Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
November 12, 2004
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Conmed Corporation
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▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
In consideration of the mutual promises herein contained, CONMED
Corporation, a New York corporation (hereinafter the "Company"), and you hereby
agree that you will be employed by the Company on the following terms and
conditions:
1. Employment.
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The Company hereby agrees that you will be employed to serve as the
President and Chief Operating Officer of the Company during the term of
employment set forth in Section 2 of this Agreement. You hereby agree to serve
as President and Chief Operating Officer of the Company during such term of
employment.
2. Term of Employment.
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Subject to the provisions for early termination pursuant to Section 5 of
the Agreement, your term of employment under this Agreement shall be for a
period beginning January 1, 2000 and ending December 31, 2009.
3. Duties During Term of Employment.
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During your term of employment under this Agreement, you shall devote your
full business time and attention and all reasonable efforts to the affairs of
the Company and its subsidiaries and affiliates and shall perform such executive
and administrative duties for the Company and subsidiaries and affiliates as you
may be called upon to perform, from time to time, by the Board of Directors of
the Company (the "Board").
4. Compensation and Benefits.
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(a) Base Annual Salary.
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The Company shall pay to you during your term of employment under this Agreement
a base annual salary at the rate of at least $200,000 per year, payable in equal
weekly installments during each year of your term of employment, provided that
after the date hereof such annual base salary shall be at a rate of a least
$375,000. It is understood
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Amended and Restated Employment Agreement
November 12, 2004
Page 2 of 7
that the Board of Directors of the Company may in its discretion review from
time to time your base annual salary and in its discretion may from time to time
increase your base annual salary and/or grant bonuses if it determines that
circumstances justify any such increase and/or bonuses.
(b) Deferred Compensation
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Existing Arrangement. In addition to your base annual salary, the Company
shall establish a deferred compensation account on your behalf, which shall be
credited with the amount of $100,000 on December 31, 2000 and on each subsequent
December 31 during the term of this Agreement through December 31, 2004. This
account shall also be credited on December 31, 2001 and each December 31
thereafter with an amount equal to interest on the amount outstanding in the
account on the day prior to such December 31 at the rate of 10% per annum.
Commencing within 60 days after retirement or termination of employment, the
Company shall pay you, for 120 months, an amount equal to the amount then
outstanding in the deferred compensation account divided by the number of
payments remaining to be made. The account shall be reduced by the amount of any
payments and shall continue to be credited with interest annually on the amount
outstanding in the account. You may elect to receive payments over a period of
less than 120 months (including a lump sum), provided that your election is made
prior to the beginning of the year before the year of your retirement or
termination of employment. In the event of your death the Company shall make
payments to your estate. Such payments to your estate shall be made in the same
manner as specified above, except that such payments shall commence within one
month of your death. You understand and agree, and the Company agrees, that the
deferred compensation account is solely a bookkeeping account, does not
represent a segregated amount of money for your benefit, and that you shall not
have by virtue of this Agreement a security interest in the foregoing account or
in any assets or funds of the Company.
Future Arrangement. In addition to your existing deferred compensation
account above, the Company shall establish another deferred compensation account
on your behalf, which shall be credited with the amount of $125,000 on December
31, 2005 and on each subsequent December 31 during the term of this Agreement.
This account shall also be credited on December 31, 2005 and each December 31
thereafter with an amount equal to interest on the amount outstanding in the
account on the day prior to such December 31 at a rate equal to the prime rate
of JPMorgan Chase on such date plus 2%. Commencing six months and one day after
retirement or termination of employment, the Company shall pay you, for 120
months, an amount equal to the amount then outstanding in the deferred
compensation account divided by the number of payments remaining to be made. The
account shall be reduced by the amount of any payments and shall continue to be
credited with interest annually on the amount outstanding in the account. In the
event of your death the Company shall make payments to your estate. Such
payments to your estate shall be made in the same manner as specified above,
except that such payments shall commence within one month of your death. You
understand and agree, and the Company agrees, that the deferred compensation
account is solely a bookkeeping account, does not represent a
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Amended and Restated Employment Agreement
November 12, 2004
Page 3 of 7
Segregated amount of money for your benefit, and that you shall not have by
virtue of this Agreement a security interest in the foregoing account or in any
assets or funds of the Company.
