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EXHIBIT 10.18
CHANGE IN CONTROL AGREEMENT
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ALARIS MEDICAL, INC.
10221 Wateridge Circle
San Diego, CA 92121
Dated: April 20, 2000
Dear Hazel M. Aker:
ALARIS Medical, Inc. (the "Corporation") considers it essential to the best
interests of its shareholders to foster the continuous employment by the
Corporation of its key management personnel as well as the key management
personnel of the Corporation's direct and indirect subsidiaries, including,
without limitation, ALARIS Medical Systems, Inc. ("AMS"). The Corporation's
Board of Directors (the "Board") recognizes that, as is the case with many
publicly held corporations, the existence of the possibility of a change in
control of the Corporation may promote management uncertainty and could result
in serious management distraction.
Accordingly, the Board has decided to reinforce and encourage the continued
attention and dedication of members of the management of the Corporation and its
direct and indirect subsidiaries to their assigned duties without the
distraction arising from the possibility of a change in control. Accordingly,
the Corporation hereby agrees that after this letter agreement (this
"Agreement") has been fully executed, you shall receive the severance benefits
set forth in this Agreement in the event your employment with the Corporation
and its direct and indirect subsidiaries (as applicable), is terminated under
the circumstances described below subsequent to a Change of Control (as defined
in Section 2). Unless the context indicates otherwise, references herein to the
"Corporation" and its rights and obligations hereunder (including, without
limitation, its payment obligations) shall refer to the Corporation and its
direct and indirect subsidiaries individually, or collectively, as the context
may require.
1. Change of Control. No benefits shall be payable hereunder unless a Change of
Control (as hereinafter defined) shall have occurred on or before the End Date
(as hereinafter defined), regardless of whether or not the End Date shall have
been designated. For purposes of this Agreement the term "End Date" shall mean
that date designated by the Corporation as the End Date in a written notice to
that effect provided to you at least six (6) months prior to the date so
designated. For purposes of this Agreement, a "Change of Control" will be deemed
to have occurred on the date any of the following events shall have occurred:
(a) any person or persons acting together which would constitute a "group" for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (other than the Corporation, any Subsidiary (as defined
below) and Jeffry M. Picower (including, any of his Affiliates (as defined
below) and any lineal descendant of Mr. Picower, any widow or then current
spouse of Mr. Picower or of any such lineal descendant, a trust established
principally for the benefit of any of the foregoing, any entity which is at
least 90% beneficially owned by any of the foregoing, and the executor,
administrator or personal representative of the estate of any of the foregoing
(any one or more of the foregoing being sometimes hereinafter referred to as the
"Picower Group") beneficially own (as defined in Rule 13d-3 under the
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Exchange Act), directly or indirectly, securities of the Corporation, AMS or any
Significant Subsidiary (as defined below) representing greater than 10% of the
total combined voting power of the Corporation, AMS or the Significant
Subsidiary entitled to vote in the election of the board of directors of the
Corporation, AMS or the Significant Subsidiary; provided, however, that such
event shall not constitute a Change of Control unless and until the combined
voting power of such securities owned beneficially, directly or indirectly, by
such person or persons is greater than the combined voting power of all such
securities owned beneficially, directly or indirectly, by Mr. Picower and the
Picower Group. For purposes of this Agreement, (i) the term "Subsidiary" shall
mean any corporation of which the Corporation, directly or indirectly, is the
beneficial owner of fifty percent (50%) or more of the total combined voting
power of all classes of its stock having voting power and which qualifies as a
subsidiary corporation pursuant to Section 424(f) of the Internal Revenue Code
of 1986, as amended (the "Code"), and (ii) the term "Affiliate" shall mean any
partnership, corporation, firm, joint venture, association, trust,
unincorporated organization or other entity that, directly or indirectly through
one or more intermediaries, is controlled by Mr. Picower or the Picower Group,
where the term "controlled by" means the possession, direct or indirect, of the
power to cause the direction of the management and policies of such entity,
whether through the ownership of voting interests or voting securities, as the
case may be, by contract or otherwise.
