Exhibit 10.8

 

SEVERANCE AGREEMENT

 

This AGREEMENT, entered into as of May 1, 1990, by and between GREGORY A. FRYLING (the “Employee”), COOPERVISION, INC., a Delaware corporation (together with itspredecessor, CooperVision Ophthalmic Products, Inc., hereinafter referred to as “CVI”) and THE COOPER COMPANIES,INC., a Delaware corporation (“TCC”):

 

W I T N E S S E T H:

 

WHEREAS CVI recognizes that the Employee’s contribution to the betterment of CVI has been substantial; and

 

WHEREAS CVI believes it to be important both to CVI’s future prosperity and to its general interests to obtain assurance concerning the continuation of the Employee’s employment and to provide the Employee with incentives:

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NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows:

 

1. Term of Agreement.

 

This Agreement shall be in effect from the date hereof until the earliest of the following:

 

(a) The date when the Employee ceases to be employed by CVI or the Companies (as hereinafter defined), if no severance benefit is provided under this Agreement as a result of the employment termination; or

 

(b) The date when all obligations of the parties under this Agreement have been satisfied, if the Employee ceases to be employed by CVI or the Companies and a severance benefit is provided under this Agreement as a result of the employment termination.

 

2. Employment and Compensation.

 

(a) Subject to the terms and conditions of this Agreement, CVI agrees to employ the Employee during the Employment Period (as hereinafter defined), and the Employee agrees to be so employed, either (i) as Controller of CooperVision, Inc., or (ii) in such other capacity of comparable stature within CVI, TCC, or any new business unit acquired by, or subsidiary of, TCC or CVI (collectively, the “Companies”), to which Employee is assigned by the President of CVI; provided, however, that the Employee’s approval shall be required for any assignment pursuant to Section

 

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2(a) (ii) if and only if such assignment would both (x) require the Employee to be based at a principal workplace other than that maintained at such time by Richard W. Turner and (y) require the employee to be based more than 50 miles from the location of the CVI corporate headquarters in Connecticut. In the event of an assignment to any of the Companies other than CVI, then all references to CVI in this Agreement shall be deemed to be references to such entity.

 

(b) Annual Base Salary: During the Employee’s employment hereunder, CVI shall pay the Employee a salary at the rate of not less than $92,000 (Ninety-two Thousand Dollars) per annum (“Annual Base Salary”), payable in equal regular installments on the 15th and last day of each month. The Board of Directors of TCC may from time to time, in its sole and absolute discretion, increase the Employee’s Annual Base Salary. Any such increased salary shall become the Annual Base Salary on and after the effective date of such increase.

 

(c) Incentive Payment Plan: The Employee shall be eligible to participate in the CVI Incentive Payment Plan (“IPP”) at the 30% award level. Such IPP bonus shall be payable to the Employee if and only if (i) the Board of Directors of TCC shall have approved criteria for the earning of an IPP bonus by CVI employees and (ii) such criteria shall have been achieved and IPP bonuses shall have been paid thereunder to other eligible CVI employees.

 

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(d) Restricted Stock Grant:

 

(i) TCC agrees to submit for stockholder approval, not later than at the next annual stockholders meeting of the Company, a new incentive stock plan. Promptly following the approval of such plan, the Employee shall be granted the right to purchase 7,500 shares of restricted common stock of TCC at a purchase price of $0.10 per, share (the “Restricted Shares”), to be purchased and held in accordance with the terms of such incentive stock plan (the “Plan”). The restrictions on the Restricted Shares shall be removed as set forth in Section 2(d) (ii) hereof.

 

(ii) The restrictions on the Restricted Shares shall be removed in the following percentages of the total number of such shares, provided the average closing price of TCC’s common stock over a consecutive thirty day period achieves the indicated stock price during the Employment Period:

 

Stock Price		% Unrestricted
$4.43		20	%
5.22		40	%
6.16		60	%
7.27		80	%
8.58		100	%

 

Promptly following the last day of the Employment Period, the Employee shall sell to TCC, and TCC shall repurchase, at $0.10 per share all the Restricted Shares from which restrictions shall not have been removed pursuant to this

 

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Section 2(d) during the Employment Period. Notwithstanding the foregoing, upon a resignation following a Change in Control, pursuant to Section 5 hereof, all restrictions shall, be removed from the Restricted Shares and the certificates evidencing such shares promptly shall be delivered to the Employee. The Employee agrees to execute a restricted stock agreement with respect to the Restricted Shares in a form reasonably acceptable to counsel to CVI and TCC.

