EXHIBIT 10.1.1


 


AMENDMENT


TO


EXECUTIVE EMPLOYMENT AGREEMENT


 


This First Amendment (this “Amendment”) is dated August 31,
2004 (the “Effective Date”) and is made to the Executive Employment Agreement
referenced below by and between Bioject Inc. and Bioject Medical Technologies
Inc. (“Company” or “Employer”), and James C. O’Shea, an individual (“Executive”)
(together the “Parties”).


 


RECITALS


 


WHEREAS, the
Parties entered into an Executive Employment Agreement on October 3, 1995
(the “Employment Agreement”); and


 


WHEREAS, the
Parties now want to amend the Employment Agreement to provide certain
additional benefits to Executive 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 Grant.


 


As consideration for the execution of this Amendment
by Executive, the Company will grant Executive 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 (1) share of BMT Common Stock, subject to certain
vesting conditions and forfeiture provisions. Within a reasonable period of
time following the execution of this Amendment by the Parties, BMT will provide
Executive 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 Executive will forfeit the Award (including
termination of Executive’s employment with the Company).  The Award is subject to Board approval and
Executive’s execution of the Restricted Stock Unit Grant Agreement.


 


2.                                      Term.


 


Add the following sentence
to the end of Section 4.1 of the Employment Agreement:


 


“Non-renewal of the Employment
Agreement by the Company shall be deemed a termination pursuant to Section 4.2.b.,
and shall be subject to the severance


 


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compensation provisions related
to termination without Cause and with or without notice under that Section.”


 


3.                                      Location of Employment.


 


Delete Section 2.3 of
the Employment Agreement in its entirety and replace with the following:


 


“The Executive shall conduct
his duties under this Employment Agreement primarily at the offices of the
Company in New Jersey, or such other geographical locations as shall reasonably
be required in order to assure the efficient and proper operation of the
Company.  In the event that the primary
location of the Executive’s conducting his duties is moved outside the State of
New Jersey, the Executive will be offered a choice to either relocate to the
new location, or to accept a severance package as described in Section 4.2.b.
of the Employment Agreement.”


 


4.                                      Termination by Company Without Cause and With or Without Notice.


 


Delete the last paragraph
of Section 4.2.b of the Employment Agreement in its entirety and replace
with the following:


 


“In addition, upon termination
by Company without Cause and with or without notice as stated in Section 4.2.b
(By Company Without Cause and With or Without Notice), Section 2.3
(Location of Employment), or Section 4.1 (Term), subject to Executive’s
execution of the Release of Claims (as defined in paragraph C below),  Company will:


 


A.  Pay to Executive as severance pay an amount equal
to one (1) year of Executive’s annual base pay at the rate in effect
immediately prior to the date of termination (hereafter “Additional Pay”) from
which payment usual and customary withholdings and deductions will be
subtracted.  The Company may pay such Additional
Pay on dates generally coinciding with its regular payroll schedule or in
a single lump sum payment, in its sole discretion.  Payment of such Additional Pay will
commence on the next regularly scheduled Company payday following the Effective
Date of the Release of Claims (as those terms are defined in paragraph C below).  All
other compensation and benefits shall cease on Executive’s termination date;
and


 


B.  Executive is entitled to extend coverage
under any group health plan in which he and his dependents are enrolled at the
time of termination of employment under the Consolidated Omnibus Budget
Reconciliation Act (COBRA) as long as Executive remains eligible under
COBRA.  Should Executive elect to exercise his right
of continued coverage under COBRA, Company will pay the full cost of Executive’s
premium under COBRA (including medical, dental and vision, but excluding
medical flexible spending account) for a period of twelve (12) months following cessation of the group health plan and
dental plan coverage provided by Company (the “Additional Benefits”).  Payment of the Additional Benefits


 


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will be paid by the Company directly to the third
party provider following the Effective Date of the Release of Claims (as those
terms are defined in paragraph C below).


 


C.                                     As a condition precedent
to the Company’s obligation to pay Executive the Additional Pay and the Additional
Benefits described in paragraphs A and B above, Executive shall be required to sign, deliver and not revoke a
release of claims in a form to be provided by the Company at the time of
Executive’s termination (the “Release of Claims”).


 


The Release of Claims shall be effective on the
eighth (8th) day after delivery of the executed Release of Claims by
Executive to the Company, provided that Executive has not revoked acceptance or
rescinded the Release of Claims (the “Effective Date”).”