(b) persons other than the Current Directors (as defined below) constitute a
majority of the members of the Board (for these purposes, a "Current Director"
means any member of the Board as of November 27, 1996, and any successor of any
such member whose election, or nomination for election by the Corporation's
shareholders, was approved by at least a majority of the Current Directors then
on the Board or by Mr. Picower or the Picower Group);
(c) the consummation of (i) a plan of liquidation of all or substantially all of
the assets of the Corporation, AMS or any Subsidiary owning directly or
indirectly all or substantially all of the consolidated assets of the
Corporation (a "Significant Subsidiary"), or (ii) an agreement providing for the
merger or consolidation of the Corporation, AMS or a Significant Subsidiary (A)
in which the Corporation, AMS or the Significant Subsidiary is not the
continuing or surviving corporation, other than a consolidation or merger with a
wholly-owned subsidiary of the Corporation in which all shares of common stock
of the Corporation or common stock in AMS or the Significant Subsidiary
outstanding immediately prior to the effectiveness thereof are changed into or
exchanged for all or substantially all of the common stock of the surviving
corporation and, if the Corporation ceases to exist, the surviving corporation
assumes all outstanding options to purchase common stock of the Corporation, or
(B) pursuant to which, even though the Corporation is the continuing or
surviving corporation, the shares of common stock of the Corporation or common
stock in AMS or the Significant Subsidiary are converted into cash, securities
or other property; provided, however, that no "Change of Control" shall be
deemed to occur as the result of a consolidation or merger of the Corporation,
AMS or a Significant Subsidiary in which the holders of the shares of common
stock of the Corporation immediately prior to the consolidation or merger have,
as a result thereof, directly or indirectly, at least a majority of the combined
voting power of all classes of voting stock of the continuing or surviving
corporation or its parent immediately after such consolidation or merger or in
which the Board immediately prior to the merger or consolidation would,
immediately after the merger or consolidation, constitute a majority of the
board of directors of the continuing or surviving corporation or its parent; or
(d) the consummation of an agreement (or agreements) providing for the sale or
other disposition (in one transaction or a series of transactions) of all or
substantially all of the assets of the Corporation, AMS or a Significant
Subsidiary other than such a sale or disposition immediately after which such
assets will be owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of the
shares of common stock of the Corporation immediately prior to such sale or
disposition.
2. Termination Following Change of Control.
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(i) General. Nothing contained in this Agreement shall (a) confer upon you any
right to continue in the employ of the Corporation, (b) constitute any contract
or agreement of employment, or (c) interfere in any way with the at-will nature
of your employment with the Corporation (it being understood and agreed that (so
long as it is done in accordance with applicable law) the Corporation may
terminate your employment at any time for any reason or for no reason and that
you may terminate your employment with the Corporation at anytime for any reason
or for no reason [except, of course, to the extent otherwise provided for in a
formal written employment agreement between you and the Corporation]). However,
if a Change of Control shall have occurred on or prior to the End Date, you
shall be entitled to the benefits provided in Section 3(ii) upon a subsequent
termination of your employment if that termination occurs within the two (2)
year period immediately following the date of such Change of Control, but only
if that termination was effected (a) by the Corporation other than for Cause or
Disability (each as defined below), or (b) by you for Good Reason (as defined
below) (a termination of your employment under the circumstances set forth in
subparagraph (a) or (b) of this sentence is sometimes hereinafter referred to as
a "Payment Termination"). You shall not be entitled to such benefits: (a) if
your employment is terminated for any reason after a Change of Control which
occurs after the End Date, (b) if your employment is terminated for any reason
prior to a Change of Control, even if that Change of Control occurs on or prior
to the End Date or (c) your employment is terminated after a Change of Control
occurring on or prior to the End Date, if such termination is occasioned: (i) by
your death; (ii) by the Corporation for Cause or Disability; or (iii) by you for
other than Good Reason (a termination of your employment under the circumstances
set forth in subparagraph (a), (b), or (c) of this sentence is sometimes
hereafter referred to as a "Non-Payment Termination"). Notwithstanding any of
the foregoing to the contrary, if your employment is terminated by the
Corporation prior to a Change of Control (under circumstances in which had your
employment terminated after such Change in Control, such termination would have
constituted a Payment Termination), but otherwise in contemplation of a known
specific Change of Control which occurs on or before the End Date, then for all
purposes of this Agreement your employment shall be deemed to have been
terminated immediately after that contemplated Change of Control actually occurs
if it does.
