EXHIBIT 10.2
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (this "Amendment") is made
and entered into as of April 4, 2005, by and between Xxxxxx Medical Technology,
Inc., a Delaware corporation (the "Company"), and Xxxxxxxx X. Xxxxxx (the
"Employee").
Introduction. The Company and the Employee are parties to an Employment
Agreement dated as of July 1, 2004 (the "Agreement"). The Company and the
Employee desire to amend certain provisions of the Agreement. Based on the
foregoing, and for and in consideration of the mutual covenants contained
herein, the parties, intending to be legally bound, hereby agree as follows:
1. Amendment of Paragraphs 4(b)-(e). Paragraphs 4(b)-(e) of the
Agreement are amended to read as follows:
"4. Compensation Matters.
* * *
(b) Incentive Bonus. During the Employee's employment
hereunder, in addition to the Base Salary, the Employee shall be
eligible to receive an annual performance incentive bonus (an
"Incentive Bonus") in accordance with the terms and subject to the
conditions of the Company's Executive Performance Incentive Plan, as
the same may be amended from time to time (the "Incentive Plan"). The
Employee's entitlement to an Incentive Bonus for any year will depend
on whether, and to what extent, certain performance goals established
for such year by the Compensation Committee of the Board (the
"Committee") have been achieved. The Incentive Bonus, if any, payable
to the Employee for any year shall not exceed two times the Base Salary
earned by the Employee in such year. The Committee shall determine in
good faith the Employee's entitlement to an Incentive Bonus based on
the achievement of such performance goals as soon as reasonably
practicable after the end of each year. The Company shall pay the
Incentive Bonus, if any, to the Employee within ten (10) days after the
Committee makes such determination and in any event not later than
March 15 of the year following the year in which the services upon
which the Incentive Bonus is based were performed.
(c) Equity Incentive Plan Awards. The Employee shall be
eligible to receive stock options and other awards granted by the
Committee from time to time under the Company's Third Amended and
Restated 1999 Equity Incentive Plan, as the same may be amended from
time to time (the "Equity Plan"). Any such grant of stock options or
other awards under the Equity Plan shall be made in accordance with and
subject to the terms of the Equity Plan and any agreement pursuant to
which such stock options or other awards are granted.
(d) Fringe Benefits. The Employee shall be eligible to
receive, and to participate in programs for, such fringe benefits
(including, without limitation, medical insurance and retirement
benefits) as the Company may make available generally to its executive
officers from time to time during the term of this Agreement. The
Employee shall be responsible for making any generally applicable
employee contributions required under such fringe benefit programs.
(e) Annual Compensation Review. The Committee shall review the
Employee's compensation at least once per year and shall make any
increase to the Base Salary or award any bonus to the Employee that the
Committee, in its sole and absolute discretion, determines is merited
based upon the Employee's performance and is consistent with the
Company's compensation policies. The Company shall pay any bonus to the
Employee not later than March 15 of the year following the year in
which the services upon which the bonus in based were performed."
2. Amendment of Paragraphs 7(a)(i), 7(b) and 7(c). Paragraphs 7(a)(i),
7(b) and 7(c) of the Agreement are amended to read as follows:
"7. Term.
(a) The Employee's employment under this Agreement shall
commence on the Effective Date and shall expire on June 30, 2008.
Notwithstanding the foregoing but subject to paragraph 7(b), the
Company may, at its election, terminate the obligations of the Company
as follows:
(i) Upon 30 days' notice if the Employee becomes disabled,
meaning that as a result of any medically determinable physical or
mental impairment which can be expected to result in death or can be
expected to last for a continuous period of at least twelve (12)
months, the Employee either (A) is unable to engage in any substantial
gainful activity, or (B) receives income replacement benefits for a
period of at least three (3) months under an accident and health plan
covering employees of the Company; or
* * *
(b) (i) If this Agreement is terminated pursuant to paragraph
7(a)(i), the Company, subject to paragraph 11(c), shall provide to the
Employee with respect to a period of eighteen (18) months after the
date of termination (A) (1) the Base Salary for such period, at the
Base Salary in effect on the date of termination, minus (2) the amount
or amounts (if any) that the Employee receives during such period under
any disability insurance policy or plan maintained by the Company or
the Employee or under Social Security or similar laws, which net amount
shall be payable (after deduction of applicable payroll taxes) in
accordance with the Company's customary payroll practices in
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effect from time to time, and (B) continued coverage for such period
under the Company's then existing health benefit and life insurance
programs on the same terms that were applicable to the Employee on the
date of termination.
