EXHIBIT 10.24
SEVERANCE AGREEMENT
This Severance Agreement dated as of December 21, 1999 (the "Agreement"),
is entered into between VidaMed, Inc., a corporation organized under the laws of
the State of Delaware (the "Company") and _________ (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change in Control (as hereinafter defined) exists and
that the threat or the occurrence of a Change in Control can result in
significant distractions to its key management personnel because of the
uncertainties inherent in such a situation;.
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its stockholders to retain the services of the
Executive in the event of a threat or occurrence of a Change in Control and to
ensure the Executive's continued dedication and efforts in such event without
undue concern for the Executive's personal, financial and employment security;
and
WHEREAS, in order to induce the Executive to remain in the employ of the
Company, particularly in the event of a threat or the occurrence of a Change in
Control, the Company desires to enter into this Agreement with the Executive to
provide the Executive with certain benefits in the event that the Executive's
employment is terminated as a result of, or in connection with, a Change of
Control.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of December 21,
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1999 and shall continue in effect unless and until terminated in accordance with
Section 3 below.
2. Definitions
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2.1 Accrued Compensation. For purposes of this Agreement, "Accrued
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Compensation" shall mean an amount which shall include all
amounts earned or accrued through the "Termination Date" (as
hereinafter defined) but not paid as of the Termination Date,
including (i) base salary (ii) reimbursement for reasonable and
necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date, and
(iii) vacation pay.
2.2 Base Amount. For purposes of this Agreement, "Base Amount"
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shall mean the greater of the Executive's annual base salary (a)
at the rate in effect on the Termination Date or (b) at the
highest rate in effect at any time during the ninety (90) day
period prior to the Change in Control, and shall include all
amounts of base salary that are deferred under the employee
benefit plans of the Company or any other agreement or
arrangement.
2.3 Bonus Amount. For purposes of this Agreement, "Bonus
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Amount" shall mean the greatest of: (a) 100% of the annual
bonus payable to the Executive under the Company's cash
bonus incentive plan for the fiscal year in which the
Termination Date occurs; (b) the annual bonus paid or
payable to the Executive under the Company's cash bonus
incentive plan for the full fiscal year ended prior to the
fiscal year during which the Termination Date occurred; (c)
the annual bonus paid or payable to the Executive under the
Company's cash bonus incentive plan for the full fiscal
year ended prior to the fiscal year during which a Change
in Control occurred; (d) the average of the annual bonuses
paid or payable to the Executive under the Company's cash
bonus incentive plan during the three full fiscal years
ended prior to the fiscal year during which the Termination
Date occurred; or (e) the average of the annual bonuses
paid or payable to the Executive under the Company's cash
bonus incentive plan during the three full fiscal years
ended prior to the fiscal year during which the Change in
Control occurred.
2.4 Executive Indebtedness. For purposes hereof, "Executive
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Indebtedness" shall mean the balance, including principal
and all accrued interest, of the Company's loan(s) to the
Executive, if any, as set forth on Exhibit A attached
hereto, together with a copy of the documentation of each
such loan, all of which shall be incorporated into this
Agreement by this reference.
2.5 Cause. For purposes of this Agreement, a termination of
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employment is for "Cause" if the basis of the termination
is fraud, misappropriation, embezzlement or willful
engagement by the Executive in misconduct which is
demonstrably and materially injurious to the Company and
its subsidiaries taken as a whole (no act, or failure to
act, on the part of the Executive shall be considered
"willful" unless done, or omitted to be done, by the
Executive not in good faith and without a reasonable belief
that the action or omission was in the best interests of
the Company and its subsidiaries); provided however that
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the Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered
to the Executive a written notice from the Company and a
copy of a resolution duly adopted by the affirmative vote
of all of those members of the Company's Board of Directors
who are not then employees of the Company at a meeting of
the Board called and held for the purpose (after reasonable
notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel, to be
heard before the Board), finding that, in the good faith
opinion of the Board, the Executive was guilty of the
conduct set forth in the first sentence of this Section 2.5
and specifying the particulars thereof in detail.
