Employment Agreement

1st Amendment to Employment Agreement

2nd Amendment to Employment Agreement

3rd Amendment to Employment Agreement

4th Amendment to Employment agreement

5th Amendment to Employment Agreement

 

IRIS INTERNATIONAL, INC. (“IRIS”)

 

KEY EMPLOYEE AGREEMENT FOR

 

CESAR M. GARCIA

 

IRIS INTERNATIONAL, INC., a Delaware corporation (the “Company”) agrees with you as follows:

 

1. Position and Responsibilities.

 

1.1 The Company will employ you and you shall serve in an executive capacity as PRESIDENT AND CHIEF EXECUTIVE OFFICER, and perform the duties customarily associated with such capacity from time to time as the Company shall reasonably designate or as shall be reasonably appropriate and necessary in connection with such employment.

 

1.2 Subject to Section 4 below, you will, to the best of your ability, devote your full time and best efforts to the performance of your duties hereunder and the business and affairs of the Company. You will report to the Company’s Board of Directors.

 

1.3 You will duly, punctually and faithfully perform and observe any and all rules and regulations that the Company may now or shall hereafter establish governing the conduct of its business, except to the extent that such rules and regulations may be inconsistent with your executive position.

 

2. Term of Employment; Termination.

 

2.1 The commencement of your term as President and Chief Executive Officer shall be November 17, 2003 (your “Start Date”).

 

2.2 Unless otherwise mutually agreed in writing, this Agreement and your employment by the Company pursuant to this Agreement shall be terminated on the earliest of:

 

(a) your death, or any illness, disability or other incapacity in such a manner that you are physically rendered unable regularly to perform your duties hereunder for a period in excess of one hundred twenty (120) consecutive days or more than one hundred eighty (180) days in any consecutive twelve (12) month period;

 

(bthirty (30) days after you, for any reason, give written notice to the Company of your termination; or

 

(c) immediately if the Company, with or without cause, gives written notice to you of your termination.

 

1.


IRIS INTERNATIONAL, INC. (“IRIS”)

 

KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

 

2.3 The determination regarding whether you are physically unable regularly to perform your duties under (a) above shall be made by the Board of Directors.

 

2.4 Any notice required to be given pursuant to this Section 2 shall be given in accordance with the provisions of Section 9 hereof. The exercise of either party’s right to terminate this Agreement pursuant to subsections (b) or (c) above shall not abrogate the rights and remedies of the terminating party regarding the breach, if any, giving rise to such termination.

 

2.5 You may be terminated with or without cause. If you are terminated without cause, you will be entitled to certain severance benefits as described in this Agreement. You shall be deemed terminated for cause if, in the reasonable determination of the Company, you (a) commit an act that is fraudulent, dishonest or a material breach of the Company’s policies, including wrongful disclosure of any trade secrets or other confidential information of the Company, or material breach of Section 4 of this Agreement or any material provision of the Proprietary Information Agreement (as defined in Section 5), (b) are convicted of a felony under federal, state, or local law applicable to the Company or (c) intentionally refuse, without proper cause, to substantially perform duties after a demand for such performance has been delivered in writing by the Board of Directors, which notice shall specify the alleged instance of breach, and, shall provide you with reasonable time in which to remedy such breach.

 

3. Compensation; Benefits; and Investment Rights:

 

3.1 Effective January 1, 2004, the Company shall pay to you for the services to be rendered hereunder a basic salary at a annual rate of $250,000.00 subject to increases in accordance with the policies of the Company, as determined by its Board of Directors, in force from time to time, payable in installments in accordance with Company policy. During your employment, you shall be entitled to use of a company car. You shall also be entitled to all rights and benefits for which you shall be eligible under bonus, pension, group insurance, long-term disability, life insurance, profit-sharing or other Company benefits which may be in force from time to time and provided to you or for the Company’s executive officers generally.

 

3.2 You will be awarded a 5-year Incentive Stock Option (ISO) to purchase 150,000 shares of the Company’s Common Stock at per share price equal to the fair market value of our common stock at the close of market for the ten trading days preceding your Start Date vesting in four equal installments on the first, second, third and four anniversaries of your Start Date. The Company represents that the Board of Directors has acted upon your option grant. From time to time you will be eligible for further option awards, commensurate with other senior executive officers, based on your performance as determined by the Compensation Committee of the Board of Directors.

 

2.


IRIS INTERNATIONAL, INC. (“IRIS”)

 

KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

 

3.4 You shall be eligible to participate in the Company’s ESSP Program as in effect from time to time.

 

3.5 For the calendar years commencing January 1, 2004, you shall be eligible for an annual bonus to be determined by the Compensation Committee of the Board of Directors. There will be no bonus if you resign or are terminated for cause prior to the end of a fiscal year.

 

3.6 You shall be entitled to four (4) weeks of paid vacation per year to be taken at such time as will not interfere with the performance of your duties. You will also be entitled to illness days during the term of this Agreement consistent with the Company’s standard practice for its employees generally as in effect from time to time.

 

3.7 In the event you are terminated without cause at any time, pursuant to Section 2.2(c) hereof, the Company shall pay you the equivalent of eighteen (18) months base salary following such termination. At the choice of the Company, payment may be in the form of a lump sum payment or through regular payroll payments over the eighteen (18) month period. If payment is made through regular payroll, the Company shall maintain your medical and dental insurance benefits in accordance with those in effect for employees at the time of such termination. Termination without cause shall include “constructive termination” in the event of a significant diminution of your fundamental responsibilities as described in Section 1 above.

 

4. Other Activities During Employment.

 

4.1 You shall be appointed to the Board of Directors effective on your Start Date, and you agree to serve as a Director during your employment as Chief Executive Officer. All Directors serve for fixed terms and must be nominated for re-election by the Nominating Committee. Employee Directors do not receive additional compensation for service on the Board of Directors. You will resign from the Board of Directors immediately if you cease to be the Chief Executive Officer for any reason unless requested otherwise by the Board of Directors. You may decline a request to continue serving on the Board if you are no longer an employee.

 

4.2 Except with the prior written consent of the Company’s Board of Directors, you will not during the term of this Agreement undertake or engage in any other employment, occupation or business enterprise, other than ones in which you are a passive investor in non-competitive businesses. You may engage in civic and not-for-profit activities so long as such activities do not materially interfere with the performance of your duties hereunder.

 

4.3 Except as permitted by Section 4.3, you will not acquire, assume or participate in, directly or indirectly, any position, investment or interest known by

 

3.


IRIS INTERNATIONAL, INC. (“IRIS”)

 

KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

 

you to be adverse or antagonistic to, or competitive with, the Company, its business or prospects, financial or otherwise.

