Exhibit 10.37
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this
31st day of December, 1998 by and between Integra LifeSciences Corporation, a
Delaware corporation, and Xxxxxx X'Xxxxx ("Executive").
Background
Executive is currently the Senior Vice President, Regulatory
Affairs/Quality Assurance of Company. Company desires to continue to employ
Executive, and Executive desires to remain in the employ of Company, on the
terms and conditions contained in this Agreement. Executive will be
substantially involved with Company's operations and management and will learn
trade secrets and other confidential information relating to Company and its
customers; accordingly, the noncompetition covenant and other restrictive
covenants contained in Section 14 of this Agreement constitute essential
elements hereof.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein and intending to be legally bound hereby,
the parties hereto agree as follows:
Terms
16. Definitions. The following words and phrases shall have
the meanings set forth below for the purposes of this Agreement (unless the
context clearly indicates otherwise):
(a) "Base Salary" shall have the meaning set forth in
Section 5.
(b) "Board" shall mean the Board of Directors of Company,
or any successor thereto.
(c) "Cause," as determined by the Board in good faith,
shall mean Executive has --
(1) failed to perform his stated duties and not
cured such failure (if curable) within 15 days of his receipt
of written notice of the failure;
(2) breached any provision of this Agreement and
not cured such breach (if curable) within 15 days of his
receipt of written notice of the breach;
(3) demonstrated his personal dishonesty in
connection with his employment by Company;
(4) engaged in willful misconduct;
(5) engaged in a breach of fiduciary duty;
(6) willfully violated any law, rule or
regulation, or final cease-and-desist order (other than
traffic violations or similar offenses); or
(7) engaged in other serious misconduct of such
a nature that his continued employment may reasonably be
expected to affect Company adversely.
(d) A "Change in Control" of Company shall be deemed to
have occurred:
(1) if the "beneficial ownership" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of
securities representing more than fifty percent (50%) of the
combined voting power of Company Voting Securities (as herein
defined) is acquired by any individual, entity or group (a
"Person"), Company, any trustee or other fiduciary holding
securities under any employee benefit plan of Company or an
affiliate thereof, or any corporation owned, directly or
indirectly, by the stockholders of Company in substantially
the same proportions as their ownership of stock of Company
(for purposes of this Agreement, "Company Voting Securities"
shall mean the then outstanding voting securities of Company
entitled to vote generally in the election of directors);
provided, however, that any acquisition from Company or any
acquisition pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of paragraph (3) of this
definition shall not be a Change in Control under this
paragraph (1); or
(2) if individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination
for election by Company's stockholders, was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election
or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(3) upon consummation by Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of
Company or the acquisition of assets or stock of another
entity (a "Business Combination"), in each case, unless
immediately following such Business Combination: (i) more
than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election
of directors of (x) the corporation resulting from such
Business Combination (the "Surviving Corporation"), or (y) if
applicable, a corporation which as a result of
such transaction owns Company or all or substantially all
of Company's assets either directly or through one or more
subsidiaries (the "Parent Corporation"), is represented,
directly or indirectly, by Company Voting Securities
outstanding immediately prior to such Business Combination
(or, if applicable, is represented by shares into which
such Company Voting Securities were converted pursuant to
such Business Combination), and such voting power among the
holders thereof is in substantially the same proportions as
their ownership, immediately prior to such Business
Combination, of the Company Voting Securities; (ii) no
Person (excluding any employee benefit plan (or related
trust) of Company or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 50% or more of the combined voting power of the
then outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) except to
the extent that such ownership of Company existed prior to
the Business Combination; and (iii) at least a majority of
the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) were members of the Incumbent Board
at the time of the execution of the initial agreement, or
the action of the Board, providing for such Business
Combination; or
(4) upon approval by the stockholders of Company
of a complete liquidation or dissolution of Company.
(e) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(f) "Company" shall mean Integra LifeSciences Corporation
and any corporation, partnership or other entity owned directly or indirectly,
in whole or in part, by Integra LifeSciences Corporation.
(g) "Disability" shall mean Executive's inability to
perform his duties hereunder by reason of any medically determinable physical
or mental impairment which is expected to result in death or which has lasted
or is expected to last for a continuous period of not fewer than six months.
(h) "Good Reason" shall mean:
(1) a material breach of this Agreement by
Company which is not cured by Company within 15 days of its
receipt of written notice of the breach;
(2) without Executive's express written consent,
the Board reduces Executive's Base Salary or the aggregate
fringe benefits provided to Executive (except to the extent
permitted by Section 5 or Section 6, respectively); provided,
Executive resigns within 30 days after the change objected
to; or
(3) Company fails to obtain the assumption of
this Agreement by any successor to Company.
(i) "Principal Executive Office" shall mean Company's
principal office for executives, presently located at 000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000.
