EXHIBIT 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 16th day of
August, 2001, by Angiotech Pharmaceuticals (U.S.), Inc., a Washington
corporation (the "Company"), and Xxxxxx X. Xxxxxxxxxxx of 0X 000 X Xxxxxx,
Xxxxxx, XX, 00000 (the "Employee").
BACKGROUND
The Employee has previously been employed by Angiotech Pharmaceuticals,
Inc., a Canadian corporation (Angiotech Canada), which is the parent corporation
of the Company. Angiotech Canada has requested that the Employee resign his
employment with it and commence employment with the Company.
The Company desires to retain the services of the Employee in the
capacity stated herein, and the Employee is willing to be employed by the
Company in such capacity, on the terms and subject to the conditions set forth
in this Agreement. Accordingly, in consideration of the mutual covenants
contained herein, the parties agree as follows:
AGREEMENT
1. POSITIONS AND DUTIES.
1.1 TITLE. The Company hereby agrees to employ the Employee,
and the Employee agrees to serve the Company as its President and Chief
Operating Officer, subject to the terms and conditions set forth in this
Agreement.
1.2 DUTIES. The Employee shall report directly to the Board of
Directors of the Company and perform those duties which are customary with the
position of President and Chief Operating Officer, together with such additional
duties as may be established by the Company's Board of Directors. The Company in
its sole discretion may alter the Employee's job title and/or duties. The
Employee shall devote all of his business time, energy, and skill to the affairs
of the Company and shall discharge his duties honestly, faithfully and to the
best of his ability.
1.3 BOARD MEMBERSHIP. If and to the extent the Employee is
requested to serve on the Board of Directors of the Company, and/or on the Board
of Directors or as an officer of Angiotech Canada, the Employee agrees to serve
in such capacity(ies) without additional compensation. If the Employee is so
requested by the Chairman or Board of Directors of the Company, or of Angiotech
Canada with respect to positions therewith, to resign from a Board or officer
position, whether due to termination of employment or otherwise, the Employee
agrees to so resign.
2. TERM OF AGREEMENT. The term of this Agreement shall begin on the
date first noted above (the "Effective Date") and shall continue until
terminated by either party at such party's sole discretion. The parties agree
that employment hereunder is at will, meaning that either party can terminate
the employment relationship at any time, with or without cause or notice, with
no further obligation to the other except as provided herein.
3. COMPENSATION.
3.1 BASE SALARY. As payment for the services rendered by the
Employee during the Term of this Agreement, the Company shall pay to the
Employee an annualized base salary (the "Base Salary") of $ 400,000 (U.S.) per
year. The Base Salary, as earned, shall be payable on the Company's normal
payroll schedule and is subject to lawfully required withholdings. Increases in
the Base Salary shall be subject to the Board's discretion, exercised from time
to time based on performance and other factors deemed relevant by the Board.
3.2 EMPLOYEE BENEFITS. The Employee shall be entitled to all
employee benefits that the Company may make generally available from time to
time for its comparably situated executive employees, including those available,
if any, under any group health, dental, life or disability insurance plans. The
Company reserves the right to modify, amend, and terminate any benefits and
benefit plans.
3.3 STOCK OPTIONS. The Employee shall be eligible to receive
options to purchase shares of the common stock of Angiotech Canada, as
determined by the Board of Directors of Angiotech Canada. The terms and
conditions of such stock options shall be governed by Angiotech Canada's Stock
Option Plan, which is incorporated herein by reference and which, together with
any stock option agreements with the Employee, shall control such stock options
in all respects.
3.4 BONUS. The Employee will be eligible for bonuses and/or
additional stock options in accordance with any Incentive Plans established from
time to time by the Board of Directors in its discretion or at the Board's
discretion.
