AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
Exhibit 10.4
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
This Amendment No. 2 is dated as of January 31, 2006, by and between Xxx Xxxxxxx (the
“Executive”) and Compex Technologies, Inc. (fka Rehabilicare Inc. and hereafter the “Company”)
WHEREAS, Company and Executive are parties to that certain employment agreement dated as of
August 12, 2002 as amended February 3, 2003(the “Employment Agreement”); and
WHEREAS, Company and Executive agree that the Employment Agreement incorrectly allows the
Company to terminate the employment agreement and avoid severance pay, and that the intention of
the parties was that the employment agreement, and the employment of Executive, not be terminated
except in accordance with the termination provisions contained in the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. The introductory paragraph of Section 9(f) of the Employment Agreement is hereby amended
in its entirety to read as follows:
(f) Severance Payment after Change in Control. In lieu of any payments due
Executive for periods subsequent to the date of termination of Executive’s employment
becomes effective pursuant to Section 9(e) or otherwise, in the event the Executive’s
employment is terminated after a Change of Control (x) by the Company pursuant to clause
(ii) or (iv) of Section 9(a), (y) by the Executive pursuant to clause (v) of Section 9(a)
prior to March 15 of the year following the year in which the change of Control occurs, or
(z) by the Executive within 60 days after a Change of Control pursuant clause (v) or (vi) of
Section 9(a), the Company shall:
2. Section 9(f)(iv) (which was incorrectly number 9(f)(vi) in the Employment Agreement) is
hereby amended to read in its entirety as follows:
(iv) either (a) pay Executive a cash payment, in lump sum, in an amount equal to
the greater of (x) Executive’s salary at the date of such termination, or (y)
Executive’s salary at the date of consummation of the Change of Control, in the
event the Executive’s employment is terminated after a Change of Control by the
Executive pursuant to clause (vi) of Section 9(a); or (b) pay Executive a cash
payment, in lump sum, in an amount equal to two (2) times the greater of (x)
Executive’s salary at the date of such termination, or (y) Executive’s salary at the
date of consummation of the Change of Control, in the event the Executive’s
employment is terminated after a Change of Control by the Company pursuant to clause
(ii) or (iv) of Section 9(a) or by the Executive pursuant to clause (v) of Section
9(a);
3. A new Section 9(g) of the Employment Agreement is hereby added to read in its entirety as
follows:
(g) Payment in Connection with Merger. Notwithstanding Sections 9(e) and 9(f)
above, if (i) the Agreement and Plan of Merger (the “Merger Agreement”) by and among the
Company, Encore Medical Corporation and Encore-Snow Acquisition Corp. (collectively,
“Encore”) is approved by the shareholders of the Company, and (ii) Encore confirms to the
Company that the Company has fulfilled all conditions to closing of the merger pursuant to
the Merger Agreement, or will waive any such conditions, a “Change of Control” shall be
deemed to have occurred and the Executive shall be entitled to resign at any time after such
events and until 60 days after consummation of such merger and (x) receive the benefits set
forth in Section 9(f), including the benefits provided in Section 9(f)(iv)(b) rather than
the benefits set forth in 9(f)(iv)(a), and (y) a “Change of Control” shall be deemed to have
occurred with respect to all stock options of the Company held by Executive and all shares
of restricted stock held by the Executive and all such options and restricted stock shall be
exercisable and vested, and (y) Executive shall be
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entitled to retain, in addition to the benefits set forth in Section 9(f) his laptop
computer provided by the Company.
4. The Executive acknowledges that he has received $151,165 as a bonus for the six months
ended December 31, 2005 and that such payment is an offset against any payment to which he might be
entitled under Section 9(e)(v) or Section 9(f)(iii) (mislabeled 9(f)(v)) of the Employment
Agreement for the fiscal year ending June 30, 2006.
IN WITNESS WHEREOF, the parties have signed this amendment as of the date first above written.
| COMPANY: | EXECUTIVE: | |||||||
| Compex Technologies, Inc. | ||||||||
By
|
/s/ XXXXX XXXXXXXXXX
|
/s/ XXX XXXXXXX
|
||||||
| Its Chief Financial Officer | Xxx Xxxxxxx | |||||||
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