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Exhibit
10.2
CHANGE IN CONTROL
AGREEMENT
THIS CHANGE IN CONTROL
AGREEMENT (this “Agreement”), dated as of
September 6, 2007, is made by and between The Cooper
Companies, Inc., a Delaware corporation (the
“Company”), and Steven M. Neil
(“Executive”).
WITNESSETH:
WHEREAS, Executive is a
senior executive of the Company or its subsidiaries and has made
and is expected to continue to make major contributions to the
short- and long-term profitability, growth and financial strength
of the Company;
WHEREAS, the Company
recognizes that, as is the case for most publicly held companies,
the possibility of a Change in Control exists;
WHEREAS, the Company desires
to assure itself of both present and future continuity of
management and desires to establish certain severance benefits for
Executive, applicable in the event of a Change in
Control;
WHEREAS, the Company wishes
to ensure that Executive is not practically disabled from
discharging his or her duties in respect of a proposed or actual
transaction involving a Change in Control;
WHEREAS, the Company desires
to provide additional inducement for the Executive to continue to
remain in the employ of the Company or its subsidiaries;
and
WHEREAS, on May 21, 2007
the Organization and Compensation Committee of the Board authorized
the Company to enter into this Agreement pursuant to the
Company’s Change in Control Severance Plan.
NOW, THEREFORE, the Company
and Executive agree as follows:
1. Certain Defined Terms. In
addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement with
initial capital letters:
(a) “Base Pay”
means Executive’s annual base salary rate as in effect from
time to time.
(b) “Board” means
the Board of Directors of the Company.
(c) “Cause” means
(i) Executive’s conviction of, or plea of nolo contendre
to, a felony or (ii) gross misconduct injurious to the Company
and/or any of its subsidiaries, as determined in good faith by the
Board, and which has not been remedied by the Executive within ten
days after written notice thereof to Executive by the
Board.
Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for “Cause”
under (ii) above 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 a majority of the Board then
in office at a meeting of the Board called and held for such
purpose, after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive’s
counsel (if the Executive chooses to have counsel present at such
meeting), to be heard before the Board, finding that, in the good
faith opinion of the Board, the Executive had committed an act
constituting “Cause” and specifying the particulars
thereof in detail. Nothing herein will limit the right of the
Executive or his beneficiaries to contest the validity or propriety
of any such determination.
(d) “Change in
Control” means the occurrence of any of the following
events:
(i) The acquisition by any
individual, entity or group (within the meaning of section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 50% or more of the combined voting power
of the then outstanding Voting Stock of the Company;
(ii) consummation of a
reorganization, merger or consolidation, a sale or other
disposition of all or substantially all of the assets of the
Company, or other transaction (each, a “Business
Combination”), unless, in each case, immediately following
such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners of Voting
Stock of the Company immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
combined voting power of the then outstanding shares of Voting
Stock of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions relative to
each other as their ownership, immediately prior to such Business
Combination, of the Voting Stock of the Company and (B) no
Person beneficially owns, directly or indirectly, 50% or more of
the combined voting power of the then outstanding shares of Voting
Stock of the entity resulting from such Business Combination;
or
(iii) The Company
stockholders approve a plan of complete liquidation or dissolution
of the Company.
(e) “Code” means
the Internal Revenue Code of 1986, as amended.
(f) “Employee
Benefits” means any group health and dental benefit plans;
provided, however, that Employee Benefits shall not include
contributions made by the Company or its subsidiaries to any
retirement plan, pension plan or profit sharing plan for the
benefit of the Executive in connection with amounts earned by the
Executive.
(g) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
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(h) “Good Reason”
means that the Executive (without the Executive’s written
consent):
(i) Has, except in connection
with termination of employment for Cause or due to death or
disability, suffered a material and substantial diminution in
Executive’s job responsibilities as in effect immediately
prior to the public announcement of the Change in Control,
excluding for this purpose an isolated and inadvertent action by
the Company or its subsidiaries or a successor entity not taken in
bad faith and which is remedied by the Company or its subsidiaries
or successor entity within ten days after receipt of notice thereof
given by the Executive and further provided that neither mere
changes in title and/or reporting relationship nor reassignment
following a Change in Control to a position that is similar to the
position held immediately prior to the Change in Control shall
constitute a material and substantial diminution in job
responsibilities.
