---

EXHIBIT 10.1

 

FIRST AMENDMENT

TO

EMPLOYMENT AGREEMENT

This First Amendment to Employment Agreement (this “Amendment”), dated effective as of May 29, 2014 (the “Effective Date”) is entered into by and between Uroplasty, Inc., a Minnesota corporation (the “Company”), and Robert C. Kill, a resident of the State of Minnesota (the “Executive”) (together the “Parties”).

 

W I T N E S E T H:

WHEREAS, the Company and the Executive are parties to an Employment Agreement dated as of July 22, 2013, as amended (the “Original Agreement”), pursuant to which the Company employed the Executive;

WHEREAS, the Company and the Executive desire to make certain amendments and supplements to the Original Agreement; and

WHEREAS, subject to the terms and conditions of this Amendment, the Company and the Executive agree to the amendments and supplements to the Original Agreement set forth below.

NOW, THEREFORE, in consideration of the premises, the mutual agreements set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

(a)

Incentive Compensation.  Section 2(b) is hereby amended in its entirety to provide as follows:

“(b)   Incentive Compensation.  Commencing with the fiscal year ending March 31, 2015, the Executive shall be entitled to annual cash incentive compensation based upon achievement of such financial milestones or business milestones, or both, as shall be established annually by the Company’s Compensation Committee, or the Committee of the Board charged with establishing executive compensation, and, with respect to such annual milestones, in consultation with the Executive. The Executive’s targeted annual cash incentive compensation shall be a percentage (not less than 80%) of the Executive’s base salary for the fiscal year for which achievement of the incentive compensation relates and, in the event the Executive exceeds such financial or business milestones, such percentage will be adjusted upwards proportionately, in accordance with the terms of the plan then in effect. The annual incentive compensation shall be payable within 15 days of the completion of the audit of the financial statements for the related fiscal year.”

---

(b)

Participation in Benefit Plans.  Section 2(c)(i) is hereby amended to provide, commencing with the 2014 calendar year, that Executive shall be entitled to “(i) an annual (calendar year) stipend of $36,000 to cover the costs of the Executive’s personal life and disability insurance policies, and”.

(c)

Expenses.  Section 2(d) is hereby amended in its entirety to state as follows:

“(d)  Expenses. The Company will pay or reimburse the Executive for all properly documented, reasonable and necessary out-of-pocket travel and business expenses incurred by him in the performance of his duties under this Agreement, subject to the Company’s normal policies for expense verification, provided that the Executive properly accounts to the Company for all such expenses in accordance with the standard policies of the Company relating to reimbursement of business expenses incurred by its employees.  Reimbursement or payment of an expense under this Section 2(d) will be made or reimbursed pursuant to Company’s guidelines, but in no event later than December 31 of the calendar year following the calendar year in which the expense was incurred.”

(d)

Termination Without Cause.  Section 7(d) is hereby amended in its entirety to provide as follows:

“(d) Without Cause.  At any time and upon thirty (30) days’ prior written notice, either the Executive or the Company may terminate this Agreement and the Executive’s employment.  If (i) the Company terminates the Executive’s employment without Cause during or at the end of any Term, or (ii) this Agreement expires or otherwise terminates at the end of a Term without renewal, or (iii) (A) the Executive voluntarily terminates employment with the Company as a result of: (1) the Company’s imposition of material and adverse changes, without the Executive’s consent, in the Executive’s principal duties, responsibilities, status, reporting relationship, title or authority, or the Company’s assignment of duties inconsistent with the Executive’s position, (2) a material reduction in the Executive’s annual base salary or target annual incentive compensation opportunity, (3) the Company moving its principal executive offices more than 50 miles from its current location without the Executive’s consent, or (4) the Company’s material breach of this Agreement; and (B) such condition remains uncured by the Company after thirty (30) days following receipt of the prior written notice and such notice is provided within ninety (90) days of the existence of such condition, or (iv) within three months prior to or 24 months after a Change of Control (as defined in Section 12(i) of the Plan) during the Term, the Executive’s employment is terminated pursuant to clause 7(d)(i) or (iii), then the Executive will receive from the Company any base salary accrued through the date of termination and reimbursement of expenses, and, provided Executive complies with the other provisions of this Agreement, including without limitation Section 5 above, the Company will provide the Executive with the following severance benefits:

---

The severance pay will be payable in equal monthly installments on the first day of each month over the first year after the date of termination; provided, however, that if the Company determines that the Executive is a “specified employee” (as defined in Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended, (the “Code”) as of the date of termination and that Section 409A of the Code applies with respect to a payment to Executive pursuant to this Section 7(d), the severance pay will commence on the first day of the month following the six-month anniversary of the date of termination (or the date of Executive’s death, if earlier). The Company reserves the right to revise the timing of any payments hereunder in order to comply with Section 409A of the Code.  As a condition to receiving the severance payments provided in this Section 7(d), the Company may require the Executive to execute a full release and waiver of all claims against the Company substantially similar to the form attached hereto as Exhibit 1.  If the Company requires such a release, the Company will further delay the commencement of severance payments until the end of the period of rescission for the release has lapsed.”

---

(a)

From and after the date of this Amendment, each reference in the Original Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Employment Agreement, shall mean and be a reference to the Original Agreement, as amended hereby.

(b)

Except as specifically set forth above, the Original Agreement remains in full force and effect and is hereby ratified and confirmed.

---

IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Employment Agreement to be made, executed and delivered as of the date first above written

 

UROPLASTY, INC			EXECUTIVE
By:	/s/ James Stauner		/s/ Robert Kill
	James Stauner		Robert C. Kill
	Chairman

 

---