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3.5 VACATION. The Employee shall be entitled to vacation which
shall accrue pro rata. The Employee will accrue 3 weeks of vacation per year for
their first 5 years of service and an additional day per year up to a maximum of
4 weeks per year. Unused accrued vacation may be carried over to the following
year in an amount equal to the annual vacation accrual hereunder, or, if
different, the maximum amount allowable under the Company's standard policy for
its employees in effect from time to time. Unused vacation in excess of the
allowed carry over shall be forfeited. The Employee shall also be entitled to
such holidays with full pay as the Company generally affords its employees.
3.6 DEDUCTIONS FROM COMPENSATION. The Company shall be
entitled to deduct and withhold from all compensation payable to the Employee
all amounts it reasonably determines are required to be deducted or withheld
pursuant to any present or future law, ordinance, regulation, order, writ,
judgment, or decree requiring such deduction and withholding.
3.7 TRAVEL AND OTHER EXPENSES. The Company shall pay or
promptly reimburse the Employee for those travel, promotional and similar
expenditures incurred by Employee which the Company determines are reasonably
necessary for the proper discharge of the Employee's duties under this Agreement
and for which the Employee submits appropriate receipts and indicates the
amount, date, location and business character.
3.8 PRIOR SERVICE CREDIT. Employee shall resign his employment
with Angiotech Canada, and the Employee's credited employment service with
Angiotech Canada shall be treated as credited employment service with the
Company under any and all applicable benefit, compensation and similar such
plans to the extent permitted by law, and, to the extent applicable, by the
third party provider(s) of such benefits or plans.
3.9 ADDITIONAL BENEFITS. In addition to the benefits set forth
above, the Employee shall also be entitled to receive during the term of
employment those benefits set forth on EXHIBIT A hereto. The Employee shall be
solely responsible for personal income tax liability, if any, arising from the
Company's provision of such benefits.
4. TERMINATION.
4.1 TERMINATION FOR CAUSE. The Company may terminate this
Agreement at any time without prior notice for "cause" (as defined below) with
no severance or other obligation to the Employee, other than payment of the
amount of unpaid earned Base Salary accrued pursuant to Section 3.1 to the date
of such termination. For purposes of this Agreement "cause" shall consist of (a)
any act of dishonesty or fraud by the Employee; (b) the Employee's conviction of
a crime involving fraud, embezzlement or any other act of moral turpitude; (c)
the Employee's gross negligence or willful misconduct in the performance of his
duties under, or any material breach of, this Agreement or the
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Confidentiality, Inventions, and Non-competition Agreement; (d) the Employee's
engagement in acts seriously detrimental to the business or reputation of the
Company; (e) the Employee's failure to abide by the lawful policies and
directives of the Board of Directors; or (f) the Employee's absence from work
for a period in excess of one hundred twenty (120) days in any twelve month
period regardless of the reason, including death or disability. A resignation by
the Employee at any time after the occurrence of an event which would constitute
cause for termination by the Company shall be considered a termination by the
Company for cause. In the event of the termination of Employee's employment
under this or any other provision of this Agreement, the Employee's rights with
respect to any and all stock options previously and hereafter granted by
Angiotech Canada shall be governed in all respects by the applicable Stock
Option Plan under which such options were granted.
4.2 TERMINATION WITHOUT CAUSE. Subject to the conditions
stated in Section 4.4, the Company may terminate this Agreement, without cause,
at any time for any reason, or no reason, and with or without notice.
4.3 VOLUNTARY TERMINATION BY EMPLOYEE UPON GOOD REASON. This
Agreement may be terminated by the Employee, upon six months notice, for Good
Reason. "Good Reason" means a material reduction in the authority or
responsibility of the Employee, one or more reductions, in the cumulative amount
of 5 percent or more, in the Base Salary of the Employee, or any notification to
the Employee that his or her principal place of work will be relocated by a
distance of 50 miles or more.