(ii) Death or Disability. Your employment with the Corporation shall terminate,
automatically, upon your death. The Corporation may terminate your employment
for any reason or for no reason, including, without limitation, for Disability,
but only if that Disability continues through the Date of Termination (as
hereinafter defined). For purposes hereof the term "Disability" shall mean your
absence from the full-time performance of your duties with the Corporation for
six (6) consecutive months by reason of physical or mental illness.
(iii) Cause. The Corporation may terminate your employment for any reason or for
no reason, including, without limitation, for Cause. For purposes of this
Agreement, "Cause" shall mean (a) any breach by you of any of your obligations
under this Agreement of a type and kind which is materially adverse to the
Corporation and which remains uncured by you for five (5) calendar days
following your receipt of Notice of Termination (as hereinafter defined), (b)
any gross misconduct by you of a type and kind which is materially adverse to
the Corporation and which remains uncured by you for five (5) calendar days
following your receipt of Notice of Termination, (c) any violation by you of a
governmental law, rule or regulation applicable to the business of the
Corporation of a type and kind which is materially adverse to the Corporation
and which remains uncured for five (5) calendar days following your receipt of
Notice of Termination, or (d) your conviction of, or entry by you of a guilty,
or no contest, plea to, the commission of a felony involving moral turpitude.
(iv) Good Reason. You may terminate your employment for any reason or for no
reason, including, without limitation for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean the occurrence after a Change of Control
occurring on or before the End Date of any one or more of the following events
without, in each case, your prior written consent:
(a) the assignment to you of any duties (other than duties constituting
reasonable transition services in connection with a Change of Control
transaction) which are inconsistent with the position in the Corporation
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that you held immediately prior to the Change of Control, an alteration in the
nature or status of your responsibilities or the conditions of your employment
from those in effect immediately prior to such Change of Control, or any other
action by the Corporation that results in a diminution in the position and
authority with the Corporation held by you prior to such Change of Control, in
each case, under circumstances in which such assignment, alteration or action is
materially adverse to you;
(b) the Corporation's reduction of your annual base salary or bonus opportunity,
each as in effect on the date hereof or as the same may be increased from time
to time;
(c) the relocation of the Corporation's offices at which you are principally
employed immediately prior to the date of the Change of Control (your "Principal
Location") to a location more than twenty-five (25) miles from such location, or
the Corporation's requiring you to be based at a location more than twenty-five
(25) miles from your Principal Location, except for required travel on the
Corporation's business to an extent substantially consistent with your present
business travel obligations;
(d) the Corporation's failure to pay to you any portion of your current
compensation or any portion of an installment of deferred compensation under any
deferred compensation program of the Corporation within seven (7) days following
the later of the date such compensation is due or the date of demand by you for
the payment of such compensation;
(e) the Corporation's failure to continue in effect compensation and benefit
plans which provide you with benefits which are substantially similar, on an
aggregate basis, to the benefits provided to you under the Corporation's regular
compensation and benefit plans and practices immediately prior to the Change of
Control, unless an equitable arrangement (embodied in ongoing substitute or
alternative plans) has been made with respect to such plans, or the
Corporation's failure to continue your participation therein (or in such
substitute or alternative plans) on a basis not materially less favorable in the
aggregate, both in terms of the amount of benefits provided and the level of
your participation relative to other participants, as existed at the time of the
Change of Control;
(f) the Corporation's failure to obtain an agreement from any successor to
assume and agree to perform this Agreement, as contemplated in Section 6 hereof;
(g) any purported termination of your employment by the Corporation which does
not satisfy the requirements of Section 2(v) hereof (such a purported
termination shall not be effective for purposes of this Agreement);
(h) the continuation or repetition, after written notice of objection from you,
of harassing or denigrating treatment of you inconsistent with your position
with the Corporation, which treatment is materially adverse to you; or
(i) any breach by the Corporation of its obligations under this Agreement which
is materially adverse to you.
