<PAGE>
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM 10-K-A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED OCTOBER 31, 1994 COMMISSION FILE NO: 1-8597
------------------------
THE COOPER COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 94-2657368
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION) IDENTIFICATION NO.)
1 BRIDGE PLAZA, FORT LEE, NEW JERSEY 07024
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
201-585-5100
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
</TABLE>
------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
- ------------------------------------------------ ------------------------------------------------
<S> <C>
Common Stock, $.10 Par Value New York Stock Exchange
and associated Rights Pacific Stock Exchange
10 5/8% Convertible Subordinated New York Stock Exchange
Reset Debentures due 2005 Pacific Stock Exchange
10% Senior Subordinated Secured Pacific Stock Exchange
Notes due 2003
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes [x] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [x]
Aggregate market value of the voting stock held by non-affiliates of the
registrant as of December 31, 1994: Common Stock, $.10 Par Value -- $58,791,677
Number of shares outstanding of the registrant's common stock, as of
December 31, 1994: 34,116,722
DOCUMENTS INCORPORATED BY REFERENCE:
None
________________________________________________________________________________
<PAGE>
The undersigned registrant hereby amends the following items, financial
statements, exhibits or other portions of its Annual Report Pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 on Form 10-K for the fiscal
year ended October 31, 1994, as set forth in the pages attached hereto:
<TABLE>
<CAPTION>
Item 10 -- Directors and Executive Officers of the Registrant
<S> <C>
Item 11 -- Executive Compensation
Item 12 -- Security Ownership of Certain Beneficial Owners and Management
Item 13 -- Certain Relationships and Related Transactions
Item 14 -- Exhibits, Financial Statement Schedules and Reports on Form 8-K
</TABLE>
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The individuals identified in the chart below constitute the current
directors and executive officers of The Cooper Companies, Inc. (the 'Company')1:
<TABLE>
<CAPTION>
DIRECTOR
NAME AGE SINCE OFFICE
- ------------------------------------------ --- -------- ------------------------------------------
<S> <C> <C> <C>
Allan E. Rubenstein, M.D.................. 50 1992 Chairman of the Board of Directors
A. Thomas Bender.......................... 56 1994 Executive Vice President, Chief Operating
Officer and Director
Mark A. Filler............................ 34 1992 Director
Michael H. Kalkstein...................... 52 1992 Director
Donald Press.............................. 61 1993 Director
Steven Rosenberg.......................... 46 1993 Director
Mel Schnell............................... 49 1993 Director
Gregory A. Fryling........................ 40 N/A Vice President, Business Development
Robert S. Holcombe........................ 52 N/A Senior Vice President and
General Counsel
Marisa F. Jacobs.......................... 38 N/A Secretary and Associate General Counsel
Audrey A. Murray.......................... 51 N/A Vice President of Risk Management and
Employee Benefits
Robert S. Weiss........................... 48 N/A Senior Vice President, Treasurer
and Chief Financial Officer
Stephen C. Whiteford...................... 54 N/A Vice President and Corporate Controller
</TABLE>
- ----------------------------------------------------------
Allan E. Rubenstein, M.D. has been serving as Chairman of the Board since
July 1994; he served as Acting Chairman of the Board from April 1993 through
June 1994. He is President of MTC Imaging Services, Inc. (a medical imaging
company, founded by him in 1981, providing radiologic equipment to hospitals and
physicians' offices). Dr. Rubenstein is certified by the American Board of
Psychiatry and Neurology and by the American Society for Neuroimaging. He has
been on the faculty of the Department of Neurology at Mt. Sinai School of
Medicine in New York City since 1976, and currently is Associate Professor and
Director of the Mt. Sinai Neurofibromatosis Research and Treatment Center. Dr.
Rubenstein has authored two books on neurofibromatosis and is Medical Director
for the National Neurofibromatosis Foundation.
A. Thomas Bender has been serving as the Chief Operating Officer of the
Company since August 1994 and as Executive Vice President since March 1994. He
served as Acting Chief Operating Officer from March 1994 to August 1994, and as
Senior Vice President, Operations from October 1992 to February 1994. He has
also served as President of CooperVision, Inc., the Company's contact lens
subsidiary, since June 1991. Between 1966 and June 1991, Mr. Bender held a
variety of positions at Allergan, Inc. (a manufacturer of eye and skin care
products), including Corporate Senior Vice President, and President and Chief
Operating Officer of Allergan's Herbert Laboratories, Dermatology Division.
Mark A. Filler has been Executive Vice President of Prism Mortgage Company
(a mortgage broker) since June 1994. He is also serving as a director and a
consultant to UreSil, L.P. (a manufacturer
- ------------
1 Nicholas J. Pichotta (50), President and Chief Executive Officer of the
Company's subsidiary, CooperSurgical, Inc., and Mark R. Russell (45),
President and Chief Executive Officer of the Company's subsidiary, Hospital
Group of America, Inc., are significant employees, as such term is used in
Item 401(c) of Regulation S-K.
2
<PAGE>
of disposable medical devices), for which he served as Chief Operating Officer
from 1991 to May 1994. From 1989 to 1991, he was a member of the mergers and
acquisition department of The Equity Group (a holding company for companies
affiliated with Sam Zell).
Michael H. Kalkstein has been a partner in the law firm of Graham & James
since September 1994. He was a partner in the law firm of Berliner Cohen from
1983 through August 1994. He has been on the Board of Trustees of Opera San Jose
since 1984 and has been serving as its President since 1992. Mr. Kalkstein was a
member of the Mayor's Task Force on Arts 2020 in San Jose, California and a
member of the Governor of California's Special Task Force to implement the
Agricultural Labor Relations Act.
Donald Press has served as the Executive Vice President of Broadway
Management Co., Inc. (an owner and manager of commercial office buildings) since
1981. Mr. Press, an attorney, is also a principal in Donald Press, P.C. (a law
firm) located in New York City.
Steven Rosenberg has been the Vice President and Chief Financial Officer of
Cooper Life Sciences, Inc. ('CLS') (a company which recently disposed of its
mortgage banking business and currently has no active operations) since 1990.
From September 1987 through April 1990, Mr. Rosenberg served as President and
Chief Executive Officer of Scomel Industries Inc. (an international marketing
and consulting group).
Mel Schnell is a Senior Partner in Mel Schnell & Co. and Chairman of the
Board of Melroc Corporation (futures, options and commodities trading
companies), positions he has held for more than 20 years; he has served as
Vice-Chairman of the New York Commodities Exchange since March 1988 and as the
President and Director of CLS since 1989. Mr. Schnell is also a director of
Andover Togs, Inc. (a manufacturer and importer of children's apparel).
Gregory A. Fryling has served as Vice President, Business Development since
January 1993 and has been serving as President of CooperVision Pharmaceuticals,
Inc. since May 1994. He has been an officer of various subsidiaries including
Vice President and Controller of The Cooper Healthcare Group from January 1990
through December 1992 and Vice President and Controller of CooperVision, Inc.
from October 1988 through December 1989. He also served as Vice President and
Controller of CLS (then, a manufacturer of surgical laser and ultrasonic
devices) from September 1986 to September 1988.
Robert S. Holcombe has served as Senior Vice President since October 1992
and as General Counsel since December 1989. He served as Vice President from
December 1989 until October 1992. From October 1988 through June 1989 he served
as Assistant General Counsel, and from June 1987 through September 1988, as
General Attorney of Emhart Corporation (a manufacturer of consumer and
industrial products and provider of computer based services). From September
1979 until May 1987, he served as Vice President and General Counsel of Planning
Research Corporation (a professional services firm).
Marisa F. Jacobs has served as Secretary since April 1992 and as Associate
General Counsel since November 1989. From July 1987 until October 1989, she
served as Vice President of Prism Associates, Inc. (a business consulting firm
of which she was a co-founder). From September 1981 to October 1987, she was an
associate with the law firm of Reavis & McGrath (now Fulbright & Jaworski).
Audrey A. Murray has served as Vice President of Risk Management and
Employee Benefits since November 1993. She served as Director of Risk Management
from July 1988 until November 1993. From November 1985 until July 1988, she held
the positions of Senior Risk Analyst and then Associate Director of Risk
Management. From October 1984 until November 1985, she served as Employee
Benefits Manager at GTE Sprint (a long distance telephone company). From June
1977 until October 1984, she served as Risk Manager at The O'Brien Corporation
(a manufacturer of paints and technical coatings).
Nicholas J. Pichotta has served as President and Chief Executive Officer of
CooperSurgical, Inc. since September 1992. He served as Vice President of the
Company from December 1992 to May 1993 and as Vice President, Corporate
Development-Healthcare from December 1991 to December 1992 and as President of
CooperVision, Inc. from November 1990 to June 1991. He has served in a number of
other positions since joining the Company in January 1989. From May to October
1988 he was Managing Director of Heraeus LaserSonics and from December 1986 to
May 1988 he served as President of the Surgical Laser Division of CLS.
3
<PAGE>
Mark R. Russell has served as the President and Chief Executive Officer of
Hospital Group of America, Inc. since June 1993 and served as Executive Vice
President and Chief Operating Officer from January 1987 (through the time of its
acquisition by the Company in May 1992) until June 1993. From May 1986 to
January 1987 he served as Senior Vice President and Chief Operating Officer of
Nu-Med Psychiatric and from February 1981 to May 1986, he served as Senior Vice
President and Chief Operating Officer of the Kennedy Health Care Foundation (the
parent organization for a diversified healthcare services company).
Robert S. Weiss has been the Treasurer and Chief Financial Officer of the
Company since 1989. Since October 1992, he has also served as a Senior Vice
President; from March 1984 to October 1992 he served as a Vice President, and
from 1984 through July 1990 he served as Corporate Controller. He served as
Corporate Controller of Cooper Laboratories, Inc. (the Company's former parent)
from 1980 until March 1984 and as Vice President from March 1983 until March
1984.
Stephen C. Whiteford has served as Vice President and Corporate Controller
since July 1992. He served as Assistant Corporate Controller from March 1988 to
July 1992, as International Controller from August 1986 to February 1988 and as
Vice President and Controller of CooperVision Ophthalmic Products from June 1985
to August 1986.
Messrs. Schnell and Rosenberg are brothers-in-law. There are no other
family relationships (whether by blood, marriage or adoption) among the
Company's current directors or executive officers.
Two of the Company's seven directors, Steven Rosenberg and Mel Schnell,
were first elected as directors at the 1993 Annual Meeting at the request of
CLS, the Company's largest shareholder, pursuant to the terms of a settlement
agreement dated June 14, 1993 between the Company and CLS. One director, Donald
Press, first became a director on August 10, 1993, also at the request of CLS.
Messrs. Press, Rosenberg and Schnell were re-elected to the Board at the 1994
annual meeting of stockholders pursuant to such agreement. For information with
respect to the settlement agreement and certain contractual rights and
obligations of CLS pertaining to the transfer and voting of shares of the
Company's common stock and the composition of the Board of Directors, see Item
13. 'Certain Relationships and Related Transactions -- Agreements and
Transactions with CLS.'
Section 16(a) Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended (the
'Securities Act'), requires the Company's officers, directors and persons owning
more than ten percent of a registered class of the Company's equity securities
to file reports of ownership and changes in ownership of all equity and
derivative securities of the Company with the Securities and Exchange Commission
(the 'SEC'), The New York Stock Exchange, Inc. and the Pacific Stock Exchange
Incorporated. The SEC regulations also require that a copy of all such Section
16(a) forms filed must be furnished to the Company by the officers, directors
and greater than ten-percent shareholders.
Based solely on a review of the copies of such forms and amendments thereto
received by the Company, or written representations from the Company's officers
and directors that no Forms 5 were required to be filed, the Company believes
that during 1994 all Section 16(a) filing requirements applicable to its
officers, directors and greater than ten-percent shareholders were met.
4
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The table below shows compensation paid in or with respect to each of the
last three fiscal years to the person who served as the Company's chief
executive officer during fiscal 1994, each of the persons who were, for the
fiscal year ended October 31, 1994, the four most highly compensated executive
officers of the Company and one former executive officer.
