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EXHIBIT 10.12
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "AGREEMENT"), is made this 19th day of
September, 1995, by and between ENCORE(R) ORTHOPEDICS INC., a Texas
corporation, with its principal office located at 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, (the "COMPANY"), and XXXXXXX XXXXXX, an
individual resident at X.X. Xxx 000000, Xxxxxx, Xxxxx 00000 (the "EMPLOYEE" or
the "EXECUTIVE").
WITNESSETH
WHEREAS, the Employee is employed by the Company as its Vice President
- Marketing pursuant to an employment agreement dated August 26, 1994 (such
employment agreement as it may be amended or supplemented from time to time and
any successor agreement being referred to as the "EMPLOYMENT AGREEMENT"); and
WHEREAS, the Board of Directors of the Company (the "BOARD") has
approved the Chief Executive Officer of the Company entering into severance
agreements with key executives of the Company; and
WHEREAS, the Employee is a key executive of the Company and has been
selected by the Chief Executive Officer of the Company to be offered a
severance agreement; and
WHEREAS, the Board believes that if the Company should receive or
learn of any proposal from a third person concerning a possible business
combination with the Company, or an acquisition of equity securities or a
substantial portion of the assets of the Company, it is important that the
Company should be able to rely upon the Executive to continue in his position
and that the Board and the Chief Executive Officer should be able to receive
and rely upon his advice as to the best interests of the Company and its
shareholders, without concern that the Executive might be distracted by any
personal uncertainties and risks created by such a proposal; and
WHEREAS, should the Company receive any such proposals, in addition to
the Executive's regular duties, he may be called upon to assist in the
assessment of such proposal, to advise management and the Board whether such
proposals would be in the best interests of the Company and its shareholders,
and to take such other actions as the Board may determine to be appropriate;
and
WHEREAS, the Company wishes to be assured that it will have the
continued dedication of the Executive and the availability of his advice and
counsel despite the possibility, threat or occurrence of a bid to take over
control of the Company; and
WHEREAS, the Company wishes to induce the Executive to remain in the
employment of the Company under such circumstances; and
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WHEREAS, the Executive is willing to give the Company such assurances
and to enter into the other covenants contained in this Agreement; and
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
set forth below:
(a) "CAUSE" shall have the same meaning as "discharge for
cause" as defined in Section 1.5.2 of the Employment Agreement as well
as include the repeated violation by the Executive of his obligations
under this Agreement which are demonstrably willful and deliberate on
the part of the Executive and which are not redeemed in a reasonable
period of time after receipt of written notice from the Company.
(b) "CHANGE IN CONTROL" means any of the following
events:
(i) the acquisition by any person, including a
"group" as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, of beneficial ownership of shares of
capital stock or other voting securities of the Company that
have thirty-three and one third percent (33 1/3%) or more of
either (A) the then outstanding shares of the Company's common
stock or (B) the combined voting power of the Company's then
outstanding voting securities that are entitled to vote
generally for the election of the Board;
(ii) the sale or other disposition by the Company
to an unrelated third party of all or substantially all of the
Company's assets;
(iii) the consummation of a reorganization, merger,
or consolidation involving the Company if as a result of such
transaction persons who were shareholders of the Company
immediately before the reorganization, merger or consolidation
do not immediately thereafter own, directly or indirectly,
more than fifty percent (50%) of the combined voting power of
the then outstanding voting securities of the reorganized,
merged or consolidated Company that are entitled to vote
generally for the election of the board of such entity; or
(iv) the failure for any reason of individuals who
constitute the Incumbent Board to continue to constitute at
least a majority of the Board.
(c) "DISABILITY" means the total and permanent inability
of the Executive due to illness, accident or other physical or mental
incapacity to perform the usual duties of his employment under the
Employment Agreement for a substantially continuous period of one
hundred eighty (180) days, as determined by a physician selected by
the Company and
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acceptable to the Executive or the Executive's legal representative
(which agreement as to acceptability will not be unreasonably
withheld).
