AMENDED AND RESTATED 2005 EMPLOYMENT AGREEMENT
This amended and restated 2005 employment agreement (this "Agreement")
is made as of the 19th day of December, 2005 by and between Integra LifeSciences
Holdings Corporation, a Delaware Corporation (the "Company") and Gerard S.
Carlozzi ("Executive").
Background
Executive is currently the Chief Operating Officer of the Company. The
Company desires to continue to employ Executive, and Executive desires to remain
in the employ of the Company, on the terms and conditions contained in this
Agreement. Executive will be substantially involved with the Company's
operations and management and will learn trade secrets and other confidential
information relating to the Company and its customers; accordingly, the
noncompetition covenant and other restrictive covenants contained in Section 16
of this Agreement constitute essential elements hereof.
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 have the meaning set forth in Section 5.
(b) "Board" shall mean the Board of Directors of the Company, or any
successor thereto.
(c) "Cause," as determined by the Board in good faith, shall mean
Executive has --
(1) failed to perform his stated duties in all material
respects, which failure continues for 15 days after his
receipt of written notice of the failure;
(2) intentionally and materially breached any provision of this
Agreement and not cured such breach (if curable) within 15
days of his receipt of written notice of the breach;
(3) demonstrated his personal dishonesty in connection with his
employment by the Company;
(4) engaged in a breach of fiduciary duty in connection with his
employment with the Company; or
(5) engaged in willful misconduct that is materially and
demonstrably injurious to the Company or any of its
subsidiaries; or
(6) conviction or plea of guilty or nolo contendere to a felony
or to any other crime involving moral turpitude which
conviction or plea is materially and demonstrably injurious
to the Company or any of its subsidiaries.
(d) A "Change in Control" of the 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 the Company, any trustee or other
fiduciary holding securities under any employee benefit plan
of the Company or an affiliate thereof, or any corporation
owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company (for purposes of this
Agreement, "Company Voting Securities" shall mean the then
outstanding voting securities of the Company entitled to
vote generally in the election of directors); provided,
however, that any acquisition from the 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 during
any period of at least 24 months 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 the Company's
stockholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any 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 the Company of a reorganization, merger
or consolidation or sale or other disposition of all or
substantially all of the assets of the 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
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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 the Company or all or substantially all of
the 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 the 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 the 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 the Company of a
complete liquidation or dissolution of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(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 his
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 the Company which is
not cured by the Company within 15 days of its receipt of
written notice of the breach;
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(2) the relocation by the Company of the Executive's office
location to a location more than forty (40) miles from
Princeton, New Jersey;
(3) without Executive's express written consent, the Company
reduces Executive's Base Salary or bonus opportunity, or
materially reduces the aggregate fringe benefits provided to
Executive (except to the extent permitted by Sections 5, 6
or 7, respectively) or substantially alters the Executive's
authority and/or title as set forth in Section 2 hereof in a
manner reasonably construed to constitute a demotion,
provided, Executive resigns within 90 days after the
change objected to; or
(4) without Executive's express written consent, Executive fails
at any point during the one-year period following a Change
in Control to hold the title and authority (as set forth in
Section 2 hereof) with the Parent Corporation (or if there
is no Parent Corporation, the Surviving Corporation) that
Executive held with the Company immediately prior to the
Change of Control, provided Executive resigns within one
year of the Change in Control;
(5) the Company fails to obtain the assumption of this Agreement
by any successor to the Company.
(i) "Principal Executive Office" shall mean the Company's principal
office for executives, presently located at 311 Enterprise
Drive, Plainsboro, New Jersey 08536.
(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 17(i).
2. Employment. The Company hereby employs Executive as Chief Operating
Officer, responsible for the sales department, the marketing department, the
research and development department, the clinical education department and the
manufacturing operations department of the Company, and Executive hereby agrees
to accept such employment and agrees to render services to the Company in such
capacity (or in such other capacity in the future as the Board may reasonably
deem equivalent to such position) on the terms and conditions set forth in this
Agreement. Executive's primary place of employment shall be at the Principal
Executive Office and Executive shall report to the Chief Executive Officer.
3. Term and Renewal of Agreement. Unless earlier terminated by
Executive or the Company as provided in Section 12 hereof, the term of
Executive's employment under this Agreement shall commence on the date of this
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Agreement and terminate on January 3, 2009. This Agreement shall be deemed
automatically, without further action, to extend for an additional year on
January 3, 2009 and each anniversary thereof, unless either the Board provides
written notice to Executive of its election not to extend the term, or Executive
gives written notice to the Company of Executive's election not to extend the
term. In either case, the written notice shall be given not fewer than 90 days
prior to any such renewal date. References herein to the term of this Agreement
shall refer both to the initial term and successive terms.