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
-----------------------------------------------
<S> <C> <C> <C> <C>
NAME AND PRINCIPAL OTHER ANNUAL
POSITIONS YEAR SALARY BONUS COMPENSATION(3)
- ------------------------------------ ---- -------- -------- ---------------
Allan E. Rubenstein(1) ............. 1994 $ 68,694(2) 0 N/A
Chairman of the Board 1993 $ 63,625(2) 0 N/A
A. Thomas Bender ................... 1994 $243,583 $168,191 N/A
Executive Vice President and Chief 1993 $188,285 $128,034 N/A
Operating Officer 1992 $185,450 $128,492 N/A
Robert S. Holcombe ................. 1994 $239,167 $166,220 N/A
Senior Vice President and 1993 $227,500 $ 11,375 N/A
General Counsel 1992 $211,174(7) $ 39,600 N/A
Mark R. Russell .................... 1994 $249,828 $135,196 N/A
President and CEO of 1993 $237,489 $ 35,688 N/A
Hospital Group of 1992* $ 87,992 0 N/A
America, Inc.
Robert S. Weiss .................... 1994 $247,271(7) $155,690 N/A
Senior Vice President, 1993 $236,391(7) $ 10,319 N/A
Treasurer and Chief 1992 $210,000(7) $ 39,000 N/A
Financial Officer
Steven G. Singer(11) ............... 1994 $208,667(12) 0 N/A
1993 $302,500 $118,906 N/A
1992 $324,674(7) 0 $98,459(13)
<CAPTION>
LONG TERM COMPENSATION
---------------------------------------------------------
<S> <C> <C> <C> <C>
AWARDS
----------------------- PAYOUTS
RESTRICTED SECURITIES ------------
NAME AND PRINCIPAL STOCK UNDERLYING LTIP ALL OTHER
POSITIONS AWARDS OPTIONS/SARS PAYOUTS COMPENSATION(6)
- ------------------------------------ -------- ------------ ------------ ----------------
Allan E. Rubenstein(1) ............. 0 0 0 0
Chairman of the Board 0 0 $ 1,770 0
A. Thomas Bender ................... $ 16,000(4) 100,000 0 $ 524
Executive Vice President and Chief 0 3,220 $ 7,080 0
Operating Officer 0 10,000(5) $ 12,625 0
Robert S. Holcombe ................. $ 48,000(8) 0 0 $ 1,300
Senior Vice President and 0 23,940 $ 3,717 $ 651
General Counsel 0 0 0 $ 362
Mark R. Russell .................... $ 16,000(9) 0 0 $ 1,118
President and CEO of 0 21,840 0 $ 1,118
Hospital Group of 0 80,000(5) 0 574
America, Inc.
Robert S. Weiss .................... $ 48,000 40,000 0 $ 786
Senior Vice President, 0 0 $ 10,620 $ 447
Treasurer and Chief 0 0 0 $ 362
Financial Officer
Steven G. Singer(11) ............... $192,001(14) 0 $472,506(15) $205,609(16)
0 0 0 $ 1,791
0 0 0 $ 1,782
</TABLE>
- ------------
* All amounts shown for fiscal 1992 cover the period from May 29, 1992, when
Hospital Group of America, Inc. was acquired by the Company, through October
31, 1992.
(1) Dr. Rubenstein assumed the position of Acting Chairman of the Board in
April 1993. He served in that position through June 1994; in July 1994, he
assumed the position of Chairman of the Board.
(2) See 'Executive Compensation -- Compensation of Directors' for a description
of compensation paid to non-employee directors.
(3) Excludes perquisites received as the value thereof did not exceed ten
percent of any listed person's annual salary and bonus.
(4) As of October 31, 1994, Mr. Bender owned 11,111 shares of restricted stock;
the aggregate fair market value of those shares was $28,444 as of October
31, 1994. Restrictions will be removed from the 11,111 shares on May 25,
1996, assuming Mr. Bender is still an employee of the Company. Those shares
are eligible to receive any dividends paid by the Company prior to the
removal of restrictions therefrom.
(5) Cancelled and replaced by the option granted in 1993 for a smaller number
of shares bearing a lower exercise price.
(6) With the exception of Mr. Singer, consists of a $200 contribution by the
Company to a 401(k) account (for each person other than Mr. Bender) and
premiums on life insurance policies.
(footnotes continued on next page)
5
<PAGE>
(footnotes continued from previous page)
(7) Includes directors' fees paid to: (i) Mr. Holcombe during a portion of
fiscal 1992, (ii) Mr. Singer during a portion of fiscal 1992 and (iii) Mr.
Weiss during a portion of fiscal 1992, all of fiscal 1993 and a portion of
fiscal 1994.
(8) As of October 31, 1994, Mr. Holcombe owned 33,333 shares of restricted
stock; the aggregate market value of those shares was $85,332 as of October
31, 1994. Restrictions were removed from those shares on January 3, 1995 in
connection with the entering into of an amendment dated November 16, 1994
to Mr. Holcombe's Employment Agreement with the Company, which reduced the
severance to which Mr. Holcombe would be entitled if his employment
terminated under certain circumstances. See 'Executive
Compensation -- Contracts.'
(9) As of October 31, 1994, Mr. Russell owned 11,111 shares of restricted
stock; the aggregate market value of those shares was $28,444 as of October
31, 1994. Restrictions will be removed from those shares on May 25, 1996,
assuming Mr. Russell is still an employee of the Company. Those shares are
eligible to receive any dividends paid by the Company prior to the removal
of restrictions therefrom.
(10) As of October 31, 1994, Mr. Weiss owned 33,333 shares of restricted stock;
the aggregate market value of those shares was $85,332 as of October 31,
1994. Restrictions will be removed from those shares on May 25, 1996,
assuming Mr. Weiss is still an employee of the Company. Those shares are
eligible to receive any dividends paid by the Company prior to the removal
of restrictions therefrom.
(11) Mr. Singer, the Company's former Executive Vice President and Chief
Operating Officer, commenced a leave of absence on March 29, 1994, which
continued through his termination on June 30, 1994.
(12) Through June 30, 1994, the date on which Mr. Singer's employment with the
Company terminated. For a description of the agreement pursuant to which
Mr. Singer's employment was terminated, see 'Executive
Compensation -- Contracts.'
(13) Amount received upon exercise of phantom stock units awarded under the
Company's 1988 Long Term Incentive Plan.
(14) Represents the fair market value on the date of grant of 133,334 shares of
restricted stock granted to Mr. Singer in fiscal 1994 in connection with
the Turn-Around Incentive Plan. Restrictions were removed from these shares
in connection with the termination of Mr. Singer's employment with the
Company.
(15) Represents the taxable gain recognized in fiscal 1994 by Mr. Singer upon
the removal of restrictions from 182,611 shares of restricted stock in
connection with the termination of Mr. Singer's employment with the
Company.
(16) Represents a $200 contribution by the Company to Mr. Singer's 401(k)
account, the premium on a life insurance policy and the value of cash paid
and equipment transferred to Mr. Singer in fiscal 1994 in connection with
the termination of Mr. Singer's employment with the Company.
6
<PAGE>
OPTION GRANTS IN FISCAL YEAR ENDED OCTOBER 31, 1994
<TABLE>
<CAPTION>
PERCENT OF
TOTAL OPTIONS GRANT
GRANTED TO EXERCISE DATE
OPTIONS EMPLOYEES IN PRICE PER PRESENT
NAME GRANTED FISCAL YEAR SHARE EXP. DATE VALUE(3)
- ----------------------------------------------------- ------- -------------- --------- --------- --------
<S> <C> <C> <C> <C> <C>
A. Thomas Bender..................................... 25,000(1) 6.10% $1.06 3/29/04 $12,358
25,000(1) 6.10% $1.06 3/29/04 $12,358
25,000(1) 6.10% $1.06 3/29/04 $12,358
25,000(1) 6.10% $1.06 3/29/04 $12,358
Robert S. Holcombe................................... 0
Allan E. Rubenstein.................................. 0
Mark R. Russell...................................... 0
Robert S. Weiss...................................... 10,000(2) 2.44% $2.56 10/27/04 $13,453
10,000(2) 2.44% $2.56 10/27/04 $13,453
10,000(2) 2.44% $2.56 10/27/04 $13,453
10,000(2) 2.44% $2.56 10/27/04 $13,453
Steven G. Singer..................................... 0
</TABLE>
- ------------
(1) For Mr. Bender's option to vest, two tests must be met simultaneously: (a)
Mr. Bender shall remain as the Chief Operating Officer of the Company for a
specified period of time following the date of grant, and (b) the price of
the Company's common stock shall have reached a specified level.
Specifically, 25,000 shares of the 100,000 share option became exercisable
immediately, and an additional 25,000 shares will become exercisable on each
of March 29, 1995, 1996 and 1997, assuming that Mr. Bender continues to
serve as the Company's Chief Operating Officer. Despite the foregoing,
before any portion of the option can be exercised, the Average Price (as
defined in the Option Agreement) of a share of the Company's common stock
must equal or exceed $1.50 per share with respect to the first 33,333 shares
available for purchase under the option, $3.00 per share with respect to the
second 33,333 shares and $5.00 per share with respect to the last 33,334
shares. During the period of April 1, 1999 through September 29, 2003,
assuming no previous forfeiture of the option, any portion of the option
which has not yet become exercisable shall become exercisable if the Average
Price of a share of the common stock equals or exceeds $10.00. If any
portion of the option has not become exercisable by September 30, 2003, and
the option has not previously been forfeited, it shall become exercisable on
that date. Vesting could be accelerated upon the occurrence of certain
events relating to a change in control of the Company.
(2) Twenty-five percent of the 40,000 share option became exercisable upon
grant. The remaining shares will become exercisable in 25% increments when
the Average Price (as defined in the Option Agreement) of a share of the
Company's common stock equals or exceeds $4.00, $5.00 and $6.00,
respectively, if Mr. Weiss is still employed by the Company on those dates.
If any portion of the option has not become exercisable by July 27, 2004, it
shall become exercisable on that date, provided Mr. Weiss is still an
employee of the Company.
(3) Calculated using the Minimum Value Option Pricing model and assuming a rate
of 6.48% on U.S. Treasury Bonds for Mr. Bender and 7.74% for Mr. Weiss.
Minimum Option Value per share equals the fair market value of the Company's
common stock on the date of grant less the quotient of the option exercise
price divided by the sum of one plus the Treasury Bond interest rate raised
to the power equal to the number of years constituting the option term. The
actual value, if any, of the options will depend on the amount by which the
price at which the shares underlying the option are ultimately sold exceeds
the exercise price of the option.
7
<PAGE>
AGGREGATE OPTION EXERCISES IN FISCAL YEAR ENDED
OCTOBER 31, 1994 AND FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
SHARES OPTIONS AT FISCAL YEAR IN-THE-MONEY OPTIONS AT
ACQUIRED ON VALUE END FISCAL YEAR END
NAME EXERCISE REALIZED EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE
- -------------------------------------- ----------- -------- ------------------------- -------------------------
<S> <C> <C> <C> <C>
A. Thomas Bender...................... 3,220 $7,052 25,000/75,000 $37,500/$112,500
Robert S. Holcombe.................... 0 0 23,940/0 $47,880/$0
Allan E. Rubenstein................... 0 0 0/0 $0/$0
Mark R. Russell....................... 0 0 21,840/0 $43,680/$0
Robert S. Weiss....................... 0 0 20,000/30,000 $0/$0
Steven G. Singer...................... 0 0 0/0 $0/$0
</TABLE>
Retirement Income Plan
The Company's Retirement Income Plan was adopted in December 1983. All
employees of the Company and its participating subsidiaries who work at least
1,000 hours per year are eligible to become members of the plan. For services
performed after December 31, 1988, members are entitled to an annual retirement
benefit equal to .6% of base annual compensation up to $10,000 and 1.2% of base
annual compensation which exceeds $10,000 but is not in excess of the applicable
annual maximum compensation permitted to be taken into account under Internal
Revenue Service guidelines for each year of service. For service prior to
January 1, 1989, members are entitled to an annual retirement benefit equal to
.75% of base annual compensation up to the Social Security Wage Base in effect
that year and 1.5% of base annual compensation in excess of the Social Security
Wage Base for each year of service.
