EXHIBIT 10.22
SEVERANCE AGREEMENT
This severance agreement (this "Agreement") is made as of the 20th
day of February, 2003 by and between Integra LifeSciences Holdings Corporation,
a Delaware Corporation, and Xxxxxxx X. Xxxxxxxx ("Executive").
Background
WHEREAS, this Agreement is intended to specify the financial
arrangements that the Company will provide to Executive upon Executive's
separation from employment with the Company in connection with or after a Change
in Control, as defined.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and intended to be legally bound hereby, the parties
hereto agree as follows:
Terms
1. Definitions. The following words and phrases shall have the
meanings set forth below for the purposes of this Agreement (unless the context
clearly indicates otherwise):
(a) "Base Salary" shall mean a minimum base salary of $180,000 per
year ("Base Salary"), payable in periodic installments in accordance with
Company's regular payroll practices in effect from time to time.
Executive's Base Salary shall be subject to annual reviews, but may not be
decreased without Executive's express written consent (unless the decrease
is pursuant to a general compensation reduction applicable to all, or
substantially all, executive officers of Company) and may increase
pursuant to such reviews, in which case the increased Base Salary shall
become the "Base Salary."
(b) "Board" shall mean the Board of Direcetors of Company, or any
successor thereto.
(c) "Cause," as determined by the Board in good faith, shall mean
Executive has --
(1) failed to perform her stated duties in all material
respects, which failure continues for 15 days after her receipt of
written notice of the failure;
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(2) intentionally and materially breached any provision of
this Agreement and not cured such breach (if curable) within 15 days
of her receipt of written notice of the breach;
(3) demonstrated her personal dishonesty in connection with
her employment by Company;
(4) engaged in willful misconduct in connection with her
employment with the Company;
(5) engaged in a breach of fiduciary duty in connection with
her employment with the Company; or
(6) willfully violated any material law, rule or regulation,
or final cease-and-desist order (other than traffic violations or
similar offenses) or engaged in other serious misconduct of such a
nature that her continued employment may reasonably be expected to
cause the Company substantial economic or reputational injury.
(d) A "Change in Control" of Company shall be deemed to have
occurred:
(1) if the "beneficial ownership" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934) of securities
representing more than fifty percent (50%) of the combined voting
power of Company Voting Securities (as herein defined) is acquired
by any individual, entity or group (a "Person"), other than Company,
any trustee or other fiduciary holding securities under any employee
benefit plan of Company or an affiliate thereof, or any corporation
owned, directly or indirectly, by the stockholders of Company in
substantially the same proportions as their ownership of stock of
Company (for purposes of this Agreement, "Company Voting Securities"
shall mean the then outstanding voting securities of Company
entitled to vote generally in the election of directors); provided,
however, that any acquisition from Company or any acquisition
pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of paragraph (3) of this definition shall not be a Change in
Control under this paragraph (1); or
(2) if individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbant Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any
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such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(3) upon consummation by Company of a reorganization, merger
or consolidation or sale or other disposition of all or
substantially all of the assets of Company or the acquisition of
assets or stock of any entity (a "Business Combination"), in each
case, unless immediately following such Business Combination: (i)
Company Voting Securities outstanding immediately prior to such
Business Combination (or if such Company Voting Securities were
converted pursuant to such Business Combination, the shares into
which such Company Voting Securities were converted) (x) represent,
directly or indirectly, more than 50% of the combined voting power
of the then outstanding voting securities entitled to vote generally
in the election of directors of the corporation resulting from such
Business Combination (the "Surviving Corporation"), or, if
applicable, a corporation which as a result of such transaction owns
Company or all or substantially all of Company's assets either
directly or through one or more subsidiaries (the "Parent
Corporation") and (y) are held in substantially the same proportions
after such Business Combination as they were immediately prior to
such Business Combination; (ii) no Person (excluding any employee
benefit plan (or related trust) of Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 50% or more of the combined voting power of
the then outstanding voting securities eligible to elect directors
of the Parent Corporation (or, if there is no Parent Corporation,
the Surviving Corporation) except to the extent that such ownership
of Company existed prior to the Business Combination; and (iii) at
least a majority of the members of the board of directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) were members of the Incumbent Board at the
time of the execution of the initial agreement, or the action of the
Board, providing for such Business Combination; or
(4) upon approval by the stockholders of Company of a complete
liquidation or dissolution of Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
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(f) "Company" shall mean Integra LifeSciences Holdings Corporation
and any corporation, partnership or other entity owned directly or
indirectly, in whole or in part, by Integra LifeSciences Holdings
Corporation.
