EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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PARTIES
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This Employment Agreement (this "Agreement"), dated as of the 11th day of
November, 1998, is entered into by and between CardioTech International, Inc., a
Massachusetts corporation having its principal place of business at 00X Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and Xxxx X. Xxxxxxx, an
individual with an address at 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Executive").
TERMS OF AGREEMENT
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In consideration of this Agreement and the continued employment of the
Executive by the Company, the parties agree as follows:
1. Employment. The Company hereby employs the Executive, on a full-time
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basis, to act as Chief Operating Officer, Chief Financial Officer and Clerk of
the Company and to perform such acts and duties and furnish such services to the
Company in connection with and related to those positions as are customary for
persons with similar positions in like companies, and as the Chief Executive
Officer of the Company shall from time to time reasonably direct. The Executive
shall be an officer of the Company. The Executive hereby accepts said
employment. The Executive shall use his best and most diligent efforts to
promote the interests of the Company; shall discharge his duties in a highly
competent manner; and shall devote his full business time and his best business
judgment, skill and knowledge to the performance of his duties and
responsibilities hereunder. The Executive shall report directly to the Chief
Executive Officer of the Company. Nothing contained herein shall preclude the
Executive from devoting incidental and insubstantial amounts of time to
activities other than the business of the Company.
2. Term of Employment. The Company agrees to employ the Executive for the
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period commencing on the date hereof and ending on December 31, 1999 (the
"Employment Period"). Notwithstanding the foregoing, both the Executive and the
Company shall have the right to terminate the Executive's employment under this
Agreement upon thirty (30) days written notice to the other party, subject to
the Company's obligation to pay severance benefits under certain circumstances
as provided in Sections 3.6 and 3.7 hereof. If the Executive shall remain in
the employ of the Company beyond the Employment Period, in the absence of any
other express agreement between the parties, this Agreement shall be deemed to
continue on a month-to-month basis (the "Extended Employment Period").
3. Compensation and Benefits; Disability.
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3.1. Salary. During the Executive's employment, the Company shall pay the
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Executive an annualized base salary of One Hundred Forty Thousand Four Hundred
Dollars ($140,400) (the "Base Salary"), payable in equal installments pursuant
to the Company's customary payroll policies in force at the time of payment (but
in no event less frequently than monthly), less required payroll deductions and
state and federal withholdings. The Base Salary may be adjusted from time to
time in the sole discretion of the Board of Directors of the Company (the
"Board"), except that the Executive, if a Director, shall not be entitled to
vote thereon. The Base Salary shall be reviewed annually by the Board.
3.2. Bonus Payment. During the Employment Period, the Executive may receive,
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in the sole discretion of the Compensation Committee of the Board (the
"Compensation Committee"), an annual bonus payment in an amount, if any, to be
determined by the Compensation Committee, except that the Executive, if a member
of the Compensation Committee, shall not be entitled to vote thereon.
3.3. Executive Benefits. During the Employment Period, the Executive shall
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receive such benefits as are customarily provided to other officers and
employees of the Company, including but not limited to the following benefits:
(a) Health Insurance. Non-contributory health insurance pursuant to a Freedom
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Care policy or substantially similar policy; and
(b) Life Insurance. Life insurance on the life of the Executive with an
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Executive-directed beneficiary in the amount of one hundred fifty percent
(150%) of the Base Salary.
3.4. Vacation. The Executive may take four weeks of paid vacation during
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each year at such times as shall be consistent with the Company's vacation
policies and (in the Board's judgment) with the Company's vacation schedule for
officers and other employees.
3.5. Disability or Death. If during the Employment Period, the Executive
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shall (i) become ill, disabled or otherwise incapacitated so as to be unable to
perform his usual duties (a) for a period in excess of one hundred twenty (120)
consecutive days or (b) for more than one hundred eighty (180) days in any
consecutive twelve (12) month period, or (ii) die, then the
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Company shall have the right to terminate this Agreement, in accordance with
applicable laws, on thirty (30) days written notice to the Executive or his
estate.
3.6. Severance Payment. In the event (i) the Company terminates this
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Agreement without Cause (i.e., other than pursuant to Section 3.5 or Section 4
hereof) at any time (including during the Extended Employment Period), or (ii)
the Executive terminates his employment for Good Reason following a Change in
Control of the Company, or (iii) the Company fails to renew this Agreement
within two (2) years following the occurrence of a Change in Control, the
Company shall pay the Executive a severance payment equal to the Executive's
then current Base Salary multiplied by 1.00; such severance payment to be
adjusted to the extent necessary to avoid such payment being treated as an
"excess parachute payment" for purposes of Section 280G of the Internal Revenue
Code of 1986.
"Good Reason" shall mean, during the nine (9) month period following a Change
in Control, (1) a good faith determination by the Executive that as a result of
such Change in Control he is not able to discharge his duties effectively or (2)
without the Executive's express written consent, the occurrence of any of the
following circumstances: (a) the assignment to the Executive of any duties
inconsistent (except in the nature of a promotion) with the position in the
Company that he held immediately prior to the Change in Control or a substantial
adverse alteration in the nature or status of his position or responsibilities
or the conditions of his employment from those in effect immediately prior to
the Change in Control; (b) a reduction by the Company in the Base Salary as in
effect on the date of the Change in Control; (c) the Company's requiring the
Executive to be based more than twenty-five (25) miles from the Company's
offices at which he was principally employed immediately prior to the date of
the Change in Control except for required travel on the Company's business to an
extent substantially consistent with his present business travel obligations; or
(d) the failure by the Company to continue in effect any material compensation
or benefit plan in which the Executive participates immediately prior to the
Change in Control unless an equitable arrangement (embodied in an ongoing
substitute or alterative plan) has been made with respect to such plan, or the
failure by the Company to continue the Executive's participation therein (or in
such substitute or alterative plan) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the level of his
participation relative to other participants, than existed at the time of the
Change in Control. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any circumstance constituting
Good Reason hereunder.
