Amendment to Employment Agreement

Second Amendment to Employment Agreement

Form of Change in Control Agreement

 

                              EMPLOYMENT AGREEMENT

 

      THIS AGREEMENT effective the 2nd day of July 2004 (the "Effective Date")

between OSTEOTECH, INC., a Delaware corporation (the "Corporation") and Sam

Owusu-Akyaw (the "Employee").

 

                                   WITNESSETH:

 

      WHEREAS, the Corporation desires to retain the Employee as President And

Chief Operating Officer; and

 

      WHEREAS, the Employee desires to maintain such employment upon the terms

and conditions set forth herein.

 

      NOW, THEREFORE, in consideration of the mutual covenants and obligations

hereinafter set forth, the parties hereto agree as follows:

 

      1.    Term. Unless sooner terminated in accordance with this Agreement,

            the term of this Agreement and the term of employment of the

            Employee shall be for two (2) years commencing on the Effective Date

            hereof and shall be automatically renewable for successive

            additional two (2) year terms unless at least three (3) months prior

            to the initial two-year period or any subsequent two-year term the

            Corporation terminates this Agreement by written notice to the

            Employee, whereupon this Agreement shall be terminated at the end of

            the applicable two-year period (with such initial two-year term and

            any two year renewal thereof, unless sooner terminated in accordance

            with this Agreement being the "Term of Employment").

 

      (a) The Employee will be on an unpaid leave of absence during the period

July 2, 2004

 

<PAGE>

 

to July 11, 2004.

 

      2. Duties. The Employee shall be employed in an executive capacity as the

President And Chief Operating Officer of the Corporation. The Employee shall

perform such duties and services, consistent with his position, as may be

assigned to him from time to time by the Chief Executive Officer of the

Corporation. In furtherance of the foregoing, the Employee hereby agrees to

perform well and faithfully the aforesaid duties and responsibilities and the

other reasonable senior executive duties and responsibilities assigned to him

from time to time by the Board of Directors of the Corporation or its designee.

During the Term of the Employment, the Corporation shall provide the Employee

with an office, secretarial and other support services at its headquarters as

may be required for the Employee to perform the duties assigned to him

hereunder.

 

      3. Time to be Devoted to Employment.

 

      (a) Except for reasonable vacations (to consist of at least four (4) weeks

per year) and absences due to temporary illness, during the Term of Employment,

the Employee shall devote substantially his full time and energy to the business

of the Corporation.

 

      (b) During the Term of Employment, the Employee shall not be engaged in

any other business activity which, in the reasonable judgment of the

Corporation, conflicts with the duties of the Employee hereunder, whether or not

such activity is pursued for gain, profit or other pecuniary advantage.

 

 

                                       2

<PAGE>

 

      4. Compensation; Reimbursement.

 

      (a) During the Term of Employment, the Corporation (or at the

Corporation's option, any subsidiary or affiliate thereof) shall pay to the

Employee an annual base salary ("Base Salary") of Three hundred thousand dollars

($300,000), payable in installments as is the policy of the Corporation with

respect to employees of the Corporation at substantially the same employment

level as the Employee, but in no event less frequently than once per month.

Thereafter, the Base Salary shall be subject to increase at the option and in

the sole discretion of the Board of Directors of the Corporation.

 

      (b) Employee shall be eligible for an annual bonus as determined by the

Board of Directors of the Corporation based on Employee's performance. The bonus

payment to Employee for a calendar year is contingent upon the Employee being

retained as an employee of the Corporation at the time such payments are made.

In calendar year 2004, the employee shall be eligible for a target bonus of 40%

of Base Salary, based upon the full calendar year.

 

      (c) Employee shall be eligible for an annual stock option grant consistent

with the Corporation's Stock Option Plan with said grant being determined by the

Board of Directors of the Corporation based on the Corporation's performance.

Contingent upon approval of the Board of Directors, the Employee will be granted

a stock option agreement for One hundred thousand (100,000) shares upon

employment. The exercise price of these options will be the closing price as

quoted on NASDAQ on the day the options are approved by the Board of Directors.

 

      (d) During the Term of Employment, the Employee shall be entitled to such

fringe benefits as are made available from time to time to the employees of the

Corporation at substantially the same employment level as the Employee,

including, without limitation, four (4) weeks paid vacation.

 

 

                                       3

<PAGE>

 

      (e) The Corporation shall reimburse Employee, in accordance with the

practice from time to time for other officers of the Corporation, for all

reasonable and necessary travel expenses, disbursements and other reasonable and

necessary incidental expenses incurred by him for or on behalf of the

Corporation in the performance of his duties hereunder upon presentation by the

Employee to the Corporation of appropriate vouchers, receipts and reports.

 

      (f) The Corporation shall reimburse Employee for other reasonable expenses

during the Term of Employment as follows:

 

            (i) Reasonable travel and lodging expenses for house hunting trips

to New Jersey for Employee and Employee's spouse to locate and purchase

appropriate housing for Employee and family.

 

            (ii) Temporary living expenses for Employee, up to eighteen (18)

months at an extended stay hotel, furnished apartment or similar type long-term

stay accommodation.

 

            (iii) Travel to and from Employee's current home in Texas, coach

class, twice per month for up to eighteen (18) months.

 

            (iv) Packing, shipping and unpacking of Employee's household goods

and personal belongings that are normally part of relocation.

 

            (v) The physical relocation trip for Employee and family from Texas

to New Jersey, including transportation, hotels and meals.

 

            (vi) A one-time relocation payment of Twenty five thousand dollars

($25,000) to help defray the incidental expenses related to relocation. This

payment will be made upon Employee's physical relocation to New Jersey, and will

be considered regular income and taxed as such.

 

            (vii) Should the Employee voluntarily terminate his employment in

less than two

 

 

                                        4

<PAGE>

 

(2) years, Employee will be responsible for paying back to the Company any

relocation expenses reimbursed to the Employee, on a pro rata basis.

 

      5. Disability or Death.

 

      (a) If the Employee is incapacitated or disabled by accident, sickness or

otherwise so as to render him mentally or physically incapable of performing the

services required to be performed by him under this Agreement for a period of 90

consecutive days or longer, (such condition being herein referred to as

"Disability"), the Employee will be eligible to receive benefits under the

Corporation's Long-Term Disability Benefits Plan pursuant to the terms and

conditions of such plan. Until the Employee becomes eligible for benefits under

the Corporation's Long-Term Disability Benefits Plan and so long as the

Corporation shall not have otherwise terminated the Employee's employment

hereunder in accordance with this Agreement, the Employee shall be entitled to

receive his compensation, notwithstanding any such Disability.

