EXHIBIT 10.4.1


 


AMENDMENT


TO


STANDARD EMPLOYMENT AGREEMENT


 


This
First Amendment to the Standard Employment Agreement (this “Amendment”) is
dated November 4, 2004 (the “Effective Date”) and is made to by and between
Bioject Inc. (“BI”) and Bioject Medical Technologies Inc. (“BMT”) (BI and BMT
shall be collectively referred to herein as “Bioject”), and Christine Farrell,
an individual (“Employee”) (together the “Parties”).


 


RECITALS


 


WHEREAS, the
Parties entered into a Standard Employment Agreement on or about January 24,
1997 (the “Employment Agreement”); and


 


WHEREAS, the
Parties now want to amend the Employment Agreement to provide certain
additional benefits to Employee and to make such changes as are specifically
covered herein.


 


AGREEMENT


 


NOW, THEREFORE, for good and valuable consideration, and in
consideration of the mutual covenants and conditions herein set forth, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:


 


1.             Restricted
Stock Unit Award. Following
the execution of this Amendment by the Parties, and as consideration for Employee’s
execution of this Amendment, BMT will grant Employee a restricted stock unit
award (the “Award”) under the Bioject Restated 1992 Stock Incentive plan, as
amended September 13, 2001 and March 13, 2003 (the “Plan”), with each unit
representing the right to receive one share of BMT Common Stock, subject to
certain vesting conditions and forfeiture provisions. Following the Effective
Date, BMT will provide Employee with a Restricted Stock Unit Grant Agreement
that evidences the Award. The Restricted Stock Unit Grant Agreement sets forth
the specific terms and conditions of the Award, including, without limitation,
the certain time and performance-based vesting conditions as well as the terms
under which Employee will forfeit the Award (including termination of Employee’s
employment with Bioject). The Award is subject to Board approval and Employee’s
execution of the Restricted Stock Unit Grant Agreement and this Amendment.


 


2.             General Terms. Delete Section 6 (General Terms) of the
Employment Agreement in its entirety and replace with the following:


 


6.             General Terms. The Parties’ obligations under this Agreement
shall survive termination of employment by either party. This Agreement shall
be binding on and inure to the benefit of Bioject and its successors (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Bioject’s successors and
assigns. Employee shall not assign her rights under this Agreement without the
prior written consent of Bioject. This Agreement contains the entire
understanding of the Parties and may not be changed orally but only upon a
written amendment signed by the Parties.


 


3.             New Sections to be Added. Add the following new sections to the
Employment Agreement as Section 9 (Termination) and 10 (Termination Benefits):


 


9.             Termination.


 


9.1          At-Will Employment. Employee’s employment with Bioject shall be “at
will,” meaning that either Employee or Bioject shall be entitled to terminate
Employee’s employment at any time and for any reason (or no reason), with or
without Cause. Any contrary representations that may have been made to Employee
shall be superseded by this Amendment. The Employment Agreement, as amended by
this Amendment, shall constitute the full and complete agreement 


 


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between
Employee and Bioject on the “at will” nature of Employee’s employment, which
may only be changed in an express written agreement signed by Employee and a
duly authorized officer of Bioject.


 


9.2          Termination of
Employment. Bioject
may terminate Employee’s employment at any time and for any reason (or no
reason), and with or without Cause, by giving Employee notice in writing. Employee
may terminate her employment by giving Bioject thirty (30) days’ advance notice
in writing. Employee’s employment shall terminate automatically in the event of
her death. The termination of Employee’s employment shall not limit or
otherwise affect her obligations under Section 2 (Non-Compete) of the
Employment Agreement.


 


9.3          Rights Upon
Termination. Except
as expressly provided in Section 10, below, upon the termination of
Employee’s employment, Employee shall only be entitled to the compensation,
benefits and expense reimbursements that Employee has earned before the
effective date of the termination. The payments of such amounts shall fully
discharge all responsibilities of Bioject to Employee.


 


10.          Termination
Benefits.


 


10.1        General Release. Any other provision of the Employment
Agreement or this Amendment notwithstanding, subsections 10.2 and 10.3 below
shall not apply unless Employee (i) has executed a general release of all
claims (in a form prescribed by Bioject) and (ii) has returned all
property of Bioject in Employee’s possession.


 


10.2        Severance Pay. If, during the course of Employee’s
employment with Bioject, Bioject terminates Employee’s employment for any
reason other than Cause, then Bioject shall pay Employee severance pay (“Severance
Pay”), determined as follows:  ninety
(90) calendar days of Employee’s regular pay for up to three (3) full Years of
Service; 30 calendar days of Employee’s regular pay for each additional full Year
of Service up to a maximum of twelve (12) months of regular pay. Bioject may
pay such Severance Pay on dates generally coinciding with its regular payroll
schedule or in a single lump sum payment, in its sole discretion. Payment of
Severance Pay will commence on the next regularly-scheduled payday following
the date Employee has signed, delivered to Bioject, and has not revoked or
rescinded the release of claims. All Severance Pay and benefits payable under
this Agreement shall be reduced by usual and customary taxes, withholdings and
deductions or other amounts as are required or permitted to be withheld by law.
For purposes of this Agreement, “regular pay” means Employee’s base pay in
effect on the date of termination, excluding bonuses, commissions, overtime,
profit sharing, severance pay, reimbursements, and other allowances or extra
compensation. The number of full “Years of Service” Employee has accrued is
calculated based on Employee’s initial hire date with Bioject. No credit or
prorated Severance Pay will be given for partial Years of Service. Thirty (30)
days of Employees regular base pay is equivalent to 173.33 hours.


