EXHIBIT 10.2
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AMENDMENT NUMBER SEVEN
TO EMPLOYMENT AGREEMENT
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This Amendment Number Seven (the "Amendment") between Xxxxx X. Xxxxxx ("Xx.
Xxxxxx") and CAS Medical Systems, Inc. ("CAS") amends an Employment Agreement
dated as of September 1, 1993, between Xx. Xxxxxx and CAS, as amended prior to
the date hereof (the "Agreement"). Except as otherwise specifically provided in
this Amendment, the Agreement remains in full force and effect.
1. Termination
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The following replaces in its entirety that portion of Section 3 of the
Agreement added by the September 2005 Amendment Number Six of the
Agreement.
"If a Change of Control occurs on or before March 31, 2009, and,
as a result thereof, Xx. Xxxxxx' employment is terminated under
circumstances constituting an Involuntary Separation from Service
within the meaning of Treasury Regulations Section 1.409A-1(n) on
or before March 31, 2009, Xx. Xxxxxx will be paid a lump sum
severance payment in the amount of One Hundred Thousand Dollars
($100,000) within ten (10) days of such Separation from Service.
In no event shall such severance payment be accelerated, nor shall
Xx. Xxxxxx designate the year of payment or be eligible to defer
payment of the severance payment to a later date.
"Change of Control" means (i) a sale of all or substantially all
of CAS' assets, (ii) a merger involving CAS in which the CAS
stockholders prior to the merger control less than fifty percent
of the voting stock of the surviving entity, (iii) a sale by the
CAS stockholders to an acquirer or acquirers acting in concert of
more than a majority of the then outstanding stock of CAS owned by
the CAS stockholders, or (iv) any event similar to any of the
foregoing."
2. Internal Revenue Code Section 409A Compliance
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New Section 7 is hereby added to the Agreement to read as follows:
7. Internal Revenue Code Section 409A Compliance. The
parties hereto recognize that certain provisions of this Agreement
may be affected by Section 409A of the Internal Revenue Code and
guidance issued thereunder, and agree to amend this Agreement, or
take such other action as may be necessary or advisable, to comply
with Section 409A. The parties hereto intend that the Agreement,
as amended, be consistent with IRS Notice 2007-78, IRS Notice
2007-86 and other Internal Revenue Code Section 409A transition
relief, and it shall be interpreted accordingly.
Notwithstanding anything herein to the contrary, it is
expressly understood that at any time CAS (or any successor or
related employer treated with CAS as the service recipient for
purposes of Internal Revenue Code Section 409A) is publicly
traded on an established securities market (as defined for
purposes of Internal Revenue Code Section 409A), if a payment or
provision of an amount or benefit constituting a deferral of
compensation is to be made pursuant to the terms of this Agreement
to Xx. Xxxxxx on account of a Separation from Service at a time
when Xx. Xxxxxx is a Specified Employee (as defined for purposes
of Internal Revenue Code Section 409A(a)(2)(B)(i)), such deferred
compensation shall not be paid to Xx. Xxxxxx prior to the date
that is six (6) months after the Separation from Service or as
otherwise permitted under Treasury Regulations Section
1.409A-3(i)(2).
For purposes of this Agreement, the following definitions
shall apply:
a. "Separation from Service" means, generally, a
termination of employment with CAS (or any successor or related
employer treated as the service recipient for purposes of Internal
Revenue Code Section 409A), and shall have the same meaning as
such term has for purposes of Internal Revenue Code Section 409A
(including Treasury Regulation Section 1.409A-1(h)).
b. "Involuntary Separation from Service" means a
Separation from Service due to the independent exercise of the
unilateral authority of CAS (or any successor or related employer
treated as the service recipient for purposes of Internal Revenue
Code Section 409A) to terminate Xx. Xxxxxx' employment, other than
due to Xx. Xxxxxx' implicit or explicit request, where Xx. Xxxxxx
was willing and able to continue to employment with CAS.
Involuntary Separation from Service shall have the same meaning as
such term has for purposes of Internal Revenue Code Section 409A
(including Treasury Regulation Section 1.409A-1(n))."
All of the other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS of the foregoing, the parties have executed this Amendment
Number Seven on this 29th day of December, 2008.
CAS MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President and CEO
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