The estimated annual benefits payable under this plan upon retirement (at
the normal retirement age of 65) for Messrs. Bender, Holcombe and Weiss are
approximately $21,000, $31,000 and $53,000, respectively2. The amount indicated
for Mr. Holcombe does not reflect the impact of the additional years of service
that will be attributed to him (see 'Executive Compensation -- Contracts'). Mr.
Singer, who is vested under the plan and whose employment with the Company has
been terminated, will, upon reaching age 65, be entitled to receive a pension of
$11,981 per year. Neither Mr. Russell nor Dr. Rubenstein is a participant in the
plan.
Contracts
The Company is a party to employment or agreements with Robert S. Holcombe
and Robert S. Weiss. CooperVision, Inc., one of the Company's subsidiaries, is a
party to an agreement with A. Thomas Bender. Hospital Group of America, Inc.,
another subsidiary, is a party to an agreement with Mark R. Russell. Each
agreement provides that employment shall continue until terminated, except the
agreement relating to Mr. Russell, which expires on July 1, 1997. Compensation
paid pursuant thereto and awards under the Company's 1988 Long Term Incentive
Plan (the 'LTIP') are set forth on the foregoing tables. Subject to the
amendments described below with respect to Messrs. Bender and Holcombe, if (i)
the Company or relevant subsidiary terminates the employee without Cause or (ii)
the employee terminates his employment for Good Reason or following a Change in
Control (as each term is defined in the relevant agreement), the Company or the
relevant subsidiary will pay Mr. Bender 200% and each of Messrs. Holcombe,
Russell and Weiss 150% of his annual base salary (such percentage to be reduced
to 100% for Mr. Weiss if the termination arises out of a Change in Control). In
addition, Messrs. Bender, Holcombe and Weiss would continue to participate in
the Company's or relevant subsidiary's various insurance plans for a period of
up to 24 months, 18 months and 18 months, respectively, and to receive a pro
rata share of any amounts that would have been payable to him under the
Company's Incentive Payment Plan (or any comparable plan then in effect) based
on the number of
- ------------
2 These numbers have declined from estimates reported in previous years due to
the lowering by the Internal Revenue Service of the maximum wages on which
qualified pension benefits can be computed and awarded.
8
<PAGE>
months he served during the year in which the termination occurs. Each of those
individuals would also become fully vested in all benefits due under the
Retirement Income Plan. In the case of Mr. Holcombe, his credited service for
the purpose of determining the amount of his retirement benefit will be
increased by an additional five years of deemed employment. In the event that
employment is terminated by death or by the employee in the absence of Good
Reason, benefits will not continue beyond the date of termination, no more than
three months of severance will be paid and no portion of the Incentive Payment
Plan bonus will be paid. The agreements between the Company and each of Messrs.
Holcombe and Weiss have been guaranteed by certain of the Company's
subsidiaries.
In March 1994, Mr. Bender's employment agreement was amended in connection
with his assumption of additional responsibilities. Information relating to Mr.
Bender's salary, bonus and grant of a stock option under the Company's LTIP is
contained in the charts appearing prior to this section. In addition, the
amendment provides for Mr. Bender to receive additional grants under the LTIP in
each of March 1995, 1996 and 1997, of options to purchase up to 33,333 shares of
the Company's common stock at the then current fair market value of such shares
provided he is still serving as the Company's Chief Operating Officer. The
agreement further provides that if Mr. Bender is asked, at any time, to
relinquish the position of Chief Operating Officer of the Company, such
relinquishment will not entitle Mr. Bender to terminate his employment for Good
Reason and will not constitute a termination under the agreement so long as Mr.
Bender remains in the position of President of CooperVision, Inc.
On November 16, 1994, Mr. Holcombe and the Company amended Mr. Holcombe's
employment agreement to eliminate his ability to terminate his employment with
Good Reason as a result of the Change in Control occasioned by the departure
from the Company of certain members of senior management. In addition, the
severance payments and the duration of post-termination benefits to which Mr.
Holcombe would be entitled if his employment is terminated by the Company under
certain conditions or if he elects to terminate his employment under certain
conditions were decreased from 150% to 125% of annual base salary and from 18
months to 15 months of post-termination benefits. In exchange for agreeing to
those amendments, Mr. Holcombe received a payment of $47,500 in November 1994
and had restrictions removed from 33,333 shares of restricted stock on January
3, 1995.
Mr. Singer's employment with the Company was terminated pursuant to a
settlement agreement executed on August 30, 1994 but which was retroactively
effective to June 30, 1994. In connection with that termination, Mr. Singer made
certain representations and warranties relating to noncompetition with the
Company and nondisclosure of any of the Company's proprietary information. Mr.
Singer, on behalf of himself and all members of his family other than Gary
Singer, released the Company from liability for certain legal fees and granted a
release from any claims relating to any aspect of any relationship between the
Company and the above-mentioned Singers. Mr. Singer received from the Company
payment for his accrued but unused vacation time, additional cash payments of
approximately $60,000 to Mr. Singer and $25,000 to an attorney representing Mr.
Singer in connection with Company matters, 315,945 shares of the Company's
common stock from which all restrictions had been removed and the furnishings of
his office. Until June 1997, the Company will continue to provide Mr. Singer
with medical and life insurance along with a monthly stipend of $2,000 to cover
the costs of office and secretarial services and an automobile lease. Mr. Singer
will remain eligible for an award of restricted stock granted to him under the
Company's 1993 Turn-Around Incentive Plan if certain of that Plan's thresholds
are satisfied before June 30, 1997. The Company released Mr. Singer and his
relatives other than Gary Singer from claims relating to the relationship
between the Company and Mr. Singer and events relating to certain legal
proceedings in which Mr. Singer and/or Gary Singer were named as defendants,
except that the Company retained the right to assert claims against any
disgorgement or restitution fund established in connection with those legal
proceedings.
Under the Company's LTIP and the 1990 Non-Employee Director Restricted
Stock Plan (the 'RSP'), upon the occurrence of a Change in Control and, under
the Company's LTIP, upon the occurrence of a Potential Change in Control (as
such terms are defined in the LTIP and the RSP), restrictions will be removed
from restricted shares, options will become exercisable and, unless otherwise
determined by the LTIP Administrative Committee prior to any Change in Control,
the value of all outstanding stock options will be cashed out on the basis of
the Change in Control Price (as
9
<PAGE>
defined in the LTIP) as of the date such Change in Control or Potential Change
in Control is determined to have occurred. On January 16, 1995, the Board of
Directors amended the LTIP to provide that, with certain exceptions, the
occurrence of a Change in Control or a Potential Change in Control would have no
effect on any awards made under the LTIP subsequent to December 19, 1994.
Compensation of Directors
Prior to May 23, 1994, each director of the Company received a payment of
$7,500 per quarter (or an amount pro-rated to take into account the length of
service during such quarter); with the election of Mr. Bender to the Board on
May 23, 1994, the Board determined that quarterly payments would be suspended
with respect to any director who is also an employee of the Company. With
respect to each director who is not also a paid employee of the Company, the
Board implemented a scaled-back fee schedule on September 13, 1994. Each
non-employee director is now entitled to receive fees ranging from $125 to
$1,000 for each meeting of the Board of Directors or a Committee of the Board
attended (unless two or more meetings are held on the same day, in which case
the maximum fee payable in connection with that day's meetings remains at
$1,000) and $1,000 per day for other days during which substantially all of such
director's time is spent on affairs of the Company, or a pro-rated amount for
work which takes less than a full day. In addition, each Committee Chairman is
entitled to receive a fee of $1,000 per year for serving as a Committee
Chairman.
On April 26, 1990, the Company's Board of Directors adopted the 1990
Non-Employee Directors Restricted Stock Plan (the 'RSP'), which grants to each
current and future director of the Company who is not also an employee of the
Company or any subsidiary of the Company ('Non-Employee Director') the right to
purchase, for $.10 per share, shares of the Company's common stock, subject to
certain restrictions. One hundred thousand (100,000) shares of the Company's
common stock were authorized and reserved for issuance under the RSP. Shares
which are forfeited become available for new awards under such plan.
Under this plan, each Non-Employee Director automatically receives the
opportunity to purchase 5,000 restricted shares upon initial election or
appointment to the Board. The plan provides that restrictions shall lapse in
1,000-share increments, and that 1,000 shares shall therefore become
nonforfeitable and freely transferable each time after the date of grant that
the Average Price (as defined in the RSP) of the Company's common stock equals
or exceeds for the first time each of the following percentages of increase over
the Average Price on the date of grant of the award: 18%, 36%, 54%, 72% and 90%.
Furthermore, upon the occurrence of a Change in Control as defined in the RSP,
all restrictions would be removed from any restricted shares then outstanding.
10
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Securities Held by Management
The following table sets forth information regarding ownership of the
Company's common stock by each of its current directors, the current executive
officers named in the Summary Compensation Table and by all of the current
directors and executive officers as a group.
<TABLE>
<CAPTION>
COMMON STOCK BENEFICIALLY
OWNED AS OF JANUARY 31,
1995
--------------------------
NUMBER OF PERCENTAGE
NAME OF BENEFICIAL OWNER SHARES OF SHARES
- --------------------------------------------------------------------------------------- --------- -----------
<S> <C> <C>
A. Thomas Bender....................................................................... 163,331(1) *
Mark A. Filler......................................................................... 5,300 *
Robert S. Holcombe..................................................................... 69,773(2) *
Michael H. Kalkstein................................................................... 9,000 *
Donald Press........................................................................... 8,600(3) *
Steven Rosenberg....................................................................... 5,000 *
Allan E. Rubenstein.................................................................... 5,000 *
Mark R. Russell........................................................................ 40,451(4) *
Mel Schnell............................................................................ 5,000(5) *
Robert S. Weiss........................................................................ 247,916(6) *
All current directors and executive officers as a group (14 persons)................... 675,467(7) 1.97%
</TABLE>
- ------------
* Less than 1%
(1) Includes 11,111 shares as to which Mr. Bender has sole voting power but as
to which disposition is restricted pursuant to the terms of the LTIP and
25,000 shares which could be acquired upon the exercise of presently
exercisable stock options.
(2) Includes 23,940 shares which could be acquired upon the exercise of
presently exercisable stock options.
(3) Includes 3,600 shares which could be acquired upon conversion of $18,000
principal amount of the Company's 10 5/8% Convertible Subordinated Reset
Debentures (convertible at the rate of $5.00 per share) owned directly by
Mr. Press or held in a trust for which he serves as trustee.
(4) Includes 11,111 shares as to which Mr. Russell has sole voting power, but as
to which disposition is restricted pursuant to the terms of the LTIP and
21,840 shares which Mr. Russell could acquire upon the exercise of presently
exercisable stock options.
(5) Does not include 7,467,600 shares of common stock owned by CLS, see
'Principal Securityholders'. Mr. Schnell is the President and a director of
CLS.
(6) Includes 33,333 shares as to which Mr. Weiss has sole voting power, but as
to which disposition is restricted pursuant to the terms of the LTIP, 7,663
shares held on account for him under the Company's 401(k) Savings Plan and
20,000 shares which Mr. Weiss could acquire upon the exercise of presently
exercisable stock options.
(7) See Notes (1) through (6) for details with respect to such ownership.
Principal Securityholders
The following table sets forth information regarding ownership of
outstanding shares of the Company's common stock by those individuals or groups
who have advised the Company that they own more than five percent (5%) of such
outstanding shares.
<TABLE>
<CAPTION>
COMMON STOCK
BENEFICIALLY OWNED
------------------------
NUMBER OF PERCENTAGE
NAME OF BENEFICIAL OWNER SHARES OF SHARES
- ---------------------------------------------------------------------------------------- --------- -----------
<S> <C> <C>
Cooper Life Sciences, Inc............................................................... 7,467,600 21.9%
</TABLE>
11
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Agreements and Transactions with CLS
The Company entered into a Settlement Agreement with CLS, dated June 14,
1993 (the 'Settlement Agreement'), to resolve all pending disputes with CLS and
to avoid a possible costly and disruptive proxy fight, while continuing to
maintain a Board of Directors the majority of whose members are independent.