(j) "Retirement" shall mean the termination of Executive's
employment with Company in accordance with the retirement policies, including
early retirement policies, generally applicable to Company's salaried
employees.
(k) "Termination Date" shall mean the date specified in
the Termination Notice.
(l) "Termination Notice" shall mean a dated notice which:
(i) indicates the specific termination provision in this Agreement relied upon
(if any); (ii) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of Executive's employment under
such provision; (iii) specifies a Termination Date; and (iv) is given in the
manner specified in Section 15(h).
17. Employment. Company hereby employs Executive as Senior
Vice President, Regulatory Affairs/Quality Assurance and Executive hereby
agrees to continue such employment and agrees to render services to Company in
such capacity (or in such other capacity in the future as the Chief Executive
Officer may decide in his sole discretion) on the terms and conditions set
forth in this Agreement. Executive's primary place of employment shall be at
the Principal Executive Office or other corporate location as the Chief
Executive Officer deems appropriate.
18. Term.
(a) Term and Renewal of Agreement. Unless earlier
terminated by Executive or Company as provided in Section 10 hereof, the term
of Executive's employment under this Agreement shall be two (2) years,
commencing on the date of this Agreement and, subject to subsection 3(b), shall
be deemed automatically, without further action, to extend for an additional
year on each annual anniversary of the date of this Agreement.
(b) Annual Review. Prior to the second annual anniversary
of the date of this Agreement and each annual anniversary thereafter, the Board
shall consider extending the term of this Agreement. The term shall continue to
extend in the manner set forth in subsection 3(a) unless either the Board does
not approve the extension and provides written notice to Executive of such
event, or Executive gives written notice to Company of Executive's election not
to extend the term. In either case, the written notice shall be given not fewer
than 30 days prior to any such anniversary date. References herein to the term
of this Agreement shall refer both to the initial term and successive terms.
19. Duties. Executive shall:
(a) faithfully and diligently do and perform all such acts
and duties, and furnish such services as are assigned to Executive as of the
date this Agreement is signed, and (subject to Section 2) such additional or
different acts, duties and services as the Chief Executive Officer may assign
in the future; and
(b) devote his full professional time, energy, skill and
best efforts to the performance of his duties hereunder, in a manner that will
faithfully and diligently further the business and interests of Company, and
shall not be employed by or participate or engage in or in any manner be a part
of the management or operations of any business enterprise other than Company
without the prior written consent of the Board, which consent may be granted or
withheld in its sole discretion.
20. Compensation. Company shall compensate Executive for his
services at a minimum base salary of $145,000 per year ("Base Salary"), payable
in periodic installments in accordance with Company's regular payroll practices
in effect from time to time. Executive's Base Salary may be increased from time
to time in such amounts as may be determined by the Board, but may not be
decreased without Executive's express written consent (unless the decrease is
pursuant to a general compensation reduction applicable to all, or
substantially all, executive officers of Company). Bonus payments may be made
as determined appropriate by the Board in its sole discretion.
21. Benefit Plans. Executive shall be entitled to participate
in and receive benefits under any employee benefit plan or stock-based plan of
Company, and shall be eligible for any other plans and benefits covering
executives of Company, to the extent commensurate with his then duties and
responsibilities fixed by the Board. Company shall not make any change in such
plans or benefits which would adversely affect Executive's rights thereunder,
unless such change affects all, or substantially all, executive officers of
Company.
22. Vacation. Executive shall be entitled to paid annual
vacation in accordance with the policies established from time to time by the
Board, which shall in no event be fewer than three weeks per annum. Regardless
of what the Company's standard vacation policy may be, Executive shall not be
entitled to extra cash payments for any vacation he does not utilize.
23. Business Expenses. Company shall reimburse Executive or
otherwise pay for all reasonable expenses incurred by Executive in furtherance
of or in connection with the business of Company, including, but not limited
to, automobile and traveling expenses and all reasonable entertainment
expenses, subject to such reasonable documentation and other limitations as may
be established by the Board.
24. Disability. In the event Executive incurs a Disability,
Executive's obligation to perform services under this Agreement will terminate,
and the Board may terminate this Agreement upon written notice to Executive.
25. Termination
(a) Termination without Salary Continuation. In the event
(i) Executive terminates his employment hereunder other than for Good Reason,
or (ii) Executive's employment is terminated by Company due to his Retirement,
Disability or death, or for Cause, Executive shall have no right to
compensation or other benefits pursuant to this Agreement for any period after
his last day of active employment.
