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AMENDMENT NO.
1 TO CHANGE IN CONTROL
AGREEMENT
THIS AMENDMENT NO. 1 TO CHANGE IN CONTROL
AGREEMENT is effective as of the 31st day of December 2008
(the “Effective Date”) between OSTEOTECH, INC., a
Delaware corporation (the “Company”) and
(the “Executive”).
WHEREAS, the Company and the Executive have
entered into that certain Change in Control Agreement, effective as
of
(the “CIC Agreement”); and
WHEREAS, the Company and the Executive now
desire to amend the terms of the CIC Agreement principally for the
purpose of bringing it into compliance with the requirements of
section 409A of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, in consideration of the mutual
covenants and obligations hereinafter set forth, the parties hereto
agree as follows:
1. Section 2(a)
of the CIC Agreement is hereby amended to read in full as
follows:
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(a)
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Term of Employment
. Commencing on the
Commencement Date and ending on the first anniversary of such date
(the “ Employment Period ”), the Executive
hereby agrees to remain in the employ of the Company, and the
Company hereby agrees to continue the Executive in its employ, in
accordance with and subject to the terms and provisions of this
Agreement in the capacity and with the same responsibilities held
immediately prior to the Commencement Date and such other duties
and responsibilities as are not inconsistent with the express terms
of this Agreement.
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2.
Section 4 of the CIC Agreement is hereby amended by adding
thereto the following:
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(d)
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409A Payment Trigger
. For the purpose of
this Section 4, for the purpose of paying all amounts subject
to section 409A of the Internal Revenue Code and for the purpose of
qualifying for the exemption from 409A for separation pay due to
involuntary separation from service without cause (the so-called
“2X exception”), all references to termination of
employment, terminate employment, termination date and other
derivatives of those words shall be construed and applied to mean
Separation From Service.
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(e)
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409A Delay . Notwithstanding the foregoing, to
the extent that any payment due hereunder is: (i) deferred
compensation subject to section 409A of the Internal Revenue Code,
and (ii) is payable to a specified employee (as that term is
defined in section 409A), and (iii) is payable when the
Company is a publicly traded company (as defined in section 409A),
and (iv) is payable on account of the specified
employee’s Separation From Service, payment of any part of
such amount that would have been made during the six
(6) months following the Separation From Service shall not
then be paid but shall rather be paid on the first day of the
seventh (7th) month following the Separation From
Service.
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(i)
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Identifying Specified
Employees .
For this purpose, specified employees shall be identified by the
Company (I) on a basis consistent with re
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