EXHIBIT 10.64
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT dated as of
July 11, 2002 (this "Agreement"),
among dj Orthopedics, LLC, a
Delaware limited liability company
(the "Company"), dj Orthopedics,
Inc., a Delaware corporation (the
"Public Company", together with the
Company, the "Companies"), and Xxxxx
Xxxxxx III (the "Executive").
Reference is made to the Employment Agreement, dated as of June
30, 1999, by and among the Company, DonJoy, L.L.C. and the Executive (as amended
by the sideletter dated as of June 12, 2002, the "Original Employment
Agreement").
In order to induce the Executive to amend and restate the terms
and conditions of his employment with the Companies, the Companies desire to
provide the Executive with compensation and other benefits on the terms and
conditions set forth in this Agreement. The Executive is willing to enter into
such employment and perform services for the Companies on the terms and
conditions set forth in this Agreement.
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT.
The Companies shall employ the Executive, and the Executive
accepts employment with the Companies, upon the terms and conditions set forth
in this Agreement for the Employment Period (as defined in Paragraph 4(a)).
2. POSITION AND DUTIES.
(a) (i) During the Transition Period (as defined in Paragraph
4(a)), the Executive shall be responsible for Corporate Affairs of the
Companies and shall render advisory, consultative and other services to
the Companies and the person hired to serve as the replacement Vice
President of Finance, Chief Financial Officer and Secretary of the
Companies (the "Successor CFO") in connection with (A) the transition of
the duties, responsibilities and authority of the Executive as Senior
Vice President of Finance, Chief Financial Officer and Secretary of the
Companies to the Successor CFO and related matters, and (B) such other
tasks or projects as the Companies may reasonably request, in each case
subject to the power of the board of directors of the Public Company and
the board of managers of the Company (together, the "Boards") (x) to
expand or limit such duties, responsibilities and authority and (y) to
override the actions of the Executive. The Executive shall perform such
duties principally at the Companies' offices in Vista, CA or such other
location as the Executive and the Boards shall agree. The Executive's
service for the Companies as the individual responsible for Corporate
Affairs during the
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Transition Period shall end on the Remaining Period Commencement Date (as
defined in Paragraph 4(a)).
(ii) During the Remaining Period (as defined in
Paragraph 4(a)), the Executive shall become an inactive employee but
shall be available to render advisory, consultative and other services
to the Companies as are mutually agreeable to the Executive and the
Companies in their respective sole and absolute judgments.
(b) During the Transition Period, the Executive:
(i) shall report to the Boards and shall devote his best
efforts and substantially all of his active business time and attention
(except for permitted vacation periods and reasonable periods of illness
or other incapacity) to the business and affairs of the Companies and
their Affiliates and shall perform his duties and responsibilities to
the best of his abilities in a diligent and professional manner; and
(ii) shall not engage in any business activity which, in
the reasonable judgment of the Boards, conflicts or substantially
interferes with the duties of the Executive hereunder, whether or not
such activity is pursued for gain, profit or other pecuniary advantage.
(c) The foregoing restrictions shall not limit or prohibit the
Executive from engaging in passive investment, inactive business ventures and
community, charitable and social activities not interfering with the Executive's
performance and obligations hereunder.
3. BASE SALARY AND BENEFITS.
(a) During the Employment Period, the Executive's base salary
shall be $200,011.44 per annum, or such higher rate as the Board of the Company
may designate from time to time (the "Base Salary"), which Base Salary shall be
payable in regular installments in accordance with the Company's general payroll
practices and subject to withholding and other payroll taxes. Subject to
Paragraph 11, the Base Salary shall continue as provided hereunder regardless of
any other employment, earnings or compensation obtained, earned or accrued by
the Executive both as provided herein and which the Executive may be entitled to
for occurrences or efforts during the Remaining Period. In addition, during the
Transition Period, the Executive shall be entitled to participate in all
employee benefit and insurance programs for which the Executive is currently
eligible. During the Remaining Period, the Executive shall be entitled to
participate in the health and dental programs for which the Executive is
currently eligible, including any renewal periods regarding existing plans and
including all successor plans providing the same or similar coverage.
(b) During the Transition Period, the Company shall reimburse
the Executive for all reasonable expenses incurred by him in the course of
performing his duties under this Agreement, which are consistent with the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's requirements
with respect to reporting and documenting of such expenses.
