EXHIBIT 2.4
FORM OF
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (the "Agreement") is entered into as of
November 21, 1995 between PSICOR, Inc., a Pennsylvania corporation (the
"Company"), and [Name] ("Employee").
WHEREAS, the Company is entering into that certain Agreement and Plan
of Merger with Xxxxxx Healthcare Corporation, a Delaware corporation ("Parent"),
and Baxter CVG Services II, Inc., a Pennsylvania corporation ("Purchaser"),
pursuant to which Parent will acquire the Company on the terms and subject to
the conditions set forth therein; and
WHEREAS, Employee currently serves as [title] of the Company; and
WHEREAS, the Company and Employee desire to provide for the payment of
certain severance benefits to Employee in the event of the termination of
Employee's employment with the Company as described herein.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. TERM. The term of this Agreement (the "Term") shall commence as
of the date on which Parent's designees constitute a majority of the Board of
Directors of the Company (such commencement date, the "Effective Date") and
shall expire at the close of business on the date that is 18 months following
the Effective Date. Following the expiration of the Term, except as otherwise
specifically provided herein, the Company's obligations under this Agreement
shall cease and the Company shall have no further obligations to Employee under
this Agreement, it being agreed that if the Employee remains in the employ of
the Company following the expiration of the Term and is thereafter terminated,
Employee shall be entitled only to such severance, if any, as may be provided
under the Company's general severance policy in effect for employees of like
status, title or responsibility to Employee on the date of such termination
of employment. It is expressly understood that the provisions of Section 4
shall survive the expiration of the Term.
2. SEVERANCE PAYMENT. If, prior to expiration of the Term,
Employee's employment with the Company and any subsidiary of the Company is
terminated either (a) by the Company and such subsidiary without Cause (as
defined below) or (b) by Employee for Good Reason (as defined below), the
Company shall pay to Employee for a period of [six/twelve] months from the date
notice of such termination is provided from one party to the other, on the last
day of each month ending during such period, an amount equal to $ _____,
Employee's monthly base salary on the date hereof. The parties agree that any
amounts payable hereunder shall be in lieu of any other severance or termination
benefits to which Employee would be entitled in the absence of this Agreement.
3. DEFINITIONS. For purposes of this Agreement, the terms set forth
below shall be defined as follows:
(a) CAUSE. As used herein, "Cause" shall mean:
i) Employee's willful failure to perform or habitual
neglect of his or her duties as an employee of the Company or a subsidiary
thereof;
ii) Employee's commission or conviction of any crime or
criminal offense involving theft, fraud, embezzlement, misappropriation of
assets, malicious mischief, or any felony; or
iii) Employee's willful engaging in conduct which is
injurious to the Company or a subsidiary thereof, monetarily or otherwise,
including, but not limited to, conduct that constitutes competitive
activity or other activity inconsistent with the terms of Section 4 hereof.
(b) GOOD REASON. As used herein, "Good Reason" shall mean:
i) A substantial diminution in the overall nature or
status of Employee's authority, duties and responsibilities or any
diminution in Employee's base salary, in each case from those in effect as
of the Effective Date, PROVIDED that it is expressly understood that in
con-
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nection with Parent's acquisition of the Company, (x) the Company's
management structure may be reorganized such that Employee's
responsibilities thereafter may be significantly different from what they
were prior thereto, and that Good Reason will exist only where such
changes, taken as a whole, have the effect of substantially and adversely
lessening the nature and status of Employee's authorities, duties and
responsibilities as a whole from those in effect on the date hereof, and
(y) the Company will become a wholly owned subsidiary of a public company,
and that Good Reason will not include any change in such authorities,
duties and responsibilities arising from the fact that the Company has
become such a subsidiary; or
ii) The relocation, without Employee's consent, of the
Company's principal offices to a location outside the San Diego, California
area or required business travel outside of the San Diego, California area
substantially in excess of that done by the Employee immediately prior to
the Effective Date; or
iii) The Company's material breach of this Agreement.
4. NON-SOLICITATION; NON-DISCLOSURE. For and in consideration of
the benefits derived from this Agreement, Employee hereby agrees as follows:
(a) During the term of Employee's employment with the Company
and for a period of [six/twelve months] following the termination of such
employment, Employee will not, individually or in association with others
(except for the Company), solicit services similar to the services provided by
the Company, directly or indirectly, as the owner, stockholder, employee or
consultant in any business which provides services for any of the hospitals or
medical facilities, or doctors (other than with respect to the physician office
medical laboratory business) for whom Employee performed services at any time
during Employee's employment with the Company or solicit for employment any
persons who are or were employees of the Company or its subsidiaries at any time
during the twelve month period immediately preceding Employee's termination of
employment with the Company.