 

(e) Relocation Expenses and Allowance: The Employee agrees to relocate to the State of Connecticut for the purpose of maintaining his primary workplace at the new CVI headquarters. TCC shall reimburse the Employee for the reasonable expense associated with such relocation in accordance with TCC’s Employee Transfer Expense Policy dated August 21, 1989; except that, with respect to such relocation to Connecticut, the Employee waives any right, pursuant to Section IV.C of such policy or otherwise, to reimbursement by TCC or CVI of any loss incurred upon the sale of the Employee’s house in California. Upon such relocation, the CVI agrees to pay to Employee a one-time lump sum transition allowance in the amount of $22,000 (Twenty-two Thousand Dollars).

 

(f) Benefits: During the Employment Period, the Employee shall participate in all employee benefit plans and

 

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receive such fringe benefits as are from time to time made generally available to CVI’S management including, without limitation, life insurance, accidental death and dismemberment insurance, surgical, medical and hospital expense benefits, long-term disability plans, Stock Purchase Savings and Retirement Income Plans. Upon presentation of appropriate documentation, CVI shall reimburse the Employee for all proper expenses incurred by him in the performance of his duties, in accordance with the policies and procedures established by CVI.

 

3. Involuntary Termination Without Cause.

 

If CVI terminates the Employee’s employment without Cause, CVI shall pay the Employee a severance benefit as set forth in Section          hereof, and TCC shall deliver to the Employee all certificates evidencing those of the Restricted Shares from which restrictions shall have been removed, pursuant to Section 2(d), prior to the Date of Termination. Promptly following such termination, the Employee shall sell to TCC and TCC shall repurchase at $0.10 per share, all of the Restricted Shares from which restrictions shall not have been removed prior to the Date of Termination. For purposes of this Agreement, a termination without cause shall include but not be limited to the Employee ceasing to be employed by the Companies as a

 

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result of the Employee’s continuing in the employ of a division, subsidiary or other business unit of the Companies that has been sold, transferred or otherwise conveyed to an unaffiliated third party. CVI shall give the Employee not less than 90 days’ advance notice in writing of any termination without Cause.

 

4. Resignation for Good Reason.

 

If the Employee terminates his employment for Good Reason then, following the Date of Termination, CVI shall pay the Employee a severance benefit as set forth in Section          hereof, and TCC shall deliver to the Employee all certificates evidencing those of the Restricted Shares from which restrictions shall have been removed, pursuant to Section 2(d), prior to the Date of Termination. Promptly following such termination, the Employee shall sell to TCC, and TCC shall repurchase at $0.10 per share, all of the Restricted Shares from which restrictions shall not have been removed, pursuant to Section 2(d), prior to the Date of Termination.

 

5. Resignation After Change in Control.

 

If the Employee terminates his employment without Good Reason within 90 days after a Change in Control, CVI shall pay the Employee a severance benefit as set forth in

 

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Section      hereof; in addition, all restrictions shall be removed from the Restricted Shares and the certificates, evidencing such shares shall be delivered by TCC to the Employee promptly following the Date of Termination.

 

6. Resignation With Notice.

 

If the Employee terminates his employment other than pursuant to Section 4, 5 or 7 hereof, and provided that the Employee shall have given CVI not less than 30 days’ advance written notice of such termination, then CVI shall pay to the Employee a severance benefit in an amount equal to 30 days’ of the Employee’s Annual Base Salary and CVI shall have no further obligations to the Employee under this Agreement other than for those benefits provided under CVI’s Retirement Income and Stock Purchase Savings Plan or those benefits, if any, which CVI is required by law to provide notwithstanding any agreement to the contrary. Promptly following such resignation, the Employee shall sell to TCC, and TCC shall repurchase at $0.10 per share, all the Restricted Shares from which restrictions shall not have been removed, pursuant to Section 2(d), prior to the Date of Termination.

 

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7. Relocation.

 

If the Company notifies the Employee that his principal workplace will be moved to any location more than 50 miles from his present principal workplace except to any location maintained as a headquarters of any business unit acquired by TCC or by CVI and the Employee elects not to relocate, then the Employee’s employment shall terminate on the relocation date specified in the notice referred to in this Section 7 and the Company shall pay the Employee a severance benefit as set forth in Section          hereof, and TCC shall deliver to the Employee all certificates evidencing those of the Restricted Shares from which restrictions shall have been removed, pursuant to Section 2 (d), prior to the Date of Termination. Promptly following such termination, the Employee shall sell to TCC, and TCC shall repurchase at $0.10 per share, all of the Restricted Shares from which restrictions shall not have been removed prior to the Date of Termination. CVI shall give the Employee not less than 90 days’ advance notice of any relocation described in this Section 7. The Employee shall consent to or decline the relocation within 30 days of receipt of notice. The Employee hereby consents to the relocation of his principal workplace to the State of Connecticut as set forth in Section 2(e), or to another headquarters location maintained by any business unit acquired by TCC by CVI, and hereby waives any right to benefits pursuant to this Section 7 on

 

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account of such relocations. Following any relocation of the Employee pursuant to this Section 7, the location of the CVI corporate headquarters in Connecticut or of the afore-referenced headquarters location maintained by any business unit acquired by TCC or by CVI shall be deemed to be Employee’s principal workplace for the purpose of this Section 7.

