ex10-5.htm


    Exhibit
10.5

     

    AMENDED
and RESTATED

     

    CHANGE IN
CONTROL SEVERANCE AGREEMENT

     

    


    THIS
AGREEMENT is entered into as of the 1st day of
August, 2008
(the “Effective Date”) by and between CONMED Corporation, a New York
corporation (the “Company”), and Luke A. Pomilio, residing at 8668 Teugega
Point, Rome, New York  13440

     

    W I T N E
S S E T H

     

    WHEREAS,
the Company considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best interests of the
Company and its stockholders; and

     

    WHEREAS,
the Company recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may arise and that such
possibility may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders; and

     

    WHEREAS, the Company and Executive have previously
entered into a Change in Control Severance Agreement, dated as of May 2, 2000,
which is hereby amended and restated; and

     

    WHEREAS,
the Board (as defined in Section 1) has determined that it is in the best
interests of the Company and its stockholders to secure Executive’s continued services and to
ensure Executive’s
continued dedication to his duties in the event of any threat or occurrence of a
Change in Control (as defined in Section 1) of the Company; and

     

    WHEREAS, the Company wishes Executive to enter into a
confidentiality agreement, which Executive is willing to do, as a condition of
entering into this Agreement; and

     

    WHEREAS,
the Board has authorized the Company to enter into this Agreement.

     

    NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the Company and Executive hereby agree as
follows:

     

    1.         
 Definitions.  As
used in this Agreement, the following terms shall have the respective meanings
set forth below:

     

    (a)         “Board” means the Board of Directors
of the Company.

     

    (b)         “Bonus Amount” means the highest annual
incentive bonus earned by Executive from the Company (or its affiliates) during
the last three (3) completed fiscal years of the Company immediately preceding
Executive’s Date of
Termination (annualized in the event Executive was not employed by the Company
(or its affiliates) for the whole of any such fiscal year).

     


    
      
         


      

      
        E-57

        
          

        

      

      
         


      

    


    


     

    (c)         “Cause” means (i) the willful and
continued failure of Executive to perform substantially his duties with the
Company (other than any such failure resulting from Executive’s incapacity due to physical
or mental illness or any such failure subsequent to Executive being delivered a
Notice of Termination without Cause by the Company or delivering a Notice of
Termination for Good Reason to the Company) after a written demand for
substantial performance is delivered to Executive by the Board which
specifically identifies the manner in which the Board believes that Executive
has not substantially performed Executive’s duties, or (ii) the willful
engaging by Executive in illegal conduct or gross misconduct which is
demonstrably and materially injurious to the Company or its
affiliates.  For purpose of this paragraph (b), no act or failure to
act by Executive shall be considered “willful” unless done or omitted to be
done by Executive in bad faith and without reasonable belief that Executive’s action or omission was in
the best interests of the Company or its affiliates.  Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board, based upon the advice of counsel for the Company or upon the
instructions of the Company’s chief executive officer or
another senior officer of the Company shall be conclusively presumed to be done,
or omitted to be done, by Executive in good faith and in the best interests of
the Company.  Cause shall not exist unless and until the Company has
delivered to Executive a copy of a resolution duly adopted by three-quarters
(3/4) of the entire Board (excluding Executive if Executive is a Board member)
at a meeting of the Board called and held for such purpose (after reasonable
notice to Executive and an opportunity for Executive, together with counsel, to
be heard before the Board), finding that in the good faith opinion of the Board
an event set forth in clauses (i) or (ii) has occurred and specifying the
particulars thereof in detail.

     

    (d)         “Change in Control” means the occurrence of any
one of the following events:

     

    (i)           individuals
who, as of the Effective Date, constitute
the Board (the “Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a
director subsequent to the Effective Date,
whose election or nomination for election was approved by a vote of at least
two-thirds of the Incumbent Directors then on the Board (either by a specific
vote or by approval of the proxy statement of the Company in which such person
is named as a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board shall be deemed to
be an Incumbent Director;

     

    (ii)           any
“person” (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the “Exchange Act”) and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act),

     


    
      
         


      

      
        E-58

        
          

        

      

      
         


      