2.6 Change in Control. For purposes of this Agreement, a
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"Change in Control" shall mean any of the following events:
(a) An acquisition (other than directly from the Company)
of any voting securities of the Company (the "Voting
Securities") by any "Person" (as the term is used for
purposes of Section 13(d) or 14(d) of the Securities
Xxxxxxxx Xxx 0000, as amended (the "1934 Act")) immediately
after which such Person has "Beneficial Ownership" (within
the meaning of
Rule 13d-3 promulgated under the 0000 Xxx) of twenty-five
percent (25%) or more of the combined voting power of the
Company's then outstanding Voting Securities; provided,
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however, that in determining whether a Change in Control
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has occurred, Voting Securities which are acquired in an
"Non-Control Acquisition" (as hereinafter defined) shall
not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
acquisition by (1) an employee benefit plan (or a trust
forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of
its voting power or its equity securities or equity
interest is owned directly or indirectly by the Company (a
"Subsidiary"), (2) the Company or any Subsidiary, or (3)
any Person in connection with a "Non-Control Transaction"
(as hereinafter defined);
(b) The individuals who are members of the Board as of the
date this Agreement is approved by the Board (the
"Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that if
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the appointment, election or nomination for election by the
Company's stockholders, of any new director is approved by
a vote of a least two-thirds of the Incumbent Board, such
new director shall, for purposes of this Agreement, be
considered a member of the Incumbent Board; provided,
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further, however, that no individual shall be considered a
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member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11
promulgated under the 0000 Xxx) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) Completion by the Company, following approval by
stockholders of the Company, of:
(1) A merger, consolidation or reorganization
involving the Company, unless such merger,
consolidation or reorganization satisfies the
conditions set forth below:
(i) the stockholders of the Company immediately
before such merger, consolidation or
reorganization, own immediately following such
merger, consolidation or reorganization, directly
or indirectly, at least fifty-one percent (51%) of
the combined voting power of the outstanding
voting securities of the corporation resulting
from such merger or consolidation of
reorganization (the "Surviving Corporation") in
substantially the same proportion as their
ownership of the Voting Securities immediately
before such merger, consolidation or
reorganization;
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution
of the agreement providing for such merger,
consolidation or reorganization constitute at
least a majority of the members of the board of
directors of the Surviving Corporation; and
(iii) no Person (other than the Company, any
Subsidiary, any employee benefit plan (or any
trust forming a part thereof) maintained by the
Company, the Surviving Corporation or any
Subsidiary, or any Person who, immediately prior
to such merger, consolidation or reorganization,
had Beneficial Ownership of twenty-five percent
(25%) or more of the then outstanding voting
Securities) has Beneficial Ownership of twenty-
five percent (25%) or more of the combined voting
power of the Surviving Corporation's then
outstanding voting securities;
A transaction described in subsections (i), (ii) and (iii) above shall
herein be referred to as a "Non-Control Transaction";
(2) A complete liquidation or dissolution of the Company; or
(3) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company which, by reducing
the number of Voting Securities outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Person, provided, however, that, if
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a Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and after such
share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
than a Change in Control shall occur.
2.7 Company. For purposes of this Agreement, the "Company" shall
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mean VidaMed, Inc., and its subsidiaries and shall include VidaMed's
"Successors and Assigns" (as hereinafter defined).
2.8 Disability; Disabled. For purposes of this Agreement,
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"Disability" or "Disabled" shall mean a physical or mental infirmity
which impairs the Executive's ability to substantially perform the
Executive's duties with the Company for a period of one hundred eighty
(180) consecutive days and the Executive has not returned to full time
employment prior to the Termination Date.
2.9 Termination Date. For purposes of this Agreement, the
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Executive's " Termination" date shall mean the date of occurrence of
the Change in Control or such other date upon which the Company and
the Executive may mutually agree in writing.
2.10 Pro Rata Bonus: For purposes of this Agreement, "Pro Rata Bonus"
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shall mean the amount equal to the bonus amount multiplied by a
fraction, the numerator of which is the number of days in the calendar
year through the termination date, and the denominator of which is
365.
2.11 Successors and Assigns. For purposes of this Agreement,
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"Successors and Assigns" shall mean any Person or other entity
acquiring all or substantially all of the assets and
business of the Company (including this Agreement) whether by
operation of law or otherwise.
