Termination Agreement - Novoste Corp.
NOVOSTE CORPORATION
TERMINATION AGREEMENT
This Agreement is made as of the ____ day of ______________, 2001 between
Novoste Corporation, a Florida corporation, with its principal offices at 3890
Steve Reynolds Boulevard, Norcross, Georgia 30093 (the "Company") and
____________________________________ (the "Executive"), residing at ____________
_____________________________________________.
WHEREAS, this Agreement is intended to specify the financial arrangements
that the Company will provide to the Executive upon the Executive's separation
from employment with the Company under any of the circumstances described in
this Agreement;
WHEREAS, this Agreement is entered into by the Company in the belief that
it is in the best interests of the Company and its shareholders to provide
stable conditions of employment for the Executive notwithstanding the
possibility, threat or occurrence of certain types of change in control, of the
Company thereby enhancing the Company's ability to attract and retain highly
qualified people; and
NOW, THEREFORE, to assure the Company that it will have the continued
dedication of the Executive notwithstanding the possibility, threat or
occurrence of a bid to take over control of the Company, and to induce the
Executive to remain in the employ of the Company, and for other good and
valuable consideration, the Company and the Executive agree as follows:
1. Term of Agreement. The term of this Agreement shall commence on the
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date first written above and shall continue through December 31, 2001; provided
that commencing on January 1, 2002 and each January 1 thereafter, the term of
this Agreement shall automatically be extended for one additional year unless,
not later than 12 months prior to such January 1, the Company shall have given
notice that it does not wish to extend this Agreement (which notice may not, in
any event, be given sooner than January 1, 2002); and provided, further, that
notwithstanding any such notice by the Company not to extend, this Agreement
shall continue in effect for a period of 24 months beyond the term provided in
this Section if a Change in Control (as defined in Section 3(a) below) shall
have occurred during such term.
2. Termination of Employment.
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(a) Prior to a Change in Control. Prior to a Change in Control, the
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Company may terminate the Executive from employment with the Company at
will, with or without Cause (as defined in Section 3(c) below), at any
time. Severance payments and benefits, if any, to which the Executive may
be entitled upon such a termination of employment shall be governed by the
terms of the general severance policy of the Company or, if the termination
is without Cause, occurs within 180 days of a Change in Control, and is in
contemplation of such Change in Control, then the Executive shall be
entitled to the benefits set forth in Section 4 hereof as if this
termination had occurred under Section 2(b)(iii) hereof.
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(b) After a Change in Control.
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(i) From and after the date of a Change in Control during the term
of this Agreement, the Company shall not terminate the Executive from
employment with the Company except as provided in Sections 2(b)(ii) or
(iii) below or as a result of the Executive's Disability (as defined in
Section 3(d) below) or his death.
(ii) From and after the date of a Change in Control, during the term
of this Agreement, the Company shall have the right to terminate the
Executive from employment with the Company at any time during the term of
this Agreement for Cause, by written notice to the Executive, specifying
the particulars of the conduct of the Executive forming the basis for such
termination.
(iii) From and after the date of a Change in Control during the term
of this Agreement: (A) the Company shall have the right to terminate the
Executive's employment without Cause at any time; and (B) the Executive
shall, upon the occurrence of such a termination by the Company without
Cause, or upon the voluntary termination of the Executive's employment by
the Executive for Good Reason be entitled to receive the benefits provided
in Section 4 below. The Executive shall evidence a voluntary termination
for Good Reason by written notice to the Company given within 60 days after
the date of the occurrence of any event that the Executive knows or should
reasonably have known constitutes Good Reason for voluntary termination.
Such notice need only identify the Executive and set forth in reasonable
detail the facts and circumstances claimed by the Executive to constitute
Good Reason. Any notice given by the Executive pursuant to this Section 2
shall be effective five business days after the date it is given by the
Executive.
