Exhibit 10.62
AMENDMENT TO THE AGREEMENT BETWEEN
OSTEOTECH, INC. AND XXXX XXXXX DATED APRIL 18, 2000
EFFECTIVE MARCH 1, 2002
WHEREAS the Corporation and the Employee desire to modify Section 5.3 of
the Agreement, which, among other things stipulates that the Employee will
receive a Special Bonus over a period of four (4) years based on sales of tissue
and metal products, excluding base tissue, in certain areas as specified.
NOW, THEREFORE, it is agreed that:
(a) the period in which the Special Bonus is to be paid is changed
from four (4) years from the original date of employment to
six (6) years.
(b) the threshold that has to be achieved to earn an incremental
6% commission of net sales (defined as net sales of tissue,
excluding base tissue, and metal products in New Jersey,
Delaware and Northeastern Pennsylvania) in excess of the
threshold, is changed from previous years net sales plus
twenty (20) percent to previous years net sales plus fifteen
(15) percent.
In all other respects, Section 5.3 shall remain unchanged.
AGREED TO BY:
Corporation:
Osteotech, Inc. Employee:
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxx
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Xxxxxxx X. Xxxxx Xxxx Xxxxx
President, Chief Executive Officer
Dated: 2/26/02 Dated: 3/4/02
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EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into the ___ day of April, 2000 ("Effective Date")
between OSTEOTECH, INC., a Delaware corporation (the "Corporation") and Xxxx
Xxxxx (the "Employee").
WITNESSETH:
WHEREAS, the Corporation desires to employ the Employee as Vice President
Sales; and
WHEREAS, the Employee desires to accept such employment upon the terms and
conditions set forth therein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Corporation hereby employs the Employee, and the
Employee hereby accepts employment by the Corporation, as Vice President Sales
upon the terms and conditions set forth herein.
2. Term. Unless sooner terminated in accordance with this Agreement, the
term of this Agreement and the term of employment of the Employee shall be for
two (2) years commencing on the Effective Date hereof and shall be automatically
renewable for successive additional two (2) year terms unless at least three (3)
months prior to the expiration of the initial two-year period or any subsequent
two-year term the Corporation terminates this Agreement by written notice to the
Employee, whereupon this Agreement shall be terminated at the end of the
applicable two-year period (with such initial two year term and any two year
renewal thereof, unless sooner terminated in accordance with this Agreement
being the "Term of Employment").
3. Duties. The Employee shall perform such duties and services and shall
be allocated such resources, consistent with his position, as may be assigned to
him from time to time by the President. In furtherance of the foregoing, the
Employee hereby agrees to perform well and faithfully such duties and
responsibilities.
4. Time to be Devoted to Employment.
4(a). The Employee shall devote his full time and energy to the business
of the Corporation except for vacations, holidays and personal days and absences
due to temporary illness, during the Term of Employment and except as approved
by the Board of Directors.
4(b). During the Term of Employment, the Employee shall not be engaged in
any other business activity. Employee hereby represents that he is not a party
to any agreement, contract, employment agreement or noncompetition agreement
which would be an impediment to entering into this Agreement and that he is
permitted to enter into this Agreement and perform the obligations hereunder.
5. Compensation; Reimbursement.
5.1(a) During the Term of Employment, the Corporation (or at the
Corporation's option, any subsidiary or affiliate thereof) shall pay to the
Employee an annual base salary ("Base Salary") of Two Hundred Ten Thousand
Dollars ($210,000.00), payable in semi monthly installments of Eight Thousand
Seven Hundred Fifty Dollars ($8,750), and subject to all withholdings and
deductions as required by state and federal law. The Base Salary shall be
reviewed annually and be subject to increase at the option and in the sole
discretion of the Board of Directors of the Corporation.
5.1(b) During the Term of Employment, on an annual basis, Employee may be
entitled to a bonus and stock option grants as determined by the Board of
Directors of the Corporation based on Employee's performance.
