1
Exhibit 10.33
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of January 14, 1999 by and between CARDIOVASCULAR DYNAMICS, INC., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxxx, an individual (the
"Executive").
R E C I T A L
The Company desires to employ Executive in the capacity hereinafter
stated, and the Executive desires to enter into the employ of the Company in
that capacity pursuant to the terms and conditions set forth herein.
A G R E M E N T
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and the Executive,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive as the
Director of Research and Development for Coronary Radiation Catheter Products of
the Company, and the Executive accepts such employment and agrees to devote
substantially all his business time and efforts and skills on such reasonable
duties as shall be assigned to him by the Company commensurate with such
position.
2. TERM. The initial term of the Executive's employment hereunder shall
commence January 14, 1999, ("Effective Date") and shall be for a period of two
(2) years, and shall automatically extend for successive one year periods
following the initial term unless either party delivers written notice to the
other no later than sixty (60) days prior to the end of the second anniversary
of the Effective Date or any successive anniversary of the Effective Date, as
the case may be, of intent not to renew. Executive's employment is subject to
earlier termination as hereafter specified.
3. POSITION AND DUTIES.
3.1 SERVICE WITH THE COMPANY. During the term of this Agreement,
the Executive agrees to perform such reasonable duties and on such basis as
shall be assigned to him from time to time by the Company (the "Company"); such
duties, however, to be commensurate with the Executive's position. In
particular, and without limitation, such duties shall include:
(a) managing projects related to beta emitting balloon
catheters for the treatment or prevention of restenosis, including, without
limitation, supervision of the project for obtaining approvals of (i) an IDE for
the initiation of human clinical trials in the United States, (ii) CE Xxxx
approvals, and (iii) PMA filing and approvals in the United States. In
performing these duties, Executive will work under the guidance of the Radiation
Management Committee.
2
(b) the position of Project Director for Coronary
Radiation Catheter products. In this position, the Executive will manage all
projects to develop such products and coordinate the clinical, regulatory and
quality assurance functions required to bring such products to the commercial
market.
(c) transferring the technology know-how regarding
Coronary Radiation Catheter products to Company Technical and Business
personnel.
(d) Managing other projects as assigned by the Company
President, or his designee.
3.2 NO CONFLICTING DUTIES. Except as provided in Exhibit A
hereto, during the term hereof, the Executive shall not serve as an officer,
director, employee, consultant or advisor to any other business; provided,
however, that the Executive may serve as a director of another corporation so
long as (i) such corporation does not compete, directly or indirectly, with the
Company or any of its Affiliates in the area of Vascular Radiation Products, and
(ii) such services do not adversely affect Executive's ability to perform his
duties under this Agreement, unless such other service is approved by the Board
of Directors of the Company. For purposes of this Agreement, the term
"Affiliate" means any corporation, association or other business entity of which
more than 50% of the total voting power of shares of stock entitled to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled by the Company. Notwithstanding the foregoing, nothing contained
herein shall prevent Executive from making and expending any time of passive
personal investments and/or expending reasonable amounts of time for educational
and charitable activities. Except as provided in Exhibit A hereto, the Executive
confirms that he is under no contractual commitment inconsistent with his
obligations set forth in this Agreement.
4. COMPENSATION.
4.1 BASE SALARY. As compensation for all services to be rendered
by the Executive under this Agreement, the Company shall pay to the Executive a
base salary of $115,000 ("Base Salary"), which shall be paid on a regular basis
in accordance with the Company's normal payroll procedures and policies. The
amount of the Base Salary shall be reviewed by the President of the Company,
which may annually increase Executive's Base Salary in amounts consistent with
industry practices as determined in his sole discretion. Executive's
performance, the performance of the Company and such other factors as the
President deems appropriate shall also be considered.
4.2 INCENTIVE COMPENSATION PLANS. In addition to the Base Salary,
Executive shall be eligible to participate in management incentive compensation
plans approved by the Company's Board of Directors, such participation to be on
terms similar to those afforded to other management employees holding positions
with the Company. In addition to the Base Salary, the Executive shall be
entitled to earn up to twenty percent (20%) of his Base Salary as incentive
compensation. All amounts to which the Executive may be entitled under any
incentive compensation plans shall be subject to the provisions, rules and
regulations of
-2-
3
any such plan which apply to other management employees.