 


5.                                      Termination Upon Company Reorganization, Merger or Sale.


 


The following additional
sentence shall be added to the end of the second full paragraph in Section 4.6
of the Employment Agreement:


 


“Payment of the Additional
Section 4.6 Pay (as defined in Section 4.6 of the Employment
Agreement) shall be in lieu of, and not in addition to, the Additional Pay and
the Additional Benefits payable to Executive under Section 4.2.b. of the
Employment Agreement in the event of a termination by Company without Cause and
with or without notice.”


 


6.                                      Compliance with Company Policies;
Applicable Legal Requirements.


 


Executive shall comply with the Company’s policies
and procedures to the extent they are not inconsistent with the Employment
Agreement, as amended by this Amendment, in which case the provisions of the Employment
Agreement, as amended, shall prevail.  Executive
shall comply with all legal requirements applicable to Executive’s position,
including without limitation, requirements arising out of the Sarbanes-Oxley
Act of 2002.


 


7.                                      Stock Options and Restricted
Stock Units.


 


Section 5 of the
Employment Agreement shall be amended by adding new Sections 5.2, 5.3, and 5.4,
as set forth below:


 


“5.2                           Stock Options.  In the event of (A) termination of
Executive’s employment pursuant to Section 4.6 (Termination Upon Company
Reorganization, Merger or Sale), (B) termination of Executive’s employment
pursuant to Section 4.2.b (Termination by Company Without Cause and With
or Without Notice) (including deemed termination pursuant to Section 4.1 (Term),
or (C) the Executive’s having opted to receive a severance package in lieu
of relocating pursuant to Section 2.3 (Location of Employment), subject to
Executive’s compliance with the requirements set forth in Section 5.4,
below, all options which have been previously awarded to Executive, but are not
yet


 


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vested, will be 100%
vested on the Effective Date of the Release of Claims (as defined in Section 5.4,
below).  Notwithstanding the foregoing, all the other conditions and
restrictions in the Incentive Stock Option Agreement and the Bioject Medical
Technologies Inc. Restated 1992 Stock Incentive Plan, as amended September 13,
2001 and March 13, 2003, shall remain in effect.”


 


5.3                                 Restricted Stock Units.  In the event of (A) termination of Executive’s
employment pursuant to Section 4.2.b (Termination by Company Without Cause
and With or Without Notice) (including deemed termination pursuant to Section 4.1
(Term), or (B) the Executive’s having opted to receive a severance package
in lieu of relocating pursuant to Section 2.3 (Location of Employment),
subject to Executive’s compliance with the requirements set forth in Section 5.4,
below, all Restricted Stock Units which have been previously awarded to
Executive will immediately be deemed earned and 100% vested on the Effective
Date of the Release of Claims (as defined in Section 5.4, below).  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
Executive’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.”


 


5.4                                 Release of Claims.  As a condition precedent to Company’s
obligation to accelerate the vesting of stock options pursuant to Section 5.2
and restricted stock units pursuant to Section 5.3, Executive shall sign,
deliver to the Company, and not revoke a release of claims in a form to be
provided by the Company at the time of termination (the “Release of Claims”).
The accelerated vesting of such stock options and restricted stock units shall
be effective on the eighth (8th) day after delivery of the executed
Release of Claims by Executive to the Company, provided that Executive has not
revoked acceptance or rescinded the Release of Claims (the “Effective Date”).”


 


8.                                      Amendment to Employment Agreement;
Order of Precedence.


 


This Amendment constitutes a written amendment to the
Employment Agreement between the Parties, as contemplated by Section 8.2
of the Employment Agreement.  Except as
set forth in this Amendment, the Employment Agreement shall remain in full
force and effect and 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. 
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 Employment Agreement as being so redefined.


 


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9.                                      Counterparts.


 


This Amendment may be executed in one or more
counterparts and/or by facsimile, each of which shall be deemed an original and
all of which signed counterparts, taken together, shall constitute one
instrument.


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


 


	
  ACCEPTED AND AGREED:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/James C. O’Shea

  	
   

  	
   

  
	
  James C. O’Shea, Executive

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BIOJECT INC AND BIOJECT MEDICAL TECHNOLOGIES
  INC.

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Christine Farrell

  	
   

  	
   

  
	
   

  	
   

  
	
  Name: 

  	
  Christine Farrell

  	
   

  	
   

  
	
   

  	
   

  
	
  Title: 

  	
    Controller

  	
   

  	
   

  
							



 


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