Exhibit 10.63
CHANGE IN CONTROL AGREEMENT
AGREEMENT by and between Osteotech, Inc., a Delaware corporation
(the "Company"), and Xxxx X. Xxxxx (the "Executive"), dated as of the 19th day
of April, 2000.
The Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its stockholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change in Control (as
defined in Section 1(e)) of the Company. The Board believes it is imperative to
diminish the distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change in Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change in Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change in Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and that such compensation and benefits are
competitive with those of other corporations. Therefore, in order to accomplish
these objectives, the Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
For purposes of this Agreement:
(a) An "Affiliate" means any member of the same affiliated group
(within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code"),determined without regard to Section 1504(b) of the Code),
that includes the Company.
(b) The Executive's "Base Period Compensation" is (i) the average
annual "compensation" (as defined below) which was includible in his gross
income for his base period (i.e., his most recent five taxable years or such
lesser number of taxable years or portions thereof during which the Executive
performed services for the Company ending before the date of the Change in
Control); and (ii) if Executive's base period includes a short taxable year or
less than all of a taxable year, compensation for such short or incomplete
taxable year shall be annualized for the base period. (In annualizing
compensation, the frequency with which payments are expected to be made over an
annual period shall be taken into account. Thus, any amount of compensation for
such a short or incomplete taxable year that represents a payment that would not
be made more than once per year shall not be annualized). For purposes of this
definition, Executive's "compensation" is the compensation which was payable to
him by the Company or an Affiliate, determined without regard to the following
Sections of the Code: 125 (cafeteria plans), 402(a)(8) (cash or deferred
arrangements), 402(h)(1)(B) (elective contributions to simplified employee
pensions), and, in the case of employer contributions made pursuant to a salary
reduction agreement, 403(b) (tax sheltered annuities).
(c) The "Commencement Date" shall mean the first date during the
Change in Control Period (as defined in Section 1(d)) that a Change in Control
(as defined in Section 1(e)) occurs.
(d) The "Change in Control Period" shall mean the period commencing
on the date hereof and ending on the third anniversary of the date hereof;
provided, however, that commencing on the first anniversary of the date hereof,
and on each successive annual anniversary of the date hereof (such date and each
annual anniversary thereof shall be hereinafter referred to as the "Renewal
Date"), the Change in Control Period shall be automatically extended so as to
terminate three years from such Renewal Date, unless at least sixty (60) days
prior to the Renewal Date the Company shall give notice to the Executive that
the Change in Control Period shall not be so extended.
(e) "Change in Control" shall mean:
(i) a "Board Change" which, for purposes of this Agreement,
shall have occurred if a majority of the seats (not counting vacant
seats) on the Company's Board were to be occupied by individuals who
were neither (A) nominated by a majority of the Incumbent Directors
nor (B) appointed by directors so nominated. An "Incumbent Director"
is a member of the Board who has been either (A) nominated by a
majority of the directors of the Company then in office or (B)
appointed by directors so nominated, but excluding, for this
purpose, any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election
contest (as such term is used in Rule 14a-11 of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
(ii) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of a majority of the
then outstanding voting securities of the Company (the "Outstanding
Company Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change in Control: (A) any
acquisition by the Company, or (B) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (C) any
public offering, private placement or other issuance by the Company
of its voting securities; or
(iii) a merger or consolidation of the Company with another
entity in which neither the Company nor a corporation that, prior to
the merger or consolidation, was a subsidiary of the Company, shall
be the surviving entity; or
(iv) a merger or consolidation of the Company following which
(A) the Company or a corporation that, prior to the merger or
consolidation, was a subsidiary of the Company shall be the
surviving entity and (B) a majority of the Outstanding Company
Voting Securities is owned by a Person or Persons who
were not beneficial owners (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) of a majority of the Outstanding
Company Voting Securities immediately prior to such merger or
consolidation; or
(v) a voluntary or involuntary liquidation of the Company; or
(vi) a sale or disposition by the Company of at least 80% of
its assets in a single transaction or a series of transactions
(other than a sale or disposition of assets to a subsidiary of the
Company in a transaction not involving a Change in Control or a
change in control of such subsidiary).
