**Exhibit 10.16**

 

**CandelaCorporation**

 

**Amendedand Restated Employment Agreement**

 

AGREEMENT made as of the     day of November, 2007, by and between CandelaCorporation, a Delaware corporation (the “Company”), and Gerard E. Puorro(“Puorro” or the “Employee”).

 

WHEREAS, the Company desires to employ Puorroand Puorro desires to be employed by the Company on the terms and conditionscontained herein;

 

WHEREAS, the Company and the Employeeoriginally executed prior versions of this Agreement on August 4, 1994, March 10,1999, and April 5, 2007, which agreement is presently in full force andeffect, and the parties wish and hereby intend to rescind the August 4,1994 Agreement, the March 10, 1999 Agreement and the April 5, 2007Amended and Restated Employment Agreement, and replace them with the terms andprovisions of this Agreement;

 

NOW, THEREFORE, in consideration of themutual covenants and obligations herein contained, it is mutually agreedbetween the parties hereto as follows:

 

# 1.   Employmentand Term.  The Company hereby agrees to continue toemploy the Employee and the Employee hereby agrees to serve as President andChief Executive Officer of the Company. This Agreement, and all rights and obligations of the parties hereunder,shall take effect upon the date first above written and shall expire on December 31,2009 (the “Term”); provided however, that commencing on January 1, 2010and each January 1 thereafter, the Term shall be automatically extendedfor one additional year unless, not later than 60 days prior to the scheduledexpiration of the Term (or any extension thereof), the Company shall have giventhe Employee written notice that the Term will not be extended.  During the Term, both the Employee and theCompany shall have the right to terminate the Employee’s employment at any timeupon notice to the other party as provided in Paragraph 3 hereof subject to theCompany’s obligation to pay termination benefits under certain circumstances asprovided in Paragraphs 3.E and 3.F.

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# 2.   Compensation.

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## **A.**             Salary.  In consideration of all of the services to berendered by the Employee to the Company, the Company will pay the Employee abase salary at the rate per annum approved by the Compensation Committee or thefull Board of Directors from time to time.

## ** **

## **B.**            Benefits.  The Employee will be entitled to continue toparticipate on the same basis with all other employees of the Company in theCompany’s standard benefit package generally available to all other employeesof the Company, including the Company’s group health, disability, vacationaccrual, long-term care and life insurance programs.  The Employee will also be entitled tocontinue to participate in any officer-level life insurance program that he iscurrently participating in, on at least as favorable terms as his currentpolices provide for.

## ** **

## **C.**            Company Car.  The Employee will be entitled to the use of acompany car, leased by the Company, in a price range approved by theCompensation Committee from time to time. In the event that the Employee’s employment is terminated at any time bythe Company for reasons other than For Just Cause, the Company will continue tomake monthly lease payments on the vehicle past the Employee’s date oftermination and until the end of the lease term, and thereafter provide theEmployee with the option to purchase the vehicle at the end of the lease,provided there is a purchase option as part of the original vehicle lease.

## ** **

# 3.   Terminationand Severance.  The Employee’s employment may be terminatedas follows:

 

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## **A.**             At the Employee’s Option. Subject to the Company’s right to terminate the Employee pursuant toParagraphs 3.B, 3.C and 3.D below, the Employee may terminate his employmenthereunder for any reason at any time upon at least sixty (60) days’ priorwritten notice.  In the event theEmployee terminates his employment pursuant to this Paragraph 3.A, either theEmployee or the Company can elect, prior to the expiration of the sixty (60)day notice period provided above, that the Employee receive severance paymentspursuant to Paragraph 3.E hereof, which election by either party will alsocause the provisions of Paragraph 4 hereof to become operable.  If no such election is made, the Employeeshall not be entitled to any severance payments pursuant to Paragraph 3.Ehereof.  A form of election that can beused by the Employee or the Company is appended as Exhibit B.

## ** **

## **B.**            Upon Disability of Employee.  If the Employee becomesdisabled for such period of time and under circumstances which entitle him toreceive disability benefits under the terms of any disability policy nowmaintained or to be purchased for the Employee by the Company, then the Boardof Directors of the Company, in its discretion, may elect to terminate the Employee’semployment by reason of such disability. In the event of such termination the Employee shall be entitled toseverance payments pursuant to Paragraph 3.E hereof, less the “before incometax” value of disability benefits received under said disability policy.

