Exhibit 10.44
EXECUTIVE SEVERANCE
AGREEMENT
AGREEMENT made as of
this 11 th day of November, 2008 by and
between ZOLL Medical Corporation, a Massachusetts corporation with
its principal place of business in Chelmsford, Massachusetts (the
“Company”), and E. Jane Wilson of Hingham,
Massachusetts (the “Executive”).
1. Purpose . The Company
considers it essential to the best interests of its stockholders to
foster the continuous employment of key management personnel. The
Board of Directors of the Company (the “Board”)
recognizes, however, that, as is the case with many publicly held
corporations, the uncertainty and questions which may arise among
management in connection with a Change in Control (as defined in
Section 2 hereof) may result in the departure or distraction
of management personnel to the detriment of the Company and its
stockholders. Therefore, the Board has determined that appropriate
steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company’s
management, including the Executive, to their assigned duties
without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change in Control.
Nothing in this Agreement shall be construed as creating an express
or implied contract of employment and, except as otherwise agreed
in writing between the Executive and the Company, the Executive
shall not have any right to be retained in the employ of the
Company.
2. Change in Control . A
“Change in Control” shall be deemed to have occurred in
any one of the following events:
(a) any “person,” as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the “Act”) (other than the
Company, any of its subsidiaries, or any trustee, fiduciary or
other person or entity holding securities under any employee
benefit plan or trust of the Company or any of its subsidiaries),
together with all “affiliates” and
“associates” (as such terms are defined in Rule 12b-2
under the Act) of such person, shall become the “beneficial
owner” (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing
more than 50% of either (A) the combined voting power of the
Company’s then outstanding securities having the right to
vote in an election of the Company’s Board (“Voting
Securities”) or (B) the then outstanding shares of stock
of the Company (in either such case other than as a result of an
acquisition of securities directly from the Company); or
(b) the date a majority of members
of the Company’s Board 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 before the
date of the appointment or election; or
(c) 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),
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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.
Notwithstanding the foregoing, a
“Change in Control” shall not be deemed to have
occurred for purposes of the foregoing clause (a) solely as
the result of an acquisition of securities by the Company which, by
reducing the number of shares of stock or other Voting Securities
outstanding, increases (x) the proportionate number of shares
of stock beneficially owned by any person to more than 50% of the
shares of stock then outstanding or (y) the proportionate
voting power represented by the Voting Securities beneficially
owned by any person to more than 50% of the combined voting power
of all then outstanding Voting Securities; provided ,
however , that if any person referred to in clause
(x) or (y) of this sentence shall thereafter become the
beneficial owner of any additional shares of stock or other Voting
Securities (other than pursuant to a stock split, stock dividend,
or similar transaction), then a “Change in Control”
shall be deemed to have occurred for purposes of the foregoing
clause (a).
3. Terminating Event . A
“Terminating Event” shall mean any of the events
provided in this Section 3 occurring subsequent to a Change in
Control as defined in Section 2:
(a) termination by the Company of
the employment of the Executive 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 any such
failure after the Executive gives notice of termination for good
reason), which failure is not cured within 30 days after a written
demand for substantial performance is received by the Executive
from the Board of the Company which specifically identifies the
manner in which the Board believes the Executive has not
substantially performed the Executive’s duties; or
(D) the failure by the Executive to perform her full-time
duties with the Company by reason of her death, disability or
retirement; provided , however , that a Terminating
Event shall not be deemed to have occurred pursuant to this
Section 3(a) solely as a result of the Executive being an
employee of any direct or indirect successor to the business or
assets of the Company, rather than continuing as an employee of the
Company following a Change in Control. For purposes of
clauses (A) and (C) of this Section 3(a), no act, or
failure to act, on the Executive’s part shall be deemed
“willful” unless done, or omitted to be done, by the
Executive without reasonable belief that the Executive’s act,
or failure to act, was in the best interest of the Company and its
subsidiaries and affiliates. For purposes of clause (D) of
this Section 3(a), Section 6 and Section 8(b)
hereof, “disability” shall mean the Executive’s
incapacity due to physical or mental illness which has caused the
Executive to be absent from the full-time performance of her duties
with the Company for a period of six (6) consecutive months if
the Company shall have given the Executive a Notice of Termination
(as hereinafter defined) and, within thirty (30) days after
such Notice of Termination is given, the Executive shall not have
returned to the full-time performance of her duties. For purposes
of clause (D) of this Section 3(a) and Section 6,
“retirement” shall mean termination of the
Executive’s employment in accordance with the
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Company’s normal retirement policy, not
including early retirement, generally applicable to its salaried
employees, as in effect immediately prior to the Change in Control,
or in accordance with any retirement arrangement established with
respect to the Executive with the Executive’s express written
consent;
(b) termination by the Executive of
the Executive’s employment with the Company for Good Reason.
For purposes of this Agreement, “Good Reason” shall
mean that the Executive has complied with the “Good Reason
Process” (hereinafter defined) following the occurrence of
any of the following events:
(A) a substantial adverse change,
not consented to by the Executive, in the nature or scope of the
Executive’s responsibilities, authorities, powers, functions
or duties from the responsibilities, authorities, powers, functions
or duties exercised by the Executive immediately prior to the
Change in Control; or
(B) a material reduction in the
Executive’s annual base salary as in effect on the date
hereof or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all or
substantially all management employees; or
(C) a material relocation of the
Company’s offices at which the Executive is principally
employed immediately prior to the date of a Change in Control, such
relocation shall be to a location more than 50 miles from such
offices, or a material change to the geographic location at which
the Executive is based, provided that such requirement by
the Company shall be more than 50 miles from the Company offices at
such location, except for required travel on the Company’s
business to an extent substantially consistent with the
Executive’s business travel obligations immediately prior to
the Change in Control; or
(D) a material breach by the Company
of this Agreement.
“Good Reason Process”
shall mean that (i) the Executive reasonably determines in
good faith that a “Good Reason” condition has occurred;
(ii) the Executive notifies the Company in writing of the
occurrence of the Good Reason condition within 60 days of the
occurrence of such condition; (iii) the Executive cooperates
in good faith with the Company’s efforts, for a period not
less than 30 days following such notice (the “Cure
Period”), to remedy the condition; (iv) notwithstanding
such efforts, the Good Reason condition continues to exist; and
(v) the Executive terminates her employment within 60 days
after the end of the Cure Period. If the Company cures the Good
Reason condition during the Cure Period, Good Reason shall be
deemed not to have occurred.
4. Severance Payment . In the
event a Terminating Event occurs within eighteen (18) months
after a Change in Control,
(a) the Company shall pay to the
Executive an amount equal to one and one-half (1.5) times the
sum of (i) the Executive’s base salary immediately prior
to the Terminating Event (or immediately prior to the Change in
Control, if higher) and (ii) the average of the bonuses paid
to the Executive over the three most recent years prior to the
Change in Control, payable in one lump-sum payment on the Date of
Termination (as hereinafter defined);
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(b) the Company shall continue to
provide health and dental insurance coverage to the Executive, on
the same terms and conditions as though the Executive had remained
an active employee, for eighteen (18) months after the
Terminating Event; and
(c) the Company shall pay to the
Executive all reasonable legal and arbitration fees and