(ii) Has incurred one or more
material reductions in his or her Base Pay; or
(iii) Has been notified that
his or her principal place of work will be relocated to a new
location that is 35 miles or more from Executive’s principal
work location as of immediately before the Change in Control;
or
(iv) Has experienced a
material breach by the Company or by its successor entity of its
obligations to Executive under this Agreement.
Before “Good
Reason” has been deemed to have occurred, Executive must give
the Company written notice detailing why the Executive believes a
Good Reason event has occurred and such notice must be provided to
the Company within sixty days of the initial occurrence of such
alleged Good Reason event(s). The Company shall then have thirty
days after its receipt of written notice to cure the items cited in
the written notice so that “Good Reason” will have not
formally occurred with respect to the event(s) in
question.
(i) “Voting
Stock” means securities entitled to vote generally in the
election of Board members.
2. Termination Following (or
in connection with) a Change in Control. In the event that in the
12 months following the consummation of a Change in Control, the
employment of Executive is either terminated by the Company or it
subsidiaries for any reason other than Cause, death or disability
or is terminated by Executive for Good Reason then the following
subsections in this Section 2 shall occur:
(a) Subject to the
effectiveness of the release of claims and covenant not to sue
referenced in Section 2(g) below, the Company shall pay to
Executive cash in 24 monthly installments with each installment
equal to one-twelfth (1/12th) of Base Pay (at the rate in
effect at the time of employment termination), commencing on or
before the tenth business day following the effectiveness of such
release. However, in the event that payment of such installments
would extend past the last day of the second year following the
year Executive “separates from
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service” within the meaning of
Section 409A of the Internal Revenue Code (the “409A
Period”), the total amount of such installments shall instead
be reamortized and payable in equal monthly installments over the
409A Period. Notwithstanding the foregoing, if Executive is deemed
at the time of separation from service to be a
“specified” employee under Section 409A of the
Internal Revenue Code (the “Code”), to the extent that
the total amount of Executive’s installment payments and any
other “separation pay” hereunder (within the meaning of
Treasury Regulation section 1.409A-1(b)(9)(iii)) exceeds the dollar
threshold set forth in such regulation section, then the amount
over such threshold shall not be paid until the (i) expiration
of the six (6)-month period measured from the date
of Executive’s “separation from service” or
(ii) such earlier time permitted under Section 409A of
the Code. Such deferral shall only be effected to the extent
required to avoid adverse tax treatment to Executive,
including (without limitation) the additional twenty percent
(20%) tax for which Executive would otherwise be liable
under Section 409A of the Code in the absence of such
deferral. Upon the expiration of the applicable deferral period,
any compensation or benefits which would have otherwise been paid
during that period (whether in a single sum or in installments) in
the absence of such deferral shall be paid in one lump
sum.
(b) For the 24 month period
following such termination, the Company shall continue to provide
to Executive all Employee Benefits which were received by, or with
respect to, Executive as of the date of such termination, at the
same expense to Executive as before the Change in Control subject
to immediate cessation (other than as to any pre-existing condition
not covered by the new benefits coverage) if Executive is offered
employee benefits coverage in connection with new employment.
Through the 24 months following Executive’s termination of
employment, Executive shall provide advance written notice to the
Company informing the Company when the Executive is offered or
becomes eligible for other employee benefits in connection with new
employment. In addition, if periodically requested by the Company
during the 24 months after termination of Executive’s
employment, the Executive will provide the Company with written
confirmation that he/she has not been offered other employee
benefits.
(c) The Company or its
subsidiaries shall pay Executive a pro-rata share (based on the
number of months Executive served as an executive of the Company or
its subsidiaries during the fiscal year of Executive’s
termination of employment) of annual incentive award payments, if
any, due to Executive under the terms of the Company’s or its
subsidiaries’ annual incentive payment plan. Any amounts
payable to Executive under this Section 2(c) will be paid to
Executive at the same time payments are made to other participants
under the Company’s or its subsidiaries’ annual
incentive payment plan.
(d) Notwithstanding anything
to the contrary in any restric
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