Your right to terminate your employment pursuant to this Section 3(iv) shall not
be affected by your short-term incapacity due to physical or mental illness.
Your continued employment shall not constitute consent to, or a waiver of right
with respect to, any circumstance constituting Good Reason hereunder.
(v) Notice of Termination. Any purported termination of your employment by the
Corporation or by you (other than termination due to your death, since your
death terminates your employment automatically) occurring within two (2) years
following a Change of Control, which itself occurs on or before the End Date,
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 6. For purposes of this Agreement, "Notice of
Termination" shall mean a notice that shall indicate the specific termination
provision in this Agreement relied upon, shall set forth in reasonable detail
the facts and
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circumstances claimed to provide a basis for termination of your employment
under the provision so indicated and shall set forth a date (the "Date of
Termination") which follows the date of that notice (it being understood and
agreed that if your employment is being terminated by you for Good Reason, the
Date of Termination may not be more than thirty (30) days from the date of that
notice or more than three (3) months from the date of the events giving rise to
that Good Reason, whichever first occurs).
(vi) Date of Termination. If the Corporation seeks to terminate your employment
for Disability, the date of termination of your employment shall be the Date of
Termination, unless prior to that date you have fully recovered from your
illness and have returned to the full-time performance of your duties, in which
case your employment shall not terminate. If the Corporation seeks to terminate
your employment for Cause, the date of termination of your employment shall be
the Date of Termination, except that if the consequences of the act or omission
to act set forth in the pertinent Notice of Termination is curable (and cure is
allowed under such circumstances) then the date of termination of your
employment shall be the date which is the sixth (6th) day following the Date of
Termination, unless you shall have cured such consequences prior to that date,
in which case your employment shall not terminate. If you seek to terminate your
employment with the Corporation for Good Reason then the date of termination of
your employment shall be the Date of Termination. The date that your employment
actually terminates is sometimes hereafter referred to as the "Final Date".
3. Compensation Upon Termination.
(i) If you suffer a Non-Payment Termination, the Corporation shall pay you your
full base salary, when due, through the Final Date at the rate in effect
immediately prior to the delivery of the pertinent Notice of Termination, if a
Notice of Termination was required to have been given, or if it was not, then
immediately prior to the Final Date, plus all other amounts to which you are
entitled under any compensation plan or practice of the Corporation at the time
such payments are due, and the Corporation shall have no further obligations to
you under this Agreement.
(ii) If you suffer a Payment Termination, then, subject to paragraph (v) of this
Section 3 and in lieu of any severance benefits to which you may otherwise be
entitled under any severance plan or program of the Corporation or any
Subsidiary, you shall be entitled to the benefits provided below:
(a) the Corporation shall pay you your full base salary, when due, through the
Final Date at the rate in effect immediately prior to the delivery of the
pertinent Notice of Termination (or if your termination is for Good Reason by
reason of a reduction in your annual base salary, the rate in effect immediately
prior to such reduction), at the time specified in Section 3(iii), plus all
other amounts (other than severance benefits not provided for in this Agreement)
to which you are entitled under any compensation plan or practice of the
Corporation at the time such payments are due;
(b) in lieu of any further salary payments to you for periods subsequent to the
Final Date, the Corporation shall pay as severance pay to you, at the time
specified in Section 3(iii), a lump-sum severance payment equal to the sum of
the following:
(A) two hundred percent (200%) of your annual base salary as in effect
immediately prior to the delivery of the pertinent Notice of Termination (or if
your termination is for Good Reason by reason of a reduction in your annual base
salary, the rate in effect immediately prior to such reduction); and
(B) two hundred percent (200%) of your targeted annual aggregate bonus amounts
for the year in which this Agreement is executed;
(c) the Corporation shall, at its sole expense as incurred, provide you with
outplacement services for a period not to exceed nine (9) months at an aggregate
cost to the Corporation not to exceed $12,000, the scope of
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which shall be selected by you in your sole discretion and the provider of which
shall be selected by you from among the providers offered to you by the
Corporation;
(d) for the period beginning on the Final Date and ending on the earlier of (i)
the date which is twenty-four (24) full months following the Final Date or (ii)
the first day of your eligibility to participate in another group health plan,
the Corporation shall pay for and provide you and your dependents with the same
medical benefits coverage to which you would have been entitled had you remained