4.3 PARTICIPATION IN BENEFIT PLANS. During the term of this
Agreement, Executive shall be entitled to participate in all employee benefit
plans, profit-sharing, stock options, vacation and other perquisite plans and
programs for which key employees of the Company are generally eligible. The
Executive's participation in any such plan or program shall be subject to the
provisions, rules and regulations thereof that are generally available to all
participants thereon, provided, however, in no event shall Executive's benefits
be less than the benefits described in Exhibit B.
4.4 EXPENSES. In accordance with the Company's policies
established from time to time, the Company will pay or reimburse the Executive
for all reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, provided that Executive submits
appropriate vouchers and expense reports substantiating the amount thereof and
the business purposes for which such expenses were incurred.
5. TERMINATION.
5.1 TERMINATION BY THE COMPANY FOR CAUSE. Any of the following
acts or omissions shall constitute grounds for the Company to terminate the
Executive's employment pursuant to this Agreement for "cause":
(a) Willful misconduct by Executive causing material harm
to the Company but only if Executive shall not have discontinued such misconduct
within 30 days after receiving written notice from the Company describing the
misconduct and stating that the Company will consider the continuation of such
misconduct as cause for termination of this Agreement.
(b) Any material act or omission by the Executive
involving gross negligence in the performance of the Executive's duties to, or
material deviation from any of the policies or directives of, the Company, other
than a deviation taken in good faith by the Executive for the benefit of the
Company;
(d) Any illegal act by the Executive which materially and
adversely affects the business of the Company or any felony committed by
Executive, as evidenced by conviction thereof, provided that the Company may
suspend the Executive with pay while any allegation of such illegal or felonious
act is investigated.
Termination by the Company for cause shall be accomplished by
written notice to the Executive and shall be preceded by a written notice
providing a reasonable opportunity for the Executive to correct his conduct.
5.2 TERMINATION FOR DEATH OR DISABILITY. In addition to
termination for cause pursuant to Section 5.1 hereof, the Executive's employment
pursuant to this Agreement shall be immediately terminated without notice by the
Company (i) upon the death of the Executive or (ii) upon the Executive becoming
totally disabled. For purposes of this Agreement, the term "totally disabled"
means an inability of Executive, due to a physical or
-3-
4
mental illness, injury or impairment, to perform a substantial portion of his
duties for a period of one hundred eighty (180) or more consecutive days, as
determined by a competent physician selected by the Company's Board of Directors
and reasonably agreed to by the Executive, following such one hundred eighty
(180) day period.
5.3 TERMINATION FOR GOOD REASON. Executive's employment pursuant
to this Agreement may be terminated by the Executive for "good reason" if the
Executive voluntarily terminates his employment as a result of any of the
following:
(a) Without the Executive's prior written consent, a
reduction in his then current Base Salary;
(b) Without Executive's prior written consent, a
relocation of the Executive's place of employment outside of Orange County,
California;
(c) Resignation as a result of unlawful discrimination, as
evidenced by a final court order;
(d) A reduction in duties and responsibilities which
results in the Executive no longer having duties described in Section 3.1.; or
(e) The Company materially breaches any provision of this
Agreement.
5.4 TERMINATION WITHOUT CAUSE. The Company may terminate this
Agreement, and the employment of the Executive under this Agreement, without
cause at any time upon at least thirty (30) days prior written notice to the
Executive.
5.5 PAYMENTS UPON REMOVAL OR TERMINATION. If during the term of
this Agreement, the Executive resigns for one of the reasons stated in Section
5.3, or the Company terminates the Executive's service, except as provided in
Sections 5.1 or 5.2 hereof, the Executive shall be entitled to the following
compensation: (i) the portion of his then current Base Salary which has accrued
through his date of termination, (ii) any payments for unused vacation and
reimbursement expenses, which are due, accrued or payable at the date of
Executive's termination, (iii) severance payment in an amount (the "Severance
Amount") equal to Executive's then-current Base Salary, payable for the
remainder of the Term; and (iv) all of Executive's options to purchase shares of
the Company's common stock and restricted stock shall accelerate and
automatically vest by one additional year. Such options shall be exercisable in
accordance with their terms.