(b) Termination with Salary Continuation (No Change in
Control). Except as provided in subsection 10(c) in the event of a Change in
Control, in the event (i) Executive's employment is terminated by Company for a
reason other than Retirement, Disability, death or Cause, or (ii) Executive
terminates his employment for Good Reason, then Company shall:
(1) pay Executive a severance amount equal to
the greater of (i) one times Executive's Base Salary as of
his last day of active employment, or (ii) the unpaid portion
of Executive's Base Salary for the remainder of the then
current term of this Agreement; the severance amount shall be
paid in a single sum on the first business day of the month
following the Termination Date (unless Executive elects, in
writing and on, or not later than 30 days after, the date
this Agreement is executed, to receive the severance payment
divided into 24 equal monthly installments, paid beginning on
the first business day of the month following the Termination
Date); and
(2) maintain and provide to Executive, at no
cost to Executive, for a period ending at the earliest of (i)
the expiration of 12 months from Executive's last day of
active employment; (ii) the date of Executive's full-time
employment by another employer; or (iii) Executive's death,
continued participation in all group insurance, life
insurance, health and accident, disability, and other
employee benefit plans in which Executive would have been
entitled to participate had his employment with Company
continued throughout such period, provided that such
participation is not prohibited by the terms of the plan or
by Company for legal reasons.
(c) Termination with Salary Continuation (Change in
Control). Notwithstanding anything to the contrary set forth in subsection
10(b), in the event within six months of a Change in Control: (i) Executive
terminates his employment for Good Reason; or (ii) Executive's employment is
terminated by Company for a reason other than Retirement, Disability, death or
Cause, then Company shall:
(1) pay Executive a severance amount equal to
2.99 times Executive's Base Salary as of his last day of
active employment; the severance amount shall be paid in a
single sum on the first business day of the month following
the Termination Date (unless Executive elects, in writing and
on, or not later than 30 days after, the date this Agreement
is executed, to receive the severance payment divided into 24
equal monthly installments, paid beginning on the first
business day of the month following the Termination Date);
and
(2) maintain and provide to Executive, at no
cost to Executive, for a period ending at the earliest of (i)
the expiration of 12 months from Executive's last day of
active employment; (ii) the date of Executive's full-time
employment by another employer; or (iii) Executive's death,
continued participation in all group insurance, life
insurance, health and accident, disability, and other
employee benefit plans in which Executive would have been
entitled to participate had his employment with Company
continued throughout such period, provided that such
participation is not prohibited by the terms of the plan or
by Company for legal reasons.
(d) Termination Notice. Except in the event of Executive's
death, a termination under this Agreement shall be effected by means of a
Termination Notice.
26. Withholding. Company shall have the right to withhold
from all payments made pursuant to this Agreement any federal, state, or local
taxes and such other amounts as may be required by law to be withheld from such
payments.
27. Assignability. Company may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any entity to
which Company may transfer all or substantially all of its assets, if in any
such case said entity shall expressly in writing assume all obligations of
Company hereunder as fully as if it had been originally made a party hereto.
Company may not otherwise assign this Agreement or its rights and obligations
hereunder. This Agreement is personal to Executive and his rights and duties
hereunder shall not be assigned except as expressly agreed to in writing by
Company.
28. Death of Executive. Any amounts due Executive under this
Agreement (not including any Base Salary not yet earned by Executive) unpaid as
of the date of Executive's death shall be paid in a single sum as soon as
practicable after Executive's death to Executive's surviving spouse, or if
none, to the duly appointed personal representative of his estate.
29. Restrictive Covenants.
(a) Covenant Not to Compete. During the term of this
Agreement and for a period of two (2) years following the Termination Date,
Executive shall not directly or indirectly: (i) engage, anywhere within the
geographical areas in which Company is conducting business operations or
providing services as of the date of Executive's termination of employment, in
the tissue engineering business (the use of implantable absorbable materials,
with or without a bioactive component, to attempt to elicit a specific cellular
response in order to regenerate tissue or to impede the growth of tissue or
migration of cells) (the "Tissue Engineering Business") or any other business
the revenues of which constituted at least 30% of Company's revenues during the
six (6) month period prior to the Termination Date (together with the Tissue
Engineering Business, the "Business"); (ii) be or become a stockholder,
partner, owner, officer, director or employee or agent of, or a consultant to
or give financial or other assistance to, any person or entity engaged in the
Business; (iii) seek in competition with the business of Company to procure
orders from or do business with any customer of Company; (iv) solicit or
contact with a view to the engagement or employment by any person or entity of
any person who is an employee of Company; (v) seek to contract with or engage
(in such a way as to adversely affect or interfere with the business of
Company) any person or entity who has been contracted with or engaged to
manufacture, assemble, supply or deliver products, goods, materials or services
to Company; or (vi) engage in or participate in any effort or act to induce any
of the customers, associates, consultants, or employees of Company to take any
action which might be disadvantageous to Company; provided, however, that
nothing herein shall prohibit Executive and his affiliates from owning, as
passive investors, in the aggregate not more than 5% of the outstanding
publicly traded stock of any corporation so engaged.