## ** **

## **C.**            At the Election of the Company for Just Cause.  Notwithstanding Paragraph 3.A,the Company may, immediately and unilaterally, terminate the Employee’semployment for just cause at any time during the Term of this Agreement bynotice to the Employee.  Termination ofthe Employee’s employment by the Company shall constitute a termination forjust cause if such termination is for one or more of the followingreasons:  (i) Employee’s convictionin a court of law of any felony, which conviction makes him unfit forcontinuing employment, prevents him from effective management of the Company ormaterially adversely affects the reputation or business activities of theCompany; (ii) the commission by the Employee of any act of fraud orembezzlement, or the misappropriation by the Employee of any money or otherassets or property (tangible or intangible) of the Company; or (iii) dishonestyor willful misconduct which adversely affects the reputation or businessactivities of the Company, or misappropriation of funds.

## ** **

## **D.**              At the Election of the Company for Reasons Other than Just Cause.  Notwithstanding Paragraph 3.A,the Company may, immediately and unilaterally, terminate the Employee’semployment at any time without just cause by giving written notice to theEmployee of the Company’s election so to terminate.  In the event that the Company exercises itsright to terminate under this Paragraph 3.D, the Employee shall be entitled toreceive severance payments and benefits from the Company as determined inaccordance with Paragraphs 3.E and 3.F, respectively.

## ** **

## **E.**             Severance Payments.  In the event that the Employee’s employmentwith the Company is terminated either (i) at the Employee’s option andeither the Employee or the Company elects for the Employee to receive severancepayments pursuant to paragraph 3.A, or (ii) at the Company’s optionpursuant to paragraph 3.D, the Employee shall be entitled to receive severancepayments from the Company during the period beginning on the date of theEmployee’s termination and ending two (2) years from the date oftermination (the “Severance Period”); provided, however, that if the Employeeis a “specified employee” (as that term is used in Section 409A of theInternal Revenue Code of 1986, as amended (the “Code”)) on the date of histermination of employment, the monthly payments (or portions thereof) that areto be paid or provided during the first six (6) month period following theEmployee’s termination of employment shall not be paid or provided until thefirst business day after the date that is six (6) months following theEmployee’s termination of employment or, if the Employee dies during such six (6) monthperiod, on the first business day after the date of the Employee’s death.  Any delayed payment pursuant to the priorsentence shall include the cumulative amount of any amounts that could not bepaid during the six (6) month period following the Employee’s terminationof employment.

## ** **

## **Theremaining monthly payments in the first year of the Severance Period shall bepaid in accordance with the Company’s then current payroll practice followingsuch six (6) month period.  Duringthe first year of the Severance Period, the monthly severance payments shall beequal to one-hundred percent (100%) of the Employee’s monthly salary as of thedate of termination.  During the secondyear of the Severance Period, severance payments shall be equal to fiftypercent (50%) of the Employee’s**

 

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## **monthly salary as of the dateof termination; *provided, however*,that if the Board of Directors of the Company has voted to elect an individualto serve as President and Chief Executive Officer of the Company immediatelysucceeding the Employee’s performance of duties as President and CEO, and suchdesignation of successor is made prior to the Employee’s date of terminationand cessation of service as CEO, then in such event, during the second year ofthe Severance Period, the monthly severance payments shall be equal toone-hundred percent (100%) of the Employee’s monthly salary as of the date oftermination.  All severance paymentsshall be made in accordance with the Company’s then current payroll practicesand will be subject to all applicable federal, local and state withholding,payroll and other taxes.**

## ** **

## **F.**             Benefits Continuation.  The Employee’s eligibility for participationin the Company’s health plan or plans terminates as of the Termination Date andthe parties agree that the Termination Date shall constitute the “qualifyingevent” under the Consolidated Omnibus Budget Reconciliation Act of 1985(“COBRA”).  However, the Employee mayelect in accordance with COBRA to continue coverage under the Company’s healthplans which are available to active employees of the Company.  In the event that the Employee’s employmentwith the Company is terminated either (i) at the Employee’s option andeither the Employee or the Company elects for the Employee to receive severancepayments pursuant to paragraph 3.A, or (ii) at the Company’s optionpursuant to paragraph 3.D, then in the event Employee elects continuation ofcoverage under COBRA, the Company shall, during the Severance Period, pay 100%of the premium payments for health and dental insurance continuation coverage,and after the expiration of the Severance Period, health insurance coverageshall be continued only to the extent required by COBRA and only to the extentthat Employee timely pays the premium payments for such continuation of healthinsurance coverage.  In addition, theCompany shall pay up to $25,000 for outplacement services to advise theEmployee.

