Exhibit 10.1
VIASYS HEALTHCARE INC.
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered
into as of May 26 th
, 2006 (the “Restatement
Effective Date”), by and among Viasys Healthcare Inc., a
Delaware corporation (together with its successors and assigns
permitted under this Agreement, the “Company”), and
Arie Cohen (the “Executive”).
W I T N E S S E T H :
WHEREAS, the Company and the
Executive previously entered into an employment agreement dated as
of November 29, 2004 to embody the terms and provisions of the
Executive’s employment (the “Original
Agreement”);
WHEREAS, the Company desires that
the Executive continue to be employed by the Company and the
Executive is willing to continue to be employed by the Company;
and
WHEREAS, effective as of the
Restatement Effective Date, the Company and the Executive now
desire to amend and restate the Original Agreement as set forth
herein.
NOW, THEREFORE, in consideration of
the premises and mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which is mutually acknowledged, the Company and the Executive
hereby agree as follows:
1.
DEFINITIONS.
(a)
“Affiliate” means a person or other entity that
directly or indirectly controls, is controlled by, or is under
common control with the person or other entity
specified.
(b)
“Base Salary” means the salary provided for in Section
4 or any increased salary granted to the Executive pursuant
thereto.
(c)
“Board” means the Board of Directors of the Company, or
the Compensation Committee or other applicable committees of the
Board of Directors.
(d)
“Bonus Plan” means the Company’s management
incentive plan or such other annual bonus plan in existence at the
applicable time.
(e)
“Cause” means the occurrence of any one or more of the
following events:
(i)
the Executive’s repeated failure to comply with the
reasonable directives of the relevant senior officers;
(ii)
the Executive’s commission of a felony which is materially
and demonstrably injurious to the Company; or
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(iii)
the Executive’s continued gross neglect of the
Executive’s duties with the Company (other than any such
occurrence resulting from incapacity due to physical or mental
illness).
(f)
“Change in Control” means an event or occurrence set
forth in any one or more of subsections (i) through (iv) below
(including, without limitation, an event or occurrence that
constitutes a Change in Control under one of such subsections but
is specifically exempted from another such subsection):
(i)
the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership of any capital stock
of the Company if, after such acquisition, such Person beneficially
owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 40% or more of either (i) the then-outstanding shares
of common stock of the Company (the “Outstanding Company
Common Stock”), or (ii) the combined voting power of the
then-outstanding securities of the Company entitled to vote
generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that for
purposes of this subsection (i), the following acquisitions shall
not constitute a Change in Control:
(A)
any acquisition by the Company, or
(B)
any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company;
(ii)
the Continuing Directors (as defined below) do not constitute a
majority of the Board (or, if applicable, the Board of Directors of
a successor corporation to the Company), where the term
“Continuing Director” means at any date a member of the
Board (A) who was a member of the Board on the date of the
execution of this Agreement or (B) who was nominated or elected
subsequent to such date by at least a majority of the directors who
were Continuing Directors at the time of such nomination or
election or whose election to the Board was recommended or endorsed
by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (B) any
individual whose initial assumption of office occurred as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a person
other than the Board;
(iii)
the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company
or a sale or other disposition of all or substantially all of the
assets of the Company in one or a series of transactions (a
“Business Combination”), unless, immediately following
such Business Combination the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of directors, respectively, of the resulting or acquiring
corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such
transaction owns the Company or substantially all of the
Company’s assets either directly or through one or
more
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subsidiaries) (such resulting or
acquiring corporation is referred to herein as the “Acquiring
Corporation”); or
(iv)
approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
(g)
“Code” means the Internal Revenue Code of 1986, as
amended.
(h)
“Disability” or “disabled” means a
disability which results in the Executive’s entitlement to
long-term disability benefits under the Company’s applicable
long-term disability plan.
(i)
“Equity Grant” means any compensatory grant of Stock,
options with respect to Stock, restricted Stock, Stock appreciation
rights or any other compensatory grant (whether or not such grant
is payable in stock) the value of which is determined with
reference to Stock valuation.
(j)
“Notice of Termination” means a written notice from one
party to the other party hereto given in accordance with Section
24, terminating the Executive’s employment hereunder.
Any Notice of Termination shall (i) indicate the specific
termination provision hereunder relied on by the party giving such
notice and (ii) to the extent applicable, set forth in reasonable
detail the facts and circumstances providing a basis for
termination of the Executive’s employment under the provision
so indicated. The failure by the Company to set forth any
fact or circumstance that contributes to a showing of Cause shall
not waive any right of the Company hereunder or preclude the
Company from asserting any such fact or circumstance in enforcing
its rights hereunder.
(k)
“Pro-Rated Annual Bonus” means an annual cash incentive
bonus award for the year in which the termination occurs, pro-rated
through the Termination Date, determined in accordance with the
Bonus Plan and the provisions of Section 5, which award, if and to
the extent so determined to be owed, shall be payable when
incentive awards are normally paid to comparable
executives.
(l)
“Stock” means the common stock, $0.01 par value per
share, of the Company.
(m)
“Termination Date” means, with respect to any
termination of the Executive’s employment hereunder, the
effective date of such termination pursuant to Section
9.
2.
TERM OF EMPLOYMENT.
This Agreement, and all rights and
obligations of the parties hereunder, shall take effect upon the
Restatement Effective Date and shall continue until the date that
is two years from the Restatement Effective Date (the
“Initial Employment Term”). In addition, the term
of this Agreement shall automatically renew for periods of two
years (each an “Extension Term”) unless either party
gives written notice to the other party, at least ninety (90) days
prior to the end of the Initial Employment Term or at least ninety
(90) days prior to the end of the relevant Extension Term, that the
Agreement shall not be further extended. The period
commencing on the Restatement Effective Date and ending on the date
on which the term of the Executive’s
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employment under the Agreement shall
terminate is hereinafter referred to as the “Employment
Term.”