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(c) During the Transition Period, the Executive shall be
entitled to continue to accrue vacation at a rate of three weeks paid vacation
during each 12-month period worked, which vacation period shall include all
vacation which has accrued during the Executive's current 12-month work period.
The Executive shall be entitled to receive payment for all accrued, unused
vacation pay through the last day of the Transition Period, and payment of said
sum shall be made to the Executive within five (5) business days after the end
of the Transition Period.
(d) In addition to the Base Salary, during the Transition
Period, the Executive shall be eligible to continue to participate in the Public
Company's Management Bonus Plan in accordance with the terms thereof. As to any
such bonus and the computation thereof, the Executive shall be entitled to a pro
rata bonus payment, attributable to any bonus payment period during which the
Executive served the Companies as part of the Employment Period hereunder.
(e) In addition to the other benefits provided herein, during
the Remaining Period, the Executive shall at the Companies' expense, be entitled
to outplacement counseling and services by and through a nationally-recognized
firm, to be designated by Executive. The expenses associated with said services,
shall not exceed the sum of $15,000.00, and shall not extend to any period of
time greater than six months following the end of the Remaining Period. As part
of said outplacement services, and within the monetary limits set forth herein,
the Executive shall have the right, at his sole discretion, to utilize the
consulting services of Xx. Xxxx Xxxxx.
4. TERM.
(a) The "Employment Period" means the period of time which is
comprised of the Transition Period and the Remaining Period; provided, however,
that (x) the Employment Period shall terminate prior to the last date of the
Employment Period upon the Executive's resignation, death or Disability (as
defined below), and (y) the Employment Period may be terminated by the Companies
at any time prior to the last date of the Employment Period for Cause (as
defined below). For purposes of this Agreement:
(i) the term "Transition Period" means the period of
time commencing on the date hereof and ending on the date (the
"Remaining Period Commencement Date") immediately after the date on
which the Companies deliver notice to the Executive, or the Executive
delivers notice to the Companies, that it is the intention of the
requesting party that the Transition Period end; provided, however, that
(x) any such notice by the Executive shall not constitute, or be
interpreted as a resignation, but rather shall be regarded as a status
modification preserving intact all rights thereunder without
intervention or cessation except as provided in this Agreement and (y)
the Transition Period shall extend to a date no later than December 31,
2002, even in the absence of any such notice, unless the parties
mutually agree, in writing, to the contrary;
(ii) the term "Remaining Period" means the period of
time commencing on the Remaining Period Commencement Date and ending on
the date which is 365 days from such date; and
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(iii) the term "Disability" means any long-term
disability or incapacity which (A) renders the Executive unable to
substantially perform his duties hereunder for 120 days during any
12-month period or (B) would reasonably be expected to render the
Executive unable to substantially perform his duties for 120 days during
any 12-month period, in each case as determined by the Boards in their
good faith judgment and including a pro rated number of days thereof
based on the number of days elapsed during such 12-month period;
provided, however, that if the Executive disputes any determination of
Disability made by the Boards pursuant to clause (B) above, the dispute
shall be referred to three licensed physicians practicing within a
100-mile radius of the city or township nearest to the Executive's place
of employment by the Companies, one of whom shall be selected by the
Boards, a second of whom shall be selected by the Executive and the
third of whom shall be selected by the two physicians selected by the
Boards and the Executive, respectively, and the opinion of the majority
of such physicians shall be the determination of Disability, and shall
be final and binding on both the Executive and the Companies.
(b) If the Employment Period is terminated by the Companies for
Cause, or by reason of the Executive's resignation, death or Disability, the
Executive shall be entitled to receive only his Base Salary, but only to the
extent such amount has accrued through the termination date.
(c) Except as otherwise required by law (e.g., COBRA) or as
specifically provided herein, all of the Executive's rights to salary,
severance, fringe benefits and bonuses hereunder (if any) accruing after the
termination of the Employment Period shall cease upon termination of the
Employment Period. If the Employment Period is terminated at the end of such
period, neither the Executive nor his successors, assigns, heirs,
representatives and estate shall be entitled to any additional payments (whether
severance or otherwise) or other benefits (including, without limitation, the
acceleration of any of the Executive's then-unvested options), other than such
payments or benefits which have accrued through such termination date. In the
event the Executive is terminated by the Companies for Cause or by reason of the
Executive's death, Disability or resignation, the sole remedy of the Executive
and his successors, assigns, heirs, representatives and estate shall be to
receive the payment described in Paragraph 4(b).