(d) "GOOD REASON" means any of the following:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting
requirements), authority, duties or responsibilities
contemplated by the Employment Agreement, or any other action
by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action that
is not taken in bad faith and that is remedied by the Company
promptly after receipt of notice thereof from the Executive;
(ii) the reduction in the overall level of the
Executive's compensation or benefits;
(iii) the Company's requiring the Executive to be
based at any office or location other than the Company's
executive offices in the Austin, Texas SMSA, except for travel
reasonably required in the performance of the Executive's
responsibilities;
(iv) any significant increase in the travel
requirements of the Executive's position; for the purposes of
this clause (iv) a "significant" increase would include any
circumstances under which the Executive is or will be
required, during any six-month period, to spend more than
twice the number of nights away from home as were necessary
during the previous six-month period; or
(v) an inability on the part of the Executive to
carry out the duties of his position in good faith as a result
of a major disagreement between the Executive and other
executives of the Company who have been appointed after a
Change of Control concerning strategic or policy issues
affecting the Company or its business as a whole.
(e) "INCUMBENT BOARD" means those individuals who are
members of the Board on the date of this Agreement and any person who
subsequently becomes a member of the Board and whose election, or
whose nomination for election by the Company shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board.
2. TERMINATION PAYMENTS.
(a) Termination of employment. If any Change of Control
of the Company occurs after the date of this Agreement and
subsequently, on or before the third
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anniversary of such Change of Control, the Executive's employment by
the Company or its successor in interest is terminated
(i) by the Company or its successor in interest
for any reason other than (A) for Cause, or (B) because of the
Executive's death or Disability, or
(ii) by the Executive for Good Reason,
(a "TERMINATION EVENT") then the Executive will be entitled to
receive, and the Company will pay or provide, the benefits set forth
in subsection (b) below.
(b) Severance benefits. Upon the occurrence of a
Termination Event described in subsection (a) above then, in addition
to the performance of its obligations under the Employment Agreement
but in the case of amounts payable under clauses (i) and (ii) without
duplication of any similar payments then due and payable under the
Employment Agreement:
(i) The Company will pay to the Executive within
thirty (30) days after the Termination Event an amount equal
to the sum of:
(A) his highest full base annual salary
in effect within one (1) year of the
Termination Event, plus
(B) the amount of any bonus, payable in
cash only notwithstanding the terms
of any bonus plan, with respect to
any year that has then ended which
was or would have accrued to the
Executive under any bonus plan then
in effect but which has not yet been
paid to him, plus
(C) an amount, payable in cash only
notwithstanding the terms of any
bonus plan, equal to the product of
(aa) the average of the bonus paid
or payable to the Executive for the
two preceding years (whether same
was paid in cash or its equivalent
value) multiplied by (bb) a fraction
of which the numerator is the number
of weeks that have elapsed in the
then current year through the date
of termination and the denominator
is 52, plus
(D) an amount equal to the product of
(aa) the number of unused vacation
days accrued by the Executive
through the date of termination
multiplied by (bb) a fraction the
numerator of which is the
Executive's highest base salary in
effect within one (1) year of the
Termination Event and the
denominator of which is 250;
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(ii) The Company will contribute in cash to any
retirement or saving plan in which the Executive is
participating, within thirty (30) days after the date of
termination, the maximum amount which the Company is permitted
to contribute based on the payments made pursuant to paragraph
(i) above and, at the Executive's election, will buy back the
stock held by the Executive in any such plan at its then fair
market value, depositing said value in cash into said plan;
(iii) The Company will pay in cash to the Executive
within thirty (30) days after the date of termination a
severance payment in an amount equal to the sum of
(A) three hundred percent (300%) of his
full base annual salary at the
highest rate in effect within one
(1) year of the Termination Event,
plus
(B) three hundred percent (300%) of the
average bonus paid or payable to him
for the two (2) preceding years
(whether same was paid in cash or
its equivalent value);
provided that if the amount payable by the Company to the
Executive under this clause (iii), without regard to any other
payments or benefits payable to the Executive under this
Agreement or the Employment Agreement, would constitute an
"excess parachute payment" for the purposes of Sections 280G
and 4999 of the Internal Revenue Code then the amount payable
by the Company under this Section 2b as a severance benefit
will be "grossed up" by the amount necessary in order to
reimburse Executive for any taxes due as a result of such an
"excess parachute payment" as per section 6 hereof.
(iv) The Company will amend or revise all stock
option plans and restricted stock awards to which the
Executive is a party, or grant appropriate waivers of any
restrictions contained in such plans and awards, so as to
remove all restrictions upon the exercise by the Executive of
such options or upon the ability of the Executive to sell any
shares of stock that are subject to any such options or
awards. As part of such amendments or revisions, the Company
will accelerate the vesting period for Executive to an
immediate one hundred (100%) and shall allow the Executive the
option to exercise his options or stock awards either within
ninety (90) days of his effective termination date and such
option remain as an incentive stock option or before the
termination of the original option or stock award period and
have such options be converted automatically into
non-qualified stock options for purposes of the Internal
Revenue Code.