Pursuant to the Settlement Agreement, CLS delivered a general release of all
claims (subject to exceptions for specified ongoing contractual obligations) and
agreed to certain restrictions on its voting and transfer of securities of the
Company, in exchange for the Company's payment of $4,000,000 in cash and
delivery of 200,000 shares of CLS common stock owned by the Company (reflected
in the Company's balance sheet at April 30, 1993 at its then current market
value of $850,000) and a general release of claims against CLS (also subject to
certain exceptions).
Pursuant to the Settlement Agreement, the Company agreed to nominate and
use its reasonable best efforts to cause, and CLS agreed to vote all shares of
common stock of the Company owned by it in favor of, the election of a Board of
Directors of the Company consisting of eight members, five of whom were
designated by the Company and three (who are reasonably acceptable to the
Company) by CLS. The number of CLS designees will decline to two if CLS owns
less than 5,400,000 shares of common stock and to one if CLS owns less than
2,400,000 shares of common stock, subject to CLS's right to designate additional
directors if the term of the agreement is extended under certain circumstances.
A majority of the members designated by the Company were individuals who were
not employees of the Company or employees, affiliates or significant
stockholders of CLS ('Independent Designees'). If a new chief executive officer
or chairman of the board of the Company is hired, such person may be added as an
additional director.
CLS also agreed in the Settlement Agreement not to acquire any additional
securities of the Company and not to transfer any securities of the Company,
except (i) transfers, during any 12-month period, of not more than 1,500,000
shares of common stock (increasing to 2,500,000 shares of common stock for so
long as CLS owns more than 4,850,000 shares of common stock) to any one person
or group, other than to a person or group which, without the approval of the
Company's Board, has proposed certain transactions involving the Company or its
securities, (ii) transfers pursuant to registered public offerings or bona fide
open market sales in compliance with Rule 144 under the Securities Act, (iii)
transfers of common stock pursuant to a tender or exchange offer, in an
aggregate amount not to exceed 4,850,000 shares unless such offer is either a
cash tender offer for all outstanding shares of common stock or the Company's
Board of Directors, including a majority of the Independent Designees, has
approved the offer, (iv) bona fide pledges of common stock to an unaffiliated
institutional lender for borrowed money, and (v) transfers to a controlled
affiliate or liquidating trust, provided the affiliate or trustee agrees to be
bound by the Settlement Agreement. In addition, CLS agreed not to publicly
propose any business combination with, or change of control of, the Company,
make any tender offer for securities of the Company, otherwise seek control of
or to influence the Board of Directors of the Company or take any action
contrary to the Settlement Agreement (including actions with respect to the
composition and election of the Board of Directors). CLS is free, however, to
vote all voting securities owned by it as it deems appropriate on any matter
brought before the Company's stockholders, other than matters relating to the
election and composition of the Board.
The agreements with respect to Board representation and voting, and the
restrictions on CLS's acquisition and transfer of securities of the Company,
were to terminate on June 14, 1995, or earlier if CLS beneficially owned less
than 1,000,000 shares of common stock, subject to extension under certain
circumstances. In January 1995, in connection with an amendment to the Company's
Rights Agreement, the Company and CLS amended the 1993 Settlement Agreement to
provide that the provisions relating to CLS's representation on the Company's
Board, CLS's obligations with respect to voting its securities of the Company
and the restrictions on CLS's acquisition and transfer of securities of the
Company, will now end on the earlier of (i) the first date on which CLS
beneficially owns fewer than 1,000,000 shares of the Company's outstanding
common stock or (ii) October 31, 1996, or if any person (other than two
specified individuals) becomes the beneficial owner of 20% or more of the
outstanding shares of common stock of CLS, then on April 30, 1997.
12
<PAGE>
Following termination of the 1993 Settlement Agreement and through June 12,
2002, CLS will continue to have the contractual right that it had pursuant to a
1992 settlement agreement between CLS and the Company to designate two directors
of the Company, so long as CLS continues to own at least 2,400,000 shares of
common stock, or one director, so long as it continues to own at least 1,000,000
shares of common stock.
Business Relationships
Michael H. Kalkstein, a director of the Company since April 1992, is a
partner in the law firm of Graham & James, which has been compensated for legal
services rendered to the Company in fiscal 1994. Mr. Kalkstein was a partner in
the law firm of Berliner Cohen through August 1994. That firm was also
compensated for legal services rendered to the Company in fiscal 1994.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a)(3) Exhibits
<TABLE>
<S> <C>
10.19 -- 1995 Incentive Payment Plan.
10.20 -- Employment Agreement dated as of May 27, 1992, by and between Mark R. Russell and Hospital Group of
America, Inc.
10.21 -- Letter Agreement dated June 18, 1993, by and between Mark R. Russell and Hospital Group of America, Inc.
10.22 -- Letter Agreement dated January 11, 1995, by and between Mark R. Russell and Hospital Group of America,
Inc.
10.23 -- Settlement Agreement dated June 30, 1994 and executed on August 30, 1994, between the Company and Steven
G. Singer.
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Amendment to be signed on its behalf by the
undersigned, thereunder duly authorized.
THE COOPER COMPANIES, INC.
By /s/ MARISA F. JACOBS
...................................
MARISA F. JACOBS
SECRETARY AND ASSOCIATE GENERAL
COUNSEL
Dated: February 27, 1995
13
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
LOCATION OF EXHIBIT
EXHIBIT IN SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT NUMBER SYSTEM
- ---------- ------------------------------------------------------------------------------------- --------------------
<C> <S> <C>
10.19 -- 1995 Incentive Payment Plan..........................................................
10.20 -- Employment Agreement dated as of May 27, 1992, by and between Mark R. Russell and
Hospital Group of America, Inc. .....................................................
10.21 -- Letter Agreement dated June 18, 1993, by and between Mark R. Russell and Hospital
Group of America, Inc. ..............................................................
10.22 -- Letter Agreement dated January 11, 1995, by and between Mark R. Russell and Hospital
Group of America, Inc. ..............................................................
10.23 -- Settlement Agreement dated June 30, 1994 and executed on August 30, 1994, between the
Company and Steven G. Singer.........................................................
</TABLE>
<PAGE>
THE COOPER COMPANIES, INC.
1995 INCENTIVE PAYMENT PLAN
('IPP')
REVISED
JANUARY 26, 1995
<PAGE>
THE COOPER COMPANIES, INC.
1995 INCENTIVE PAYMENT PLAN
SECTION I -- NAME
The name of this plan is the '1995 Incentive Payment Plan,' referred to
herein as the 'Plan' or 'IPP.'
SECTION II -- SCOPE
This Plan sets out the IPP guidelines for the following Business Units of
The Cooper Companies, Inc. and its subsidiaries (the 'Company' or 'TCC'):
CooperVision ('CVI'):
Consolidated
Rochester
Canada
CooperVision Pharmaceuticals ('CVP')
CooperSurgical ('CSI')
Hospital Group of America ('HGA'):
Consolidated
Hartgrove
Hampton
MeadowWood
Corporate HQ
Where the terms of this Plan differ from the terms of any individual's
employment or severance contract, the terms of such contract will dictate;
provided, however, that in order to avoid difficulties at year's end, each
general manager should confirm all contractual IPP (or other bonus) obligations
in writing to the Company's Corporate Chief Operating Officer (the 'COO') and
Chief Financial Officer ('CFO') no later than December 31, 1994.
NOTE: NO NEW SUCH ARRANGEMENTS SHALL BE ENTERED INTO WITHOUT THE ADVANCE
WRITTEN APPROVAL OF THE COO AND THE CFO.
SECTION III -- PURPOSE
The purpose of the Plan is to provide incentives to officers and key
employees of the Company who are in a position to contribute significantly to
increasing (1) Revenues, (2) Income and/or (3) Cash flow, as each of such terms
is defined herein. The Plan also includes a discretionary pool based on
Management by Objectives ('MBO's'), designed to reward participants for
achievement of specific agreed-to objectives.
1
<PAGE>
SECTION IV -- COMPENSATION PHILOSOPHY
It is the Company's philosophy that:
All employees be paid a base salary that is competitive in
comparable organizations, based on each employee's experience,
performance and geographical location.
Employees whose efforts achieve the goals outlined in Section
III -- Purpose, will be provided with the opportunity to earn total
compensation significantly above average. This opportunity is made
available via this Plan and certain other benefit plans.
SECTION V -- DEFINITIONS
'Budget' or 'Budgeted,' when used in conjunction with any measuring device
under this Plan (e.g., Revenues Budget or Budgeted Revenues) shall mean the
budget for each Participant's Business Unit (attached as Exhibit IV), adjusted
where appropriate to reflect acquisitions and/or divestitures in accordance with
Deal Sheets approved by, and in the discretion of, the Board of Directors.
'Business Unit' shall mean any operating or headquarters unit so
established by the Company. For the 1995 Plan, the designated Business Units are
as set out in Section II -- Scope, above.
'Cash flow' shall mean Operating Income plus non-cash charges
(depreciation, etc.), plus(minus) decreases(increases) in non-cash and cash
equivalent asset accounts, plus(minus) (decreases)increases in
non-interest-bearing liability accounts other than income tax payable at the
operating business level. The Intercompany account will be excluded in all
determinations of Cash flow. The balance sheet increases and decreases detailed
above shall be the result of comparing the appropriate current IPP Year end
balance sheet to the final actual balance sheet as at the end of the prior Year.
'Eligible Individual' shall mean any person employed by the Company who is
a salary or a fixed monthly amount, as distinguished from an hourly wage.
'Income' is defined as follows:
<TABLE>
<CAPTION>
BUSINESS UNIT DEFINITION
------------------------- -------------------------------------------------------------------------
<S> <C>
Corporate HQ Consolidated net income (loss) applicable to common stock
All other Business Units Operating Income for each individual Business Unit
</TABLE>
2
<PAGE>
SECTION V -- DEFINITIONS -- Continued
'Operating Income' shall mean Revenues less cost of sales (including third
party royalties), selling, general and administrative expenses, and research and
development expenses all accounted for in accordance with the Policies and
Procedures of the Company and Generally Accepted Accounting Principles.
'Participant' shall mean any Eligible Individual selected to have the
opportunity to earn an award under the Plan in accordance with its terms.
'Salary' shall mean the actual base salary paid to an Eligible Individual
during the Year while a Participant in the Plan. No items of supplemental
compensation (prior year bonus, relocation or automobile allowances, special
stipends, etc.) will be considered part of Salary.
'Senior Management' shall mean the COO and the CFO for purposes of
administering this Plan.
'Revenues' shall mean net revenues accounted for in accordance with the
Policies and Procedures of the Company and Generally Accepted Accounting
Principles. In general terms, net revenues is the result of deducting from total
revenues any returns, discounts, contractual or other allowances, and any
freight, sales tax, etc. charged to customers.
'Year' shall mean the fiscal year of the Company, which is November 1
through October 31.
SECTION VI -- ELIGIBILITY FOR PARTICIPATION
Participation in the Plan will be offered to those Eligible Individuals
who, in the opinion of the Company, are in a position to significantly influence
the Company's Revenues, Income and/or Cash flow. Eligibility for participation
shall be at the sole discretion of Senior Management.
SECTION VII -- AWARD OPPORTUNITY
At the beginning of each Year, or as otherwise appropriate, the Chief
Operating Officer of the Company, will classify each Participant into a category
indicating his or her incentive opportunity for achievement of 100% of
established goals. The incentive opportunity will range from 10% to 50% of
Salary and may be adjusted upward or downward from the previous Year's level.
SECTION VIII -- DETERMINATION OF INCENTIVE PAYMENT
Each Participant's incentive award opportunity will be based on the
performance of the Business Unit of which he or she is a member. In the event
that any Participant works for more than one Business Unit over the course of
the Year Senior Management shall, in its sole and absolute discretion, pro-rate
IPP achievement; however, in no event shall any Participant receive a total IPP
amount greater than the maximum amount that would be payable to him or her had
he or she been employed solely by the Business Unit which receives the greatest
IPP achievement. The total award opportunity for Business Units will be the sum
of assigned percentage weightings for Revenues, Income, Cash flow (together,
'Quantitative Criteria') and discretionary (which will be based on MBO's), as
set out in Attachment I.
