Exhibit 10.1
ANALOGIC
CORPORATION
CHANGE OF CONTROL
AGREEMENT
THIS AGREEMENT (the “
Agreement ”) by and between Analogic Corporation, a
Massachusetts corporation (the “ Company ”), and
John Millerick (the “ Executive ”), dated
December 24, 2008 (the “Agreement
Date”).
The Board of Directors of the
Company (the “ Board ”) has determined that it
is in the best interests of the Company and its stockholders to
assure that the Company will have the continued dedication of the
Executive, notwithstanding the possibility, threat, or occurrence
of a Change of Control (as defined below). Therefore, to accomplish
these objectives, the Board has caused the Company to enter into
this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED
AS FOLLOWS:
1. Certain
Definitions
(a) An “ Affiliate
” of, or a Person “ Affiliated ” with, a
specified Person, means a Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or
is under common control with, the Person specified.
(b) “ Effective Date
” means the first date during the Change of Control Period on
which a Change of Control occurs; provided that the Executive is
employed by the Company on that date.
(c) “ Change of Control
Period ” means the period beginning on the Agreement Date
and ending on the third anniversary of the Agreement Date. However,
beginning on the first anniversary of the Agreement Date, and on
each successive anniversary of the Agreement Date (each of such
first and successive anniversaries being referred to herein as a
“ Renewal Date ”), the Change of Control Period
will be automatically extended so that it terminates 36 months
after the Renewal Date, unless, at least 60 days prior to that
Renewal Date, the Company notifies the Executive that the Change of
Control Period will not be so extended.
(d) “ Company ”
means, collectively, the Company and its Subsidiaries except for
purposes of Section 2 or where the context clearly requires
otherwise.
(e) “ Person ”
has the meaning given to that term in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), but excluding any Person described in
and satisfying the conditions of Rule 13d-1(b)(1) under
Section 13 of the Exchange Act.
(f) “ Subsidiary
” means any corporation, limited liability company,
partnership or other entity that is an Affiliate of the
Company.
2. Change of Control .
“ Change of Control ” means any of the following
provided that such event also constitutes a “change in
control event” within the meaning of Section 409A of the
Internal Revenue Code and the guidance issued thereunder
“Section 409A.”
(a) any acquisition or series
of acquisitions by any Person other than (i) the Company,
(ii) any Subsidiary, (iii) any employee benefit plan of
the Company or any Subsidiary, or (iv) any Person holding
common shares of the Company for or pursuant to the terms of such
employee benefit plan, which acquisition or acquisitions result in
such Person (such Person being referred to herein as the “
Acquirer ”) becoming the beneficial owner (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company (the “ Acquired Company
Securities ”) constituting 35% or more of either
(i) the then outstanding shares of the common stock of the
Company (“ Outstanding Company Common Stock ”),
or (ii) the combined voting power of the Company’s then
outstanding securities that are then entitled to vote generally in
the election of directors of the Company (“ Outstanding
Company Voting Securities ”), except that any such
acquisition or acquisitions of Outstanding Company Common Stock or
Outstanding Company Voting Securities by the Acquirer will not
constitute a Change of Control where, and so long as, the Acquirer
(i) does not ever exercise the voting power of its Outstanding
Company Common Stock or its Outstanding Company Voting Securities,
(ii) does not ever otherwise exercise control with respect to
any matter concerning or affecting the Company, and
(iii) promptly, but in no event longer than six
(6) months after it acquires the Outstanding Company Common
Stock or Outstanding Company Voting Securities, sells, transfers,
assigns, or otherwise disposes of, to a person that is not an
Affiliate of the Acquirer, that portion of the Acquired Company
Securities which is necessary to achieve all of the
following results and objectives: to cause the Acquirer to become
the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of Acquired Company
Securities that constitute less than 20% of (A) the then
existing Outstanding Company Common Stock, and (B) the then
existing Outstanding Company Voting Securities; or
(b) approval by the
stockholders of the Company of an agreement to merge or consolidate
or otherwise reorganize, with or into one or more Persons that are
not Affiliates of the Company, as a result of which less than 50%
of the outstanding voting securities of the surviving or resulting
entity immediately after any such merger, consolidation, or
reorganization are, or will be, owned, directly or indirectly, by
Persons that were stockholders of the Company immediately before
such merger, consolidation, or reorganization.
3. Employment Period .
The Company hereby agrees to continue the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the
Company, for the period commencing on the Effective Date and ending
at the end of the 12th month following the Effective Date (the
“ Employment Period ”).
4. Terms of
Employment
(a) Position and Duties
.
(i) During the Employment
Period, (A) the Executive’s position (including, without
limitation, offices, titles, and reporting requirements),
authority, duties, and responsibilities shall be at least
commensurate in all material respects with the most significant of,
and the highest grade or level of, those that were held or
exercised by the Executive or assigned to the Executive at any time
during the 120-day period immediately preceding the Effective Date,
and (B) the Executive’s services shall be performed at
the location where the Executive was employed immediately preceding
the Effective Date or any other location less than 35 miles from
Ipswich, MA.