(b) Confidentiality. Executive acknowledges a duty of
confidentiality owed to Company and shall not, at any time during or after his
employment by Company, retain in writing, use, divulge, furnish, or make
accessible to anyone, without the express authorization of the Board, any trade
secret, private or confidential information or knowledge of Company obtained or
acquired by him while so employed. All computer software, business cards,
telephone lists, customer lists, price lists, contract forms, catalogs, Company
books, records, files and know-how acquired while an employee of Company are
acknowledged to be the property of Company and shall not be duplicated, removed
from Company's possession or premises or made use of other than in pursuit of
Company's business or as may otherwise be required by law or any legal process,
or as is necessary in connection with any adversarial proceeding against
Company and, upon termination of employment for any reason, Executive shall
deliver to Company, without further demand, all copies thereof which are then
in his possession or under his control. No information shall be treated as
"confidential information" if it is generally available public knowledge at the
time of disclosure or use by Executive.
(c) Inventions and Improvements. Executive shall promptly
communicate to Company all ideas, discoveries and inventions which are or may
be useful to Company or its business. Executive acknowledges that all such
ideas, discoveries, inventions, and improvements which heretofore have been or
are hereafter made, conceived, or reduced to practice by him at any time during
his employment with Company heretofore or hereafter gained by him at any time
during his employment with Company are the property of Company, and Executive
hereby irrevocably assigns all such ideas, discoveries, inventions, and
improvements to Company for its sole use and benefit, without additional
compensation. The provisions of this Section 14(c) shall apply whether such
ideas, discoveries, inventions, or improvements were or are conceived, made or
gained by him alone or with others, whether during or after usual working
hours, whether on or off the job, whether applicable to matters directly or
indirectly related to Company's business interests (including potential
business interests), and whether or not within the specific realm of his
duties. Executive shall, upon request of Company, but at no expense to
Executive, at any time during or after his employment with Company, sign all
instruments and documents reasonably requested by Company and otherwise
cooperate with Company to protect its right to such ideas, discoveries,
inventions, or improvements including applying for, obtaining, and enforcing
patents and copyrights thereon in such countries as Company shall determine.
(d) Breach of Covenant. Any breach or violation of the
provisions in this Section 14 by Executive will result in forfeiture by
Executive and all other persons of all rights to any further payments or
benefits under this Agreement, and in such event Company
shall have no further obligation to pay any amounts related thereto. Executive
expressly acknowledges that damages alone will be an inadequate remedy for any
breach or violation of any of the provisions of this Section 14 and that
Company, in addition to all other remedies, shall be entitled as a matter of
right to equitable relief, including injunctions and specific performance, in
any court of competent jurisdiction. If any of the provisions of this Section
14 are held to be in any respect unenforceable, then they shall be deemed to
extend only over the maximum period of time, geographic area, or range of
activities as to which they may be enforceable.
30. Miscellaneous.
(a) Amendment. No provision of this Agreement may be
amended unless such amendment is signed by Executive and such officer as may be
specifically designated by the Board to sign on Company's behalf.
(b) Nature of Obligations. Nothing contained herein shall
create or require Company to create a trust of any kind to fund any benefits
which may be payable hereunder, and to the extent that Executive acquires a
right to receive benefits from Company hereunder, such right shall be no
greater than the right of any unsecured general creditor of Company.
(c) Prior Employment. Executive represents and warrants
that his acceptance of employment with Company has not breached, and the
performance of his duties hereunder will not breach, any duty owed by him to
any prior employer or other person.
(d) 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. In the event of a conflict between
a heading and the content of a Section, the content of the Section shall
control.
(e) Gender and Number. Whenever used in this Agreement, a
masculine pronoun is deemed to include the feminine and a neuter pronoun is
deemed to include both the masculine and feminine, unless the context clearly
indicates otherwise. The singular form, whenever used herein, shall mean or
include the plural form where applicable.
(f) Severability. If any provision of this Agreement or
the application thereof to any person or circumstance shall be invalid or
unenforceable under any applicable law, such event shall not affect or render
invalid or unenforceable any other provision of this Agreement and shall not
affect the application of any provision to other persons or circumstances.
(g) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
permitted assigns, heirs, executors, and administrators.
(h) Notice. For purposes of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given if hand-delivered, sent by documented
overnight delivery service or by certified
or registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Company:
Integra LifeSciences Corporation
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: President
To the Executive:
Xx. Xxxxxx X'Xxxxx
00 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
(i) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements, arrangements
and communications, whether oral or written, pertaining to the subject matter
hereof.
(j) Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the United States where applicable and otherwise by the laws of the State of
New Jersey.
IN WITNESS WHEREOF, this Agreement has been executed as of
the date first above written.
INTEGRA LIFESCIENCES CORPORATION
By:
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Title:
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EXECUTIVE
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Xxxxxx X'Xxxxx
