EXHIBIT 10.10
NATUS MEDICAL
INCORPORATED
EMPLOYMENT
AGREEMENT
This Agreement is entered into as of
, (the “ Effective Date ”) by and between Natus
Medical Incorporated (the “ Company ”), and
(“ Executive ”).
1. Duties and Scope of
Employment .
(a) Positions and Duties . As
of the Effective Date, Executive will serve as
of the Company. Executive will render such business and
professional services in the performance of his duties, consistent
with Executive’s position within the Company, as shall
reasonably be assigned to him by the Company’s Chief
Executive Officer (“CEO”). The period of
Executive’s employment under this Agreement is referred to
herein as the “Employment Term.”
(b) Obligations . During the
Employment Term, Executive will perform his duties faithfully and
to the best of his ability and will devote his full business
efforts and time to the Company. For the duration of the Employment
Term, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or
indirect remuneration without the prior approval of the
Board.
2. At-Will Employment . The
parties agree that Executive’s employment with the Company
will be “at-will” employment and may be terminated at
any time with or without cause or notice. Executive understands and
agrees that neither his job performance nor promotions,
commendations, bonuses or the like from the Company give rise to or
in any way serve as the basis for modification, amendment, or
extension, by implication or otherwise, of his employment with the
Company.
3. Compensation .
(a) Base Salary . During the
Employment Term, the Company will pay Executive an annual salary of
$
as compensation for his services (the “Base Salary”).
The Base Salary will be paid periodically in accordance with the
Company’s normal payroll practices and be subject to the
usual, required withholding. Executive’s salary will be
subject to review and adjustments will be made based upon the
Company’s normal performance review practices.
4. Employee Benefits . During
the Employment Term, Executive will be entitled to participate in
the employee benefit plans currently and hereafter maintained by
the Company of general applicability to other senior executives of
the Company, including, without limitation, the Company’s
group medical, dental, vision, disability, life insurance, and
flexible-spending account plans. The Company reserves the right to
cancel or change the benefit plans and programs it offers to its
employees at any time.
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5. Paid Time Off
(“PTO”) . Executive will be entitled to receive PTO
pursuant to Natus’ standard benefit policy currently and
hereafter maintained by the Company, and as may be cancelled or
changed from time to time.
6. Expenses . The Company
will reimburse Executive for reasonable travel, entertainment or
other expenses incurred by Executive in the furtherance of or in
connection with the performance of Executive’s duties
hereunder, in accordance with the Company’s expense
reimbursement policy as in effect from time to time.
7. Severance .
(a) Involuntary
Termination . If Executive’s employment with the Company
terminates other than for “Cause” (as defined herein),
death or disability, and Executive signs and does not revoke a
standard release of claims with the Company, then, subject to
Section 11, Executive shall be entitled to (i) receive
continuing payments of severance pay (less applicable withholding
taxes) at a rate equal to his Base Salary rate, as then in effect,
for a period equal to
months, plus
month for each
months of employment, up to a maximum of
month(s) from the date of such Executive’s “separation
from service” (as defined in Treas. Reg. 1.409A-1(h)) with
the Company, to be paid periodically in accordance with the
Company’s normal payroll policies and commencing with the
latest payroll date that is also within seventy (70) days from
the date of “separation from service” (with earlier
commencement possible only if in compliance with Section 409A
of the code and with payments that would have been made on earlier
payroll dates, but for this provision, cumulated and paid on such
payroll date); (ii) the immediate vesting and exercisability
of
%
of the shares subject to all of Executive’s stock awards
covering shares of Company Common Stock (whether currently
outstanding or granted in following the Effective Date) outstanding
on the date such release of claims becomes effective (the “
Stock Awards ”) and (iii) continued payment by
the Company of the group health continuation coverage premiums for
Executive and Executive’s eligible dependents under Title X
of the Consolidated Budget Reconciliation Act of 1985, as amended
(“ COBRA ”) as in effect through the lesser of
(x)
months from the effective date of such termination, (y) the
date upon which Executive and Executive’s eligible dependents
become covered under similar plans, or (z) the date Executive
no longer constitutes a “Qualified Beneficiary” (as
such term is defined in Section 4980B(g) of the Internal
Revenue Code of 1986, as amended (the “ Code
”)); provided, however, that Executive will be solely
responsible for electing such coverage within the required time
periods. Compensation and benefits payable pursuant to this
provision that are made from the date of “separation from
service” with the Company through March 15
th
of the calendar
year following such termination, are intended to constitute
separate payments for purposes of Treas. Reg. 1.409A-2(b)(2) and
thus payable pursuant to the “shot-term deferral” rule
set forth in Treas. Reg. 1.409A-1(b)(4); payments made following
such March 15 th , are intended to constitute
separate payments for purposes of Treas. Reg. 1.409A-2(b)(2) made
upon an involuntary termination from service and payable pursuant
to Treas. Reg. 1.409A-1(b)(9)(iii), to the maximum extent permitted
by said provision, with any excess amount being regarded as subject
to the distribution requirements of Section 409A(a)(2)(A) of
the Code, including, without limitation, the requirement of
Section 409A(a)(2)(B)(i) of the code that payments be delayed
until six months after “separation from service” if
Executive is a “specified employee” within the meaning
of the aforesaid section of the Code at the time of such
“separation from service.”
