Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated as of September
27, 2001 (the "Date of this Agreement"), is made by and between CardioGenesis
Corporation, a California corporation (the "Company"), and Xxxxxxx X. Xxxxx (the
"Executive").
WHEREAS, the Company wishes to employ Executive on the terms set
forth below.
WHEREAS, Executive wishes to accept such employment.
Accordingly, the parties hereto agree as follows:
1. Term. The Company hereby employs Executive, and Executive hereby
accepts such employment, for an initial term commencing as of the Date of this
Agreement and ending on the third anniversary of such date, unless sooner
terminated in accordance with the provisions of Section 4 or Section 5; with
such employment to continue thereafter for successive one-year periods in
accordance with the terms of this Agreement on each anniversary of the Date of
this Agreement (subject to termination as aforesaid) unless either party
notifies the other party in writing not less than thirty (30) days before
expiration of the initial term and each annual renewal thereof (the period
during which Executive is employed hereunder being hereinafter referred to as
the "Term") of an intent not to renew this Agreement. Upon execution of this
Agreement, that certain letter agreement by and between Executive and the
Company, dated as of October 16, 2000, shall terminate and shall be of no
further force or effect.
2. Duties. During the Term, Executive shall be employed by the Company
as its Chief Executive Officer or in such other management position as the
Company shall determine, and as such, Executive shall faithfully perform for the
Company the duties and have the powers customary for such position. The
Executive shall devote substantially all of his or her business time and effort
to the performance of Executive's duties hereunder, and shall work primarily at
the Company's main business offices.
3. Compensation.
3.1 Salary. The Company shall pay Executive during the Term a salary
at the rate of Three Hundred Thirty Thousand Dollars ($330,000) per annum (the
"Annual Salary"), in accordance with the customary payroll practices of the
Company applicable to senior executives, provided the payments are no less
frequent than monthly (or, if there is no such policy, payments shall be
semi-monthly). The Annual Salary shall be annually reviewed by the Company for
possible increases. The Annual Salary shall be subject to possible further
increase from time to time in the sole discretion of the Board of Directors of
the Company (the "Board") or such committee of the Board as they shall designate
for such purpose from time to time. Any increased Annual Salary shall thereupon
be the "Annual Salary" for the purposes hereof. The
Executive's Annual Salary shall not be decreased without his or her prior
written consent at any time during the Term.
3.2 Incentive Compensation. During the Term, Executive shall be
eligible to receive, in addition to his or her Annual Salary, a bonus (the
"Bonus") of up to 35% of the Annual Salary. The amount of such Bonus and any
performance standards or goals required to be attained in order to receive such
Bonus shall be set by the Board or such committee of the Board as they shall
designate for such purpose from time to time. The Bonus shall be calculated on
or before January 31 and paid not later than the end of the first quarter
following the year for which the Bonus is being paid.
3.3 Stock Options. All stock options to purchase shares of the
Company's Common Stock granted to Executive prior to the Date of this Agreement
and all stock options granted to Executive during the Term of this Agreement
shall become fully vested immediately upon (i) a termination of Executive by the
Company without Cause (defined in Section 5.1(a) below), or a termination by
Executive for Good Reason (defined in Section 5.2(a) below) (a "Triggering
Event") or (ii) a Change of Control, defined below, of the Company. In addition,
upon the occurrence of a Triggering Event, all vested stock options then held by
Executive shall remain exercisable for a period of eighteen (18) months from the
date of Executive's termination rather than the period provided for in the
Notice of Grant with respect to such option; provided, however, that if
Executive's employment is terminated with Cause or by Executive without Good
Reason, no such extension of the exercise period shall occur; and provided
further, however, that in no event shall the exercise period extend later than
the expiration of the term of such option as set forth in the applicable Notice
of Grant. For purposes of this Agreement "Change of Control" shall be deemed to
have occurred if as a result of a tender offer, other acquisition, merger,
consolidation or sale or transfer of assets, any person(s) (as used in Sections
13(d) or 14(d) of the Securities Exchange Act of 1934 ("SEA")) becomes the
beneficial owner (as defined in Rule 13(d)-3 of the SEA) of a total of fifty
percent (50%) or more of either the outstanding shares of Company's stock or
Company's assets.