    


    directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company’s then outstanding securities
eligible to vote for the election of the Board (the “Company Voting
Securities”); provided,
however, that the event described in this paragraph (ii) shall not be deemed to
be a Change in Control by virtue of any of the following
acquisitions:  (A) by the Company or any Subsidiary, (B) by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any Subsidiary, (C) by any underwriter temporarily holding securities
pursuant to an offering of such securities, (D) pursuant to a Non-Qualifying
Transaction (as defined in paragraph (iii)), or (E) pursuant to any acquisition
by Executive or any group of persons including Executive (or any entity
controlled by Executive or any group of persons including
Executive);

     

    (iii)           the
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or any of its Subsidiaries
that requires the approval of the Company’s stockholders, whether for
such transaction or the issuance of securities in the transaction (a “Business Combination”), unless immediately
following such Business Combination:  (A) more than 50% of the total
voting power of (x) the corporation resulting from such Business Combination
(the “Surviving
Corporation”), or (y) if
applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect
directors of the Surviving Corporation (the “Parent Corporation”), is represented by Company
Voting Securities that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into which such Company
Voting Securities were converted pursuant to such Business Combination), and
such voting power among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting Securities among the
holders thereof immediately prior to the Business Combination, (B) no person
(other than any employee benefit plan (or related trust) sponsored or maintained
by the Surviving Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of 25% or more of the total voting
power of the outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) and (C) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the Business Combination
were Incumbent Directors at the time of the Board’s approval of the execution
of the initial agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (A), (B) and (C)
above shall be deemed to be a “Non-Qualifying
Transaction”);
or

     

    (iv)           the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or a sale of all or substantially all of the
Company’s
assets.

     

    Notwithstanding
the foregoing, a Change in Control of the Company shall not be deemed to occur
solely because any person acquires beneficial

     


    
      
         


      

      
        E-59

        
          

        

      

      
         


      

    


    ownership
of more than 25% of the Company Voting Securities as a result of the acquisition
of Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the Company
shall then occur.

     

    (e)         “Date of Termination” means (1) the effective date
on which Executive’s
employment by the Company terminates as specified in a prior written notice by
the Company or Executive, as the case may be, to the other, delivered pursuant
to Section 10 or (2) if Executive’s employment by the Company
terminates by reason of death, the date of death of Executive.

     

    (f)         “Disability” means termination of
Executive’s employment
by the Company due to Executive’s absence from Executive’s duties with the Company on
a full-time basis for at least one hundred eighty (180) consecutive days as a
result of Executive’s
incapacity due to physical or mental illness.

     

    (g)         “Good Reason” means, without
Executive’s express
written consent, the occurrence of any of the following events after a Change in
Control:

     

    (i)           (A) any change in the duties
or responsibilities (including reporting responsibilities) of Executive that is
inconsistent in any material and adverse respect with Executive’s position(s), duties,
responsibilities or status with the Company immediately prior to such Change in
Control (including any material and adverse diminution of such duties or
responsibilities); provided, however, that Good Reason shall not be deemed to
occur upon a change in duties or responsibilities (other than reporting
responsibilities) that is solely and directly a result of the Company no longer
being a publicly traded entity and does not involve any other event set forth in
this paragraph (g) or (B) a material and adverse change in Executive’s titles or offices with the
Company as in effect immediately prior to such Change in Control;

     

    (ii)           a
material reduction by the Company
in Executive’s rate of
annual base salary or annual target bonus opportunity (including any material
and adverse change in the formula for such annual bonus target), as in effect
immediately prior to such Change in Control or as the same may be increased from
time to time thereafter;

     

    (iii)           any
requirement of the Company that Executive (A) be based anywhere more than fifty
(50) miles from the office where Executive is located at the time of the Change
in Control or (B) travel on Company business to an extent substantially greater
than the travel obligations of Executive immediately prior to such Change in
Control;

     

    (iv)           the
failure of the Company to continue in effect any material employee benefit
compensation welfare benefit or fringe benefit plan in which Executive is
eligible to participate in immediately prior to such Change in Control or the
taking of any action by the Company which would materially adversely
affect

     


    
      
         


      

      
        E-60

        
          

        

      

      
         


      

    


    Executive’s contribution level or
ability to participate in or materially reduce Executive’s benefits under any such
plan, unless Executive is permitted to participate in other plans providing
Executive with substantially equivalent benefits in the aggregate (at
substantially equivalent Executive contribution  with respect to
welfare benefit plans) or

     

    (v)           the
failure of the Company to obtain the assumption of
this Agreement from any successor as contemplated in Section
9(b).