For purposes of this Agreement, "Cause" means (i) during the
Transition Period, (A) the failure by the Executive to perform such duties as
are reasonably requested by the Board as documented in writing to the Executive
and (B) chronic absenteeism and (ii) during the entire Employment Period (which
for purposes of this Paragraph (b)(ii) only shall include the period of the
Executive's employment with the Companies pursuant to the Original Employment
Agreement), (A) the Executive's willful disregard of his duties or failure to
act, where such action would be in the ordinary course of the Executive's
duties, (B) the failure by the Executive to observe all material policies of the
Companies and their Affiliates generally applicable to executives of the
Companies and their Affiliates, (C) gross negligence or willful misconduct by
the Executive in the performance of his duties, (D) the commission by the
Executive of any act of fraud, theft or financial dishonesty with respect to the
Companies or any of their Affiliates, or any felony or criminal act involving
moral turpitude, (E) the material breach by the Executive of this Agreement,
including, without limitation, any breach by the Executive of the provisions of
Xxxxxxxxx 0, Xxxxxxxxx 6, Paragraph 7 or Paragraph 8, or of any Management
Related Document
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(as defined in Paragraph 15(b)), or (F) subject to Paragraph 2(c), the Executive
directly or indirectly (1) engaging in, representing in any way, or being
connected with, any Competing Business, whether such engagement shall be as an
officer, director, owner, employee, partner, affiliate or other participant in
any Competing business or (2) assisting others in engaging in any Competing
Business in the manner described in the foregoing clause (1). For purposes of
this Agreement, (i) "Affiliates" means the Companies (or their respective
successors or assigns) and all subsidiaries thereof and (ii) "Competing
Business" means any business or activity which manufactures, markets or sells
knee braces and other products for the knee which are competitive with the
Company's knee brace products as of the date hereof. As of the date of this
Agreement, the Companies are not aware of any facts or circumstances which would
constitute "Cause" under this Agreement. The changes to the Executive's
employment with the Companies as reflected in this Agreement have not been as a
result of any actions which would constitute "Cause" under either the Original
Employment Agreement or this Agreement.
5. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
(a) The Executive will not disclose or use at any time, either
during the Employment Period or thereafter, any Confidential Information (as
defined in Paragraph 5(b)) of which the Executive is or becomes aware, whether
or not such information is developed by him, except to the extent that such
disclosure or use is directly related to and required by the Executive's
performance in good faith of duties assigned to the Executive by the Boards. The
Executive will take all appropriate steps to safeguard Confidential Information
and to protect it against disclosure, misuse, espionage, loss and theft. The
Executive shall deliver to the Companies on or prior to the last day of the
Transition Period, or at any time the Companies may request, all memoranda,
notes, plans, records, reports, computer tapes and software and other documents
and data (and copies thereof) relating to the Confidential Information, Work
Product (as defined in Paragraph 6) of the business of the Companies or any of
their Affiliates which the Executive may then possess or have under his control.
(b) As used in this Agreement, the term "Confidential
Information" means information that is not generally known to the public and
that is used, developed or obtained by the Companies in connection with their
businesses, including but not limited to (i) information, observations and data
obtained by the Executive while employed by the Companies or any predecessors
thereof (including those obtained prior to the date of this Agreement)
concerning the business or affairs of the Companies (or such predecessors), (ii)
products or services, (iii) fees, costs and pricing structures, (iv) designs,
(v) analyses, (vi) drawings, photographs and reports, (vii) computer software,
including operating systems, applications and program listings, (viii) flow
charts, manuals and documentation, (ix) data bases, (x) accounting and business
methods, (xi) inventions, devices, new developments, methods and processes,
whether patentable or unpatentable and whether or not reduced to practice, (xii)
customers and clients and customer or client lists, (xiii) copyrightable works,
(xiv) all production methods, processes, technology and trade secrets and (xv)
all similar and related information in whatever form. Confidential Information
will not include any information that has been published in a form generally
available to the public prior to the date the Executive proposes to disclose or
use such information.
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6. INVENTIONS AND PATENTS.