3.4 Benefits. Except otherwise provided herein, Executive shall
participate in any group life, medical or disability insurance plans, health
programs, retirement plans, fringe benefit programs and similar benefits that
may be available to other senior executives of the Company generally, on the
same terms as such other executives, to the extent that Executive is eligible
under the terms of such plans or programs as they may be in effect from time to
time. Company will provide coverage for Executive under the Company's health
benefits plan and will pay 100% of the cost of spouse and dependent coverage.
Coverage under the health benefits plan will be in effect commencing with
Executive's employment.
3.5 Expenses. The Company shall pay or reimburse Executive for all
ordinary and reasonable out-of-pocket expenses actually incurred (and, in the
case of reimbursement, paid) by Executive during the Term in the performance of
Executive's services under this Agreement, provided that Executive submits proof
of such expenses, with the properly completed forms as prescribed from time to
time by the Company, no later than thirty (30) days after the end of the monthly
period in which such expenses have been so incurred.
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4. Termination upon Death or Disability. If Executive dies during the
Term, the Term shall terminate as of the date of death, and the obligations of
the Company to or with respect to Executive shall terminate in their entirety
upon such date except as otherwise provided under this Section 4. If Executive
becomes disabled for purposes of the long-term disability plan of the Company
for which Executive is eligible, or, in the event that there is no such plan, if
Executive by virtue of ill health or other disability is unable to perform
substantially and continuously the duties assigned to him for more than 180
consecutive or non-consecutive days out of any consecutive 12-month period, then
the Company shall have the right, to the extent permitted by law, to terminate
the employment of Executive upon notice in writing to Executive. Upon
termination of employment due to death or disability, (i) Executive (or
Executive's estate or beneficiaries in the case of the death of Executive) shall
be entitled to receive any Annual Salary and other benefits earned and accrued
under this Agreement prior to the date of termination (and reimbursement under
this Agreement for expenses incurred prior to the date of termination),
including, but not limited to a pro-rata Bonus for the year of termination
(which in no event shall be less than a similar pro-rata portion of Executive's
bonus for the preceding year) to be paid at such time as Bonuses are ordinarily
paid; (ii) in the case of termination due to disability, Executive shall be
entitled to receive his or her Annual Salary for the lesser of twelve (12)
months following such termination, or the period until long term disability
insurance benefits commence under disability coverage furnished by the Company
to Executive; and (iii) Executive (or, in the case of Executive's death,
Executive's estate and beneficiaries) shall have no further rights to any other
compensation or benefits hereunder on or after the termination of employment, or
any other rights hereunder, except as otherwise provided in the plans and
policies of the Company.
5. Certain Terminations of Employment.
5.1 Termination for Cause; Termination of Employment by Executive
without Good Reason.
(a) For purposes of this Agreement, "Cause" shall mean
Executive's:
(i) conviction of (or pleading nolo contendere to) a felony
involving moral turpitude, or any crime involving the Company;
(ii) engagement in the performance of his or her duties
hereunder or otherwise to the material detriment of the Company, in
willful misconduct, willful or gross neglect, fraud, misappropriation or
embezzlement;
(iii) After notice from the Board, and, if requested by
Executive, the opportunity to be heard by the Board, the failure to
adhere to the lawful and reasonable directions of the Board that are
consistent with the terms of this Agreement, or the failure to devote
substantially all of the business time and effort to the Company (except
for any activities expressly authorized by the Company);
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(iv) material breach of any of the provisions of Section 6;
or
(v) breach in any material respect of the terms and
provisions of this Agreement and failure to cure such breach within
fifteen (15) days following written notice from the Company specifying
such breach; provided however, if Executive delivers written notice to
Company during the fifteen (15) day cure period requesting to be heard
at a meeting of the Board, his or her termination under this Section
5.2(a)(v) shall not be effective until such Board meeting at which
Executive had an opportunity to be heard.
provided that Cause shall not exist except on written notice given to Executive
at any time not more than sixty (60) days following the occurrence of any of the
events described above (or, if later, the Company's knowledge thereof).