 

4.4 During the term of your employment by the Company (except on behalf of the Company), you will not directly or indirectly, whether as an officer, director, stockholder, partner, proprietor, associate, representative, consultant, or in any capacity whatsoever engage in, become financially interested in, be employed by or have any business connection with any other person, corporation, firm, partnership or other entity whatsoever which were known by you to directly or indirectly compete with the Company, throughout the world, in any line of business engaged in (or planned to be engaged in) by the Company; provided, however, that anything above to the contrary notwithstanding, you may own, as a passive investor, securities of any competitor corporation, so long as your direct holdings in any one such corporation shall not in the aggregate constitute more than 1% of the publicly-traded voting stock of such corporation.

 

5. Proprietary Information And Inventions. You agree to sign and be bound by the provisions of the Company’s standard Employee Acknowledgement Form (the “Proprietary Information Agreement”).

 

6. Remedies. Your duties under the Proprietary Information Agreement shall survive termination of your employment with the Company. You acknowledge that a remedy at law for any breach or threatened breach by you of the provisions of the Proprietary Information Agreement would be inadequate and you therefore agree that the Company shall be entitled to injunctive relief in case of any such breach or threatened breach.

 

7. Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned by the Company or by you.

 

8. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.

 

9. Notices. Any notice which the Company is required or may desire to give you shall be given by personal delivery or registered or certified mail, return receipt requested, addressed to you at the address of record with the Company, or at such other place as you may from time to time designate in writing. Any notice, which you are required or may desire to give to the Company hereunder, shall be

 

4.


IRIS INTERNATIONAL, INC. (“IRIS”)

 

KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

 

given by personal delivery or by registered or certified mail, return receipt requested, addressed to the Company at its principal office, or at such other office as the Company may from time to time designate in writing. The date of personal delivery or the date of mailing any such notice shall be deemed to be the date of delivery thereof.

 

10. Waiver. If either party should waive any breach of any provisions of this Agreement, he or it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement.

 

11. Complete Agreement; Amendments. The foregoing, together with the Proprietary Information Agreement and Addendum 1, is the entire agreement of the parties with respect to the subject matter hereof and thereof and may not be amended, supplemented, canceled or discharged except by written instrument executed by both parties hereto.

 

12. Headings. The headings of the sections hereof are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.

 

13. Choice of Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by the law of the State of California. IN WITNESS WHEREOF, the parties have executed this Key Employee Agreement on the day and year written below.

 

 

 

 

IRIS INTERNATIONAL, INC.

 

 

By:

 

/s/ John A. O’Malley

 

 


 

 

John A. O’Malley, Chairman

 

Date: February 13, 2004

 

 

Accepted and agreed this

13th day of February 2004

 

/s/ César M. García


César M. García

 

5.

 

 

 

 

 

Exhibit 10.9(b)

IRIS INTERNATIONAL, INC. (“IRIS”)

FIRST AMENDMENT

TO

KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

IRIS INTERNATIONAL, INC., a Delaware corporation (the “Company”) agrees with you to amend the Key Employee Agreement for Cesar M. Garcia (the “Agreement”) as follows, effective as of December 21, 2006:

1. Section 3.7 of the Agreement is deleted in its entirety and replaced by the following:

3.7 In the event that you are terminated without cause at any time, pursuant to Section 2.2(c) hereof, the Company shall pay you the following: (a) an amount that does not exceed two times the maximum amount that may be taken into account under a qualified plan pursuant to section 401(a)(17) of the Internal Revenue Code (the “Code”) for the year in which such termination occurs; and (b) an amount that is the difference between eighteen months of base salary (based on the monthly rate of base salary in effect immediately prior to such termination) and the amount determined under subsection (a), above; provided, however, that in no event shall the sum of the amounts computed under subsections (a) and (b), above, exceed eighteen months of base salary (based on the monthly rate of base salary in effect immediately prior to such termination). At the choice of the Company, payment of the amount computed under subsection (a) may be made in the form of a lump sum payment within ten (10) days of the termination or through regular payroll payments in equal amounts for a period that begins in the month of termination and ends no later than eighteen (18) months after the month of termination, and payment of the amount computed under subsection (b) may be made in the form of a lump sum payment within ten (10) days of the termination or through regular payroll payments in equal amounts for a period that begins in the month of termination and ends no later than the 15th day of the third month of the calendar year following the year in which you are terminated. If the amount computed under subsection (a) or (b) is made through regular payroll payments, the Company shall maintain your medical and dental insurance benefits in accordance with those in effect for employees at the time of such termination, but only for the longer of the two periods during which such payments are to be made through regular payroll. Termination without cause shall include “constructive termination” in the event of a significant diminution of your fundamental responsibilities as described in Section 1 above; provided, however, that in the event the Company agrees that a constructive termination has occurred under the provisions of this Agreement, the amounts determined under subsection (a) and (b) above, shall be paid in their entirety no later than the 15th day of the third month of the calendar year following the year in which the Company agrees that such constructive termination has occurred.


2. Section 11 of the Agreement is amended by adding the following to the end of such section:

The parties acknowledge that the provisions of Section 3.7 as hereby amended are based on the parties’ understanding of the relevant provisions of proposed regulations issued under section 409A of the Code. In the event that the final regulations address the provisions of Section 3.7 in a manner that could require that the amounts described in Section 3.7 be included in your gross income at a time prior to the time of actual payment of amounts pursuant to Section 3.7, and be subject to the additional tax and interest described in section 409A, then the parties agree that as soon as possible after review of such final regulations and in any event prior to the effective date of such regulations, the provisions of Section 3.7 shall be amended in a manner consistent with such final regulations and to the extent possible, consistent with the intent of Section 3.7, so that the amounts described in Section 3.7 will be included in your gross income at the time of actual payment and will not be included in your gross income and be subject to the additional tax and interest that would be required by Section 409A prior to such actual payment absent any such amendment.

3. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.

 

 

 

 

IRIS INTERNATIONAL, INC.

 

 

By:

 

 

 

 

Richard H. Williams, Chairman

 

 

By:

 

 

 

 

Dr. Richard Nadeau, Chairman

 

 

of the Compensation Committee

 

Date: December 21, 2006

 

 

Accepted and agreed this

21st day of December, 2006.

