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Exhibit 10.6
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (this "Agreement"), dated as of
June 8, 2007, is made by and between The Cooper Companies,
Inc., a Delaware corporation (the "Company"), and John Weber
("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.
(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 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 restricted
stock, stock option or other equity compensation plan or agreement
or deferred compensation or
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