3
<PAGE>
SECTION VIII -- DETERMINATION OF INCENTIVE PAYMENT -- Continued
Goals for earning an award payment will be based on the percentage of
budget achievement generated for each of the Quantitative Criteria. Senior
Management will provide the Compensation and LTIP Committee of the Board of
Directors (the 'Committee') a report on variances to the consolidated budgets
for Income and Cash Flow, highlighting key variances including non recurring,
non controllable and/or discretionary items. The Committee may elect to include
or exclude certain of these items for purposes of determining the overall
Corporate HQ quantitative budget achievement. Senior Management may exercise
this same discretion in assessing the budget achievement of each of the
Company's other Business Units. The amount of any and all discretionary payments
will be the result of an assessment of each Participant's success in achieving
his or her MBO's, by his or her supervisor and Senior Management. Senior
Management will consult with the Committee before determining the overall level
of achievement of each unit's discretionary criteria. The level of achievement
of the discretionary criteria for the five most highly compensated members of
management shall be recommended by Senior Management and approved by the
Committee. The Quantitative Criteria will be measured separately for achievement
of budget. Importantly, every one of the Quantitative Criteria must achieve at
least 95% of budget before the total IPP entitlement can exceed 100%. The matrix
below indicates the level of IPP achievement that coincides with a given budget
achievement.
<TABLE>
<CAPTION>
IF BUDGET IPP
ACHIEVEMENT IS(3) ACHIEVEMENT IS
- ----------------------- ---------------
<S> <C>
Less than 85% 0%
85% 25%
90% 50%
95% 75%
100% 100%(1)
110% 150%(2)
120% or more 200%(Maximum)(2)
</TABLE>
(1) This is the level indicated as the 'Incentive Opportunity' in Section VII.
(2) Each of the Quantitative Criteria (Revenue, Income, Cash flow) must achieve
at least 95% of budget before the total IPP entitlement can exceed 100%
(3) Senior Management reserves the right to adjust these levels where target
figures are so small as to invite anomalous results.
If budget achievement falls between the specific levels listed above, the
IPP achievement will be interpolated to the nearest whole percent. For example,
if the budget achievement for sales was 97% the IPP achievement would be 85%:
<TABLE>
<S> <C>
IPP achievement for 95% of budget achievement 75%
Plus 40% (2/5ths) of next 25% (100% - 75%) 10%
---
IPP achievement for 97% of budget achievement 85%
---
---
</TABLE>
Specific examples of the award determination process are included as
Attachment IV.
4
<PAGE>
SECTION IX -- FORM OF PAYMENT
Payments under this Plan may be made in the form of a combination of cash
and common stock of the Company. The percentage mix of the payment will be at
the sole discretion of the Board of Directors of the Company, subject to the
limitation that the stock portion of the payment will not exceed 50% of the
total. Such determination will be made at the time the Board approves payments
to be made under the Plan. Any common stock portion of the payment will be made
in shares of restricted stock bearing a restriction of up to 30 days, and at no
cost to the Participant other than required payments for taxes.
SECTION X -- TIMING OF AWARD PAYMENTS
Incentive award payments for each Participant will be calculated and
accrued in the appropriate Business Unit's books from time to time during the
Year based on projected results. The indicated payment must be completely
accrued for as at the end of each Year. No IPP payments in excess of the accrual
balance will be made. Such accruals will be calculated based upon each Business
Unit's performance against budget for the Year then ended as discussed above and
illustrated in the attached examples.
No payments will be made to any Participant until Senior Management has had
an opportunity to review the results of the first quarter of the subsequent
Year. To the extent that such first quarter results reflect negative anomalies
that are determined by Senior Management to relate back to the previous Year,
award payments for such Year may be decreased or calculated, at the discretion
of Senior Management. The target date to release payments, therefore, will be
approximately January 31, 1996 subject to acceleration by Senior Management, in
its sole and absolute discretion.
SECTION XI -- TERMINATION OF EMPLOYMENT
Except where required pursuant to a previously existing employment
agreement (or extenuating circumstances, which will be handled on an ad hoc
basis by Senior Management), any Participant whose employment is terminated by
the Company prior to the end of the Year, or by the Participant prior to the
payment for such Year for any reason other than death or retirement or
disability consistent with the Company's then current provisions for retirement
and/or disability, will forfeit any opportunity to receive an award under the
Plan for that Year.
In the case of a Participant's retirement, disability or death, such
Participant (or designated heir in the event of the Participant's death) may, at
the discretion of Senior Management, be eligible to receive a pro-rata payment
under the Plan on account of the period prior to cessation of active full-time
employment. Pro-rata payments will be made concurrently with other payments
under the Plan.
5
<PAGE>
SECTION XII -- NEW HIRES, PROMOTIONS AND TRANSFERS
Individuals hired or promoted during the Year may become Participants in
the Plan subject to the approval of Senior Management. Partial Year Participants
will be eligible to earn a pro-rata award.
Separate pro-rata calculations will be made for any Participants who are
promoted to a higher Incentive Opportunity during the Year. III the event that
any Participant works for more than one Business Unit over the course of the
Year, Senior Management shall, in its sole and absolute discretion, pro-rate IPP
achievement; however, in no event shall any Participant receive a total IPP
amount greater than the maximum amount that would be payable to him or her had
he or she been employed solely by the Business Unit which receives the greatest
IPP achievement.
SECTION XII -- GENERAL PROVISIONS
(1) Each Participant shall treat as personal and strictly confidential any
and all information related to Participant's inclusion in the Plan.
(2) The expenses of administering the Plan shall be borne by the Company.
(3) No employee has any right or claim to be a Participant in the Plan or
to receive a payment under the Plan.
(4) Participation in the Plan does not provide any employee the right to be
retained in the employment of the Company.
(5) A Participant may not assign or transfer any rights under the Plan. Any
attempt to do so will invalidate those rights.
(6) The Plan shall be subject to all applicable federal and state laws and
regulations. Payments made under the Plan shall only be made to the extent
permitted by such laws and regulations, subject to all applicable taxes.
SECTION XIV -- AMENDMENT OR TERMINATION
The Plan may be amended or terminated at any time by action of the Board of
Directors of the Company. Senior Management shall be responsible, in its sole
discretion, for any interpretation of this Plan. Such interpretations shall be
final.
6
<PAGE>
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 27th day of May, 1992, by and between
Hospital Group of America, Inc., a Delaware corporation (the 'Company'), and
Mark R. Russell (the 'Executive').
WHEREAS, the Company desires to employ Executive and Executive desires to
accept such employment on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and Executive agree as follows:
1. Employment. The Company agrees to employ Executive during the
Employment Period (as hereinafter defined in an executive capacity in
accordance with the provisions of Section 2 hereof, and Executive agrees to
be so employed by the Company, all subject to the terms and provisions of
this Employment Agreement. The Employment Period shall commence on the date
of the Closing (as defined in that certain Stock Purchase Agreement (the
'Stock Purchase Agreement'), dated April 6, 1992, by and among, inter alia,
PSG Acquisition, Inc. ('PSG'), PSG Management, Inc. ('PSG Management')
(each a wholly-owned subsidiary of The Cooper Companies, Inc. ('TCC'),
Nu-Med, Inc., and PsychGroup, Inc., regarding the purchase by PSG of the
stock of Hospital Group of
<PAGE>
America, Inc. ('HGA')) and continue until the earliest to occur of the
following:
(a) The third anniversary of the Closing; and
(b) The Termination Date as defined in Section 5(d).
In the event that the Stock Purchase Agreement is terminated for any reason
whatsoever, this Employment Agreement shall be deemed null and void ab
initio.
2. Position and Duties. During the Employment Period, Executive shall
serve in the capacity of Executive Vice President and Chief Operating
Officer of each of HGA, PSG and PSG Management, reporting to the President
and Chief Executive Officer of such entities, or in such other mutually
acceptable capacity as TCC and Executive may decide. In the event that the
Company forms or acquires any new or additional business unit or units
engaged in the ownership or management of psychiatric care facilities,
Executive, if requested by TCC, shall also serve as Executive Vice
President and Chief Operating Officer of such unit or units.
3. Compensation.
(a) Annual Salary: During the Employment Period, the Company shall
pay Executive a salary at a rate of not less than TWO HUNDRED TWENTY TWO
THOUSAND SIX HUNDRED DOLLARS ($222,600) per annum ('Annual Salary'),
payable in equal regular installments on the 15th and last day of each
month during the Employment Period. The Company agrees to increase the
Annual Salary each October
2
<PAGE>
31st during the Employment Period at an annualized rate of five percent.
Any such increased salary shall become the Annual Salary on and after
the effective date of such increase.
(b) Bonus: Executive shall be eligible to receive a target bonus in
an annualized amount of forty percent (40%) of the Annual Salary, based
upon the achievement by HGA of Earnings Before Interest, Taxes,
Depreciation and Amortization (EBITDA) and/or other targets to be
mutually agreed upon by TCC and the President of HGA. Such bonus may be
as much as 120% of 40% if the agreed-upon targets are exceeded by
amounts mutually agreed upon between TCC and the President of HGA.
(c) Benefits: Executive shall participate in all employee benefit
plans and receive such fringe benefits as are from time to time made
generally available to the Company's senior management. The Company
shall reimburse Executive for all proper expenses incurred by him in the
performance of his duties, in accordance with the policies and
procedures established by TCC.
(d) Automobile Allowance and Expenses: The Company shall pay
Executive, on the last day of each month during the Employment Period,
an automobile allowance in the amount of $600. At the Company's
election, upon 180 days notice to Executive, the Company may terminate
such allowance and provide Executive with a Company-owned or leased
automobile, in which event the Company shall be responsible for the
registration and insurance therefor. The Company shall reimburse
Executive for the reasonable cost of insurance, routine maintenance and
for the reasonable cost of
3
<PAGE>
gasoline purchased for Executive's business use of such automobile.
All such amounts shall be included in Executive's taxable income for
purposes of reporting wages and determining withholding, as determined
by the Company's Tax Department. Executive agrees that he shall be
entitled to no other reimbursement or allowance for automobile usage,
whether pursuant to TCC or Company policy or otherwise.
(e) Vacation: Executive shall receive four (4) weeks of vacation
time per annum at times mutually agreeable to Executive and the Company.
(f) Total Compensation: Except as set forth in that certain letter
agreement, of even date herewith, with respect to performance stock
options to be granted to Executive, or as otherwise hereafter agreed to
by the Company in writing, the compensation set forth herein constitutes
the total of all compensation to which Executive is entitled, and
Executive specifically and irrevocably waives any and all right to
compensation not specifically provided for herein.
4. Incapacity. If at any time during the Employment Period Executive
is unable to perform fully his duties hereunder by reason of illness,
accident or other disability (as confirmed by competent medical evidence)
and Executive neither is terminated pursuant to Section 5(a)(i) or
otherwise nor terminates his employment, Executive shall be entitled to the
following compensation and benefits: (a) During the first six months of
such
4
<PAGE>
incapacity (but in no event beyond the end of the Employment Period)
(i) Executive shall be entitled to receive salary at a rate equal to the
Annual Salary to which he would be entitled under this Employment Agreement
and (ii) the Option shall vest to the extent it would have vested hereunder
but for such incapacity. (b) During any remaining period of such incapacity
(but in no event beyond the end of the Employment Period) (i) Executive
shall be entitled to receive salary at a rate equal to 50% of his Annual
Salary but (ii) no additional portion of the Option shall vest during such
remaining period of incapacity and the dates upon which subsequent portions
of the Option would have vested but for such incapacity shall be extended
by a number of days equal to the number of days of such remaining period of
incapacity. Notwithstanding the foregoing provisions of this Section 4, the
amounts payable to Executive under this Section 4 shall be reduced by any
amounts received by Executive with respect to such incapacity pursuant to
any insurance policy, plan or other employee benefit provided to Executive
by the Company. For the purpose of this Section 4, more than one occurrence
of incapacity during the Employment Period shall be treated as a single
period of incapacity regardless of any interruption in such incapacity,
except that a new and separate period of incapacity shall be deemed to have
commenced if (x) the illness, accident or other disability giving rise to
the latest occurrence of incapacity is totally unrelated to any period
incapacity, or (y) notwithstanding that the illness, accident or disability
giving rise to the latest occurrence of
5
<PAGE>
incapacity is related to any prior incapacity, Executive has performed his
duties hereunder for a continuous period of at least six months since the
termination of such prior incapacity.