(b) The Company may terminate Executive's employment hereunder
for Cause, and Executive may terminate his employment for any or no reason on at
least 30 days' and not more than 60 days' written notice given to the Company.
If the Company terminates Executive for Cause, or Executive terminates his
employment and the termination by Executive is not covered by Section 4 or 5.2,
(i) Executive shall receive Annual Salary and other benefits earned and accrued
under this Agreement prior to the termination of employment (and reimbursement
under this Agreement for expenses incurred prior to the termination of
employment); and (ii) Executive shall have no further rights to any other
compensation or benefits hereunder on or after the termination of employment, or
any other rights hereunder, except as otherwise provided in the plans and
policies of the Company.
5.2 Termination by the Company without Cause; or by Executive for
Good Reason.
(a) For purposes of this Agreement, "Good Reason" shall mean,
unless otherwise consented to in writing by Executive;
(i) a reduction in Annual Salary or in benefits of Executive,
or the failure of the Company to timely make any payment due to
Executive;
(ii) any action by the Company that results in a material
diminution in Executive's position, authority, duties or
responsibilities;
(iii) a material breach of any provision of this Agreement by
the Company;
(iv) relocation of Executive outside of the Orange County,
California area without Executive's consent; or
(v) a failure of the Company to have a successor entity
specifically assume this Agreement.
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Notwithstanding the foregoing, (i) Good Reason shall not be deemed to exist
unless notice of termination on account thereof (specifying a termination date
no later than thirty (30) days from the date of such notice) is given no later
than sixty (60) days after the time at which the event or condition purportedly
giving rise to Good Reason first occurs or arises (or when Executive first
becomes aware of such circumstances); and (ii) if there exists (without regard
to this clause (ii)) an event or condition that constitutes Good Reason, the
Company shall have thirty (30) days from the date notice of such a termination
is given to cure such event or condition and, if the Company does so fully cure
such event or condition, such event or condition shall not constitute Good
Reason hereunder.
(b) The Company may terminate Executive's employment at any time
for any reason or no reason and Executive may terminate Executive's employment
with the Company for Good Reason. A notice of non-renewal shall constitute a
termination of employment by the Company without Cause.
(c) If the Company terminates Executive's employment and the
termination is not covered by Section 4 or 5.1, or Executive terminates his
employment for Good Reason, Executive shall receive:
(i) Annual Salary and other benefits earned and accrued under
this Agreement prior to the termination of employment (and reimbursement
under this Agreement for expenses incurred prior to the termination of
employment);
(ii) an amount equal to three (3) times Executive's Annual
Salary, payable in thirty-six (36) monthly installments over the
thirty-six (36) month period following the termination date;
(iii) an amount equal to three (3) times the maximum Bonus
possible for the year of termination, payable in thirty-six (36) monthly
installments over the thirty-six (36) month period following the
termination date;
(iv) reimbursement for COBRA payments equal to employee's
regular monthly contributions toward Executive's health insurance
benefits for the eighteen (18) month period following the termination
date if Executive elects COBRA benefits; and
(v) the right to exercise any or all vested stock options for
a period of eighteen (18) months after the termination date.
In order to be eligible to receive the benefits specified under sections
5.2(c)(ii) - (iv), Executive must execute a general release of claims in a form
acceptable to the Company, which shall not apply to the Company's obligations
described above in this Section 5.2(c).
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6. Invention, Non-Disclosure and Non-Solicitation.
6.1 Inventions and Patents.
(a) The Executive will promptly and fully disclose to the Company
any and all inventions, discoveries, improvements, ideas, developments, designs,
products, formulas, software programs, processes, techniques, technology,
know-how, negative know-how, data, research, technical data and original works
of authorship (whether or not patentable or registrable under patent, copyright
or similar statutes and including all rights to obtain, register, perfect and
enforce those proprietary interests) that are related to or useful in the
Company's present or future business or result from use of property owned,
leased, or contracted for by the Company and which Executive develops, makes,
conceives or reduces to practice during Executive's employment by the Company,
either solely or jointly with others (collectively, the "Developments"). All
such Developments shall be the sole property of the Company, and Executive
hereby assigns to the Company, without further compensation, all of Executive's
right, title and interest in and to such Developments and any and all related
patents, patent applications, copyrights, copyright applications, trademarks,
service marks and trade names in the United States and elsewhere.
