Exhibit 10.20
AGREEMENT
THIS AGREEMENT (the "Agreement"), effective as of January 1, 2004 by and
between AngioDynamics, Inc., a Delaware corporation (the "Company") and Xxxxxx
X. Xxxxx ("Xxxxx").
WHEREAS, Xxxxx is a current member of the Board of Directors of the Company
(the "Board") and has served as a member of the Board for the past 8 years; and
WHEREAS, the Company recognizes Xxxxx'x past contributions to the Company
and wants to provide for the continuation of his contributions to the Company.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Position. Xxxxx shall provide to the Company certain services, including
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(i) serving as Trustee of the Company's 401(k) savings plan, and (ii) such
other services as may reasonably be requested by the Company from time to
time (collectively, the "Services").
2. Independent Contractor. Xxxxx shall perform the Services as an independent
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contractor and consultant and not as an employee of the Company. The
Company shall not withhold any amounts for taxes from payments made to
Xxxxx. Xxxxx shall be responsible for the payment of all taxes in
connection with amounts paid to him by the Company and shall indemnify the
Company and hold the Company harmless with respect to the payment of all
such taxes.
3. Board of Directors. Xxxxx hereby agrees to resign from the Board when his
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replacement is selected by the Board. Except as provided in Section 5,
Xxxxx shall not receive any compensation for his continued service as a
member of the Board from the effective date of this Agreement until his
resignation.
4. Term. The term of this Agreement shall be thirty-six (36) months,
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commencing on January 1, 2004 and terminating on December 31, 2006 (the
"Term"). Notwithstanding the foregoing, this Agreement shall terminate upon
the earliest to occur of (i) a change in control (as defined in the
Company's standard change in control agreement), (ii) Xxxxx'x death or
(iii) thirty days after the proper giving of notice by one party of a
material breach of this Agreement by the other party (unless such material
breach is cured during such 30-day period).
5. Compensation. In consideration of Xxxxx'x continued service as a member of
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the Board until January 24, 2004, and his performance of the Services,
Xxxxx shall receive thirty-six (36) equal monthly payments of $3,500.00,
payable on the first day of each month commencing January 1, 2004. Xxxxx
shall continue to receive such payments upon his disability, but such
payments shall cease upon the end of the month in which a change in control
or Xxxxx'x death occurs. Except as set forth herein, Xxxxx shall not
receive any additional compensation or payments.
6. Stock Options. The Company shall take all action deemed necessary and
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appropriate so that all Company stock options held by Xxxxx as of December
31, 2003 shall expire on the earlier of (i) December 31, 2006, or (ii) the
10 year anniversary of the original
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grant date of each stock option, provided, that in the event this Agreement
is terminated, all vested stock options shall expire ninety (90) days after
the date of termination.
7. Business Expenses. In addition to the Compensation provided for in Section
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5, during the Term the Company shall reimburse Xxxxx for reasonable travel
expenses incurred consistent with the Company's policies, in connection
with his performance of the Services.
8. Confidentiality. Xxxxx shall execute the Company's standard Nondisclosure
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and Assignment of Inventions Agreement (the "NDA"), which shall prohibit
his use and disclosure of confidential information during the Term and
thereafter until such information no longer constitutes confidential
information.
9. Non-Competition. Provided that the Company shall not be in material breach
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of its obligations under paragraphs 1, 3, 5 and 6 hereof (it being
understood that no such material breach shall be deemed to have occurred
until and unless Xxxxx has provided the Company with written notice of such
material breach and the Company has not cured such breach in all material
respects within thirty days after receipt of such notice), Xxxxx agrees
that during the Term and for a period of twelve (12) months following the
termination or expiration of this Agreement, he shall not in any state or
territory of the United States in which the Company conducts business,
directly or indirectly, own, manage, operate, control, be employed by, be a
shareholder of, be an officer of, participate in, contract with or be
connected in any capacity or any manner with any business that directly or
indirectly (whether through related companies or otherwise) manufactures,
develops, designs, distributes, sells, or markets any product, device or
equipment substantially similar to any product, device or equipment which
during the Term has been manufactured, marketed, sold or distributed by the
Company or any product, device or equipment (unless such product, device or
equipment has been abandoned by the Company or such product, device or
equipment is not competitive with the Company's business) which the Company
was developing or designing during the Term for future manufacturing,
marketing, sale and distribution; provided, however that nothing herein
shall prohibit Xxxxx from owning, directly or indirectly, as a passive
investor, in the aggregate not more than one percent (1%) of the
outstanding publicly traded stock of any company that competes with the
Company. For purposes of this Xxxxxxx 00, X-X-XX, Inc. shall not be deemed
a competitor and nothing herein shall prevent Xxxxx from continuing to
provide services to E-Z-EM, Inc.
