FIRST AMENDMENT TO CHANGE IN
CONTROL SEVERANCE AGREEMENT
This Amendment
(this “Amendment”) is made and entered into as of
March 6, 2008, by and between American Medical Systems
Holdings, Inc., a Delaware corporation (“Parent
Corporation”), on its behalf and on behalf of all of its
Affiliates (collectively, and if the context requires, each
individually, referred to herein as the “Company”),
with an address at 10700 Bren Road West, Minnetonka, Minnesota
55343, and
(the “Executive”).
WHEREAS, Company
and Executive entered into a Change in Control Severance Agreement,
dated as of April 2, 2007 (the “CIC Severance
Agreement”);
WHEREAS, the
parties hereto desire to amend the CIC Severance Agreement to make
changes that are necessary or desirable to reflect the requirements
of Section 409A of the Internal Revenue Code of 1986, as
amended, as set forth herein.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
A. CHANGE IN
CONTROL SEVERANCE AGREEMENT AMENDMENTS
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1.
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Section 2 of the CIC Severance
Agreement is amended and restated in its entirety to read as
follows:
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2.
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Benefits upon a Change in Control
Termination .
The Executive will become entitled to the benefits described in
this Section 2 on account of a Termination of Employment if
and only if (i) the Company terminates the Executive’s
employment for any reason other than for Cause, or the Executive
terminates the Executive’s employment with the Company for
Good Reason, and (ii) the Termination of Employment occurs
either within the period beginning on the date of a Change in
Control and ending on the last day of the first full calendar month
following the first anniversary date of the Change in Control or
prior to a Change in Control if the Executive’s Termination
of Employment was either a condition of the Change in Control or
was at the request or insistence of a Person related to the Change
in Control.
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(a)
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Cash Payment
. Subject to
Section 2(d), not more than 10 days following the Date of
Termination, or, if later, not more than 10 days following the
date of the Change in Control, the Company will make a lump-sum
cash payment to the Executive in an amount equal to [COO and
CFO: one and one-half times; other executives: one times] the
sum of (i) the Executive’s Base Pay, plus (ii) 100%
of the Executive’s target bonus established for the year
during which the Change in Control occurs.
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(b)
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Definitions . For purposes of this section, the
“Continuation Period” is the period beginning on the
Executive’s Date of Termination and ending on (x) the
last day of the 12th month that begins after the Executive’s
Date of Termination or, if earlier, (y) the date after the
Executive’s Date of Termination on which the Executive first
becomes eligible to participate as an employee in a plan of another
employer providing group health and dental benefits to the
Executive and the Executive’s eligible family members and
dependents, which plan does not contain any exclusion or limitation
with respect to any pre-existing condition of the Executive or any
eligible family member or dependent who would otherwise be covered
under the Company’s plan but for this clause (y).
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(c)
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Group Health Plans
. If the Executive
elects COBRA coverage under the Company’s group health and/or
dental plans, then for each month of the Continuation Period, the
Company will pay the Executive an amount equal to the excess of
(i) the portion of the monthly cost for the Executive’s
coverage under the Company’s group health and/or dental plans
that was borne by the Company immediately prior to the
Executive’s Termination of Employment or, if greater,
immediately prior to the Change in Control (subject to the rule for
coverage changes discussed below) over (ii) the portion of the
monthly cost for the Executive’s coverage under the
Company’s group health and/or dental plans that is borne by
the Company during the Continuation Period. The Executive’s
coverage will be deemed to include any Company contribution to a
Health Savings Account (or similar arrangement) for
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the Executive. If the level of the
Executive’s coverage changes during the Continuation Period,
as, for example, from single to family coverage or to no coverage,
the amount which the Company shall pay will be determined as if the
new coverage level had been the level of coverage in effect
immediately prior to the Termination of Employment or Change in
Control, as the case may be. The Executive shall be entitled to
elect health care continuation coverage under the Company’s
group health and/or dental plans for up to 12 months beyond
the end of the 18-month COBRA period if he or she has not become
eligible to participate as an employee in a plan of another
employer providing group health and dental benefits to the
Executive and the Executive’s eligible family members and
dependents, which plan does not contain any exclusion or limitation
with respect to any pre-existing condition of the Executive or any
eligible family member or dependent who would otherwise be covered
under the Company’s plan but for this clause. If COBRA
continuation coverage is not available to the Executive during any
portion of the Continuation Period (other than by reason of his or
her failure to elect COBRA continuation coverage or to pay the
required premiums for such coverage), the Company will provide
comparable medical benefits pursuant to an alternative arrangement,
such as an individual medical insurance contract, and such
alternative benefits will be treated as part of the Company’s
health and/or dental plan. Any reimbursement made under this
Section 2(c) shall be made on or before the last day of the
calendar year following the calendar year in which any continuation
coverage payment was incurred.
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(d)
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Life Insurance
. In addition, during
each month of the Continuation Period, the Executive shall be
entitled to receive life insurance coverage substantially
equivalent to the coverage Executive had on the day immediately
prior to his or her Termination of Employment, including coverage
then in effect for Executive’s spouse and dependents.
Executive shall be required to pay no more for such life insurance
than Executive paid as an active employee immediately before his or
her Termination of Employment. In order to continue life insurance
coverage, Executive must timely elect continuation or the
portability option available under the Company’s group life
insurance policy or policies and pay the full premium for such
coverage following Termination of Employment. The Company will
reimburse Executive at least quarterly for the amount by which such
life insurance premium exceeds the amount Executive paid for such
coverage as an active
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