(ii) If this Agreement is terminated pursuant to paragraph
7(a)(ii), or if the Employee resigns, the Company, subject to paragraph
11(c), may, but shall not be obligated to, provide to the Employee, for
and in consideration of the Employee's compliance with the covenants
set forth in paragraph 11, with respect to a period of up to
twenty-four (24) months after the date of termination or resignation,
as determined by the Company in its sole and absolute discretion, the
Base Salary for such period, at the Base Salary in effect on the date
of termination or resignation, payable (after deduction of applicable
payroll taxes) in accordance with the Company's customary payroll
practices in effect from time to time and with a final payment due not
later than March 15 of the year following the year in which the
termination or resignation occurred.
(iii) If this Agreement is terminated pursuant to
paragraph 7(a)(iii), the Company, subject to paragraph 11(c), shall
provide to the Employee, for and in consideration of the Employee's
compliance with the covenants set forth in paragraph 11, with respect
to a period of not less than twelve (12) months and not more than
twenty-four (24) months after the date of termination, as determined by
the Company in its sole and absolute discretion, (A) the Base Salary
for such period, at the Base Salary in effect on the date of
termination, payable (after deduction of applicable payroll taxes) in
accordance with the Company's customary payroll practices in effect
from time to time and with a final payment due not later than March 15
of the year following the year in which the termination occurred, and
(B) continued coverage for such period under the Company's then
existing health benefit and life insurance programs on the same terms
that were applicable to the Employee on the date of termination.
(c) The Employee shall be under no obligation to mitigate any
of the costs incurred by the Company in providing post-employment pay
and benefits to the Employee under paragraph 7(b)."
3. Amendment of Paragraph 11. Paragraph 11 of the Agreement is amended
to read as follows:
"11. Covenants Not To Compete or Interfere.
(a) During the term of this Agreement and the period, if any,
with respect to which the Company provides post-employment pay and
benefits to the Employee under paragraph 7(b), the Employee shall not,
directly or indirectly (whether as an officer, director, owner,
employee, partner or other participant), engage in any Competitive
Business in any part of the world. As used herein, the term
"Competitive Business" means the manufacturing, supplying, producing,
selling, distributing, marketing, or providing for sale of any
orthopaedic product, device or instrument manufactured or sold by the
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Company or its subsidiaries or in clinical development sponsored by the
Company or its subsidiaries, in each case, as of the date of
termination of the Employee's employment.
(b) During the term of this Agreement and the period, if any,
with respect to which the Company provides post-employment pay and
benefits to the Employee under paragraph 7(b), the Employee shall not
interfere with, disrupt or attempt to interfere with or disrupt the
relationships, contractual and otherwise, between the Company and its
subsidiaries and the suppliers, employees, sales representatives,
distributors, customers, contractors, lessors and lessees of the
Company and its subsidiaries.
(c) Without limiting the rights and remedies available to the
Company, in the event of any breach by the Employee of any of the
covenants set forth in this paragraph 11:
(i) the Company's obligation to make any payment or
provide any benefits to the Employee under paragraphs 7(b) and 13 shall
cease immediately and permanently;
(ii) the Employee shall repay to the Company, within ten
(10) days after he receives written demand therefor, an amount equal to
(A) ninety percent (90%) of the payments and benefits previously
received by the Employee under paragraphs 7(b) and 13 of this
Agreement, plus (B) interest on such amount, at an annual rate equal to
the lesser of (1) 10 percent (10%) or (2) the maximum non-usurious rate
under applicable law, from the dates on which such payments and
benefits were received to the date of repayment to the Company; and
(iii) the Employee shall pay to the Company from time to
time, within ten (10) days after he receives written demand therefor,
an amount or amounts equal to the reasonable costs and expenses
(including reasonable attorneys' fees and expenses) incurred by or on
behalf of the Company in enforcing this paragraph 11(c) from and after
the date on which the Company delivers notice of such breach to the
Employee.
(d) It is the desire and intent of the parties that the
provisions of this paragraph 11 be enforced to the fullest extent
permissible under the applicable laws in each jurisdiction in which
enforcement is sought. Accordingly, if any portion of this paragraph 11
is adjudicated to be invalid or unenforceable, this paragraph 11 shall
be deemed curtailed, whether as to time or location, to the minimum
extent required for its validity under applicable law and shall be
binding and enforceable with respect to the Employee as so curtailed,
such curtailment to apply only with respect to the operation of this
paragraph 11 in the jurisdiction in which such adjudication is made. If
a court in any jurisdiction, in adjudicating the validity of this
paragraph 11, imposes any
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additional terms or restrictions with respect to this paragraph 11,
this paragraph 11 shall be deemed amended to incorporate such
additional terms or restrictions."
