CHANGE IN CONTROL AGREEMENT
BETWEEN
SYNERGETICS USA, INC. AND DAVID HABLE
This Change in
Control Agreement (this “ Agreement ”) is made
and entered into effective as of January 29, 2009 , by
and between David M. Hable , an individual (the “
Executive ”), and Synergetics USA, Inc. , a
Delaware corporation (the “ Company
”).
WHEREAS the
Company’s Board of Directors (the “ Board
”) has determined that it is essential and in the best
interests of the Company and its shareholders to retain the
services of the Executive in the event of a threat or occurrence of
a Change in Control of the Company;
WHEREAS, in order
to induce the Executive to remain in the employ of the Company in
the event of a threat or the occurrence of a Change in Control, the
Company desires to provide the Executive with certain benefits in
the event his or her employment is terminated as a result of, or in
connection with, a Change in Control; and
WHEREAS the
Executive is willing to accept the inducement as a benefit of his
employment with the Company subject to the terms and conditions set
forth herein;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and
agreements contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions.
For purposes of this Agreement, the following terms shall have the
meanings specified below.
“
Standard Compensation Due ” shall mean a sum that
includes all amounts, if any, earned or accrued by Executive
through the employment termination date as a result of and arising
from his employment by the Company, such amounts having been earned
or accrued in accordance with standard policies and practices of
the Company, yet not paid as of the termination date, including, as
appropriate, (i) base salary, (ii) reimbursement for
reasonable and necessary expenses incurred by the Executive on
behalf of the Company, (iii) vacation pay, (iv) bonuses
and incentive compensation, and (v) all other amounts to which
the Executive is entitled under any compensation or benefit plan of
the Company. Under the bonus and incentive policy and practice that
is current as of the effective date hereof, which is subject to
change in the sole discretion of the Company, no bonus or incentive
payment is due or payable until after being awarded by the Board,
which award is made in the sole discretion of the Board and only
for eligible employees employed as of the last day of the fiscal
year. For purposes of any termination pursuant to
Section 3.1.2, however, Standard Compensation Due shall
include a bonus and incentive compensation amount determined by the
Board under the Company’s policies and practices as of the
fiscal year in which a Termination Without Cause (as defined below)
occurs, which bonus and incentive amount shall be pro rated to
reflect the portion of such fiscal year during which Executive was
employed by the Company, such that the award of bonus and incentive
compensation shall not be conditioned upon Executive’s
employment by Company on the last day of the fiscal
year.
“
Cause ” shall mean as follows: A termination of
employment is for “Cause” if the Executive has been
convicted of a felony or a felony prosecution has been brought
against the Executive, or if the termination is evidenced by a
resolution adopted in good faith by at least two-thirds (
2 / 3
) of the Board
(excluding
Executive, if a Board member) finding that the Executive
(i) intentionally or by gross negligence failed substantially
to perform any of his reasonably assigned duties with the Company
(other than a failure resulting from the Executive’s
incapacity due to physical or mental illness or because of a Change
in Control), including a failure to abide by his duty of loyalty or
confidentiality or a breach of his duty with regard to
non-competition or non-solicitation, or (ii) intentionally or by
gross negligence engaged in illegal conduct or gross misconduct
(including by omission) that results in or is expected by the Board
is likely to result in material economic harm or other detrimental
effect to the Company, directly or indirectly, including:
(a) any embezzlement or misappropriation of Company property,
(b) any act of dishonesty performed within his employment,
(c) the possession, distribution or use of illegal substances,
(d) any act or omission that endangers or is likely to
endanger the health or safety of another employee, or (e) any act
or omission that has or could have a material detrimental effect on
the Company’s reputation or business; provided ,
however , that (A) if a felony prosecution is dismissed
by the prosecution or results in a judgment of acquittal, then, a
termination arising from such prosecution shall thereafter no
longer be deemed to have been for Cause and the Executive shall be
entitled to all the benefits provided by Section 3.1.2 and
3.1.3 hereof, as appropriate; and (B) no termination shall be
for Cause as set forth in clause (i) or (ii) above unless
(x) the failure of substantial performance or the illegal or
gross misconduct continues or is not remedied to the satisfaction
of the Board during a period of seven (7) days after delivery
to the Executive of a written demand for substantial performance
going forward and the performance of any remedial action that shall
satisfy the Board, if any, such demand specifying the manner in
which the Executive has failed substantially to perform or the
illegal conduct or gross misconduct undertaken, and (y) the
Executive has been provided an opportunity to be heard by the Board
(with the assistance of the Executive’s counsel if the
Executive so desires).
“ Change
in Control ” shall mean:
(i) The
acquisition by any Person (other than (A) any employee benefit
plan established by the Company; (B) the Company or any of its
affiliates (as defined in Rule 12b-2 promulgated under the
Exchange Act); (C) an underwriter temporarily holding
securities pursuant to an offering of such securities; or
(D) a corporation owned, directly or indirectly, by
stockholders of the Company in substantially the same proportions
as their ownership of the Company), directly or indirectly, of
securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Company) representing an aggregate of fifty-one percent
(51%) or more of the combined voting power of the Company’s
then outstanding voting securities; or
(ii) A change
in the composition of the Board, wherein during any period of up to
two consecutive years, individuals who, at the beginning of such
period, constitute the Board cease for any reason to constitute at
least a majority thereof, provided that any person who becomes a
director subsequent to the beginning of such period and whose
nomination for election is approved by at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for
election was previously so approved (other than a director
(A) whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election
of the directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A under the Exchange Act, or
(B) who was designated by a Person who has entered into an
agreement with the Company to effect a transaction described in
clause (i), (iii) or (iv) hereof) shall be deemed a
director as of the beginning of such period; or
(iii) The
closing of a merger or consolidation of the Company with any other
corporation, except that the following shall not be considered to
have effected a Change in Control: (A) a merger or
consolidation that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any
trustee
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