 

      (b) If the Employee dies during the Term of Employment, his employment

hereunder shall be deemed to cease as of the date of his death.

 

      6. Termination For Cause. The Corporation may, with the approval of a

majority of the Board of Directors of the Corporation, terminate the employment

of the Employee hereunder at any time during the Term of Employment for "cause"

(such termination being hereinafter called a "Termination For Cause") by giving

the Employee notice of such termination, and upon the giving of such notice

termination shall take effect immediately. For the purposes of this Section 6,

"cause" shall mean (i) the Employee's actions on behalf of the Corporation or

any subsidiary or affiliate thereof, without the authorization of the Board of

Directors or the Chief Executive Officer of the Corporation, which actions are

knowingly for the pecuniary benefit of the Employee or members of his family and

which actions materially and adversely effect the business or affairs of the

 

 

                                       5

<PAGE>

 

Corporation or any subsidiary or affiliate thereof, or (ii) the Employee fails

in any material respect to observe and perform his obligations hereunder or

under the Employee Non-Competition, Non-Solicitation, Confidential Information

And Inventions Agreement by and between Employee and Corporation which failure

is not cured within twenty (20) days after written notice thereof is given to

the Employee by the Corporation, or, (iii) the commission by the Employee of an

act involving embezzlement or fraud against the Corporation (other than

non-material expense account issues) or commission or conviction of a felony or

(iv) the repeated use by the Employee of alcohol in a manner which impairs his

duties or the use of any controlled substance other than under a physician's

prescription.

 

      7. Termination Without Cause. The Corporation may, with the approval of a

majority of the Board of Directors of the Corporation, terminate the employment

of the Employee hereunder at any time during the Term of Employment without

"cause" (such termination being hereinafter called a "Termination Without

Cause") by giving the Employee notice of such termination. Upon the giving of

such notice, termination shall take effect immediately.

 

      8. Voluntary Termination. Any termination of the employment of the

Employee hereunder otherwise then as a result of an Involuntary Termination, a

Termination For Cause or a Termination Without Cause shall be deemed to be a

"Voluntary Termination". A Voluntary Termination shall be deemed to be effective

immediately upon receipt of notice to the Corporation of such termination.

 

      9. Effect of Termination of Employment.

 

      (a) Upon the termination of the Employee's employment hereunder pursuant

to a Voluntary Termination or a Termination For Cause, neither the Employee nor

his beneficiary or estate shall have any further rights or claims against the

Corporation under this Agreement except

 

 

                                       6

<PAGE>

 

to receive:

 

            (i) the unpaid portion of the Base Salary provided for in Section

      4(a), computed on a pro rata basis to the date of termination; and

 

            (ii) reimbursement for any expenses for which the Employee shall not

      have theretofore been reimbursed as provided in Section 5(e).

 

            (iii) any amounts due and owing to the Employee by the Corporation

      under any benefit plan.

 

      (b) Upon the termination of the Employee's employment hereunder pursuant

to Disability or death neither the Employee nor his beneficiary or estate shall

have any further rights or claims against the Corporation under this Agreement

except to receive payments equal to that provided for in Section 5(a), if

applicable, and Section 9(a) hereof and any other benefits available under the

Corporation's Benefits Plans.

 

      (c) Upon the termination of the Employee's employment hereunder pursuant

to a Termination Without Cause, neither the Employee nor his beneficiary or

estate shall have any further rights or claims against the Corporation under

this Agreement except to receive a termination payment equal to that provided

for in Section 9(a) hereof, plus an aggregate amount equal to twelve (12) months

Base Salary, payable in twelve (12) equal monthly installments and the

continuation of medical and dental benefits and life insurance for the same

twelve (12) month period to the extent such benefits were being provided to

Employee at the time of termination. Upon completion of the initial twelve (12)

month period, should the Employee continue to be unemployed and actively

conducting a job search, Employee will be eligible for continued termination

payments for up to six (6) months Base Salary, payable in six (6) equal monthly

installments, or until such time as Employee begins other employment, whichever

is earlier.

 

 

                                       7

<PAGE>

 

Employee will continue to be eligible for medical, dental and life insurance

benefits for up to an additional six (6) months or until such time as he begins

other employment, whichever is earlier. In addition, Employee will be eligible

for outplacement services for up to twelve (12) months, and continued for up to

eighteen (18) months provided Employee is actively conducting a job search.

 

      10. General Provisions

 

      (a) This Agreement and any or all terms hereof may not be changed, waived,

discharged, or terminated orally, but only by way of an instrument in writing

signed by the parties.

 

      (b) This Agreement shall be governed by and construed in accordance with

the laws of the State of New Jersey, without reference to the conflicts of laws

of the State of New Jersey or any other jurisdiction.

 

      (c) If any portion of this Agreement shall be found to be invalid or

contrary to public policy, the same may be modified or stricken by a Court of

competent jurisdiction, to the extent necessary to allow the Court to enforce

such provision in a manner which is as consistent with the original intent of

the provision as possible. The striking or modification by the Court of any

provision shall not have the effect of invalidating the Agreement as a whole.

 

      (d) Employee acknowledges that he has signed the Corporation's Employee

Non-Competition, Non-Solicitation, Confidential Information And Inventions

Agreement and said agreement is made a part hereof.

 

      (e) This Agreement, together with the Corporation's Employee

Non-Competition, Non-Solicitation, Confidential Information And Inventions

Agreement, constitutes the entire and exclusive agreement between Employee and

Corporation pertaining to the subject matter thereof, and supersedes and

replaces any and all earlier agreements.

 

      11. Notices. Notices and other communications hereunder shall be in

writing and shall

 

 

                                       8

<PAGE>

 

be delivered personally or sent by air courier or first class certified or

registered mail, return receipt requested and postage prepaid, addressed as

follows:

 

If to the Employee:

 

         Sam Owusu-Akyaw

         714 Chatham Court

         Southlake, Texas 76092

 

If to the Corporation:

 

         Osteotech, Inc.

         51 James Way

         Eatontown, New Jersey 07724

         Attn: CEO

 

Copy to:

 

         Kevin Collins, Esq.

         Dorsey & Whitney LLP

         250 Park Avenue

         New York, New York 10177

 

All notices and other communications given to any party hereto in accordance

with the provisions of this Agreement shall be deemed to have been given on the

date of delivery if personally delivered; on the business day after the date

when sent if sent by air courier; and on the third business day after the date

when sent if sent by mail, in each case addressed to such party as provided in

this Section or in accordance with the latest unrevoked direction from such

party.