continuously employed by the Corporation during such period. In the event that
you are ineligible under the terms of the Corporation's benefit plans to
continue to be so covered, the Corporation shall provide you with substantially
equivalent coverage through other sources or will provide you with a lump sum
payment (determined on a present value basis using the interest rate provided in
Section 1274(b)(2)(B) of the Code on the Date of Termination) in such amount
that, after all income and employment taxes on that amount, shall be equal to
the cost to you of providing yourself such benefit coverage. At the termination
of the benefits coverage under the first sentence of this Section 3(ii)(d), you
and your dependents shall be entitled to continuation coverage ("COBRA
Coverage") pursuant to Section 4980B of the Code, Sections 601-608 of the
Employee Retirement Income Security Act of 1974, as amended, and under any other
applicable law, to the extent required by such laws, as if you had terminated
employment with the Corporation on the date such benefits coverage terminates;
provided, however, that the period of your benefits coverage under the first
sentence of this Section 3(ii)(d) shall be offset against the period during
which you would be entitled to such COBRA Coverage; and
(e) you shall be fully vested in your accrued benefits under any qualified or
nonqualified pension, profit sharing, deferred compensation or supplemental
plans maintained by the Corporation for your benefit; provided, however, that to
the extent that the acceleration of vesting of such benefits would violate any
applicable law or require the Corporation to accelerate the vesting of the
accrued benefits of all participants in such plan or plans, then, assuming that
you obtain the appropriate consents, the Corporation shall pay you a lump-sum
payment at the time specified in Section 3(iii) in an amount equal to the value
of such unvested benefits.
(iii) The payments provided for in Sections 3(ii)(a), (b) and (e) (if
applicable) shall be made not later than the fifth business day following the
Final Date; provided, however, that if the amounts of such payments cannot be
finally determined on or before such date, the Corporation shall pay to you on
such day an estimate, as determined in good faith by the Corporation, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later than
the thirtieth (30th) day after the Date of Termination. In the event that the
amount of the estimated payments exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Corporation to you,
payable on the fifth (5th) business day after demand by the Corporation
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code).
(iv) You shall not be required to mitigate the amount of any payment provided
for in this Section 3 by seeking other employment or otherwise nor, except as
provided in Section 3(ii)(d), shall the amount of any payment or benefit
provided for in this Section 3 be reduced by any compensation earned by you as
the result of employment by another employer or self-employment, by retirement
benefits, by offset against any amounts (other than loans or advances to you by
the Corporation) claimed to be owed by you to the Corporation, or otherwise.
(v) (a) Notwithstanding anything contained herein, if any payment or
distribution to you or for your benefit (whether paid or payable or distributed
or distributable) pursuant to the terms of this Agreement or otherwise (a
"Payment") would constitute a "parachute payment" within the meaning of Section
28OG of the Code, the Payments shall be reduced to the extent necessary so that
no portion of the Payments shall be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), but only if, by reason of such reduction,
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the net after-tax benefit to you shall exceed the net after-tax benefit to you
if no such reduction was made. For purposes of this Section 3(v), "net after-tax
benefit" shall mean (i) the Payments which you receive or are then entitled to
receive that would constitute "parachute payments" within the meaning of Section
280G of the Code, less (ii) the amount of all federal, state, local and foreign
income and employment taxes payable with respect to the foregoing calculated at
the maximum marginal income tax rate (factoring in the loss of itemized
deductions) for each year in which the foregoing shall be paid to you (based on
the rate in effect for such year as set forth in the Code as in effect at the
time of the first payment of the foregoing), less (iii) the amount of the Excise
Tax imposed with respect to the Payments. The foregoing determination will be
made by the Accountants (as defined below) in consultation with you and the
Corporation and in accordance with the analysis, valuations and calculations
prepared by the Accountants in connection with this Agreement. If the
Accountants determine that such reduction is required by this Section 3(v)(a),
you, in your sole and absolute discretion, may determine which Payments shall be
reduced to the extent necessary so that no portion thereof shall be subject to
the Excise Tax, and the Corporation shall pay such reduced amount to you. You
and the Corporation will each provide the Accountants access to and copies of
any books, records, and documents in the possession of you or the Corporation,
as the case may be, reasonably requested by the Accountants, and otherwise
cooperate with the Accountants in connection with the preparation and issuance
of the determinations and calculations contemplated by this Section 3(v)(a).
