
Company, one of whom shall be appointed by the Executive, and the third of whom
shall be appointed by the first two arbitrators. If either the Company or the Executive fails
to appoint an arbitrator within 20 days of a request in writing by the other to
do so, or if the first two arbitrators cannot agree on the appointment of a
third arbitrator within 20 days after the second arbitrator is designated, then
such arbitrator shall be appointed by the Chief Judge of the United States District
Court located in the city of Newark, New Jersey, or upon his failure to act, by
the American Arbitration Association so as to enable the arbitrators to render
an award within 90 days after the three arbitrators have been appointed. Following the selection of arbitrators as set
forth above, the arbitration shall be conducted promptly and expeditiously and
in accordance with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. The Company shall bear
all of the expenses relating to any arbitration under this Agreement.
6.2
The Employee recognizes that a breach or
threatened breach of the provisions of Sections 1, 2 and 3 Agreement may give
rise to irreparable injury to the Company, inadequately compensable in damages
and, accordingly, agrees that the Company may seek and obtain injunctive
relief, temporary, preliminary, or permanent, against such breach or threatened
breach, in addition to recovering monetary damages from the Employee. The
Employee further agrees and acknowledges that greater injury would result from
a denial of injunctive relief than from a grant of such relief.
7.
Miscellaneous Provisions
.
7.1
Section headings are for convenience
only and shall not be deemed to govern, limit, modify or supersede the
provisions of this Agreement.
7.2
This Agreement is entered into in the
State of New Jersey and shall be governed pursuant to the laws of the State of
New Jersey. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable, the remaining provisions hereof shall continue to be
fully effective.
7.3
This Agreement contains the entire
agreement of the parties regarding this subject matter and supersedes all prior
agreements, arrangements, or understandings, whether written or oral, relating
to the subject matter hereof, including, without limitation, any letters,
agreements, or understandings between the Employee and the Company or any
subsidiary thereof before the date hereof.
Execution of this Agreement shall supersede and terminate any existing
confidentiality and/or noncompetition agreement, or the provisions of any
employment agreement or other agreement related to confidentiality and/or
noncompetition, entered into between the Employee and the Company or any
subsidiary thereof.
4
7.4
This Agreement may be modified only by
means of a writing signed by the party to be charged with such modification.
7.5
Notices or other communications required
or permitted to be given hereunder shall be in writing and shall be deemed duly
given upon receipt by the party to whom sent at the respective addresses set
forth below or to such other address as any party shall hereafter designate to
the other in writing delivered in accordance herewith:
If to the Company:
Cantel Medical Corp.
150 Clove Road
Little Falls, NJ
07424
Attn: President
If to Employee:
Home address on file with the Company
7.6
This Agreement shall inure to the benefit
of, and shall be binding upon, the Company, its successors and assigns,
including, without limitation, any entity that may acquire all or substantially
all of the Companys assets and business or into which the Company may be
consolidated or merged. This Agreement
may not be assigned by Employee.
7.7
This Agreement may be executed in
separate counterparts and may be delivered by facsimile or pdf, each of which
shall constitute the original hereof.
IN WITNESS WHEREOF,
the parties have set their hands as of
the date first above written.
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CANTEL MEDICAL CORP.
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By:
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EMPLOYEE
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Name: Eric W. Nodiff
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5
Exhibit 10.10
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT (Agreement) is made as of this 1st day of January,
2010, by and between Minntech Corporation (Minntech) and its parent company
(Cantel Medical Corp.), subsidiaries, divisions, affiliates, successors, and
assigns (collectively referred to as the Company), and Roy K. Malkin
(Employee).
Background
A.
The Company is
a leading manufacturer and provider of i
nfection prevention and
control products in the healthcare market. The Companys
products
include
specialized medical device reprocessing systems for renal dialysis and
endoscopy, dialysate concentrates and other dialysis supplies, disposable
infection control products primarily for the dental industry, water
purification equipment, sterilants, disinfectants and cleaners, hollow fiber
membrane filtration and separation products for medical and non-medical
applications, and specialty packaging for infectious and biological specimens.
The Company also provides technical maintenance for its products and offers
compliance training services for the transport of infectious and biological
specimens. Included in the above are the principal products of Minntech:
specialized medical device reprocessing systems for renal dialysis and
endoscopy, dialysate concentrates and other dialysis supplies, sterilants,
disinfectants and cleaners, and hollow fiber membrane filtration and separation
products for medical and non-medical applications.
B.
The Company has
developed commercially valuable technical and non-technical information, the
safeguarding, secrecy, and confidentiality of which are necessary to the
operation and profitability of the Company.
Furthermore, it has spent and will continue to spend considerable time
and money establishing and maintaining business relationships and goodwill with
its current and prospective customers, vendors, suppliers, and distributors,
which relationships are vital to the continued goodwill, operation, and
profitability of the Company.