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(b) Voluntary Termination;
Termination for Cause . If Executive’s employment with
the Company terminates voluntarily by Executive (other than as
described in subsection (c) below) or for Cause by the Company
or due to Executive’s death or disability, then (i) all
vesting of Stock Options will immediately cease, (ii) all
payments of compensation by the Company to Executive hereunder will
terminate immediately (except as to amounts already earned), and
(iii) Executive will only be eligible for severance benefits,
if any, in accordance with the Company’s established policies
as then in effect.
(c) Change of Control
Benefits . If within twelve (12) months following a
“Change of Control” (as defined below)
(i) Executive terminates Executive’s employment with the
Company for Good Reason after providing the Company with written
notice within the ninety (90) days after the occurrence of an
event constituting Good Reason and an opportunity for the Company
to cure such occurrence of not less than thirty (30) days, or
(ii) the Company or the successor corporation terminates
Executive’s employment with the Company for other than Cause,
death or disability, then Executive shall be entitled to the
benefits provided for in subsection (a). Executive shall only be
permitted to receive the benefits provided for in subsection
(a) once and shall not be permitted to claim such benefits
under both subsection (a) and (c) such that Executive
would receive the benefits pursuant to subsection (a) twice.
The payment-characterization provisions made under subsection
(a) above for purposes of Section 409A of the Code shall
apply as well.
8. Limitation on Payments .
In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to the Executive
(i) constitute “parachute payments” within the
meaning of Section 280G of the Code and (ii) but for this
Section 8, would be subject to the excise tax imposed by
Section 4999 of the Code, then the Executive’s severance
benefits under Section 4(a)(i) shall be either:
delivered in full, or
delivered as to such lesser extent
which would result in no portion of such severance benefits being
subject to excise tax under Section 4999 of the
Code,
whichever of the foregoing amounts,
taking into account the applicable federal, state and local income
taxes and the excise tax imposed by Section 4999, results in
the receipt by Executive on an after-tax basis, of the greatest
amount of severance benefits, notwithstanding that all or some
portion of such severance benefits may be taxable under
Section 4999 of the Code. Unless the Company and Executive
otherwise agree in writing, any determination required under this
Section 8 shall be made in writing by the Company’s
independent public accountants immediately prior to Change of
Control (the “ Accountants ”), whose
determination shall be conclusive and binding upon Executive and
the Company for all purposes. For purposes of making the
calculations required by this Section 8, the Accountants may
make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and
4999 of the Code. The Company and Executive shall furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated
by this Section 8. If payment is to be in a lesser amount then
reduction shall occur in the following order: (i) reduction of
payments of cash; and (ii) reduction in equity awards; and in
each category reduction shall be pro rata between those payments
subject to Section 409A and payments not subject to
Section 409A.
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9. Definitions .
(a) Cause . For purposes of
this Agreement, “ Cause ” shall mean
(i) any act of personal dishonesty taken by Executive in
connection with his responsibilities as an employee and intended to
result in substantial personal enrichment of Executive,
(ii) Executive’s conviction of a felony, (iii) a
willful act by Executive which constitutes gross misconduct and
which is injurious to the Company, or (iv) continued
substantial violations by Executive of Executive’s employment
duties which are demonstrably willful and deliberate on
Executive’s part after there has been delivered to Executive
a written demand for performance from the Company which
specifically sets forth the factual basis for the Company’s
belief that Executive has not substantially performed
Executive’s duties.
(b) Change of Control . For
purposes of this Agreement, “ Change of Control
” of the Company is defined as:
(i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company
representing 50% or more of the total voting power represented by
the Company’s then outstanding voting securities;
or
(ii) a change in the composition of
the Board occurring within a two-year period, as a result of which
fewer than a majority of the directors are Incumbent Directors.
(“ Incumbent Directors ”) will mean directors
who either (A) are directors of the Company as of the date
hereof, or (B) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of
the