 

 

Cesar M. Garcia

 

Page 2

Top of the Document

                                                                    EXHIBIT 10.1

                        IRIS INTERNATIONAL, INC. ("IRIS")

                                SECOND AMENDMENT

                                       TO

                   KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

         IRIS INTERNATIONAL, INC., a Delaware corporation (the "COMPANY") agrees

with you to amend the Key Employee  Agreement for Cesar M. Garcia, as amended by

that  certain  First  Amendment  to Key  Employee  Agreement  (as  amended,  the

"AGREEMENT") as follows, effective as of November 14, 2007:

 

         1. Section 3.7 of the Agreement is deleted in its entirety and replaced

by the following:

                  "3.7 In the event that (i) you are terminated without cause at

any time,  pursuant to Section 2.2(c) hereof and (ii) you deliver to the Company

a signed settlement agreement and general release in the form attached hereto as

Exhibit  A (the  "Release")  and  satisfy  all  conditions  to make the  Release

effective,  the Company shall pay you the following: (a) an amount that does not

exceed  two times the  maximum  amount  that may be taken into  account  under a

qualified plan pursuant to section  401(a)(17) of the Internal Revenue Code (the

"Code") for the year in which such termination occurs; and (b) an amount that is

the difference between eighteen months of base salary (based on the monthly rate

of base salary in effect  immediately  prior to such termination) and the amount

determined  under  subsection (a), above;  provided,  however,  that in no event

shall the sum of the amounts  computed  under  subsections  (a) and (b),  above,

exceed  eighteen months of base salary (based on the monthly rate of base salary

in effect immediately prior to such termination).  At the choice of the Company,

payment of the amount computed under subsection (a) may be made in the form of a

lump sum  payment  within ten (10) days of the  termination  or through  regular

payroll  payments  in equal  amounts  for a period  that  begins in the month of

termination  and ends no later  than  eighteen  (18)  months  after the month of

termination, and payment of the amount computed under subsection (b) may be made

in the form of a lump sum  payment  within ten (10) days of the  termination  or

through  regular  payroll  payments in equal amounts for a period that begins in

the month of termination  and ends no later than the 15th day of the third month

of the calendar year following the year in which you are terminated. The parties

intend that the  compensation  payable pursuant to subsection (b) above shall be

treated as a  short-term  deferral  as that term is used in section  409A of the

Code and the regulations promulgated thereunder (collectively,  "SECTION 409A").

The parties intend that each of the payments payable pursuant to (a) above shall

be treated as a separate  payment for purposes of section 409A and excluded from

the  definition  of  "deferred   compensation"   pursuant  to  the   regulations

promulgated  thereunder  regarding  separation  pay payable upon an  involuntary

separation from service.  If the amount computed under  subsection (a) or (b) is

made through regular payroll  payments,  the Company shall maintain your medical

and dental  insurance  benefits in accordance with those in effect for employees

at the time of such  termination,  but only for the  longer  of the two  periods

during which such payments are to be made through regular  payroll.  Termination

without cause shall  include  "constructive  termination"  in the event of (i) a

material  diminution of your authority,  duties or responsibilities as described

in SECTION 1 above, (ii) a material breach of this Agreement by the Company,  or

(iii) the  termination  by you of your  employment  with the Company at any time

within 30 days  following the  relocation  of your primary  office to a location

more than 60 miles from your current office in Chatsworth,  California; provided

that  before any  constructive  termination  occurs,  you first give the Company

notice  of the event or other  circumstances  giving  rise to such  constructive

termination  within 90 days of the occurrence thereof and afford the Company the

right to cure the event or other circumstances  giving rise to such constructive

termination  for a period of 30 days  following  the  Company's  receipt of such

notice."

 

         2. Section 11 of the  Agreement is deleted in its entirety and replaced

by the following:

 

                  "11. COMPLETE AGREEMENT;  AMENDMENTS. The foregoing,  together

with  the  Proprietary  Information  Agreement  and  Addendum  1, is the  entire

agreement of the parties with respect to the subject  matter  hereof and thereof

and may not be amended,  supplemented,  canceled or discharged except by written

instrument executed by both parties hereto."

 

         3. The  Agreement  is  amended  by  adding a new  Exhibit A in the form

attached hereto as Exhibit A.

 

         4. This agreement may be executed in any number of  counterparts,  each

of which shall be deemed to be an original  and all of which  together  shall be

deemed to be one and the same instrument.

 

                                IRIS INTERNATIONAL, INC.

 

 

                                By:  /s/ Richard H. Williams

                                     ------------------------------

                                     Richard H. Williams, Chairman

 

 

                                By:  /s/ Dr. Richard Nadeau

                                     ------------------------------

                                     Dr. Richard Nadeau, Chairman

                                     of the Compensation Committee

 

                                Date:  November 14, 2007

 

 

Accepted and agreed this

14th day of November, 2007.

 

 

/s/ Cesar M. Garcia

-----------------------------

Cesar M. Garcia

 

 

                                       2

<PAGE>

 

 

                                    EXHIBIT A

                                [IRIS LETTERHEAD]

                                     RELEASE

[DATE]

EMPLOYEE NAME

ADDRESS

 

         RE:      SEPARATION TERMS AND GENERAL RELEASE AGREEMENT

 

Dear [NAME]:

 

This letter  confirms the terms of your  separation  from the employment of IRIS

International,  Inc. and  consideration  in exchange for your waiver and general

release  of  claims  in  favor of IRIS  International,  Inc.  and its  officers,

directors,   employees,  agents,   representatives,   subsidiaries,   divisions,

affiliated companies,  successors,  and assigns (collectively,  the "COMPANY" or

"IRIS").

 

         1.  TERMINATION  DATE.  Your  employment  with  the  Company  will  end

effective   _____________  (the  "TERMINATION   DATE").   Between  now  and  the

Termination  Date, you should assist with any  transition-related  activities as

directed by the employee to whom you directly report.

 

         2.  ACKNOWLEDGMENT  OF PAYMENT OF WAGES. On or before execution of this

release,  we delivered to you a final  paycheck  that  includes  payment for all

accrued wages, salary, accrued and unused vacation time,  reimbursable expenses,

and any  similar  payments  due and  owing  to you from  the  Company  as of the

Termination  Date  (collectively  referred to as  "WAGES").  You are entitled to

these Wages  regardless  of whether you sign this  Separation  Terms and General

Release Agreement (the "AGREEMENT").

 

         3.  CONSIDERATION  FOR  RELEASE.  In  consideration  of the  waiver and

release of claims set forth in  Paragraphs  7 and 8 below,  and in exchange  for

your  signing  this  Agreement,  the  Company  agrees  to  provide  you with the

post-termination payments (the "SEVERANCE PAYMENTS") described in Section 3.7 of

that  certain IRIS  International,  Inc.  Key  Employee  Agreement  for Cesar M.

Garcia, as amended to date (the "IRIS OFFER LETTER"). The Severance Payments are

in addition to any amounts owed to you by the Company. You acknowledge and agree

that you are not  otherwise  entitled to receive  the  Severance  Payments.  You

understand  that if you do not sign the  Agreement,  or if you revoke the signed

Agreement as described in Paragraph 19 below (if applicable), the Company has no

obligation to provide you with the Severance Payments.

