UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

_______________

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  April 22, 2016

AngioDynamics, Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2 (b))

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4 (c))

 

 

 

Item 5.02 – Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

As previously announced in the Form 8-K of AngioDynamics, Inc. (the “Company”) filed on April 6, 2016, the Company’s former Chief Executive Officer, Joseph M. DeVivo, left the Company effective March 31, 2016 in order to pursue other interests.  In connection with Mr. DeVivo’s departure, the Company entered into a Separation Agreement and General Release with Mr. DeVivo on April 22, 2016 (the “Agreement”).

Under the terms of the Agreement, Mr. DeVivo will receive a payment equal to his annual base salary on the terms and subject to the conditions set forth in the Agreement.  In addition, Mr. DeVivo’s unexpired but unvested performance shares, stock options and restricted stock units will continue to vest according to their terms during the twelve month period following the date of the Agreement.  Mr. DeVivo will also be entitled to payment for all accrued but unused vacation pay and to continued health benefits for a period of twelve months, subject to certain exceptions.

Mr. DeVivo has agreed to reasonably cooperate with the Company for one hundred eighty days in transitioning all pending matters and has agreed to provide a general release to the Company.  The Agreement also provides that Mr. DeVivo will abide by the terms of certain non-competition and non-solicitation provisions for a period of twelve months from the date of the Agreement.

The foregoing description of the Agreement is qualified in its entirety by the text of such agreement, a copy of which is attached hereto as Exhibit 10.1 and the terms of which are incorporated herein by this reference.

Item 9.01 – Financial Statements and Exhibits.

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	ANGIODYNAMICS, INC. (Registrant)
Date: April 27, 2016	By:	/s/ Stephen A. Trowbridge
		Stephen A. Trowbridge
		Senior Vice President and General Counsel

 

 

 

EXHIBIT INDEX

 

 

Exhibit No.		Description
10.1		Separation Agreement and General Release, dated April 22, 2016, between AngioDynamics, Inc. and Joseph M. DeVivo

 

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SEPARATION AGREEMENT AND GENERAL RELEASE

This is a Separation Agreement and General Release (“Agreement”) between AngioDynamics, Inc. (“Employer”) and Joseph M. DeVivo (“Employee”) dated April 22, 2016 (the “Effective Date”) in complete settlement of all issues concerning Employee’s employment and termination of employment with Employer.  As used in this Agreement, “Employer” shall mean AngioDynamics, Inc. and its parent(s), subsidiaries, predecessors, divisions, affiliates, successors, assigns, and all of its and their current and former directors, officers, employees, and agents (in their individual and representative capacities); “Employee” shall include Joseph M. DeVivo and his heirs, executors, administrators, and assigns.

For mutual consideration, including Employee’s right to receive certain payments and benefits under this Agreement, and the Employer’s right to be free from legal action initiated by, or on behalf of Employee, the parties agree to the following:

 

a.       Severance.  Severance payment in the amount of Six Hundred Forty Four Thousand and 00/100 Dollars, which is equal to Employee’s current regular base salary, subject to final ratification by Employer’s Compensation Committee.  This payment shall be made at regular payroll intervals and subject to applicable withholdings and deductions, commencing within thirty (30) days of the Separation Date, as follows:

 

 

group health benefits (at the coverage levels in effect immediately prior to Employee’s termination) until the earlier of (i) a period of twelve (12) months from the Separation Date, (ii) the date on which Employee accepts an offer of employment that provides similar insurance coverage, or (iii) the date Employee is no longer eligible to receive such coverage.