C.
During the
Employees employment or continued employment with the Company, the Employee (i) will
have access to certain valuable proprietary confidential information developed,
compiled, or utilized by the Company in its business; (ii) may or will
have frequent contact with the Companys customers, vendors, suppliers, and
distributors, and (iii) may be able to control, in whole or in part, the
business and relationships between the Company and its customers, vendors,
suppliers, and distributors, and to take or otherwise appropriate business and
relationships if and when the Employee leaves the Companys employment.
D.
The Company
wishes to protect such confidential information and business relationships.
Agreement
In consideration of the
premises, the Employees continued employment by the Company, and the mutual
covenants contained in this Agreement, the receipt and sufficiency of which are
acknowledged, the parties agree as follows:
1.
Confidential Information
.
Employee acknowledges that
the Company possesses confidential information, know-how, customer lists,
purchasing, merchandising and selling techniques and strategies, and other
information used in its operations of which Employee has or will obtain
knowledge, and that the Company will suffer serious and irreparable damages and
harm if this confidential information were disclosed to any other party or if
Employee used this information to compete against the Company. Accordingly, Employee hereby agrees that
except as required by Employees duties to the Company, Employee, without the
consent of the Companys Board of Directors, shall not at any time during or
after the Employment Period disclose or use any secret or confidential
information of the Company, including, without limitation, such business
opportunities, customer lists, trade secrets, formulas, techniques and methods
of which Employee shall become informed during his employment, whether learned
by him as an employee of the Company, as a member of its Board of Directors or
otherwise, and whether or not developed by Employee, unless such information
shall be or becomes public knowledge other than as a result of Employees
direct or indirect disclosure of the same.
2.
Patent and Related Matters
.
2.1
Inventions
. Employee
will promptly disclose in writing to the Company complete information
concerning each and every invention, discovery, improvement and idea (whether
or not shown or described in writing or reduced to practice), and device,
design, apparatus, process, and work of authorship, whether or not patentable,
copyrightable or registerable, which is made, developed, perfected, devised,
conceived or first reduced to practice by Employee, either solely or in
collaboration with others, during the Employment Period, whether or not during
regular working hours (hereinafter collectively referred to as the
Inventions). Subject to Section 2.2,
Employee, to the extent that he has the legal right to do so, hereby assigns
and agrees to assign to the Company any and all of Employees right, title and
interest in and to any and all of the Inventions, and Employee acknowledges
that such assigned inventions are and shall remain the property of the Company.
2.2
Limitation
. It is
further agreed and Employee is hereby notified that the above agreement to
assign the Inventions to the Company does not apply to an Invention for which
no equipment, supplies, facility or confidential information of the Company was
used and which was developed entirely on Employees own time, and
(i)
which does not
relate (a) directly to the business of the Company or (b) to the
Companys actual or demonstrably anticipated research or development, or
(ii)
which does not
result from any work performed by Employee for the Company.
2.3
Assistance
.
Upon request and without
further compensation therefor, but at no expense to Employee, and whether
during the Employment Period or thereafter, Employee will do all lawful acts,
including, but not limited to, the execution of documents and instruments and
the giving of testimony, that in the opinion of the Company, its successors and
assigns, may be necessary or desirable in obtaining, sustaining, reissuing,
extending or enforcing United States
2
and foreign copyrights and
Letters Patent, including, but not limited to, design patents, on any and all
of the Inventions, and for perfecting, affirming and recording the Companys
complete ownership and title thereto, and to cooperate otherwise in all
proceedings and matters relating thereto.
2.4
Records
.
Employee will keep complete, accurate and authentic accounts, notes,
data and records of all the Inventions in the manner and form requested by the
Company. Such accounts, notes, data and
records shall be the property of the Company, and upon its request, Employee
will promptly surrender the same to it.
Upon the termination of his
employment hereunder, Employee agrees to deliver promptly to the Company all
equipment (including computers, etc.), records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables,
accounts, calculations and copies thereof, which are the property of the
Company or which relate in any way to the business, products, practices or
techniques of the Company, and all other property, trade secrets and
confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession
or under his control.
3.
Non-interference
.
Employee further agrees that
for a period of two years following termination of Employees employment
hereunder, he will not (i) induce or attempt to induce any other employee
of the Company to leave the employ of the Company, or in any way interfere with
the relationship between the Company and any other employee, or (ii) induce
or attempt to induce any customer, supplier, franchisee, licensee, distributor
or other business relation of the Company to cease doing business with the
Company, or in any way interfere with the relationship between any customer,
franchisee or other business relation and the Company without prior written
consent of the Board of Directors of the Company.
4.
Non-Compete
.