 

         4. COBRA CONTINUATION  COVERAGE.  Your Company provided health coverage

will end on your  Termination  Date.  If you are eligible  for, and timely elect

COBRA  continuation,  you may continue health coverage pursuant to the terms and

conditions of COBRA at your own expense.  Our Human  Resources  Department  will

contact you shortly  after your  Termination  Date.  All other  insured  benefit

coverage  (e.g.,  life  insurance,  disability  insurance) will also end on your

Termination Date.

 

         5. RETURN OF COMPANY PROPERTY. By signing below, you represent that you

have returned all the Company  property and data of any type whatsoever that was

in your possession or control.

 

         6. CONFIDENTIAL INFORMATION. You hereby acknowledge that as a result of

your  employment  with  the  Company  you  have  had  access  to  the  Company's

confidential information.  You acknowledge your continuing obligations under the

Employee  Confidentiality  Agreement you have previously executed, and you agree

you will hold all such confidential information in strictest confidence and that

you may not make any use of such confidential  information.  You further confirm

that you have  delivered  to the  Company all  documents  and data of any nature

containing or pertaining to such Confidential  Information and that you have not

taken with you any such documents or data or any copies thereof.

 

         7. GENERAL RELEASE AND WAIVER OF CLAIMS.

 

                  7.1. The payments and  agreements  set forth in this Agreement

         fully  satisfy  any and all accrued  salary,  vacation  pay,  bonus and

         commission pay, stock-based compensation,  profit sharing,  termination

         benefits or other  compensation  to which you may be entitled by virtue

         of your employment with the Company or your  termination of employment.

         You  acknowledge  that you have no claims and have not filed any claims

         against the Company based on your  employment with or the separation of

         your employment with the Company.

 

                  7.2.  To the  fullest  extent  permitted  by law,  you  hereby

         release and forever discharge the Company, its successors, subsidiaries

         and affiliates, directors,  shareholders,  current and former officers,

         agents  and  employees  (all of whom are  collectively  referred  to as

         "RELEASEES")  from any and all  existing  claims,  demands,  causes  of

         action,  damages and liabilities,  known or unknown, that you ever had,

         now have or may claim to have had arising out of or relating in any way

         to your  employment  or  separation  from  employment  with the Company

         including,  without  limitation,  claims based on any oral,  written or

         implied employment agreement,  claims for wages, bonuses,  commissions,

         stock-based  compensation,  expense reimbursement,  and any claims that

         the terms of your employment with the Company,  or the circumstances of

         your  separation,  were  wrongful,  in breach of any  obligation of the

         Company or in violation of any of your rights,  contractual,  statutory

         or  otherwise.  Each of the  Releasees  is intended to be a third party

         beneficiary  of the  General  Release and Waiver of Claims set forth in

         this Paragraph 7.

 

                           (a) RELEASE OF STATUTORY AND COMMON LAW CLAIMS.  Such

                  rights include,  but are not limited to, your rights under the

                  following federal and state statutes:  the Employee Retirement

                  Income Security Act (ERISA) (regarding employee benefits); the

                  Occupational  Safety  and  Health Act  (safety  matters);  the

                  Family and Medical  Leave Act of 1993;  the Worker  Adjustment

                  and Retraining  Act ("WARN")  (notification  requirements  for

                  employers  who are  curtailing  or closing an  operation)  and

                  common law; tort; wrongful discharge;  public policy; workers'

                  compensation    retaliation;    tortious   interference   with

                  contractual  relations,  misrepresentation,   fraud,  loss  of

                  consortium;   slander,  libel,   defamation,   intentional  or

                  negligent infliction of emotional distress;  claims for wages,

                  bonuses,  commissions,   stock-based  compensation  or  fringe

                  benefits;  vacation  pay; sick pay;  insurance  reimbursement,

                  medical expenses,  and the like.

                           (b) RELEASE OF DISCRIMINATION  CLAIMS. You understand

                  that various federal,  state and local laws prohibit age, sex,

                  race, disability, benefits, pension, health and other forms of

                  discrimination,  harassment  and  retaliation,  and that these

                  laws  can  be  enforced  through  the  U.S.  Equal  Employment

                  Opportunity  Commission,  the National Labor Relations  Board,

                  the Department of Labor,  and similar state and local agencies

                  and  federal  and state  courts.  You  understand  that if you

                  believe your  treatment by the Company  violated any laws, you

                  have the right to consult  with these  agencies  and to file a

                  charge with them.  Instead,  you have decided  voluntarily  to

                  enter into this  Agreement,  release  the claims and waive the

                  right  to  recover  any  amounts  to which  you may have  been

                  entitled  under such laws,  including  but not limited to, any

                  claims   you  may  have   based  on  age  or  under   the  Age

                  Discrimination  in  Employment  Act of 1967  (ADEA;  29 U.S.C.

                  Section  621  et.  seq.)  (age);  the  Older  Workers  Benefit

                  Protection Act ("OWBPA") (age);  Title VII of the Civil Rights

                  Act of 1964 (race, color,  religion,  national origin or sex);

                  the 1991 Civil Rights Act; the Vocational  Rehabilitation  Act

                  of 1973  (disability);  The Americans with Disabilities Act of

                  1990  (disability);  42  U.S.C.  Section  1981,  1986 and 1988

                  (race); the Equal Pay Act of 1963 (prohibits pay differentials

                  based on sex); the Immigration Reform and Control Act of 1986;

                  Executive Order 11246 (race, color,  religion, sex or national

                  origin);  Executive  Order 11141  (age);  Vietnam Era Veterans

                  Readjustment  Assistance Act of 1974 (Vietnam era veterans and

                  disabled  veterans);  and California  state statutes and local

                  laws of similar effect.

 

                  7.3.  Releasees  and you do not intend to  release  claims (i)

         which  you may not  release  as a  matter  of law  (including,  but not

         limited to,  indemnification  claims under  applicable  law);  (ii) for

         unemployment,  state  disability  and/or  paid family  leave  insurance

         benefits  pursuant to the terms of applicable  state law; (iii) for any

         benefit  entitlements  that  are  vested  as of  the  Termination  Date

         pursuant to the terms of a  Company-sponsored  benefit plan governed by

         the  federal  law known as "ERISA";  and (iv) for vested  stock  and/or

         vested  option shares  pursuant to the written terms and  conditions of

         your existing stock and stock option grants and agreements  existing as

         of the  Termination  Date. To the fullest extent  permitted by law, any

         dispute regarding the scope of this general release shall be determined

         by an arbitrator under the procedures set forth in paragraph 12.