 

 

a.    Except as described in paragraph “9” below, Employee fully and completely releases and discharges Employer from any and all claims, actions and causes of action that Employee may have had, now has or hereafter may have against Employer up to the date of this Agreement and waives any and all claims, actions, or causes of action Employee may have had, now has or hereafter may have against Employer up to the date of this Agreement, including but not limited to any and all claims, actions or causes of action under Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York Human Rights Law, the District of Columbia Human Rights Act, Section 1981 through 1988 of Title 42 of the United States Code, the National Labor Relations Act, the Equal Pay Act, the Employee Retirement Income Security Act (“ERISA”), the Occupational Safety and Health Act, the New York Labor Law, the nondiscrimination and/or retaliation provisions of the New York

Workers’ Compensation Law, the Delaware General Corporation Law and other Delaware law, and any other federal, state or local employment or other laws and regulations, and all statutory and common law claims, including but not limited to claims of breach of express or implied contract, wrongful discharge, breach of fiduciary duty, derivative claims and/or claims on behalf of the Employer, defamation, slander, intentional and negligent infliction of emotional distress, and all claims for attorneys’ fees, costs and expenses, and any other claims arising out of or related to Employee’s employment with Employer and the termination of that employment; provided, however, that this shall not affect Employee’s entitlement to any vested accrued benefit to which he is entitled under any employee benefit plan subject to ERISA, nor does it affect any right he may have to file an unemployment benefits claim.  This release provision shall be construed to release all claims to the full extent allowed by law.  If any term or provision of this paragraph is declared unenforceable by a court or other tribunal of competent jurisdiction, it shall not adversely affect the enforceability of the remainder of this paragraph.

 

b.    Except as described in paragraph “9” below, Employee acknowledges and agrees that he has not commenced and will not commence any action or proceeding against Employer, either individually in any type of proceeding or as a member of a class, based upon acts, occurrences or events occurring prior to the signing of this Agreement.  If Employee breaches this provision and files an action or proceeding falling within its scope, he agrees to pay the costs and fees Employer incurs in defending such action or proceeding, including court costs and reasonable attorneys’ fees, and Employee acknowledges and agrees that no additional payments of severance shall be made pursuant to paragraph “2” of this Agreement.

 

c.    Nothing herein shall be deemed to release or waive Employee’s rights to (1) defense and indemnity under any certificate, bylaw, resolution or policy of Employer, (2) liability insurance coverage (such as directors’ and officers’ liability insurance), or (3) Employer’s contributions to Employee’s 401(k) that have vested to Employee as of the Separation Date.

 

d.    Employer fully and completely releases and discharges Employee from any and all claims, actions and causes of action that Employer may have had, now has or hereafter may have against Employee up to the date of this Agreement and waives any and all claims, actions, or causes of action Employer may have had, now has or hereafter may have against Employee up to the date of this Agreement; provided, however, that this release shall not apply to any claims by Employer against Employee arising from Employee’s fraud, theft, defalcation, breach of fiduciary duty, or gross misconduct about which the individual members of Employer’s Board of Directors (except for Employee) are unaware as of the Effective Date;  and provided further that Employer’s Board of Directors represents that it is not aware of any basis for any such claim at this time.  Employer’s Board of Directors has not conducted any investigation into any potential claims against Employee, and is not required by this Agreement to do so.  Except where expressly indicated otherwise, this release provision shall be construed to release all claims to the full extent allowed by law.  If any term or provision of this paragraph is declared unenforceable by a court or other tribunal of competent jurisdiction, it shall not adversely affect the enforceability of the remainder of this paragraph.

 

 

 

e.    Employer acknowledges and agrees that it has not commenced and will not commence any action or proceeding against Employee based upon acts, occurrences or events occurring prior to the signing of this Agreement, provided, however, that this section 6(e) shall not apply to any potential claims by Employer against Employee arising from Employee’s fraud, theft, defalcation, breach of fiduciary duty, or gross misconduct about which the individual members of Employer’s Board of Directors (except for Employee) are unaware as of the Effective Date.  If Employer breaches this provision and files an action or proceeding falling within its scope, it agrees to pay the reasonable costs and fees Employee incurs in defending such action or proceeding, including court costs and reasonable attorneys’ fees.

 

 

 

 

 

 

vii.         If Employee is required by law or valid court order to disclose information that is precluded by this Agreement or the August 15, 2011 Confidentiality Agreement previously executed by Employee (“Confidentiality Agreement”), a copy of which is attached as Appendix B, Employee shall utilize his best efforts to provide advance written notice to Employer to allow Employer an opportunity to contest the impending disclosure.