(b) All determinations required to be made under this Section 3(v), including
the assumptions to be utilized in arriving at such determinations, shall be made
by the Accountants which shall provide you and the Corporation with its
determinations and detailed supporting calculations with respect thereto at
least fifteen (15) business days prior to the date on which you would be
entitled to receive a Payment (or as soon as practicable in the event that the
Accountants have less than fifteen (15) business days advance notice that you
may receive a Payment) in order that you may determine whether it is in your
best interest to waive the receipt of any or all amounts which may constitute
"excess parachute payments." For the purposes of this Section 3(v), the
"Accountants" shall mean the Corporation's independent certified public
accountants serving immediately prior to the Change of Control. In the event
that the Accountants are also serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, you shall appoint
another nationally recognized public accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accountants hereunder). All fees and expenses of the Accountants shall be borne
solely by the Corporation. For the purposes of determining whether any of the
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
such Payments will be treated as "parachute payments" within the meaning of
Section 280G of the Code, and all "parachute payments" in excess of the "base
amount" (as defined under Section 280G(b)(3) of the Code) shall be treated as
subject to the Excise Tax, unless and except to the extent that in the opinion
of the Accountants such Payments (in whole or in part) either do not constitute
"parachute payments" or represent reasonable compensation for services actually
rendered (within the meaning of Section 280G(b)(4) of the Code) in excess of the
"base amount," or such "parachute payments" are otherwise not subject to such
Excise Tax. Any determination by the Accountants shall be binding upon the
Corporation and you. As a result of uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accountants
hereunder, it is possible that the amount of the Payments that the Accountants
determine would constitute a "parachute payment" within the meaning of Section
280G of the Code will have been less than the amount of the Payments that the
Internal Revenue Service (the "IRS") determines constitutes a "parachute
payment" within the meaning of Section 280G of the Code. In such event, you
shall notify the Corporation in writing of any such claim by the IRS. Such
notification shall be given as soon as practicable after you are informed in
writing of such claim and shall apprize the Corporation of the nature of such
claim and the date on which such claim is requested to be paid. In connection
with any contest or potential contest of such claim, you and the Corporation
will provide each other access to and copies of any books, records, and
documents in the possession of you or the Corporation, as the case may be,
reasonably requested by the other party, and will otherwise cooperate with each
other in connection with any such
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contest or potential contest. In the event that you or the Corporation contest
such claim, the Corporation shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest. If it is finally determined that the amount of the Payments that the
Accountants determined constituted a "parachute payment" within the meaning of
Section 280G of the Code is less than the amount of the Payments that the IRS
determined constituted a "parachute payment" within the meaning of Section 280G
of the Code, you shall repay to the Corporation (together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code) that amount of the Payments
necessary to reduce the Payments such that no portion thereof shall be subject
to the Excise Tax, but only if, by reason of such repayment, the net after-tax
benefit to you shall exceed the net after-tax benefit to you if no such
repayment was made. Nothing contained in this Section 3(v)(b) shall limit your
ability or entitlement to settle or contest, as the case may be, any claim or
issue asserted or raised by the IRS or any other taxing authority.
4. Stock Options. Notwithstanding anything contained herein, all outstanding
options ("Options"), if any, granted to you under any of the Corporation's stock
option plans, incentive plans or other similar plans (or options substituted
therefor covering the stock of a successor corporation) shall continue to be
subject to the terms of the applicable stock option plan and option agreement.