(b) Unless otherwise required by any applicable law or rules and
regulations of any national securities exchange, without limitation in time, not
to disclose to any person any trade secrets or confidential information
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with respect to any of the Company's patents, trademarks, products,
improvements, formulas, designs or styles, processes, customers, methods of
distribution or methods of manufacture; PROVIDED, HOWEVER, that such trade
secrets or confidential information shall not include any information known
generally to the public (other than as a result of unauthorized disclosure by
Employee).
(c) Employee further acknowledges and agrees that these
covenants are reasonable and valid in geographic and temporal scope and in all
other respects and that if any court determines that any of these covenants, or
any part thereof, is invalid, illegal or unenforceable, the remainder of these
covenants shall not thereby be affected and shall be given full effect without
regard to the invalid portions. If any court determines that any of these
covenants, or any part thereof, is invalid, illegal or unenforceable because of
the duration or scope of such provision, such court shall have the power to
reduce the duration or scope of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
(d) In the event of any breach or threatened breach of Section
4 not to solicit, the Company shall have the right to have Section 4
specifically enforced by any court of appropriate jurisdiction, in addition to
any other remedies the Company may have at law or in equity.
5. SUCCESSORS; BINDING AGREEMENT. This Agreement will be binding
upon, inure to the benefit of and be enforceable by, the Company and its
successors and assigns. The Company may assign, in its sole discretion, any or
all of its rights, interests and obligations hereunder to any third party
PROVIDED that the Company shall also remain obligated hereunder.
6. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given upon personal delivery, facsimile
transmission (which is confirmed), telex or delivery by an overnight express
courier service (delivery, postage or freight charges prepaid), or on the fourth
day following deposit in the United States mail (if sent by registered or
certified mail, return receipt requested, delivery, postage or freight charges
prepaid), addressed to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
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If to Employee, to
______________________
______________________
Telecopy No.___________
Attention: Employee
If to the Company, to:
PSICOR, Inc.
00000 Xxx xxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx
with a copy to:
Xxxxxx Healthcare Corporation
00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
Vice President, Law
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7. WITHHOLDING. All amounts payable hereunder shall be subject to,
and reduced by, (i) such withholding taxes as may be required by law and (ii)
any other debts or other binding obligations of Employee, including without
limitation premium payments for COBRA continuation coverage (if elected by
Employee) and any loans to Employee (whether under any qualified retirement plan
or otherwise).
8. MODIFICATION OF AGREEMENT; GOVERNING LAW. No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by Employee and such officer of the
Company as may be designated by the Board of Directors of the Company. No
waiver by either party hereto at any time of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be or construed as a further or continuing
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waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California without regard to its conflicts of law principles.
9. VALIDITY. The validity or enforceability of any provision or
provisions of this Agreement shall not be affected by the invalidity or
unenforceability of any other provision of this Agreement, and such valid and
enforceable provisions shall remain in full force and effect.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same instrument.
11. OBLIGATIONS AND CLAIMS; ENTIRE AGREEMENT. Employee
acknowledges and agrees that (a) all obligations of the Company to him or her
prior to the date hereof (and, as of the Effective Date, prior to such date)
in his or her capacity as [a director, officer and/or employee] of the
Company have been (and as of the Effective Date, will be) fully satisfied
other than (i) any obligation of the Company for indemnification of claims
(x) pending as of the date hereof as set forth in Exhibit A hereto and (y)
not made as of the date hereof (and Employee represents and warrants to the
Company that as of the date hereof Employee is not aware, and as of the
Effective Date Employee will not be aware, of any such claims pending, other
than as set forth on Exhibit A hereto on the date hereof or on or about the
Effective Date), (ii) accrued but unpaid salary and benefits and business
expenses reimbursable by the Company in accordance with Company policy and
(iii) for amounts specifically accruing to Employee under the terms of this
Agreement, and (b) Employee understands that the Company's willingness to
enter into this Agreement and its obligations hereunder are conditioned upon
Employee's foregoing acknowledgement being true and correct as of the date
hereof and Employee's written confirmation thereof being delivered to the
Company within five business days after the Effective Date. This Agreement
sets forth the entire agreement of the parties hereto with respect to the
subject matter contained herein and (except with respect to any
confidentiality, non-competition, non-solicitation or similar agreements in
effect between Employee and the Company as of the date hereof) supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employeeor representative of any party hereto, and any other prior agreement
of the parties hereto in respect of the subject matter contained herein
(except with respect to any confidentiality, non-competition,
non-solicitation or similar agreements in effect between Employee and the
Company as of the date hereof) is hereby terminated and canceled.
12. ATTORNEY'S FEES. In the event of litigation relating to this
Agreement, if a court of competent jurisdiction determines that this Agreement
has been breached by either party, then the breaching party will reimburse the
non-breaching party for its reasonable costs and expenses (including without
limitation legal fees and expenses) incurred in connection with all such
litigation.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
PSICOR, Inc.
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
and President
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Name:
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