4. Amendment of Paragraph 12. Paragraph 12 of the Agreement is amended
to read as follows:
"12. Remedies. The Employee acknowledges and agrees that (a) a
monetary remedy for any breach of any of the covenants set forth in
paragraphs 9, 10 and 11 would be inadequate and impracticable, (b) such
a breach would cause the Company irreparable harm, and (c) the Company
shall be entitled to specific performance and to temporary, preliminary
and permanent injunctive relief without the necessity of proving actual
damages. Therefore, in addition to any other right or remedy to which
the Company may be entitled at law or in equity (including, without
limitation, the rights and remedies set forth in paragraph 11(c)), the
Company shall be entitled to enforce the covenants set forth in
paragraphs 9, 10 and 11 by a decree of specific performance and to
temporary, preliminary and permanent injunctive relief to prevent any
breach or threatened breach of any such covenants, without posting any
bond or other undertaking."
5. Amendment of Paragraph 13. Paragraph 13 of the Agreement is amended
to read as follows:
"13. Certain Change in Control.
(a) If a transaction resulting in a Change in Control (a "CIC
Transaction") occurs on or before March 31, 2007, wherein the aggregate
Market Value of the cash, securities or other property received or to
be received by the Company's stockholders (other than stockholders
exercising their appraisal rights, if any, under applicable law) as
consideration (the "CIC Consideration") is less than or equal to $44.00
per share as of the date on which the CIC Transaction occurs (the "CIC
Date"), then the Company (or the surviving entity in the CIC
Transaction (the "Surviving Entity")) shall make a one-time payment to
the Employee, in cash in a single lump sum within fifteen (15) days
after the CIC Date, in an amount equal to the Net Value plus the Tax
Amount minus the Intrinsic Option Value (the "CIC Payment"). The CIC
Payment shall be calculated on behalf of the Company (or the Surviving
Entity) by an independent, nationally recognized accounting firm or
executive compensation consulting firm to be selected by the Company
(or the Surviving Entity). Together with the CIC Payment, the Company
(or the CIC Surviving Entity) shall provide the Employee with written
materials setting forth in reasonable detail the calculation of the CIC
Payment.
(b) In connection with the CIC Transaction, (i) the Company
shall accelerate the vesting of any and all unvested Stock Options so
that all such Stock Options are fully exercisable on the CIC Date; (ii)
the Company shall cancel, with the Employee's express consent (which
the Employee hereby
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provides), any and all "out-of-the-money" Stock Options immediately
prior to the CIC Date; and (iii) the Employee shall exercise any and
all "in-the-money" Stock Options on the CIC Date, unless the agreement
pursuant to which the CIC Transaction occurs provides for the deemed
exercise of the Stock Options as of the CIC Date.
(c) For the purposes of this Agreement, the following terms
have the meanings specified below:
"Change in Control" means the first to occur on or after
April 4, 2005, of any of the following:
(i) the acquisition by any person or persons acting as a
group ("Person") of capital stock of the Company which, when added to
any capital stock of the Company already owned by the Person,
constitutes more than fifty percent (50%) of either (A) the total fair
market value of the outstanding capital stock of the Company, or (B)
the total voting power of the outstanding capital stock of the Company;
provided, however, that a Change in Control will not be deemed to have
occurred when any Person who owns more than fifty percent (50%) of the
total fair market value or the total voting power of the outstanding
capital stock of the Company as of the date of this Agreement acquires
any additional capital stock of the Company; and provided further, that
an increase in the percentage of the outstanding capital stock of the
Company owned by a Person as a result of a transaction in which the
Company acquires its capital stock in exchange for property will be
treated as an acquisition of such capital stock by such Person; or
(ii) the acquisition by a Person, in a single transaction
or a series of transactions within a twelve (12) month period, of
capital stock of the Company representing not less than thirty-five
percent (35%) of the total voting power of the outstanding capital
stock of the Company; or
(iii) the acquisition by a Person, in a single transaction
or a series of transactions within a twelve (12) month period, of
assets of the Company which have a total gross fair market value of not
less than forty percent (40%) of the total gross fair market value of
all of the assets of the Company immediately prior to such
acquisition(s), in each case without regard to any liabilities
associated with such assets; provided, however, that a Change in
Control will not be deemed to have occurred when such assets are
acquired by:
(A) an entity of which the Company owns, directly or
indirectly, fifty percent (50%) or more of the total fair market value
or the total voting power of the outstanding capital stock;
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(B) a Person which owns, directly or indirectly,
fifty percent (50%) or more of the total fair market value or the total
voting power of the outstanding capital stock of the Company;
(C) an entity of which a Person described in clause
(B) owns, directly or indirectly, fifty percent (50%) or more of the
total fair market value or the total voting power of the outstanding
capital stock;
(D) an entity which is controlled by the
stockholders of the Company immediately after the transfer; or
(E) a stockholder of the Company in exchange for or
with respect to capital stock of the Company; or
(iv) a majority of the members of the Board is replaced in
any twelve (12) month period by directors whose appointment or election
is not endorsed by a majority of the members of the Board prior to the
date of the appointment or election.