 

      12. Headings. The section headings contained in this Agreement are for

reference purposes only and shall not affect in any way the meaning or

interpretation of this Agreement.

 

      13. Assignment. This Agreement is personal in its nature and the parties

hereto shall not, without the consent of the other, assign or transfer this

Agreement or any rights or obligations hereunder; provided, however, that the

provisions hereof shall inure to the benefit of, and be binding upon (i) each

successor of the Corporation, whether by merger, consolidation, transfer of all

 

 

                                       9

<PAGE>

 

or substantially all assets, or otherwise and (ii) the heirs and legal

representatives of the Employee.

 

      IN WITNESS WHEREOF, the parties have duly executed this Agreement

effective as of the date first above written.

 

 

                                             OSTEOTECH, INC.

 

                                             By:________________________

                                             Name: Richard W. Bauer

                                             Title: Chief Executive Officer

 

 

                                             EXECUTIVE

 

                                             By:________________________

                                             Name: Sam Owusu-Akyaw

                                             Title: President And Chief

                                                    Operating Officer

 

 

 

#Top of the Document

 

                                                                   Exhibit 10.62

 

                                 OSTEOTECH, INC.

 

                     AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

 

     THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT is effective as of the 1st day

of January 2006 (the "Effective Date") between OSTEOTECH, INC., a Delaware

corporation (the "Corporation") and Sam Owusu-Akyaw (the "Employee").

 

                                   WITNESSETH:

 

     WHEREAS, the Corporation and the Employee have entered into that certain

Employment Agreement, effective as of July 2, 2004 (the "Employment Agreement"),

pursuant to which the Corporation retained the Employee as President and Chief

Operating Officer; and

 

     WHEREAS, the Corporation and the Employee now desire to retain the Employee

as President and Chief Executive Officer and to maintain such employment upon

the terms and conditions set forth in the Employment Agreement, except as such

terms and conditions are modified in this Amendment.

 

     NOW, THEREFORE, in consideration of the mutual covenants and obligations

hereinafter set forth, the parties hereto agree as follows:

 

     1. Section 2 of the Employment Agreement is hereby amended and restated to

read in its entirety as follows:

 

          "2. Duties. The Employee shall be employed in an executive capacity as

     the President and Chief Executive Officer of the Corporation. The Employee

     shall perform such duties and services and shall be allocated such

     resources, consistent with his position, as may be assigned to him from

     time to time by the Board of Directors of the Corporation. In furtherance

     of the foregoing, the Employee hereby agrees to perform well and faithfully

     the aforesaid duties and responsibilities. During the Term of the

     Employment, the Corporation shall provide the Employee with an office,

     secretarial and other support services at its headquarters as may be

     required for the Employee to perform the duties assigned to him hereunder."

 

     2. Section 4(a) of the Employment Agreement is hereby amended and restated

to read in its entirety as follows:

 

          "(a) During the Term of Employment, the Corporation (or at the

     Corporation's option, any subsidiary or affiliate thereof) shall pay to the

     Employee an annual base salary ("Base Salary") of Three hundred seventy

     thousand dollars ($370,000), payable in installments as is the policy of

     the Corporation with respect to employees of the Corporation at

     substantially the same employment level as the Employee, but in no event

     less frequently than once per month. Thereafter, the Base Salary shall be

     subject to increase at the option and in the sole discretion of the Board

     of Directors of the Corporation."

 

<PAGE>

 

     3. Section 4(b) of the Employment Agreement is hereby amended and restated

to read in its entirety as follows:

 

          "(b) Employee shall be eligible for an annual bonus as determined by

     the Board of Directors of the Corporation based on Employee's performance.

     The bonus payment to Employee for a calendar year is contingent upon the

     Employee being retained as an employee of the Corporation at the time such

     payments are made. In calendar year 2006, the employee shall be eligible

     for a target bonus of 50% of Base Salary, based upon the full calendar

     year."

 

     4. Section 4(f)(vi) of the Employment Agreement is hereby amended and

restated to read in its entirety as follows:

 

          "(vi) A one-time relocation payment of two hundred thousand dollars

     ($200,000) to help defray the incidental expenses related to relocation.

     This payment will be made upon Employee's physical relocation to New

     Jersey, and will be considered regular income and taxed as such."

 

     5. Section 6 of the Employment Agreement is hereby amended to delete the

phrase "or the Chief Executive Officer" from the second sentence thereof.

 

     6. Section 9(c) of the Employment Agreement is hereby amended and restated

to read in its entirety as follows:

 

          "(c) Upon the termination of the Employee's employment hereunder

     pursuant to a Termination Without Cause, neither the Employee nor his

     beneficiary or estate shall have any further rights or claims against the

     Corporation under this Agreement except to receive a termination payment

     equal to that provided for in Section 9(a) hereof, plus an aggregate amount

     equal twenty-four (24) months Base Salary, payable in twenty-four (24)

     equal monthly installments and the continuation of medical and dental

     benefits and life insurance for the same twenty-four (24) month period to

     the extent such benefits were being provided to Employee at the time of

     termination. In addition, Employee will be eligible for outplacement

     services for up to twenty-four (24) months as necessary."

 

     7. Section 11 of the Employment Agreement is hereby amended and restated to

read in its entirety as follows:

 

          "11. Notices. Notices and other communications hereunder shall be in

     writing and shall be delivered personally or sent by air courier or first

     class certified or registered mail, return receipt requested and postage

     prepaid, addressed as follows:

 

          If to the Employee:

 

                                 Sam Owusu-Akyaw

                                 714 Chatham Court

                                 Southlake, Texas 76092

 

          If to the Corporation:

 

 

                                       -2-

 

<PAGE>

 

                                 Osteotech, Inc.

                                 51 James Way

                                 Eatontown, New Jersey 07724

                                 Attn: Executive Vice President & Chief

                                       Financial Officer

 

          Copy to:

 

                                 Osteotech, Inc.

                                 51 James Way

                                 Eatontown, New Jersey 07724

                                 Attn: Chairman of the Board

 

          Copy to:

 

                                 Kevin Collins, Esq.

                                 Heller Ehrman LLP

                                 7 Times Square

                                 New York, New York 10036

 

     All notices and other communications given to any party hereto in

     accordance with the provisions of this Agreement shall be deemed to have

     been given on the date of delivery if personally delivered; on the business

     day after the date when sent if sent by air courier; and on the third

     business day after the date when sent if sent by mail, in each case

     addressed to such party as provided in this Section or in accordance with

     the latest unrevoked direction from such party."