(b) The Executive shall disclose promptly to an officer or to
attorneys of the Company in writing any inventions, discoveries, improvements,
ideas, developments, designs, products, formulas, software programs, processes,
techniques, technology, know-how, negative know-how, data, research, technical
data and original works of authorship, whether or not patentable or registrable
under patent, copyright or similar statutes, Executive may conceive, make,
develop or work on, in whole or in part, solely or jointly with others during
Executive's employment, for the purpose of permitting the Company to determine
whether they constitute Developments. The Company shall receive such disclosures
in confidence.
(c) The Executive will keep and maintain adequate and current
written records of all Developments (in the form of notes, sketches, drawings
and as may be specified by the Company), which records shall be available to and
remain the sole property of the Company at all times.
(d) The Executive will assist the Company in obtaining and
enforcing patent, copyright, trademark, service marks and other forms of legal
protection for the Developments in any country. Upon request, Executive will
sign all applications, assignments, instruments and papers and perform all acts
necessary or desired by the Company to assign all such Developments fully and
completely to the Company and to enable the Company, its successors, assigns and
nominees, to secure and enjoy the full and exclusive benefits and advantages
thereof.
(e) The Executive understands that Executive's obligations under
this section will continue after the termination of Executive's employment with
the Company and that during Executive's employment Executive will perform such
obligations without further compensation, except for reimbursement of expenses
incurred at the request of the Company. The Executive further understands that
if Executive is not employed by the Company as an
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employee at the time Executive is requested to perform any obligations under
this section, Executive shall receive for such performance a reasonable per diem
fee, as well as reimbursement of any expenses incurred at the request of the
Company.
(f) Any provision in this Agreement requiring Executive to assign
Executive's rights in all Developments shall not apply to an invention that
qualifies fully under the provisions of California Labor Code section 2870, the
terms of which are set forth below:
(i) Any provision in an employment agreement which provides
that an employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own time
without using the employer's equipment, supplies, facilities, or trade
secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual
or demonstrably anticipated research or development of the
employer; or
(2) Result from any work performed by the employee for
the employer.
(ii) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be assigned under subdivision (i), the
provision is against the public policy of this state and is
unenforceable.
6.2 Proprietary Information.
(a) The Executive recognizes that Executive's relationship with
the Company is one of high trust and confidence by reason of Executive's access
to and contact with the trade secrets and confidential and proprietary
information of the Company including, without limitation, information not
previously disclosed to the public regarding current and projected revenues,
expenses, costs, profit margins and any other financial and budgeting
information; marketing and distribution plans and practices; business plans,
opportunities, projects and any other business and corporate strategies; product
information; names, addresses, terms of contracts and other arrangements with
customers, suppliers, agents and employees of the Company; confidential and
sensitive information regarding other employees, including information with
respect to their job descriptions, performance strengths and weaknesses, and
compensation; and other information not generally known regarding the business,
affairs and plans of the Company (collectively, the "Proprietary Information").
The Executive acknowledges and agree that Proprietary Information is the
exclusive property of the Company and that Executive shall not at any time,
either during Executive's employment with the Company or thereafter disclose to
others, or directly or indirectly use for Executive's own benefit or the benefit
of others, any of the Proprietary Information.
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(b) The Executive acknowledges that the unauthorized use or
disclosure of Proprietary Information would be detrimental to the Company and
would reasonably be anticipated to materially impair the Company's value.
(c) The Executive's undertakings and obligations under this
Section 6.2 will not apply, however, to any Proprietary Information which: (a)
is or becomes generally known to the public through no action on Executive's
part, (b) is generally disclosed to third parties by the Company without
restriction on such third parties, (c) is approved for release by written
authorization of the Board, (d) is known to Executive other than as a result of
work performed for the Company, or (e) is required to be disclosed by law or
governmental or court process or order.