(v) The Company will prepay in full if at all
possible, and if not possible, ensure to the satisfaction of
Executive maintenance in full force and effect for the benefit
of the Executive and his spouse and dependents (if covered
prior to the date of termination) in each case for a period
from the date of termination until
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the later of the death of the Executive or his spouse, during
their period of their eligibility, all employee life, health,
accident, disability, medical and other employee welfare
benefits plans provided by the Company in which the Executive
or his spouse or his dependents are participating at the time
of the Executive's termination under the same terms and
conditions as then in effect; provided, that if the
Executive's or his spouse's or his dependents continued
participation is not permitted under the general terms of such
plans, the Company shall arrange to provide substantially
similar benefits;
(vi) The Company will maintain for the benefit of
the Executive such policy of liability insurance, providing
protection to him as an officer, director, agent or employee
of the Company or its subsidiaries, as may from time to time
be purchased by the Company for officers and directors
generally as authorized by or in furtherance of the
indemnification provisions contained in the Company's bylaws.
Neither the insurance nor the Executive's right to
indemnification thereunder may be canceled by the Company
without his permission for a period of five years following
the date of termination under this Agreement; provided,
however, that the Company may obtain a substitute insurance
policy as long as the rights of indemnity to the Executive are
at least equivalent to the most favorable rights provided
under the policy in effect immediately prior to the date of
termination.
(b) The Executive shall have no duty to mitigate, whether
by seeking other employment or otherwise, any loss or damage suffered
by him as a result of any failure by the Company to make any payment,
or provide any benefit, to him under this Section 2.
3. AGREEMENTS OF EXECUTIVE.
The Executive covenants and agrees as follows:
(a) Provision of services when Change of Control is
threatened. If any person begins a tender or exchange offer for
voting securities of the Company, or circulates a proxy to
shareholders of the Company or takes any other action for the purposes
of effecting a Change of Control of the Company, then notwithstanding
the terms of the Employment Agreement or any other agreement between
the Executive and the Company the Executive will not voluntarily leave
the employment of the Company and will render the services
contemplated in the recitals to this Agreement until either (i) such
person has abandoned or terminated his efforts to effect a Change of
Control or (ii) three months have elapsed since the date on which a
Change of Control has occurred.
(b) Noncompetition. Without limiting the terms of any
similar provision in the Employment Agreement or any other agreement
between the Executive and the Company, if the Executive's employment
with the Company is terminated under any circumstances that entitle
the Executive to receive the payments and other benefits provided in
Section 2, then for a period of one year (or six (6) months should
Executive make the election in
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the last sentence of Section 2.1 of the Employment Agreement) from the
Termination Event the Executive will not:
(i) have any interest in, whether as proprietor,
officer, director or otherwise (but excluding an interest by
way of employment only),
(ii) act as an agent, broker or distributor for,
or as an adviser or consultant to,
(iii) be employed in any senior managerial or
executive position by any corporation, partnership, limited
liability company or other business organization in which he
has responsibility for,
any business (regardless of the form in which such business is
conducted) which is engaged, or which he reasonably expects to become
engaged, in the business of designing, manufacturing, distributing or
selling artificial joints and limbs and other orthopedic implant
devices in the United States; provided that the ownership by the
Executive of not more than two percent (2%) of the shares of any
publicly traded corporation or twenty percent (20%) of a privately
held company shall not constitute a violation of this subsection (b).
(c) Publications by Executive. Without limiting the
terms of any similar provision in the Employment Agreement or any
other agreement between the Executive and the Company, if the
Executive's employment with the Company is terminated under any
circumstances that entitle the Executive to receive the payments and
other benefits provided in Section 2, then
(i) the Executive will refrain from making any
disparaging comments about the Company or any of its
affiliates, and
(ii) for a period of one (1) year from the
Termination Event the Executive will not without the prior
written permission of the Company write or publish, or assist
in the writing or publication of, any books, articles or other
materials that would adversely affect the interests of the
Company or its affiliates.
(d) Remedies. The Executive acknowledges that any
violation of this Section may cause irreparable harm to the Company,
and that damages are not an adequate remedy, and the Executive
therefore agrees that the Company shall be entitled to an injunction
by any appropriate court in the appropriate jurisdiction, enjoining,
prohibiting and restraining the Executive from the continuance of any
such violation, in addition to any monetary damages which might occur
by reason of the violation of this Agreement.