3.
POSITION, DUTIES AND RESPONSIBILITIES.
(a)
The Executive is currently employed as Division President,
Pulmonetics of the Company, and the Executive has been assigned and
shall be assigned such duties and responsibilities as are
reasonably consistent with such position(s), or such other
position, duties and responsibilities as the CEO or the
Executive’s direct supervisor from time to time deems
appropriate.
(b)
During the Employment Term, the Executive shall devote the
Executive’s entire business time, attention and energies to
the business and interest of the Company in performing the
Executive’s duties and responsibilities under this Agreement,
and to that end but without limitation of the foregoing, the
Executive shall not serve on the board of directors of other
corporations or entities without the prior approval of the Board or
the Chief Executive Officer.
(c)
Notwithstanding anything contained in Section 3(b) to the contrary,
nothing herein shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of trade associations
and/or charitable organizations, (ii) engaging in charitable
activities and community affairs, and (iii) managing the
Executive’s personal investments and affairs, provided that
such activities do not materially interfere with the proper
performance of the Executive’s duties and responsibilities as
set forth in this Section 3.
4.
BASE SALARY.
The Executive shall be paid an
annualized base salary, payable in accordance with the regular
payroll practices of the Company, of $258,000.00, which amount may
be increased from time to time in the discretion of the
Board.
5.
ANNUAL CASH INCENTIVE AWARD.
During the Employment Term, the
Executive shall participate in (a) the Bonus Plan with a target
bonus of 50% of the Base Salary, or such other amount as may be
determined in its discretion by the Board or the appropriate
committee or individual to which authority for these matters has
been assigned, and (b) any other incentive programs established by
the Company for its senior level executives generally.
6.
EMPLOYEE BENEFIT PROGRAMS.
During the Employment Term, the
Executive shall be entitled to participate in all employee pension
and welfare benefit plans and programs made available to the
Company’s senior level executives.
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7.
PERQUISITES.
During the Employment Term, the
Executive shall be entitled to participate in all of the
Company’s executive perquisites in accordance with the terms
and conditions of such arrangements as are in effect from time to
time for the Company’s senior-level executives.
8.
REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
The Executive is authorized to incur
reasonable expenses in carrying out the duties and responsibilities
under this Agreement, and the Company shall promptly reimburse the
Executive for such expenses, subject to documentation in accordance
with the Company’s policies.
9.
TERMINATION OF EMPLOYMENT.
The Executive’s employment
hereunder shall terminate effective immediately upon the earlier to
occur of the following events:
(a)
death of the Executive;
(b)
receipt by either party of a Notice of Termination for Disability
from the other party, but in any event not until the Executive is
determined to be disabled in accordance with Section
1(h);
(c)
the day the Executive receives a Notice of Termination for Cause
from the Company;
(d)
the 30th day following receipt by the Executive of a Notice of
Termination without Cause from the Company;
(e)
the 30th day following receipt by the Company of a Notice of
Termination of employment from the Executive (other than a Notice
of Termination for non-renewal of the Agreement);
(f)
the 90th day following receipt by the Company of a Notice of
Termination for non-renewal of the Agreement from the Executive
pursuant to Section 2; and
(g)
the last day of the Employment Term, in the event of receipt by the
Executive of a notice of non-renewal of the Agreement from the
Company pursuant to Section 2.
10.
RIGHTS AND REMEDIES UPON TERMINATION OF EMPLOYMENT.
(a)
TERMINATION DUE TO DEATH. In the event that the
Executive’s employment is terminated due to the
Executive’s death, the Executive’s estate or
beneficiaries, as the case may be, shall be entitled to the
following benefits:
(i)
The Executive’s then current Base Salary pro-rated through
the Termination Date, which shall be payable in a lump sum within
thirty (30) days of the Termination Date;
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(ii)
The Pro-Rated Annual Bonus, if and to the extent payable;
and
(iii)
Each Equity Grant held by the Executive, whether or not issued
under this Employment Agreement, that has not vested prior to that
date shall immediately vest (and all relevant vesting restrictions
shall lapse) and to the extent subject to an exercise period, shall
remain exercisable until one year following the Termination Date
(but in no event beyond the end of each such Equity Grant’s
otherwise applicable exercise period).
(b)
TERMINATION DUE TO DISABILITY. In the event that the
Executive’s employment is terminated by either party due to
the Executive’s Disability, the Executive shall be entitled
to the following benefits:
(i)
Disability benefits in accordance with the long-term disability
(“LTD”) program then in effect for comparable
executives of the Company;
(ii)
The Executive’s then current Base Salary pro-rated through
the end of the LTD elimination period, which shall be payable in a
lump sum within thirty (30) days of the Termination
Date;
(iii)
The Pro-Rated Annual Bonus, if and to the extent payable;
and
(iv)
Each Equity Grant held by the Executive, whether or not issued
under this Employment Agreement, that has not vested prior to that
date shall immediately vest (and all relevant vesting restrictions
shall lapse) and to the extent subject to an exercise period, shall
remain exercisable until one year following the Termination Date
(but in no event beyond the end of each such Equity Grant’s
otherwise applicable exercise period).
(c)
TERMINATION BY THE COMPANY FOR CAUSE. In the event that the
Company terminates the Executive’s employment for
Cause:
(i)
The Executive shall be entitled to receive the Executive’s
current