     

    An
isolated, insubstantial and inadvertent action taken in good faith and which is
remedied by the Company within ten (10) days after receipt of notice thereof
given by Executive shall not constitute Good Reason.  Executive’s right to terminate
employment for Good Reason shall not be affected by Executive’s incapacities due to mental
or physical illness and Executive’s continued employment shall
not constitute consent to, or a waiver of rights with respect to, any event or
condition constituting Good Reason; provided, however, that such event shall not constitute Good Reason under this
Agreement unless (i) Executive provides notice to the Company within the ninety
(90) days following the initial
existence of an event constituting Good Reason, (ii) the Company does not remedy such event (if
remediation is possible) within thirty (30) days following the Company’s receipt
of notice of such event, and (iii) Executive separates from service with the
Company within two (2) years following the initial existence of such an event
constituting Good Reason.

     

    (h)         “Qualifying Termination” means a termination of
Executive’s employment
(i) by the Company other than for Cause or (ii) by Executive for Good
Reason.  Termination of Executive’s employment on account of
death, Disability or Retirement shall not be treated as a Qualifying
Termination.

     

    (i)         “Retirement” means Executive’s mandatory retirement (not
including any mandatory early retirement) in accordance with the Company’s retirement policy generally
applicable to its salaried employees, as in effect immediately prior to the
Change in Control, or in accordance with any retirement arrangement established
with respect to Executive with Executive’s written
consent.

     

    (j)         “Subsidiary” means any corporation or
other entity in which the Company has a direct or indirect ownership interest of
50% or more of the total combined voting power of the then outstanding
securities or interests of such corporation or other entity entitled to vote
generally in the election of directors or in which the Company has the right to
receive 50% or more of the distribution of profits or 50% of the assets or
liquidation or dissolution.

     

    (k)         “Termination Period” means the period of time
beginning with a Change in Control and ending two (2) years and six (6) months
following such Change in Control.  Notwithstanding anything in this
Agreement to the contrary, if (i) Executive’s employment is terminated
prior to a Change in Control for reasons that would have constituted a
Qualifying Termination if they had occurred following a Change in Control; (ii)
Executive reasonably demonstrates that such termination (or Good Reason event)
was at the request of a third party who had indicated an intention or taken
steps reasonably

     


    
      
         


      

      
        E-61

        
          

        

      

      
         


      

    


    calculated
to effect a Change in Control; and (iii) a Change in Control involving such
third party (or a party competing with such third party to effectuate a Change
in Control) does occur, then for purposes of this Agreement, the date
immediately prior to the date of such termination of employment or event
constituting Good Reason shall be treated as a Change in Control.  For
purposes of determining the timing of payments and benefits to Executive under
Section 4, the date of the actual Change in Control shall be treated as
Executive’s Date of
Termination under Section 1(e).

     

    2. 
         Obligation of Executive.  In
the event of a tender or exchange offer, proxy contest, or the execution of any
agreement which, if consummated, would constitute a Change in Control, Executive
agrees not to voluntarily leave the employ of the Company, other than as a
result of Disability, retirement or an event which would constitute Good Reason
if a Change in Control had occurred, until the Change in Control occurs or, if
earlier, such tender or exchange offer, proxy contest, or agreement is
terminated or abandoned.

     

    3. 
         Term of Agreement.  This
Agreement shall be effective on the date hereof and shall continue in effect
until the Company shall have given three (3) years’ written notice of
cancellation; provided, that, notwithstanding the delivery of any such notice,
this Agreement shall continue in effect for a period of two (2) years after a
Change in Control, if such Change in Control shall have occurred during the term
of this Agreement.  Notwithstanding anything in this Section to the
contrary, this Agreement shall terminate if Executive or the Company terminates
Executive’s employment
prior to a Change in Control except as provided in Section 1(k).

