AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.3
AMENDMENT TO
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Amendment (this “Amendment”) is made effective as of June 15, 2007, and is
entered into by and between Replidyne, Inc. (the “Company”), and Xxxx Xxxxx
(“Employee”) and, together with the Company, the “Parties”).
WHEREAS, the Company and Employee are parties to that certain Employment Agreement
dated April 4, 2006 (the “Employment Agreement”);
WHEREAS, in order to reflect the final terms and conditions related to Employee’s change in
control benefits and certain other changes to the Employment Agreement, the Parties desire to amend
certain terms of the Employment Agreement.
1. | All capitalized terms used but not defined herein shall have the meanings assigned to them in the Employment Agreement. |
2. | The introductory paragraph of the Employment Agreement is hereby amended and restated to reflect this Amendment, and will now read in its entirety as follows: |
This Employment Agreement (the “Agreement”) is made as of this 4th day
of April, 2006, and amended effective June 15, 2007, by and between Replidyne,
Inc., (the “Company”), and Xxxx Xxxxx (“Employee”) (collectively, the
“Parties”).
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successor entity) for Good Reason (either constituting a “Change of Control Termination”), and in each case Employee signs a Release and written acknowledgment of Employee’s continuing obligations under the Proprietary Information Agreement, Employee shall be entitled to receive the Severance Benefits set forth in Paragraph 11(d). In addition, the Company will vest all of the shares subject to the options and such vesting shall occur upon the occurrence of the Change of Control in the case of a Change of Control Termination occurring prior to the Change in Control or upon termination in the case of a Change of Control Termination occurring after the Change of Control. All other terms and conditions set forth in the options, the Plan, and the applicable stock option agreements shall remain in full force and effect. | ||
Employee shall also be eligible to receive a bonus equal to the average of Employee’s annual bonus for the two years prior to such Change in Control Termination to be paid at the same time as bonuses are paid pursuant to the Company’s policy. | ||
6. | Section 13 of the Employment Agreement is amended and restated to read in its entirety as follows: | |
12. Deferred Compensation. Severance Benefits and Change of Control Severance Benefits pursuant to Sections 10(d) and 11(b) above, to the extent of payments made from the date of termination of Executive’s employment through March 15 of the calendar year following such termination, are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; to the extent such payments are made following said March 15, they are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations made upon an involuntary termination from service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision, with any excess amount being regarded as subject to the distribution requirements of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that payment to Executive be delayed until 6 months after Executive’s separation from service if Executive is a “specified employee” within the meaning of the aforesaid section of the Code at the time of such separation from service. | ||
7. | Except as set forth above, the Employment Agreement, as amended, shall remain in full force and effect in accordance with its terms. | |
8. | This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. |
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9. | This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of Colorado applicable to contracts made and to be performed entirely within such state. | |
10. | This Amendment shall be effective upon its execution by each of the Company and Employee. |
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/s/ Xxxx Xxxxx | ||||
Xxxx Xxxxx | ||||
REPLIDYNE, INC. |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Chief Executive Officer | |||
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