## ** **

## **G.**            Suspension of Payments and Benefits.  The Company may, in itsdiscretion, suspend and cause to be forfeited any or all of the foregoingseverance payments and benefits in the event Employee materially breaches theprovisions of this Agreement or the provisions of the Invention Disclosure andConfidentiality Agreement referred to in Paragraph 5 hereof.

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# 4.   Non-Competitionand Non-Solicitation.

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## **A.**             Non-Competition.  During the term of Employee’s employment withthe Company and, provided the Employee or the Company has elected for theEmployee to receive severance payments pursuant to Section 3.E, in whichcase then until the expiration of the Severance Period, if any, (the“Non-Compete Period”), the Employee will not, without the Company’s priorwritten consent, alone or as a partner, joint venturer, officer, director,employee, consultant, agent, independent contractor or stockholder of anycompany or business, engage in any business activity which is or plans to be incompetition in the United States with any of the products or services marketed,distributed, sold or otherwise provided by the Company at such time.  The ownership by the Employee of not morethan one percent of the shares of stock of any corporation having a class ofequity securities actively traded on a national securities exchange or onNASDAQ shall not be deemed, in and of itself, to violate the prohibitions ofthis paragraph.

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## **B.**            Non-Solicitation.  During the Non-Compete Period, the Employeewill not, directly or indirectly, employ any person who is employed by theCompany at any time during the Term hereof, or in any manner seek to induce anysuch person to leave his or her employment with the Company.  In addition, the Employee will not knowinglypermit any company or business organization in which the Employee is an officerof director or which is directly or indirectly controlled by the Employee, toemploy or in any manner seek to induce any such person to leave his or heremployment with the Company.

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## **C.**            Irreparable Harm.  The Employee agrees that the breach of thisprovision by the Employee will cause irreparable damage to the Company and thatin the event of such breach the Company shall have, in addition to any and allremedies of law, the right to an injunction, specific performance or otherequitable relief to prevent the violation of the Employee’s obligationshereunder.

 

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## **D.**              Survival.  The Employee hereby agrees and understandsthat the Employee’s obligations under this Agreement shall survive thetermination of the Employee’s employment regardless of the manner of suchtermination and shall be binding upon the Employee’s heirs, executors,administrators and legal representatives.

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# 5.   InventionDisclosure and Confidentiality Agreement.  The Employee acknowledges that he enteredinto the Invention Disclosure and Confidentiality Agreement in the formattached hereto as Appendix A effective as of April 10, 1989, and thatsuch Agreement is binding upon him and remains in full force and effect.

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# 6.   Successorto Employee.  This Agreement shall inure to the benefit ofand be enforceable by the Employee’s personal or legal representatives,executors, administrators, successors, heirs, distributees, devisees andlegatees.  If the Employee should diewhile any amount would still be payable to the Employee or his family hereunderif the Employee had continued to live, all such amounts, unless otherwiseprovided herein, shall be paid in accordance with the terms of this Agreementto the executors, personal representatives or administrators of the Employee’sestate.