     

    4. 
         Payments Upon Termination of
Employment.

     

    (a)         Qualifying
Termination.  If during the Termination Period the employment of
Executive shall terminate pursuant to a Qualifying Termination, then the Company
shall provide to Executive:

     

    (i)           within
ten (10) days following the Date of Termination a lump-sum cash amount equal to
the sum of (A) Executive’s base salary through the
Date of Termination and any bonus amounts which have become payable, to the
extent not theretofore paid or deferred, (B) a pro rata portion of
Executive’s annual bonus
for the fiscal year in which Executive’s Date of Termination occurs
in an amount at least equal to (1) Executive’s Bonus Amount, multiplied by
(2) a fraction, the numerator of which is the number of days in the fiscal year
in which the Date of Termination occurs through the Date of Termination and the
denominator of which is three hundred sixty-five (365), and reduced by (3) any
amounts paid from the Company’s annual incentive plan for
the fiscal year in which Executive’s Date of Termination occurs
and (C), any compensation previously deferred by Executive other than pursuant
to a tax-qualified plan (together with any interest and earnings thereon) and
any accrued vacation pay, in each case to the extent not theretofore paid;
plus

     

    (ii)           within
ten (10) days following the Date of Termination, a lump-sum cash amount equal to
(i) three (3) times Executive’s highest annual rate of base
salary during the 12-month period immediately prior to Executive’s Date of Termination, plus
(ii) three (3) times Executive’s Bonus Amount.

     

    


     


    
      
         


      

      
        E-62

        
          

        

      

      
         


      

    


    


     

    (b)         If
during the Termination Period the employment of Executive shall terminate
pursuant to a Qualifying Termination, the Company shall continue to offer, for a
period of (3) years following Executive’s Date of Termination,
Executive (and Executive’s dependents, if applicable)
with the same level of medical, dental, accident, disability, long-term care and life insurance benefits upon
substantially the same terms and conditions (including contributions required by
Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if
more favorable to Executive, as such benefits and terms and conditions existed
immediately prior to the Change in Control); such
medical and dental insurance benefits shall be provided in the form of continued
group health coverage under COBRA for the 18 months following Executive’s
termination of employment, and thereafter, at the Company’s sole discretion,
either (i) under a fully insured Company health benefit plan, (ii) as
reimbursement (on an after tax basis) of the premium expense Executive incurs to
purchase comparable health coverage or (iii) as reimbursement (on an after tax
basis) of the actual out-of-pocket health expenses Executive incurs, and such
accident, disability, long-term care and life insurance benefits shall be
provided as a reimbursement (on an after tax basis) of the premium expense
Executive incurs to purchase such accident, disability, long-term care and life
insurance benefits.  Notwithstanding the foregoing, in the
event Executive becomes reemployed with another employer and becomes eligible to
receive welfare benefits from such employer, the welfare benefits described
herein shall be secondary to such benefits during the period of Executive’s eligibility, but only to
the extent that the Company reimburses Executive for any increased cost and
provides any additional benefits necessary to give Executive the benefits
provided hereunder.

     

    In
addition, the Company shall continue to make payments to or on behalf of the
Executive with respect to the expenses set forth on Exhibit A for a period of
three (3) years from such Date of Termination.

     

    (c)         If
during the Termination Period the employment of Executive shall terminate other
than by reason of a Qualifying Termination, then the Company shall pay to
Executive within thirty (30) days following the Date of Termination, a lump-sum
cash amount equal to the sum of (1) Executive’s base salary through the
Date of Termination and any bonus amounts which have become payable, to the
extent not theretofore paid or deferred, and (2) any accrued vacation pay to the
extent not theretofore paid.  The Company may make such additional
payments, and provide such additional benefits, to Executive as the Company and
Executive may agree in writing.

     

    5. 
         Certain Additional Payments by the
Company.

     

    (a)         Anything
in this Agreement to the contrary, in the event it shall be determined that any
payment, award, benefit or distribution (or any acceleration of any payment,
award, benefit or distribution) by the Company (or any of its affiliated
entities) or any entity which effectuates a Change in Control (or any of its
affiliated entities) to or for the benefit of Executive (whether pursuant to the
terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 5) (the “Payments”) would be subject to the
excise tax (the “Excise

     


    
      
         


      

      
        E-63

        
          

        

      

      
         


      

    


