Attached files
file | filename |
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EX-32.2 - EX-32.2 - ANALOGIC CORP | alog-ex322_9.htm |
EX-32.1 - EX-32.1 - ANALOGIC CORP | alog-ex321_8.htm |
EX-31.2 - EX-31.2 - ANALOGIC CORP | alog-ex312_10.htm |
EX-31.1 - EX-31.1 - ANALOGIC CORP | alog-ex311_7.htm |
EX-10.2 - EX-10.2 - ANALOGIC CORP | alog-ex102_154.htm |
EX-10.1 - EX-10.1 - ANALOGIC CORP | alog-ex101_155.htm |
10-Q - 10-Q - ANALOGIC CORP | alog-10q_20171031.htm |
Exhibit 10.3
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (this “Agreement”) is made and entered into as of December 7, 2017 by and between [ * ] (“Executive”) and Analogic Corporation (the “Company”).
WHEREAS, Executive is employed as a senior executive of the Company, and the Company desires to retain the services of Executive; and
WHEREAS, the Company is entering into this Agreement in order to provide certain compensation and benefits to Executive in the event Executive’s employment with the Company is terminated under certain circumstances.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and Executive agree as follows:
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payroll practices (except as otherwise provided below in the case of amounts that are subject to a prior deferral election). |
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2.2.2 |
Benefits Continuation. |
Subject to Executive’s timely election of continued medical, dental and vision care coverage under COBRA, the Company will subsidize Executive’s COBRA premiums to continue Executive’s coverage (including coverage for the Participant’s eligible dependents, if applicable) (the “COBRA Premiums”) during the Severance Period, such that the Executive will be required to pay the contributions required of active employees during the Severance Period.
The Severance Period will run concurrently with and does not extend the eighteen-month COBRA continuation period.
During the Severance Period, an amount equal to the Company’s subsidy of Executive’s applicable COBRA Premiums will be excluded from Executive’s income for tax purposes. Notwithstanding the preceding sentence, if at any time the Company determines, in its sole discretion, that its COBRA premium subsidy reasonably could result in the Company or Executive incurring additional costs, penalties or taxes under applicable law (including, without limitation, Section 2716 of the Public Health Service Act and Section 105(h) of the Internal Revenue Code of 1986, as amended (the “Code”)) then in lieu of paying the COBRA premium subsidy on behalf of Executive, the Company will instead pay Executive on the last day of each remaining month for which the Executive is entitled to the COBRA subsidy, a fully taxable cash payment equal to the COBRA subsidy for that month, subject to applicable tax withholding.
The Company specifically reserves the right at its sole discretion to amend, suspend, discontinue or terminate its medical, dental and vision care plan or any or all benefits under such plan at any time, without either the prior consent of, or any prior notice to Executive, and to make or amend rules for administration of such plan.
After the Severance Period and during the remainder of the eighteen-month COBRA continuation period, Executive may elect continued medical, dental and vision care coverage as may be provided pursuant to COBRA (including coverage for his or her eligible dependents, if applicable), provided that Executive pays the full premiums (i.e., without subsidy from the Company) for the remainder of the COBRA continuation period after the Severance Period.
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In no event will the Severance Pay and Benefits be paid or provided unless and until the date on which Release Agreement becomes irrevocable and effective according to its terms (the “Release Effective Date”). Base Salary and Benefits Continuation payable pursuant to this Section 2.2 shall commence on the first payroll date following the Release Effective Date. The first installment will include (i) a lump sum payment in an amount equal to those Base Salary and Benefits Continuation amounts accrued after the Date of Termination through the period covered by such first installment; and (ii) if elected, the Outplacement Payment. The Outplacement Services, if elected, will be made available as soon as reasonably practicable following the Release Effective Date. All other amounts will be payable in accordance with the payment schedule applicable to each payment or benefit. In no event will any severance payments or benefits extend beyond the last day of Executive’s second tax year following the tax year in with the Date of Termination occurs.