 

     8. Other than as set forth in this Amendment, all of the terms and

conditions of the Employment Agreement shall continue in full force and effect.

 

     9. This Amendment shall be governed by and construed in accordance with the

laws of the State of New Jersey, without reference to the conflicts of laws of

the State of New Jersey or any other jurisdiction.

 

                            [signature page follows]

 

 

                                       -3-

 

<PAGE>

 

     IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 to

Employment Agreement effective as of the date first above written.

 

                                        OSTEOTECH, INC.

 

 

                                        By: /s/ Mark Burroughs

                                            ------------------------------------

                                        Name: Mark Burroughs

                                        Title: Executive Vice President & Chief

                                               Financial Officer

 

 

                                        EMPLOYEE:

 

 

                                        By: /s/ Sam Owusu-Akyaw

                                            ------------------------------------

                                            Sam Owusu-Akyaw

 

#Top of the Document

 

 

 

 

EX-10.3 4 c79224exv10w3.htm EXHIBIT 10.3

Exhibit 10.3

OSTEOTECH, INC.

AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT

THIS AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT is effective as of the 31st day of December 2008, between OSTEOTECH, INC., a Delaware corporation (the “Corporation”) and Sam Owusu-Akyaw (the “Employee”).

WITNESSETH:

WHEREAS, the Corporation and the Employee have entered into that certain Employment Agreement, effective as of the 2nd day of July 2004 (the “Employment Agreement”), pursuant to which the Corporation retained the Employee as President and Chief Operating Officer and have previously amended that agreement; and

WHEREAS, the Corporation and the Employee now desire to further amend the terms of the Employment Agreement principally for the purpose of bringing it into compliance with the requirements of section 409A of the Internal Revenue Code of 1986, as amended.

NOW, THEREFORE, in consideration of the mutual covenants and obligations hereinafter set forth, the parties hereto agree as follows:

1. Section 2 is amended by adding thereto the following sentence:

The Employee’s most current, title, duties and compensation will be found in the permanent employment files in the Corporation’s Human Resources Department.

2. Section 9 of the Employment Agreement is hereby amended by adding thereto the following:

 

(d)

 

409A Payment Trigger. For the purpose of this Section 9, for the purpose of paying all amounts subject to section 409A of the Internal Revenue Code and for the purpose of qualifying for the exemption from 409A for separation pay due to involuntary separation from service without cause (the so-called “2X exception”), all references to termination of employment, terminate employment, termination date and other derivatives of those words shall be construed and applied to mean Separation From Service.

 

 

(e)

 

409A Delay. Notwithstanding the foregoing, to the extent that any payment due hereunder is: (i) deferred compensation subject to section 409A of the Internal Revenue Code, and (ii) is payable to a specified employee (as that term is defined in section 409A), and (iii) is payable when the Corporation is a publicly traded company (as defined in section 409A), and (iv) is payable on account of the specified employee’s Separation From Service, payment of any part of such amount that would have been made during the six (6) months following the Separation From Service shall not then be paid but shall rather be paid on the first day of the seventh (7th) month following the Separation From Service.

 

 


 

 

(i)

 

Identifying Specified Employees. For this purpose, specified employees shall be identified by the Corporation (I) on a basis consistent with regulations issued under section 409A, and (II) as required by regulations issued under section 409A, on a basis consistently applied to all plans, programs, contracts, agreements, etc. maintained by the Corporation that are subject to section 409A.

 

(ii)

 

Interpretation. It is expressly intended that, to the maximum extent permitted by law, benefits under this Agreement shall be exempt from section 409A (e.g., as a separation pay plan that provides for separation pay only upon an involuntary separation from service without cause). To the extent that section 409A is applicable to this Agreement, this Agreement shall be construed and administered to comply with the rules of section 409A. Neither the Corporation nor any of its officers, directors, agents or affiliates shall be obligated, directly or indirectly, to the Employee or any other person for any taxes, penalties, interest or like amounts that may be imposed on the Employee or other person on account of any amounts under this Agreement or on account of any failure to comply with any Code section.

 

 

(f)

 

Separation From Service. As used in this Agreement, the term “Separation From Service” (and derivatives of that phrase such as “Separates,” and “Separated From Service”) shall mean a severance of the Employee’s employment relationship with the Corporation and all affiliates, if any, for any reason other than the Employee’s death, as determined subject to the following:

 

(i)

 

Facts and Circumstances & 20% Rule. Whether a Separation From Service has occurred is determined based on whether the facts and circumstances indicate that the Corporation and Employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Employee would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding thirty-six (36) month period (or the full period of services to the Corporation and all affiliates if the Employee has been providing services to the Corporation and all affiliates less than thirty-six (36) months). A transfer from employment with the Corporation to employment with an affiliate of the Corporation shall not constitute a Separation From Service. For this purpose “affiliate” shall be determined in accordance with regulations issued under section 409A of the Internal Revenue Code but using an eighty percent (80%) ownership test.

 

2


 

 

(ii)

 

Leaves of Absence. A Separation From Service shall not be deemed to occur while the Employee is on military leave, sick leave or other bona fide leave of absence if the period does not exceed six (6) months or, if longer, so long as the Employee retains a right to reemployment with the Corporation or an affiliate under an applicable statute or by contract. If the period of leave exceeds six (6) months and the Employee does not retain a right to reinstatement under an applicable statute or by contract, the Separation From Service is deemed to occur on the first date immediately following the six (6) month period. For this purpose, a leave is bona fide only if, and so long as, there is a reasonable expectation that the Employee will return to perform services for the Corporation or an affiliate. Notwithstanding the foregoing, a twenty-nine (29) month period of absence will be substituted for such six (6) month period if the leave is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of no less than six (6) months and that causes the Employee to be unable to perform the duties of his or her position of employment.

3. Other than as set forth in this Amendment, all of the terms and conditions of the Employment Agreement shall continue in full force and effect.

4. This Amendment shall be governed by and construed in accordance with the laws of the State of New Jersey, without reference to the conflicts of laws of the State of New Jersey or any other jurisdiction.

IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 2 to Employment Agreement effective as of the date first above written.

 

 

 

 

 

 

 

OSTEOTECH, INC.