3. Occurrence of a Change in Control
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3.1 Change in Control. If, during the term of this Agreement, the Company
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undergoes a Change in Control, then assuming that, but for such Change in
Control, the Executive would remain in the employ of the Company, the
Executive shall be entitled to the following compensation and benefits:
(a) Upon the occurrence of the Change in Control, if the Executive
elects to terminate his or her position with the Company, the
Executive shall be entitled to the following:
(i) the Company shall pay the Executive all Accrued
Compensation and a pro rata bonus;
(ii) the Company shall pay the Executive as severance pay and
in lieu of any further compensation for periods subsequent to the
Termination Date, in a single payment, an amount in cash equal to
the Base Amount plus the bonus amount;
(iii) for twelve (12) months after the Termination Date (the
"Continuation Period"), the Company shall, at its expense,
continue on behalf of the Executive and the Executive's
dependents and beneficiaries the life insurance, disability,
medical, dental and hospitalization benefits provided (A) to the
Executive at any time during the 90-day period prior to the
Change in Control or at any time thereafter or (B) to other
similarly situated executives who continue in the employ of the
Company during the Continuation Period. The coverage and benefits
(including deductibles and costs) provided in this Section
3.1(a)(iii) during the Continuation Period shall be no less
favorable to the Executive and the Executive's dependents and
beneficiaries than the most favorable of such coverages and
benefits during any of the periods referred to in clauses (A) and
(B) above. The Company's obligation hereunder with respect to the
foregoing benefits shall be limited to the extent that the
Executive obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce
the coverage of any benefits it is required to provide the
Executive hereunder as long as the aggregate coverages and
benefits of the combined benefit plans are no less favorable to
the Executive than the coverages and benefits required to be
provided hereunder. This subsection (iii) shall not be
interpreted so as to limit any benefits to which the Executive or
the Executive's dependents or beneficiaries may be entitled under
any of the Company's employee benefit plans, programs or
practices following the Executive's termination of employment,
including without limitation, retiree medical and life insurance
benefits;
(iv) the restrictions on any outstanding equity incentive
awards, including stock options and restricted stock, granted to
the Executive under the Company's 1992 Stock Option Plan or under
any other incentive plan or arrangement shall lapse and the
Executive shall be 100% vested in all such incentive award(s)
and, in the case of stock options, such stock options shall be
immediately exercisable;
(v) the Company will forgive the Executive Indebtedness.
(vi) In the event of Involuntary Termination, the Company will
provide outplacement services to the Executive in an amount not
to exceed $15,000.
(b) The amounts provided for in Section 3.1(a)(i) and (ii) shall be
paid in a single lump sum cash payment within forty-five (45) days
after the Termination Date (or earlier, if required by applicable
law).
(c) The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, and no such payment shall be offset or reduced by the
amount of any compensation or benefits provided to the Executive in
any subsequent employment except as provided in Section 3.1(a)(iii)
and 3.2(b).
3.2 General
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(a) The severance pay and benefits provided for in this Section 3
shall be in lieu of any other severance or termination pay to which
the Executive may be otherwise entitled under any Company severance or
termination plan, program, practice or arrangement.
(b) The Executive's entitlement to any compensation or benefits
(other than severance or termination pay) shall be determined in
accordance with the Company's employee benefit plans (including the
plans listed on Appendix A) and other applicable programs, policies
and practices then in effect.
3.3 Termination for Cause. In the event that the Company terminates
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Executive's employment for Cause, Executive will not be entitled to
any severance payments, Change in Control payments or other payments
or benefits pursuant to this Agreement.
3.4 Termination for Reasons Other than Cause. This Agreement shall be
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terminated under any of the following circumstances:
(a) In the event that the Executive is Disabled and has not returned
to full-time employment with the Company and is not substantially
performing his or her duties for the Company prior to a Change in
Control; or,
(b) In the event that the Board and the Executive mutually determine
that it is in the best interests of both parties to terminate this
Agreement and execute a document terminating this Agreement by mutual
written consent.
4. Excise Tax Limitation
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(a) Notwithstanding anything contained in this Agreement, in the
event that any payment or benefit (within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), to the Executive or for the Executive's benefit paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise in connection with, or arising out of, the
Executive's employment with the Company or a Change in Control (a
"Payment" or "Payments") would be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the
Payments shall be reduced (but not below zero) if and to the extent
necessary so that no Payment to be made or benefit to be provided to
the Executive shall be subject to the Excise Tax (such reduced
Payments being hereinafter referred to as the "Limited Payment
Amount"). Unless the Executive shall have given prior written notice
specifying a different order to the Company to effectuate the Limited
Payment Amount, the Company shall reduce or eliminate the Payments by
first reducing or eliminating cash payments and then by reducing those
payments or benefits which are not payable in cash, in each case in
reverse order beginning with payments or benefits which are to be paid
the farthest in time from the Determination (as hereinafter defined).
Any notice given by the Executive pursuant to the preceding sentence
shall take precedence over the provisions of any other plan,
arrangement or agreement governing the Executive's rights and
entitlements to any benefits or compensation.
(b) An initial determination as to whether the Payments shall be
reduced to the Limited Payment Amount and the amount of such Limited
Payment Amount shall be made, at the Company's expense, by the
accounting firm that is the Company's independent accounting firm as
of the date of the Change in Control (the "Accounting Firm"). The
Accounting Firm shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation, to
the Company and the Executive within twenty (20) days of the
Termination Date if applicable, or such other time as requested by the
Company or by the Executive (provided the Executive reasonably
believes that any of the Payments may be subject to the Excise Tax),
and if the Accounting Firm determines that there is substantial
authority (within the meaning of Section 6662 of the Code) that no
Excise Tax is payable by the Executive with respect to a Payment or
Payments, it shall furnish the Executive with an opinion reasonably
acceptable to the Executive that no Excise Tax will be imposed with
respect to any such Payment or Payments. Within ten (10) days of the
delivery of the Determination to the Executive, the Executive shall
have the right to dispute the Determination (the "Dispute"). If there
is no Dispute, the Determination shall be binding, final and
conclusive upon the Company and the Executive subject to the
application of Section 4(c) below.
