EXHIBIT 10.31
RETIREMENT AND CONSULTING AGREEMENT
THIS Retirement and Consulting Agreement ("Agreement") is made
and entered into by and between Xxxxxx Xxxxx (hereinafter "Young" or "you" or
"your"), and Stereotaxis, Inc. ("Stereotaxis"," "Company" or "we" or "us"). For
and in consideration of the following promises, the parties agree to the
following:
WHEREAS, for medical reasons and following a leave of absence
YOUNG has submitted her resignation from STEREOTAXIS effective December 1, 2003
("Effective Date") and STEREOTAXIS has with regret accepted such resignation.
WHEREAS, the parties acknowledge that Young has made
substantial contributions to the success of Stereotaxis that the parties desire
that YOUNG will continue to contribute financial advisory and transaction
management services to STEREOTAXIS going forward at least until July 31, 2004 or
such later date as is mutually agreed ("Finish Date") on the terms set forth in
this Retirement and Consulting Agreement.
NOW THEREFORE, for and in consideration of the mutual
covenants and undertakings hereinafter set forth, and for other good and
valuable consideration, which each party hereby acknowledges, it is agreed as
follows:
1. Young will provide Stereotaxis with ongoing financial advisory and
transaction management services ("Consulting Services") during
reasonable working hours and including advising as to and conducting
work regarding:
a. Negotiation, documentation and due diligence relating to
strategic alliances and business combinations;
b. Budgeting;
c. Financial modeling and forecasting;
d. Due diligence relating to financing activities including an
initial public offering ("IPO") of the common stock of the
Company and including making presentations to underwriters and
others in this regard;
e. The drafting relating to an IPO;
f. Preparation of audiovisual and verbal presentations for an IPO
"roadshow"; and
g. Investor relations;
and such other services as are mutually agreed. In this regard the
parties agree to minimize Young's air travel subject to providing
reasonably appropriate services to the Company.
2. Young and Stereotaxis may agree upon a later Finish Date, including
agreeing on month to month extensions, on the same terms as set forth
in this agreement.
3. Compensation For Consulting Services. Compensation to Young from
Stereotaxis for the Consulting Services will comprise the cash, stock
and other elements set forth in the Appendix hereto.
4. Standard Release of Claims. Young agrees to execute upon request by
Stereotaxis and effective as at December 1, 2003 the Company's standard
form release of claims applicable in context of a senior executive's
resignation provided that such release is on reasonable commercial
terms.
5. Choice of Law. This Agreement shall be construed and governed by the
laws of the State of Missouri.
6. Modification, Entire Agreement, Severability. The parties acknowledge
that this Agreement and the Standard Release of Claims constitutes the
entire agreement between them superseding all prior written and oral
agreements regarding your separation, and there are no other
understandings or agreements, written or oral, among them on the
subject of your separation. The parties hereto agree that this
Agreement may not be modified, altered, or changed except by a written
agreement signed by the parties hereto. If any provision of this
Agreement is held to be invalid, the remaining provisions shall remain
in full force and effect.
7. Confidential Information. Young agrees to abide by the confidentiality
agreement set forth in your employment agreement signed on January 15,
2001. Young agrees to adhere to this commitment now and in the future.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement, effective as of the Effective Date.
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
STEREOTAXIS, INC.
By:/s/ Xxxx Xxxxx
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Xxxx Xxxxx, Director
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APPENDIX
COMPENSATION FOR CONSULTING SERVICES
Payments and Benefits. In return for the Consulting Services,
Stereotaxis will provide to Young the payments and benefits described
below.