5. Termination and Resignation.
(a) Events of Termination: In the event that during the Employment
Period there should occur (i) the 'Total and Permanent Incapacity' of
Executive, as defined in Section 5(h); (ii) the failure or inability of
Executive to perform his obligations hereunder in a manner satisfactory
to the Company; (iii) the engaging by Executive in gross misconduct
injurious to the Company; or (iv) the breach by Executive of Sections 6
or 7 hereof, the Company may elect to terminate the employment of
Executive by written notice to Executive. In the event of such
termination, the Employment Period shall terminate effective on the
Termination Date and any and all rights and benefits to which Executive
would otherwise be entitled under this Employment Aqreement or
applicable law, if any, shall terminate, except that Executive shall be
entitled to the rights and benefits set forth in Section 5(e) hereof.
(b) Executive may terminate his employment at any time during the
Employment Period for Good Reason. For purposes of this Agreement, 'Good
Reason' shall mean (A) a Change in Control (as hereinafter defined); (B)
any assignment to Executive of any duties other than those outlined in
section 2 which are not mutually acceptable to the parties hereto; (C)
any removal of Executive from
6
<PAGE>
or any failure to re-elect Executive to any of the positions indicated
in Section 2 hereof which materially alters the scope and nature of his
duties, except in connection with termination of Executive's employment
pursuant to Section 5(a)(iii) or 5(a)(iv) above; (D) a reduction in
Executive's rate of compensation, or a material reduction in Executive's
fringe benefits or any other failure by the Company to comply in all
material respects with its obligations hereunder; or (E) without the
express written consent of Executive, the Company requires Executive to
be based more than 50 miles away from his current principal place of
business.
(c) Any termination by the Company or Executive shall be
communicated by written Notice of Termination. For purposes of this
Agreement a 'Notice of Termination' shall mean a notice which shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(d) 'Termination Date' shall mean (i) if Executive's employment is
terminated by his death, the date of his death; (ii) if Executive's
employment is terminated pursuant to Section 5(a)(iii) or Section
5(a)(iv) above, the date specified in the Notice of Termination; (iii)
in the case of a termination by the Company pursuant to Section 5(a)(i)
or Section 5(a)(ii), the date specified in the Notice of Termination
which date shall be at least 30 days after the date of such Notice; or
(iv) in the case of a
7
<PAGE>
termination by Executive, the date specified in the Notice of
Termination which date shall be at least 30 days after the date of such
Notice.
(e) Compensation Upon Termination:
(i) In the event of termination by the Company pursuant to
Section 5(a)(i) or 5(a)(ii) above, or in the event Executive
terminates his employment for Good Reason, Executive shall be
entitled to receive his Annual Salary through the Termination Date
and those benefits, if any, to which Executive may have become
entitled prior to such Termination Date hereunder or under the
Company's 401(k) savings Plan or any other employee benefit plan,
together with an amount equal to one and one-half times Executive's
Annual Salary on the Termination Date.
(ii) In the event of a termination of Executive pursuant to
Section 5(a)(iii) or 5(a)(iv) above, Executive shall be entitled to
receive his Annual Salary through the Termination Date and the
Company shall have no further obligations to Executive under this
Employment Agreement other than those benefits, if any, to which
Executive may have become entitled prior to such Termination Date
hereunder or under the Company's 401(k) savings plan or any other
employee benefit plan.
(f) Compensation Upon Resignation other than for Good Reason: If
Executive shall resign his employment with the Company other than for
Good Reason, Executive shall be entitled to receive his Annual Salary
through the Termination Date, and the Company shall have no further
obligations to Executive under this
8
<PAGE>
Employment Agreement other than those benefits, if any, to which
Executive may have become entitled prior to such Termination Date
hereunder or under the Company's 401(k) savings plan or any other
employee benefit plan.
(g) 'Excess Parachute' Cap: In the event any payments or benefits
received or to be received by Executive pursuant to this Employment
Agreement in connection with a Change of Control as defined herein or in
the LTIP or upon the termination of Executive's employment would not be
deductible (in whole or in part) by the Company as a result of Section
280G of the Internal Revenue Code, then such payments or benefits shall
be reduced by the minimum amounts necessary so that no portion thereof
is not deductible. Any determination with regard to whether or not any
such payments or benefits would or would not be deductible as a result
of Section 280G of the Internal Revenue Code shall be made by the
Company's tax counsel, in accordance with the principles of Section
28OG.
(h) Certain Defined Terms:
(i) A 'Total and Permanent Incapacity' shall mean such physical
or mental condition of Executive as is expected to continue
indefinitely and which renders Executive incapable of performing any
substantial portion of his obligations hereunder (as confirmed by
competent medical evidence).
(ii) A 'Change of Control' of the Company shall be deemed for
purposes of this Section 5 to have occurred, if a third party not
affiliated with TCC acquires at least a
9
<PAGE>
majority of the shares of the capital stock of the Company.
6. Competitive Activity. During the Employment Period and for a
further period of one year thereafter, Executive shall not:
(a) participate, without the written consent the Board of Directors
or a person authorized thereby, in the management or control of, or act
as a Consultant for or employee of, any business operation or any
enterprise if such operation or enterprise engages in substantial
competition with any material line of business at the time actively
conducted by TCC, the Company, or any of their respective subsidiaries,
divisions, or affiliates (collectively, the 'Companies' ); provided,
however, that the foregoing shall not include the mere ownership of not
more than five percent of the equity securities of any enterprise;
(b) Solicit, in competition with the Companies, any person who is a
patient customer of the business conducted by the Companies or of any
business in which the Companies are substantially engaged at any time
during the Employment Period; and
(c) Induce or attempt to persuade any employee or independent
contractor of the Companies to terminate his or her relationship in
order to enter into competitive employment.
7. Unauthorized Disclosure. During the Employment Period and for a
further period of ten years thereafter, Executive shall not, except as
required by any court or administrative
10
<PAGE>
agency, without the written consent of the Board of Directors or a person
authorized thereby, disclose to any person, other than an employee of the
Company or a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by Executive of his duties
to the Company, any confidential information obtained by him while in the
employ of the Company with respect to any of the Company's inventions,
processes, customers, methods of distribution, methods of manufacturing,
attorney-client communications, pending or contemplated acquisitions, other
trade secrets, or any other material which the Company is obliged to keep
confidential pursuant to any confidentiality agreement or protective order;
provided, however, that confidential information shall not include any
information now known or which becomes known generally to the public (other
than as a result of an unauthorized disclosure by Executive) or any
information of a type not otherwise considered confidential by a person
engaged in the same business or a business similar to that conducted by the
Companies.
8. Scope of Covenants; Remedies. The following provisions shall apply
to the covenants contained in Section 6 and 7 hereof:
(a) The covenants contained in Sections 6(a) and 6(b) shall apply
within the territories in which any of the Companies are actively
engaged in the conduct of business during the Employment Period
including, without limitation, the
11
<PAGE>
territories in which customers are then being solicited;
(b) Without limiting the right of TCC or the Company to pursue all
other legal and equitable remedies available for violation by Executive
of the covenants contained in Section 6 and 7 hereof, it is expressly
agreed by Executive and the Company that such other remedies cannot
fully compensate TCC or the Company for any such violation and that TCC
and the Company shall be entitled to injunctive relief to prevent any
such violation or any continuing violation thereof;
(c) Each party intends and agrees that if, in any action before any
court or agency legally empowered to enforce the covenants contained in
Section 6 and 7 hereof, any term, restrictions, covenant or promise
contained therein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or promise shall be
deemed modified to the extent necessary to make it enforceable by such
court or agency;
(d) The covenants contained in Section 6 and 7 hereof shall survive
the conclusion of the Employment Period.
9. Assignment and Succession. The rights and obligations of the
Company under this Employment Agreement shall inure to the benefit of and
be binding upon its successors and assigns and Executive's rights and
obligations hereunder shall inure to the benefit of and be binding upon his
heirs, designated successors, his legal representative and guardians.
12
<PAGE>
10. Notices. All notices, requests, demands and other communications
made pursuant to this Employment Agreement shall be in writing and shall be
deemed duly given (a) if delivered, at the time delivered or (b) if mailed,
at the time mailed at any general or branch United States Post Office
enclosed in a registered or certified postpaid envelope addressed to the
respective parties as follows:
If to the Company:
Hospital Group of America, Inc.
1420 Spring Hill Road
McLean, Virginia 22102
Att: President
With a copy to:
The Cooper Companies, Inc.
250 Park Avenue -- 6th Floor
New York, New York 10177
Att: Marisa F. Jacobs, Esq.
If to Executive:
c/o Hospital Group of America, Inc.
1420 Spring Hill Road
McLean, Virginia 22102
with a copy to
500 Tavistock Boulevard
Haddonfield, New Jersey 08033
or to such other address as either party may have previously furnished to
the other in writing in the manner set forth above, provided that such
notice of change of address shall only be effective upon receipt.
13
<PAGE>
11. Miscellaneous.
(a) No provision of this Agreement may be modified unless such
modification is authorized by an executive officer of TCC and is agreed
to in writing, signed by Executive and an executive officer of TCC.
(b) This Employment Agreement constitutes the entire agreement of
the parties hereto relating to the subject matter hereof and there are
no written or oral terms or representations made by either party except
those contained herein.
(c) This Employment Agreement shall be construed and enforced in
accordance with and governed by the laws (other than the conflict of
laws rules) of the State of New York.
(d) The invalidity of any term or terms of this Employment
Agreement shall not invalidate or otherwise affect any other terms of
this Employment Agreement, which shall remain in full force and effect.
(e) This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the day and year first-above written.
HOSPITAL GROUP OF AMERICA, INC.
By: /S/ EDMUND C. BUJALSKI
.................................
NAME: EDMUND C. BUJALSKI
TITLE: PRESIDENT
EXECUTIVE
/S/ MARK R. RUSSELL
.................................
MARK R. RUSSELL
15
<PAGE>
HOSPITAL GROUP OF AMERICA, INC.
PSG MANAGEMENT, INC.
1265 DRUMMERS LANE
SUITE 107
WAYNE, PENNSYLVANIA 19807
June 18, 1993
Mr. Mark Russell
c/o Hospital Group of America, Inc.
1265 Drummers Lane, Suite 107
Wayne, Pennsylvania 19087
Dear Mark:
We are pleased to set forth the terms of your new position as President and
Chief Executive Officer of each of Hospital Group of America, Inc. ('HGA') and
PSG Management, Inc. ('PSG'), effective as of June 15, 1993. They are as
follows:
1. Employment Agreement.
The Company hereby ratifies and confirms the Employment Agreement
dated as of May 27, 1992 ('Employment Agreement') between you and HGA in
all respects, except that, effective as of the date hereof, the Employment
Agreement shall be amended hereby, as follows:
(a) Clause (a) of Section 1 thereof shall be amended to read in its
entirety as follows: '(a) May 29, 1996; and'.
(b) Section 2 thereof shall be amended to delete the words
'Executive Vice President and Chief Operating Officer of each of HGA,
PSG and PSG Management reporting to the President and Chief Executive
Officer of such entities' where they appear in the first sentence
thereof and substitute the words 'President and Chief Executive Officer
of PSG (now named 'Hospital Group of America, Inc.') and PSG Management
reporting to the Board of Directors of such entity, respectively, and
the Chief Operating Officer of The Cooper Companies, Inc.'