(ii) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote
full-time attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder,
to
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use the Executive’s reasonable
best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period, it shall not be a
violation of this Agreement for the Executive to (A) serve on
corporate, civic, or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements, or teach
at educational institutions, and (C) manage personal
investments, so long as these activities do not significantly
interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with
this Agreement, if and to the extent that any such activities have
been conducted by the Executive prior to the Effective
Date.
(b) Compensation
.
(i) Base Salary .
During the Employment Period, the Executive shall receive from the
Company an annual base salary (“ Annual Base Salary
”), paid at a biweekly rate, equal to the base salary in
effect immediately prior to the Effective Date. During the
Employment Period, the Executive’s Annual Base Salary shall
be reviewed at least annually and shall be adjusted at any time and
from time to time as shall be consistent with adjustments in base
salary generally awarded in the ordinary course of business to
other peer executives of the Company. Annual Base Salary shall not
be reduced after any such increase, and, after any such increase,
the term “Annual Base Salary” shall refer to the Annual
Base Salary as so increased.
(ii) Annual Bonus . The
Executive shall be eligible for an annual bonus (the “
Annual Bonus ”) in accordance with the Company’s
then existing incentive plan.
(iii) Incentive, Savings,
Retirement and Welfare Plans . The Executive, and the
Executive’s family, as the case may be, shall be eligible to
participate in and shall receive benefits under, during the
Employment Period, all incentive, savings, retirement and welfare
plans, practices, policies, and programs generally applicable to
other peer executives of the Company, but in no event shall such
plans, practices, policies, and programs provide the Executive (or
the Executive’s family) with incentive opportunities
(measured with respect to both regular and special incentive
opportunities), savings opportunities, retirement benefits
opportunities or welfare benefits that are, in each case, less
favorable, in the aggregate, than the most favorable of the
corresponding opportunities that were provided by the Company for
the Executive under such plans, practices, policies, and programs
as were in effect at any time during the 120-day period immediately
preceding the Effective Date.
(iv) Business Expenses
. During the Employment Period, the Executive shall be entitled to
receive from the Company prompt reimbursement for all reasonable
business expenses incurred by the Executive in accordance with the
practices, policies, and procedures of the Company.
(v) Fringe Benefits .
During the Employment Period, the Executive shall be entitled to
receive from the Company fringe benefits in accordance with the
practices, policies, and programs of the Company as were in effect
for the Executive at any time during the 120-day period immediately
preceding the Effective Date.
(vi) Vacation . During
the Employment Period, the Executive shall be entitled to receive
from the Company paid vacation in accordance with the most
favorable plans, practices, policies, and programs of the Company
as were in effect for the Executive at any time during the 120-day
period immediately preceding the Effective Date.
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5. Termination of
Employment .
(a) Death or Disability
. The Executive’s employment shall terminate automatically
upon the Executive’s death during the Employment Period. If
the Company determines in good faith that a Disability (as defined
below) of the Executive has occurred during the Employment Period,
it may give to the Executive written notice of its intent to
terminate the Executive’s employment with the Company. The
Executive’s employment with the Company shall terminate
effective on the Executive’s receipt of such notice (the
“ Disability Effective Date ”). “
Disability ” means the absence of the Executive from
the Executive’s duties with the Company on a full-time basis
for 60 consecutive business days as a result of incapacity due to
mental or physical illness which is determined by the Board acting
reasonably to be total and permanent.
(b) Cause . The Company
may terminate the Executive’s employment with the Company
during the Employment Period for Cause (as defined below). “
Cause ” means a material breach by the Executive of
this Agreement, gross negligence or willful misconduct in the
Executive’s performance of his or her duties with the
Company, dishonesty to the Company on the part of the Executive, or
the commission by the Executive of a felony that results in a
felony conviction of the Executive in a court of competent
jurisdiction.
(c) Good Reason . The
Executive may terminate the Executive’s employment with the
Company during the Employment Period for Good Reason (as defined
below). “ Good Reason ” means:
(i) the assignment to the
Executive of any materially lesser responsibilities or duties
inconsistent in any respect with the Executive’s position
(including, without limitation, offices, titles, and reporting
requirements), authority, duties, or responsibilities as
contemplated by Section 4(a),
(ii) any failure by the Company
to comply with any of the provisions of
Section 4(b),
(iii) the Company requiring the
Executive to be based at any location other than those locations
described in Section 4(a)(i);
(iv) any purported termination
by the Company of the Executive’s employment other than as
expressly permitted by this Agreement; or
(v) any failure by any
successor to the Company to comply with and satisfy
Section 12(c), provided that such successor has received at
least ten days prior written notice from the Company or the
Executive of the requirements of Section 12(c).
(d) Notice of
Termination .shall be delivered as follows:
(i) Any termination
by the Executive for Good Reason shall be communicated by means of
a written notice delivered by the Executive to the Company within
90 days 1 of the initial existence of the
occurrence or condition on which the Executive bases his claim for
Good Reason. If the condition is capable of being corrected, the
Company shall have 30 days during which it may remedy the
condition. If the condition is fully remedied within such time
period, the Company shall
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notify the Executive in writing with
in the 30 day c