(c) Benefit Plans.
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You also shall be entitled to participate in all life and health insurance
plans, pension plans and other plans, benefits or bonus arrangements provided by
the Company from time to time during your term of employment under this
Agreement and made available by the Company to its executives generally, if and
to the extent that you are eligible to participate in accordance with the
provisions of any such plan or for such benefits. Specifically, you shall be
entitled to participate in the Company's stock option plans and shall continue
to be entitled to participate in the Company's pension and disability plans and
be provided with reimbursement of club memberships and automobile expenses as
under present practices. In no event shall the benefits provided you be less, in
the aggregate, than those provided you under present plans and practices. In
addition, for each calendar year commencing after the date hereof, the Company
shall pay you an amount, which after the payment of any applicable taxes on such
payment, is sufficient for you to purchase and maintain (i) $2.0 million of
whole life insurance coverage and (ii) the insurance policies referred to on
Exhibit A hereto. Life and health insurance benefits (including the payment to
purchase term life insurance coverage) shall continue for your and your wife
during the terms of your lives. In addition, the Company shall reimburse you for
your reasonable personal legal and accounting expenses related to your estate
and tax planning and to preparing and filing your tax returns.
5. Early Termination of the Term of Employment.
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(a) Early Termination Other Than for Just Cause.
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If at any time during your term of employment under this Agreement, the
Board of Directors of the Company shall fail to reelect you as the President and
Chief Operating Officer of the Company, shall remove you from such office, shall
substantially reduce your duties and responsibilities or shall terminate your
employment under this Agreement, in each case other than for "just cause" as
such term is defined in paragraph (c) of this Section 5, such event shall be
deemed an early termination other than for just cause. After an early
termination other than for just cause, you shall have no obligations under this
Agreement (other than your obligations under Sections 7 and 8 of this
Agreement), you shall have no obligation to seek other employment in mitigation
of damages in respect of any period following the date of such early termination
and you shall be entitled to receive from the Company an immediate lump sum
payment equal to the result of multiplying (i) the greater of (A) three or (B)
the number of years and fractions thereof (rounded to the nearest month) then
remaining in the term of employment by (ii) the sum of (A) your base annual
salary to which you are then entitled and (B) an amount equal to the average of
the bonuses, deferred compensation and incentive compensation earned by you in
each of the Company's three fiscal years prior to the date of your early
termination. If such lump sum payment is
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Amended and Restated Employment Agreement
November 12, 2004
Page 4 of 7
not made in full within ten days of such early termination other than for just
cause, the Company shall also pay you interest on the amount of the remaining
payment at the prime rate of JPMorgan Chase, in effect from time to time.
In addition, in the event of your early termination other than for just
cause, you shall be entitled to continued coverage under the benefit plans of
the Company specified in paragraph (c) of Section 4 of this Agreement as if such
early termination had not occurred, for a period equal to the greater of (x)
three years from the date of such early termination or (y) the remainder of the
term of employment. You shall also be entitled to receive payment of the
deferred compensation account as specified in paragraph (b) of Section 4 of this
Agreement, and you or your estate shall be entitled to receive from the Company
all payments and benefits required pursuant to the provisions of Section 6 of
this Agreement, as if such early termination had not occurred.
(b) Early Termination for Just Cause.
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If at any time during your term of employment under this Agreement, the
Board of Directors of the Company shall fail to reelect you as the Chief
Operating Officer of the Company, shall remove you from such office, shall
substantially reduce your duties and responsibilities or shall terminate your
employment under this Agreement, in each case for "just cause" as such term is
defined in paragraph (c) of this Section 5, subject to the provisions of Section
6 for additional payments and benefits in the event of your death or permanent
disability (as such term is defined in Section 6), the Company shall only be
obligated to pay you (i) your then base salary and to provide continued coverage
under the benefit plans of the Company specified in paragraph (c) of Section 4
of this Agreement through the end of the month during which such early
termination occurs, and (ii) the deferred compensation account as specified in
paragraph (b) of Section 4 of this Agreement, plus an additional amount of
deferred compensation equal to a pro rata amount of such deferred compensation
under paragraph (b) of Section 4 for the year of your termination.
(c) Definition of Just Cause.