 

         8.  WAIVER OF UNKNOWN  CLAIMS.  You  expressly  waive any  benefits  of

Section 1542 of the Civil Code of the State of California (and any other laws of

similar effect), which provides:

 

         "A GENERAL  RELEASE DOES NOT EXTEND TO CLAIMS  WHICH THE CREDITOR  DOES

         NOT  KNOW OR  SUSPECT  TO  EXIST  IN HIS OR HER  FAVOR  AT THE  TIME OF

         EXECUTING  THE  RELEASE,  WHICH  IF  KNOWN  BY  HIM OR  HER  MUST  HAVE

         MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."

 

         9. COVENANT NOT TO SUE.

 

                  9.1. To the fullest  extent  permitted  by law, you agree that

         you will not now or at any time in the future pursue any charge, claim,

         or action of any kind, nature and character  whatsoever  against any of

         the Releasees,  or cause or knowingly permit any such charge,  claim or

         action  to be  pursued,  in any  federal,  state  or  municipal  court,

         administrative agency,  arbitral forum, or other tribunal,  arising out

         of any of the matters covered by paragraphs 7 and 8 above.

 

                  9.2.  You  further  agree  that  you will  not  pursue,  join,

         participate, encourage, or directly or indirectly assist in the pursuit

         of any legal  claims  against  the  Releasees,  whether  the claims are

         brought on your own behalf or on behalf of any other person or entity.

 

                  9.3.  Nothing in this  paragraph  shall prohibit you from: (1)

         providing  truthful  testimony  in  response  to a  subpoena  or  other

         compulsory legal process,  and/or (2) filing a charge or complaint with

         a  government   agency  such  as  the  Equal   Employment   Opportunity

         Commission,  the National  Labor  Relations  Board or applicable  state

         anti-discrimination agency.

 

         10. NON-DISPARAGEMENT.  You agree that you will not make any statement,

written  or oral,  or  engage  in any  conduct  that is or could  reasonably  be

construed to be  disparaging of the Company or its products,  services,  agents,

representatives,   directors,  officers,  shareholders,   attorneys,  employees,

vendors,  affiliates,  successors or assigns,  or any person acting by, through,

under or in concert with any of them.  Nothing in this paragraph  shall prohibit

you from  providing  truthful  testimony  in  response  to a  subpoena  or other

compulsory legal process.

 

         11. LEGAL AND EQUITABLE REMEDIES. You and the Company agree that either

party shall have the right to enforce this  Agreement and any of its  provisions

by injunction,  specific performance or other equitable relief without prejudice

to any other  rights or remedies  that either party may have at law or in equity

for breach of this Agreement.

 

         12.  ARBITRATION OF DISPUTES.  Except for claims for injunctive  relief

arising out of a breach of the Employee  Confidentiality  Agreement, you and the

Company agree to submit to mandatory  binding  arbitration  any future  disputes

between you and the Company,  including  any claim arising out of or relating to

this Agreement.  By signing below,  you and the Company waive any rights you and

the  Company  may have to trial by jury of any such  claims.  You agree that the

American  Arbitration  Association will administer any such arbitration(s) under

its  National   Rules  for  the   Resolution   of  Employment   Disputes,   with

administrative and arbitrator's fees to be borne by the Company.  The arbitrator

shall issue a written arbitration decision stating his or her essential findings

and conclusions  upon which the award is based. A party's right to review of the

decision is limited to the grounds  provided under  applicable  law. The parties

agree  that the  arbitration  award  shall be  enforceable  in any court  having

jurisdiction to enforce this Agreement.  This Agreement does not extend or waive

any statutes of  limitations  or other  provisions  of law that specify the time

within which a claim must be brought.  Notwithstanding the foregoing, each party

retains the right to seek preliminary  injunctive relief in a court of competent

jurisdiction to preserve the status quo or prevent  irreparable  injury before a

matter can be heard in arbitration.

 

         13.  ATTORNEYS'  FEES.  If any legal  action  arises or is  brought  to

enforce the terms of this Agreement,  the prevailing  party shall be entitled to

recover its reasonable attorneys' fees, costs and expenses from the other party,

in addition to any other relief to which such prevailing  party may be entitled,

except where the law  provides  otherwise.  The costs and  expenses  that may be

recovered exclude arbitration fees pursuant to paragraph 12 above.

 

         14. CONFIDENTIALITY  PROVISION.  You agree to keep the contents,  terms

and  conditions of this Agreement  confidential  and not disclose them except to

your  spouse or  domestic  partner,  attorneys,  accountant  or as  required  by

subpoena or court order.

 

         15.  MATERIALITY OF BREACH.  Any breach of the provisions  contained in

paragraphs  6 through  10 and/or  14 will be  deemed a  material  breach of this

Agreement.

 

         16. NO ADMISSION OF LIABILITY.  You agree that this Agreement is not an

admission or evidence of any wrongdoing or liability on the part of the Company,

its  representatives,   attorneys,  agents,  partners,  officers,  shareholders,

directors,  employees,   subsidiaries,   affiliates,  divisions,  successors  or

assigns.  This Agreement will be afforded the maximum protection allowable under

California  Evidence  Code  Section  1152  and/or  any  other  state or  Federal

provisions of similar effect.

 

         17.  INDEMNIFICATION.  This Release shall not apply with respect to any

claims  arising  under  your  existing  rights to  indemnification  and  defense

pursuant  to (a) the  articles  and bylaws of the Company for acts as a director

and/or officer, (b) any indemnification  agreement with IRIS, or (c) your rights

of insurance under any director and officer  liability policy in effect covering

the Company's directors and officers.

 

         18. REVIEW OF AGREEMENT.  You may not sign this Agreement prior to your

Termination  Date.  You may take up to  twenty-one  (21)  days from the date you

receive this Agreement, or until your Termination Date, whichever date is later,

to consider this  Agreement and release and, by signing  below,  affirm that you

were  advised by this letter to consult  with an attorney  before  signing  this

Agreement and were given ample  opportunity to do so. You  understand  that this

Agreement  will not become  effective  until you return  the  original  properly

signed  Agreement  to  IRIS  Human  Resources,   attention:  Director  of  Human

Resources,   at  the  Company's  principal  executive  officers  in  Chatsworth,

California,  and after expiration of the revocation period without revocation by

you.

 

         [IF  EMPLOYEE  IS OVER 40 AT THE  TIME OF  TERMINATION,  THE  FOLLOWING

SECTION 19 APPLIES:

 

         19.  REVOCATION OF AGREEMENT.  You  acknowledge and understand that you

may revoke this  Agreement by faxing a written notice of revocation to our Human

Resources   Department,   Attention   Director  of  Human   Resources  at  (818)

_______________  any time up to seven  (7) days  after  you sign it.  After  the

revocation period has passed, however, you may no longer revoke your Agreement.