 

EMPLOYEE:

 

 

 

 

 

 

 

By:

 

/s/ Mark H. Burroughs

 

By:

 

/s/ Sam Owusu-Akyaw

 

 

 

 

 

 

 

Name:

 

Mark H. Burroughs

 

Name:

 

Sam Owusu-Akyaw

Title:

 

EVP/CFO

 

Title:

 

President and Chief Executive Officer

 

3

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FORM OF CHANGE IN CONTROL AGREEMENT
 
                                                                   Exhibit 10.61
 
                           CHANGE IN CONTROL AGREEMENT
 
            AGREEMENT by and between Osteotech, Inc., a Delaware corporation
(the "Company"), and ____________ (the "Executive"), dated as of the ___ day of
_________________, 2002.
 
            The Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its stockholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change in Control (as
defined in Section 1(e)) of the Company. The Board believes it is imperative to
diminish the distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change in Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change in Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change in Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and that such compensation and benefits are
competitive with those of other corporations. Therefore, in order to accomplish
these objectives, the Board has caused the Company to enter into this Agreement.
 
            NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
 
1. Certain Definitions.
 
            For purposes of this Agreement:
 
            (a) An "Affiliate" means any member of the same affiliated group
(within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code"),determined without regard to Section 1504(b) of the Code),
that includes the Company.
 
            (b) The Executive's "Base Period Compensation" is (i) the average
annual "Compensation" (as defined below) which was includible in his gross
income for his base period (i.e., his most recent five taxable years or such
lesser number of taxable years or portions thereof during which the Executive
performed services for the Company ending before the date of the Change in
Control); and (ii) if Executive's base period includes a short taxable year or
less than all of a taxable year, compensation for such short or incomplete
taxable year shall be annualized for the base period. (In annualizing
compensation, the frequency with which payments are expected to be made over an
annual period shall be taken into account. Thus, any amount of compensation for
such a short or incomplete taxable year that represents a payment that would not
be made more than once per year shall not be annualized). For purposes of this
definition, Executive's "Compensation" shall mean the sum of the Executive's
base salary plus any cash bonuses included in Executive's taxable compensation
for federal income tax purposes and reported to Executive and Internal Revenue
Service ("IRS"). Compensation shall not include any amount, other than base
salary and cash bonuses, such as the reporting of previously deferred
compensation or gain realized upon exercise of any non qualified stock options.
 
<PAGE>
 
            (c) The "Commencement Date" shall mean the first date during the
Change in Control Period (as defined in Section 1(d)) that a Change in Control
(as defined in Section 1(e)) occurs.
 
            (d) The "Change in Control Period" shall mean the period commencing
on the date hereof and ending on the third anniversary of the date hereof;
provided, however, that commencing on the first anniversary of the date hereof,
and on each successive annual anniversary of the date hereof (such date and each
annual anniversary thereof shall be hereinafter referred to as the "Renewal
Date"), the Change in Control Period shall be automatically extended so as to
terminate three years from such Renewal Date, unless at least sixty (60) days
prior to the Renewal Date the Company shall give notice to the Executive that
the Change in Control Period shall not be so extended.
 
            (e) "Change in Control" shall mean:
 
                  (i) a "Board Change" which, for purposes of this Agreement,
            shall have occurred if a majority of the seats (not counting vacant
            seats) on the Company's Board were to be occupied by individuals who
            were neither (A) nominated by a majority of the Incumbent Directors
            nor (B) appointed by directors so nominated. An "Incumbent Director"
            is a member of the Board who has been either (A) nominated by a
            majority of the directors of the Company then in office or (B)
            appointed by directors so nominated, but excluding, for this
            purpose, any such individual whose initial assumption of office
            occurs as a result of either an actual or threatened election
            contest or other actual or threatened solicitation of proxies or
            consents by or on behalf of a Person other than the Board; or
 
                  (ii) the acquisition by any individual, entity or group
            (within the meaning of Section 13(d)(3) or 14(d)(2) of the
            Securities Exchange Act of 1934, as amended (the "Exchange Act") (a
            "Person") of beneficial ownership (within the meaning of Rule 13d-3
            promulgated under the Exchange Act) of a majority of the then
            outstanding voting securities of the Company (the "Outstanding
            Company Voting Securities"); provided, however, that the following
            acquisitions shall not constitute a Change in Control: (A) any
            acquisition by the Company, or (B) any acquisition by any employee
            benefit plan (or related trust) sponsored or maintained by the
            Company or any corporation controlled by the Company, or (C) any
            public offering, private placement or other issuance by the Company
            of its voting securities; or
 
                  (iii) a merger or consolidation of the Company with another
            entity in which neither the Company nor a corporation that, prior to
            the merger or consolidation, was a subsidiary of the Company, shall
            be the surviving entity; or
 
                  (iv) a merger or consolidation of the Company following which
            (A) the Company or a corporation that, prior to the merger or
            consolidation, was a subsidiary of the Company shall be the
            surviving entity and (B) a majority of the Outstanding Company
            Voting Securities is owned by a Person or Persons who
 
 
                                       2
<PAGE>
 
            were not beneficial owners (within the meaning of Section 13(d)(3)
            or 14(d)(2) of the Exchange Act) of a majority of the Outstanding
            Company Voting Securities immediately prior to such merger or
            consolidation; or
 
                  (v) a voluntary or involuntary liquidation of the Company; or
 
                  (vi) a sale or disposition by the Company of at least 80% of
            its assets in a single transaction or a series of transactions
            (other than a sale or disposition of assets to a subsidiary of the
            Company in a transaction not involving a Change in Control or a
            change in control of such subsidiary).
 
2. Employment Period.
 
            (a) Term of Employment. Commencing on the Commencement Date and
ending on the first anniversary of such date (the "Employment Period"), the
Executive hereby agrees to remain in the employ of the Company, and the Company
hereby agrees to continue the Executive in its employ, in accordance with, and
subject to, the terms and provisions of this Agreement, in the capacity of
[insert title], responsible for, among other things, [insert duties] of the
Company and, subject to the general supervision of the [insert Board or Chief
Executive Officer or other officer, as appropriate] such other duties and
responsibilities as are not inconsistent with the express terms of this
Agreement.
 
            (b) Position and Duties.
 
                  (i) During the Employment Period, (A) the Executive's position
            (including status, offices, titles and reporting requirements),
            authority, duties and responsibilities shall be in accordance with
            Section 2(a) hereof and (B) the Executive's services shall be
            performed at the location where the Executive was employed
            immediately preceding the Commencement Date or any office which is
            the headquarters of the Company and is less than fifteen (15) miles
            from such location.
 
