EXHIBIT 10.25
SECOND AMENDMENT TO
AMENDED EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT To AMENDED EMPLOYMENT AGREEMENT (this
"AMENDMENT") is made and entered into as of the 30th day of January, 2003,
between DEXTERITY SURGICAL, INC. (the "COMPANY") and XXXXXXX X. XXXXXXXXX
("EMPLOYEE").
RECITALS
A. The Company and Employee entered into the Amended Employment
Agreement dated December 15, 1998 (the "ORIGINAL AGREEMENT").
B. Subsequently, the Company and Employee entered into a First
Amendment to Amended Employment Agreement dated January 16, 2000 (the "FIRST
AMENDMENT")(the Original Agreement, as amended by the First Amendment, the
"AGREEMENT").
C. The Company and Employee desire to further amend the Agreement to
amend the termination provisions of the Agreement on the terms and provisions
hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good, fair and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the terms and provisions of the Agreement are amended as follows:
1. Defined Terms and Related Matters.
(a) Unless otherwise defined herein, the capitalized terms used herein
which are defined in the Agreement shall have the meanings specified therein.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Amendment shall refer to this Amendment as a whole and
not to any particular provision of this Amendment.
2. Amendments to Article 5. Article 5 of the Agreement shall be amended
and restated to read in its entirety as follows:
ARTICLE 5
TERMINATION
5.01 Termination With Notice. This Agreement may be terminated
by the Company or Employee, without cause, upon thirty (30) days' prior
written notice thereof given by one party to the other party. In the
event of termination effected by Employee giving notice pursuant to
this Section 5.01, the Company shall pay Employee his monthly Base
Salary (subject to standard deductions) earned pro rata to the date of
such termination and the Company shall have no further obligations to
Employee hereunder. In the event of termination
effected by the Company giving notice pursuant to this Section 5.01,
the Company shall pay Employee his monthly Base Salary (subject to
standard deductions) under Section 1.01 hereof at the rate in effect as
of such termination from the date of such termination through the date
which is the latest to occur of the following: (a) the date on which
the initial term or the extension term then in effect, as the case may
be, expires, (b) the date which is twelve (12) months after the date of
the Company's termination of this Agreement pursuant to this Section
5.01 or (c) the date on which the Non-Competition Period (hereinafter
defined) expires. As used herein, the term "Non-Competition Period"
shall mean the two-year period after the termination of this Agreement
referred to in Section 6.08 PROVIDED, HOWEVER, in the event that the
Company shall give notice to Employee pursuant to this Section 5.01
that the Company shall not require Employee to comply with the
provisions of Section 608 after a date prior to the expiration of such
two-year period after the termination of this Agreement, the
"Non-Competition Period" shall mean the period commencing on he date of
the termination of this Agreement and ending on the date specified in
the Company's notice respecting the shortening or elimination of the
period for compliance with Section 6.08, as the case may be. Payment by
the Company in accordance with this Section 5.01 shall constitute
Employee's full severance pay and the Company shall have no further
obligation to Employee arising our of the termination of this Agreement
pursuant to this Section 5.01.
5.02 Termination For Cause. This Agreement may be terminated
by the Company for "Cause" (hereinafter defined) upon written notice
thereof given by the Company to Employee. In the event of termination
pursuant to this Section 5.02, the Company shall pay Employee his
monthly Base Salary (subject to standard deductions) earned pro rata to
the date of such termination and the Company shall have no further
obligations to Employee hereunder. The term "Cause" shall include only
the following, as determined by the Board in its sole judgment: (i)
Employee breaches any of the terms of this Agreement; (ii) Employee is
convicted of a felony; (iii) Employee fails, after at least one
warning, to perform duties assigned under this Agreement (other than a
failure due to death or physical or mental disability); (iv) Employee
intentionally engages in conduct which is demonstrably and materially
injurious to the Company; (v) Employee commits fraud or theft of
personal or Company property from Company premises; (vi) Employee
falsifies Company documents or records; (vii) Employee engages in acts
of gross carelessness or willful negligence to endanger life or
property on Company premises; (viii) Employee engages in sexual
harassment involving employees of the Company or on the premises of the
Company or with respect to the business of the Company; (ix) Employee
uses, distributes, possesses or is under the influence of illegal
drugs, alcohol or any other intoxicant on Company premises; or (x)
Employee intentionally violates state, federal or local laws and
regulations relating to the business of the Company.
5.03 Termination Upon Death or Disability. In the event that
Employee dies, this Agreement shall terminate upon Employee's death.