5.1(c) During the Term of Employment, the Employee shall be entitled to
family medical and dental insurance coverage, short and long term disability
coverage, eligibility for participation in the Corporation's 401k plan and to
such other fringe benefits such as life insurance as are made available from
time to time to the executives of the Corporation, including four (4) weeks
vacation per calendar year.
5.1(d) The Corporation shall reimburse Employee, in accordance with its
practice from time to time for other employees of the Corporation, for all
reasonable and necessary travel expenses, disbursements and other reasonable and
necessary incidental expenses incurred by him for or on behalf of the
Corporation in the performance of his duties hereunder upon presentation by the
Employee to the Corporation of appropriate vouchers.
5.2 Contingent on the approval of the Board of Directors, the Corporation
agrees to grant to Employee, effective May 1, 2000, a stock option agreement to
purchase seventy five thousand (75,000) shares of common stock with the per
share price based on the closing price of the Corporation's common stock on May
1, 2000. One-fourth (1/4) of the option shall vest one year from the effective
date and one-fourth (1/4) shall vest thereafter on each anniversary of the
effective date of this Agreement so long as the Employee remains in the employ
of the Corporation on that date. The option shall terminate ninety (90) days
after termination of the Employee's employment with the Corporation and shall be
granted in accordance with the Corporation's Incentive Stock Option Plan as
amended from time to time.
5.3 Special Bonus Program. For a period of the next four (4) years,
Employee shall receive a four (4) percent commission on net sales of the
Corporation's tissue and metal products, excluding base tissue, in New Jersey,
Delaware, and Northeastern Pennsylvania as referenced in attachment A. Employee
will receive a total of ten (10) percent commission for net sales over Plan. For
the purposes of this Section 5.3, Plan shall be defined as the previous years
sales plus twenty (20) percent. Sales of the Corporation's allograft bone tissue
products that are not proprietary products are excluded from this program. The
maximum payment over the four year period of this program shall be Two Million
One Hundred Thousand Dollars ($2,100,000.00). However, should Employee's
employment terminate in accordance with Sections 7 or 9, within the four year
period, Employee agrees to repay fifty (50) percent of the commission paid to
him in accordance with the terms of this Section 5.3. If Employee's employment
terminates in accordance with Section 8, within the four year period, Employee
shall not be required to repay fifty (50) percent of the commission paid to him
in accordance with the terms of this Section 5.3.
Upon the termination of Employee's employment, for any reason,
Employee shall no longer be eligible to receive any future bonus payments under
the terms of this Section 5.3.
6. Termination due to Death or Disability. If Employee dies during the
Term of Employment, his employment hereunder and the Term of Employment shall be
deemed to cease as of the date of his death. If Employee becomes "disabled,"
including any physical or mental condition of the Employee that renders him
unable to perform the essential functions of his position, with or without
reasonable accommodation, subject to the terms of the Corporation's disability
policy, the Term of Employment shall be deemed to cease as of the determination
of disability.
7. Termination for Cause. The Corporation may terminate the employment of
the Employee hereunder and the Term of Employment at any time during the Term of
Employment for "cause" (such termination being hereinafter called a "Termination
For Cause") by giving the Employee notice of such termination, upon the giving
of which such termination shall take effect immediately. For the purposes of
this Section 7, "cause" shall mean (i) the Employee's willful misconduct with
respect to the business and affairs of the Corporation or any subsidiary or
affiliate thereof, which action materially and adversely affects the business or
affairs of the Corporation or any subsidiary or affiliate thereof, (ii) the
Employee fails in any material respect to observe and perform his obligations
and duties hereunder, (iii) the commission by the Employee of an act involving
embezzlement or fraud against the Corporation or commission or conviction of a
felony, or (iv) failure to abide in some material respect by the Corporation's
rules of conduct, terms and conditions set forth in the Corporation's handbook,
as amended from time to time.