                  (ii) During the Employment Period, and excluding any periods
            of vacation and sick leave to which the Executive is entitled, the
            Executive agrees to devote reasonable attention and time during
            normal business hours to the business and affairs of the Company
            and, to the extent necessary to discharge the responsibilities
            assigned to the Executive hereunder, to use the Executive's
            reasonable best efforts to perform faithfully and efficiently such
            responsibilities. During the Employment Period it shall not be a
            violation of this Agreement for the Executive to (A) serve on
            corporate, civic or charitable boards or committees, (B) deliver
            lectures, fulfill speaking engagements or teach at educational
            institutions, and (C) manage personal investments, so long as such
            activities do not interfere with the performance of the Executive's
            responsibilities as an employee of the Company in accordance with
            this Agreement.
 
 
                                       3
<PAGE>
 
            (c) Compensation.
 
                  (i) Base Salary. During the Employment Period, the Executive
            shall receive an annual base salary ("Annual Base Salary") in an
            amount at least equal to that which he was receiving immediately
            prior to the Change in Control.
 
                  (ii) Incentive, Savings Retirement and Stock Option Plans.
            During the Employment Period, the Executive shall be entitled to
            participate in all incentive, savings, retirement and stock option
            plans, practices, policies and programs applicable generally to
            other peer executives of the Company, but in no event shall such
            plans, practices, policies and programs provide the Executive with
            opportunities and benefits less favorable than those in effect and
            applicable to the Executive immediately preceding the Change in
            Control.
 
                  (iii) Benefit Plans. During the Employment Period, the
            Executive and/or the Executive's family, as the case may be, shall
            be eligible for participation in and shall receive all benefits
            under welfare benefit plans, practices, policies and programs
            provided by the Company (including, without limitation, medical,
            prescription, dental, disability, salary continuance, employee life,
            group life, accidental death and travel accident insurance plans and
            programs) to the extent applicable generally to other peer
            executives of the Company, but in no event shall such plans,
            practices, policies and programs provide the Executive with benefits
            which are less favorable than such plans, practices, policies and
            programs in effect and applicable to the Executive immediately
            preceding the Change in Control.
 
                  (iv) Expenses. During the Employment Period, the Executive
            shall be entitled to receive prompt reimbursement for all reasonable
            employment related expenses incurred by the Executive in accordance
            with the policies, practices and procedures of the Company which
            shall not be less favorable than those in effect immediately
            preceding the Change in Control.
 
                  (v) Office and Support Staff. During the Employment Period,
            the Executive shall be entitled to an office or offices of a size
            and with furnishings, and to exclusive personal secretarial and
            other assistance, which shall be at least equal to that provided to
            the Executive by the Company immediately preceding the Change in
            Control.
 
                  (vi) Vacation. During the Employment Period Executive shall be
            entitled to paid vacations at least equal to that to which the
            Executive was entitled immediately preceding the Change in Control.
 
                  (vii) Options. Upon a Change in Control all options to
            purchase shares of the Company's Common Stock held by Executive (the
            "Options"), whether or not vested, shall vest and become exercisable
            in accordance with their terms immediately prior to the effective
            date of such Change in Control (and Executive will be provided a
            reasonable opportunity to exercise such Options prior to such
 
 
                                       4
<PAGE>
 
            effective date), notwithstanding anything to the contrary contained
            in the option certificates or any plan covering the Options
            (collectively, the "Plan") Upon a Change in Control all Options held
            by Executive shall be exercisable in accordance with their terms for
            such securities or property to which Executive would have been
            entitled had Executive exercised such Options prior to such Change
            in Control, notwithstanding anything to the contrary contained in
            any Plan covering such Options. Upon a Change in Control pursuant to
            Section 1(e)(iii) or 1(e)(v), all Options held by Executive, whether
            or not vested, shall terminate as of the effective date of such
            Change in Control to the extent not previously exercised, provided
            that Executive shall have been provided with a reasonable
            opportunity to exercise such options prior to such effective date,
            notwithstanding anything to the contrary contained in the Plan
            covering such Options. Notwithstanding the foregoing, the terms of
            [(1) the Option Agreement for the option to purchase [__________]
            shares of Common Stock granted to the Executive on July 31, 1997
            (the "Option Agreement") and (2)] any agreement entered into between
            the Executive and the Company granting an Award (as defined in the
            2000 Stock Plan approved by the stockholders of the Company at the
            2000 annual meeting of stockholders of the Company (the "2000
            Plan")) pursuant to the 2000 Plan (an "Award Agreement") and not the
            terms of this Agreement shall govern with respect to such options or
            Awards in the event of a Change in Control.
 
3. Termination of Employment.
 
            (a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 3(d) of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the thirty (30) days after such receipt,
the Executive shall not have returned to full-time performance of the
Executive's duties. For purposes of this Agreement, "Disability" shall mean a
physical or mental condition which prohibits Executive from performing his
duties hereunder for a continuous six (6) month period or for a total of six (6)
months during any eighteen (18) month period.
 
            (b) Just Cause. Executive's employment during the Employment Period
may be terminated by the Company for Just Cause. For purposes hereof, "Just
Cause" shall mean:
 
                  (i) the commission by Executive of a willful act of material
            fraud in the performance of his duties on behalf of the Company; or
 
                  (ii) the conviction of Executive for commission of a felony in
            connection with the performance of his duties on behalf of the
            Company.
 
 
                                       5
<PAGE>
 
Prior to termination for Just Cause, the Board shall by a majority vote have
declared that Executive's termination is for Just Cause specifically stating the
basis for such determination.
 
            (c) Good Reason. Executive's employment during the Employment Period
may be terminated by Executive with Good Reason. For purposes hereof, "Good
Reason" shall mean:
 
                  (i) the assignment to Executive of any duties of lesser
            status, dignity and character than his duties immediately prior to
            the Change in Control or a substantial reduction in the nature or
            status of his responsibilities from those in effect immediately
            prior to the Change in Control;
 
                  (ii) any failure by the Company to comply with the provisions
            of Section 2(c);
 
                  (iii) relocation of Executive's office to a location which is
            more than fifteen (15) miles from the location in which Executive
            principally worked for the Company immediately prior to the Change
            in Control; or his being required by the Company in order to perform
            duties of substantially equal status, dignity and character to those
            duties he performed immediately prior to the Change in Control to
            travel on the Company's business to a substantially greater extent
            than is consistent with his business travel obligations immediately
            prior to a Change in Control;
 
                  (iv) the failure by the Company to comply with Section 6(a),
            provided that the successor has received at least twenty (20) days'
            prior written notice from the Company or the Executive of the
            requirements of Section 6(a); or,
 
                  (v) the voluntary termination by the Executive for any reason
            at any time after the 180th day immediately following a Change in
            Control.
 