4. Duties. Executive shall:
(a) faithfully and diligently do and perform all such acts and
duties, and furnish such services as are assigned to Executive
as of the date this Agreement is signed, and (subject to Section
2) such additional acts, duties and services as the Board may
assign in the future; and
(b) devote his full professional time, energy, skill and best
efforts to the performance of his duties hereunder, in a manner
that will faithfully and diligently further the business and
interests of the Company, and shall not be employed by or
participate or engage in or in any manner be a part of the
management or operations of any business enterprise other than
the Company without the prior consent of the Chief Executive
Officer or the Board, which consent may be granted or withheld
in his or its sole discretion; provided, however, that
notwithstanding the foregoing, Executive may serve on civic or
charitable boards or committees so long as such service does not
materially interfere with Executive's obligations pursuant to
this Agreement; and provided, further, Executive may serve on
the board of directors of Cascade Medical and Scandius
Biomedical unless and until a conflict of interest arises or the
business of the Company competes with the business of Cascade
Medical or Scandius Biomedical.
5. Compensation. Currently, the Company compensates Executive at a
minimum base salary of $350,000 per year (the "Base Salary"). Effective January
1, 2006, the Company shall compensate Executive for his services at a Base
Salary of $400,000 per year, payable in periodic installments in accordance with
the 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.
6. Bonus Opportunity. Executive shall have the opportunity to receive a
performance bonus targeted at 40% of Executive's Base Salary, based upon the
satisfaction of certain performance objectives as determined by the Compensation
Committee of the Board of Directors of the Company (the "Compensation
Committee"), in its sole discretion.
7. Benefit Plans. Executive shall be entitled to participate in and
receive benefits under any employee benefit plan or stock-based plan of the
Company in accordance with their terms, and shall be eligible for any other
plans and benefits covering executives of the Company, to the extent
commensurate with his then duties and responsibilities fixed by the Board. The
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Company shall not make any change in such plans or benefits that would adversely
affect Executive's rights thereunder, unless such change affects all, or
substantially all, executive officers of the Company.
8. Equity Compensation.
(a) Stock Options and Other Equity Compensation. Executive shall be
entitled to receive annual equity compensation grants
commensurate with the equity compensation grants received by
other executive officers of the Company, as determined by the
Compensation Committee from time to time; provided, however,
nothing contained herein shall guarantee a grant or the level of
grant. All such grants are in the discretion of the Compensation
Committee based on performance. All grants made by the
Compensation Committee shall vest in full upon a Change in
Control, Executive's termination of employment without Cause,
for Good Reason, Disability or death. In addition, upon the
Company's nonrenewal of this Agreement, if any shares of
restricted stock have been granted to Executive and remain
restricted, a certain number of outstanding shares of such
restricted stock shall be deemed to have vested as of the last
day of Executive's employment with the Company, the exact number
of restricted shares which shall be deemed vested to be
determined by multiplying the number of restricted shares
granted to Executive by a fraction, the numerator of which shall
be the number of days that have elapsed since the date of grant
and the denominator of which shall be the total number of days
in the restricted period as stated in the original grant.
(b) Performance Stock. On January 3, 2006, and provided that
Executive is an employee of the Company at that time, the
Company shall grant to Executive an Award of 100,000 shares of
the Company's common stock subject to certain restrictions and
forfeiture (the "Performance Stock"), which shall be contingent
upon attainment of certain performance goals (the "Performance
Goals") pursuant to the Company's 2003 Equity Incentive Plan and
the terms and conditions set forth in the award agreement
attached as Exhibit A hereto (the "Performance Stock Award
Agreement"), which shall include the specific Performance Goals.
In the event of any inconsistency between the terms of this
Agreement and the Performance Stock Award Agreement, the
Performance Stock Award Agreement shall govern. Subject to
attainment of the Performance Goals, 100,000 shares of
Performance Stock shall be issued on January 3, 2009; provided,
however, that notwithstanding the foregoing, all of the
Performance Stock shall be issued on a Change in Control,
Executive's termination without Cause, for Good Reason,
Disability, or death. Until issued, the Performance Stock shall
not be transferable and shall be subject to forfeiture.