In making a determination as to whether a Change in Control has
occurred, the foregoing definition shall be construed and applied in a
manner that avoids the imposition of federal income tax on the Employee
by operation of Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code").
The term "in-the-money," in describing a Stock Option,
means that the Market Value of the underlying security exceeds the
exercise price of the Stock Option.
"Intrinsic Option Value" means, with respect to
in-the-money Stock Options, (i) the aggregate Market Value of the CIC
Consideration as of the CIC Date received or to be received by the
Employee upon the exercise or deemed exercise of the Stock Options,
minus (ii) the aggregate exercise price of the Stock Options.
"Market Value" means, as of the date on which it is
calculated, the following:
(i) in the case of cash, the dollar amount thereof;
(ii) in the case of any security, (A) if the security is
listed on a national securities exchange, the mean between the highest
and lowest sale prices reported as having occurred on the primary
exchange on which the security is listed and traded on the day
immediately preceding the calculation date, or if there was no such
sale on that day, then on the last preceding day on which such a sale
was reported; (B) if the security is not listed on any national
securities exchange but is quoted on the Nasdaq Stock Market, the mean
between
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the highest and lowest sale prices reported on the day immediately
preceding the calculation date, or if there was no such sale on that
day, then on the last preceding day on which such a sale was reported;
or (C) if the security is not listed on a national securities exchange
or quoted on the Nasdaq Stock Market, the amount determined by the
Board to be the fair market value based upon a good faith attempt to
value the security accurately; and
(iii) in the case of any other property, the fair market
value thereof determined by the Board based upon a good faith attempt
to value such property accurately.
"Net Value" means an amount determined by reference to the
Market Value of the CIC Consideration per share as of the CIC Date in
accordance with the following table:
CIC Consideration
Per Share Net Value
----------------- ----------
$36.00 or below $3,000,000
$37.00 $3,250,000
$38.00 $3,500,000
$39.00 $4,000,000
$40.00 $4,500,000
$41.00 $5,000,000
$42.00 $5,500,000
$43.00 $5,750,000
$44.00 $6,000,000
If the Market Value of the CIC Consideration per share as of the CIC
Date falls between two whole numbers in the above table, the Net Value
shall be adjusted proportionately. For example, if the CIC
Consideration per share is $39.25, the Net Value shall be $4,125,000.
The term "out-of-the-money," in describing a Stock Option,
means that the exercise price of the Stock Option exceeds the Market
Value of the underlying security.
"Stock Options" means the unexpired stock options granted
by the Company to the Employee under the Equity Plan or otherwise.
"Tax Amount" means the sum of all applicable income,
Social Security, and Medicare taxes (at an assumed combined rate of
37.5%), excise taxes, and other taxes assessed by any federal, state,
local or foreign government or governmental authority against the
Employee in connection with the receipt of the CIC Payment."
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6. Addition of Paragraph 21. The following is added as Paragraph 21 of
the Agreement:
"21. Delayed Commencement of Certain Payments. Notwithstanding
any provision of this Agreement to the contrary, the parties intend
that this Agreement be construed and applied in a manner that will
conform its provisions with the requirements for avoidance of
additional federal income tax pursuant to Section 409A of the Code, to
the extent that such Section applies to the payments provided
hereunder. Without limiting the foregoing, in the event that the
Employee is a "specified employee" within the contemplation of Section
409A(a)(2)(B) of the Code at the time that any payment otherwise would
be made based upon the Employee's separation from service with the
Company within the contemplation of Section 409A(a)(2)(A)(i) of the
Code, then in no event shall such payment or the commencement thereof
be made before the six-month anniversary of the date of such separation
from service or, if earlier, the date of the Employee's post-separation
death."
7. Effect of Amendment. The provisions of this Amendment shall modify
and supersede all inconsistent provisions of the Agreement. Except as expressly
modified and superseded by this Amendment, the provisions of the Agreement are
ratified and confirmed in all respects and shall remain in full force and
effect. Any reference to the Agreement therein shall be and mean a reference to
the Agreement as amended hereby.
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IN WITNESS WHEREOF, this Amendment is executed and delivered by the
parties hereto on April 6, 2005, but effective as of April 4, 2005.
COMPANY:
XXXXXX MEDICAL TECHNOLOGY, INC.
By: /s/ F. Xxxxx Xxxx
----------------------------------
F. Xxxxx Xxxx
Executive Chairman of the Board
EMPLOYEE:
/s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxxx X. Xxxxxx
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