(e) Independent. The covenants set forth in the
foregoing subsections (a), (b), (c), and (d) shall be deemed and shall
be construed as separate and independent covenants, and should any
part or provision of such covenants be held invalid, void or
unenforceable
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by any court of competent jurisdiction, such invalidity, voidness, or
unenforceability shall in no way render invalid, void, or
unenforceable any other part or provision thereof or any separate
covenant not declared invalid, void, or unenforceable. This Agreement
shall in that case be construed as if the void, invalid or
unenforceable provisions were omitted.
4. NOTICE OF TERMINATION.
Any termination of the Executive's employment by the Company or its
successor in interest or by the Executive shall be communicated by a written
notice of termination to the other party, and shall specify the provision of
this Agreement relied upon and shall set forth in reasonable detail the
circumstances claimed to provide a basis for termination. The date of
termination shall be the date on which the notice of termination is delivered
if by the Executive or thirty (30) days after the date of the notice of
termination if given by the Company. All applicable benefits to Executive
hereunder shall be triggered if said notice of termination is given within the
three (3)-year period specified in Section 2(a) hereof.
5. LITIGATION EXPENSES.
The Company shall pay reasonable legal fees and expenses incurred by
the Executive as a result of his seeking to obtain or enforce any right or
benefit provided by this Agreement, promptly and from time to time, at his
request as such fees and expenses are incurred.
6. EXCESS PARACHUTE PAYMENTS.
(a) If any federal excise tax is imposed under Section
4999 of the Internal Revenue Code of 1986, as amended (an "EXCISE
TAX") on the Executive with respect to any payments or benefits
provided under Section 2, the Company hereby agrees, subject to the
exceptions and limitations set forth below, to pay the Executive such
additional amount (the "ADDITIONAL AMOUNT") as is necessary to cause
the Executive to realize the same net amount after the imposition of
all federal income tax, estate tax and Excise Tax imposed on payments
and benefits under Section 2 (and on such Additional Amount payable
under this Section 6) that he would have realized had such federal
income tax, estate tax, and Excise Tax not been imposed upon him with
respect to such payments and benefits under Section 2 and this Section
6; provided, however, that no such Additional Amount shall be due with
respect to
(i) any penalties, interest, or similar charges,
if any, assessed with respect to or arising out of any income
tax, estate tax, or Excise Tax due unless the Company delays
the payment contemplated herein to the Executive or
(ii) any income tax or estate tax which would be
owing by the Executive in the absence of the imposition of the
Excise Tax.
(b) The Company shall have the right to contest, but the
Executive shall have no duty to contest, the assessment of any such
taxes, but in any event, the Executive
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agrees to cooperate in any contest the Company chooses to make
provided the Company shall pay the costs of any such contest.
7. ASSIGNMENT; SUCCESSORS IN INTEREST.
(a) General. Except with the prior written consent of
the Executive,
(i) no assignment by operation of law or
otherwise by the Company of any of its rights and obligations
under this Agreement may be made other than to an entity in
common control with or a successor to all or a substantial
portion of the business of the Company (but then only if such
entity assumes by operation of law or by specific assumption
executed by the transferee and delivered to the Executive all
obligations and liabilities of the Company under this
Agreement);
(ii) no transfer by operation of law or otherwise
by the Company of all or a substantial part of its business or
assets shall be made unless the obligations and liabilities of
the Company under this Agreement are assumed in connection
with such transfer either by operation of law or by specific
assumption executed by the transferee and delivered to the
Executive; and
(iii) in any such event the Company shall remain
liable for the performance of all of its obligations under
this Agreement (which liability shall be a primary obligation
for full and prompt performance rather than a secondary
guarantee of collectibility of damages).
Except for any transfer or assignment of rights under this Agreement,
in whole or in part, upon the death of the Executive to his heirs,
devisees, legatees or beneficiaries or except with the prior written
consent of the Company, no assignment or transfer by operation of law
or otherwise may be made by the Executive of any of his rights under
this Agreement.