 

         IF  EMPLOYEE  IS  UNDER 40 AT THE TIME OF  TERMINATION,  THE  FOLLOWING

SECTION 19 APPLIES:

 

         19. INTENTIONALLY OMITTED.]

 

         20.  ENTIRE  AGREEMENT.  This  Agreement  together  with  the  Employee

Confidentiality  Agreement that you previously  executed is the entire Agreement

between you and the Company with respect to the subject matter of this Agreement

and supersedes all prior  negotiations and agreements,  whether written or oral,

relating to this subject matter.  You acknowledge that neither the Company,  nor

its agents or attorneys, made any promise or representation, express or implied,

written or oral,  not contained in this  Agreement to induce you to execute this

Agreement.  You  acknowledge  that you have  signed  this  Agreement  knowingly,

voluntarily and without coercion, relying only on such promises, representations

and warranties as are contained in this document. You understand that you do not

waive  any  right or claim  that may arise  after  the date  this  Agreement  is

executed.

 

         21. MODIFICATION.  By signing below, you acknowledge your understanding

that this Agreement may not be altered, amended,  modified, or otherwise changed

in any respect except by another written agreement that  specifically  refers to

this Agreement, executed by the Company's authorized representatives and you.

 

         22.  GOVERNING  LAW.  This  Agreement  is  governed  by,  and  is to be

interpreted according to, the laws of the State of California.

 

         23. SAVINGS AND SEVERABILITY  CLAUSE.  Should any court,  arbitrator or

government  agency of competent  jurisdiction  declare or  determine  any of the

provisions  of this  Agreement  to be  illegal,  invalid or  unenforceable,  the

remaining  parts,  terms or provisions  shall not be affected  thereby and shall

remain legal, valid and enforceable. Further, it is the intention of the parties

to this  Agreement  that, if a court,  arbitrator or agency  concludes  that any

claim  under  paragraph  7 above may not be  released  as a matter  of law,  the

General  Release in paragraph 7 and the Waiver Of Unknown  Claims in paragraph 8

shall otherwise remain effective as to any and all other claims.

 

If this Agreement  accurately  sets forth the terms of your  separation from the

Company  and if you  voluntarily  agree to  accept  the  terms of the  severance

package  offered  please sign below no earlier  than your  Termination  Date and

return it to the Director of Human Resources.

 

                PLEASE REVIEW CAREFULLY. THIS AGREEMENT CONTAINS

                 A GENERAL RELEASE OF KNOWN AND UNKNOWN CLAIMS.

 

                                   Sincerely,

 

 

 

                                     [NAME]

 

 

REVIEWED, UNDERSTOOD AND AGREED:

 

 

By:

       ----------------------------------

       [NAME]

Date:

       ----------------------------------

 

 

                   DO NOT SIGN PRIOR TO YOUR TERMINATION DATE

 

 

 

 

EX-10.1 2 dex101.htm THIRD AMENDMENT TO KEY EMPLOYEE AGREEMENT FOR CESAR M. GARCIA

Exhibit 10.1

IRIS INTERNATIONAL, INC

THIRD AMENDMENT TO

KEY EMPLOYEE AGREEMENT

FOR

CESAR M. GARCIA

IRIS INTERNATIONAL, INC., a Delaware corporation (the “Company”), agrees with you to amend your Key Employee Agreement in effect on the date hereof (the “Agreement”) as provided below, with such amendment (the “Amendment”) to be effective as of May 14, 2010:

1. Severance Benefits. Section 3.7 of the Agreement is deleted in its entirety and replaced with the following:

“3.7(a) Except as provided in subsection (b) below, in the event that (i) your employment is terminated by the Company without cause at any time pursuant to Section 2.2(c) hereof or by you for Good Reason (as defined herein), and (ii) you deliver to the Company a signed settlement agreement and general release in the form attached hereto as Exhibit A (the “Release”) and satisfy all conditions to make the Release effective, then the Company shall pay you, at the time and in the manner specified in subsection (c) below, an amount equal to one and one-half (1.5) times your annual base salary in effect immediately prior to such termination.

(b) If a Change in Control (as defined herein) occurs and at any time within the three (3) months before or twenty-four (24) months after the effective date of the Change in Control your employment is terminated by the Company without cause pursuant to Section 2.2(c) hereof or by you for Good Reason, then, in lieu of the payments provided for in subsection (a) above and provided that you deliver to the Company a signed Release and satisfy all conditions to make the Release effective:

(i) the Company shall pay you, at the time and in the manner specified in subsection (c) below, an amount equal to two (2.0) times your annual base salary in effect immediately prior to such termination;

(ii) the Company shall pay you, at the time and in the manner specified in subsection (c) below, an amount equal to two (2.0) times your Average Cash Bonus, where “Average Cash Bonus” is equal to (A) the sum of the annual cash bonus actually paid to you for performance during the two fiscal years immediately preceding the date of your termination for which the Company has paid bonuses to executives, divided by (B) two (2). For purposes of clarity, if you did not receive a bonus during either or both of the immediately preceding two fiscal years for which the Company has paid annual cash bonuses to executives, either because you were not then employed by the Company or for any other reason, then a value of zero shall be assigned as your bonus for such fiscal year for purposes of calculating the Average Cash Bonus;

(iii) you shall be entitled to full vesting and exercisability of all unvested stock options, restricted stock, restricted stock units and all other equity compensation awards; and


(iv) you shall be entitled to continue to receive for a period of twenty-four (24) months following termination of your employment, the health and welfare benefits you were receiving as of the date of termination of your employment, at the same cost to you and your dependents (as applicable) as such health and welfare benefits cost immediately prior to such termination of employment (subject to premium increases affecting participants in such plan(s) generally); provided, that if the Company determines, in its sole discretion, that it is necessary or advisable for you to elect continuation healthcare coverage under Section 4980B of the Code and the regulations thereunder in order for the Company to provide such coverage under its healthcare plans, and the Company so notifies you, you hereby agree to make such an election; and provided further, that if the Company determines, in its sole discretion, that it is unable to continue to provide you with any other health and welfare benefits under its health and welfare plans, and the Company so notifies you, in lieu of providing you continued coverage under such plans the Company will either obtain for you comparable coverage under another plan for which you qualify or reimburse you for your cost to obtain comparable coverage directly.