(d) Upon termination of Executive's employment with the Company
or at any other time upon request, Executive will promptly deliver to the
Company all notes, memoranda, notebooks, drawings, records, reports, written
computer code, files and other documents (and all copies or reproductions of
such materials) in Executive's possession or under Executive's control, whether
prepared by Executive or others, which contain Proprietary Information. The
Executive acknowledges that this material is the sole property of the Company.
6.3 Absence of Restrictions Upon Disclosure and Competition.
(a) The Executive hereby represents that, except as Executive has
disclosed in writing to the Company on Exhibit A attached hereto, Executive is
not bound by the terms of any agreement with any previous employer or other
party to refrain from using or disclosing any trade secret or confidential or
proprietary information in the course of Executive's employment with the Company
or to refrain from competing, directly or indirectly, with the business of such
previous employer or any other party.
(b) The Executive further represent that Executive's performance
of all the terms of this Agreement and as an employee of the Company does not
and will not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by Executive in confidence or in trust prior to his
employment with the Company, and Executive will not disclose to the Company or
induce the Company to use any confidential or proprietary information or
material belonging to any previous employer or others.
6.4 Prohibition on Solicitation of Customers. During the Term and for
a period of two (2) years thereafter, Executive agrees not to, directly or
indirectly, either for Executive or for any other person or entity, solicit any
person or entity to terminate such person's or entity's contractual and/or
business relationship with the Company, nor will Executive interfere with or
disrupt or attempt to interfere with or disrupt any such relationship. None of
the foregoing shall be deemed a waiver of any and all rights and remedies the
Company may have under applicable law.
6.5 Prohibition on Solicitation of Employees, Agents or Independent
Contractors. During the Term and for a period of two (2) years thereafter,
Executive agrees not to solicit any of the employees, agents or independent
contractors of the Company to leave the
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employ of the Company for a competitive company or business. However, Executive
may solicit any employee, agent or independent contractor who voluntarily
terminates his or her employment with the Company after a period of ninety (90)
days have elapsed since the termination date of such employee, agent or
independent contractor. None of the foregoing shall be deemed a waiver of any
and all rights and remedies the Company may have under applicable law.
6.6 Other Obligations. The Executive acknowledges that the Company
from time to time may have agreements with other persons or with the U.S.
Government or agencies thereof, which impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. The Executive
agrees to be bound by all such obligations and restrictions which are made known
to Executive and to take all action necessary to discharge the obligations of
the Company under such agreements.
6.7 Rights and Remedies upon Breach. The Executive acknowledges and
agrees that any breach by him of any of the provisions of Section 6 (the
"Restrictive Covenants") would result in irreparable injury and damage for which
money damages may not provide an adequate remedy. Therefore, if Executive
breaches any of the provisions of Section, the Company shall have the following
rights and remedies, each of which rights and remedies shall be independent of
the other and severally enforceable, and all of which rights and remedies shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company under law or in equity (including, without limitation, the
recovery of damages) the right and remedy to have the Restrictive Covenants
specifically enforced (without posting bond and without the need to prove
damages) by any court having equity jurisdiction, including, without limitation,
the right to an entry against Executive of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent) against violations, threatened
or actual, and whether or not then continuing, of such covenants.
7. Other Provisions.
7.1 Severability. The Executive acknowledges and agrees that (i) he
has had an opportunity to seek advice of counsel in connection with this
Agreement and (ii) the Restrictive Covenants are reasonable in geographical and
temporal scope and in all other respects. If it is determined that any of the
provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the provisions of this Agreement shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
7.2 Duration and Scope of Covenants. If any court or other
decision-maker of competent jurisdiction determines that any of Executive's
covenants contained in this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, then, after such determination
has become final and unappealable, the duration or scope of such provision, as
the case may be, shall be reduced so that such provision becomes enforceable
and, in its reduced form, such provision shall then be enforceable and shall be
enforced.
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7.3 Arbitration.