(c) S-8. The Company agrees that for so long as it is required to
file reports under Sections 13 or 15(d) of the Securities
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Exchange Act of 1934, it will maintain in effect a Form S-8
registration statement covering the issuance of Performance
Stock to Executive.
9. Vacation. Executive shall be entitled to paid annual vacation in
accordance with the policies established from time to time by the Board, which
shall in no event be fewer than four weeks per annum.
10. Business Expenses. The Company shall reimburse Executive or
otherwise pay for all reasonable expenses incurred by Executive in furtherance
of or in connection with the business of the Company, including, but not limited
to, automobile and traveling expenses and all reasonable entertainment expenses,
subject to such reasonable documentation and other limitations as may be
established by the Company.
11. Disability. In the event Executive incurs a Disability, Executive's
obligation to perform services under this Agreement will terminate, and the
Board may terminate this Agreement upon written notice to Executive.
12. Termination.
(a) Termination without Salary Continuation. In the event (i)
Executive terminates his employment hereunder other than for
Good Reason, or (ii) Executive's employment is terminated by the
Company for Cause, Executive shall have no right to compensation
or other benefits pursuant to this Agreement for any period
after his last day of active employment. Additionally, all
unissued Performance Stock shall be forfeited on Executive's
last day of active employment.
(b) Termination with Salary Continuation (No Change in Control).
Except as provided in subsection 12(c) in the event of a Change
in Control and subject to Executive and the Company executing a
mutual release that is mutually agreeable (provided, however,
that Executive shall not be required to execute such mutual
release as a condition to the receipt of the payments and
benefits described below unless the Company also executes such
mutual release), in the event (i) Executive's employment is
terminated by the Company for a reason other than death,
Disability or Cause, or (ii) Executive terminates his employment
for Good Reason, or (iii) the Company shall fail to extend this
Agreement pursuant to the provisions of Section 3, then the
Company shall:
(1) pay Executive a severance amount equal to Executive's Base
Salary (determined without regard to any reduction in
violation of Section 5) as of his last day of active
employment, plus the target bonus under Section 6; the
severance amount shall be paid in a single sum on the first
business day of the month following the Termination Date;
and
(2) maintain and provide to Executive, at no cost to Executive,
for a period ending at the earliest of (i) the first
anniversary of the Termination Date; (ii) the date of
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Executive's full-time employment by another employer; or
(iii) 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 his
employment with the Company continued throughout such
period, provided that such participation is not prohibited
by the terms of the plan or by the Company for legal
reasons.
(c) Termination with Salary Continuation (Change in Control).
Notwithstanding anything to the contrary set forth in subsection
12(b), and subject to Executive and the Company executing a
mutual release that is mutually agreeable (provided, however,
that Executive shall not be required to execute such mutual
release as a condition to the receipt of the payments and
benefits described below unless the Company also executes such
mutual release), in the event within twelve months of a Change
in Control: (i) Executive terminates his employment for Good
Reason, or (ii) Executive's employment is terminated by the
Company for a reason other than death, Disability or Cause, or
(iii) the Company shall fail to extend this Agreement pursuant
to Section 3, then the Company shall:
(1) pay Executive a severance amount equal to 2.99 times the
amount that results from adding Executive's Base Salary
(determined without regard to any reduction in violation of
Section 5) as of his last day of active employment plus the
target bonus under Section 6; the severance amount shall be
paid in a single sum on the first business day of the month
following the Termination Date;
(2) maintain and provide to Executive, at no cost to Executive,
for a period ending at the earliest of (i) the fifth
anniversary of the date of this Agreement; or (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 his employment with
the Company continued throughout such period, provided that
such participation is not prohibited by the terms of the
plan or by the Company for legal reasons;
(3) in the event that either the independent public accountants
which serve as the auditors of the Company immediately prior
to the Change in Control or the Internal Revenue Service
determines that any payment, coverage or benefit provided to
the Executive is subject to the excise tax imposed by
Section 4999 (or any successor provisions) of the Internal
Revenue Code of 1986, as amended (the "Code"), the Company
shall promptly pay to the Executive, in addition to other
payments, coverage or benefit due and owing hereunder or
under any other plan, or agreement, an amount determined by
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multiplying the rate of the excise tax then imposed by Code
Section 4999 by the amount of the "excess parachute payment"
received by the Executive (determined without regard to any
payments made to the Executive pursuant to this section) and
dividing the product so obtained by the amount obtained by
subtracting the aggregate local, state and Federal income
tax rate applicable to the receipt by the Executive of such
"excess parachute payment" (taking into account the
deductibility for Federal income tax purposes of the payment
of state and local income taxes thereon) from the amount
obtained by subtracting from 1.00 the rate of the excise tax
then imposed by Code Section 4999 (the "Gross-Up Payment"),
it being the intention of the parties hereto that the
Executive's net after tax position shall be identical to
that which would have obtained had Code Sections 280G and
4999 not been part of the Code. The Gross-Up Payment
attributable to payments other than severance compensation
described in subsections c(i) and (ii) shall be paid in a
lump sum payment on the Termination Date following the
Change in Control. The Gross-Up Payment attributable to the
severance compensation described in subsections c(i) and
(ii) shall be paid in a lump sum payment on the first day on
which severance compensation is paid pursuant to subsection
c(i) or subsection c(ii). All Gross-Up Payments shall be
paid in accordance with section 409A of the Code. For
purposes of the calculations required by this subsection (3)
reasonable assumptions and approximations may be made with
respect to applicable taxes and reasonable good faith
interpretations of the Code may be relied upon; and
(4) 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).