Employee agrees that for a
period of one (1) year following the termination of Employees employment
hereunder, except as a result of the breach by Minntech of any material term or
condition of the Executive Severance Agreement between Minntech and Employee of
even date herewith, Employee will not, directly or indirectly, alone or with
others, individually or through or by a corporate or other business entity in
which he may be interested as a partner, shareholder, joint venturer, officer,
director, employee or otherwise, own, manage, control, participate in, lend his
name to, or render services to or for any business within the continental
United States or Canada that is directly and materially competitive with a
material business of Minntech, provided, however, that the foregoing shall not
be deemed to prevent the ownership by Employee of up to three (3%) percent of
any class of securities of any corporation which is regularly traded on any
stock exchange or over-the-counter market.
5.
Enforcement
.
If, at the time of
enforcement of any provisions of this Section, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
the circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances will be
substituted for the stated period, scope or area. Employee agrees that the covenants made in
this Section shall be construed as an
3
agreement independent of any
other provision of this Agreement, and shall survive the termination of this
Agreement.
6
.
Dispute Resolution
.
6.1
Subject to the provisions of Section 6.2, any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Little Falls, New Jersey by three
arbitrators, one of whom shall be appointed by the Company, one of whom shall
be appointed by the Executive, and the third of whom shall be appointed by the
first two arbitrators. If either the
Company or the Executive fails to appoint an arbitrator within 20 days of a
request in writing by the other to do so, or if the first two arbitrators
cannot agree on the appointment of a third arbitrator within 20 days after the
second arbitrator is designated, then such arbitrator shall be appointed by the
Chief Judge of the United States District Court located in the city of Newark,
New Jersey, or upon his failure to act, by the American Arbitration Association
so as to enable the arbitrators to render an award within 90 days after the
three arbitrators have been appointed.
Following the selection of arbitrators as set forth above, the
arbitration shall be conducted promptly and expeditiously and in accordance
with the rules of the American Arbitration Association. Judgment may be entered on the arbitrators
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. The Company shall bear
all of the expenses relating to any arbitration under this Agreement.
6.2
The Employee
recognizes that a breach or threatened breach of the provisions of Sections 1,
2 and 3 Agreement may give rise to irreparable injury to the Company,
inadequately compensable in damages and, accordingly, agrees that the Company
may seek and obtain injunctive relief, temporary, preliminary, or permanent,
against such breach or threatened breach, in addition to recovering monetary
damages from the Employee. The Employee further agrees and acknowledges that
greater injury would result from a denial of injunctive relief than from a
grant of such relief.
7.
Miscellaneous
Provisions
.
7.1
Section headings
are for convenience only and shall not be deemed to govern, limit, modify or
supersede the provisions of this Agreement.
7.2
This Agreement
is entered into in the State of New Jersey and shall be governed pursuant to
the laws of the State of New Jersey. If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, the remaining provisions
hereof shall continue to be fully effective.
7.3
This Agreement
contains the entire agreement of the parties regarding this subject matter and
supersedes all prior agreements, arrangements, or understandings, whether
written or oral, relating to the subject matter hereof, including, without
limitation, any letters, agreements, or understandings between the Employee and
the Company or any subsidiary thereof before the date hereof. Execution of this Agreement shall supersede
and terminate any
4
existing confidentiality
and/or noncompetition agreement, or the provisions of any employment agreement
or other agreement related to confidentiality and/or noncompetition, entered
into between the Employee and the Company or any subsidiary thereof.
7.4
This Agreement
may be modified only by means of a writing signed by the party to be charged
with such modification.
7.5
Notices or
other communications required or permitted to be given hereunder shall be in
writing and shall be deemed duly given upon receipt by the party to whom sent
at the respective addresses set forth below or to such other address as any
party shall hereafter designate to the other in writing delivered in accordance
herewith:
If to the Company:
Minntech Corporation
14605 28th Avenue North
Minneapolis, Minnesota
55447-4822
Attn:
CFO
With a copy to:
Cantel Medical Corp.
150 Clove Road 9
th
Floor
Little Falls, NJ 07424
Attn:
CEO
General
Counsel
If to Employee:
Home address on file with
the Company
7.6
This Agreement
shall inure to the benefit of, and shall be binding upon, the Company, its
successors and assigns, including, without limitation, any entity that may
acquire all or substantially all of the Companys assets and business or into
which the Company may be consolidated or merged. This Agreement may not be assigned by
Employee.
7.7
This Agreement
may be executed in separate counterparts and may be delivered by facsimile or
pdf, each of which shall constitute the original hereof.
Signature page follows
5
IN WITNESS WHEREOF,
the parties
have set their hands as of the date first above written.
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MINNTECH
CORPORATION
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By:
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EMPLOYEE
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Name:
Roy K. Malkin
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6