8. Termination Without Cause. The Corporation may terminate the employment
of the Employee hereunder and the Term of Employment at any time without "cause"
upon thirty (30) days prior written notice (such termination being hereinafter
called a "Termination Without Cause"). Upon a Termination without Cause during
the Term of Employment, Employee shall be entitled to receive his Base Salary
for twelve (12) months, from the date of termination. Employee shall be entitled
to receive all bonus payouts earned prior to the date of termination. In
addition, upon a Termination Without Cause at any time, the Corporation shall
continue to pay the Employee's family medical insurance premiums under the
Corporation's medical insurance plan and other benefits (including outplacement
benefits as long as you are actively seeking
employment) provided in Section 5.1(c) for twelve (12) months following such
termination or until Employee obtains comparable employment, whichever occurs
sooner.
9. Voluntary Termination. Any termination of the employment of the
Employee hereunder otherwise then as a result of an Termination due to Death or
Disability, a Termination For Cause or a Termination Without Cause shall be
deemed to be a "Voluntary Termination." A Voluntary Termination shall be deemed
to be effective immediately upon such termination.
10. Effect of Termination of Employment.
10(a). Upon the termination of the Employee's employment hereunder
pursuant to a Voluntary Termination, Termination due to Death or Disability, or
a Termination For Cause, neither the Employee nor his beneficiary or estate
shall have any further rights or claims against the Corporation under this
Agreement except to receive:
(i) The unpaid portion of the Base Salary provided for in Section
5.1(a), computed on a pro rata basis to the date of termination;
(ii) Reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5.1(d);
(iii) Payment of all accrued and unused vacation time.
10(b). Upon the termination of the Employee's employment hereunder
pursuant to a Termination Without Cause, neither the Employee nor his
beneficiary or estate shall have any further rights or claims against the
Corporation under this Agreement, except to receive a termination payment equal
to that provided for in Section 10(a) hereof, plus the amounts set forth in
Section 8, if any.
10(c). Termination of Employment by Employee. If Employee terminates his
employment prior to the completion of the fourth year of employment after the
Effective Date,
Employee shall be obligated to repay to the Corporation those amounts specified
in the Special Bonus Program set forth in Section 5.3 of this Agreement.
11. General Provisions.
11(a). This Agreement and any or all terms hereof may not be changed,
waived, discharged, or terminated orally, but only by way of an instrument in
writing signed by the parties.
11(b). This Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey, without reference to the conflicts of
laws of the State of New Jersey or any other jurisdiction.
11(c). If any portion of this Agreement shall be found to be invalid or
contrary to public policy, the same may be modified or stricken by a Court of
competent jurisdiction, to the extent necessary to allow the Court to enforce
such provision in a manner which is as consistent with die original intent of
the provision as possible. The striking or modification by the Court of any
provision shall not have the effect of invalidating the Agreement as a whole.
11(d). The obligations of Sections 8, 10, 11, 12, 13 and 14 shall survive
termination of this Agreement.
12. Corporation Rights to Intellectual Property. The Employee shall
promptly disclose, grant and assign ownership to the Corporation for its sale
use and benefit any and all inventions, improvements, information, copyright,
and suggestions (whether patentable or not), which he may develop, acquire,
conceive or reduce to practice while employed by the Corporation (whether or not
during usual working hours), together with all patent applications, letters
patent, copyrights and reissues thereof that may at any time be granted for or
upon any such invention, improvement or information. In connection therewith:
(i) The Employee shall without charge, but at the expense of the
Corporation, promptly at all times hereafter execute and deliver such
applications, assignments, descriptions and other instruments as may be
reasonably necessary or proper in the opinion of the Corporation to vest title
to any such inventions, improvements, technical information, patent
applications, patents, copyrights or reissues thereof in the Corporation and to
enable it to obtain and retain the entire right and title thereto throughout the
world; and
(ii) The Employee shall render to the Corporation at its expense
(including reimbursement to the Employee of reasonable out-of-pocket expenses
incurred by the Employee and a reasonable payment for the Employee's time
involved in case he is not then in its employ) all such assistance as it may
reasonably require in the prosecution of applications for said patents,
copyrights or reissues thereof, in the prosecution or defense of interferences
which may be declared involving any said applications, patents or copyrights and
in any litigation in which the Corporation may be involved relating to any such
patents, inventions, improvements or technical information.