4.4 SEVERANCE. In the event the Employee's employment is
terminated (a) by the Company without cause, or (b) by the Employee for Good
Reason, subject to the conditions stated herein, the Company shall continue to
pay the Employee his then current Base Salary set forth in Section 3.1 for a
period of 24 months from the date of termination, subject to offset for any
amounts then owed the Company by the Employee; provided, if the Employee is
entitled to compensation and benefits arising from termination of employment due
to change of control under the Executive Change of Control Agreement between the
parties, such compensation and benefits shall be in lieu of and not in addition
to compensation under this Section 4.4. Severance shall be paid in such
installments and subject to such deductions as the Employee's Base Salary has
otherwise been paid during the Term of this Agreement. The Employee shall be
entitled to employment benefits and continuation of vesting of stock options
during the time severance is paid hereunder. The Employee is eligible to receive
bonus payments that are equivalent to what the employee would have been eligible
for or the amount equivalent to what they received over the last year, during
the time severance is paid. The employee may receive benefits obtained through
the exercise of COBRA rights, to the extent applicable. Notwithstanding the
foregoing, the Company's obligation to make severance payments, pay bonus
payments, provide benefits and continue vesting of stock options hereunder is
expressly conditioned
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upon the Employee's ongoing compliance with the provisions of the
Confidentiality, Inventions and Non-Competition Agreement. In the event the
Employee breaches the terms of such agreement, the Company's obligations
hereunder shall automatically terminate, without any notice to the Employee. THE
EMPLOYEE AGREES THAT SEVERANCE AS PROVIDED HEREIN SHALL BE THE SOLE
CONSIDERATION TO WHICH HE IS ENTITLED IN THE EVENT OF THE TERMINATION OF HIS
EMPLOYMENT WITHOUT CAUSE OR FOR GOOD REASON, AND THAT SEVERANCE WILL NOT BE PAID
IN THE EVENT OF TERMINATION WITH CAUSE OR RESIGNATION WITHOUT GOOD REASON, AND
THE EMPLOYEE EXPRESSLY WAIVES AND RELINQUISHES ANY CLAIM TO OTHER OR FURTHER
CONSIDERATION. Severance pay, bonus pay, benefits and/or vesting of stock
options under this Section 4.4 are expressly conditioned upon the Employee's
execution and delivery of a release of all claims against the Company in a form
satisfactory to the Company in the exercise of its reasonable discretion.
4.5 RETURN OF COMPANY PROPERTY. At the time of termination of
this Agreement, or as earlier requested, the Employee shall return to the
Company all products, books, records, forms, specifications, formulae, data,
data processes, designs, papers and writings relating to the business of the
Company, including without limitation Confidential Information, proprietary or
licensed computer programs, customer lists and customer data, and/or copies or
duplicates thereof in the Employee's possession or under the Employee's control.
The Employee shall not retain any copies or duplicates of such property and all
licenses granted to him by the Company to use computer programs or software
shall be revoked as of the date of such termination.
5. CHANGE OF CONTROL. Concurrently with the execution of this Agreement
and as a condition precedent to the Employee's obligations hereunder, the
Company shall execute and deliver to the Employee, the Executive Change of
Control Agreement attached hereto as EXHIBIT B. The Employee is subject to a
certain Executive Change of Control Agreement with Angiotech Canada dated June
6, 2000, which Agreement shall be deemed superceded in its entirety and of no
further force and effect upon the Company's delivery to the Employee of the
Agreement attached as EXHIBIT B fully executed by the Company and Angiotech
Canada.
6. CONFIDENTIALITY, INFORMATION AND NON-COMPETITION AGREEMENT.
Concurrently with the execution of this Agreement and as a condition precedent
to the Company's obligations hereunder, the Employee shall execute and deliver
to the Company the Confidentiality, Inventions and Non-Competition Agreement
attached hereto as EXHIBIT C. The provisions of such agreement shall remain in
full force and effect after termination of this Agreement.
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7. OTHER PROVISIONS.
7.1 COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents
and warrants to the Company that the execution, delivery and performance of this
Agreement and the Confidentiality, Inventions and Non-competition Agreement will
not conflict with or result in the violation or breach of any term or provision
of any order, judgment, injunction, contract, agreement, commitment or other
arrangement to which the Employee is a party or by which he is bound. The
Employee acknowledges that the Company is relying on his representation and
warranty in entering into this Agreement, and agrees to indemnify the Company
from and against all claims, demands, causes of action, damages, costs or
expenses (including attorneys' fees) arising from any breach thereof.
