Exhibit 10.1
Income Continuation Agreement between the Registrant and Richard D. Randall, CEO
INCOME CONTINUATION AGREEMENT
This Agreement is made as of the 6th day of April, 1999 by and between
Innovasive Devices, Inc. and the executive whose name is set forth on the
signature page of this Agreement (the "Executive").
I. Introduction.
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The Executive is President and Chief Executive Officer of the Company. The
Company wishes to provide financial transition and stability for the Executive
and to assist the Executive if the Executive is terminated without Cause by the
Company and if there is Change of Control of the Company.
II. Definitions.
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As used in this Agreement, the following terms have the definitions
indicated.
2.1 "Cause" means termination
(a) for the Executive's dishonesty or willful misconduct
involving the Company;
(b) as a result of the Executive's material neglect of his
duties, if the Company has given the Executive notice specifying the
act or omission constituting such neglect and the Executive has
continued the noticed behavior after receipt of the notice; or
(c) following the Executive's conviction of a felony or any
crime involving moral turpitude.
2.2 "Change of Control" means
(a) a sale of all or substantially all of the assets of the
Company;
(b) a sale of all or substantially all of the stock of the
Company;
(c) a merger or consolidation involving the Company as a
result of which the persons entitled to elect a majority of the
directors of the Company prior to the merger or consolidation are
unable to do so following the merger or consolidation;
(d) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") becomes a "beneficial owner" (as such term is defined
in Rule 13d-3 promulgated under The Exchange Act) directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the combined voting power of the Company's then
outstanding securities; or
(e) persons who, as the date of this agreement, constituted
the Company's Board of Directors (the "Incumbent Board") cease for any
reason, including, without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a
majority of the Company's Board of Directors, provided that any person
becoming a director of the Company after the date of this Agreement
whose election was approved by at least a majority of the directors
then comprising the Incumbent Board shall, for purposes of this
definition, be considered a member of the Incumbent Board; or
(f) the stockholders of the Company approve a plan of
liquidation of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Company" means Innovasive Devices, Inc. and its parents and
subsidiaries and shall also include their respective successors and
assigns.
2.5 "Continuation Period" means
(a) one year following the Termination Date if the Service
Period of the Executive is less than three years as of the Termination
Date; and
(b) two years following the Termination Date if the Service
Period of the Executive is at least three years.
2.6 "Diminution of Job Responsibility" means a diminution or reduction in
the Executive's principal job responsibilities, duties, reporting
responsibilities, title or position, a reduction in the Executive's
base salary or employee fringe benefits, or any other material adverse
change in the terms and conditions of the Executive's employment.
2.7 "Executive" means the person whose name is set forth on the signature
page to this Agreement.
2.8 "Income Continuation Payments" means the payments and benefit
continuations described in Article IV of this Agreement.
2.9 "Relocation" means a requirement that the Executive regularly perform
services at a location that is more than 50 miles from the Executive's
customary place of business as of the date of this Agreement.
2.10 "Service Period" means the period of time during which the Executive
has been employed by the Company and, if applicable, by MedicineLodge,
Inc.
2.11 "Termination Date" means the effective date of the Executive's
termination as an employee of the Company.
III. Entitlement to Income Continuation.
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Subject to the provisions of this Agreement, the Executive shall have the
right to receive Income Continuation Payments if the Executive, as of the date
of or within 12 months following a Change of Control:
(a) is terminated by the Company or any successor to the Company
without Cause;
(b) voluntarily terminates his employment with the Company or any
successor to the Company as the result of a Diminution of Job
Responsibility; or
(c) voluntarily terminates his employment with the Company or any
successor to the Company as the result of a Relocation.
IV. Specification of Income Continuation Payments
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4.1 Elements of Income Continuation Payments. In the event that the
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Executive becomes entitled to Income Continuation Payments as the result of an
action specified in Article III of this Agreement, the Executive shall be
entitled to the following, subject to the limitation set forth in Section 4.3:
(a) Base Salary. The Executive shall be entitled to receive his base
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salary for the Continuation Period at the highest rate of base salary
received by the Executive during the one year period preceding the
Termination Date. Such amount shall be paid monthly in arrears, ratably
over the Continuation Period.