(a) Any controversy, dispute, or claim between the parties to
this Agreement, including any claim arising out of, in connection with, or in
relation to the formation, interpretation, performance or breach of this
Agreement shall be settled exclusively by arbitration, before a single
arbitrator, in accordance with this section and the then most applicable rules
of the American Arbitration Association. Judgment upon any award rendered by the
arbitrator may be entered by any state or federal court having jurisdiction
thereof. Such arbitration shall be administered by the American Arbitration
Association. Arbitration shall be the exclusive remedy for determining any such
dispute, regardless of its nature. Notwithstanding the foregoing, either party
may in an appropriate matter apply to a court pursuant to California Code of
Civil Procedure Section 1281.8, or any comparable provision, for provisional
relief, including a temporary restraining order or a preliminary injunction, on
the ground that the award to which the applicant may be entitled in arbitration
may be rendered ineffectual without provisional relief.
(b) In the event the parties are unable to agree upon an
arbitrator, the parties shall select a single arbitrator from a list of nine
arbitrators drawn by the parties at random from the "Independent" (or "Gold
Card") list of retired judges or, at Executive's option, from a list of nine
persons from the Employment Panel and provided by the American Arbitration
Association. If the parties are unable to agree upon an arbitrator from the list
so drawn, then the parties shall each strike names alternately from the list,
with the first to strike being determined by lot. After each party has used four
strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until
an arbitrator is selected.
(c) This agreement to resolve any disputes by binding arbitration
shall extend to claims against any parent, subsidiary or affiliate of each
party, and, when acting within such capacity, any officer, director,
shareholder, employee or agent of each party, or of any of the above, and shall
apply as well to claims arising out of state and federal statutes and local
ordinances as well as to claims arising under the common law. In the event of a
dispute subject to this paragraph the parties shall be entitled to reasonable
discovery subject to the discretion of the arbitrator. The remedial authority of
the arbitrator shall be the same as, but no greater than, would be the remedial
power of a court having jurisdiction over the parties and their dispute. The
arbitrator shall, upon an appropriate motion, dismiss any claim without an
evidentiary hearing if the party bringing the motion establishes that he, she or
it would be entitled to summary judgment if the matter had been pursued in court
litigation. In the event of a conflict between the applicable rules of the
American Arbitration Association and these procedures, the provisions of these
procedures shall govern.
(d) Any filing or administrative fees shall be borne initially by
the party requesting arbitration. The Company shall be responsible for the costs
and fees of the arbitrator, unless Executive wishes to contribute (up to 50%) of
the costs and fees of the arbitrator. The prevailing party in such arbitration,
as determined by the arbitrator, and in any enforcement or other court
proceedings, shall be entitled, to the extent permitted by law, to
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reimbursement from the other party for all of the prevailing party's costs
(including but not limited to the arbitrator's compensation), expenses, and
attorneys' fees.
(e) The arbitrator shall render an award and written opinion, and
the award shall be final and binding upon the parties. If any of the provisions
of this Section 7.3, or of this Agreement, are determined to be unlawful or
otherwise unenforceable, in whole or in part, such determination shall not
affect the validity of the remainder of this Agreement, and this Agreement shall
be reformed to the extent necessary to carry out its provisions to the greatest
extent possible and to insure that the resolution of all conflicts between the
parties, including those arising out of statutory claims, shall be resolved by
neutral, binding arbitration. If a court should find that this Section's
arbitration provisions are not absolutely binding, then the parties intend any
arbitration decision and award to be fully admissible in evidence in any
subsequent action, given great weight by any finder of fact, and treated as
determinative to the maximum extent permitted by law.
(f) Unless mutually agreed by the parties otherwise, any
arbitration shall take place in Orange County, California.
7.4 Covenant to Notify Management. Executive agrees to abide by the
ethics policies of the Company as well as the Company's other rules,
regulations, policies and procedures. Executive agrees to comply in full with
all governmental laws and regulations as well as ethics codes applicable to the
profession. In the event that Executive is aware or suspects the Company, or any
of its officers or agents, of violating any such laws, ethics codes, rules,
regulations, policies or procedures, Executive agrees to bring all such actual
and suspected violations to the attention of the Company immediately so that the
matter may be properly investigated and appropriate action taken. Executive
understands that he is precluded from filing a complaint with any governmental
agency or court having jurisdiction over wrongful conduct unless Executive has
first notified the Company of the facts and permits it to investigate and
correct the concerns.
