[The Xxxxxx Companies Logo] The Xxxxxx Companies, Inc.
00 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000 XXX
000-000-0000
November 1, 1992
Xx. Xxxxxxxx X. Xxxxxxxx
The Xxxxxx Companies, Inc.
0 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Dear Xxxx:
Reference is made to your Severance Agreement with The Xxxxxx Companies,
Inc. (the 'Company') entered into as of April 26, 1990 (the 'Severance
Agreement'). The purpose of this letter is to amend and supplement the Severance
Agreement to reflect (i) your recent promotion to the position of Chairman and
Chief Executive Officer of CooperSurgical, Inc. ('CSI'), a subsidiary of the
Company, and (ii) the satisfaction of the Company's potential obligations, if
any, under Section 5 of the Severance Agreement. Capitalized terms in this
letter, unless otherwise defined herein, shall have the same meanings as those
set forth in the Severance Agreement.
The Company and the Employee hereby ratify and confirm the Severance
Agreement in all respects except as hereby amended, effective as of October 1,
1992, as follows:
Section 2(a) is hereby amended to read in its entirety as follows:
'(a) The Company agrees to employ the Employee during the Employment Period
(as hereinafter defined) as Vice President of the Company, and as Chairman
and Chief Executive Officer of CooperSurgical, Inc. ('CSI'), reporting to
the Chief Operating Officer of the Company, and the Employee agrees to be so
employed, all subject to the terms and conditions of this Agreement.'
The first sentence of Section 2(b) is hereby amended to read as follows:
'(b) Annual Base Salary: Effective October 1, 1992, the Company shall pay
the Employee, through its subsidiary, CSI, a salary at the rate of not less
than $190,000 (One Hundred Ninety Thousand Dollars) per annum ('Annual Base
Salary'), payable in equal regular installments on the 15th and last day of
each month.'
Xx. Xxxxxxxx X. Xxxxxxxx
The Xxxxxx Companies, Inc.
Page 2
November 1, 1992
The first sentence of Section 2(c) is hereby amended to read as follows:
'(c) Incentive Payment Plan: The Employee shall be eligible to participate
in the CSI Incentive Payment Plan ('IPP') at the 40% award level.'
The references to 'CVI' in the second sentence of said Section 2(c) shall
be changed to 'CSI'.
Section 2(d) is hereby deleted in its entirety and the following
substituted therefor:
'(d) Restricted Shares: The restrictions on the unvested 24,000 shares of
restricted common stock of the Company granted to the Employee on July 12,
1990, shall be removed in two equal installments of 12,000 shares on January
4, 1993, and January 3, 1994, provided the Employment Period shall not have
earlier terminated. The Employee agrees to execute an amendment to his
restricted stock agreement with respect to said restricted shares, in a form
reasonably acceptable to counsel to the Company, effecting such removal of
restrictions. There shall be no change in the schedule for removal of
restrictions on the 16,000 shares of restricted common stock of the Company
granted to the Employee on February 11, 1992.'
Section 2(e) is hereby deleted in its entirety and the following
substituted therefor:
'(e) Forgiveness of Relocation Housing Loan: On January 15, 1993, the
Company shall cancel and forgive (provided that the Employment Period shall
not have earlier terminated) the principal of and all accrued interest on
the Employee's $90,000 relocation housing loan provided by the Company.
Promptly following such forgiveness and cancellation, the Company shall
prepare and cause to be recorded a discharge of mortgage or other
appropriate instrument to evidence the removal of the Company's lien on the
Employee's residence.'
Section 2(g) is hereby amended by changing the reference to 'CVI's' in the
first sentence thereof to 'CSI's'.
Xx. Xxxxxxxx X. Xxxxxxxx
The Xxxxxx Companies, Inc.
Page 3
November 1, 1992
Section 2(h) is hereby deleted in its entirety and the following
substituted therefor:
'(h) Deferred Compensation: In addition to the Employee's Annual Base
Salary, the Company shall pay to the Employee (subject to appropriate
withholdings and provided that the Employment Period shall not have earlier
terminated) $62,000 (Sixty-Two Thousand Dollars) of Deferred Compensation
payable in twenty-four equal installments of $2,583.33 (Two Thousand Five
Hundred Eighty-Three Dollars and Thirty-Three Cents) on the first day of
each month commencing November 1, 1992 until October 1, 1994.'
Section 3 is hereby amended to read in its entirety as follows:
'3. Termination Without Cause or for Good Reason.