 

 

 

 

 

 

 

underpayment, overpayment, penalty or interest charge the taxing authority may assess against or claim is due from Employee.

Except for the Employer provided iPhone and iPad, Employee shall return the Employer provided laptop computer and other devices by April 22, 2016.   Employer agrees that Employee will retain possession of his Employer issued iPhone and iPad. Employee agrees that Employer will remove all confidential and proprietary information on the iPhone and iPad and that Employee will assume all costs associated with the operation of the iPhone and iPad beginning on April 1, 2016.

Employer acknowledges that Employee has already returned his Employer leased vehicle.

 

17.          Section 409A.  The parties intend for this Agreement either to satisfy the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and all applicable guidance promulgated thereunder (together, “Section 409A”) or to be exempt from the application of Section 409A, and this Separation Agreement shall be construed and interpreted accordingly.   

 

a.         Notwithstanding any provision in this Agreement to the contrary, any termination of employment contemplated under this Agreement shall satisfy the applicable requirements of a “separation from service” under Section 409A.

c.        To ensure satisfaction of the requirements of Section 409A(b)(3) of the Code, assets shall not be set aside, reserved in a trust or other arrangement, or otherwise restricted for purposes of the payment of amounts payable under this Separation Agreement.

 

d.        If the period during which the Employee may consider the waiver and release herein begins in one tax year of the Employee and ends in a second tax year, payment will commence or be made in the second tax year.

 

To the Employer:

Stephen Trowbridge Senior Vice President and General Counsel AngioDynamics, Inc. 14 Plaza Drive Latham, New York 12110

To Employee:	Joseph M. DeVivo 28 Sydney Hill Road

 

 

 

or to such other address as either party may designate by like notice. Any notice, consent or other communication required or permitted to be given hereunder shall be deemed to have been given on the date of mailing or personal delivery.

This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed and delivered via facsimile or PDF document shall be deemed to be an original and all of such counterparts taken together shall constitute but one and the same instrument.

This signed Agreement, together with the General Release and, the employee Confidentiality Agreement, attached as Appendix “B,” set forth the entire Agreement between the Employer and Employee and supersedes any and all prior agreements and understandings whether oral or written.  This Agreement may not be modified except by a writing signed by both parties.

 

Dated:  ______________   Subscribed and sworn to before me this 22nd day of April, 2016	/s/ Joseph M. DeVivo      Joseph M. DeVivo
____________________________________ Notary Public My Commission Expires __________ (Affix Seal)
Dated:  ______________	Employer   By:    /s/ Howard W. Donnelly

 

 

 

 

Joseph DeVivo (“Employee”), for and in consideration of the sum of ONE DOLLAR AND NO CENTS ($1.00), and other good and valuable consideration, receipt of which is hereby acknowledged,  for himself and his heirs, administrators, representatives, successors, and assigns unconditionally releases and forever discharges AngioDynamics, Inc., its parent, subsidiary and affiliated corporations, divisions, successors, predecessors and assigns, and all of their current and former officers, directors, trustees, employees, and agents, in their individual and representative capacities (hereinafter collectively referred to as the “Employer”), including but not limited to any and all claims, actions or causes of action under Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York Human Rights Law, the District of Columbia Human Rights Act, Section 1981 through 1988 of Title 42 of the United States Code, the National Labor Relations Act, the Equal Pay Act, the Employee Retirement Income Security Act (“ERISA”), the Occupational Safety and Health Act, the New York Labor Law, the Delaware General Corporation Law and other Delaware law,  the nondiscrimination and/or retaliation provisions of the New York Workers’ Compensation Law, and any other federal, state or local employment or other laws and regulations, and all statutory or common law claims, including but not limited to claims of breach of express or implied contract, wrongful discharge, breach of fiduciary duty, derivative claims and/or claims on behalf of the Employer, defamation, slander, intentional and negligent infliction of emotional distress, and all claims for attorneys’ fees, costs and expenses, and any other claims arising out of or related to Employee’s employment with Employer and the termination of that employment; provided, however, that this shall not affect Employee’s entitlement to any vested accrued benefit to which he is entitled under any employee benefit plan subject to ERISA, nor does it affect any right he may have to file an unemployment benefits claim.  This release provision shall be construed to release all claims to the full extent allowed by law.  If any term or provision of this paragraph is declared unenforceable by a court or other tribunal of competent jurisdiction, it shall not adversely affect the enforceability of the remainder of this paragraph; provided, however, that this shall not affect Employee's entitlement to any vested accrued benefit to which he is entitled under any employee benefit plan subject to ERISA or his right to enforce the terms of a certain Separation Agreement executed by Employee and Employer, dated April 22, 2016.