7.2 NONDELEGABLE DUTIES. This is a contract for the Employee's
personal services. The duties of the Employee under this Agreement are personal
and may not be delegated or transferred by the Employee in any manner
whatsoever, and shall not be subject to involuntary alienation, assignment or
transfer by the Employee during his life.
7.3 ENTIRE AGREEMENT. This Agreement, the Confidentiality,
Inventions and Non-competition Agreement, and the Executive Change of Control
Agreement are the only agreements and understandings between the parties
pertaining to the subject matter of said agreements, and supersede all prior
agreements, summaries of agreements, descriptions of compensation packages,
discussions, negotiations, understandings, representations or warranties,
whether verbal or written, between the parties pertaining to such subject
matter. Provided, nothing herein is intended to relieve the Employee of his
duties under any prior Employee Non-competition, Confidentiality and Inventions
Agreement with Angiotech Canada, nor to relieve Angiotech Canada of any
obligations under any prior stock option agreements between Angiotech Canada and
the Employee, and any and all stock options granted previously to the Employee
by Angiotech Canada shall remain in effect pursuant to their terms and the
governing Stock Option Plan. This Agreement specifically supercedes any
employment agreements and understandings between the Employee and Angiotech
Canada, which shall be deemed terminated by mutual agreement and of no further
force and effect; the Employee agrees that concurrent with the execution of this
Agreement he shall execute in favor of Angiotech Canada a release of claims
arising from or relating to his resignation of employment therewith.
7.4 GOVERNING LAW, VENUE. This Agreement shall be governed by
the laws of the State of Washington without regard to its conflicts of laws
rules. The parties hereby agree the venue for all matters and actions arising
under this Agreement shall be and remain exclusivity in the state and federal
courts sitting in King County, Washington, and the parties hereby irrevocably
consent to the personal jurisdiction of such courts. The prevailing party shall
be entitled to reasonable attorneys' fees and costs incurred in connection with
any litigation arising under or related to this Agreement.
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7.5 SEVERABILITY. If any provision of this Agreement is held
to be invalid or unenforceable to any extent in any context, it shall
nevertheless be enforced to the fullest extent allowed by law in that and other
contexts, and the validity and force of the remainder of this Agreement shall
not be affected thereby.
7.6 AMENDMENT AND WAIVER. This Agreement may be amended,
modified or supplemented only by a writing executed by each of the parties.
Either party may in writing waive any provision of this Agreement to the extent
such provision is for the benefit of the waiving party. No waiver by either
party of a breach of any provision of this Agreement shall be construed as a
waiver of any subsequent or different breach, and no forbearance by a party to
seek a remedy for noncompliance or breach by the other party shall be construed
as a waiver of any right or remedy with respect to such noncompliance or breach.
7.7 BINDING EFFECT. The provisions of this Agreement shall
bind and inure to the benefit of the parties and their respective successors and
permitted assigns.
7.8 NOTICE. All notices and other communications under this
Agreement shall be in writing and shall be given by personal or courier
delivery, facsimile or first class mail, certified or registered with return
receipt requested, and shall be deemed to have been duly given upon receipt if
personally delivered or delivered by courier, on the date of transmission if
transmitted by facsimile, or three days after mailing if mailed, to the
addresses of the Company and the Employee contained in the records of the
Company at the time of such notice. Any party may change such party's address
for notices by notice duly given pursuant to this Section 7.8.
7.9 HEADINGS, PRONOUNS. The Section and other headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Any and all uses of
masculine or feminine pronouns herein are solely to aid in the ease of reading
this Agreement and any such pronoun usage shall have equal application to the
members of the opposite gender.
SO AGREED as of the date first entered above.
ANGIOTECH PHARMACEUTICALS (U.S.), INC. EMPLOYEE
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxxxx
Dated: August 16, 2001 Dated: August 16, 2001
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