(b) Binding Nature. This Agreement shall be binding upon
the parties to this Agreement and their respective legal
representatives, heirs, devisees, legatees, beneficiaries and
successors and assigns; shall inure to the benefit of the parties to
this Agreement and their respective permitted legal representatives,
heirs, devisees, legatees, beneficiaries and other permitted
successors and assigns (and to or for the benefit of no other person
or entity, whether an employee or otherwise, whatsoever); and any
reference to a party to this Agreement shall also be a reference to a
permitted successor or assign.
8. MISCELLANEOUS.
(a) This Agreement may not be varied, altered, or changed
except by instrument in writing executed by the parties hereto. The
failure of any party to this Agreement at any time or times to require
performance of any provision of this Agreement shall in no manner
affect the right to enforce the same. No waiver by any party to this
Agreement of any provision (or of a breach of any provision) of this
Agreement, whether
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by conduct or otherwise, in any one or more instances shall be deemed
or construed either as a further or continuing waiver of any such
provision or breach or as a waiver of any other provision (or of a
breach of any other provision) of this Agreement.
(b) Wherever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid but
if any one or more of the provisions of this Agreement shall be
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality or enforceability of any such provisions in every
other respect and of the remaining provisions of this Agreement shall
not be impaired.
(c) This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Texas (without giving
effect to any choice of law provisions) and enforceable in a court of
competent jurisdiction in Xxxxxx County, Texas.
(d) This Agreement and any benefits accruing to Executive
hereunder shall be supplemental and additional to any and all benefits
accruing to Executive pursuant to the Employment Agreement and any and
all Stock Option or Stock Award Plans applicable to Executive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has hereunto set his
hand as of the date and year first written above.
COMPANY
ENCORE ORTHOPEDICS, INC.
By: /s/ XXXX XXXXXXXX
-------------------------------
Xxxx Xxxxxxxx, Chief Executive
Officer
EXECUTIVE
/s/ XXXXXXX XXXXXX
------------------------------------
XXXXXXX XXXXXX
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AMENDMENT TO SEVERANCE AGREEMENT
THIS AMENDMENT TO SEVERANCE AGREEMENT (this "Amendment") is made this
18th day of March, 1997, by and between ENCORE ORTHOPEDICS, INC., a Texas
corporation, with its principal office located at 0000 Xxxxxx Xxxx., Xxxxxx,
Xxxxx 00000 (the "Company") and XXXXXXX XXXXXX, XX., an individual resident at
000 Xxxxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxx 00000 (the "Employee").
WHEREAS, the Employee and the Company entered into a Severance
Agreement dated September 19, 1995 (the "Agreement") which provided, inter
alia, for certain payments to be made in the event that certain events occurred
with respect to the Employee's employment relationship with the Company;
WHEREAS, the Employee and the Company desire that there be certain
changes made with respect to the Agreement as a result of the Company's pending
merger with Healthcare Acquisition, Inc., a Texas corporation ("Acquisition"),
a wholly owned subsidiary of Healthcare Acquisition Corp., a Delaware
corporation ("HCAC"); and
WHEREAS, the Company and the Employee want to memorialize in this
Amendment their agreements regarding such changes to the Agreement.
NOW THEREFORE, in consideration of the premises and other mutual
promises and covenants contained in this Amendment and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties, intending legally to be bound, agree as follows:
1. In the event that the Company completes its merger with
Acquisition (the "Merger") then, and only then, shall the following changes be
made in the Agreement, such changes to take effect on that date which is two
(2) years from the effective date of the Merger:
(a) the provisions of Section 2(b) (iii) shall be amended
so that the language "three hundred percent (300%)" shall read "one
hundred percent (100%)" in each place where such language appears in
that Section;
(b) the provisions of Section 2(b) (v) shall be amended
to provide that the insurance coverage to be provided to Employee,
Employee's spouse and to Employee's dependents (if covered prior to
the date of termination) under such provision shall be for coverage
from a period from the date of the termination until five (5) years
after the date of termination; and
(c) the provisions of Section 2(b) (vi) shall be amended
to provide that the liability insurance to be provided under such
provision shall be provided for the benefit of the Employee for a
period of five (5) years from the date of the termination of the
Employee's relationship with the Company.
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2. Except as specifically changed by the Amendment, all other
terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Employee has hereunto set its
hand as of the date and year first written above.
ENCORE:
ENCORE ORTHOPEDICS, INC.
By: /s/ XXXX XXXXXXXX
----------------------------
Xxxx Xxxxxxxx, CEO
EMPLOYEE:
/s/ XXXXXXX XXXXXX, XX.
---------------------------------
XXXXXXX XXXXXX, XX.
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