10. Miscellaneous.
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10.1. Notices. All notices, requests and other communications hereunder
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must be in writing and shall be deemed to have been duly given only if
delivered personally against written receipt or by facsimile
transmission or mailed by prepaid first class certified mail, return
receipt requested, or mailed by overnight courier prepaid, to the
parties at the following addresses or facsimile numbers:
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If to the Company:
AngioDynamics, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President & CEO
Facsimile: (000) 000-0000
If to Xxxxx:
Xxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx Xx, XX 00000
Facsimile: (000) 000-0000
Any party may from time to time change its address or
facsimile number for the purpose of notices to that party
by a similar notice specifying a new address or facsimile
number, but no such change shall be deemed to have been
given until it is actually received by the party sought to
be charged with its contents.
10.2. Entire Agreement. This Agreement supersedes all prior discussions
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and agreements between the parties with respect to the subject
matter hereof and thereof and contain the sole and entire
agreement between the parties hereto with respect to the subject
matter hereof and thereof. Without limiting the foregoing, all
prior agreements between the Company and Xxxxx provided, however,
the foregoing shall not apply to options, vested or unvested,
previously granted to Xxxxx by the Company or AngioDynamics, Inc.
10.3. Waiver. Any term or condition of this Agreement may be waived at
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any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any
term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any
future occasion. All remedies, either under this Agreement or by
law or otherwise afforded, shall be cumulative and not
alternative.
10.4. Amendment. This Agreement may be amended, supplemented or
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modified only by a written instrument duly executed by or on
behalf of each party hereto.
10.5. No Third Party Beneficiary. The terms and provisions of this
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Agreement are intended solely for the benefit of each party
hereto and their respective successors or permitted assigns, and
it is not the intention of the parties to confer third-party
beneficiary rights, and this Agreement does not confer any such
rights, upon any other person.
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10.6. Assignment; Binding Effect. Neither this Agreement nor any right,
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interest or obligation hereunder of Xxxxx may be assigned (by
operation of law or otherwise) without the prior written consent
of the Company and any attempt to do so shall be void.
10.7. Invalid Provisions. If any provision of this Agreement is held to
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be illegal, invalid or unenforceable under any present or future
law, and if the rights or obligations of any party hereto under
this Agreement shall not be materially and adversely affected
thereby, (a) such provision shall be fully severable, (b) this
Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part
hereof, (c) the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance
herefrom and (d) in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a
part of this Agreement a legal, valid and enforceable provision
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
10.8. Governing Law. This Agreement shall be governed by and construed
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in accordance with the domestic laws of the State of New York,
without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
10.9. Dispute Resolution. Any dispute, controversy or claim between the
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Company and Xxxxx arising from or in connection with this
Agreement (a "Dispute") regardless of the magnitude thereof or
the amount in controversy or whether such Dispute would otherwise
be considered justiciable or ripe for resolution by a court or
arbitral tribunal, shall be submitted to, and finally determined
by, arbitration in accordance with the AAA Commercial Rules. The
arbitration shall be held in New York, New York. Any award
pursuant to such arbitration may be enforced in any court having
competent jurisdiction. The prevailing party shall recover its
legal fees and costs from the non-prevailing party.
10.10. Construction. The parties hereto agree that this Agreement is
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the product of negotiation between sophisticated parties and
individuals, all of whom were represented by counsel, and each of
whom had an opportunity to participate in and did participate in,
the drafting of each provision hereof. Accordingly, ambiguities
in this Agreement, if any, shall not be construed strictly or in
favor of or against any party hereto but rather shall be given a
fair and reasonable construction without regard to the rule of
contra proferentum.
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10.11. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.12. Captions. Captions herein are inserted for reference purposes
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only and shall not affect the interpretation or construction of
this Agreement.
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10.13. Further Assurances. Each party hereto, at its own expense, shall
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deliver all such further instruments and documents as may
reasonably be requested by the other party in order to fully
carry out the intent and accomplish the purposes of the
transactions referred to therein.
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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
as of the date first above written.
E-Z-EM, INC.
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx
Its: President & CEO