2. Employment Period.
(a) Term of Employment. Commencing on the Commencement Date and
ending on the first anniversary of such date (the "Employment Period"), the
Executive hereby agrees to remain in the employ of the Company, and the Company
hereby agrees to continue the Executive in its employ, in accordance with, and
subject to, the terms and provisions of this Agreement, in the capacity of Vice
President, Sales responsible for, among other things, the achievement of sales
objectives of the Company and, subject to the general supervision of the
President and Chief Operation Officer, such other duties and responsibilities as
are not inconsistent with the express terms of this Agreement.
(b) Position and Duties.
(i) During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be in accordance with
Section 2(a) hereof and (B) the Executive's services shall be
performed at the location where the Executive was employed
immediately preceding the Commencement Date or any office which is
the headquarters of the Company and is less than fifteen 15 miles
from such location.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote reasonable attention and time during
normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a
violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational
institutions, and (C) manage personal investments, so long as such
activities do not interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with
this Agreement.
(c) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary of $210,000 in an amount at
least equal to that which he was receiving immediately prior to the
Change in Control.
(ii) Incentive, Savings Retirement and Stock Option Plans.
During the Employment Period, the Executive shall be entitled to
participate in all incentive, savings, retirement and stock option
plans, practices, policies and programs applicable generally to
other peer executives of the Company, but in no event shall such
plans, practices, policies and programs provide the Executive with
opportunities and benefits less favorable than those in effect and
applicable to the Executive immediately preceding the Change in
Control.
(iii) Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits
under welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other peer
executives of the Company, but in no event shall such plans,
practices, policies and programs provide the Executive with benefits
which are less favorable than such plans, practices, policies and
programs in effect and applicable to the Executive immediately
preceding the Change in Control.
(iv) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable
employment related expenses incurred by the Executive in accordance
with the policies, practices and procedures of the Company which
shall not be less favorable than those in effect immediately
preceding the Change in Control.
(v) Office and Support Staff. During the Employment Period,
the Executive shall be entitled to an office or offices of a size
and with furnishings, and to exclusive personal secretarial and
other assistance, which shall be at least equal to that provided to
the Executive by the Company immediately preceding the Change in
Control.
(vi) Vacation. During the Employment Period Executive shall be
entitled to paid vacations at least equal to that to which the
Executive was entitled immediately preceding the Change in Control.
(vii) Options. Upon a Change in Control all options to
purchase shares of the Company's Common Stock held by Executive (the
"Options"), whether or not vested, shall vest and become exercisable
in accordance with their terms immediately prior to the effective
date of such Change in Control (and Executive will be provided a
reasonable opportunity to exercise such Options prior to such
effective date), notwithstanding anything to the contrary contained
in the option certificates or any plan covering the Options
(collectively, the "Plan"). Upon a
Change in Control all Options held by Executive shall be exercisable
in accordance with their terms for such securities or property to
which Executive would have been entitled had Executive exercised
such Options prior to such Change in Control, notwithstanding
anything to the contrary contained in any Plan covering such
Options. Upon a Change in Control pursuant to Section 1(e)(iii) or
1(e)(v), all Options held by Executive, whether or not vested, shall
terminate as of the effective date of such Change in Control to the
extent not previously exercised, provided that Executive shall have
been provided with a reasonable opportunity to exercise such options
prior to such effective date, notwithstanding anything to the
contrary contained in the Plan covering such Options.
(viii) Special Bonus Program. According to the terms of
Executive's Employment Agreement, Executive is entitled to receive
certain commissions based on specified performance criteria. The
maximum payment to which Executive is eligible to receive over the
four year period of the Special Bonus Program shall be Two Million
One Hundred Thousand Dollars ($2,100,000.00). If a Change of Control
occurs prior to the completion of the Scheduled Bonus Program,
Executive shall be entitled to the following considerations:
(A) If Executive's employment is terminated for any
reason other than "just cause" by the Company, either as a direct
result of the Change in Control, or within eighteen (18) months
after the Change of Control, Executive shall be entitled to
immediately receive a lump sum payment in the amount of Two Million
One Hundred Thousand Dollars ($2,100,000.00) less the total of all
amounts paid under the Scheduled Bonus Program. If Executive's
employment is terminated for "just cause," Executive shall be
required to comply with the provisions of his Employment Agreement
and repay fifty (50) percent of the total amounts received by the
Executive under the Scheduled Bonus Program, and shall not be
eligible to receive any future bonus payments.
(B) If Executive continues his employment for at least
eighteen (18) months following the Change of Control, Executive
shall be entitled to receive a lump sum payment in the amount of Two
Million One Hundred Thousand Dollars ($2,100,000.00) less the total
of all amounts paid under the Scheduled Bonus Program, and shall not
be eligible to receive any future bonus payments.