The Executive agrees that all inventions, innovations,
improvements, technical information, systems, software developments, methods,
designs, analyses, drawings, reports, service marks, trademarks, trade names,
logos and all similar or related information (whether patentable or
unpatentable) which relate to the Companies' or any of their Affiliates' actual
or anticipated business, research and development or existing or future products
or services and which are conceived, developed or made by the Executive (whether
or not during usual business hours and whether or not alone or in conjunction
with any other person) while employed by the Companies (including those
conceived, developed or made prior to the date of this Agreement) together with
all patent applications, letters patent, trademark, tradename and service xxxx
applications or registrations, copyrights and reissues thereof that may be
granted for or upon any of the foregoing (collectively referred to herein as,
the "Work Product"), belong in all instances to the Companies or any such
Affiliates. The Executive will promptly disclose such Work Product to the Boards
and perform (at the Companies' expense, except for any fees, costs or expenses
associated with the Executive's time) all actions reasonably requested by the
Board (whether during or after the Employment Period) to establish and confirm
the Companies' ownership of such Work Product (including, without limitation,
the execution and delivery of assignments, consents, powers of attorney and
other instruments) and to provide (at the Companies' expense) reasonable
assistance to the Companies or any of their Affiliates in connection with the
prosecution of any applications for patents, trademarks, trade names, service
marks or reissues thereof or in the prosecution or defense of interferences
relating to any Work Product.
7. NON-SOLICITATION.
The Executive agrees that, for the period that includes (i) the
Employment Period and (ii) four (4) years after the termination of the
Employment Period (the "Non-Solicit Period"), the Executive shall not directly
or indirectly through another person or entity (i) induce or attempt to induce
any employee of the Companies or any of their Affiliates to leave the employ of
the Companies or such Affiliates, or in any way interfere with the relationship
between the Companies or any such Affiliates, on the one hand, and any employee
thereof, on the other hand, (ii) hire any person who was an employee of the
Companies, until six months after such individual's employment relationship with
the Companies or any of their Affiliates has been terminated or (iii) induce or
attempt to induce any customer, supplier, licensee or other business relation of
the Companies or any of their Affiliates to cease doing business with the
Companies or any such Affiliates, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation, on the one
hand, and the Companies or any of their Affiliates, on the other hand.
8. OTHER COVENANTS OF THE EXECUTIVE AND THE COMPANIES.
(a) Cooperation with Litigation Proceedings. During the
Employment Period and thereafter, the Executive agrees to provide any assistance
and cooperate fully with the Companies and their counsel with respect to any
matter (including any litigation, investigation or proceeding) which relates to
matters over which the Executive may have knowledge, information or expertise,
including, without limitation, matters related to In re DJ Orthopedics, Inc.
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Securities Litigation, Case No. 01-CV-2238-K (LSP) (S.D. Cal.), the "Medi"
litigation, Case No. 02-CV-0279-K (LAB) (S.D. Cal.), and the "I-Flow"
litigation, Case No. 02-CC-0620 (Sup. Ct. Cal.). Such assistance and cooperation
shall include, but not be limited to, appearing from time to time at the offices
of the Companies or their counsel for conferences and interviews and in general
providing the officers of the Companies and their counsel with the full benefit
of Executive's knowledge with respect to any such matter. Executive agrees to
render such cooperation in a timely fashion and at such times as may be mutually
agreeable to the parties. The Companies shall reimburse the Executive for any
reasonable out-of-pocket costs and expenses incurred by the Executive in
compliance with specific requests made by the Companies pursuant this Paragraph
8(a), except for any fees, costs or expenses associated with the Executive's
time; provided, however, that following the expiration of the Employment Period,
the Company shall pay the Executive for his time given to the matters set forth
in this Paragraph 8(a) at an hourly rate based upon the Executive's highest Base
Salary during the term of the Employment Period.
(b) No Disparagement.
(i) During the Employment Period and thereafter, the
Executive agrees not to make any disparaging remarks or take any actions
which would, or could reasonably be expected, to be detrimental in any
way to the Companies, their Affiliates or any of their respective,
officers, directors or employees. Notwithstanding the foregoing, the
provisions contained in this Paragraph 8(b)(i) shall in no way prevent
or inhibit the Executive from providing truthful testimony in connection
with any legal or administrative proceeding, including without
limitation, any testimony provided under penalty of perjury by way of
deposition, trial or administrative or official investigative hearing.