(d) Termination Notice. Except in the event of Executive's death, a
termination under this Agreement shall be effected by means of a
Termination Notice.
(e) Section 409A. Notwithstanding any other provision in this
Agreement to the contrary, any payments that would constitute
deferred compensation for purposes of (and subject to) Code
Section 409A shall be deferred for a period of six months
following Executive's separation from service with the Company.
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13. Withholding. The 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.
14. Assignability. The Company may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any entity to which the
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 the Company
hereunder as fully as if it had been originally made a party hereto. The Company
may not otherwise assign this Agreement or its rights and obligations hereunder.
This Agreement is personal to Executive and his rights and duties hereunder
shall not be assigned except as expressly agreed to in writing by the Company.
15. Death of Executive. If Executive dies during the term of this
Agreement, the Company shall pay Executive's spouse death benefits equal to (a)
a lump sum payment equal to Executive's Base Salary at the time of death plus
(b) continued participation by the spouse and any dependents in the Company's
health benefit plan in which Executive would have been entitled to participate,
for a period of one year from the date of Executive's death, at no cost to
spouse and dependents of active employees; provided that such participation is
not prohibited by the terms of the plan or by the Company for legal reasons.
Such continued participation to be in addition to and not concurrent with any
continuation coverage required by law (e.g. COBRA). 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 his estate.
16. Restrictive Covenants.
(a) Covenant Not to Compete. During the term of this Agreement and
for a period of one year following the Termination Date of
Executive's employment, Executive shall not, without the express
written consent of the Company, directly or indirectly: (I)
engage, anywhere within the geographical areas in which the
Company is conducting business operations or providing services
as of the date of Executive's termination of employment, in the
tissue engineering business (the use of implantable absorbable
materials, with or without a bioactive component, to attempt to
elicit a specific cellular response in order to regenerate
tissue or to impede the growth of tissue or migration of cells)
(the "Tissue Engineering Business"), neurosurgery business (the
use of surgical instruments, implants, monitoring products or
disposable products to treat the brain or central nervous
system) ("Neurosurgery Business"), instrument business (general
surgical handheld instruments used for general purposes in
surgical procedures) ("Instrument Business"), reconstruction
business (bone fixation devices for foot and ankle
reconstruction procedures) ("Reconstruction Business") or in any
other line of business the revenues of which constituted at
least 50% of the Company's revenues during the six (6) month
period prior to the Termination Date (together with the Tissue
Engineering Business, Neurosurgery Business, Instrument Business
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and Reconstruction Business, the "Business"); (II) be or become
a stockholder, partner, owner, officer, director or employee or
agent of, or a consultant to or give financial or other
assistance to, any person or entity engaged in the Business;
(III) seek in competition with the Business to procure orders
from or do business with any customer of the Company; (IV)
solicit, or contact with a view to the engagement or employment
by any person or entity of, any person who is an employee of the
Company; (V) seek to contract with or engage (in such a way as
to adversely affect or interfere with the business of the
Company) any person or entity who has been contracted with or
engaged to manufacture, assemble, supply or deliver products,
goods, materials or services to the Company; or (VI) engage in
or participate in any effort or act to induce any of the
customers, associates, consultants, or employees of the Company
to take any action which might be disadvantageous to the
Company; provided, however, that nothing herein shall prohibit
Executive and his affiliates from owning, as passive investors,
in the aggregate not more than 5% of the outstanding publicly
traded stock of any corporation so engaged and provided,
further, however, that nothing set forth in this Section 16(a)
shall prohibit Executive from becoming an employee or agent of,
or consultant to, any entity that is engaged in the Business so
long as Executive does not engage in any activities in the
Business in any capacity for said entity.
