AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS AMENDMENT is made as of this 6TH day of November 1997
by INTERNATIONAL MUREX TECHNOLOGIES CORPORATION organized and
existing under the laws of the Province of British Columbia (the
"Company") and C. XXXXXX XXXXXX (the "Executive").
WHEREAS, the Company and the Executive previously entered
into an Employment Agreement dated July 1, 1995 (the
"Agreement"); and
WHEREAS, the Company and the Executive restated the
Agreement as of August 1, 1997;
WHEREAS, the Company and the Executive desire to amend the
terms of the Agreement;
NOW THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the Company and the Executive
agree to amend Section 4(g) of Exhibit A of the Agreement by
deleting the entire section and replacing it with the following:
"(g) If, by reason of Section 28OG of the Code, any
payment or benefit received or to be received in connection with
a Change in Control of the Company of the termination of
Executive's employment (whether payable pursuant to the terms of
these Provisions ("Contract Payments") or any other plan,
arrangement or agreement with the Company, its successors, any
person whose actions result in a Change in Control or any
corporation affiliated, or which, as a result of the completion
of the transactions causing a change in control will become
affiliated, with the Company within the meaning of Section 1504
of the Code ("Affiliate") (which payments collectively with the
Contract Payments are called the "Total Payments")) would not be
deductible, in whole or in part, by the Company, an Affiliate or
other person making such payment or providing such benefit and is
or becomes subject to the tax imposed under Section 4999 of the
Code or any similar tax that may hereafter be imposed (the
"Excise Tax"), the Executive may choose to have the Contract
Payment reduced in accordance with Paragraph (A) hereof or to
receive the Tax Reimbursement Payment described in Paragraph (B)
hereof.
(A) Executive will receive the Total Payments unless
(a) the after-tax amount that would be retained by the Executive
(after taking into account all federal, state and local income
taxes payable by the Executive and the amount of any Excise Taxes
payable by the Executive if he were to receive the Total
Payments) has a lesser after-tax value than (b) the after-tax
amount that would be retained by the Executive (after taking into
account all federal, state and local income taxes payable by the
Executive) if he were to receive the Total Payments reduced by
the minimum amount necessary to result in no portion of the Total
Payments being subject to any Excise Taxes (the "Reduced
Payments"), in which case the Executive may choose to receive
only to the Reduced Payment. If the Executive is to receive the
Reduced Payment, the Executive shall be entitled to determine
which of the Contract Payments, and the relative portions of
each, are to be reduced. For the purposes of this limitation:
(i) no portion of the Total Payments, the receipt or
enjoyment of which the Executive shall have effectively waived in
writing prior to the date of payment of the Contract Payments,
shall be taken into account;
(ii) no portion of the Total Payments shall be taken
into account which, in the opinion of tax counsel selected by the
Company's independent auditors and acceptable to the Executive,
does not constitute a "parachute payment" within the meaning of
Section 280G(b)(2) of the Code (without regard to subsection
(A)(ii) thereof);
(iii) the Contract Payments shall be reduced only to
the extent necessary so that the Total Paymcnts, other than those
referred to in clauses (i) and (ii), in their entirety constitute
reasonable compensation for services actually rendered with the
meaning of Section 280G(b)(4) of the Code, in the opinion of the
tax counsel referred to in clause (ii);
(iv) the value of any non-cash benefit or any deferred
payment or benefit included in the Total Payments shall be
determined by the Company's independent auditors (the
"Accountants")in accordance with the principles of Section
280G(d)(3) and (4) of the Code; and
(v) in the event that the Excise Tax is subsequently
determined by the Accountants to be less than the amount taken
into account hereunder in calculating the Contract Payments made,
the Company shall repay to the Executive, at the time that the
amount of such reduction in the Excise Tax is finally determined,
the portion of such prior Contract Payments that has not been
paid to the Executive and that would have been paid if such
Excise Tax had been applied in initially calculating such
Contract Payments, plus interest on the amount of such repayment
at the rate provided in Section 1274(b)(2)(B) of the Code.
(B) The Executive wi11 receive, at the time the Total
Payments are paid by the Company, a Tax Reimbursement payment (as
defined herein). The Tax Reimbursement Payment is defined as an
amount, which when added to tbe Tota1 Payments and reduced by any
Excise Tax on the Total Payments and Excise Tax on the Tax
Reimbursement Payment provided for by this Agreement shall be
equa1 to the sum of the amount of the Total Payments. For
purposes of this paragraph:
(i) no portion of the Total Payments, the receipt or
enjoyment of which the Executive shal1 have effectively waived in
writing prior to the date of payment of the Contract Payments,
shal1 be taken into account;
(ii) no portion of the Total Payments shall be taken
into account which, in the opinion of tax counsel selected by the
Company's independent auditors and acceptable to the Executive,
does not constitute a "parachute payment" within the meaning of
Section 280G(b)(2) of the Code (without regard to subsection
(A)(ii) thereof); and
(iii) the value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall
be determined by the Company's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
(iv) In the event that the Excise Tax is subsequently
determined by the Accountants to be less than the amount taken
into account hereunder in calculating the Contract Payments made,
the Company shall repay to the Executive, at the time that the
amount of such reduction in the Excise Tax is finally determined,
the portion of such prior Contract Payments that has been paid to
the Company or to federally, state or local tax authorities on
the Executive's behalf and that would not have been paid if such
Excise tax had been applied in initially calculating such
Contract Payments, plus interest on the amount of such repayment
at the rate provided in Section 1274(b)(2)(B) of the Code.
Notwithstanding the foregoing, in the event any portion of the
Contract Payment to be refunded to the Executive has been paid to
any federal, state or local tax authority, repayment thereof
shall not be required until actua1 refund or credit of such
portion has been made to the Company; and interest payable to the
Executive shall not exceed interest received or credited to the
Company by such tax authority for the period it held such
portion. The Executive and the Company shall mutually agree upon
the course of action to be pursued (and the method of allocating
the expenses thereof) if the Company's good faith claim for
refund or credit is denied.
(v) The portion of the Tax Reimbursement Payment
attributable to a Total Payment shall be paid to the Executive
within ten (10) business days following the payment of the Total
Payment. If the amount of such Tax Reimbursement Payment (or
portion thereof) cannot be finally determined on or before the
date on which payment is due, the Company shall either pay to the
Executive or withhold and deposit with the Internal Revenue
Service on behalf of the Executive, an amount estimated in good
faith by the Accountants to be the minimum amount of such Tax
Reimbursement Payment and shall pay the remainder of such Tax
Reimbursement Payment (which Tax Reimbursement Payment shall
include 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 forty-five (45) calendar days after payment
of the Total Payment. In the event that the amount of the
estimated Tax Reimbursement Payment exceeds the amount
subsequently determined to have been due, such excess sums shal1
be repaid or refunded pursuant to the provisions of Section
(g)(B)(iv) above."
Except as specifically amended hereby, the Agreement shall
remain in full force and effect as prior to this Amendment.
IN WITNESS WHEREOF, the Company and the Executive have
caused this Amendment to be executed on the day and year first
above written.
INTERNATIONAL MUREX TECHNOLOGIES,
INC.
By: ____________________
Title: ___________________
ATTEST:
By: ____________________
Title: ____________________
C. XXXXXX XXXXXX
By: /s/ C. Xxxxxx Xxxxxx
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