(ii) During the Employment Period and thereafter,
neither Company shall make any disparaging remarks or take any actions
which would, or could reasonably be expected, to be detrimental in any
way to the Executive. Notwithstanding the foregoing, the provisions
contained in this Paragraph 8(b)(ii) shall in no way prevent or inhibit
the ability of the Companies from making any accurate statement
contained in any press release or any filing required under applicable
federal and state securities laws relating to the decision to hire the
Successor CFO and the transition of the Executive as contemplated
hereunder.
9. ENFORCEMENT.
Because the Executive's services are unique and because the
Executive has access to Confidential Information and Work Product, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event of a breach or threatened breach of this
Agreement, the Companies or their respective successors or assigns may, in
addition to other rights and remedies existing in their favor, apply to any
court of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the provisions
hereof (without posting a bond or other security), or require the Executive to
account for and pay over to the Companies all compensation, profits, moneys,
accruals, increments or other benefits derived from or received as
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a result of any transactions constituting a breach of the covenants contained in
this Agreement, if and when final judgment of a court of competent jurisdiction
is so entered against the Executive.
10. INSURANCE.
The Companies may, for their own benefit, maintain "keyman" life
and disability insurance policies covering the Executive. The Executive will
cooperate with the Companies and provide such information or other assistance as
the Companies may reasonably request in connection with the Companies obtaining
and maintaining such policies.
11. TERMINATION OF PAYMENTS.
In addition to the foregoing, and not in any way in limitation
thereof, or in limitation of any right or remedy otherwise available to the
Companies, if the Executive violates any provision of the foregoing Xxxxxxxxx 0,
Xxxxxxxxx 6, Paragraph 7 or Paragraph 8, any payments then or thereafter due
from the Company to the Executive shall be terminated forthwith and the
Company's obligation to pay and the Executive's right to receive such payments
shall terminate and be of no further force or effect, if and when determined by
a court of competent jurisdiction, in each case without limiting or affecting
the Executive's obligations under such Xxxxxxxxx 0, Xxxxxxxxx 0, Xxxxxxxxx 7 and
Paragraph 8 or the Companies' other rights and remedies available at law or
equity.
12. REPRESENTATIONS AND WARRANTIES.
(a) The Executive hereby represents and warrants to the
Companies that (i) the execution, delivery and performance of this Agreement by
the Executive does not and will not conflict with, breach, violate or cause a
default under any agreement, contract or instrument to which the Executive is a
party or any judgment, order or decree to which the Executive is subject, (ii)
the Executive is not a party to or bound by any employment agreement (other than
the Original Employment Agreement, which shall terminate immediately upon
execution of this Agreement pursuant to Paragraph 13), consulting agreement,
non-compete agreement or confidentiality agreement or similar agreement with any
other person or entity and (iii) upon the execution and delivery of this
Agreement by the Companies and the Executive, this Agreement will be a valid and
binding obligation of the Executive, enforceable in accordance with its terms.
(b) Each of the Companies hereby represents and warrants to the
Executive that (i) this Agreement has been duly authorized by all necessary
limited liability company or corporate action on the part of each of the
Companies, (ii) the execution, delivery and performance of this Agreement by
each of the Companies does not and will not conflict with, breach, violate or
cause a default under any agreement, contract or instrument to which the
Companies are a party or any judgment, order or decree to which the Companies
are subject, and (iii) upon the execution and delivery of this Agreement by the
Companies and the Executive, this Agreement will be a valid and binding
obligation of the Companies.
13. TERMINATION OF EXISTING EMPLOYMENT ARRANGEMENT.
Effective upon the signing of this Agreement (i) the Original
Employment Agreement shall be terminated and shall be of no further force or
effect and the Executive hereby
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agrees to take all action necessary to affect such termination and (ii) the
Executive's duties shall be changed from Senior Vice President of Finance, Chief
Financial Officer and Secretary of the Companies (which position the Executive
held pursuant to the Original Employment Agreement) to those set forth in
Paragraph 2.
14. NOTICES.
All notices, requests, demands, claims, and other communications
hereunder shall be in writing. Any notice, request, demand, claim or other
communication hereunder shall be delivered personally to the recipient,
delivered by United States Post Office mail, telecopied to the intended
recipient at the telecopy number set forth therefor below (with hard copy to
follow), or sent to the recipient by reputable express courier service (charges
prepaid) and addressed to the intended recipient as set forth below:
If to the Companies to:
dj Orthopedics, LLC
dj Orthopedics, Inc.