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# 7.   GeneralProvisions.  This Agreement shall be governed by andconstrued in accordance with the laws of the Commonwealth ofMassachusetts.  This Agreement and theInvention Disclosure and Confidentiality Agreement constitute the entireagreement between the parties concerning the subject matter hereof andsupersede any prior negotiations, understandings or agreements concerning thesubject matter hereof and thereof, whether oral or written, including theAgreements between the Employee and the Company dated April 10, 1989, August 4,1994, the letter agreement between the Employee and the Company dated September 12,1996, March 10, 1999, and April 5, 2007.  Notwithstanding the foregoing, this Agreementshall not affect the Executive’s rights under the Candela Corporation ExecutiveRetention Agreement dated [        ],2007, as may be amended from time to time (the “Retention Agreement”).  Except as provided in Section 4.2(b) ofthe Retention Agreement, the Executive shall in no event be entitled to receiveseverance payments or benefits under this Agreement if he is entitled toreceive severance payments or benefits under the Retention Agreement.  This Agreement may be modified, and therights and remedies of any provision hereof may be waived, only in writing,signed by both the Company and the Employee. The invalidity or unenforceability of any provision of this Agreementshall not affect the other provisions of this Agreement but this Agreementshall be construed and reformed to the fullest extent possible.  If one or more of the provisions contained inthis Agreement shall for any reason be held to be excessively broad as toscope, activity, subject or otherwise so as to be unenforceable at law, suchprovision shall be construed by the appropriate judicial body by limiting orreducing it or them, so as to be enforceable to the maximum extent compatiblewith applicable law as it shall then appear. The language of all parts of this Agreement shall in all cases beconstrued as a whole according to its fair meaning and not strictly for oragainst either of the parties.  Nothingin this Agreement shall be construed as a contract of employment for a specificterm or create any obligation on the part of the Company or any other person orentity to continue Employee’s employment with the Company.  Employee may not assign any of his rights andobligations under this Agreement except by will or by the laws of descent anddistribution; the rights and obligations of the Company under this Agreementshall inure to the benefit of, and shall be binding upon, the successors andassigns of the Company.  This Agreementmay be executed in any number of counterparts, all of which taken togethershall constitute one and the same instrument. For all purposes under this Agreement, references to termination of theEmployee’s employment and similar terms shall be interpreted to mean“separation from service,” as that term is used in Section 409A of theCode, and the Employee’s employment shall not be deemed to have terminated forpurposes of Paragraph 3.D or 3.E unless and until a separation from serviceshall have occurred for purposes of Section 409A of the Code.

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Appendix A

 

INVENTIONDISCLOSURE AND

CONFIDENTIALITYAGREEMENT

FOR EXECUTIVEOFFICERS

 

CANDELACORPORATION

530 Boston PostRoad

Wayland, Massachusetts01778

 

RECITALS

 

A.            CANDELA CORPORATION(the “Company”) is involved in an extremely competitive industry in whichconfidentiality is a valuable asset.

 

B.            This Agreementaddresses the issues of disclosure and assignment of inventions and copyrightablematerial, and nondisclosure of confidential information and trade secrets.

 

C.            This Agreement wasmade available to me several days prior to the date hereof so as to provide mewith an adequate amount of time in which to read the entire Agreement andreview its provisions with my counsel and advisors.

 

D.            The importance of thematters that are the subject of this Agreement was explained to me by theCompany.

 

E.             The Company has givenme the opportunity to inquire as to the meaning of the provisions of thisAgreement and has adequately answered all questions I have posed to theCompany.

 

F.             I understand themeaning and effect of the terms of this Agreement.

 

NOW, THEREFORE, inconsideration of the covenants herein and for other good and valuable considerationincluding my employment by the Company or continuation of such employment, orthe receipt of compensation including: salary, increase in salary, bonuses or stock options, I hereby covenantand agree with the Company (which term shall include any parent, subsidiary orsuccessor to CANDELA CORPORATION) as follows:

 

ARTICLE I

 

Disclosure ofInventions

 

I agree that I willcommunicate in writing to the Board of Directors of the Company, or suchofficer or individual as the Board of Directors of the Company may from time totime designate, promptly after being requested, a full and complete disclosureof any and all research and other information, inventions, discoveries andimprovements made, developed and/or conceived and/or reduced to practice by me aloneor jointly with others (i) while in the employ of the Company and (ii) duringa one (1) year period following the termination of my employment or otherassociation with the Company but as a direct result of such employment.

 

This provision shall onlyapply to products or improvements to such products sold or contemplated to besold by the Company.