    Tax”) under Section 4999 of the
Internal Revenue Code of 1986, as amended (the “Code”), or any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the “Excise Tax”), then the Company shall pay
to Executive an additional payment (a “Gross-Up Payment”) in an amount such that
after payment by Executive of all taxes (including any Excise Tax) imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product
of any deductions disallowed because of the inclusion of the Gross-up Payment in
Executive’s adjusted
gross income and the highest applicable marginal rate of federal income taxation
for the calendar year in which the Gross-up Payment is to be
made.  For purposes of determining the amount of the Gross-up Payment,
the Executive shall be deemed to (i) pay federal income taxes at the highest
marginal rates of federal income taxation for the calendar year in which the
Gross-up Payment is to be made, (ii) pay applicable state and local income taxes
at the highest marginal rate of taxation for the calendar year in which the
Gross-up Payment is to be made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes and
(iii) have otherwise allowable deductions for federal income tax purposes at
least equal to those which could be disallowed because of the inclusion of the
Gross-up Payment in the Executive’s adjusted gross
income.  Notwithstanding the foregoing provisions of this Section
5(a), if it shall be determined that Executive is entitled to a Gross-Up
Payment, but that the Payments would not be subject to the Excise Tax if the
Payments were reduced by an amount that is less than 10% of the portion of the
Payments that would be treated as “parachute payments” under Section 280G of the
Code, then the amounts payable to Executive under this Agreement shall be
reduced (but not below zero) to the maximum amount that could be paid to
Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment
shall be made to Executive.  The reduction of the amounts payable
hereunder, if applicable, shall be made by first reducing payments under Section 4(a)(ii), second
reducing the
payments under Section 4(a)(i) and last reducing
benefits under Section 4(b)(iii).  For purposes of
reducing the Payments to the Safe Harbor Cap, only amounts payable under this
Agreement (and no other Payments) shall be reduced.  If the reduction
of the amounts payable hereunder would not result in a reduction of the Payments
to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced
pursuant to this provision.

     

    (b)         Subject
to the provisions of Section 5(a), all determinations required to be made under
this Section 5, including whether and when a Gross-Up Payment is required, the
amount of such Gross-Up Payment, the reduction of the Payments to the Safe
Harbor Cap and the assumptions to be utilized in arriving at such
determinations, shall be made by the public accounting firm that is retained by
the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and Executive within
fifteen (15) business days of the receipt of notice from the Company or the
Executive that there has been a Payment, or such earlier time as is requested by
the Company (collectively, the “Determination”).  In the event
that the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, Executive may appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be

     


    
      
         


      

      
        E-64

        
          

        

      

      
         


      

    


    referred
to as the Accounting Firm hereunder).  All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with the
performance of the services hereunder.  The Gross-up Payment under
this Section 5 with respect to any Payments shall be made no later than thirty
(30) days following such Payment.  If the Accounting Firm determines
that no Excise Tax is payable by Executive, it shall furnish Executive with a
written opinion to such effect, and to the effect that failure to report the
Excise Tax, if any, on Executive’s applicable federal income
tax return will not result in the imposition of a negligence or similar
penalty.  In the event the Accounting Firm determines that the
Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive
with a written opinion to such effect.  The Determination by the
Accounting Firm shall be binding upon the Company and Executive.  As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the Determination, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made (“Underpayment”) or Gross-up Payments are
made by the Company which should not have been made (“Overpayment”), consistent with the
calculations required to be made hereunder.  In the event that the
Executive thereafter is required to make payment of any Excise Tax or additional
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the
Company to or for the benefit of Executive.  In the event the amount
of the Gross-up Payment exceeds the amount necessary to reimburse the Executive
for his Excise Tax, the Accounting Firm shall determine the amount of the
Overpayment that has been made and any such Overpayment (together with interest
at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid
by Executive (to the extent he has received a refund if the applicable Excise
Tax has been paid to the Internal Revenue Service) to or for the benefit of the
Company.  Executive shall cooperate, to the extent his expenses are
reimbursed by the Company, with any reasonable requests by the Company in
connection with any contests or disputes with the Internal Revenue Service in
connection with the Excise Tax.

     

    6. 
         Withholding Taxes.  The
Company may withhold from all payments due to Executive (or his beneficiary or
estate) hereunder all taxes which, by applicable federal, state, local or other
law, the Company is required to withhold therefrom.

     

    7. 
         Reimbursement of
Expenses.  If any contest or dispute shall arise under this
Agreement involving termination of Executive’s employment with the Company
or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse Executive, on a
current basis, for all reasonable legal fees and expenses, if any, incurred by
Executive in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the prime rate of Chase
Manhattan Bank, N.A. from time to time in effect, but in no event higher than
the maximum legal rate permissible under applicable law, such interest to accrue
from the date the Company receives Executive’s statement for such fees and
expenses through the date of payment thereof, regardless of whether or not
Executive’s claim is
upheld by a court of competent jurisdiction.