(C) If Executive elects to terminate his employment with
the Company prior to the expiration of eighteen (18) months after
the Change of Control, Executive shall be required to comply with
the provisions of his Employment Agreement and repay fifty (50)
percent of the total amounts received by the Executive under the
Scheduled Bonus Program.
3. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 3(d) of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the thirty (30) days after such receipt,
the Executive shall not have returned to full-time performance of the
Executive's duties. For purposes of this Agreement, "Disability" shall mean a
physical or mental condition which prohibits Executive from performing his
duties hereunder for a continuous six (6) month period or for a total of six (6)
months during any eighteen (18) month period.
(b) Just Cause. Executive's employment may be terminated by the
Company for Just Cause. For purposes hereof, "Just Cause" shall mean:
(i) the commission by Executive of a willful act of material
fraud in the performance of his duties on behalf of the Company; or
(ii) the conviction of Executive for commission of a felony in
connection with the performance of his duties on behalf of the
Company.
Prior to termination for Just Cause, the Board shall by a majority
vote have declared that Executive's termination is for Just Cause specifically
stating the basis for such determination.
(c) Good Reason. Executive's employment during the Employment Period
may be terminated by Executive with Good Reason. For purposes hereof, "Good
Reason" shall mean:
(i) the assignment to Executive of any duties of lesser
status, dignity and character than his duties immediately prior to
the Change in Control or a substantial reduction in the nature or
status of his responsibilities from those in effect immediately
prior to the Change in Control;
(ii) any failure by the Company to comply with the provisions
of Section 2(c);
(iii) relocation of Executive's office to a location which is
more than Fifteen (15) miles from the location in which Executive
principally worked for the Company immediately prior to the Change
in Control; or his being required by the Company in order to perform
duties of substantially equal status, dignity and character to those
duties he performed immediately prior to the Change in Control to
travel on the Company's business to a substantially greater extent
than is consistent with his business travel obligations immediately
prior to a Change in Control; or,
(iv) the failure by the Company to comply with Section 6(a),
provided that the successor has received at least twenty (20) days'
prior written notice from the Company or the Executive of the
requirements of Section 6(a).
For purposes of this Sections 3(c) any good faith determination of
"Good Reason" made by the Executive shall in all cases be conclusive; provided,
however, that for purposes of Sections 3(c)(i), (ii), (iii) and (iv), Executive
shall have given the Company prior written notice thereof and not less than
twenty (20) days to cure such "Good Reason".
(d) Notice of Termination. Any termination by the Company for Just
Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereby given in accordance with Section 7. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) specifies the Date of
Termination (as defined below) (which date shall be not more than thirty (30)
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Just Cause shall not waive any right
of the Executive or the Company hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in enforcing the Executive's or
the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means the date the
Company or the Executive specifies as the date of termination in the Notice of
Termination or if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be.
4. Obligations of Company upon Termination.
(a) Termination by Company for Just Cause. If at any time on or
prior to the 180th day following the Commencement Date, the Executive's
employment shall be terminated by the Company for Just Cause, then, Executive
shall receive all then accrued pay, benefits, executive compensation and fringe
benefits, including (but not limited to), pro rata bonus and incentive plan
earnings through the Date of Termination, plus the amount of any compensation
previously deferred by the Executive, in each case to the extent theretofore
unpaid. The foregoing payments and benefits shall be deemed compensation payable
for the duties to be performed by Executive pursuant to Section 2. If at any
time after the l80th day following the Commencement Date, the Executive's
employment shall be terminated by the Company for Just Cause, then the Executive
shall be entitled to the payment and benefits described in Section 4(b), below.