(g) "Disability" shall mean Executive's inability to perform her
duties hereunder by reason of any medically determinable physical or
mental impairment which is expected to result in death or which has
lasted or is expected to last for a continuous period of not fewer
than six months.
(h) "Good Reason" shall mean:
(1) a material breach of this Agreement by Company which
is not cured by Company within 15 days of its receipt of
written notice of the breach;
(2) Company fails to obtain the assumption of this
Agreement by any successor to Company; or
(3) during the one-year period following a Change in
Control, the Company, without Executive's express written
consent: (i) reduces Executive's base salary or the aggregate
fringe benefits provided to Executive (except to the extent
the decrease is pursuant to a general compensation or benefits
reduction applicable to all, or substantially all, executive
officers of Company); (ii) substantially diminishes the nature
or status of Executive's responsibilities; or (iii) requires
Executive to be based more than 25 miles from Executive's
office location immediately prior to the Change in Control
(except for required travel on Company business to an extent
substantially consistent with Executive's business travel
obligations immediately prior to the Change in Control).
(i) "Retirement" shall mean the termination of Executive's
employment with Company in accordance with the retirement policies,
including early retirement policies, generally applicable to
Company's salaried employees.
(j) "Termination Date" shall mean the date specified in the
Termination Notice.
(k) "Termination Notice" shall mean a dated notice which: (i)
indicates the specific termination provision in this Agreement
relied upon (if any); (ii) sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for the termination of
Executive's employment under such provision; (iii) specifies a
Termination Date; and (iv) is given in the manner specified in
Section 9(h).
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2. Term of Agreement. The term of this Agreement shall commence on the
date hereof as first written above and shall continue through January 1, 2004;
provided that commencing on January 1, 2004 and each January 1st thereafter, the
term of this Agreement shall automatically be extended for one additional year
unless not later than December 31 of the preceding year, the Company shall have
given notice that it does not wish to extend this Agreement; and provided,
further, that notwithstanding any such notice by the Company not to extend, this
Agreement shall continue in effect for a period of 12 months beyond the date on
which a Change in Control occurs if a Change in Control shall have occurred
during such term.
3. Termination of Employment
(a) Prior to a Change in Control. Executive's rights upon
termination of employment prior to a Change in Control shall be governed
by the Company's standard employment termination policy applicable to
Executive in effect at the time of termination or, if applicable, any
written employment agreement between the Company and Executive other than
this Agreement in effect at the time of termination.
(b) After a Change in Control.
(i) From and after the date of a Change in Control during the
term of this Agreement, the Company shall not terminate Executive
from employment with the Company except as provided in this Section
3(b) or as a result of Executive's Disability, Retirement or death.
(ii) From and after the date of a Change in Control during the
term of this Agreement, the Company shall have the right to
terminate Executive from employment with the Company at any time
during the term of this Agreement for Cause, by written notice to
Executive, specifying the particulars of the conduct of Executive
forming the basis for such termination.
(iii) From and after the date of a Change in Control during
the term of this Agreement: (x) the Company shall have the right to
terminate Executive's employment without Cause, at any time; and (y)
Executive shall, upon the occurrence of such a termination by the
Company without Cause, or upon the voluntary termination of
Executive's employment by Executive for Good Reason, be entitled to
receive the benefits provided in Section 4 hereof. Executive shall
evidence a voluntary termination for Good Reason by written notice
to the Company given within 60 days after the date of the occurrence
of any event that Executive knows or should reasonably have known
constitutes Good Reason for voluntary termination. Such notice need
only identify Executive and set forth in reasonable detail the facts
and circumstances claimed by Executive to constitute Good Reason.
Any notice give by Executive pursuant to this Section 3 shall be
effective five business days after the date it is given by
Executive.
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4. Termination.
(a) Termination with Salary Continuation . In the event that within
twelve months of a Change in Control (i) Executive terminates her
employment for Good Reason, or (ii) Executive's employment is
terminated by Company for a reason other than Retirement,
Disability, death or Cause, then Company shall:
(i) pay Executive a severance amount equal to
Executive's Base Salary (determined without regard to any
reduction that would give rise to Good Reason) as of her last
day of active employment; the severance amount shall be paid
in a single sum on the first business day of the month
following the Termination Date; and
(ii) maintain and provide to Executive, at no cost to
Executive, for a period ending at the earliest of (i) the
third anniversary of the Termination Date and (ii) Executive's
death, continued participation in all group insurance, life
insurance, health and accident, disability, and other employee
benefit plans in which Executive would have been entitled to
participate had her employment with Company continued
throughout such period, provided that such participation is
not prohibited by the terms of the plan or by Company for
legal reasons.