5. Successors; Binding Agreement.
(i) The Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Corporation to expressly assume and agree to pay
and perform, when due, all of the obligations of the Corporation to you under
this Agreement incurred in connection with the Change of Control to that
successor.
(ii) This Agreement shall inure to the benefit of and be enforceable by you and
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amount
would still be payable to you hereunder had you continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
6. Notice.
For the purpose of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States certified or,
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement, provided
that all notices to the Corporation shall be directed to the attention of the
Board with a copy to the Secretary of the Corporation, or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon receipt.
7. Confidentiality and Non-Solicitation Covenants.
(i) Confidentiality. You hereby agree to be bound by the terms and conditions of
the Confidentiality and Invention Assignment Agreement attached hereto as
Exhibit A.
(ii) Non-Solicitation. You hereby agree that, for the period commencing on the
Final Date and terminating on the twelve (12) month anniversary thereof, you
shall not, either on your own account or jointly with or as a manager, agent,
officer, employee, consultant, partner, joint venturer, owner or shareholder or
otherwise on behalf of any other person, firm or corporation, directly or
indirectly solicit or attempt to solicit away from the Corporation any of its
officers or employees or offer employment to any person who, on or during the
six (6) months immediately preceding the date of such solicitation or offer, is
or was an officer or employee of the Corporation; provided, however, that a
general advertisement to which an employee of the Corporation responds shall in
no event be deemed to result in a breach of this Section 7(ii). Such agreement
by you shall not be deemed to limit in any way any other non-solicitation or
similar agreement between you and the Corporation.
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(iii) The provisions of this Section 7 shall survive the termination or
expiration of this Agreement and your employment with the Corporation and shall
be fully enforceable thereafter. If it is determined by a court of competent
jurisdiction in any state or jurisdiction that any restriction in this Section 7
is excessive in duration or scope or is unreasonable or unenforceable under the
laws of that state or jurisdiction, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to
the maximum extent permitted by the law of that state or jurisdiction.
(iv) In the event that you shall breach or threaten to breach any of the
provisions of this Section 7, in addition to and without limiting or waiving any
other remedies available to the Corporation in law or in equity, the Corporation
shall be entitled to immediate injunctive relief in any court, domestic or
foreign, having the capacity to grant such relief, to restrain such breach or
threatened breach and to enforce the provisions of this Section 7. You
acknowledge that it is impossible to measure in money the damages that the
Corporation will sustain in the event that you breach or threaten to breach the
provisions of this Section 7 and, in the event that the Corporation shall
institute any action or proceeding to enforce such provisions seeking injunctive
relief, you hereby waive and agree not to assert and shall not use as a defense
thereto the claim or defense that the Corporation has an adequate remedy at law.
The foregoing shall not prejudice the right of the Corporation to require you to
account for and pay over to the Corporation the amount of any actual damages
incurred by the Corporation as a result of such breach.
8. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach by the other
party hereto of or compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California without regard to its conflicts of law principles. All
references to sections of the Exchange Act or the Code shall be deemed also to
refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state, local or foreign law. The section headings contained in this
Agreement are for convenience only, and shall not affect the interpretation of
this Agreement.
9. Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
11. Arbitration; Dispute Resolution, Etc.
(i) Arbitration Procedure. Any disagreement, dispute, controversy or claim
arising out of or relating to this Agreement or the interpretation of this
Agreement or any arrangements relating to this Agreement or contemplated in this
Agreement or the breach, termination or invalidity thereof shall be settled by
final and binding arbitration administered by JAMS/Endispute in San Diego,
California in accordance with the then existing JAMS/Endispute Arbitration Rules
and Procedures for Employment Disputes. In the event of such an arbitration
proceeding, you and the Corporation shall select a mutually acceptable neutral
arbitrator from among the JAMS/Endispute panel of arbitrators. In the event you
and the Corporation cannot agree on an arbitrator, the Administrator of
JAMS/Endispute will appoint an arbitrator. Neither you nor the Corporation nor
the arbitrator shall disclose the existence, content, or results of any
arbitration hereunder without the prior written consent of all parties. Except
as provided herein, the Federal Arbitration Act shall govern the
<PAGE>
interpretation, enforcement and all proceedings. The arbitrator shall apply the
substantive law (and the law of remedies, if applicable) of the state of
California, or federal law, or both, as applicable, and the arbitrator is
without jurisdiction to apply any different substantive law. The arbitrator
shall have the authority to entertain a motion to dismiss and/or a motion for
summary judgment by any party and shall apply the standards governing such
motions under the Federal Rules of Civil Procedure. The arbitrator shall render
an award and a written, reasoned opinion in support thereof. Judgment upon the
award may be entered in any court having jurisdiction thereof.