(b) Termination by Executive for Good Reason; Termination by the
Company at Any Time Other Than For Just Cause; Termination by the Company For
Just Cause After the 180th Day Following the Commencement Date; Termination Upon
Expiration of the Employment Period. If (i) the Company shall terminate the
Executive's employment at any time other than for Just Cause; or, (ii) the
Company shall terminate Executive's employment for Just
Cause after the 180th day following the Commencement Date; or, (iii) the
Executive shall terminate his employment at any time for Good Reason; or (iv)
the Executive's employment with the Company shall terminate upon the expiration
of the Employment Period, in addition to any other sums, benefits or
compensation otherwise payable to him by the Company:
(i) Executive shall receive, no later than the next pay period
following the Date of Termination, all then accrued pay, benefits,
executive compensation and fringe benefits, including (but not
limited to), his pro rata bonus and incentive plan earnings accrued
through the Date of Termination, plus the amount of any compensation
previously deferred by the Executive, in each case to the extent
theretofore unpaid;
(ii) Executive shall receive, at the Company's expense,
medical, health and disability benefits which are substantially
similar to the benefits the Company is providing him immediately
preceding the Change in Control for a period of thirty-six (36)
months immediately following the Date of Termination;
(iii) Executive shall receive an amount equal to one dollar
less than the sum of (A) 300% of his Base Period Compensation, plus
(B) interest thereon for the period beginning on the Commencement
Date through the date or dates of payment, at a rate equal to 120%
of the applicable Federal rate, determined under Section 1274(d) of
the Code, compounded semiannually.
(iv) Except in the case of a termination by the Company for
Just Cause or a voluntary termination by the Executive in accordance
with Section 3(c)(v), Executive shall receive the balance of all
pay, benefits, compensation and fringe benefits, including (but not
limited to), pro rata salary, bonus and incentive plan earnings
payable through the remainder of the Employment Period; and,
(v) Except in the case of a termination by the Company for
Just Cause or a voluntary termination by the Executive in accordance
with Section 3(c)(v), Executive shall be entitled to a private
office with furnishings and secretarial and other reasonable
services for the period beginning with the Date of Termination and
ending on the first anniversary thereof.
The foregoing payments and benefits shall be deemed compensation
payable for duties to be performed by Executive pursuant to Section 2. Except
for the payments and benefits described in Sections 4(b)(i), 4(b)(ii), and
4(b)(v) the sums due pursuant to this Section 4(b) shall be paid in one lump-sum
payable no later than sixty (60) days after the Date of Termination. All sums of
money due hereunder shall be subject to appropriate withholding and statutory
requirements. Executive shall not be required to mitigate the amount of any
payment provided for in this Section 4(b) by seeking other employment or
otherwise. Notwithstanding anything stated in this Section 4(b) to the contrary,
Company shall not be required to provide medical, health and/or disability
benefits to the extent such benefits would duplicate benefits received by
Executive in connection with his employment with any new employer.
The determination of the amounts and benefits payable to the
Executive pursuant to Sections 4(b)(i), 4(b)(iii) and 4(b)(iv) (the "Combined
Amount") shall first be made by the Company in good faith, and the Company shall
notify the Executive of the Combined Amount as soon as possible after the Date
of Termination, but in no event later than forty-five (45) days prior to the
payment date of the sums due under Section 4(b)(iii) and 4(b)(iv). If the
Executive disagrees with the Company's determination of the Combined Amount,
then within ten (10) days after the date of such notification to the Executive,
the Executive shall notify the Company of such disagreement, the extent of such
disagreement (the "Disputed Amount") and the amount that is undisputed (the
"Undisputed Amount"). The Undisputed Amount shall be paid in one lump-sum
payable sixty (60) days after the Date of Termination, subject to appropriate
withholding and statutory requirements. If the Company disagrees with the
Executive's determination of the Combined Amount, then within ten (10) days
after the date of such notification to the Company, it shall furnish Executive
with a written appraisal of the Combined Amounts (the "First Appraisal")
prepared by an independent certified public accountant regularly employed by the
Company (the "First Appraiser"). If Executive disagrees with the amounts
determined pursuant to the First Appraisal, then within ten (10) days after
notice of the First Appraisal, he shall furnish the Company with a written
appraisal of the Combined Amount (the "Second Appraisal") prepared by an
independent certified public accountant (the "Second Appraiser"). Within ten
(10) days after notice of the Second Appraisal, the First Appraiser and the
Second Appraiser shall meet and shall endeavor, within ten (10) days of such
meeting, to agree upon the Combined Amount and notify the Company and the
Executive thereof; provided, however, that if they are unable to agree upon the
Combined Amount, then, within (10) days of such meeting, they shall engage an
independent certified public accountant (the "Third Appraiser") and notify the
Company and the Executive of their engagement of the Third Appraiser, whose
determination of the Combined Amount, if any, shall be final and conclusive and
binding on the Company and the Executive. Within ten (10) days after notice of
such engagement, the Third Appraiser shall determine the Combined Amount and
notify the Company and the Executive of his determination (the "Final Amount").