 

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ARTICLE II

 

Assignment ofInventions

 

2.1           I agree to, and herebydo, assign and transfer to the Company, or its nominee or designee (without anyseparate remuneration or compensation to me other than the wages and/or salaryreceived, or compensation assigned to me from time to time in the course of myaforesaid employment), all my right, title and interest throughout the world inand to any research and other information, inventions, discoveries andimprovements, together with the right to file and/or own wholly and withoutrestriction applications for United States and foreign patents and trademarksand any patent and trademark issued or issuing thereon.  I will promptly disclose to the Company theresearch and other information, inventions, discoveries and improvementsspecified thereon, (i) while in the employ of the Company and (ii) duringa one (1) year period following the termination of my employment or otherassociation with the Company but as a direct result of such employment.  I agree to execute all appropriate patentapplications for securing all United States and foreign patents on all suchinventions, discoveries and improvements and to do, execute and deliver any andall acts and instruments that may be necessary or proper to vest all suchinventions, discoveries and improvements and patents (both United States andforeign) in the Company, or its nominee or designee, and to enable the Company,or its nominee or designee, to obtain all such letters patent; and that I willrender to the Company, or its nominee or designee, all such assistance as itmay require in the prosecution of all such patent applications and applicationsfor the reissue of such patents, but the expense of all such assignments andpatent applications or all other proceedings referred to hereinabove, shall notbe a charge upon me.  I will execute,upon request. documents which secure to the Company the interests hereconveyed, provided that all fees or payments connected with the execution ofthe documents shall not be a charge upon me.

 

2.2           1 will assist, uponrequest, in locating writings and other physical evidence of the making of myinventions and provide unrecorded information relating to them, and givetestimony in any proceeding in which any of my inventions of any application orpatent directed thereto may be involved provided that compensation shall bepaid for such services.  To the extentreasonably feasible, the Company will use its best efforts to request suchassistance at times and places as will least interfere with any otheremployment of mine.

 

2.3           Any invention relatingto the Company’s business disclosed by me within one (1) year followingthe termination of my employment shall be deemed to be a “Company” or “other”invention, unless proved to have been conceived after such termination.

 

2.4           I agree that there areno inventions excluded by this Agreement except those I have enumerated anddescribed in Exhibit A of this Agreement.

 

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ARTICLE III

 

UnauthorizedDisclosure

 

3.1           I agree that I willnot, without first obtaining the written approval of the Board of Directors ofthe Company, or of such officer or individual as the Board of Directors of theCompany may from time to time designate, divulge or disclose to anyone outsidethe Company, whether by private communications or by public address orpublication, or otherwise, any information not already lawfully available tothe public concerning any inventions, developments, specifications, technicaland engineering data, methods or reports relating to the business of theCompany, or any other corporation, firm or person for whom the Company isconducting or shall conduct research services or is providing, or shall provideother services, whether supplied by the Company, or such other corporation,firm or person, or whether made, developed and/or conceived by me or by othersin the employ of the Company.  Alloriginals and copies of any such specifications, technical and engineeringdata, methods of reports, or other written materials relating to the businessof the Company, however and whenever produced, shall be the sole property ofthe Company, not to be removed from the premises or custody of the Companywithout in each instance first obtaining written consent or authorization ofthe Board of Directors or of such officer or individual as the Board ofDirectors of the Company may from time to time designate, and shall besurrendered to the Company upon termination of my employment.

 

3.2           In addition, I agreethat I will not directly or indirectly publish or cause to be published anyarticle containing or disclosing any information about the Company or reportedor received by the Company from any corporation, firm or person with whom theCompany shall be under contract to provide research service, without the priorwritten authorization of the Board of Directors of the Company or of suchofficer or individual as the Board of Directors may from time to timedesignees.

 

3.3           I acknowledge that theCompany from time to time may have agreements with other persons or with theUnited States government or agencies thereof, which impose obligations orrestrictions on the Company regarding inventions made during the course of workthereunder or regarding the confidential nature of such work.  I agree to be bound by all such obligationsand restrictions and to take all action necessary to discharge the Company’sobligations.

 

ARTICLE IV

 

Copyright

 

I will promptly discloseto the Company all copyrightable material which I produce, compose or write,individually or in collaboration with others, which arises out of workdelegated to me by the Company; and, at the expense of the Company, I willassign to it all my interest in such copyrightable material and will sign allpapers and do all other acts necessary to assist the Company to obtaincopyright on such material in any and all countries.