7.5 Statute of Limitations. Executive and the Company hereby agree
that there shall be a one year statute of limitations for the filing of any
requests for arbitration or any lawsuit relating to this Agreement or the terms
or conditions of Executive's employment by the Company. If such a claim is filed
more than one year subsequent to Executive's last day of employment it shall be
precluded by this provision, regardless of whether or not the claim has accrued
at that time.
7.6 Notices. All notices or deliveries authorized or required
pursuant to this Agreement shall be deemed to have been given when in writing
and when (i) deposited in the U.S. mail, certified, return receipt requested,
postage prepaid, or (ii) otherwise delivered by hand or by overnight delivery,
against written receipt, by a common carrier or commercial courier or delivery
service addressed to the parties at the following addresses or to such other
addresses as either may designate in writing to the other party:
to the Company: CardioGenesis Corporation
00000 Xxxxx Xxxxxx Xxxxx
00
Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
to Executive: Xxxxxxx X. Xxxxx
00 Xxxxxxxx
Xxxx xx Xxxx, XX 00000
7.7 Entire Agreement. This Agreement, together with the option
agreements described in Section 3.3, contain the entire agreement between the
parties with respect to the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, with respect thereto.
7.8 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such
right, power or privilege.
7.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
7.10 Assignment. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive; any purported
assignment by Executive in violation hereof shall be null and void. In the event
of any sale, transfer or other disposition of all or substantially all of the
Company's assets or business, whether by merger, consolidation or otherwise, the
Company may assign this Agreement and its rights hereunder; provided that such
assignment shall not limit the Company's liability under this Agreement to
Executive.
7.11 Withholding. The Company shall be entitled to withhold from any
payments or deemed payments any amount of tax withholding required by law.
7.12 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.
7.13 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
7.14 Survival. Anything contained in this Agreement to the contrary
notwithstanding, the provisions of Sections 6, 7.3, 7.5, 7.11 and 7.16, and the
other provisions of this Section 7 (to the extent necessary to effectuate the
survival of Sections 6, 7.3, 7.5, 7.11 and
12
7.16), shall survive termination of this Agreement and any termination of
Executive's employment hereunder.
7.15 Headings. The headings in this Agreement are for reference only
and shall not affect the interpretation of this Agreement.
7.16 Indemnification; Directors and Officers Insurance. To the
fullest extent permitted by law, the Company shall indemnify, defend and hold
harmless Executive from and against all actual or threatened actions, suits or
proceedings, whether civil or criminal, administrative or investigative,
together with all attorneys' fees and costs, fines, judgments or settlements
imposed upon or incurred by Executive in connection therewith, that arise from
Executive's employment by, or serving as an officer of, the Company, so long as
Executive acted or refrained from acting legally and in good faith or reasonably
believed that his actions or refraining from acting were legal and performed or
omitted in good faith. Company currently has directors and officers liability
insurance and will use reasonable efforts to maintain such insurance coverage
during the term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed their names as of the
day and year first above written.
EMPLOYER:
CARDIOGENESIS CORPORATION, a California
corporation
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Its: Vice President and Chief Financial Officer
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxx
13
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INVENTION, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
Exhibit A
Please list terms of any agreements with any previous employer or other
party which restrains you from using or disclosing any trade secret or
confidential or proprietary information in the course of your employment with
CardioGenesis Corporation or restrains you from competing directly or indirectly
with the business of such previous employer or any other party.
NONE
Date Signed by
Executive: /s/ Xxxxxxx X. Xxxxx
-------------------------
September 27, 2001 Xxxxxxx X. Xxxxx
Reviewed and accepted by
CardioGenesis Corporation
On September 27, 2001
By: /s/ J. Xxxxxxx Xxxxxxx
--------------------------------
J. Xxxxxxx Xxxxxxx
Vice President and Chief Financial Officer