     


    
      
         


      

      
        E-65

        
          

        

      

      
         


      

    


    8. 
         Scope of Agreement.  Nothing
in this Agreement shall be deemed to entitle Executive to continued employment
with the Company or its Subsidiaries, and if Executive’s employment with the Company
shall terminate prior to a Change in Control, Executive shall have no further
rights under this Agreement (except as otherwise provided hereunder); provided,
however, that any termination of Executive’s employment during the
Termination Period shall be subject to all of the provisions of this
Agreement.

     

    9. 
         Successors; Binding
Agreement.

     

    (a)         This
Agreement shall not be terminated by any Business Combination.  In the
event of any Business Combination, the provisions of this Agreement shall be
binding upon the Surviving Corporation, and such Surviving Corporation shall be
treated as the Company hereunder.

     

    (b)         The
Company agrees that in connection with any Business Combination, it will cause
any successor entity to the Company unconditionally to assume (and for any
Parent Corporation in such Business Combination to guarantee), by written
instrument delivered to Executive (or his beneficiary or estate), all of the
obligations of the Company hereunder.  Failure of the Company to
obtain such assumption and guarantee prior to the effectiveness of any such
Business Combination that constitutes a Change in Control, shall be a breach of
this Agreement and shall constitute Good Reason hereunder and shall entitle
Executive to compensation and other benefits from the Company in the same amount
and on the same terms as Executive would be entitled hereunder if Executive’s employment were terminated
following a Change in Control by reason of a Qualifying
Termination.  For purposes of implementing the foregoing, the date on
which any such Business Combination becomes effective shall be deemed the date
Good Reason occurs, and shall be the Date of Termination if requested by
Executive.

     

    (c)         This
Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.  If Executive shall die while any amounts would
be payable to Executive hereunder had Executive continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to such person or persons appointed in writing by
Executive to receive such amounts or, if no person is so appointed, to
Executive’s
estate.

     

    10.         Notice.  (a)  For purposes of
this Agreement, all notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
delivered or five (5) days after deposit in the United States mail, certified
and return receipt requested, postage prepaid, addressed as
follows:

     

    If to the
Executive:

     

    Luke A.
Pomilio

    8668
Teugega Point

    Rome, New
York 13440


    
      
         


      

      
        E-66

        
          

        

      

      
         


      

    


    If to the
Company:

    


    CONMED
Corporation

    525
French Road

    Utica,
New York 13502

    


    Attention:  President

    


    With a
copy to:  General Counsel

    


    


    or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.

     

    (b)         A
written notice of Executive’s Date of Termination by the
Company or Executive, as the case may be, to the other, shall (i) indicate the
specific termination provision in this Agreement relied upon, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive’s employment under the
provision so indicated and (iii) specify the termination date (which date shall
be not less than fifteen (15) (thirty (30), if termination is by the Company for
Disability) nor more than sixty (60) days after the giving of such
notice).  The failure by Executive or the Company to set forth in such
notice any fact or circumstance which contributes to a showing of Good Reason or
Cause shall not waive any right of Executive or the Company hereunder or
preclude Executive or the Company from asserting such fact or circumstance in
enforcing Executive’s or
the Company’s rights
hereunder.

     

    11.         Full Settlement; Prior Agreement;
Resolution of Disputes.  The Company’s obligation to make any
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall be in lieu and in full settlement of all other severance
payments to Executive under any other severance or employment agreement between
Executive and the Company, and any severance plan of the Company (including, for the avoidance of doubt, the Change in
Control Severance Agreement between the Company and Executive dated as of May 2,
2000, which is hereby amended and restated in its entirety by this
Agreement).  The Company’s obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against Executive or others.  In
no event shall Executive be obligated to seek other employment or take other
action by way of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement and, except as provided in Section 4(b), such
amounts shall not be reduced whether or not Executive obtains other
employment.

     

    12.         Employment with
Subsidiaries.  Employment with the Company for purposes of this
Agreement shall include employment with any Subsidiary.

     

    13.         Survival.  The respective
obligations and benefits afforded to the Company and Executive as provided in
Sections 4 (to the extent that payments or benefits are owed as a result of a
termination of employment that occurs during the term of this Agreement), 5 (to
the extent that Payments are made to Executive as a result of a Change in
Control that occurs during the term of this Agreement), 6, 7, 9(c) and 11 shall
survive the termination of this Agreement.

