50 of the Top 250 law firms use our Products every day
Ms. Diane
E. Klein
16430 N. Scottsdale
Road, Suite 450
Scottsdale, AZ 85254
Re: First
Amendment to Employment Agreement
On March 30,
2007, you entered into a letter agreement with Zila, Inc. (the
“Company”) with respect to your employment (the
“Agreement”) pursuant to which you are entitled to a
payment if the Company terminates your employment in certain
limited circumstances. The Company has decided to provide you with
limited additional protection in the event that certain material
adverse changes are made to the terms of your employment with the
Company. The Company proposes to amend the Agreement as follows
effective as of June 8, 2009:
Section 13 (
Severance Benefits ) of the Agreement is hereby amended and
restated in its entirety to read as follows:
13.
Severance Benefits . If
the Company terminates your employment or if you terminate your
employment for “Good Reason” (as defined below), you
shall be eligible to receive severance benefits in accordance with
the following:
13.1 Change in
Control . If your employment is terminated (with or Without
Cause) by the Company or if you terminate your employment for Good
Reason because of a change in control of the Company (“Change
in Control”), you shall be entitled to receive severance pay
in (i) an amount equivalent to eighteen (18) months of
your annual base salary in effect on the date your employment is
terminated; and (ii) an amount equivalent to the maximum cash
bonus(es) (expressed as a percentage of your annual base salary in
effect on the date your employment is terminated) for which you
would have been eligible during the eighteen (18) months
following termination of your employment had your employment not
terminated and had you stayed in the position you occupied as of
termination of your employment, under any employee incentive bonus
plan(s) in effect on the date your employment is terminated. For
purposes of this Agreement, “Change in Control” shall
be defined and governed by the
Ms. Diane
E. Klein
June 8, 2009
Page 2
definition of
“change in control” contained in the Stock Option Plan,
or such amended or restated stock option plan as may then be in
effect or, in the absence of such plan, in the last such plan that
was in effect. If the Company terminates your employment or you
terminate your employment for Good Reason within eighteen (18)
months of a Change in Control, a presumption shall arise that the
termination was because of a Change in Control. This presumption,
however, shall be rebutted if a preponderance of the evidence shows
that the reason for your termination was something other than a
Change in Control.
13.2
Termination Without Cause . If, for a reason other than a
Change in Control, the Company terminates your employment without
cause (“Without Cause”) or you terminate your
employment for Good Reason, you shall be entitled be entitled to
receive severance pay in an amount equivalent to eighteen
(18) months of your annual base salary in effect on the date
your employment is terminated by the Company or you terminate your
employment for Good Reason. For purposes of this Agreement,
“Cause” shall mean (i) your failure to correct a
specific conduct or job-performance issue or issues about which you
have been informed in writing and given an opportunity to correct;
or (ii) conduct or job performance that the Company believes
is sufficiently willful and/or egregious that providing you with
written notice and an opportunity to correct is an inadvisable
business practice; or (iii) your inability to perform your job
( e.g. , due to incapacity or death). If your employment
terminates for any other reason (with the exception of a
termination because of a Change in Control), such termination shall
be deemed Without Cause and this subpart 13.2 shall
apply.
|