Likewise, if Employee becomes unable to perform the essential functions
of his
-2-
duties hereunder, with or without reasonable accommodation, on account
of illness, disability or other reason whatsoever, the Company may,
upon notice to Employee, terminate this Agreement. In the event of
termination pursuant to this Section 5.03, Employee (or his legal
representatives) shall be entitled only to (a) his monthly Base Salary
earned pro rata for services actually rendered prior to the date of
such termination plus (b) an amount equal to three (3) times his
monthly Base Salary in effect as of the date of such termination;
PROVIDED, HOWEVER, Employee shall not be entitled to his monthly Base
Salary for any period with respect to which Employee has received
short-term or long-term disability benefits under employee benefit
plans maintained from time to time by the Company.
5.04 Termination following Change of Control.
(a) Notwithstanding anything to the contrary contained herein,
should Employee at any time within twelve (12) months of the occurrence
of a "change of control" (as defined below) cease to be an employee of
the Company (or its successor), by reason of (i) termination by the
Company (or its successor) other than for "cause" (following a change
of control, "cause" shall be limited to the conviction of or a plea of
nolo contendere to the charge of a felony which, through lapse of time
or otherwise, is not subject to appeal, or a material breach of
fiduciary duty to the Company through the misappropriation of Company
funds or property) or (ii) voluntary termination by Employee for "good
reason" (as defined below) following a "change of control" (as defined
below), then in any such event, (1) the Company shall at the election
of Employee either (x) continue to pay Employee his then effective Base
Salary under Section 1.01 hereof through the later of (A) the
expiration of the initial term hereof or the renewal term then in
effect, as the case may be, (B) that date which is twelve (12) months
after the severance of employment described in this Section 5.04 or (C)
the date on which the Non-Competition Period expires or (y) pay
Employee, within forty-five (45) days of the severance of employment
described in this Section 5.04, a lump-sum payment equal to (without
discounting to present value) his then effective Base Salary under
Section 1.01 hereof through the later of (A) the expiration of the
initial term or the renewal term then in effect, as the case may be,
(B) that date which is twelve (12) months after the severance of
employment described in this Section 5.04 or (C) the date on which the
Non-Competition Period expires, and (2) all outstanding stock options
and other incentive awards held by Employee shall become fully vested
and exercisable.
(b) As used in this Section 5.04, voluntary termination by
Employee for "good reason" following a "change of control" shall mean
(i) removal of Employee from the office(s) Employee holds on the date
of this Agreement, (ii) a material reduction in Employee's authority or
responsibility, (iii) a reduction in Employee's compensation, (iv) the
Company otherwise commits a breach of this Agreement, or (v) Employee
elects not to continue Employee's employment.
-3-
(c) As used in this Agreement, a "change of control" shall be
deemed to have occurred if (i) any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than Renaissance Capital Growth &
Income Fund III, Inc., Renaissance US Growth & Income Trust, PLC, or
TFX Equities Incorporated or any affiliate of any of the foregoing
entities, is or becomes a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Company representing more than 30% of the combined voting power of the
Company's then outstanding securities, or (ii) at any time during the
24-month period after a tender offer, merger, consolidation, sale of
assets or contested election, or any combination of such transactions,
at least a majority of the Company's Board of Directors shall cease to
consist of "continuing directors" (meaning directors of the Company
who either were directors prior to such transaction or who subsequently
became directors and whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least two-thirds
of the directors then still in office who were directors prior to such
transaction), or (iii) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than
a merger or consolidation that would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being convened into
voting securities of the surviving entity) at least 60% of the total
voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (iv) the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement of sale or
disposition by the Company of all or substantially all of the Company's
assets.
5.05 Survival of Provisions. The covenants and provisions of
Articles 5, 6, and 7 hereof shall survive any termination of this
Agreement and continue for the periods indicated, regardless of how
such termination may be brought about.
3. The Agreement is hereby amended and modified to the extent necessary
to give full force and effect to the terms of this Amendment, and the Agreement
shall hereafter be construed and interpreted after giving full force and effect
to the terms of this Amendment. As amended, modified and supplemented pursuant
to this Amendment, the Company and Employee hereby ratify, confirm and restate
the Agreement and agree that the Agreement shall continue in full force and
effect.
4. In the event that any one or more of the provisions contained in
this Amendment shall be determined invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision or provisions in every other respect and the remaining provisions of
this Amendment shall not be impaired in any way.
5. When required or implied by the context used, defined terms used
herein shall include the plural as well as the singular, and vice versa.
-4-
6. This Amendment shall be governed by and construed in accordance with
the internal laws of the State of Texas and applicable federal laws of the
United States of America.
7. This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument,
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
COMPANY:
DEXTERITY SURGICAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx,
Executive Vice President and
Chief Financial Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXXXX
-5-