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sixty percent (60%) of Executive’s most recent annualized base salary, payable on the first payroll date following the Release Effective Date. |
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least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the time of such nomination or election; provided, however, that there shall be excluded from this clause (y) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board. |
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of the Company as were in effect for Executive at any time during the 120-day period immediately preceding the Change in Control Event. |
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value of accelerated payments set forth in Treasury Regulation Section 1.280G-1Q/A-24(b) or (c). |
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6.3 |
If, as of the date of Executive’s “separation from service” from the Company, Executive is a “specified employee” (within the meaning of Section 409A), then: |
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treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A and shall be paid at the time and in the matter set forth in this Agreement; and |
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Return of Company Property. Upon termination of employment for any reason, Executive shall promptly return to the Company any keys, credit cards, passes, confidential documents |
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or material, computer equipment, or other property belonging to the Company, and Executive shall also return all writings, files, records, correspondence, notebooks, notes and other documents and things (including any copies thereof) containing confidential information or relating to the business or proposed business of the Company or the Affiliated Entities or containing any trade secrets relating to the Company or the Affiliated Entities. For purposes of the preceding sentence, the term “trade secrets” shall have the meaning ascribed to it under the Uniform Trade Secrets Act. Executive agrees to represent in writing to the Company upon termination of employment that he has complied with the foregoing provisions of this Section. |
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9.1 |
Executive shall not be eligible to receive severance or similar post-employment payments or benefits under the Analogic Corporation Severance Plan for Management Employees or any other severance plan, program or policy that may be adopted or maintained by the Company |
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9.2 |
The employment letter agreement between Executive and the Company dated [ ], (the “Letter Agreement”) shall survive the execution and delivery of this Agreement and remain in full force and effect in accordance with its original terms; provided, however, that any provisions of the Letter Agreement relating to severance and post-employment payments and benefits shall be superseded hereby in their entirety and shall hereafter cease to be of any force or effect.]1 |
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This section may be modified to reflect the employment arrangements between the Company and the applicable Executive. |
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and assigns, including any corporation with which or into which the Company may be merged or which may succeed to its assets or business. |
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11.3 |
No Guarantee of any Tax Consequences. The Company makes no guarantee of any tax consequences with respect to any payment hereunder including, without limitation, under Section 409A of the Code. |
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Analogic Corporation
8 Centennial Drive
Peabody, MA 01960
Attention: President and CEO
Analogic Corporation
8 Centennial Drive
Peabody, MA 01960
Attention: Vice President and General Counsel
At the most recent address maintained
by the Company in its personnel records
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11.8 |
Not Employment Contract. Executive acknowledges that this Agreement does not constitute a contract of employment, does not imply that the Company will continue Executive’s employment for any period of time and does not change the at-will nature of Executive’s employment. |
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11.11 |
Representations. Executive hereby acknowledges that he understands this Agreement and enters into this Agreement voluntarily. |
IN WITNESS THEREOF, Executive has hereunto set Executive’s hand, and the Company has caused this Agreement to be executed in its name and on its behalf, all as of the day and year first above written.
ANALOGIC CORPORATION |
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Fred B. Parks |
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President and CEO |
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RELEASE AND RE-AFFIRMATION AGREEMENT
This Release and Re-Affirmation Agreement (the “Agreement”) is made between Analogic Corporation (the “Company”), and the undersigned executive (“Executive”) (the Company and Executive are collectively referred to herein as the “Parties”) as of [INSERT DATE] (the “Execution Date”).