(b) Incentive Compensation. The Executive shall be entitled to
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receive the average of the payments made during the two full fiscal years
of the Company immediately preceding the Termination Date under any
incentive plan of which the Executive is a participant for the fiscal year
of the Company in which the Termination Date occurs. Incentive
Compensation payments shall be paid at the time that such payments are
required to be made under the applicable incentive plan.
(c) Continuation of Health Plan Contributions. During the
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Continuation Period, the Company will continue to contribute on behalf of
the Executive the portion of the cost of health insurance paid by the
Company on behalf of the Executive as of the Termination Date and will
continue to cover the Executive (and, if they were covered
prior to the Termination Date, the Executive's family) under the Company's
health insurance plans to the maximum extent the Executive was covered
thereunder during the one year period prior to the Termination Date.
(d) Continuation of Premiums for Life Insurance. During the
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Continuation Period, the Company will continue to contribute on behalf of
the Executive the portion of the cost of life insurance premiums paid by
the Company on behalf of the Executive as of the Termination Date and will
continue to cover the Executive under the Company's life insurance plans to
the maximum extent the Executive was covered thereunder during the one year
period prior to the Termination Date.
(e) Continuation of Premiums for Long Term Disability Insurance.
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During the Continuation Period, the Company will continue to contribute on
behalf of the Executive the portion of the cost of long term disability
insurance premiums paid by the Company on behalf of the Executive as of the
Termination Date and will continue to cover the Executive under the
Company's long term disability insurance plans to the maximum extent the
Executive was covered thereunder during the one year period prior to the
Termination Date.
(f) COBRA Benefits. The Executive will have the option at his or her
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expense, and to the extent required by federal and state law, to be covered
by the Company's health insurance plans for an eighteen month period
following the end of the Continuation Period.
(g) Acceleration of Stock Options.
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(i) Any options held by the Executive as of the date of a
Change of Control which are not exercisable by their terms as of the
date of such Change of Control shall become exercisable as follows,
subject to the provisions of subsection (ii) below: 50% of such
options shall become fully exercisable immediately prior to the Change
of Control and 50% of such options shall become fully exercisable on
the first anniversary date of the Change of Control (unless by their
terms they become exercisable sooner). Such options shall remain
exercisable until the date which is ninety-one days following the
first anniversary of the Change of Control.
(ii) If as of the date of or within 12 months following a Change
of Control, the Executive is terminated without Cause or the Executive
voluntarily terminates his Employment with the Company as the result
of a Diminution of Job Responsibility or Relocation, all options held
by the Executive as of the Termination Date and not exercisable by
their terms as of such date shall become fully exercisable on the
Termination Date and shall remain exercisable for 90 days thereafter.
(iii) The Executive acknowledges that the accelerations herein
provided may have the effect of converting Incentive Stock Options
into non-qualified stock options.
4.2 Pension and Profit Sharing Contributions. The Company's obligation to
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contribute to pension and/or profit sharing plans on behalf of the Executive
shall terminate on the Termination Date.
4.3 Limitation on Continuation Payments. Notwithstanding anything to the
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contrary contained in this Agreement, if it is determined that any payment to
the Executive pursuant to this Article III or any other payment or benefit from
the Company
(a "Payment") would be subject to the excise tax imposed by Section 4999 of the
Code or would constitute any excess parachute payment under Section 280G of the
Code, then the amount payable under Section 4.1(a) shall be reduced so that the
aggregate amount of Payments shall be $1.00 less than the amount which would
subject the Payment to such excise tax or treatment.
4.4 Conditions to Receipt of Income Continuation Payments. The obligation
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of the Company or its successor to pay Income Continuation Payments is subject
to the following conditions:
(a) Written Release. Prior to making any payment to or any
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contribution on behalf of the Executive, the Company shall have received
from the Executive a written release of all claims by or through the
Executive and against the Company, its stockholders, directors, officers,
employees, representatives and successors by reason of the Executive's
termination. Such written release shall be signed and delivered by the
Executive in a form
approved by the President of the Company or its successor. In addition, if
in the opinion of counsel for the Company or its successor, waiting periods
(not to exceed 21 days in the aggregate) are required under any federal or
state law in order to make such written release binding and enforceable on
the Executive, such waiting period shall have expired prior to the payment
of any Income Continuation Payment hereunder.