 

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ARTICLE V

 

Trade Secrets

 

5.1           I will not during myemployment by the Company or afterwards, disclose to others or use for my ownbenefit any trade secrets acquired by me from the Company, its customers, suppliers,consultants or affiliates, except to the extent that the disclosure of suchtrade secrets is necessary to perform my duties and fulfill my responsibilitiesas an employee to the Company.  (A tradesecret is information not generally known to the trade which gives the Companyan advantage over its competitors.  TradeSecrets can include, by way of example only, products under development,production methods and processes, sources of supply materials used in manufacture,customer lists, cost of parts and materials, marketing plans and strategies,price lists, information concerning the filing or pendency of patentapplications, and documents marked “confidential”.)

 

5.2           I represent that myperformance of all the terms of this Agreement and as an employee of theCompany does not and will not breach any agreement to keep confidentialproprietary information, knowledge or data acquired by me in confidence or intrust prior to my employment with the Company, and I will not disclose to theCompany, or induce the Company to use, any confidential or proprietaryinformation or material belonging to any previous employer or others.  I agree not to enter into any agreementeither written or oral in conflict herewith.

 

ARTICLE VI

 

Former Employers

 

6.1           I represent and warrantthat my employment by the Company will not conflict with and will not beconstrained by any prior or current employment, consulting agreement orrelationship whether oral or written.  Irepresent and warrant that I do not possess confidential information arisingout of such employment, consulting agreement or relationship which, in my bestjudgment, would be utilized in connection with my employment by the Company.

 

6.2           If I should find thatconfidential information belonging to any other person or entity might beusable in connection with the Company’s business, I will not intentionallydisclose to the Company any confidential information belonging to any of myformer employers; but during my employment by the Company I will use in theperformance of my duties all information which is generally known and used bypersons with training and experience comparable to my own all information whichis common knowledge in the industry or otherwise legally in the public domain.

 

ARTICLE VII

 

Arbitration

 

Any controversy, disputeor claim arising out of or relating to this Agreement or the breach thereof, ifnot earlier resolved by the parties hereto, shall be settled by arbitration inaccordance with the rules then in force of the American Arbitration Association.  This Agreement to arbitrate shall beenforceable and judgment upon any award rendered by all or a majority of thearbitrators may be entered in any court having jurisdiction.  The arbitration shall be held in Boston,Massachusetts.  This agreement shall begoverned by and enforced in accordance with the laws of Massachusetts.

 

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Exhibit A

 

Description ofInventions Excluded from this Agreement. (If none, write “none”.)

 
| **Name  of Invention** | ** ** | **Description** |
|------------------------|------------|-----------------|
| 1. NONE                |       |            |
| 2.                     |       |            |
| 3.                     |       |            |

 

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**EXHIBITB**

 

Form ofElection For Use by

Either theEmployee or the Company

 

Pursuant to Section 3.Aof that certain Amended and Restated Employment Agreement (the “Agreement”)dated November     , 2007, between Gerard E. Puorro(the “Employee”) and Candela Corporation (the “Company”), theEmployer has provided at least sixty (60) days’ prior written notice(the “Notice Period”) that the Employee has elected to terminate hisemployment with the Company.  Therefore,

 

**EITHER:**

 

A.            TheEmployee hereby elects, prior to the expiration of the Notice Period mentionedabove, that the Employee shall receive severance payments pursuant to the Agreement.  This Notice is to be delivered to the Companyprior to the end of the Notice Period.

 

 
| ** ** | **Employee:** |
|------------|---------------|
|       |          |
|       |          |
|       |          |

** **

**OR:**

 

B.            TheCompany hereby elects, prior to the expiration of the Notice Period mentionedabove, that the Employee shall receive severance payments pursuant to theAgreement.  This Notice is to bedelivered to the Company prior to the end of the Notice Period.

 

 
| ** ** | **Candela  Corporation** |
|------------|--------------------------|
|       |                     |
|       |                     |
| ** ** | **By:**                  | ** ** |

 

 

IF NEITHER THE EMPLOYEENOR THE COMPANY EXECUTES AN ELECTION, AND DELIVERS SAME TO THE OTHER PARTY, THEEMPLOYEE ***SHALLNOT*** BE ENTITLED TO ANY SEVERAND PAYMENTS PURSUANT TO PARAGRAPH3.E OF THE AGREEMENT.

 

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