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"Just cause" under this Agreement shall mean a breach by you of your
obligations under this Agreement, willful misconduct, dishonesty, conviction of
a crime (other than traffic or other similar violations or minor misdemeanors),
intoxication on the job or excessive absenteeism not related to illness.
6. Death or Disability.
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If before the expiration date of your term of employment under this Agreement
you shall die, or become permanently disabled, the Company shall be obligated to
pay (in the case of death) to your estate, or (in the case of such disability)
to you or your representative, 100% of your annual base salary to which you are
then entitled to the end of such term of employment. In addition, in the event
of such disability, you shall continue to fully
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Amended and Restated Employment Agreement
November 12, 2004
Page 5 of 7
participate in all benefit plans of the Company specified in paragraph (c) of
Section 4 of this Agreement to the expiration date of such term of employment,
and in the case of life and health insurance benefits (including the payment to
purchase term life insurance coverage), the benefits will continue for you and
your wife during the terms of your lives. For purposes of this Agreement,
"permanent disability" means inability to perform the services required under
this Agreement due to physical or mental disability, which continues for 180
consecutive days. Evidence of such disability shall be certified by a physician
acceptable to both the Company and you.
7. Non-competition.
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It is agreed that during your term of employment under this Agreement and
for a period of two years thereafter you will not, without the prior written
approval of the Board of Directors of the Company, become an officer, employee,
agent, limited or general partner, director, member or shareholder of any
business enterprise in competition with the Company or any subsidiary of the
Company, as the business of the Company or any such subsidiary may be
constituted during such term of employment, or at the expiration of such term or
period. Notwithstanding the preceding sentence, you shall not be prohibited from
owning less than five (5%) percent of the outstanding equity of any publicly
traded business enterprise.
8. Non-disclosure.
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You shall not, at any time during or following your term of employment
under this Agreement, disclose or use, except in the course of your employment
or consultation arrangements with the Company in the pursuit of the business or
interests of the Company or any of its subsidiaries or affiliates, any
confidential information or proprietary data of the Company or any of its
subsidiaries or affiliates, whether such information or proprietary data is in
your memory or memorialized in writing or other physical terms.
9. Conflicts.
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Any paragraph, sentence, phrase or other provision of this Agreement which
is in conflict with any applicable statute, rule or other law shall be deemed,
if possible, to be modified or altered to conform thereto or, if not possible,
to be omitted herefrom. The invalidity of any portion of this Agreement shall
not affect the force and effect of the remaining valid portions hereof. Section
and paragraph headings are included in this Agreement for convenience only and
are not intended to affect in any way the meaning or interpretation of this
Agreement.
10. Governing Law.
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This Agreement is governed by and is to be construed and enforced in
accordance with the laws of the State of New York.
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Amended and Restated Employment Agreement
November 12, 2004
Page 6 of 7
11. Miscellaneous.
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This Agreement amends and restates in its entirety the Employment
Agreement between the Company and you dated May 2, 2000. This Agreement
constitutes the entire understanding between you and the Company relating to
your employment with the Company and supersedes and cancels all prior written
and oral understandings and agreements with respect to such matters, other than
with respect to (1) the deferred compensation account under Section 4(b) and (2)
the Change in Control Severance Agreement between the Company and you dated May
3, 2000 (the "CICSA"). Both parties agree that although you are entitled to
receive payments and benefits under both this Agreement and the CICSA, in the
event of your termination of employment you shall receive severance payments and
benefits under either Section 5 of this Agreement or Section 4 of the CICSA
depending upon which section provides you with more favorable payments and
benefits (but you shall not receive payments and benefits under both such
sections). This Agreement shall be binding upon, and shall inure to the benefit
of you and the Company, your heirs, executors and administrators and the
Company's successors.
If the foregoing correctly sets forth the understanding between you and
the Company, please execute and return the enclosed copy of this letter.
CONMED CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Vice President - Legal Affairs
General Counsel
Agreed and accepted as of the date first above written:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Amended and Restated Employment Agreement
November 12, 2004
Page 7 of 7
Exhibit A
Scheduled Insurance Policies
Policy Number Carrier Current Estimated Premium
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▇▇-▇▇-▇▇▇ MassMutual $14,000
▇▇-▇▇▇-▇▇▇ Northwest $22,000