Except for the benefits described in Sections 4(b)(ii) and 4(b)(v), the Final
Amount, as adjusted by any prior payment of the Undisputed Amount or any payment
made pursuant to Section 4(b)(i), shall be paid in one lump-sum payable on the
later of (i) sixty (60) days after the Date of Termination, or (ii) twenty (20)
days after notification of the Final Amount, in either case subject to
appropriate withholding and statutory requirements; provided, however, that
notwithstanding the foregoing, the Executive shall have the option to decline
the benefits described in Section 4(b)(ii) no later than ten (10) days prior to
such payment date.
(c) Disability or Death. If the Executive's employment during the
Employment Period is terminated at any time by reason of the Executive's
Disability or death, this Agreement shall terminate without further obligations
to the Executive, his estate or legal representative, as the case may be, except
that the Company shall (i) pay to Executive within sixty (60) days after the
Date of Termination (A) amounts due and owing under Sections 4(b)(i) and
4(b)(iii) and (B) Executive's Annual Base Salary for the lesser of the six (6)
month period following the Date of Termination or the remaining portion of the
Employment Period, reduced in the case of Disability by amounts received by
Executive under any employee disability policy maintained by the Company for the
benefit of Executive and (ii) provide Executive, his estate or legal
representative, as the case may be, with the benefits provided by Section
4(b)(ii).
5. Nonexclusivity of Rights.
Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or practice
provided by the Company and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have
under any contract or agreement with the Company. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement, except as
explicitly modified by this Agreement.
6. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company) to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
(b) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
7. Notices. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be deemed to have
been given when delivered by hand and acknowledged by receipt or when mailed at
any general or branch United States Post Office enclosed in a registered or
certified postpaid envelope and addressed to the address of the respective party
stated below or to such changed address as the party may have provided to the
other party by notice in accordance herewith.
If to the Company:
Osteotech, Inc.
00 Xxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
With a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxx, Esq.
If to the Executive:
Xxxx X. Xxxxx
0 Xxxxx Xxxxxxx
Xxxxxx, XX 00000
8. Miscellaneous. This Agreement may not be waived, modified or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Executive and such officers of the Company as may be specifically designated
by its Board. The failure of either party to this Agreement to object to any
breach by the other party or the non-breaching party's conduct or conduct
forbearance shall not constitute a waiver of that party's rights to enforce this
Agreement. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of any
subsequent breach by such other party or any similar or dissimilar provisions or
conditions at the same or any prior or subsequent time. Except for that certain
employment agreement dated as of April 19, 2000 and entered into by and between
the Company and the Executive (the "Employment Agreement"), no agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. The Company and Executive agree that to the extent any
of the terms of the Employment Agreement and this Agreement conflict, it is
their intention that Executive in each case receive the benefits under that
agreement which is most favorable to the Executive. In this regard, it is
expressly agreed that the terms of this Agreement that relate to a Change in
Control (as defined in this Agreement) shall be controlling over the terms of
the Employment Agreement that relate to a Change in Control. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the internal laws of the State of New Jersey, without giving any effect to
any conflict of laws.
9. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
10. Survival. The obligations of the parties under this Agreement shall
survive the term of this Agreement.
11. EMPLOYMENT PRIOR TO CHANGE IN CONTROL. THE EXECUTIVE AND THE COMPANY
ACKNOWLEDGE THAT, EXCEPT AS OTHERWISE PROVIDED IN THE EMPLOYMENT AGREEMENT, OR
ANY RENEWAL, EXTENSION OR REPLACEMENT THEREOF, THE EMPLOYMENT OF THE EXECUTIVE
BY THE COMPANY IS, AND PRIOR TO THE COMMENCEMENT DATE WILL CONTINUE TO BE, "AT
WILL" AND, PRIOR TO THE COMMENCEMENT DATE, MAY BE TERMINATED BY EITHER THE
EXECUTIVE OR THE COMPANY AT ANY TIME UPON SIXTY (60) DAYS' PRIOR TO WRITTEN
NOTICE. MOREOVER, IF PRIOR TO THE COMMENCEMENT DATE, THE EXECUTIVE'S EMPLOYMENT
WITH THE COMPANY TERMINATES, THEN THE EXECUTIVE SHALL HAVE NO FURTHER RIGHTS
UNDER THIS AGREEMENT.
OSTEOTECH, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx, President
Accepted:
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx, Executive