(b) Set Off of Debts and Claims. The Company may offset Income
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Continuation Payments hereunder with the amount of any overdue debts or
claims owed by the Executive or any dependent of the Executive to the
Company as of the Termination Date.
(c) Taxes. All Income Continuation Payments are subject to
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withholding of all taxes and other amounts required by law to be withheld
or paid to others.
(d) Non-disparagement; Non-disclosure; Non-Competition. Payment of
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Income Continuation Payments shall be conditioned on the following:
(i) The Executive shall observe a strict public non-
disparagement policy precluding the Executive during the Continuation
Period from publicly disparaging or criticizing the Company, its
business or operations, its policies, publications, practices or
personnel or those of its successor.
(ii) The Executive will not disclose to any third party any
confidential or proprietary information of the Company or its
successors.
(iii) The Executive will observe any non-competition or non-
solicitation restrictions relating to the Company and the successor
applicable to the Executive under any written agreements between the
Executive and the Company or its successors and in effect as of the
Termination Date.
(iv) The Executive will return to the Company all copies of all
confidential and proprietary information concerning the Company, in
whatever medium it may be incorporated, and any and all assets of the
Company, including without limitation, automobiles, computers, credit
cards and other tangible and intangible property in his possession or
under his control as of the Termination Date.
4.5 Death of Executive. If the Executive dies after the Termination Date
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but before the end of the Continuation Period, the remaining payments due under
this Agreement will be paid to the Executive's estate, after verification of the
proper recipient, in accordance with governing law based on the advice of legal
counsel to the Company. In the event of any delay in the making of payments
resulting from such verification, no interest will be earned or payable to the
Executive's estate.
V. Miscellaneous
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5.1 Disputes. In the event that any dispute concerning the interpretation
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or implementation of this Agreement is not resolved by the Executive and the
Company within 30 days after written notice, specifying the nature of the
dispute, is given by the Executive or the Company to the other, either party may
submit the dispute to binding arbitration. Such binding arbitration shall be
conducted in Boston, Massachusetts by a three member panel acting under the
commercial arbitration rules of the American Arbitration Association. One
member of the panel shall be selected by the Executive, one by the Company and
the third by the agreement of the other two arbitrators so selected. Costs of
the arbitration shall be shared in the manner determined by the arbitration
panel. The decision of the arbitration panel shall be final and conclusive on
the parties and not subject to separate determination or review by a third
party.
5.2 Amendments. Any amendments to this Agreement must be in writing and
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signed by the Company and the Executive.
5.3 No Right to Employment or Benefits. This Agreement does not
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constitute or imply an obligation or undertaking to employ the Executive for any
particular period of time or in any position or any limitation on the right of
the Company to terminate the employment of the Executive for any or no reason.
Payments hereunder will not create, continue or evidence any employment
relationship with the Company. All employment privileges, benefits or
perquisites not specifically continued hereunder shall cease on the Termination
Date.
5.4 Governing Law. This Agreement shall be construed under and governed
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by the law of The Commonwealth of Massachusetts, without regard to its conflict
of laws provisions.
5.5 Notices. All notices required or permitted hereunder shall be deemed
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properly sent if mailed by prepaid certified or registered mail, return receipt
requested, or delivered by hand, or sent by bona fide overnight courier with
return receipt, to the following addresses or to any other addresses properly
noticed in accordance with this Section:
If to the Company: 734 Forest Street
Marlboro, MA 01752-3032
Attention: President
If to the Executive: At the address specified on
the signature page to this Agreement
All notices shall be deemed received on the actual date of their receipt, or if
delivery is refused, on the date delivery is refused.
5.6 Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties and their respective successors and permitted assigns.
The Executive may not assign this Agreement without the consent of the Company.
The Company may assign this Agreement without the consent of the Executive to
any entity which succeeds to all or any part of its business.
5.7 Enforceability. If any portion or provision of this Agreement shall
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to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement or the application of such portion
or provision in circumstances other than those as to which it is so declared
illegal or unenforceable, shall not be affected thereby, and each portion and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the Company and the Executive have executed and
delivered this Agreement as of the date and year first above written.
INNOVASIVE DEVICES, INC.
By: Joseph A. Ciffolillo
Title: Director
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Signature of Executive
Richard D. Randall
81 Winslow Road
Westwood, MA 02090
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Address of Executive