3. Definitions.
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(a) A "Change in Control" shall mean:
(i) a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or successor provision thereto, whether or not the Company
is then subject to such reporting requirements;
(ii) the sale or other disposition to a person (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act, entity or group (as such
term is defined in Rule 13d-5 under the Exchange Act) of 50% or more of the
Company's assets;
(iii) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) or group (as defined in Rule 13(d)-5 of the Exchange
Act) is or becomes the "beneficial owner" (as defined in Rule 13(d)-3 of
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities;
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(iv) the Continuing Directors (as defined in Section 3(e) below)
cease to constitute a majority of the Company's Board of Directors; or
(v) the majority of the Continuing Directors determine in their sole
and absolute discretion that there has been a change in control of the
Company.
(b) "Good Reason" shall mean the occurrence of any of the following
events, except for the occurrence of such an event in connection with the
termination or reassignment of the Executive's employment by the Company for
Cause (as defined in Section 3(c) hereof), for Disability (as defined in Section
3(d) hereof) or for death:
(i) the assignment to the Executive of employment responsibilities
which are not of comparable responsibility and status as the employment
responsibilities held by the Executive immediately prior to a Change in
Control;
(ii) a relocation of the Company's principal executive offices or the
Executive's office to a location that is a distance of more than 50 miles
from its location immediately prior to a Change in Control;
(iii) a reduction by the Company in the Executive's annual salary as
in effect immediately prior to a Change in Control;
(iv) an amendment or modification of the Company's incentive
compensation program (except as may be required by applicable law) which
affects the terms or administration of the program in a manner adverse to
the interest of the Executive as compared to the terms and administration
of such program immediately prior to a Change in Control;
(v) except to the extent otherwise required by applicable law, the
failure by the Company to continue in effect any benefit or compensation
plan, stock ownership plan, stock purchase plan, bonus plan, life insurance
plan, health-and-accident plan or disability plan in which the Executive is
participating immediately prior to a Change in Control (or plans providing
the Executive with substantially similar benefits), the taking of any
action by the Company which would adversely affect the Executive's
participation in, or materially reduce the Executive's benefits under, any
of such plans or deprive the Executive of any material fringe benefit
enjoyed by the Executive immediately prior to such Change in Control, or
the failure by the Company to provide the Executive with the number of paid
vacation days to which the Executive is entitled immediately prior to such
Change in Control in accordance with the Company's vacation policy as then
in effect; or
(vi) the failure by the Company to obtain, as specified in Section
5(a) below, an assumption of the obligations of the Company to perform this
Agreement by any successor to the Company.
(c) "Cause" shall mean termination by the Company of the Executive's
employment based upon:
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(i) the willful and continued failure by the Executive substantially
to perform his duties and obligations (other than any such failure
resulting from his incapacity due to physical or mental illness or any such
actual or anticipated failure resulting from the Executive's termination
for Good Reason); or
(ii) the willful engaging by the Executive in misconduct which is
materially injurious to the Company, monetarily or otherwise.
For purposes of this Section 3(c), no action or failure to act on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by the Executive in bad faith and without reasonable belief that his
action or omission was in the best interests of the Company.
(d) "Disability" shall mean any physical or mental condition which
would qualify the Executive for a disability benefit under the Company's
long-term disability plan.
(e) "Continuing Director" shall mean any person who is a member of
the Board of Directors of the Company, while such person is a member of the
Board of Directors, who is not an Acquiring Person (as defined below) or an
Affiliate or Associate (as defined below) of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or
Associate, and who (1) was a member of the Board of Directors on the date
of this Agreement as first written above or (2) subsequently becomes a
member of the Board of Directors, if such person's initial nomination for
election or initial election to the Board of Directors is recommended or
approved by a majority of the Continuing Directors. For purposes of this
Section 3(e): "Acquiring Person" shall mean any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) who or which,
together with all Affiliates and Associates of such person, is the
"beneficial owner" (as defined in Rule 13d-3 of the Exchange Act) of 20% or
more of the shares of common stock of the Company then outstanding, but
shall not include the Company, any subsidiary of the Company or any
executive benefit plan of the Company or of any subsidiary of the Company
or any entity holding shares of common stock organized, appointed or
established for, or pursuant to the terms of, any such plan; and
"Affiliate" and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the Exchange Act.
