Exhibit 10.2
CHANGE IN CONTROL AGREEMENT
This Change in
Control Agreement (“Agreement”) is made and entered as
of June 15, 2008 (the “Agreement Date”) between
Angeion Corporation (the “Company”) and
Mr. William J. Kullback (“you”).
RECITALS
WHEREAS , the Board
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. In this
connection, the Board recognizes that the possibility of a Change
in Control may arise and that this possibility and the uncertainty
and questions that it may raise among management may result in the
departure or distraction of management personnel to the detriment
of the Company and its shareholders.
WHEREAS, the Board
has determined that appropriate steps should be taken to minimize
the risk that Company management will depart prior to a Change in
Control, thereby leaving the Company without adequate management
personnel during such a critical period, and to reinforce and
encourage the continued attention and dedication of members of the
Company’s management to their assigned duties without
distraction in circumstances arising from the possibility of a
Change in Control. In particular, the Board believes it
important, should the Company or its shareholders receive a
proposal for transfer of control, that you be able to continue your
management responsibilities without being influenced by the
uncertainties of your own personal situation.
WHEREAS , the Board
recognizes that continuance of your position with the Company
involves a substantial commitment to the Company in terms of your
personal life and professional career and the possibility of
foregoing present and future career opportunities, for which the
Company receives substantial benefits. Therefore, to induce
you to remain an employee of the Company, this Agreement, which has
been approved by the Board, sets forth the benefits that the
Company agrees will be provided to you in the event your employment
with the Company is terminated in connection with a Change in
Control under the circumstances described below.
AGREEMENT
NOW, THEREFORE ,
for good and valuable consideration, the sufficiency of which is
hereby acknowledged, you and the Company hereby agree as
follows:
1.
Definitions . The following terms will have the
meaning set forth below unless the context clearly requires
otherwise. Terms defined elsewhere in this Agreement will
have the same meaning throughout this Agreement.
(a)
“ Affiliate ” means (i) any corporation at
least a majority of whose outstanding securities ordinarily having
the right to vote at elections of directors is owned directly or
indirectly by the Parent Corporation or (ii) any other form of
business entity in that the Parent Corporation, by virtue of a
direct or indirect ownership interest, has the right to elect a
majority of the members of such entity’s governing body.
(b)
“ Agreement ” means this agreement as amended,
extended or renewed from time to time in accordance with its
terms.
(c)
“ Base Salary ” means your annual base salary
from the Company at the rate in effect immediately prior to a
Change in Control or at the time Notice of Termination is given,
whichever is greater. Base Salary includes only regular cash
salary and is determined before any reduction for deferrals
pursuant to any nonqualified deferred compensation plan or
arrangement, qualified cash or deferred arrangement or cafeteria
plan.
(d)
“ Benefit Plan ” means any
(i)
employee benefit plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended;
(ii)
cafeteria plan described in Code Section 125;
(iii)
plan, policy or practice providing for paid vacation, other paid
time off or short- or long-term profit sharing, bonus or incentive
payments; or
(iv)
stock option, stock purchase, restricted stock, phantom stock,
stock appreciation right or other equity-based compensation plan
that is sponsored, maintained or contributed to by the Company for
the benefit of employees (or their families and dependents)
generally or you (or your family and dependents) in particular.
(e)
“ Board ” means the board of directors of the
Parent Corporation duly qualified and acting at the time in
question. On and after the date of a Change in Control, any
duty of the Board in connection with this Agreement is nondelegable
and any attempt by the Board to delegate any such duty is
ineffective.
(f)
“ Cause ” means:
(i)
your gross misconduct;
(ii)
your willful and continued failure to perform substantially your
duties with the Company (other than a failure resulting from your
Incapacity as defined in your Employment Agreement) after a written
demand for substantial performance is delivered to you by the Chief
Executive Officer that specifically identifies the manner in which
you have not substantially performed your duties and provides for a
reasonable period of time within which you may take corrective
measures; or
(iii)
your conviction (including a plea of nolo contendere) of willfully
engaging in illegal conduct constituting a felony or gross
misdemeanor under federal or state law that is materially and
demonstrably injurious to the Company or that impairs your ability
to perform substantially your duties for the Company.
An act or failure to
act will be considered “gross” or “willful”
for this purpose only if done, or omitted to be done, by you in bad
faith and without reasonable belief that it
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was in, or not opposed
to, the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly
adopted by the Company’s board of directors (or a committee
thereof) or based upon the advice of counsel for the Company will
be conclusively presumed to be done, or omitted to be done, by you
in good faith and in the best interests of the Company.
Notwithstanding the foregoing, you may not be terminated for Cause
unless and until there has been delivered to you a copy of a
resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to
you and an opportunity for you, together with your counsel, to be
heard before the Board), finding that in the good faith opinion of
the Board you were guilty of the conduct set forth above in
clauses (i), (ii) or (iii) of this definition and
specifying the particulars thereof in detail.