(ii) Compensation During Dispute, Etc. Your compensation during any action or
proceeding brought by you pursuant to Section 11(i) involving a termination of
your employment following a Change of Control occurring on or prior to the End
Date (a "Dispute") shall be as follows: If there is a termination of your
employment with the Corporation followed by a Dispute, then, during the period
of that Dispute the Corporation shall pay you fifty percent (50%) of the amount
specified in Section 3(ii)(b) hereof, and the Corporation shall provide you with
the other benefits provided in Section 3(ii) of this Agreement, if, but only if,
you agree in writing that if the Dispute is resolved against you, you shall
promptly refund to the Corporation all payments you receive under Section
3(ii)(b) of this Agreement, as well as an amount equal to the value of all other
benefits provided to you under Section 3(ii) of this Agreement, in each case
plus interest at the rate provided in Section 1274(d) of the Code, compounded
quarterly. If the Dispute is resolved in your favor, promptly after resolution
of the Dispute the Corporation shall pay you the sum that was withheld during
the period of the Dispute plus interest at the rate provided in Section 1274(d)
of the Code, compounded quarterly.
(iii) Expenses, Legal Fees. The Corporation shall pay to you all expenses and
reasonable attorneys' fees incurred by you in connection with any Dispute
(including, without limitation, all such fees and expenses, if any, incurred in
contesting or disputing any termination of your employment or in seeking to
obtain or enforce any right or benefit provided by this Agreement, or in
connection with any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Code to any payment or benefit provided
hereunder) if you prevail on the principal material issues which are in dispute
with respect to such Dispute.
12. Indemnification; Directors' and Officers' Insurance.
(i) The Corporation shall indemnify you in the manner and to the extent (if any)
that it is obligated to do so under the bylaws of the Corporation or AMS as of
the date hereof. Such agreement by the Corporation shall not be deemed to impair
any other obligation of the Corporation respecting your indemnification
otherwise arising out of this or any other agreement or promise of the
Corporation or under any statute.
(ii) The Corporation shall furnish you with directors' and officers' liability
insurance to the same extent, if any (in terms of policy limits, terms,
conditions and exceptions) as is provided to members of the Board of Directors,
employees, and officers, as the case may be, of comparable rank to your position
(at the time of determination) within the Corporation.
13. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and, except as
otherwise expressly provided herein, supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto;
and any prior agreement of the parties hereto in respect of the subject matter
contained herein, including, without limitation, any prior change of control
agreements or severance agreements, is hereby terminated and canceled. Except as
otherwise expressly provided for herein, any of your rights hereunder shall be
in addition to any rights you may otherwise have under benefit plans or
agreements of the Corporation to which you are a party or in which you are a
participant and any Corporation sponsored employee benefit plans and stock
options plans and no provisions of this Agreement shall in any way abrogate your
rights under such other plans and agreements.
<PAGE>
If this letter sets forth our agreement on the subject matter hereof, kindly
sign and return to the Corporation the enclosed copy of this letter, which shall
then constitute our agreement on this subject.
Sincerely,
ALARIS MEDICAL, INC.
By: /s/ DAVID L. SCHLOTTERBECK
-------------------------------------
President and Chief Executive Officer
Agreed and Accepted,
this 10TH day of MAY, 2000
/s/ HAZEL M. AKER
---------------------------
Hazel M. Aker