In consideration of the amounts and benefits under Executive’s Severance Agreement dated [INSERT DATE of Severance Agreement] and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Executive agrees as follows:
1.Release. Executive (defined for the purpose of Paragraphs 1 and 2 as Executive and Executive’s agents, representatives, attorneys, assigns, heirs, executors, and administrators) fully and unconditionally releases the Released Parties (defined as the Company, its parent, affiliates and any of its or their respective past or present employees, agents, insurers, attorneys, administrators, officials, directors, shareholders, members, managers, managing members, divisions, parents, subsidiaries, predecessors, successors, employee benefit plans, and the sponsors, fiduciaries, administrators, insurers or committees of such employee benefit plans) from, and agrees not to bring any action, proceeding or suit against, or file any claim with, any of the Released Parties regarding, any and all liability, claims, breaches, demands, actions, causes of action, suits, grievances, debts, sums of money, agreements, promises, damages, back and front pay, benefits, costs, expenses, attorneys’ fees, and remedies of any type (collectively, “Claims”), directly or indirectly, regarding any act or failure to act that occurred up to and including the date on which Executive signs this Agreement, including, without limitation, all Claims arising or that arose or may have arisen out of or in connection with Executive’s employment with or separation from the Company, and including but not limited to Claims for: (i) violation of any written or unwritten contract, agreement, understanding, policy, benefit, retirement or pension plan, severance plan, other employee benefit plan, or covenant of any kind, or failure to pay wages, bonuses, employee benefits, other compensation, attorneys’ fees, damages, or any other remuneration; discrimination or retaliation on the basis of any characteristic or trait protected under law (including but not limited to race, color, national origin, gender, sexual orientation, religion, disability, marital or parental status, age, union activity or other protected activity), (ii) other denial of protection or benefits, or other breach or violation, under any statute, ordinance, executive order, or regulation (including but not limited to claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights Act of 1866, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Workers’ Adjustment and Retraining Notification, the Employee Retirement Income Security Act of 1974, the Sarbanes-Oxley Act, the Massachusetts Fair Employment Practices Law, M.G.L. ch. 151B; the Massachusetts Civil Rights Act, M.G.L. ch. 12 §11H et seq., the Massachusetts Equal Rights Act, M.G.L. ch. 93 § 102 et seq., the Massachusetts Privacy Statute, M.G.L. ch. 214 §1B; the Massachusetts Sexual Harassment Statute, M.G.L. ch. 214 §1C; the Massachusetts Equal Pay Act, M.G.L. ch. 149 §105A, the Massachusetts Wage Act, M.G.L. ch. 149 §§ 148, 150 et seq.; the Massachusetts Minimum Fair Wage Law, M.G.L. ch. 151, any claims that may be released under Massachusetts labor statutes, M.G.L. ch. 149, New Hampshire Law Against Discrimination – N.H. Rev. Stat. Ann. §354-A:1 et seq., New Hampshire Whistleblower Protection – N.H. Rev. Stat. Ann. §275-E:1 et seq., New Hampshire Equal Pay Law – N.H. Rev. Stat. Ann. §275:36 et seq., New Hampshire AIDS Education Act – N.H. Rev. Stat. Ann. §141-F:5 et seq., New Hampshire Genetic Testing Law – N.H. Rev. Stat. Ann. §141-H:1, New Hampshire Smokers’ Rights Law – N.H. Rev. Stat. Ann. §275:37-a, New Hampshire Wage Payment and Work Hour Laws – N.H. Rev. Stat. Ann. § 279:1 et seq.), and (iii) any and all Claims under any other federal or state statute or regulation, or any local ordinance, law or regulation, or any Claim that was or could have been asserted under common law.
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Executive represents and warrants that Executive has no outstanding court, agency, or administrative claims for damages against any Released Party. Notwithstanding this paragraph 1 to the contrary, this Agreement does not include, and Executive does not waive, any rights or Claims: (iv) that may arise after Executive signs this Agreement; (v) for alleged workplace injuries or occupational disease that arise under any state’s workers’ compensation laws; (vi) that cannot be released by law; (vii) to enforce this Agreement; or (viii) to participate in any proceedings before a self-regulatory organization, or state or federal regulatory authority or administrative agency (e.g., EEOC, SEC, etc.). Executive agrees, however, to waive and release any right to receive any monetary award from any such proceedings. Nothing in this Agreement shall be construed to limit either party’s right to respond accurately and fully to any question, inquiry or request for information when required by legal process, or from initiating communications directly with, or responding to any inquiry from, or providing testimony before, any self-regulatory organization or state or federal regulatory authority or administrative agency, regarding the Company, Executive’s employment, or this Agreement. In such instances, Executive is not required to contact the Company regarding the subject matter of any such communications before disclosing information.
