EXHIBIT 10.5.1


 


AMENDMENT


TO


AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT


 


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


 


RECITALS


 


WHEREAS, the
Parties entered into an Amended and Restated Executive Employment Agreement on March 14,
2002 (the “Employment Agreement”); and


 


WHEREAS, the
Parties now want to further 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. Following the Effective Date, 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.                                      Termination By the Company.


 


Subparagraph (ii) of Section 4.2(b) (Termination
by the Company) of the Employment Agreement shall be deleted in its entirety and
replaced with the following:


 


“(ii) 
Pursuant to Section 4.2(a)(ii) (Termination by the Company), Section 2.3
(Location of Employment), Section 4.1 (Duration) or Section 4.5
(Change in


 


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Control), and subject to
Executive’s execution of the Release of Claims (as defined in paragraph C,
below):


 


A.  The Company will pay 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, The 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 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,
Executive shall be required
to 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 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”).”


 


3.                                      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.


 


4.                                      Stock Options.


 


Section 5 of the
Employment Agreement shall be amended by adding new Sections 5.3, 5.4 and 5.5,
as set forth below:


 


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“5.3                           Stock Options.  In the event of a (A) termination of
Executive’s employment pursuant to Section 4.5 (Change of Control), (B) termination
of Executive’s employment pursuant to Section 4.2(a) (ii) (Termination
by the Company)( 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 5.5
below, all stock options which have been previously awarded to Executive, but
are not yet vested, will be 100% vested on the Effective Date of the Release of
Claims (as those terms are defined in Section 5.5, 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.”


 


5.4                                 Restricted Stock Units.  In the event of (A) termination of Executive’s employment
pursuant to Section 4.2(a)(ii) (Termination by the Company) (including
deemed termination pursuant to Section 4.1) or (B) the Executive’s having opted to receive a
severance package in lieu of relocating pursuant to Section 2.3 (Location
of Employment) of the Employment Agreement, subject to Executive’s
compliance with the requirements set forth in Section 5.5, 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 those terms are defined in Section 5.5, 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.


 


5.5                                 Release of Claims.  As a condition precedent to the accelerated vesting
of stock options pursuant to Section 5.3, above and restricted stock units
pursuant to Section 5.4, above, Executive shall be required to 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”).   Such accelerated vesting of 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”).”


 


5.                                      Amendment to Employment Agreement;
Order of Precedence.


 


This Amendment constitutes an amendment to the Employment
Agreement between the Parties, within the meaning of Section 6.6 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,”


 


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“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.


 


6.                                      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, 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/ John Gandolfo

  	
   

  
	
  John Gandolfo, Executive

  
	
   

  
	
   

  
	
  BIOJECT INC

  
	
   

  
	
  By:

  	
  /s/Christine Farrell

  	
   

  
	
   

  
	
  Name:

  	
    Christine Farrell

  	
   

  
	
   

  
	
  Title:

  	
  Controller

  	
   

  
	
   

  
	
   

  
	
  BIOJECT MEDICAL TECHNOLOGIES INC.

  
	
   

  
	
  By:

  	
  /s/Christine Farrell

  	
   

  
	
   

  
	
  Name:

  	
    Christine Farrell

  	
   

  
	
   

  
	
  Title:

  	
  Controller

  	
   

  
						



 


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