<PAGE>
(c) Section 3(b) shall be amended to include the following at the
end thereof:
'Notwithstanding the foregoing, exclusively for Executive and
for no other HGA employee, as an additional inducement to Executive
to agree to the amendments to this Agreement and assume the
additional responsibilities hereunder, the targets set forth on Annex
I for the six month period ending October 31, 1993, shall replace the
targets previously established for such period, if any, for the HGA
Incentive Payment Plan (the 'HGA IPP') and the fiscal year ending
October 31, 1993, such that (i) no HGA IPP bonus shall be earned or
paid for the first six months of the fiscal year ending October 31,
1993 and (ii) achievement of the targets set forth on Annex I will
make Executive eligible to receive a target bonus in an amount of
twenty percent (20%) of the Annual Salary. Such bonus shall be
payable to Executive in an actual amount to be determined based upon
the formulas set forth in the 1993 HGA IPP (but using the
contribution allocations set forth on Annex I), provided that such
bonus shall be paid if and only if (A) the targets set forth on the
attached Annex I shall have been achieved (as set forth in the HGA
IPP) and (B) Executive shall been in the employ of HGA and PSG
Management at October 31, 1993. Except as set forth in this Section
3(b), the terms of the HGA IPP shall remain unchanged and remain in
full force and effect.'
(d) The addresses set forth in Section 10 shall be revised to read
in their entirety as follows:
``If to the Company:
Hospital Group of America, Inc.
1265 Drummers Lane, Suite 107
Wayne, Pennsylvania 19087
With a copy to:
The Cooper Companies, Inc.
One Bridge Plaza, 6th Floor
Fort Lee, New Jersey 07024
Attn: Marisa F. Jacobs, Esq.
2
<PAGE>
If to Executive:
c/o Hospital Group of America, Inc.
1265 Drummers Lane, Suite 107
Wayne, Pennsylvania 19087
With a copy to:
500 Tavistock Boulevard
Haddonfield, New Jersey 08033
(e) Section 11(c) is amended by deleting the words 'New York' where
they appear therein and substituting therefor the words 'New Jersey.'
Each capitalized term used herein and not otherwise defined shall have the
meaning ascribed to it in the Employment Agreement.
2. Additional Benefits.
In addition to the benefits referred to in the Employment Agreement,
you will receive the following benefits:
(a) Promotional Bonus. As an additional inducement to you to
execute this Agreement and assume the additional responsibilities
hereunder, HGA will pay you a one-time signing bonus equal to ten
percent (10%) of Annual Salary (as in effect on the date hereof).
Payment shall be made promptly following your execution and delivery of
this Agreement, by deposit into an account previously designated by you.
You agree to repay the full amount of the bonus paid to you under this
Section 2(a) promptly upon and in the event you voluntarily terminate
your employment with HGA on or prior to December 15, 1993.
(b) Stock Options. Your existing options to purchase up to 80,000
shares of TCC common stock at an exercise price of $3.25 per share shall
be exchanged for options to purchase up to 21,840 shares of TCC common
stock at an exercise price of $.56 per share, with the exercise of such
options to vest in four equal installments of 5,460 shares each, if and
when the average of the closing prices of a share of a share of TCC
common stock on the New York Stock Exchange during any 30 consecutive
calendar days following the date of the exchange attains $1.00, $1.50,
$2.00 and $2.50, respectively. The new options shall include a provision
waiving the acceleration of vesting upon a change of control
and shall contain
3
<PAGE>
such other terms as are provided to all participants in
accordance with the terms of the plan pursuant to which they are issued.
(c) Turn-Around Bonus Pool. During the Employment Period, you will
become eligible to participate, at the $100,000 level, in the
'turn-around bonus pool' a draft of which is attached hereto as Annex
II, upon the terms and subject to the conditions set forth therein.
3. Miscellaneous.
The provisions of Sections 9, 10 and 11(c) of the Employment Agreement
shall be deemed incorporated in this Agreement as if fully set forth
herein.
If the foregoing correctly reflects our mutual understanding of the matters
set forth herein, kindly sign both original counterparts of this letter
agreement in the space provided below for your signature and return one original
to the undersigned.
Very truly yours,
HOSPITAL GROUP OF AMERICA, INC.
By: Alfred P. Salvitti
..............................
PSG MANAGEMENT, INC.
By: Alfred P. Salvitti
..............................
Agreed to and accepted this
22nd day of June, 1993, to
be effective as of the date
set forth above.
/s/ Mark R. Russell
..........................
MARK R. RUSSELL
AUTHORIZED AND AGREED, EFFECTIVE
AS OF THE DATE SET FORTH ABOVE.
THE COOPER COMPANIES, INC.
BY: Steven G. Singer
......................
4
<PAGE>
HOSPITAL GROUP OF AMERICA, INC.
PSG MANAGEMENT, INC.
1265 DRUMMERS LANE
SUITE 107
WAYNE, PENNSYLVANIA 19807
January 11, 1995
Mr. Mark R Russell
c/o Hospital Group of America, Inc.
1265 Drummers Lane, Suite 107
Wayne, Pennsylvania 19087
cc: 500 Tavistock Boulevard
Haddonfield, New Jersey 08033
Dear Mark:
Reference is made to the Employment Agreement ('Employment Agreement')
dated as of May 27, 1992 between you and Hospital Group of America, Inc ('HGA'),
as amended by the letter agreement effective as of June 15, 1993 among you, HGA
and PSG Management, Inc. ('PSG') and as further amended by Steven G. Singer's
memorandum to you dated November 12, 1993.
HGA and PSG each hereby ratifies and confirms the Employment Agreement in
all respects, except that, effective as of the date hereof, clause (a) of
Section 1 of the Employment Agreement shall be amended to read in its entirety
as follows: '(a) July 1, 1997; and'.
The provisions of Sections 9,10, and 11(c) of the Employment Agreement
shall be deemed incorporated in this Agreement as if fully set forth herein.
<PAGE>
Kindly evidence your agreement with the foregoing amendments to the
Employment Agreement by signing in the space provided below for your signature.
Very truly yours,
HOSPITAL GROUP OF AMERICA, INC.
By: ROBERT S. HOLCOMBE
......................................
PSG MANAGEMENT, INC.
By: ROBERT S. HOLCOMBE
......................................
Agreed to and accepted this
11th the day of January, 1995, to
be effective as of the date
set forth above.
By: MARK R. RUSSELL
..................................................
Mark R. Russell
<PAGE>
SETTLEMENT AGREEMENT
Settlement Agreement (this 'Agreement'), dated as of June 30, 1994, and
executed on August 30, 1994, between The Cooper Companies, Inc. ('Cooper') and
Steven G. Singer ('Singer').
WHEREAS, on August 28, 1991, Cooper and Singer entered into an employment
agreement (the '1991 Agreement') governing Singer's employment by Cooper;
WHEREAS, on June 2, 1993, Cooper and Singer entered into a letter agreement
(the '1993 Agreement') modifying the 1991 Agreement in certain respects (the
1991 Agreement and the 1993 Agreement collectively hereinafter, the 'Employment
Agreement'); and
WHEREAS, Cooper and Singer wish to terminate Singer's employment by Cooper
and to compromise and settle any and all claims that Singer might assert in
connection with the termination of his employment, including any claims for pain
and suffering, emotional distress, and damage to personal reputation, all in
accordance with the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable
1
<PAGE>
consideration, the receipt and sufficiency of which are hereby acknowledged,
Cooper and Singer agree as follows:
1. Singer's employment by Cooper is terminated as of June 30, 1994
(the 'Separation Date'). As of the Separation Date, Singer shall be deemed
to have resigned from all of his officer and director positions in Cooper
and any of its subsidiaries and affiliates. Thereafter, conditioned upon
the Closing (as hereinafter defined) having been completed as provided
herein, Cooper and Singer shall have no further obligations to each other
except the obligations set forth in this Agreement.
2. All deliveries to be made by Singer and Cooper hereunder shall be
made at a closing (the 'Closing') to be held at the offices of Gibson, Dunn
& Crutcher in New York City at 11:00 a.m. on Thursday, September 8, 1994.
3. On the date of execution of this Agreement (the 'Execution Date'),
Cooper shall lift the restrictions on, and at the Closing, Cooper shall
deliver to Singer 182,611 shares of Cooper's stock previously granted
pursuant to Cooper's 1988 Long Term Incentive Plan ('LTIP'), plus a number
of additional unrestricted shares equal in number to the greater of (i)
200,000 divided by the last quoted price of Cooper stock on the New York
Stock Exchange on the last trading day before the Execution Date, or (ii)
133,333; provided, however, that
2
<PAGE>
Cooper shall withhold from delivery to Singer the number of shares
representing Cooper's withholding tax obligation on account of the transfer
of the 182,611 shares referred to above.
4. Over a period of 84 business days beginning on the Execution Date,
Cooper shall make periodic payments to Singer (at the same rate and with
the same frequency as his salary) representing accrued and unused vacation
time.
5. For a period of three years beginning on the Execution Date, Cooper
shall make the payments directly to the coverage providers necessary to
continue in force all term life, medical, and dental insurance coverage
currently paid for by Cooper on Singer's behalf pursuant to paragraph 3(d)
of the 1991 Agreement, said coverage to be maintained without charge to
Singer at the current level of benefits, subject only to any reduction of
benefits that is a general reduction applicable to all similarly situated
participants in a group insurance program in which Singer is a participant;
provided, however, that in the event that a choice of benefits is offered
in connection with any such general reduction, Singer shall be entitled,
without charge to him, to the option most favorable to him.
6. For a period of three years beginning on the Execution Date, Cooper
will provide Singer with an automobile
3
<PAGE>
allowance of $1,000 per month; provided that, at the Closing Singer will
deliver to the Company, in good condition, the Mercedes-Benz automobile
currently provided to Singer by Cooper.
7. For a period of three years beginning on the Execution Date, Cooper
will pay Singer an office and secretarial services allowance of $1,000 per
month, to be applied for such purposes in Singer's discretion.
8. By no later than the Closing Date, Cooper shall deliver to Singer
the personal computers (including associated software but not including any
work files) used by him and his secretary at Cooper, as well as the
furnishings of the office used by him at Cooper.
9. Cooper shall amend its Retirement Income Plan (the 'Plan') in such
a manner as to permit Singer to withdraw the present value (currently
valued at $7,259.43) of his vested retirement benefits and roll said amount
over into an Individual Retirement Account; provided, however, that Cooper
shall have no obligation under this paragraph if Cooper's Board of
Directors determines, in its sole discretion, informed by whatever
professional advice it deems appropriate, that such an amendment would not
be in the best interests of Cooper or the Plan.
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10. Cooper, at Singer's request, shall take any steps reasonably
required to facilitate the transfer of Singer's 401(k) account at Cooper.
11. Solely for purposes of Singer's eligibility for an award under
Cooper's Turn-Around Incentive Plan ('TIP') and the 1993 Agreement, in the
event that Cooper's share price achieves the $3.00 target level (Target 2)
as specified in the TIP, the date of the termination of Singer's employment
by Cooper shall be deemed to be three years after the Separation Date;
provided, however, that Singer shall receive all of any such award in
unrestricted shares of Cooper's stock, as follows: within 30 days of the
achievement of the $3.00 target level, Cooper shall deliver to Singer
additional unrestricted shares equal in number to the greater of (i)
400,000 divided by the last quoted price of Cooper stock on the New York
Stock Exchange on the last trading day before the date of delivery of the
shares, or (ii) 133,333, and that Singer shall fully adhere to the
covenants set forth in paragraphs 12 and 13 below.
12. During the three-year period described in paragraph 11 above,
Singer shall not participate, without the written consent of Cooper's Board
of Directors or a person authorized thereby, in the management or control
of, or act as a consultant for or employee of, any business operation or
any enterprise if such operation or enterprise engages in research
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and development involving or the manufacture, sale, or distribution of (i)
any surgical products or instruments of a type designed primarily for use
in or sale into the in-office gynecological market, unless such employment
or consulting is in a line of business unrelated to such gynecological
market business, or (ii) Verapamil hydrochloride or any other calcium
channel blocker for use in the treatment of glaucoma, macular degeneration,
or the effects of diabetes or in other topical ophthalmological
applications; provided, however, that the foregoing prohibition shall not
apply to the mere ownership of not more than 5% of the equity securities of
any enterprise or the participation in an investment banking firm or
otherwise engaging in investment banking activities and in that capacity
serving or advising enterprises in competition with Cooper or any of its
subsidiaries, divisions, affiliates, or new businesses or business units
(collectively, the 'Companies').
