Exhibit 10.2


 


 


 


 


 


SETTLEMENT AGREEMENT














Parties:




KCI Europe Holding B.V.




Jörg Menten




















































Execution Copy

25 June 2007


























Houthoff Buruma N.V.


P.O. Box 75505,  1070 AM Amsterdam

Gustav Mahlerplein 50, Amsterdam






Parties:




This Agreement ("Agreement") is made between:




I.             KCI Europe Holding B.V., having its seat (statutaire zetel) at Zeist, the Netherlands,

               and its registered address at Van Heuven Goedhartlaan 11, 1181 LE Amstelveen, the

               Netherlands, which is represented in this matter by Stephen D. Seidel ("KCI");




II.            Jörg Menten, born on 28 December 1957, residing at Forggenseestrasse 27, 68219

               Mannheim, Germany ("Menten");




Recitals:




A.           Menten has been employed by KCI since 1 July 2001, as President KCI International

               Division and managing director (statutair bestuurder) of KCI.




B.           The current fixed salary of Menten is €273,000 gross per annum inclusive of 8% holiday

               allowance.




C.           Between the parties a difference of opinion has arisen regarding the policy of KCI,

               which has made a productive cooperation impossible.  As a consequence KCI has taken

               the initiative to terminate the employment agreement with Menten.




D.           The parties have agreed that Menten’s corporate and employment positions with KCI and

               all other affiliated companies (together the “KCI Group”) will be terminated under the

               terms and conditions set forth in this Agreement.




It is hereby agreed as follows:




1.          Termination of employment by the court




1.1         KCI shall file a petition to the competent court as soon as possible, requesting that the

             employment agreement between the parties will be ‘pro forma’ dissolved effective 30

             September 2007 (the “Separation Date”).




1.2        KCI shall inform the court in writing that KCI does not require an oral hearing of the case

             and that if the dissolution is granted as requested by KCI in accordance with this

             Agreement, KCI waives the right to withdraw the petition.




1.3        Menten may raise a defence against the petition described in clause 1.1 of this Agreement,

             but shall do so only as a formality and only for the purpose of preserving the right to

             social security benefits. Furthermore, Menten shall timely send a letter to the court stating

             that Menten does not require an oral hearing.




2.          Resignation from directorships




2.1        By signing this Agreement Menten confirms to have resigned as per 30 April 2007 from

             his directorship of KCI and from all other directorships held by him within the KCI

             Group. Menten undertakes to sign such additional documentation and to take such other

             actions as may be required to give effect to such resignations. Any costs arising in

             connection with the foregoing shall be borne by KCI.




3.          Release of duties




3.1        Menten has been released from his duty to perform activities under the employment

             agreement with KCI as per 30 April 2007.




3.2        Menten shall nevertheless cooperate in the best interests of KCI and shall continue to

             provide services as of the date of this Agreement and until the Separation Date to ensure a

             proper transfer of tasks and responsibilities.




4.          Salary and benefits up to the Separation Date




4.1        Until 1 May 2007 Menten’s fixed salary and the usual allowances will be paid by KCI in

             the normal way.




4.2        From 1 May 2007 until the Separation Date Menten’s fixed salary solely including the

             allowances relating to remuneration (this is limited to health insurance (including

             disability insurance), holiday and pension allowances) will be paid by KCI. Menten can

             continue to use his Company Car, phone, laptop and company credit card (for company

             car related purposes only) during this period.




5.          Final payment




5.1        Within one month after the Separation Date, KCI will effect a normal final payment

             (eindafrekening).




6.          Severance payment




6.1        Within one month after the Separation Date, KCI will pay Menten a lump sum amount of

             €484,000 (in writing: four hundred eigthy four thousand Euro) gross.




6.2        KCI will pay the lump sum amount in the manner requested by Menten. The manner

             chosen by Menten for making payment must be in accordance with national and

             international tax legislation and regulations and must not result in any cost or expense to

             KCI.




6.3        If Menten requests payment in the form of an annuity (stamrecht), KCI shall make the

             severance payment to Menten in the form of an annuity (or arrange for this to be done), as

             allowed under article 11(1)(g) of the Wages and Salaries Tax Act (Wet op de

             Loonbelasting 1964) and shall, at the request of Menten, place this annuity with an insurer

              that is duly authorised for this purpose under the Wages and Salaries Tax Act.


              If the aforementioned annuity is placed with a professional insurer,
KCI is not required to

              pay the gross amount to the insurer until KCI has received a written statement from the

              insurer stating that the amount will be used exclusively for an annuity that is in

              compliance with article 11(1)(g) of the 1964 Wages and Salaries Tax Act (Wet op de

              Loonbelasting 1964) and that the payment gives KCI a full and final discharge with

              regard to the payment.