13. Protection of Information.
13(a). Employee hereby covenants with Corporation that, throughout the
term of his employment by Corporation, Employee will serve Corporation's best
interests loyally and diligently. Throughout the course of employment by
Corporation and thereafter, Employee will not disclose or provide to any person,
firm, corporation or entity (except when authorized by Corporation) any
information, materials, biologies or animals which are owned by the Corporation
or which come into the possession of the Corporation from a third party under an
obligation of confidentiality, including without limitation, information
relating to trade secrets, business methods, products, processes, procedures,
development or experimental projects,
suppliers, customer lists or the needs of customers or prospective customers,
clients, etc. (collectively "Confidential Information"), which Confidential
Information, comes into his possession or knowledge during the Term of
Employment, and he will not use such Confidential Information for his own
purpose or for the purpose of any person, firm, corporation or entity, other
than the Corporation.
13(b). The provisions of Section 13(a) shall not apply to the following
Confidential Information:
(i) Confidential Information which, at the time of disclosure, is
already in the public domain;
(ii) Confidential Information which the Employee can demonstrate was
in his possession or known to him prior to the effective date of his employment
by the Corporation;
(iii) Confidential Information which subsequently becomes part of
the public domain through no fault of the Employee;
(iv) Confidential Information which becomes known to the Employee
through a third party who is under no obligation of confidentiality to the
Corporation; and
(v) Confidential Information which is required to be disclosed by
law or by judicial or administrative proceedings.
14. Non-Competition. The parties incorporate by reference, as if fully set
forth herein, the provisions of the Employee Confidential Information, and
Invention and NonCompetition Agreement executed concurrently with is Agreement,
and Employee agrees to abide by the terms of the non-competition agreement
contained therein. Employee further agrees that the restrictions and agreements
contained in the Employee Confidential Information, and Invention and
Non-Competition Agreement are reasonable and necessary to protect the legitimate
interests of the
Corporation and that any violation of that Agreement, or this Agreement, will
cause substantial and irreparable harm to the Corporation that would not be
quantifiable and for which no adequate remedy would exist at law. Accordingly,
Employee authorizes the issuance of injunctive relief against him or her,
without the requirement of posting bond, for any violation of the Employee
Confidential Information, and Invention and Non-Competition Agreement.
15. Notices. Notices and other communications hereunder shall be in
writing and shall be delivered personally or sent by air courier or first class
certified or registered mail, return receipt requested and postage prepaid,
addressed as follows unicss the party specifies a new address in writing:
If to the Employee: ________________________
________________________
________________________
If to the Corporation: Osteotech, Inc.
00 Xxxxx Xxx
Xxxxxxxxx, XX 00000
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given to the
date of delivery if personally delivered; on the business day after the date
when sent if sent by air courier; and on the third business day after the date
when sent if sent by mail, in each case addressed to such party as provided in
this Section or in accordance with the latest unrevoked direction from such
party.
16. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Assignment. This Agreement is personal in its nature and the parties
hereto shall not, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder, provided, however, that the
provisions hereof shall inure to the benefit of,
and be binding upon each successor of the Corporation, whether by merger,
consolidation, transfer of all or substantially all assets, or otherwise and the
heirs and legal representatives of the employee.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
CORPORATION: OSTEOTECH, INC.
By: /s/ Xxxx Xxxxx
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Title:
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EMPLOYEE:
