THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1 – Third Amendment to Employment Agreement with Xx. Xxxxx
THIRD
AMENDMENT TO
This
Third Amendment to Employment Agreement (the "Amendment") is entered into as of
the 17th day of January, 2011 (the “Effective Date”), between Symmetry Medical
Inc., a Delaware corporation (the "Company"), and Xxxxx Xxxxx (the
"Executive").
WHEREAS,
The Company and the Executive have entered into an Employment Agreement dated as
of June 11, 2003, as amended May 4, 2010 and June 10, 2010 (collectively the
"Employment Agreement"), and
WHEREAS,
Company and Executive desire to amend the Employment Agreement in certain
respects;
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, and in consideration of the
following mutual undertakings, the Employment Agreement is amended as
follows:
1. Except
to the extent specifically altered or amended by the terms of this Amendment,
all terms of the Employment Agreement shall remain in full force and
effect.
2. Paragraph
1 is deleted in its entirety and replaced with the following:
The
Company shall employ Executive, and Executive hereby accepts employment with the
Company upon the terms and conditions set forth in this Agreement for the period
beginning on the Effective Date and ending on June 30, 2012 (the “Employment
Period”).
3. Subparagraphs
2 (a) and (b) are deleted in their entirety and replaced with the
following:
Position and
Duties.
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(a)
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During
the Employment Period, Executive shall serve as President of Business
Development and shall report directly to the Chairman of the Company’s
Board of Directors (the “Board”). Executive shall have the
duties, responsibilities, functions and authority as those of similar rank
in the Company and as further delegated to him by the Chairman of the
Board and subject to the power and authority of the Board to expand or
contract such duties and responsibilities. Executive shall
devote his full time and attention, (except for permitted vacation time
and periods of illness) to such duties for the Company and its
Subsidiaries.
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(b)
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Executive
shall perform the duties, responsibilities and functions hereunder to the
best of his abilities and in compliance with the Company’s policies and
procedures in all material respects. So long as Executive is
employed by the Company he shall not accept employment with other
organizations without the consent of the Chairman of the
Board.
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4. A
new Subsection (d) is added to Section 2 as set forth below:
Company
shall provide to Executive the normal support and administrative services
provided to those of comparable positions, which shall include but not be
limited to cell phone/blackberry, e-mail, company computer, secretarial support
and similar levels of support necessary for him to effectively perform his
duties.
5. Subparagraphs
3 (a) and (c) of the Employment Agreement are hereby deleted in their entirety
and replaced with the following:
Section
(a) is replaced with the following: During the Employment Period Executive’s
base salary shall be $6,846.15 per week, less all deductions required by law or
authorized by Executive (the “Base Salary”). The Base Salary for the
Term shall equal $513,461. Executive shall also receive a
discretionary bonus in a percentage comparable to that paid to the Company’s
other senior executives for work during 2010, if any is paid.
Section
(c) is replaced with the following: In addition to the Base Salary,
Executive shall be entitled to receive a performance bonus equal to 90% of any
fees or compensation the Company receives from third parties for Executive’s
work or provision of services for such third parties, net of any costs of
travel, taxes and expenses incurred by the Company in Executive’s performance of
such duties.
6. Paragraph
4 of the Employment Agreement is deleted in its entirety.
7. Subparagraph
(a) of paragraph 5 of the Employment Agreement is amended in its entirety to
read as follows:
Executive's
employment under this Agreement shall be terminated upon any of the following
occurrences: (i) upon Executive's death or mental or physical disability or
incapacity (as determined by the Board in its good faith judgment); (ii) at the
Company's discretion at any time, and for any reason; or (iii) at the
Executive's discretion at any time.
8. Subparagraph
(b) of paragraph 5 is deleted and replaced in its entirety to read as
follows:
If
Executive's employment under this Agreement is terminated by either party for
any reason prior to the end of the Employment Period, Executive shall be
entitled to: (i) receive his Base Salary through the date of termination, (ii)
any earned, but unpaid, bonus and other benefits, (iii) continue to receive
any unpaid Base Salary in equal installments on the Company’s normal pay days as
special severance payments through the end of the Employment Period (the
"Severance Period"). Notwithstanding any provisions of this
subparagraph (b) to the contrary, Executive will be entitled to the benefits in
this clause only if Executive has executed and delivered to the Company a
general release in form and substance reasonably satisfactory to the Company and
only so long as Executive has not breached any other provisions of this
Agreement. Other than as provided in this subparagraph (b) or in
subparagraph (g), Executive shall not be entitled to any other salary,
compensation or benefits after termination of the Employment
Period.
9. Subparagraphs
(c), (e), (f) and (h) of paragraph 5 of the Employment Agreement are deleted in
their entirety.
10. Paragraph
12 of the Employment Agreement is amended to provide that notices to Executive
shall be sent to: Xxxxx Xxxxx, 00 X Xxxx. Xxx 0000 Xxxxxxx, XX
00000-0000 and that notices to the Company shall be sent to Symmetry Medical,
Inc. 0000 X. Xx. Xx 00 Xxxxxx XX 00000 attn: Chief Executive Officer, with
copies to Chief Financial Officer and General Counsel.
11. The
third paragraph of Exhibit A is deleted and replaced with the
following:
Executive
shall be eligible to participate in the Company’s executive benefit programs,
and shall further receive the following benefits:
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Reimbursement
for the cost of an executive physical at Mayo Clinic in January 2011 and
January 2012;
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Use
of an automobile through and including December
2011;
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Membership
in the National Association of Corporate Directors and payment for
attendance at one course per calendar year, at Executive’s discretion, not
to exceed $3,000;
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Eight
round-trip coach class flights between the United States and his home in
the UK, not to exceed $18,000 in
cost;
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Reimbursement
for up to $5,000 in legal fees and costs incurred by Executive for legal
services incurred by Executive related to any efforts required by him to
obtain or retain a visa or green
card;
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Reimbursement
for up to $5,000 for tax preparation services and/or
advice.
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12. Paragraph
26 is hereby deleted and replaced with the following:
Vesting of Restricted
Stock. If Executive’s employment hereunder terminates for any
reason prior to the end of the Employment Period (a “Vesting Event”)
then:
(a) If
shares of restricted stock covered by the Executive’s Restricted Stock Agreement
dated March 31, 2010 have not been granted, in whole or in part, as of the
Vesting Event, then their grant will be based on the performance and other
criteria therein, and Executive shall remain a Participant in the Plan until
such determination and grant is made; and
(b) Any
restrictions on the transfer of any and all restricted stock granted to
Executive under the Plan pursuant to Agreements dated: May 3, 2007; May 23,
2008; July 1, 2009; and March 31, 2010 will lapse on the later of the date of
termination of employment hereunder or January 3, 2012, and the shares granted
thereunder shall vest, subject to the payment of taxes and any other obligations
under the granting Agreements, which shall remain in full force and effect
except as modified herein.
Intending
to be fully bound by the terms and conditions herein, the Company and the
Executive have executed this Third Amendment as of the Effective
Date.
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EXECUTIVE
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By:
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Xxxxx
Xxxxx
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Xxxxx
Xxxxxxxx, Chairman of the Board of
Directors
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