              If the aforementioned annuity is placed with another permitted type of insurer (i.e. a

             stamrecht-BV) (the “Annuity Company”), KCI is not required to make payment until

              after receiving a written statement from the tax inspector that KCI may make payment

              without deducting payroll taxes. If the tax inspector does not provide that written

              statement for no reason other than that such permission is, in the opinion of the tax

              inspector, not required because of an exemption for an annuity, and if it has not been

              demonstrated that the tax inspector does not have any substantive objection, KCI is not

              required to make payment until an annuity agreement that is to the satisfaction of KCI and

              that states that the annuity meets the requirements of article 11(1)(g) of the Wages and

              Salaries Tax Act has been signed by Menten, KCI and the Annuity Company. This

              annuity agreement must include a clause in which Menten and the Annuity Company

              irrevocably indemnify KCI for any amount claimed by the tax authorities with respect to

              the compensation, including interest, penalties, expenses and costs reasonably incurred to

              challenge the claim of the tax authorities. Further, this annuity agreement contains a

              clause stating that, upon payment to the Annuity Company of the gross amount agreed

              upon, Menten gives KCI a full and final discharge of the obligation to pay the

              compensation as meant in clause 2.1 of this Agreement.




7.          Bonuses




7.1        In view of Menten leaving KCI after 1 July 2007, Menten will in accordance with past

              practice be entitled to a pro rated bonus for the year 2007. The pro rated bonus for
the

              year 2007 amounts in aggregate to €109,000 (in writing: a hundred and nine
thousands

              Euro) gross. Menten will not be entitled to any other bonus and hereby
unconditionally

              and irrevocably waives any other bonus entitlements he has or may have.






8.          Vacation days




8.1        Menten will use up all his remaining vacation days before the Separation Date. In any

             case Menten will be deemed to have used up all his vacation entitlements by this date.




9.          Company property and company car




9.1        Menten will return to KCI everything that KCI provided or made available to Menten in

              relation to the employment agreement (amongst others the Company Car, phone and

              laptop). Menten will return everything in good
condition not later than the Separation

              Date.




10.        Pension scheme




10.1      KCI shall comply with all employment-related and termination-related obligations that it

              has towards Menten under the Pension Act (Pensioenwet) and the applicable pension or

              savings scheme. Menten hereby acknowledges that he has been informed that he has the

              option of transferring the pension.




11.        Non-competition and penalty clause




11.1      Until 30 April 2008 Menten will not, directly or indirectly, either on his own or for others,

              be active in or associated with any enterprise carrying out activities in a field the same as

              or similar to those of KCI or otherwise in competition with KCI, nor act, directly or

              indirectly, as an intermediary in any way whatsoever, nor be in any form active in or

              associated with any customer, potential customer, connection, contact or supplier of KCI.




11.2      This obligation only applies to the above-mentioned activities or involvement of KCI in

              the field of wound care, wound care surfaces, or any businesses in which KCI operates as

              of 30 April 2007.




11.3      If Menten does not fulfil his obligations under clause 11.1 of this Agreement, Menten will

              to the extent required  notwithstanding
Section 7:650, paragraphs 3, 4 and 5, of the Dutch

              Civil Code (“DCC”) and without notice of default, be subject to the requirement to pay to

              KCI a penalty of €10,000 for each violation and also a penalty of €1,000 per day for each

              day that Menten remains, despite a warning, in violation of the aforementioned

              obligations, none of which will prejudice the right of ­KCI to claim full compensation

              instead of the penalty payments.




12.        Confidentiality clause and penalty clause




12.1      The confidentiality clause and the penalty clause that KCI and Menten have agreed to and

              that are contained in the employment agreement (schedule 1 employment agreement dated

              1 July 2001) will remain fully in effect after the date of termination of the employment

              agreement.




13.        Non-solicitation clause and penalty clause




13.1      The non-solicitation clause and the penalty clause that KCI and Menten have agreed to

              and that are contained in the employment agreement (schedule 1 employment agreement

              dated 1 July 2001) will be prolonged until 30 April 2008 and will remain fully in
effect

              until that time.




14.        Stock options and restricted shares




14.1      In accordance with the applicable option plans, award agreements and other option rules,

              Menten has had 30 days to exercise any vested stock options as per 30 April 2007. Any

             stock options which were unvested as of 30 April 2007 and any restricted shares for

             which restrictions were still in place on 30 April 2007 have expired and have become null

              and void on 30 April 2007.




15.        Departure announcements




15.1      Any internal or external announcement regarding the departure of Menten shall only be

              made by the mutual consent of KCI and Menten.




16.        Confidentiality




16.1      KCI and Menten shall not disclose any information to any third party regarding the

              existence or the contents of this Agreement, unless there is a statutory obligation to do so.




17.        Non-disparagement clause




17.1      The parties will in the future behave in a good and careful manner towards the other party.

              They will not refer to the other party vis-à-vis other parties in a negative way. On
the side

              of Menten this obligation relates to KCI and its affiliated companies.




18.        Legal costs




18.1      Within four weeks after receipt of a well specified invoice, KCI will pay for the legal

              costs of Menten till a maximum of €5,000 exclusive of VAT and inclusive of office
costs.




19.        Costs tax filing obligations




20.        KCI will pay for the services of PricewaterhouseCoopers, both in the Netherlands as well

              as in Germany, to assist Menten with his tax filing obligations for 2007 until his 2007 tax

              returns have been filed to the Dutch and German tax authorities.




21.        Indemnification




21.1      Subject to the provisions of this Agreement, KCI will hold harmless Menten from and

              against any claims, damages, penalties, fines, liabilities, obligations, losses, costs
and

              expenses (collectively “Damages”) made against or incurred or suffered
by Menten, other

              than damages from KCI, in or outside the Netherlands, as a result of or arising out of
any

              acts of decisions (including any failure to act or decide) of Menten in his capacity
of

              managing director (statutair bestuurder) of KCI and its affiliated companies, except
if and

              to the extent that such Damages and/or facts or circumstances that will or may give rise
to

              any such Damages are caused by intent (opzet) or deliberate recklessness
(bewuste

              roekeloosheid) according to Section
7:661 DCC or, in connection with a fact or

              circumstance that Menten had actual knowledge of, constitute serious misconduct
(ernstig

              verwijt) as such notion is
interpreted in the context of Section 2:9 DCC.




21.2      The indemnification set out in clause 21.1 will not in any way prejudice or mitigate any

              rights or recovery which Menten may have against the liability insurer and/or other
third

              party in relation to the Damages or the facts or circumstances that will or may give rise
to

              any such Damages, nor will this indemnification in any way prejudice or mitigate the

              obligation of Menten to seek any such recovery, if available.




21.3      To the extent that Menten recovers any monies in relation to the same matter from the

              liability insurer or any other third party, Menten will account to KCI for all the amount
so

              received or, if less, the amount of money paid by KCI by way of indemnity.




22.        Discharge




22.1      Upon compliance with each provision in this Agreement, each party grants the other a full

              and final discharge, except for possible redress for Dutch wage tax (loonheffing) directly

              related to the salary over the months July, August and September 2007 and the pro rated

              bonus for 2007, with respect to the employment agreement and the termination thereof.

              On the side of Menten this discharge relates to KCI and its affiliated companies and the

              discharge is inclusive of all possible obligations of KCI under the employment
agreement

              to pay Menten a severance package or a compensation. KCI shall put the resolution for

              discharge on the agenda of its annual general meeting along with the annual accounts.

              Discharge will not be withheld on unreasonable grounds and KCI currently does not
have

              knowledge of any fact or circumstance that may bar such discharge.




23.        Full and binding nature of Agreement




23.1      This Agreement constitutes the entire agreement between the parties with respect to the

              termination of the employment agreement between them. This Agreement replaces all

              previous agreements, which are therefore no longer valid.




23.2      If the decision of the court differs from what the parties have agreed upon in this

              Agreement, including with regard to compensation, the termination date or anything else,

              the parties shall treat the decision of the court in this matter as non-binding and this

              Agreement shall remain valid and binding upon them. The parties waive any right to

              enforce any such decision.




24.        Miscellaneous




24.1      The parties hereby irrevocably waive the right to seek rescission and/or annulment of this

              Agreement.




24.2      This agreement constitutes a settlement agreement (vaststellingsovereenkomst) in

              accordance with Section 7:900 of the DCC and further.




25.        Governing law




25.1      This Agreement will be governed by the laws of the Netherlands.




26.        Competent Court




26.1      In accordance with Section 23 and 21 of the EC Execution Regulation (EEX-verordening),

              the parties hereby explicitly agree that all disputes between them including the pro
forma

              procedure mentioned in clause 1 of this Agreement will be brought before the Cantonal

              Court in Amsterdam, the Netherlands.


 


 


 


In witness whereof, agreed upon and signed in two counterparts by:


	
  /s/  Stephen D. Seidel                          

	
  /s/  Jörg Menten                          


	
KCI Europe Holding B.V.

	
Jörg Menten


	
Name: Stephen D. Seidel

	
Place:  Amsterdam


	
Position: Sr. Vice President, General Counsel

	
Date:  June 25, 2007


	
Place:   Amsterdam

	
 


	
Date:   June 25, 2007