(f) "Annualized Includable Compensation" shall mean the average annual
compensation which was payable by the Company and which was includable in
the gross income of the Executive.
4. Benefits upon Termination under Section 2(b)(iii).
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(a) Upon (i) the termination (voluntary or involuntary) of the
employment of the Executive under circumstances described in Section
2(b)(iii) above, or (ii) the termination of the employment of the Executive
without Cause within 180 days of a Change in Control and in contemplation
of such Change in Control, the Executive shall be entitled to receive the
benefits specified in this Section 4. The amounts due to the Executive
under subparagraphs (i), (ii) and (iii) of this Section 4(a) shall be paid
to the Executive not later than one business day prior to the date that the
termination of the Executive's
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employment becomes effective. All benefits to the Executive pursuant to
this Section 4 shall be subject to any applicable payroll or other taxes
required by law to be withheld.
(i) The Company shall pay to the Executive any and all amounts
earned by the Executive through the date of termination;
(ii) The Company shall pay to the Executive any and all amounts
payable to the Executive pursuant to any standard or general severance
policy of the Company;
(iii) in lieu of any further base salary payments to the
Executive for periods subsequent to the date that the termination of
the Executive's employment becomes effective, the Company shall pay as
severance pay to the Executive a lump-sum cash amount equal to two (2)
times the Executive's Annualized Includable Compensation for the Base
Period. For the purpose of this paragraph 4(a)(iii), the Base Period
shall mean the five most recent taxable years ending before the date
on which the Change in Control occurs or such portion of which the
Executive was employed by the Company;
(iv) the Company shall also reimburse the Executive for all legal
fees and expenses incurred by the Executive as a result of such
termination of employment (including all fees and expenses, if any,
incurred by the Executive in seeking to obtain or enforce any right or
benefit provided to the Executive by this Agreement whether by
arbitration or otherwise);
(v) the Company shall, at the Executive's request, also pay the
costs of health care benefits for Executive and Executive's dependents
under the plan in which Executive was enrolled prior to the date of
termination or under a plan which provides equal benefits thereto for
a period of eighteen (18) months from the date of termination; and
(vi) any and all contracts, agreements or arrangements between
the Company and the Executive prohibiting or restricting the Executive
from owning, operating, participating in, or providing employment or
consulting services to, any business or company competitive with the
Company at any time or during any period after the date the
termination of the Executive's employment becomes effective, shall be
deemed terminated and of no further force or effect as of the date the
termination of the Executive's employment becomes effective, to the
extent, but only to the extent, such contracts, agreements or
arrangements so prohibit or restrict the Executive; provided that the
foregoing provisions shall not constitute a license or right to use
any proprietary information of the Company and shall in no way affect
any such contracts, agreements or arrangements insofar as they relate
to nondisclosure and nonuse of proprietary information of the Company
notwithstanding the fact that such nondisclosure and nonuse may
prohibit or restrict the Executive in certain competitive activities.
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(b) The Executive shall not be required to mitigate the amount of
any payment provided for in this Section 4 by seeking other employment or
otherwise. The amount of any payment or benefit provided in this Section 4
shall not be reduced by any compensation earned by the Executive as a
result of any employment by another employer or from any other source.