(A) Cash Payments; Loan Repayment. Young will be paid the sum of
$18,200 per month in semi-monthly increments commencing
December 1, 2003. After January 1, 2004, Stereotaxis may
accelerate that monthly payment. Young agrees to repay the
outstanding principal and interest of the Promissory Note
dated November 20, 2001 made by Young in favor of the Company
by exchanging a number of shares of the Company's common stock
owned by Young on a date (the "Exchange Date") which is the
earlier of (i) the date of the pricing of an initial public
offering of the Company's common stock pursuant to a
registration statement filed the Company on Form S-1 with the
SEC (with settlement and exchange of the shares in such case
to occur one day following such closing) or (ii) August 31,
2004 or, if later, the Finish Date. The number of shares that
will be exchanged will be equal to (a) the outstanding
principal and interest on the Promissory Note as of the
Exchange Date, divided by (b) the per share value of the
common stock, which per share value shall be equal to (x) in
the event of an initial public offering, the per share
offering price to the public (before underwriting discounts
and commissions) or (y) otherwise, the then current value per
common share as determined by the Compensation Committee of
the Company. Young agrees that interest will continue to
accrue in respect of the promissory note until the Exchange
Date. The number and value of the shares shall take into
account any stock splits that may be effected in connection
with the initial public offering.
(B) Early Exercise Shares; Stock Options.
(i) Early Exercise Shares. The parties acknowledge
that a certain number of the 400,000 shares of the Company's
Common Stock you purchased pursuant to that certain Early
Exercise Agreement dated as of November 20, 2001 will be
subject to the Purchase Option (as defined in the Early
Exercise Agreement) as of December 1, 2003. Stereotaxis agrees
that it will exercise its Purchase Option for 50,000 of such
shares at $0.30 per share for an aggregate consideration of
$15,000. The parties agree that the Company shall continue to
hold the shares which it currently holds and which are not so
repurchased by the Company in escrow to facilitate the share
exchange described in Section (A) of this Appendix.
Immediately following the determination of the number of
shares to be exchanged, the Company shall, upon receipt of a
stock power from you, issue a certificate to you and deliver
it at your direction for the balance of such shares.
(ii) Stock Options. As to the remaining incentive
stock options granted to you under the Stock Option Agreement
dated February 19, 2002 (25,000 shares) and the Stock Option
Agreement dated May 28, 2003 (150,000 shares), we understand
that you do not currently intend to exercise any options
vested under such agreements within 90 days of the Effective
Date. Accordingly, we will amend those Stock Option Agreements
to provide that they will continue to vest on their current
schedule through the Finish Date, which will cause such
options to be treated as non-qualified options. In the case of
the Stock Option Agreement dated February 19, 2002, this may
require the Company to amend its 1994 Stock Option Plan, and
the Company shall take all reasonable steps to accomplish such
amendment unless there are formidable impediments to achieving
such amendment.
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(C) Performance Bonus. You will receive a performance bonus for
fiscal year 2003 in the amount of Forty-five thousand dollars
($45,000.00). Such bonus will be paid by Stereotaxis at the
same time otherwise paid to eligible employees during calendar
2004.
(D) Indemnification. Stereotaxis will indemnify you and your
estate against any claims made against you in your capacity as
an officer of Stereotaxis for actions arising out of or in the
course of your employment while an officer of Stereotaxis and
for such actions arising out of or in the course of your
consulting services to the Company described above.
(E) Health Insurance Continuation. Stereotaxis shall continue your
current healthcare coverage under the Company's healthcare
policy for the same period set forth in paragraph 1(A) above,
the consulting period, or, if not available, then we will pay
your COBRA payments for said period, after which time such
benefits will cease unless you choose to continue healthcare
benefits pursuant to COBRA.
(F) Vacation Pay. On or by November 30, 2003 or the next following
payroll period, Stereotaxis will pay you all accrued, but
unused vacation compensation.
(G) Moving Expenses. Stereotaxis will reimburse you for your
reasonable moving expenses to Arizona from St. Louis provided
that such reimbursement will not exceed the amount of Ten
thousand dollars ($10,000).
(H) Vested Rights. The parties agree that this Agreement shall not
adversely affect, alter, or extinguish any vested rights you
may have with respect to any pension or 401k plan to which you
are or may be entitled by virtue of your employment with
Stereotaxis, and nothing in this Agreement will prohibit you
from enforcing your rights to any such pension or 401k plan.
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