(c) The Company shall make payment of the amounts specified in subsection (a) or, if applicable, clauses (i) and (ii) of subsection (b) as follows:

(i) an amount that does not exceed two times the maximum amount that may be taken into account under a qualified plan pursuant to section 401(a)(17) of the Internal Revenue Code (the “Code”) for the year in which such termination occurs, shall be made, at the Company’s option, (A) in the form of a lump sum payment within ten (10) days of the date you become entitled to receive such amounts or (B) through regular payroll payments in equal amounts for a period that begins in the month of termination and ends no later than, in the case of payments made pursuant to subsection (a), twelve (12) months after the month of termination and, in the case of payments made pursuant to subsection (b), eighteen (18) months after the month of termination; and

(ii) the positive amount, if any, that is the difference between the amounts to which you are entitled pursuant to subsection (a) or, if applicable, clauses (i) and (ii) of subjection (b) and the amount determined under clause (i) of this subsection (c), shall be made, at the Company’s option, (A) in the form of a lump sum payment within ten (10) days of the date you become entitled to receive such amounts or (B) through regular payroll payments in equal amounts for a period that begins in the month of termination and ends no later than the fifteenth (15th) day of the third (3rd) month of the calendar year following the year in which you are terminated.

The parties intend that the compensation payable pursuant to clause (ii) of this subsection (c) shall be treated as a short-term deferral as that term is used in section 409A of the Code and the regulations promulgated thereunder (collectively, “Section 409A”). The parties intend that each of the payments payable pursuant to clause (i) of this subsection (c) shall be treated as a separate payment for purposes of Section 409A and excluded from the definition of “deferred compensation” pursuant to the regulations promulgated thereunder regarding separation pay payable upon an involuntary separation from service.

 

2


(d) For purposes of this Section 3.7:

(i) “Change in Control” shall mean (A) the dissolution or liquidation of the Company, (B) approval by the stockholders of the Company of any sale, lease, exchange or other transfer (in one or a series of transactions) of all or substantially all of the assets of the Company, (C) approval by the stockholders of the Company of any merger or consolidation of the Company in which the holders of voting stock of the Company immediately before the merger or consolidation will not own thirty five percent (35%) or more of the voting stock of the continuing or surviving corporation immediately after such merger or consolidation; or (D) a change of fifty percent (50%) (rounded to the next whole person) in the membership of the Board within a twelve (12)-month period, unless the election or nomination for election by stockholders of each new director within such period was approved by the vote of a majority of the directors then still in office who were in office at the beginning of the twelve (12)-month period; and

(ii) “Good Reason” shall mean any of the following (without your express written consent and provided you provide written notice within ninety (90) days of the initial occurrence stating in reasonable detail the basis for termination, a thirty (30)-day opportunity to cure to the Company, and your actual separation from service occurs within two (2) years from said initial occurrence): (A) a material reduction in your responsibilities or duties as such responsibilities or duties exist on the date hereof, except in the event of a termination for cause, death or disability or your resignation other than for Good Reason; (B) a material reduction of your base salary as it exists on the date hereof (i.e., a reduction of your base salary unless such reduction (x) is in connection with concurrent and proportional reductions in the salaries of other members of management of the Company, which reductions have been approved by the Board, and (y) reduces your base salary to no less than 80% of your base salary immediately before such reduction); or (C) any material relocation by the Company of your place of employment that would increase your one-way commute to the place of employment by more than fifty (50) miles when compared to your commute immediately prior to the relocation.

(e) Notwithstanding any provision of this Agreement to the contrary, if the Company determines, based upon the advice of the tax advisors for the Company, that part or all of the consideration, compensation or benefits to be paid to you pursuant to this Agreement constitute “parachute payments” under Section 280G(b)(2) of the Code, then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to you under any other plan, arrangement or agreement which constitute “parachute payments” (collectively, the “Parachute Amount”) exceeds 2.99 times your “base amount,” as defined in Section 280G(b)(3) of the Code (the “Base Amount”), the amounts constituting “parachute payments” which would otherwise be payable to you or for your benefit shall be reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Base Amount (the “Reduced Amount”);providedhowever, that the Company shall pay to you the Parachute Amount without reduction if the Company determines that payment of the Parachute Amount would generate more after-tax income to you than the Reduced Amount. In the event of a reduction of the payments that would otherwise be paid to you, then the Company may elect which and how much of any particular entitlement

 

3


shall be eliminated or reduced and shall notify you promptly of such election; providedhowever, that the aggregate reduction shall be no more than as set forth in the preceding sentence of this clause (e). Within ten (10) days following such election, the Company shall pay you such amounts as are then due pursuant to this Agreement and shall pay you in the future such amounts as become due pursuant to this Agreement. As a result of the uncertainty in the application of Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made (“Overpayment”) or that additional payments which are not made by the Company pursuant to this clause (e) should have been made (“Underpayment”). In the event of a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations or tax law, that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to you that you shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. In the event of a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations or tax law pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company to you or for your benefit, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.”

2. Section 409A of the Internal Revenue Code – General Provisions.

(a) It is the intention of the Company and you that the Agreement shall comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”). All payments under the Agreement are intended to be excluded from the requirements of Section 409A or be payable on a fixed date or schedule under Section 409A. All payments made under the Agreement shall be strictly paid in accordance with the terms of the Agreement. To the extent that the Agreement is subject to Section 409A, notwithstanding the other provisions hereof, all provisions herein, or incorporated by reference, shall be construed and interpreted to comply with Section 409A. Each payment of compensation under the Agreement shall be treated as a separate payment of compensation for purposes of Section 409A.

(b) Any discretionary bonuses that you may be awarded by the Company shall be paid no later than the fifteenth (15 th) day of the third (3rd) month following the year in which the services were rendered with respect to which the discretionary bonus has been determined.

(c) Any reimbursements or in-kind benefits provided under the Agreement that are subject to Section 409A shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in the Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

4


(d) Notwithstanding anything to the contrary herein, (i) if at the time of your “separation from service” with the Company you are a “specified employee” (as such terms are defined in Section 409A and any regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) until the date that is six months and one day following your separation from service with the Company (or the earliest date that is permitted under Section 409A).

(e) Notwithstanding anything to the contrary in the Agreement, the Company shall not make any deductions for money or property that you owe to the Company, or offset or otherwise reduce any sums that may be due or become payable to or for your account, from amounts that constitute “deferred compensation” for purposes of Section 409A.

(f) Your right to any “deferred compensation,” as defined under Section 409A, shall not be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, garnishment by creditors, or borrowing, to the extent necessary to avoid tax, penalties and/or interest under Section 409A.

