Exhibit 10.37
AMENDMENT TO
AMENDED AND RESTATED EXECUTIVE
SEVERANCE AGREEMENT
This AMENDMENT TO AMENDED AND
RESTATED EXECUTIVE SEVERANCE AGREEMENT, dated November 11,
2008, is by and between ZOLL MEDICAL CORPORATION, a Massachusetts
corporation (the “Company”), and A. Ernest Whiton (the
“Executive”).
WHEREAS, the Company and the
Executive entered into an amended and restated executive severance
agreement effective as of April 1, 2002 (the
“Agreement”); and
WHEREAS, the parties desire to amend
the Agreement to comply with and meet the requirements of the
provisions of Section 409A of the Internal Revenue Code of
1986, as amended.
NOW, THEREFORE, the Company and the
Executive, each intending to be legally bound hereby, do mutually
covenant and agree as follows:
1. Section 2(a) of the
Agreement is hereby amended by replacing the phrase “25% or
more” with the following:
“more than
50%”
2. Section 2(b) of the
Agreement is hereby amended by deleting such subsection in its
entirety and replacing it with the following:
“the date a majority of
members of the Company’s Board of Directors is replaced
during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the
Company’s Board of Directors before the date of the
appointment or election; or”
3. Section 2(c) of the
Agreement is hereby amended by deleting such subsection in its
entirety and replacing it with the following:
“the consummation of a
transaction by the Company involving: (A) any consolidation or
merger of the Company or any Subsidiary where the stockholders of
the Company, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate
more than 50% of the voting shares of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate
parent corporation, if any) or (B) any sale, lease, exchange
or other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company.”
4. Section 2 of the Agreement
is hereby further amended by replacing the phrase “25% or
more” in the two places it appears in the last paragraph of
such section with the following:
“more than
50%”
5. Section 3 of the Agreement
is hereby amended by deleting such section in its entirety and
replacing it with the following:
“TERMINATING EVENT. A
“Terminating Event” shall mean Executive’s first
“separation from service” (within the meaning of
Section 409A of the Code) that occurs in connection with or
subsequent to a Change in Control (as defined in Section 2)
and that occurs in connection with or subsequent to any of the
events provided in this Section 3:
(a) termination by the Company of
the Executive’s employment with the Company for any reason
other than (A) a willful act of dishonesty by the Executive
with respect to any material matter involving the Company or any
subsidiary or affiliate; or (B) conviction of the Executive of
a crime involving moral turpitude; or (C) the gross or willful
failure by the Executive to substantially perform the
Executive’s duties with the Company (other than such failure
after Executive gives notice of termination), which failure is not
cured within 30 days after a written dem