Employee understands that nothing in this Release prevents Employee from filing an action to enforce this Release or from filing a charge (including a challenge to the Separation Agreement) with the Equal Employment Opportunity Commission (“EEOC”), the Securities and Exchange Commission (“SEC”) or the National Labor Relations Board (“NLRB”) or participating in any investigation or proceeding conducted by the EEOC, SEC or NLRB.  However, Employee understands and agrees that Employee is waiving any entitlement or right to recover any monetary or other personal relief as a result of any such EEOC, NLRB or SEC proceeding.  Employee further agrees to turn over to Employer any such monetary award arising from any SEC or other government proceeding (except for any EEOC or NLRB proceeding).  Employee is not aware of any possible claims, causes of action, violations, or other similar matters related to any statute or regulation enforced by, or within the jurisdiction of, the EEOC, SEC or NLRB at this time.

Nothing herein shall be deemed to release or waive Employee’s rights to (a) defense and indemnity under any certificate, bylaw, resolution or policy of Employer, (b) liability insurance coverage (such as directors’ and officers’ liability insurance), or (c) Employer’s contributions to Employee’s 401(k) that have vested to Employee as of the Separation Date.

IN WITNESS WHEREOF, Joseph DeVivo has signed this General Release on this 22nd day of April, 2016.

 

 

STATE OF ____________________) COUNTY OF __________________)  ss.:

/s/ Joseph M. DeVivo        Joseph M. DeVivo

On this ____ day of April, 2016, before me personally appeared Joseph M. DeVivo to me known and known to me to be the same person described in and who executed the foregoing general release, and he duly acknowledged to me that he executed the same.

______________________________

Notary Public

 

 

 

Appendix “B”

 

Copy of Confidentiality Agreement

This page intentionally blank- Agreement attached.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RSU’s Vesting

 

 

Grant Date		Grant Date Total Shares		Vest Date		Shares Vesting
8/17/2012		22,247		8/3/2016		5,562
8/6/2013		18,338		8/3/2016		4,585
12/20/2013		80,000		12/20/2017		_
7/25/2014		30,884		7/25/2016		7,721
7/22/2015		28,061		7/22/2016		7,015
						24,883

 

PSU’s Vesting*

 

Grant Date		Grant Date Total Shares		Vest Date		Shares Vesting
11/1/2013		36,676		7/11/2016		10,269
						10,269

Grant Date		Grant Date Total Shares		Exercise Price		Currently Exercisable Shares		Vest Date		Shares Vesting		Outside Vest Date
9/7/2011		400,000		$ 13.92		400,000		–		–		4/20/2017
8/17/2012		35,000		$ 10.63		26,250		8/17/2016		8,750		4/20/2017
8/6/2013		59,733		$ 11.92		29,867		8/6/2016		14,933		4/20/2017
7/25/2014		88,861		$ 14.07		22,216		7/25/2016		22,215		4/20/2017
7/22/2015		96,251		$ 15.95		–		7/22/2016		24,063		4/20/2017
						478,333				69,961

 

·	Assumes no additional payout under TSR PSU’s granted in 2013.  Any additional vesting based solely on the Company’s relative TSR ranking among the pre-defined peer group pursuant to the 3 year evaluation period would be included.

 

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