(c) In the event that any payment or benefit received or to be
received by the Executive in connection with a Change in Control of the
Company or termination of the Executive's employment (whether payable
pursuant to the terms of this Agreement or any other plan, contract,
agreement or arrangement with the Company, with any person whose actions
result in a Change in Control of the Company or with any person
constituting a member of an "affiliated group" as defined in Section
280G(d)(5) of the Internal Revenue Code of 1986, as amended (the "Code"),
with the Company or with any person whose actions result in a Change in
Control of the Company) (collectively, the "Total Payments") would not be
deductible (in whole or in part) by the Company or such other person making
such payment or providing such benefit solely as a result of Section 280G
of the Code, the amount payable to the Executive pursuant to Section 4(a)
hereof shall be reduced until no portion of the Total Payments is not
deductible solely as a result of Section 280G of the Code or such amount
payable to the Executive pursuant to Section 4(a) is reduced to zero. For
purposes of this limitation, (a) no portion of the Total Payments shall be
taken into account which in the opinion of tax counsel selected by the
Company and acceptable to the Executive does not constitute a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code (such as
payments payable pursuant to the Company's standard or general severance
policies); (b) the payment pursuant to Section 4(a) shall be reduced only
to the extent necessary so that the Total Payments (other than those
referred to in the immediately preceding clause (a)) in their entirety
constitute reasonable compensation within the meaning of Section
280G(b)(4)(B) of the Code, in the opinion of the tax counsel referred to in
the immediately preceding clause (a); and (c) the value of any other non-
cash benefit or of any deferred cash payment included in the Total Payments
shall be determined by the Company's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code. In case of
uncertainty as to whether all or some portion of a payment is or is not
payable to the Executive under this Agreement, the Company shall initially
make the payment to the Executive, and the Executive agrees to refund to
the Company any amounts ultimately determined not to have been payable
under the terms hereof.
5. Successors and Binding Agreement.
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(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), 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
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as the Executive would be entitled
hereunder if the Executive terminated the
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Executive's employment after a Change in Control for Good Reason, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the date that the termination
of the Executive's employment becomes effective. As used in this Agreement,
"Company" shall mean the Company and any successor to its business and/or
assets which executes and delivers the agreement provided for in this
Section 5 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) This Agreement is personal to the Executive, and the Executive
may not assign or transfer any part of the Executive's rights or duties
hereunder, or any compensation due to the Executive hereunder, to any other
person. Notwithstanding the foregoing, this Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs, distributees, devisees
and legatees.
6. Arbitration. Any dispute or controversy arising under or in connection
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with this Agreement shall be settled exclusively by arbitration in the City of
Atlanta, State of Georgia, in accordance with the applicable rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
7. Modification; Waiver. No provisions of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in a writing signed by the Executive and such officer as may be specifically
designated by the Board of Directors of the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
8. Notice. All notices, requests, demands and all other communications
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required or permitted by either party to the other party by this Agreement
(including, without limitation, any notice of termination of employment and any
notice of intention to arbitrate) shall be in writing and shall be deemed to
have been duly given when delivered personally or received by certified or
registered mail, return receipt requested, postage prepaid, at the address of
the other party, as first written above (directed to the attention of the Board
of Directors and Corporate Secretary in the case of the Company). Either party
hereto may change its address for purposes of this Section 8 by giving 15 days'
prior notice to the other party hereto.
9. Severability. If any term or provision of this Agreement or the
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application hereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
10. Counterparts. This Agreement may be executed by facsimile and in
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several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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11. Governing Law. This Agreement has been executed and delivered in the
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State of Georgia and shall in all respects be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia, including all
matters of construction, validity and performance, and without taking into
consideration the conflict of law provisions of such state.
12. Effect of Agreement; Entire Agreement. The Company and the Executive
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understand and agree that this Agreement is intended to reflect their agreement
only with respect to payments and benefits upon termination in certain cases and
is not intended to create any obligation on the part of either party to continue
employment. To the extent not stated otherwise in this Agreement, this
Agreement supersedes any and all other oral or written agreements or policies
made relating to the subject matter hereof and constitutes the entire agreement
of the parties relating to the subject matter hereof; provided that this
Agreement shall not supersede or limit in any way the Executive's rights under
any stock option agreements or restricted stock awards or under any benefit
plan, program or arrangements in accordance with their terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, all as of the date first written above.
NOVOSTE CORPORATION
By:
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Its:
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EXECUTIVE
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Name:
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