AMENDMENT NO. 1 TO KEY EMPLOYEE AGREEMENT
AMENDMENT NO. 1, by and among Palomar Medical Technologies, Inc., a
Delaware corporation (the "Company") and Xxxxxxx X. Xxxxxxxx ("Employee"), dated
as of May 15, 1999 (this "Amendment"), to Key Employee Agreement, dated as of
April 1, 1998, between the Company and Employee.
W I T N E S S E T H :
WHEREAS, the Company and Employee are parties to a Key Employee
Agreement dated as of April 1, 1998 (the "Agreement");
WHEREAS, the Company and Employee wish to amend the Agreement upon the
terms and subject to the conditions set forth herein; and
NOW THEREFORE, in consideration of the premises and the covenants
contained in this Amendment and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENT. Section 2.2(e) of the Agreement is amended by deleting
the final two sentences thereof and replacing them in their entirety by the
following: "If, however, a change in control of the Company should occur
followed by termination of your employment (either without Cause or as a result
of your resignation) at any time during the term of this Agreement, then you
shall be entitled to receive as severance pay three times your Base Salary as
then in effect in a lump sum payment in addition to all earned incentive
compensation in accordance with EXHIBIT A attached. For purposes of this
Agreement "change in control" shall be deemed to be (i) the sale of all or
substantially all of the assets of the Company; (ii) any person, together with
its affiliates and associates (as defined in Rule 12b-2 under the Securities
Exchange Act of 1934, or any successor rule thereto) shall become the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act), including by
merger or otherwise, of more than fifty percent (50%) of the total voting power
of all classes of voting stock of the Company; or (iii) that any person,
together its affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, or any successor rule thereto) has succeeded as
the result of or in response to actual or threatened election contests, whether
by settlement or otherwise, in having elected to the Board of Directors of the
Company, whether at one time or on a cumulative basis, a sufficient number of
nominees who were not nominees of the Board of Directors or the management of
the Company to constitute (x) more than thirty percent (30%) of the members of
the Company's Board of Directors, rounded down to the nearest whole number, if
the number of directors on the Company's Board is eight or less, or (y) more
than forty percent (40%) of the members of the Company's Board, rounded down to
the nearest whole number, if the number of directors on the Company's Board is
nine or more.
2. EFFECTIVENESS. From and after the date hereof, all references in the
Agreement to the Agreement shall be deemed to be references to such Agreement as
amended hereby.
3. AGREEMENT. Except as amended by this Amendment, the Agreement shall
remain in effect in accordance with its terms.
4. MISCELLANEOUS. (a) This Amendment shall be construed and interpreted
in accordance with the laws of the Commonwealth of Massachusetts.
(b) This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts,
each of which counterparts when so executed and delivered, shall be
deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument. This Amendment may be
executed and delivered by a party by a telephone line facsimile
transmission bearing a signature on behalf of such party transmitted by
such party to the other party.
(c) Section and paragraph headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
(d) Any provision of this Amendment that is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability
or legality of such provision in any other jurisdiction.
(e) No amendment or waiver of any provision of this Amendment
shall in any event be effective unless the same shall be in writing and
signed by the party to be charged with enforcement thereof and any such
waiver shall be effective only in the specific instance and for the
specific instance and for the specific purpose for which given. No
failure on the part of any party to exercise, and no delay in
exercising, any right under this Amendment shall operate as a waiver
thereof by such party. No single or partial exercise of any right under
this Amendment shall preclude any other or further exercise thereof or
the exercise of any other right.
IN WITNESS WHEREOF, the parties hereto have executed, delivered and
made effective this Amendment as of May 15, 1999.
PALOMAR MEDICAL TECHNOLOGIES, INC.
BY: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