(g)
“ Change in Control ” means any of the
following:
(i)
the sale, lease, exchange or other transfer, directly or
indirectly, of all or substantially all of the assets of the Parent
Corporation, in one transaction or in a series of related
transactions, to any Person;
(ii)
any Person, other than a “bona fide underwriter,” is or
becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
30 percent or more of the combined voting power of the Parent
Corporation’s outstanding securities ordinarily having the
right to vote at elections of directors (regardless of any approval
by the continuity directors);
(iii)
a merger or consolidation to which the Parent Corporation is a
party if the shareholders of the Parent Corporation immediately
prior to the effective date of such merger or consolidation have,
solely on account of ownership of securities of the Parent
Corporation at such time, “beneficial ownership” (as
defined in Rule 13d-3 under the Exchange Act) immediately
following the effective date of such merger or consolidation of
securities of the surviving company representing less that 50% of
the combined voting power of the surviving corporation’s then
outstanding securities ordinarily having the right to vote at
elections of directors (regardless of any approval by the
continuity directors);
(iv)
the continuity directors cease for any reason to constitute at
least a majority the Board; or
(v)
a change in control of a nature that is determined by outside legal
counsel to the Parent Corporation, in a written opinion
specifically referencing this provision of the Agreement, to be
required to be reported (assuming such event has not been
“previously reported”) pursuant to Section 13 or
15(d) of the Exchange Act, whether or not the Parent
Corporation is then subject to such reporting requirement.
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For purposes of this
Section 1(g), a “continuity director” means any
individual who is a member of the Board at the date hereof, while
he or she is a member of the Board, and any individual who
subsequently becomes a member of the Board whose election or
nomination for election by the Parent Corporation’s
shareholders was approved by a vote of at least a majority of the
directors who are continuity directors (either by a specific vote
or by approval of the proxy statement of the Parent Corporation in
which such individual is named as a nominee for director without
objection to such nomination). For purposes of this
Section 1(g), a “bona fide underwriter” means a
Person engaged in business as an underwriter of securities that
acquires securities of the Parent Corporation through such
Person’s participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such
acquisition.
(h)
“ Code ” means the Internal Revenue Code of
1986, as amended. Any reference to a specific provision of
the Code includes a reference to such provision as it may be
amended from time to time and to any successor provision.
(i)
“ Company ” means the Parent Corporation, any
Successor and any Affiliate.
(j)
“ Date of Termination ” following a Change in
Control (or prior to a Change in Control if your termination was
either a condition of the Change in Control or was at the request
or insistence of any Person related to the Change in Control)
means:
(i)
if your employment is to be terminated by you for Good Reason, the
date specified in the Notice of Termination which in no event may
be a date more than 15 days after the date on which Notice of
Termination is given unless the Company agrees in writing to a
later date;
(ii)
if your employment is to be terminated by the Company for Cause,
the date specified in the Notice of Termination;
(iii)
if your employment is terminated by reason of your death, the date
of your death; or
(iv)
if your employment is to be terminated by the Company for any
reason other than Cause or your death, the date specified in the
Notice of Termination, which in no event may be a date earlier than
15 days after the date on which a Notice of Termination is given,
unless you expressly agree in writing to an earlier date.
In the case of
termination by the Company of your employment for Cause, if you
have not previously expressly agreed in writing to the termination,
then within the 30-day period after your receipt of the Notice of
Termination, you may notify the Company that a dispute exists
concerning the termination, in which event the Date of Termination
will be the date set either by mutual written agreement of the
parties or by the judge or arbitrators in a proceeding as provided
in Section 11 of this Agreement. During the pendency of
any such dispute, you will continue to make yourself available to
provide
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services to the Company
and the Company will continue to pay you your full compensation and
benefits in effect immediately prior to the date on which the
Notice of Termination is given (without regard to any changes to
such compensation or benefits that constitute Good Reason) and
until the dispute is resolved in accordance with Section 11 of
this Agreement. You will be entitled to retain the full
amount of any such compensation and benefits without regard to the
resolution of the dispute unless the judge or arbitrators
decide(s) that your claim of a dispute was frivolous or
advanced by you in bad faith.
(k)
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended. Any reference to a specific
provision of the Exchange Act or to any rule or regulation
thereunder includes a reference to such provision as it may be
amended from time to time and to any successor provision.
(l)
“ Good Reason ” means:
(i)
the Company effects a material diminution of your title or duties
as in effect immediately prior to the Change in Control (other
than, if applicable, any such change directly attributable to the
fact that the Parent Corporation is no longer publicly owned);
provided, however, that Good Reason does not include a change in
your status, position(s), duties or responsibilities caused by an
insubstantial and inadvertent action that is remedied by the
Company within 15 calendar days after receipt of notice of such
change is given by you;
(ii)
a reduction by the Company in your Base Salary, or a failure to
provide a reasonably comparable bonus program, or an adverse change
in the form or timing of the payment thereof, as in effect
immediately prior to the Change in Control or as thereafter
increased;
(iii)
the failure by the Company to cover you under Benefit Plans that,
in the aggregate, provide substantially similar benefits to you and
your family and dependents at a substantially similar total cost to
you (e.g., premiums, deductibles, co-pays, out of pocket maximums,
required contributions and the like) relative to the benefits and
total costs under the Benefit Plans in which you were participating
at any time during the 90-day period immediately preceding the
Change in Control;
(iv)
the Company’s requiring you to be based more than 30 miles
from where your office is located immediately prior to the Change
in Control, except for required travel on the Company’s
business, and then only to the extent substantially consistent with
the business travel obligations that you undertook on behalf of the
Company during the 90-day period immediately preceding the Change
in Control (without regard to travel related to or in anticipation
of the Change in Control);
(v)
the failure by the Company to obtain from any Successor the assent
to this Agreement contempla
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