EXHIBIT 10.35
CHANGE IN CONTROL AGREEMENT
AGREEMENT by and between Osteotech, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxx (the "Executive"), dated as of the 13th day of
September, 1999.
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).
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(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
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(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 President and
Chief Operating Officer responsible for, among other things, directing
Operations, Sales, Marketing, Research and Development functions of the Company
and, subject to the general supervision of the Chief Executive Officer, and 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 ("Annual Base Salary") 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
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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.
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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;
(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); or,
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(v) The voluntary termination by the Executive for any reason at any
time after the 180th day immediately following a Change in Control.
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 180th 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
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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
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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
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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:
Xxxxxx X. Xxxxxx
00000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxxxxx, 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
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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 the
13th day of September, 1999 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/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
and
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Operating Officer
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