(b) Other Termination. In the event Executive's employment
terminates other than as set forth in Section 4(a), Executive's
rights upon termination shall be governed by the Company's standard
employment termination policy applicable to Executive in effect at
the time of termination or, if applicable, any written employment
agreement between the Company and Executive other than this
Agreement in effect at the time of termination
(c) Termination Notice. Except in the event of Executive's death, a
termination under this Agreement shall be effected by means of a
Termination Notice.
5. Executive Duties. Executive shall not terminate employment with the
Company without giving 30 days' prior notice to the Board, and during such
30-day period Executive will assist, as and to the extent reasonably requested
by the Company, in training the successor to Executive's position with the
Company. The provisions of this Section 5 shall not apply to any termination
(voluntary or involuntary) of the employment of Executive pursuant to Section
4(a) hereof.
6. Withholding. Company shall have the right to withhold from all payments
made pursuant to this Agreement any federal, state, or local taxes and such
other amounts as may be required by law to be withheld from such payments.
7. Assignability. Company may assign this Agreement and its rights and
obligations hereunder in whole, but not in part, to any entity to which Company
may transfer all or substantially all of its assets, if in any such case said
entity shall expressly in writing assume all obligations of Company hereunder as
fully as if it had been originally made a party hereto. Company may not
otherwise assign this Agreement or its rights and obligations hereunder. This
Agreement is personal to Executive and her rights and duties hereunder shall not
be assigned except as expressly agreed to in writing by Company.
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8. Death of Executive. Any amounts due Executive under this Agreement (not
including any Base Salary not yet earned by Executive) unpaid as of the date of
Executive's death shall be paid in a single sum as soon as practicable after
Executive's death to Executive's surviving spouse, or if none, to the duly
appointed personal representative of her estate.
9. Legal Expenses. In the event of a termination pursuant to Section 4(a)
hereof, the Company shall also pay to Executive all reasonable legal fees and
expenses incurred by Executive as a result of such termination of employment
(including all fees and expenses, if any, incurred by Executive in contesting or
disputing any such termination or in seeking to obtain to enforce any right or
benefit provided to Executive by this Agreement whether by arbitration or
otherwise).
10. Miscellaneous.
(a) Amendment. No provision of this Agreement may be amended unless
such amendment is signed by Executive and such officer as may be
specifically designated by the Board to sign on Company's behalf.
(b) Nature of Obligations. Nothing contained herein shall create or
require Company to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that Executive acquires a
right to receive benefits from Company hereunder, such right shall be no
greater than the right of any unsecured general creditor of the Company.
(c) ERISA. For purposes of the Executive Retirement Income Security
Act of 1974, this Agreement is intended to be a severance pay Executive
welfare benefit plan, and not an Executive pension plan, and shall be
construed and administered with that intention.
(d) Prior Employment. Executive represents and warrants that her
acceptance of employment with Company has not breached, and the
performance of her duties hereunder will not breach, any duty owed by her
to any prior employer or other person.
(e) Headings. The Section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation or this Agreement. In the event of a conflict between a
heading and the content of a Section, the content of the Section shall
control.
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(f) Gender and Number. Whenever used in this Agreement, a masculine
pronoun is deemed to include the feminine and a neuter pronoun is deemed
to include both the masculine and the feminine, unless the context clearly
indicates otherwise. The singular form, whenever used herein, shall mean
or include the plural form where applicable.
(g) Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable under any applicable law, such event shall not affect or
render invalid or unenforceable any other provision of this Agreement and
shall not affect the application of any provision to other persons or
circumstances.
(h) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors,
permitted assigns, heirs, executors and administrators.
(i) Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given if hand-delivered, sent by
documented overnight delivery service or by certified or registered mail,
return receipt requested, postage prepaid, addressed to the respective
addresses set forth below:
To the Company:
Integra LifeSciences Holdings Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: President
With a copy to:
The Company's General Counsel
To the Executive:
Xxxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
(j) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements,
arrangements and communications, whether oral or written, pertaining to
the subject matter hereof.
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(k) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United
States where applicable and otherwise by the laws of the State of New
Jersey.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
INTEGRA LIFESCIENCES EXECUTIVE
HOLDINGS CORPORATION
By:/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxxxx
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Its: President and Chief Executive Officer
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