2.Specific Release of ADEA Claims. In further consideration of the payments and benefits provided to the Executive in this Agreement, the Executive hereby irrevocably and unconditionally fully and forever waive, release and discharge the Released Parties from any and all Claims, whether known or unknown, from the beginning of time to the date of the Executive’s execution of this Agreement arising under the Age Discrimination in Employment Act (“ADEA”), as amended, and its implementing regulations. By signing this Agreement, the Executive hereby acknowledges and confirms that: (i) the Executive has read this Agreement in its entirety and understands all of its terms; (ii) the Executive has been advised of and has availed him or herself of the right to consult an attorney prior to executing this Agreement; (iii) the Executive knowingly, freely and voluntarily assents to all of the terms and conditions set out in this Agreement including, without limitation, the waiver, release and covenants contained herein; (iv) the Executive is executing this Agreement, including the waiver and release, in exchange for good and valuable consideration in addition to anything of value to which Executive is otherwise entitled; (v) the Executive was given at least [twenty-one (21)/forty-five (45)] days to consider the terms of this Agreement and consult with an attorney, although Executive may sign it sooner if desired; (vi) the Executive understands that he or she has seven (7) days from the date Executive signs this Agreement to revoke the release in this paragraph by delivering notice of revocation to [NAME] at the Company, [EMPLOYER ADDRESS] by [e-mail/fax/overnight delivery/[OTHER METHOD OF DELIVERY]] before the end of such seven-day period; and (vii) the Executive understands that the release contained in this paragraph does not apply to rights and claims that may arise after the date on which the Executive signs this Agreement.
3.Non-admission. Nothing in this Agreement shall be construed as an admission of wrongdoing or liability on the part of the Company or any Released Party.
4.Reaffirmation. Executive reaffirms and acknowledges Executive’s continuing obligations under the: (i) the Proprietary Information and Inventions Agreement dated [INSERT DATE], (ii) Executive’s Non-Competition and Non-Solicitation Agreement required by Section 5 of the Severance Agreement (iii) any other post-employment restrictive covenants between Executive and the Company, including those in the Executive’s equity awards; and (iv) Section 7 (Return of Company Property) and Section 8 (Assistance with Claims) of the Severance Agreement, all of which remain in full force and effect according to their original terms.
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(a)Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the Company’s assets or business, provided, however, that the obligations of Executive are personal and shall not be assigned by Executive. Executive expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Executive may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.
(b)Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
(c)Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.
(d)Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and Executive each consent to the jurisdiction of such a court. THE COMPANY AND EXECUTIVE EACH HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING ARISING UNDER OR RELATING TO ANY PROVISION OF THIS AGREEMENT.
(e)Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between Executive and the Company relating to the subject matter hereof; provided, however that nothing in this Agreement will void, supersede or alter the terms of the Severance Agreement, which remains in full force and effect according to its original terms. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by Executive and the Company.
(f)Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
6.Effective Date. This Agreement shall become effective on the eighth (8th) day after the Executive and the Company execute this Agreement unless the Executive revokes this Agreement in accordance with paragraph 2. Such date shall be the Effective Date of this Agreement. No payments due to the Executive under the Severance Agreement shall be made or begin before the Effective Date.
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
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IN WITNESS WHEREOF, the Executive and Company have executed this Agreement as of the Execution Date above.
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ANALOGIC CORPORATION
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By |
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Name: |
[NAME OF AUTHORIZED OFFICER] |
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Title: |
[TITLE OF AUTHORIZED OFFICER] |
EXECUTIVE |
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Name: |
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[Attachment A
Older Workers Benefit Protection Act Disclosure Notice
(if applicable)]
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NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Analogic Corporation (the “Company”), and the undersigned executive (“Executive”).