For purposes of this Sections 3(c) any good faith determination of "Good Reason"
made by the Executive shall in all cases be conclusive; provided, however, that
for purposes of Sections 3(c)(i), (ii), (iii) and (iv), Executive shall have
given the Company prior written notice thereof and not less than twenty (20)
days to cure such "Good Reason".
 
            (d) Notice of Termination. Any termination by the Company for Just
Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereby given in accordance with Section 7. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) specifies the Date of
Termination (as defined below) (which date shall be not more than thirty (30)
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Just Cause shall not waive any right
of the Executive or the Company hereunder or preclude the Executive or the
 
 
                                       6
<PAGE>
 
Company from asserting such fact or circumstance in enforcing the Executive's or
the Company's rights hereunder.
 
            (e) Date of Termination. "Date of Termination" means the date the
Company or the Executive specifies as the date of termination in the Notice of
Termination or if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be.
 
4. Obligations of Company upon Termination.
 
            (a) Termination by Company for Just Cause. If at any time on or
prior to the 180th day following the Commencement Date, the Executive's
employment shall be terminated by the Company for Just Cause, then, Executive
shall receive all then accrued pay, benefits, executive compensation and fringe
benefits, including (but not limited to), pro rata bonus and incentive plan
earnings through the Date of Termination, plus the amount of any compensation
previously deferred by the Executive, in each case to the extent theretofore
unpaid. The foregoing salary and cash bonus payments shall be deemed
compensation payable for the duties to be performed by Executive pursuant to
Section 2. If at any time after the 180th day following the Commencement Date,
the Executive's employment shall be terminated by the Company for Just Cause,
then the Executive shall be entitled to the payment and benefits described in
Section 4(b), below.
 
            (b) Termination by Executive for Good Reason; Termination by the
Company at Any Time Other Than For Just Cause; Termination by the Company For
Just Cause After the 180th Day Following the Commencement Date; Termination Upon
Expiration of the Employment Period.
 
            If (i) the Company shall terminate the Executive's employment at any
time other than for Just Cause; or, (ii) the Company shall terminate Executive's
employment for Just Cause after the 180th day following the Commencement Date;
or, (iii) the Executive shall terminate his employment at any time for Good
Reason; or (iv) the Executive's employment with the Company shall terminate upon
the expiration of the Employment Period, in addition to any other sums, benefits
or compensation otherwise payable to him by the Company:
 
                  (i) Executive shall receive, no later than the next pay period
            following the Date of Termination, all then accrued pay, benefits,
            executive compensation and fringe benefits, including (but not
            limited to), his pro rata bonus and incentive plan earnings accrued
            through the Date of Termination, plus the amount of any compensation
            previously deferred by the Executive, in each case to the extent
            theretofore unpaid;
 
                  (ii) Executive shall receive, at the Company's expense,
            medical, health and disability benefits which are substantially
            similar to the benefits the Company is providing him immediately
            preceding the Change in Control for a period of thirty-six (36)
            months immediately following the Date of Termination;
 
 
                                       7
<PAGE>
 
                  (iii) Executive shall receive an amount equal to the sum of
            (A) 300% of his Base Period Compensation, plus (B) interest thereon
            for the period beginning on the Commencement Date through the date
            or dates of payment, at a rate equal to 120% of the applicable
            Federal rate, determined under Section 1274(d) of the Code,
            compounded semiannually;
 
                  (iv) Except in the case of a termination by the Company for
            Just Cause or a voluntary termination by the Executive in accordance
            with Section 3(c)(v), Executive shall receive the balance of all
            pay, benefits, compensation and fringe benefits, including (but not
            limited to), pro rata salary, bonus and incentive plan earnings
            payable through the remainder of the Employment Period; and
 
                  (v) Except in the case of a termination by the Company for
            Just Cause or a voluntary termination by the Executive in accordance
            with Section 3(c)(v), Executive shall be entitled to a private
            office with furnishings and secretarial and other reasonable
            services for the period beginning with the Date of Termination and
            ending on the first anniversary thereof.
 
The foregoing payments and benefits shall be deemed compensation payable for
duties to be performed by Executive pursuant to Section 2. Except for the
payments and benefits described in Sections 4(b)(i), 4(b)(ii), and 4(b)(v) the
sums due pursuant to this Section 4(b) shall be paid in one lump-sum payable no
later than sixty (60) days after the Date of Termination. All sums of money due
hereunder shall be subject to appropriate withholding and statutory
requirements. Executive shall not be required to mitigate the amount of any
payment provided for in this Section 4(b) by seeking other employment or
otherwise. Notwithstanding anything stated in this Section 4(b) to the contrary,
Company shall not be required to provide medical, health and/or disability
benefits to the extent such benefits would duplicate benefits received by
Executive in connection with his employment with any new employer.
 
            The determination of the amounts and benefits payable to the
Executive pursuant to Sections 4(b)(i), 4(b)(iii) and 4(b)(iv) (the "Combined
Amount") shall first be made by the Company in good faith, and the Company shall
notify the Executive of the Combined Amount as soon as possible after the Date
of Termination, but in no event later than forty-five (45) days prior to the
payment date of the sums due under Section 4(b)(iii) and 4(b)(iv). If the
Executive disagrees with the Company's determination of the Combined Amount,
then within ten (10) days after the date of such notification to the Executive,
the Executive shall notify the Company of such disagreement, the extent of such
disagreement (the "Disputed Amount") and the amount that is undisputed (the
"Undisputed Amount"). The Undisputed Amount shall be paid in one lump-sum
payable sixty (60) days after the Date of Termination, subject to appropriate
withholding and statutory requirements. If the Company disagrees with the
Executive's determination of the Combined Amount, then within ten (10) days
after the date of such notification to the Company, it shall furnish Executive
with a written appraisal of the Combined Amounts (the "First Appraisal")
prepared by an independent certified public accountant regularly employed by the
Company (the "First Appraiser"). If Executive disagrees with the amounts
determined pursuant to the First Appraisal, then within ten (10) days after
notice of the First Appraisal, he shall furnish the Company with a written
appraisal of the Combined Amount (the "Second Appraisal") prepared by an
independent certified public accountant (the "Second
 