     


    
      
         


      

      
        E-67

        
          

        

      

      
         


      

    


    


     

    14.         GOVERNING LAW;
VALIDITY.  THE INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLE
OF CONFLICTS OF LAWS.  THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN
FULL FORCE AND EFFECT.

     

    15.         Counterparts.  This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.

     

    16.         Miscellaneous.  No provision
of this Agreement may be modified or waived unless such modification or waiver
is agreed to in writing and signed by Executive and by a duly authorized officer
of the Company.  No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.  Failure by Executive or the Company to
insist upon strict compliance with any provision of this Agreement or to assert
any right Executive or the Company may have hereunder, including without
limitation, the right of Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.  Except as otherwise
specifically provided herein, the rights of, and benefits payable to, Executive,
his estate or his beneficiaries pursuant to this Agreement are in addition to
any rights of, or benefits payable to, Executive, his estate or his
beneficiaries under any other employee benefit plan or compensation program of
the Company.

     

    17.         Compliance with
Section 409A of the Code.  It is the parties’ intent that the
payments and benefits provided under this Agreement be exempt from the
definition of “non-qualified deferred compensation” within the meaning of
Section 409A of the Code, and the Agreement shall be interpreted
accordingly.  In this regard each payment under this Agreement shall
be treated as a separate payment for purposes of Section 409A of the
Code.  To the extent that any payment or benefit under this Agreement
constitutes “non-qualified deferred compensation” then this Agreement is
intended to comply with Section 409A of the Code and the Agreement shall be
interpreted accordingly.  If and to the extent that any payment or
benefit is determined by the Company (a) to constitute “non-qualified deferred
compensation” subject to Section 409A of the Code, (b) such payment or benefit
is provided to Executive and Executive is a “specified employee” (within the
meaning of Section 409A of the Code and as determined pursuant to procedures
established by the Company) and (c) such payment or benefit must be delayed for
six months from Executive’s Date of Termination (or an earlier date) in order to
comply with Section 409A(a)(2)(B)(i) of the Code and not cause Executive to
incur any additional tax under Section 409A of the Code, then the Company will
delay making any such payment or providing such benefit until the expiration of
such six month period (or, if earlier, Executive’s death, “disability” or a
“change in control event”, as such

     


    
      
         


      

      
        E-68

        
          

        

      

      
         


      

    


    terms are defined in Section 1.409A-3(i)(4) and (5) of
the Code).  In addition, any expense reimbursements provided under
this Agreement, including but not limited to those reimbursements provided
pursuant to Sections 4, 5 and 7 of this Agreement, shall be paid to Executive as
soon as practicable, but in any event no later than the end of Executive’s
taxable year following the taxable year in which Executive incurs such
reimbursable expense or remits in reimbursable tax payment, as
appropriate.

     

    


    IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly
authorized officer of the Company and Executive has executed this Agreement as
of the day and year first above written.

     

    
      


      
        	 
      	 
      	 
      	
                CONMED
      Corporation

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                By:

              	/s/ Andrew W.
      Beakman  
	
                Witness:

              	/s/ Heather L.
      Cohen  	 
      	
                Name:

              	Andrew W.
      Beakman  
	 
      	 
      	 
      	
                Title:

              	Assistant General
      Counsel - Assistant Secretary  
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Executive

              
	 
      	 
      	 
      	
                By:

              	/s/
      Luke
      A. Pomilio
	
                Witness:

              	/s/ Daniel S.
      Jonas	 
      	
                Name:

              	
                
                  Luke
      A. Pomilio

                

              
	 
      	 
      	 
      	
                Title:

              	
                
                  V.P.
      – Corporate Controller

                

              


      

      


      


      


      




    


    


    



    
      
         


      

      
        E-69

        
          

        

      

      
         


      

    


    


    


    Executive

    Change in
Control Severance Agreement

    Exhibit
A

    


    


    
      	
               
      

            	
              1.

            	
              AICPA
      dues, NYSSCPA dues and professional
fees

            


    

    
      	
               
      

            	
              2.

            	
              Car
      Allowance

            


    

    
      	
               
      

            	
              3.

            	
              Airline
      Club Membership

            


    

    
      	
               
      

            	
              4.

            	
              Club
      Memberships

            


    

    
      	
               
      

            	
              5.

            	
              Cellular
      phone and internet on-line service
reimbursement

            


    

     

     

    E-70