If the Company terminates the Employee's employment without Cause, or if the
Employee terminates his employment for Good Reason, the Company shall pay
the Employee a severance benefit in an equal amount to the applicable
percentage of the Employee's Annual Base Salary set forth below:
DATE OF TERMINATION % OF ANNUAL BASE SALARY
------------------------------------------------------------------- -----------------------
Prior to April 1, 1993 50.0%
During April, 1993 58.3%
During May, 1993 66.7%
During June, 1993 75.0%
During July, 1993 83.3%
During August, 1993 91.7%
After September 1, 1993 100.0%
The Company shall deliver to the Employee all certificates evidencing those
restricted shares of the Company's common stock owned by the Employee from
which restrictions shall have been removed prior to the Date of Termination
pursuant to Section 2(d) or the applicable restricted stock agreement.
Promptly following such termination, the Employee shall sell to the Company,
and the Company shall repurchase at $0.10 per share, all of the restricted
shares of the Company's common stock owned by the Employee from which
restrictions shall not
Xx. Xxxxxxxx X. Xxxxxxxx
The Xxxxxx Companies, Inc.
Page 4
November 1, 1992
have been removed prior to the Date of Termination. For purposes of this
Agreement, a termination without Cause shall include but not to be limited to
the Employee ceasing to be employed by the Company as a result of the Employee's
continuing in the employ of a division, subsidiary or other business unit of the
Company that has been sold, transferred or otherwise conveyed to a third party.
The Company shall give the Employee not less than 90 days advance notice in
writing of any termination without Cause.'
Section 4 is hereby deleted in its entirety and the following substituted
therefor:
'4. Resignation or Termination After Change in Control.
If (i) within 90 days after a Change in Control the Employee terminates his
employment without Good Reason, the Company shall pay the Employee a
severance benefit in an amount equal to 100% of the Employee's Annual Base
Salary, or (ii) within six months after a Change of Control the Company
terminates the Employee's employment without Cause, the Company shall pay
the Employee a severance benefit in an amount equal to 150% of the
Employee's Annual Base Salary; in addition, in either such case, all
restrictions shall be removed from the 24,000 shares of restricted common
stock of the Company referred to in Section 2(d) and the certificates
evidencing such shares shall be delivered to the Employee promptly following
the Date of Termination.'
Section 5 is hereby deleted in its entirety and the following substituted
therefor:
'5. 'Catch-Up' Provision.
Notwithstanding any other provision of this Agreement, if, prior to October
1, 1994, either (a) the Employee's employment is terminated by the Company
without Cause following a Change in Control or (b) Xxxxxx X. Xxxxxx ceases
to be the Chief Operating Officer of the Company and such position is filled
with someone other than X. Xxxxxx Xxxxxx or the Employee, then, in addition
to any severance benefit to which the Employee may be entitled hereunder,
(i) the Company shall be obligated to pay the Employee an amount equal to
the differ-
Xx. Xxxxxxxx X. Xxxxxxxx
The Xxxxxx Companies, Inc.
Page 5
November 1, 1992
ence between $62,000 and the aggregate of all amounts of Deferred Compensation
previously received by the Employee pursuant to Section 2(h) hereof, (ii) if
such termination occurs prior to January 3, 1994, the restrictions shall be
removed from all of the Employee's 24,000 shares of restricted common stock of
the Company referred to in Section 2(d) hereof, and (iii) if such termination
occurs prior to January 15, 1993, the Employee's relocation housing loan shall
nonetheless be canceled and forgiven as provided in Section 2(e) hereof.'
The reference to 'Section 4, 5 or 7' in the first sentence of Section 6
shall be changed to 'Section 3, 4 or 7'.
The addresses set forth in Section 17(c) shall be amended to read as
follows:
If to the Company:
The Xxxxxx Companies, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Operating Officer
with a copy to:
The Xxxxxx Companies, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
If to the Employee:
c/o The Xxxxxx Companies, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Xx. Xxxxxxxx X. Xxxxxxxx
The Xxxxxx Companies, Inc.
Page 6
November 1, 1992
Section 18(b) is hereby amended by inserting 'or' at the end of clause (ii)
thereof, by deleting '; or ' at the end of clause (iii) and
all of clause (iv) thereof, and by inserting a period in lieu of such deletion
at the end of clause (iii) thereof.
In consideration of your entering into this amendment of the Severance
Agreement, the Company has paid you the sum of One Hundred Thousand Dollars
($100,000), less applicable withholdings, and you hereby release the Company
from any and all claims for payment of any amounts that might otherwise be
claimed by or payable to you based on a Change in Control of the Company or any
other provision of the Severance Agreement that might have resulted in a
liability of the Company to you prior to the date hereof.
If the foregoing is acceptable to you please sign where indicated below and
return a copy of this letter to me.
Sincerely,
XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx
Executive Vice President
and Chief Operating Officer
Agreed to and accepted:
XXXXXXXX X. XXXXXXXX
---------------------
Xxxxxxxx X. Xxxxxxxx