In consideration of this Severance Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Executive agrees as follows:
1.Non-Competition and Non-Solicitation. While Executive is employed by the Company and for a period of one year after the cessation of such employment for any reason, Executive will not directly or indirectly:
(a)Engage or assist others in engaging in any business or enterprise (whether as owner, partner, officer, director, employee, consultant, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held company) that (i) is competitive with the business of the Company or any of its subsidiaries, including but not limited to any business or enterprise that develops, manufactures, markets, licenses, sells or provides any product or service that competes with any product or service developed, manufactured, marketed, licensed, sold or provided, or planned to be developed, manufactured, marketed, licensed, sold or provided, by the Company or any of its subsidiaries while Executive was employed by the Company, and (ii) conducts business in any territory in which the Company or any of its subsidiaries conducts business, or plans to conduct business, at the time Executive ceases to be employed by the Company; or
(b)Either alone or in association with others, solicit, divert or take away, or attempt to divert or take away, the business or patronage of any of the clients, customers, or business partners of the Company or any of its subsidiaries which were contacted, solicited, or served by the Company or any of its subsidiaries during the 12-month period prior to the cessation of Executive’s employment with the Company; or
(c)Either alone or in association with others (i) solicit, induce or attempt to induce, any employee or independent contractor of the Company or any of its subsidiaries to terminate his or her employment or other engagement with the Company or any of its subsidiaries, or (ii) hire, or recruit or attempt to hire, or engage or attempt to engage as an independent contractor, any person who was employed or otherwise engaged by the Company or any of its subsidiaries at any time during the term of Executive’s employment with the Company; provided, that this clause (ii) shall not apply to the recruitment or hiring or other engagement of any individual whose employment or other engagement with the Company or any of its subsidiaries has been terminated for a period of six months or longer, or, in the case of an independent contractor, if engaging such independent contractor would not interfere with such independent contractor’s provision of services to the Company or any of its subsidiaries.
(d)Extension. If Executive violates the provisions of any of the preceding paragraphs of this Section 1, Executive shall continue to be bound by the restrictions set forth in such paragraph until a period of one year has expired without any violation of such provisions.
2.Miscellaneous.
(a)Equitable Remedies. Executive acknowledges that the restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and its
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subsidiaries and are considered by Executive to be reasonable for such purpose. Executive agrees that any breach or threatened breach of this Agreement is likely to cause the Company and its subsidiaries substantial and irrevocable damage which is difficult to measure. Therefore, in the event of any such breach or threatened breach, Executive agrees that the Company, in addition to such other remedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without posting a bond and the right to specific performance of the provisions of this Agreement and Executive hereby waives the adequacy of a remedy at law as a defense to such relief.
(b)Obligations to Third Parties. Executive acknowledges and represents that this Agreement and Executive’s employment with the Company will not violate any continuing obligation Executive has to any former employer or other third party.
(c)Disclosure of this Agreement. Executive hereby authorizes the Company to notify others, including but not limited to customers of the Company and any of its subsidiaries and any of Executive’s future employers or prospective business associates, of the terms and existence of this Agreement and Executive’s continuing obligations hereunder.
(d)Not Employment Contract. Executive acknowledges that this Agreement does not constitute a contract of employment, does not imply that the Company will continue his employment for any period of time and does not change the at-will nature of Executive’s employment.
(e)Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the Company’s assets or business, provided, however, that the obligations of Executive are personal and shall not be assigned by Executive. Executive expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Executive may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\
(f)Interpretation. If any restriction set forth in Section 1 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(g)Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
(h)Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.
(i)Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and Executive each consent to the jurisdiction of such a court. THE COMPANY AND EXECUTIVE EACH HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
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ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING ARISING UNDER OR RELATING TO ANY PROVISION OF THIS AGREEMENT.
(j)Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between Executive and the Company relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by Executive and the Company. Executive agrees that any change or changes in Executive’s duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.
(k)Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
EXECUTIVE |
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