0000 Xxxxx Xx.
Xxxxx, XX 00000
Attention: Xxx Xxxxx, President and CEO
Telephone: (000) 000-0000
Telecopy: (000) 000-0000;
with a copy to:
X'Xxxxxxxx LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000.
If to the Executive, to:
Xxxxx Xxxxxx III
[Personal Address]
[Telephone]
or such other address as the recipient party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
communication shall deemed to have been delivered and received (a) when
delivered, if personally delivered, sent by telecopier or sent by overnight
courier, and (b) on the fifth business day following the date posted, if sent by
mail.
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15. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the parties
hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
(b) Complete Agreement. This Agreement, those documents
expressly referred to herein and each of (i) the Public Company's Fifth Amended
and Restated 1999 Option Plan and related option agreements between the Public
Company and the Executive, (ii) the Secured Promissory Notes issued by the
Executive to the Public Company (as successor-in-interest to DonJoy, L.L.C.),
(v) the Third Amended and Restated Pledge Agreement, dated June 11, 2001,
between the Executive and the Public Company (as successor-in-interest to
DonJoy, L.L.C.) and (b) the Note and Pledge Agreements Sideletter, dated
November 20, 2001, between the Executive and the Public Company, in each case as
such agreements may be amended, restated, supplemented or otherwise modified
(collectively, the "Management Related Documents") embody the complete agreement
and understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way
(including, without limitation, the Original Employment Agreement which is
hereby terminated and shall be of no further force or effect).
(c) Right of Set Off. In the event of a breach by the Executive
of the provisions of any of the Management Related Documents, the Companies are
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all amounts at any time held by
the Companies on behalf of the Executive and all indebtedness and other
obligations at any time owing by the Companies to the Executive against any and
all of the obligations of the Executive now or hereafter existing under the
Management Related Documents.
(d) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Executive and the Companies and their respective successors, assigns, heirs,
representatives and estate; provided, however, that the rights and obligations
of the Executive under this Agreement shall not be assigned without the prior
written consent of the Companies.
(e) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE
(WHETHER OF THE STATE OF DELAWARE OR
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ANY OTHER JURISDICTION), THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF CALIFORNIA TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE
INTERNAL LAW OF THE STATE OF CALIFORNIA WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW
OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY.
(f) Jurisdiction and Venue.
(i) The Companies and the Executive hereby irrevocably
and unconditionally submit, for themselves and their property, to the
non-exclusive jurisdiction of the Superior Court of the State of
California in and for the County of San Diego, in any action or
proceeding arising out of or relating to this Agreement or for
recognition or enforcement of any judgment, and the Companies and the
Executive hereby irrevocably and unconditionally agree that all claims
in respect of any such action or proceeding may be heard and determined
in any such California State court. The Companies and the Executive
agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(ii) The Companies and the Executive irrevocably and
unconditionally waive, to the fullest extent they may legally and
effectively do so, any objection that they may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in the Superior Court of the State of
California in and for the County of San Diego. The Companies and the
Executive irrevocably waive, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(iii) The Companies and the Executive further agree that
the mailing by certified or registered mail, return receipt requested,
of any process required by any such court shall constitute valid and
lawful service of process against them, without the necessity for
service by any other means provided by law.
(g) Amendment and Waiver. The provisions of this Agreement may
be amended and waived only with the prior written consent of the Companies and
the Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or any provision hereof.
(h) 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.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
11
(j) Attorney's Fees. The Company agrees to pay reasonable and
substantiated fees and out-of-pocket expenses of counsel to the Executive for
such counsel's review of this Agreement.
(k) No Limitation on Indemnification. Nothing in this Agreement
shall diminish, reduce or eliminate in any manner the rights to indemnification
provided by the Companies to the Executive in his capacity as an officer of the
Companies as provided (i) in the Amended and Restated Certificate of
Incorporation of the Public Company dated November 19, 2001, (ii) in the Amended
and Restated Operating Agreement of the Company dated as of June 30, 1999 and
(iii) under Delaware law.
* * * *
12
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Employment Agreement as of the date first written above.
DJ ORTHOPEDICS, LLC
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
DJ ORTHOPEDICS, INC
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
/s/ XXXXX XXXXXX III
----------------------------------------
XXXXX XXXXXX III