 
                                       8
<PAGE>
 
Appraiser"). Within ten (10) days after notice of the Second Appraisal, the
First Appraiser and the Second Appraiser shall meet and shall endeavor, within
ten (10) days of such meeting, to agree upon the Combined Amount and notify the
Company and the Executive thereof; provided, however, that if they are unable to
agree upon the Combined Amount, then, within (10) days of such meeting, they
shall engage an independent certified public accountant (the "Third Appraiser")
and notify the Company and the Executive of their engagement of the Third
Appraiser, whose determination of the Combined Amount, if any, shall be final
and conclusive and binding on the Company and the Executive. Within ten (10)
days after notice of such engagement, the Third Appraiser shall determine the
Combined Amount and notify the Company and the Executive of his determination
(the "Final Amount"). Except for the benefits described in Sections 4(b)(ii) and
4(b)(v), the Final Amount, as adjusted by any prior payment of the Undisputed
Amount or any payment made pursuant to Section 4(b)(i), shall be paid in one
lump-sum payable on the later of (i) sixty (60) days after the Date of
Termination, or (ii) twenty (20) days after notification of the Final Amount, in
either case subject to appropriate withholding and statutory requirements;
provided, however, that notwithstanding the foregoing, the Executive shall have
the option to decline the benefits described in Section 4(b)(ii) no later than
ten (10) days prior to such payment date.
 
            (c) Disability or Death. If the Executive's employment during the
Employment Period is terminated at any time by reason of the Executive's
Disability or death, this Agreement shall terminate without further obligations
to the Executive, his estate or legal representative, as the case may be, except
that the Company shall (i) pay to Executive within sixty (60) days after the
Date of Termination (A) amounts due and owing under Sections 4(b)(i) and
4(b)(iii) and (B) Executive's Annual Base Salary for the lesser of the six (6)
month period following the Date of Termination or the remaining portion of the
Employment Period, reduced in the case of Disability by amounts received by
Executive under any employee disability policy maintained by the Company for the
benefit of Executive and (ii) provide Executive, and his immediate family, as
the case may be, with the benefits provided by Section 4(b)(ii).
 
            (d) Additional Payment. Upon a Change in Control, Executive shall be
entitled to a payment (the "Additional Payment") equal to the product of (A)
[__________] multiplied by (B) the amount by which (i)(x) the value of the
consideration per share received or to be received by the shareholders of the
Company in connection with such Change in Control event or (y) in the event the
Change in Control does not result in any payment to the shareholders of the
Company, the average of the last reported sale price of the Company's Common
Stock for the five (5) trading days immediately preceding the effective date of
such Change in Control, exceeds (ii) $8.50. Such Additional Payment shall be
paid to Executive within five (5) business days after the effectiveness of such
Change in Control, subject to all withholdings required by law.
 
5. Nonexclusivity of Rights.
 
            Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or practice
provided by the Company and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have
under any contract or agreement with the Company. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy,
 
 
                                       9
<PAGE>
 
practice or program of or any contract or agreement with the Company at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement, except as explicitly
modified by this Agreement.
 
6. Successors; Binding Agreement.
 
            (a) The Company will require any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company) to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
 
            (b) 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.
 
7. Notices.
 
            All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and shall be deemed to have been given
when delivered by hand and acknowledged by receipt or when mailed at any general
or branch United States Post Office enclosed in a registered or certified
postpaid envelope and addressed to the address of the respective party stated
below or to such changed address as the party may have provided to the other
party by notice in accordance herewith.
 
If to the Company:
 
         Osteotech, Inc.
         51 James Way
         Eatontown, New Jersey 07724
         Attention: Corporate Secretary
 
         With a copy to:
 
         Dorsey & Whitney LLP
         250 Park Avenue
         New York, NY 10177
         Attn: Kevin T. Collins, Esq.
 
If to the Executive:
 
         _________________________
 
         _________________________
 
         _________________________
 
 
                                       10
<PAGE>
 
8. Miscellaneous.
 
            This Agreement may not be waived, modified or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by
Executive and such officers of the Company as may be specifically designated by
its Board. The failure of either party to this Agreement to object to any breach
by the other party or the non-breaching party's conduct or forbearance shall not
constitute a waiver of that party's rights to enforce this Agreement. 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 any subsequent breach by such
other party or any similar or dissimilar provisions or conditions at the same or
any prior or subsequent time. Except for that certain employment agreement dated
as of [________________ __, 20__] and entered into by and between the Company
and the Executive (the "Employment Agreement"), [the Option Agreement] and any
Award Agreement, no agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The Company and
Executive agree that to the extent any of the terms of the Employment Agreement
and this Agreement conflict, it is their intention that Executive in each case
receive the benefits under that agreement which are most favorable to the
Executive. In this regard, it is expressly agreed that the terms of this
Agreement that relate to a Change in Control (as defined in this Agreement)
shall be controlling over the terms of the Employment Agreement that relate to a
Change in Control. It is expressly agreed that the terms of the Option Agreement
and any Award Agreement (the "Stock Incentive Agreements") relating to the
vesting and exercise of any option or Award represented by such Stock Incentive
Agreements shall be controlling over the terms of this Agreement that relate to
the vesting and exercise of options and Awards. The validity, interpretation,
construction and performance of this Agreement shall be governed by the internal
laws of the State of New Jersey, without giving any effect to any conflict of
laws.
 
9. Severability.
 
            The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
 
10. Survival.
 
            The obligations of the parties under this Agreement shall survive
the term of this Agreement.
 
11. EMPLOYMENT PRIOR TO CHANGE IN CONTROL.
 
            THE EXECUTIVE AND THE COMPANY ACKNOWLEDGE THAT, EXCEPT AS OTHERWISE
PROVIDED IN THE EMPLOYMENT AGREEMENT, OR ANY RENEWAL, EXTENSION OR REPLACEMENT
THEREOF, THE EMPLOYMENT OF THE EXECUTIVE BY THE COMPANY IS, AND PRIOR TO THE
COMMENCEMENT DATE WILL CONTINUE TO BE, "AT WILL" AND, PRIOR TO THE COMMENCEMENT
DATE, MAY BE TERMINATED BY EITHER THE EXECUTIVE OR THE COMPANY AT ANY TIME UPON
SIXTY (60) DAYS' PRIOR TO WRITTEN NOTICE. MOREOVER, IF PRIOR
 
 
                                       11
<PAGE>
 
TO THE COMMENCEMENT DATE, THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY
TERMINATES, THEN THE EXECUTIVE SHALL HAVE NO FURTHER RIGHTS UNDER THIS
AGREEMENT.
 
                                       OSTEOTECH, INC.
 
                                       By:
                                           -------------------------------------
                                            Name:
                                            Title:
 
 
                                       EXECUTIVE
 
 
                                       ----------------------------------------
 
 
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