(c) As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that the Payments to be made
to, or provided for the benefit of, the Executive either will be
greater (an "Excess Payment") or less (an "Underpayment") than the
amounts provided for by the limitations contained in Section 4(a). If
it is established pursuant to a final determination of a court or an
Internal Revenue Service ("IRS") proceeding which has been finally and
conclusively resolved that an Excess Payment has been made, such
Excess Payment shall be deemed for all purposes to be a loan to the
Executive made on the date the Executive received the Excess Payment
and the Executive shall repay the Excess Payment to the Company on
demand (but not less than ten (10) days after written notice is
received by the Executive) together with interest on the Excess
Payment at the "Applicable Federal Rate" (as defined in Section
1274(d) of the Code) from the date of the Executive's receipt of such
Excess Payment until the date of such repayment. In the event that it
is determined by (i) the Accounting Firm, the Company (which shall
include the position taken by the Company, or together with its
consolidated group, on its federal income tax) or the IRS, (ii)
pursuant to a determination by a court, or (iii) upon the resolution
to the Executive's satisfaction of the Dispute that an Underpayment
has occurred, the Company shall pay an amount equal to
the Underpayment to the Executive within ten (10) days of such
determination or resolution, together with interest on such amount at
the Applicable Federal Rate from the date such amount would have been
paid to the Executive until the date of payment.
5. Successors: Binding Agreement
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(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its Successors and Assigns and the Company
shall require any Successors and Assigns to expressly assume and agree
to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession
or assignment had taken place.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive or the Executive's
beneficiaries or legal representatives, except by will or by the laws
of descent and distribution. This Agreement shall inure to the benefit
of, and be enforceable by, the Executive's legal personal
representative.
6. Fees and Expenses. The Company shall pay all legal fees and related
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expenses (including the costs of experts, evidence and counsel) incurred by the
Executive as they become due as a result of (a) the Executive's termination of
employment (including all such fees and expenses, if any, incurred in contesting
or disputing any such termination of employment), (b) the Executive seeking to
obtain or enforce any right or benefit provided by this Agreement (including,
but not limited to, any such fees and expenses incurred in connection with the
Dispute whether as a result of any applicable government taxing authority
proceeding, audit or otherwise) or by any other plan or arrangement maintained
by the Company under which the Executive is or may be entitled to receive
benefits, and (c) the Executive's hearing before the Board as contemplated in
Section 2.4 of this Agreement; provided, however, that the circumstances set
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forth in clauses (a) and (b) occurred on or after a Change in Control.
7. Notice. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses last given by each party to the other, provided that all notices to
the Company shall be directed to the attention of the Board with a copy to the
Secretary of the Company. All notices and communications shall be deemed to have
been received on the date of delivery thereof or on the third business day after
the mailing thereof, except that notice of change of address shall be effective
only upon receipt.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
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limit the Executive's continuing or further participation in any benefit, bonus,
incentive or other plan or program provided by the Company (except for any
severance or termination policies, plans, programs or practices) and for which
the Executive may qualify, nor shall anything herein limit or reduce such rights
as the Executive may have under any other agreements with the Company (except
for any severance or termination agreement). Amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any plan or
program of the Company shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
9. Settlement of Claims. The Company's obligation to make the payments
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provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against an Executive or others.
10. Miscellaneous. No provision of this Agreement may be modified, waived
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or discharged, unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto, or compliance with,
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
11. Governing Law. This Agreement shall be governed by, and construed and
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enforced in accordance with, the laws of the State of California without giving
effect to the conflicts of law principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in Alameda County in the State of California.
12. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceablity or any provision shall not
affect the validity or enforceability of the other provisions hereof.
13. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto and supersedes all prior agreements, if any,
understanding and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
14. Counterparts. This Agreement may be executed in two counterparts, each
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of which will be deemed an original, but both of which taken together will
constitute one and the same instrument.
15. Legal Counsel. Each party to this Agreement acknowledges that such
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party has had the opportunity to review this Agreement and to consult legal
counsel before entering into this Agreement, and agrees that he/she has either
sought such legal counsel or has intentionally declined to do so.
I.
II.
III.
IV. SIGNATURE PAGE TO FOLLOW
SIGNATURE PAGE
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has executed this Agreement as of
the date and year first above written.
VIDAMED, INC. EXECUTIVE
By:_____________________________ __________________________
Name
Its: ___________________________
