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Exhibit
10.21
F IRST A
MENDMENT TO
E XECUTIVE
E MPLOYMENT A GREEMENT
This First Amendment (the
“Amendment” ) to the Executive Employment
Agreement (the “Agreement” ) dated
July 1, 2004, by and between CryoCor, Inc., a Delaware
corporation ( “CryoCor” ), and Gregory J.
Tibbitts ( “Tibbitts” ), is entered into
effective as of August 31, 2007 (the “Effective
Date” ).
R
ECITALS
W HEREAS
, CryoCor and Tibbitts desire to amend the Agreement to extend
the severance period following a termination of Tibbitts’
employment without Cause.
A
GREEMENT
N OW T
HEREFORE , in consideration of the benefits and
mutual promises hereinafter set forth, the parties hereto agree as
follows:
| 1. |
Capitalized terms used but not otherwise defined in this
Amendment shall have the meanings given such terms in the
Agreement. |
| 2. |
Section 7.3 of the Agreement is hereby amended and
restated in its entirety as follows: |
“7.3 Termination
Without Cause by CryoCor/Severance. CryoCor may terminate
Tibbitts’ employment under this Agreement without Cause at
any time, with or without advance notice. In the event of such
termination, Tibbitts will receive the Base Salary then in effect,
prorated to the date of termination, and continuation of his Base
Salary for a period of twelve (12) months, payable in
accordance with CryoCor’s regular payroll cycle, provided
that Tibbitts: (a) complies with all surviving provisions of
this Agreement as specified in subsection 13.8 below; and
(b) executes a Release (as defined in Section 7.5 below).
All other CryoCor obligations to Tibbitts will be automatically
terminated and completely extinguished.”
| 3. |
Section 7.4(b) of the Agreement is hereby amended and
restated in its entirety as follows: |
“7.4(b) 280G .
Anything in this Agreement to the contrary notwithstanding, if any
payment or benefit Tibbitts would receive under this Agreement,
taken together with any other agreement or benefit plan of CryoCor
(including stock options) ( “Payment” )
would (i) constitute a “parachute payment” within
the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code” ), and
(ii) but for this sentence, be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise
Tax” ), then such Payment shall be equal to the
Reduced Amount. The “Reduced Amount”
shall be either (x) the largest portion of the Payment that
would result in no portion of the Payment being subject to the
Excise Tax or (y) the largest portion, up to and including the
total, of the Payment, whichever amount, after taking into account
all applicable
federal, state and local
employment taxes, income taxes, and the Excise Tax (all computed at
the highest applicable marginal rate), results in Tibbitts’
receipt, on an after-tax basis, of the greater amount of the
Payment notwithstanding that all or some portion of the Payment may
be subject to the Excise Tax. If a reduction in payments or
benefits constituting “parachute payments” is necessary
so that the Payment equals the Reduced Amount, the reduction shall
occur in the order Tibbitts elects in writing, provided,
however , that such election shall be subject to CryoCor
approval if made on or a
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