13. In addition, Singer hereby acknowledges his legal obligation not
to disclose to anyone, without the written consent of Cooper's Board of
Directors or a person authorized thereby, any confidential information
obtained by him while in the employ of the Companies with respect to any of
the Companies' inventions, processes, customers, methods of distribution,
methods of manufacturing, existing or proposed products, attorney-client
communications, pending or contemplated acquisitions, or trade secrets, or
any material
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which the Companies inform him that they are obliged to keep confidential
pursuant to any confidentiality agreement or protective order; provided,
however, that confidential information shall not include any information
now known or which becomes known generally to the public (other than as a
result of an unauthorized disclosure by Singer) or any information of a
type not otherwise considered confidential by a person engaged in the same
businesses or a business similar to that conducted by the Companies.
14. The covenant set forth in paragraph 12 above shall apply within
the territories in which any of the Companies are actively engaged in the
conduct of business, including, without limitation, the territories in
which customers are then being solicited; provided, however, that the
covenant described in clause (ii) of paragraph 12 shall not be subject to
any geographical limitation.
15. Without limiting the right of the Companies to pursue all other
legal and equitable remedies available for violation by Singer of the
foregoing covenants, expressly agreed by Singer and the Companies that such
other remedies cannot fully compensate the Companies for any such violation
and that the Companies shall be entitled to injunctive relief to prevent
any such violation or any continuing violation thereof. In the event any
action for such relief should be brought, the prevailing party shall be
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entitled to recover its costs and attorneys fees in addition to any other
relief that it may be entitled to recover.
16. Each party intends and agrees that if, in any action before any
court or agency legally empowered to enforce the foregoing covenants, any
term, restriction, covenant, or promise contained therein is found to be
unreasonable and accordingly unenforceable, then such term, restriction,
covenant, or promise shall be deemed modified to the extent necessary to
make it enforceable by such court or agency.
17. At the Closing, Cooper shall pay to Singer the sum of $68,000,
subject to the next sentence of this paragraph, in further satisfaction of
any and all claims compromised by this Agreement, including, but not
limited to, any claim that Singer is entitled to receive retirement
benefits (by reason of his employment by Cooper) exceeding the $974.28
monthly benefit, payable beginning at age 65, to which Cooper agrees he is
entitled under Cooper's Retirement Income Plan (the present value of said
benefit being $7,259.43). The amount payable to Singer shall be offset and
reduced by the amount of $17,052.75, representing personal expenses charged
by Singer to Cooper's account with American Express and not reimbursed by
Singer, unless Singer shall have previously paid said amount to Cooper. In
this regard, Singer hereby reaffirms the following acknowledgments and
statements set forth in the 1993 Agreement concerning Section 5(c)(iv) of
the
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1991 Agreement: that Singer is aware of the claims asserted by Bruce D.
Sturman in respect of a similar provision contained in Sturman's Employment
Agreement with Cooper dated March 9, 1990; that Singer has reviewed the
July 17, 1992 memorandum of Jed W. Brickner of Latham & Watkins concerning
said provision; and that Singer disavows and waives any right to assert in
any forum or context that the retirement benefit described in said
provision should be valued in any manner other than as described in that
memorandum.
18. At the Closing, Cooper shall pay to Singer's counsel, Willkie Farr
& Gallagher, the amount of $25,000, representing attorneys fees and
expenses incurred by Singer since January 13, 1994 in connection with the
action styled Securities and Exchange Commission v. The Cooper Companies,
Inc., et al., No. 92 Civ. 8166 (S.D.N.Y.) (JFK) (the 'SEC Action'), and
related matters. Said payment shall be in full satisfaction of any and all
obligations (including but not limited to obligations of advancement,
payment, reimbursement, or indemnification) that Cooper may have to Singer
or his counsel with respect to any fees or expenses, whenever incurred, in
connection with the representation of Singer in the SEC Action, the action
styled United States v. Gary Singer et ano., No. 92 Cr. 964 (S.D.N.Y.)
(RJW) (the 'Criminal Case'), any related matter, or the negotiation of this
Agreement, except only that Cooper agrees to continue to
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provide to Singer a defense in the two shareholder derivative actions
respectively styled Harry Lewis et ano. v. Gary A. Singer et al., Civil
Action No. 12584 (Del. Ch.), and Bruce D. Sturman v. Gary A. Singer et al.,
Index No. (N.Y. Sup. Ct.), by the same counsel retained by Cooper to
represent the other officer and director defendants in said action or
by other counsel retained by Cooper if such common representation is
precluded by applicable rules of professional ethics. Nothing in this
Agreement shall be deemed to be a limitation on or waiver or release of any
right Singer may have to indemnification for any matter, other than those
described in the foregoing sentence, arising prior to the Separation Date,
which right is hereby confirmed, or to require advancement or
indemnification of fees and expenses with respect to any claim not related
to the SEC Action, the Criminal Case, or the negotiation of this Agreement.
19. All payments and other benefits that Singer is entitled to receive
from Cooper pursuant to this Agreement or pursuant to the applicable
provisions of Cooper's charter documents, Delaware law, or Cooper's benefit
plans shall be guaranteed by those of Cooper's subsidiaries which were
guarantors under the 1993 Agreement in consideration of the services
previously provided by Singer to those subsidiaries, said guaranties to be
delivered at the Closing and in the form of, and subject to the same
exceptions as, the Subsidiary
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Guaranty adopted and approved on May 18, 1993 by Cooper's Board of
Directors. Singer hereby agrees that the Guaranty of any one (but not more
than one) of such subsidiaries may, at Cooper's election, be released,
withdrawn, canceled, and of no further effect in the event that such
subsidiary is sold by Cooper, provided, however, that (i) even if more than
one such subsidiary is sold, only one subsidiary may be released from its
Guaranty as provided above, (ii) in no event shall the Guaranty of
CooperVision, Inc., a New York corporation, ever be released, withdrawn, or
canceled, whether or not such subsidiary is ever sold by Cooper, and (iii)
nothing herein shall prevent Cooper from merging CoastVision, Inc. into
CooperVision, Inc.
20. Except for the obligations of Cooper and the guaranty obligations
of Cooper subsidiaries set forth in this Agreement, Singer (on behalf of
himself, his representatives, agents, employees, attorneys, insurers,
predecessors, successors, and assigns, all of the members of his family by
blood or marriage (except Gary Singer), including but not limited to Karen
Singer, Rebecca Singer, Norma Brandes, and Joseph Brandes, and all entities
owned or controlled by Singer or any members of his family, including but
not limited to Normel Construction Corp., Brandes and Singer, and Romulus
Holdings, Inc., and each of them, past and present) fully releases and
forever discharges Cooper and its officers,
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directors, employees, agents, representatives, stockholders, attorneys,
insurers, predecessors, successors, assigns, and affiliated or subsidiary
companies, and each of them, past and present (collectively, as used in
this paragraph only, 'Cooper'), from any and all manner of obligations,
demands, liabilities, damages, suits, and claims of any nature, kind, or
description whatsoever, whether known or unknown, choate or inchoate,
direct or indirect, suspected or unsuspected, at law, in equity, or
otherwise, in any jurisdiction, which might exist or be asserted concerning
any aspect of any relationship between Cooper and Singer (including but not
limited to any aspect of the 1991 Agreement or the 1993 Agreement) or any
of the facts and events that form the subject matter of the SEC Action or
the Criminal Case. Singer hereby represents that he has full authority to
release any and all such claims on behalf of all of the members of his
family by blood or marriage and all entities owned or controlled by him or
any members of his family, and hereby agrees that, in the event any such
person or entity nevertheless asserts or pursues any such claim against
Cooper, Singer will indemnify and hold Cooper harmless from any costs,
losses, damages, or liabilities suffered by Cooper on account of any such
claim or the defense of any such claim.
21. Except for the obligations of Singer set forth in this Agreement,
Cooper (on behalf of itself and its
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officers, directors, employees, agents, representatives, stockholders,
attorneys, insurers, predecessors, successors, assigns, and affiliated
or subsidiary companies, and each of them, past and present) fully releases
and forever discharges Singer, his representatives, agents, employees,
attorneys, insurers, predecessors, successors, and assigns, all of the
members of his family by blood or marriage (except Gary Singer), and
all entities owned or controlled by Singer or any members of his family
(except any entity, or any interest in an entity, exclusively owned or
controlled by Gary Singer) from any and all manner of obligations, demands,
liabilities, damages, suits, and claims of any nature, kind, or description
whatsoever, whether known or unknown, choate or inchoate, direct or
indirect, suspected or unsuspected, at law, in equity, or otherwise, in
any jurisdiction, which might exist or be asserted concerning any aspect
of any relationship between Cooper and Singer or any of the facts and
events that form the subject matter of the SEC Action or the Criminal
Case; provided, however, that Singer, his representatives, agents,
employees, attorneys, insurers, predecessors, successors, and assigns,
all of the members of his family by blood or marriage, and all entities
owned or controlled by Singer or any members of his family recognize that
Cooper may assert claims as to their conduct and/or receipt of benefits
against any disgorgement or restitution fund established in connection
with the SEC Action or the Criminal Case, and shall
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not oppose or object in any manner to any claim by Cooper against, or any
payment to Cooper from such fund.
22. Cooper's rights and obligations under this Agreement shall inure
to the benefit of and be binding upon its successors and assigns, and
Singer's rights and obligations hereunder shall inure to the benefit of and
be binding upon his heirs, designated successors, legal representatives,
and guardians.
23. All notices, requests, demands, and other communications made
pursuant to this Agreement shall be in writing, delivered by hand or by
overnight mail or courier, and deemed duly given at the time delivered to
the respective parties as follows:
If to Cooper:
The Cooper Companies, Inc.
One Bridge Plaza, 6th Floor
Fort Lee, New Jersey 07024
Attn: Senior Vice President and General Counsel
If to Singer:
10 Loman Court
Cresskill, New Jersey 07626
with a copy to:
Louis A. Craco, Esq.
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
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or to such other address as either party may have previously furnished to
the other in writing in the manner set forth above, such notice of change
of address to be effective upon receipt.
24. No provision of this Agreement may be modified unless such
modification is authorized by Cooper's Board of Directors and is agreed to
in writing and signed by Singer and an authorized executive officer of
Cooper.
25. This Agreement supersedes all prior agreements or understandings
between Cooper and Singer. Cooper and Singer agree that all consideration
received by Singer pursuant to this Agreement shall be in consideration of
the settlement and compromise of all claims of any type covered by this
Agreement. This Agreement constitutes the entire agreement of the parties
hereto relating to the subject matter hereof, and there are no written or
oral terms or representations made by either party except those contained
herein.
26. This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of California, without regard to its
choice-of-law rules.
27. The invalidity of any term or terms of this Agreement shall not
invalidate or otherwise affect any other
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terms of this Agreement, which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement
Agreement as of the day and year first-above written.
THE COOPER COMPANIES, INC.
By: ROBERT S. HOLCOMBE
....................................
Robert S. Holcombe
Its:
Senior Vice-President
And General Counsel
STEVEN G. SINGER
......................................
STEVEN G. SINGER
By their signatures below, and in consideration of the releases provided in
paragraph 21 of the foregoing Settlement Agreement, the following persons and
entities hereby provide to Cooper (as defined in paragraph 20 of said Agreement)
the releases described in paragraph 20 of said Agreement, as of the date of said
Agreement.
KAREN SINGER
......................................
KAREN SINGER
REBECCA SINGER
......................................
REBECCA SINGER
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NORMA BRANDES
......................................
NORMA BRANDES
JOSEPH BRANDES
......................................
JOSEPH BRANDES
NORMEL CONSTRUCTION CORP.
By: JOSEPH BRANDES
......................................
Its:
BRANDES AND SINGER
By: JOSEPH BRANDES
......................................
Its:
ROMULUS HOLDINGS, INC.
By: JOSEPH BRANDES
......................................
Its:
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