3. Miscellaneous. Except as expressly modified hereby, all other terms and provisions of the Agreement shall remain in full force and effect and are incorporated herein by this reference; providedhowever, to the extent of any inconsistency between the provisions of the Agreement and the provisions of this Amendment, the provisions of this Amendment shall control. All references in the Agreement to “Agreement”, “hereunder”, “hereof”, or words of like import referring to the Agreement shall mean and be a reference to the Agreement as and to the extent it is amended by this Amendment. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original Amendment, but all of which, taken together, shall constitute one and the same Amendment, binding on the parties hereto. The signature of any party to any counterpart hereof shall be deemed a signature to, and may be appended to, any other counterpart hereof. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS, AS CALIFORNIA LAWS ARE APPLIED TO CONTRACTS ENTERED INTO AND PERFORMED IN SUCH STATE.

 

5


IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as of the date first written above.

 

IRIS INTERNATIONAL, INC.

By:

 

 

Name:

 

Stephen E. Wasserman

Its:

 

Chairman, Compensation Committee of the Board of Directors

Dated:

 

August     , 2010

 

ACCEPTED AND AGREED TO:

 

César M. García

Dated: August     , 2010

 

6

 

 

 

 

EX-10.1 2 c15164exv10w1.htm EXHIBIT 10.1

Exhibit 10.1

IRIS INTERNATIONAL, INC

FOURTH AMENDMENT TO
KEY EMPLOYEE AGREEMENT
FOR
CESAR M. GARCIA

IRIS INTERNATIONAL, INC., a Delaware corporation (the “Company”), agrees with you to amend your Key Employee Agreement in effect on the date hereof (the “Agreement”) as provided below, with such amendment (the “Amendment”) to be effective as of March 30, 2011:

1. Severance Benefits. Section 3.7(a) of the Agreement is deleted in its entirety and replaced with the following:

“Except as provided in subsection (b) below, in the event that (i) your employment is terminated by the Company without cause at any time pursuant to Section 2.2(c) hereof or by you for Good Reason (as defined herein), and (ii) you deliver to the Company on or before the thirtieth (30th) day following the date your employment is terminated a signed settlement agreement and general release in the form attached hereto as Exhibit A (the “Release”) and (iii) you satisfy all conditions to make the Release effective, then the Company shall pay you, at the time and in the manner specified in subsection (c) below, an amount equal to one and one-half (1.5) times your annual base salary in effect immediately prior to such termination.”

2. Miscellaneous. Except as expressly modified hereby, all other terms and provisions of the Agreement shall remain in full force and effect and are incorporated herein by this reference; provided, however, to the extent of any inconsistency between the provisions of the Agreement and the provisions of this Amendment, the provisions of this Amendment shall control. All references in the Agreement to “Agreement”, “hereunder”, “hereof”, or words of like import referring to the Agreement shall mean and be a reference to the Agreement as and to the extent it is amended by this Amendment. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original Amendment, but all of which, taken together, shall constitute one and the same Amendment, binding on the parties hereto. The signature of any party to any counterpart hereof shall be deemed a signature to, and may be appended to, any other counterpart hereof. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS, AS CALIFORNIA LAWS ARE APPLIED TO CONTRACTS ENTERED INTO AND PERFORMED IN SUCH STATE.

 

 


 

IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as of the date first written above.

 

 

 

 

 

 

IRIS INTERNATIONAL, INC.
 

 

 

By:  

/s/ Stephen E. Wasserman  

 

 

Name:  

Stephen E. Wasserman 

 

 

Its:  

Chairman, Compensation Committee
of the Board of Directors 

 

 

Dated: 

March __, 2011 

 

 

 

 

 

 

 

 

ACCEPTED AND AGREED TO:
 

 

 

/s/ César M. García  

 

 

César M. García 

 

 

Dated: March 30, 2011 

 

 

 

 

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EX-10.1 2 d311655dex101.htm EX-10.1

Exhibit 10.1

IRIS INTERNATIONAL, INC

FIFTH AMENDMENT TO

KEY EMPLOYEE AGREEMENT

FOR

CESAR M. GARCIA

IRIS INTERNATIONAL, INC., a Delaware corporation (the “Company”), agrees with you to amend your Key Employee Agreement in effect on the date hereof (the “Agreement”), as provided below, with such amendment (the “Amendment”) to be effective as of February 29, 2012:

1. Severance Benefits. Section 3.7(b)(ii) of the Agreement is deleted in its entirety and replaced with the following:

“(ii) the Company shall pay you, at the time and in the manner specified in subsection (c) below, an amount equal to two (2.0) times your Target Cash Bonus, where “Target Cash Bonus” is equal to the target cash bonus award that you are eligible to receive under the Company’s Management Incentive Bonus Plan (or any successor thereto) for the year in which your termination occurs or, if your target cash bonus has not been established for the fiscal year in which your termination occurs, the last target cash bonus established for you.

2. Change of Control. Section 3.7(d)(i) is deleted in its entirety and replaced with the following

“(i) “Change in Control” shall mean (A) the dissolution or liquidation of the Company, (B) consummation of any sale, lease, exchange or other transfer (in one or a series of transactions) of all or substantially all of the assets of the Company, (C) consummation of any merger or consolidation of the Company in which the holders of voting stock of the Company immediately before the merger or consolidation will not own thirty five percent (35%) or more of the voting stock of the continuing or surviving corporation immediately after such merger or consolidation; or (D) a change of fifty percent (50%) (rounded to the next whole person) in the membership of the Board within a twelve (12)-month period, unless the election or nomination for election by stockholders of each new director within such period was approved by the vote of a majority of the directors then still in office who were in office at the beginning of the twelve (12)-month period

3. Miscellaneous. Except as expressly modified hereby, all other terms and provisions of the Agreement shall remain in full force and effect and are incorporated herein by this reference; providedhowever, to the extent of any inconsistency between the provisions of the Agreement and the provisions of this Amendment, the provisions of this Amendment shall control. All references in the Agreement to “Agreement”, “hereunder”, “hereof”, or words of like import referring to the Agreement shall mean and be a reference to the Agreement as and to the extent it is amended by this Amendment. This Amendment may be executed in multiple


counterparts, each of which shall be deemed an original Amendment, but all of which, taken together, shall constitute one and the same Amendment, binding on the parties hereto. The signature of any party to any counterpart hereof shall be deemed a signature to, and may be appended to, any other counterpart hereof. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS, AS CALIFORNIA LAWS ARE APPLIED TO CONTRACTS ENTERED INTO AND PERFORMED IN SUCH STATE.

IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as of the date first written above.

 

IRIS INTERNATIONAL, INC.

By:

 

/s/ Stephen E. Wasserman

Name:

 

Stephen E. Wasserman

Its:

 

Chairman, Compensation Committee

of the Board of Directors

Dated:

 

February 28, 2012

 

ACCEPTED AND AGREED TO:

/s/ César M. García

César M. García

Dated: February 29, 2012

 

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