 


10.3        Health Insurance. If Subsection 10.2 above applies, and
if Employee elects to continue her health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following the
termination of her employment, then following cessation of Employee’s group
coverage, Bioject will pay Employee’s monthly premium under COBRA until the
earliest of (i) the expiration of Employee’s continuation coverage under COBRA,
(ii) the date when Employee receives substantially equivalent health
insurance coverage in connection with new employment or self-employment, or
(iii) a period of time equivalent to the number of Employee’s full Years of
Service with Bioject, up to a maximum of twelve (12) months.


 


10.4        Stock Options. In the event of a
termination without cause of Employee’s employment, all stock options which
have been previously awarded to Employee, but are not yet vested, will be 100%
vested on the Effective Date of the Release of Claims. Notwithstanding the foregoing, all the other
conditions and restrictions in the Incentive Stock Option Agreement and the
Bioject 


 


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Medical
Technologies Inc. Restated 1992 Stock Incentive Plan, as amended September 13,
2001 and March 13, 2003, shall remain in effect.


 


10.5        Restricted Stock Units.
In the event of termination of Employee’s employment,
all Restricted Stock Units which have been previously awarded to Employee will immediately
be deemed earned and 100% vested on the Effective Date of the Release of Claims.
Notwithstanding the foregoing, all the other conditions and restrictions in the
Restricted Stock Unit Grant Agreement and Notice of Grant shall remain in
effect, including without limitation, the Employee’s obligation to pay the
Company such amount of cash as the Company may require, under all applicable
federal, state, local or other laws or regulations, to withhold and pay over as
income or other withholding taxes for all Restricted Stock Units which vest on
the Effective Date of the Release of Claims.


 


10.6                        Definition of “Cause.”  For
all purposes under this Amendment, “Cause” shall mean:


 


10.6.1      An unauthorized use or disclosure by
Employee of Bioject’s confidential information or trade secrets, which use or
disclosure causes material harm to Bioject;


 


10.6.2      A material breach by Employee of any
agreement between Employee and Bioject;


 


10.6.3      A material failure by Employee to comply
with Bioject’s written policies or rules;


 


10.6.4      Employee’s conviction of, or plea of “guilty”
or “no contest” to, a felony under the laws of the United States or any state
thereof; or


 


10.6.5      Employee’s
gross negligence or willful misconduct.


 


4.             Compliance with Bioject
Policies; Applicable Legal Requirements. Employee shall comply with Bioject’s
policies and procedures, as amended from time to time, to the extent they are
not inconsistent with this Agreement, in which case the provisions of the
Employment Agreement, as amended by this Amendment, shall prevail. Employee
shall comply with all legal requirements applicable to Employee’s position,
including without limitation, requirements arising out of the Sarbanes-Oxley
Act of 2002.


 


5.             Jurisdiction and Governing Law.
Delete the first and
second sentences in Section 7 of the Employment Agreement (Arbitration and
Jurisdiction) in their entirety.


 


6              Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same Amendment.


 


7.             Effect of Headings. The Section and subsection headings herein
are for convenience only and shall not affect the construction or
interpretation of this Agreement.


 


8.             Amendment to Employment
Agreement; Order of Precedence. This Amendment constitutes an amendment to the Employment Agreement between
the Parties. Except as set forth in this Amendment, references in the Employment
Agreement to “this agreement”, “hereunder,” “herein,” “hereof,” and words of
like effect shall mean the Employment Agreement as so amended by this Amendment.
Except as expressly set forth in this Amendment, the Employment Agreement shall
remain in full force and effect in accordance with its terms and the Parties
hereby ratify the terms and conditions of the Employment Agreement as amended
hereby. In the event of any conflicts between the provisions contained in this
Amendment and the provisions of the Employment Agreement, the provisions
contained in this Amendment shall prevail. Any defined terms used in the Employment
Agreement which are wholly or partially redefined by this Amendment shall be
interpreted in such Agreements as being so redefined.


 


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IN
WITNESS WHEREOF, the Parties have executed this Amendment effective on the day
and year first written above.


 


	
  ACCEPTED
  AND AGREED:

  	
   

  
	
   

  	
   

  
	
  /s/
  Christine Farrell

  	
   

  	
   

  
	
  Christine
  Farrell, Employee

  	
   

  
	
   

  	
   

  
	
  BIOJECT,
  INC.

  	
  BIOJECT
  MEDICAL TECHNOLOGIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Kathy
  Suitor

  	
   

  	
  By:

  	
  /s/Kathy
  Suitor

  	
   

  
	
  Name:

  	
    Kathy Suitor

  	
   

  	
  Name:

  	
   Kathy
  Suitor

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Human
  Resource Coordinator

  	
   

  	
  Title:

  	
  Human
  Resource Coordinator

  	
   

  
									



 


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