(b) Confidentiality. Executive acknowledges a duty of
confidentiality owed to the Company and shall not, at any time
during or after his employment by the Company, retain in
writing, use, divulge, furnish, or make accessible to anyone,
without the express authorization of the Board, any trade
secret, private or confidential information or knowledge of the
Company obtained or acquired by him while so employed. All
computer software, business cards, telephone lists, customer
lists, price lists, contract forms, catalogs, the Company books,
records, files and know-how acquired while an employee of the
Company are acknowledged to be the property of the Company and
shall not be duplicated, removed from the Company's possession
or premises or made use of other than in pursuit of the
Company's business or as may otherwise be required by law or any
legal process, or as is necessary in connection with any
adversarial proceeding against the Company and, upon termination
of employment for any reason, Executive shall deliver to the
Company all copies thereof which are then in his possession or
under his control. No information shall be treated as
"confidential information" if it is generally available public
knowledge at the time of disclosure or use by Executive.
(c) Inventions and Improvements. Executive shall promptly
communicate to the Company all ideas, discoveries and inventions
which are or may be useful to the Company or its business.
Executive acknowledges that all such ideas, discoveries,
inventions, and improvements which heretofore have been or are
hereafter made, conceived, or reduced to practice by him
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(d) at any time during his employment with the Company heretofore or
hereafter gained by him at any time during his employment with
the Company are the property of the Company, and Executive
hereby irrevocably assigns all such ideas, discoveries,
inventions and improvements to the Company for its sole use and
benefit, without additional compensation. The provisions of this
Section 16(c) shall apply whether such ideas, discoveries,
inventions, or improvements were or are conceived, made or
gained by him alone or with others, whether during or after
usual working hours, whether on or off the job, whether
applicable to matters directly or indirectly related to the
Company's business interests (including potential business
interests), and whether or not within the specific realm of his
duties. Executive shall, upon request of the Company, but at no
expense to Executive, at any time during or after his employment
with the Company, sign all instruments and documents reasonably
requested by the Company and otherwise cooperate with the
Company to protect its right to such ideas, discoveries,
inventions, or improvements including applying for, obtaining
and enforcing patents and copyrights thereon in such countries
as the Company shall determine.
(e) Breach of Covenant. Executive expressly acknowledges that
damages alone will be an inadequate remedy for any breach or
violation of any of the provisions of this Section 16 and that
the Company, in addition to all other remedies, shall be
entitled as a matter of right to equitable relief, including
injunctions and specific performance, in any court of competent
jurisdiction. If any of the provisions of this Section 16 are
held to be in any respect unenforceable, then they shall be
deemed to extend only over the maximum period of time,
geographic area, or range of activities as to which they may be
enforceable.
17. 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 the Company's
behalf.
(b) Interpretation. This Agreement is intended to comply with the
requirements of Section 409A of the Code and all interpretations
of this Agreement shall be in accordance with that intent. In
that regard, notwithstanding the provisions of Section 17(a),
the Company may amend this Agreement without the consent of the
Executive if the Company determines that it is necessary in
order for the benefits or payments to be made under this
Agreement to comply with the requirements of Section 409A of the
Code.
(c) Nature of Obligations. Nothing contained herein shall create or
require the Company to create a trust of any kind to fund any
benefits which may be payable hereunder, and to the extent that
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Executive acquires a right to receive benefits from the Company
hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Company.
(d) Prior Employment. Executive represents and warrants that his
acceptance of employment with the Company has not breached, and
the performance of his duties hereunder will not breach, any
duty owed by him 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.
(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
311 Enterprise Drive
Plainsboro, New Jersey 08536
Attn: President
With a copy to:
The Company's General Counsel
-13-
To the Executive:
Gerard S. Carlozzi
5 Baker Way
Pennington, NJ 08534
(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.
(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.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
INTEGRA LIFESCIENCES HOLDINGS EXECUTIVE
CORPORATION
By: /s/ Stuart M. Essig /s/ Gerard S. Carlozzi
--------------------------------------- ---------------------------
Its: President and Chief Executive Officer Gerard S. Carlozzi