All payments required to be made by the Company to the Executive
pursuant to this Section 5.5 shall be paid on a regular basis in accordance with
the Company's normal payroll procedures and policies, including, without
limitation, the Severance Amount which shall be paid at such times and in such
amounts consistent with the Company's normal payroll procedures and policies
over the number of months immediately succeeding the date of termination that is
equal to the number of months of Base Salary payable as the Severance Amount. If
the Company terminates the Executive's employment pursuant to Sections 5.1 or
5.2, or if the Executive voluntarily resigns (except as provided in Section
5.3), then the
-4-
5
Executive shall be entitled to only the compensation set forth in items (i) and
(ii) or the first paragraph of this Section 5.5.
6. ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of the Executive, assign its rights
and obligations under this Agreement to an Affiliate or to any corporation, firm
or other business entity (i) with or into which the Company may merge or
consolidate, or (ii) to which the Company may sell or transfer all or
substantially all of its assets. After any such assignment by the Company, the
Company shall be discharged from all further liability hereunder and such
assignee shall thereafter be deemed to be the Company for the purposes of all
provisions of this Agreement including this Section 6.
7. SUCCESSORS. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
8. MISCELLANEOUS.
8.1 GOVERNING LAW. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of
California.
8.2 PRIOR AGREEMENTS. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understanding with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
8.3 ARBITRATION. In the event of any controversy, claim or
dispute between the parties hereto arising out of or relating to this Agreement,
the matter shall be determined by arbitration, which shall take place in Orange
County, California, under the rules of the American Arbitration Association. The
arbitrator shall be a retired Superior Court judge mutually agreeable to the
parties and if the parties cannot agree such person shall be chosen in
accordance with the rules of the American Arbitration Association. The
arbitrator shall be bound by applicable legal precedent in reaching his or her
decision. Any judgment upon such award may be entered in any court having
jurisdiction thereof. Any decision or award of such arbitrator shall be final
and binding upon the parties and shall not be appealable. The parties hereby
consent to the jurisdiction of such arbitrator and of any court having
jurisdiction to enter judgment upon and enforce any action taken by such
arbitrator. The fees payable to the American Arbitration Association and the
arbitrator shall be paid by the Company.
8.4 WITHHOLDING TAXES. The Company may withhold from any salary
and benefits payable under this Agreement all federal, state, city or other
taxes or amounts as shall be required to be withheld pursuant to any law or
governmental regulation or ruling.
-5-
6
8.5 AMENDMENTS. No amendment or modification of this Agreement
shall be deemed effective unless made in writing signed by the parties hereto.
8.6 NO WAIVER. No term or condition of this Agreement shall be
deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
8.7 SEVERABILITY. To the extent any provision of this Agreement
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
8.8 COUNTERPART EXECUTION. This Agreement may be executed by
facsimile and in counterparts, each of which shall be deemed an original and all
of which when taken together shall constitute but one and the same instrument.
8.9 ATTORNEYS FEES. Should any legal action or arbitration be
required to resolve any dispute over the meaning or enforceability of this
Agreement or to enforce the terms of this Agreement, the prevailing party shall
be entitled to recover its or his reasonable attorneys fees and costs incurred
in such action, in addition to any other relief to which that party may be
entitled.
8.10 NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and may be personally served or sent by United
States Mail, and shall be deemed to have been given when personally served or
two days after having been deposited in the United States Mail, registered mail,
return receipt requested, with first class postage prepaid and properly
addressed as follows:
If to Executive: Xxxxx Xxxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
If to the Company: Cardiovascular Dynamics, Inc.
00000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Chief Executive Officer
8.11 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. Executive
agrees to sign the Company's standard form of employee proprietary information
and inventions agreement.
-6-
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth above.
COMPANY
CARDIOVASCULAR DYNAMICS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X'Xxxxxxx
--------------------------------
Its: President
-------------------------------
EXECUTIVE
/s/ Xxxxx Xxxxxxxx
--------------------------------
Xxxxx Xxxxxxxx
-7-
8
Exhibit A
X. Xxxxxxxx Company Associations
NONE
9
Exhibit B
X. Xxxxxxxx Benefits
--Health Insurance
--Dental Insurance
--Prescription Drug Insurance
--401K Program Participation
--Employee Stock Purchase Program Participation
--Paid Company Holidays
--Paid vacation per company policy
--Reimbursement for all travel on company business