 

8. Death.

 

If the Employee’s employment shall be terminated by reason of his death, CVI shall pay to such person as the Employee shall have designated in a notice filed with CVI or, if no such person shall have been designated, to the Employee’s estate, Employee’s Annual Base Salary through the date of death, and TCC shall deliver to the Employee all certificates evidencing those of the Restricted Shares from which restrictions shall have been removed, pursuant to Section 2(d), prior to the Date of Termination. Promptly following such termination, the Employee shall sell to TCC, and TCC shall repurchase at $0.10 per share, all of the Restricted Shares from which restrictions shall not have been removed prior to the Date of Termination.

 

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9. Termination for Cause.

 

If the Company terminates the Employee’s employment for Cause, CVI shall pay to the Employee his Annual Base Salary through the Date of Termination and CVI shall have no further obligations to the Employee under this Agreement other than for those benefits provided under CVI’S Retirement Income and Stock Purchase Savings Plan or those benefits, if any, which CVI is required by law to provide notwithstanding any agreement to the contrary. Promptly following such termination, the Employee shall sell to TCC, and TCC shall repurchase at $0.10 per share, all the Restricted Shares from which restrictions shall not have been removed prior to the Date of Termination.

 

10. Payment of Severance Benefit.

 

(a) Amount. If the Employee becomes entitled to a severance benefit under Sections 3, 4, 5 or 7 of this Agreement, the Employee shall be entitled to such severance benefit as follows: (i) If the Date of Termination occurs on or before the date twelve months from the date of this Agreement, the severance benefit shall be in an amount equal to 18 months’ Annual Base Salary; (ii) If the Date of Termination occurs after the date twelve months from the date of this Agreement, the severance benefit shall be in an amount equal to 12 months’ Annual Base Salary

 

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(b) Election. If the Employee becomes entitled to a severance benefit under Sections 3, 4, 5 or 7 of this Agreement, he may elect whether such benefit is to be paid in a lump sum under Subsection (c) below or in installments under Subsection (d) below. Such an election shall be submitted to the Company in writing within five business days after the Date of Termination. If the Employee fails to submit a timely written election to CVI, such benefit shall be paid in a lump sum under Subsection (c) below.

 

(c) Lump Sum. A benefit payable under this Subsection (c) shall be paid in a single lump sum within 10 business days after the Date of Termination.

 

(d) Installments. A benefit payable under this Subsection (d) shall be paid by continuing the Employee’s Annual Base Salary in accordance with CVI’S regular payroll practices until such benefit is exhausted, commencing with the period next following the last payroll period during which the Employee was employed by CVI.

 

(e) Withholding. All payments made under this Agreement shall be subject to reduction to reflect any withholding taxes or other amounts required by applicable law or regulation.

 

(f) Death. Any amount payable under this Section 10 after the Employee’s death shall be paid to the beneficiary or beneficiaries designated by him for this purpose in writing or, if there is no surviving beneficiary, to his estate.

 

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11. Group Insurance.

 

(a) General. If the Employee becomes entitled to a benefit payable under Section 3, 4, 5 or 7 hereof the Employee’s participation (including dependent coverage) in the life, accident, disability, health and dental insurance plans of CVI, shall be continued, or equivalent benefits provided by CVI at no cost to the Employee until the earlier of 12 months following the Date of Termination or the date the Employee becomes covered by equivalent benefits by a subsequent employer;

 

(b) Coordination with COBRA Coverage. For purposes of determining the required duration of any contribution coverage under CVI’s health care plans mandated by law, the period of any continued coverage under this Agreement following the termination of the Employee’s employment shall be counted as all or part of such required duration.

 

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12. Other Benefits.

 

If the Employee becomes entitled to a benefit under Section 3, 4, 5 or 7, he shall also receive the following benefits:

 

(a) The Employee shall be entitled to receive a pro rata share of any amounts payable, if any, under the CVI Headquarters Incentive Payment Plan approved by the Board of Directors of TCC, based on the number of months the Employee served as an employee during the fiscal year completed or already underway, payable if and when other participants in the Plan receive payment from CVI thereunder.

 

(b) The Employee shall fully vest in all benefits due under CVI’s Retirement Income Plan or, if prohibited by the terms thereof, shall be entitled to receive benefits substantially equivalent to the benefits accrued thereunder. Whether benefits are substantially equivalent for purposes of the preceding sentence shall be determined without regards to the tax consequences thereof.

 

13. No Mitigation Required.

 

The Employee shall not be required to mitigate the amount of any benefit provided under this Agreement by seeking new employment or otherwise.

 

14. Competitive Activity