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For purposes of this Agreement, a "Change in Control" shall occur or be deemed
to have occurred only if any of the following events occur: (i) any "person," as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), (other than any majority owned subsidiary
thereof, the Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, any trustee or other fiduciary of a trust
treated for federal income tax purposes as a grantor trust of which the Company
is the grantor, or any corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined voting power
of the Company's then outstanding securities on any matter which could come
before its stockholders for approval; (ii) individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company, as such terms are used in Rule 14a-11
of Regulation 14A under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; (iii) the stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or (iv) the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets.
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3.7. Benefits After Termination. Except as otherwise required by law, the
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Executive shall not be entitled to any employee benefits provided under Section
3.3 hereof after termination of the employment of the Executive, whether or not
severance pay is being provided, except that if the Executive is entitled to the
severance payment described in Section 3.6 of this Agreement, (i) the Company
shall continue in full force and effect, at its expense, the life insurance
provided for in Section 3.3(b) hereof for a period of one (1) year after
termination of the Executive's employment hereunder or until the Executive
becomes employed, whichever first occurs, and (ii) during the six (6) month
period following the termination of the Executive's employment, the Company
shall reimburse the Executive for out-of-pocket health insurance expenses
incurred by the Executive pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1986 ("COBRA"). If the Executive elects not to maintain
health insurance pursuant to COBRA, the Company is under no obligation to
reimburse the Executive for his otherwise elected coverage. The Executive shall
be obligated to give the Company prompt notice of his employment.
4. Discharge for Cause. The Company may discharge the Executive and
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terminate his employment under this Agreement for Cause without further
liability to the Company by a majority vote of the Board, except that Executive,
if a Director, shall not be entitled to vote thereon. As used in this
Agreement, "Cause" shall mean any or all of the following:
(a) misconduct of the Executive during the course of his employment which is
materially injurious to the Company and which is brought to the attention
of the Executive promptly after discovery by the Company, including but not
limited to, theft or embezzlement from the Company, the intentional
provision of services to competitors of the Company, or improper disclosure
of proprietary information, but not including any act or failure to act by
the Executive that he believed in good faith to be proper conduct not
adverse to his duties hereunder;
(b) willful disregard or neglect by the Executive of his duties or of the
Company's interests that continues after being brought to the attention of
the Executive;
(c) unavailability (except as provided in Section 3.5 hereof) of the Executive
to substantially perform the duties provided for herein;
(d) conviction of a fraud or felony or any criminal offense involving
dishonesty, breach of trust or moral turpitude during the Executive's
employment;
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(e) the Executive's breach of any of the material terms of this Agreement
(including the failure of the Executive to discharge his duties in a highly
competent manner) or any of the agreements executed in connection herewith
as enumerated in Section 10.1 hereof.
In the event the Company exercises its right to terminate the Executive's
employment under this Section 4, the Executive shall not be entitled to receive
any severance pay or other termination benefits, except as required by law.
5. Termination Without Cause. The Company may terminate this Agreement
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without Cause, without further liability to the Company except as set forth in
Sections 3.6 and 3.7 hereof, by a majority vote of the Board. The Executive, if
a Director, shall not be entitled to vote on the termination of this Agreement
without Cause.
6. Expenses. Pursuant to the Company's customary policies in force at the
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time of payment, the Executive shall be promptly reimbursed, against
presentation of vouchers or receipts therefor, for all authorized expenses
properly incurred by him on the Company's behalf in the performance of his
duties hereunder.
7. Additional Agreements. Upon execution of this Agreement, the Executive
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shall execute and deliver to the Company an Agreement Not to Compete (the
"Noncompetition Agreement") and a Confidential and Proprietary Information
Agreement (the "Confidential and Proprietary Information Agreement"),
substantially in the forms attached hereto as Exhibits A and B. The agreements
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attached hereto as Exhibits A and B shall survive the expiration of or
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termination of this Agreement and the termination of Executive's employment with
the Company for any reason.
8. Arbitration. All disputes and claims relating to this Agreement and the
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rights, obligations and performance of the parties hereto shall be settled by a
single arbitrator sitting in Boston, Massachusetts under the applicable rules of
the American Arbitration Association.
9. Notices. Any notice of communication given by any party hereto to the
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other party or parties shall be in writing and personally delivered, mailed by
certified mail, return receipt requested, postage prepaid, or delivered by a
recognized overnight carrier, to the addresses provided above. All notices
shall be deemed given when actually received. Any person entitled to receive
notice (or a copy thereof) may designate in writing, by notice to the others,
another address to which notices to such person shall thereafter be sent.
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10. Miscellaneous.
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10.1. Entire Agreement. This Agreement contains the entire understanding of
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the parties in respect of its subject matter and supersedes all prior agreements
and understandings between the parties with respect to such subject matter;
provided, however, that nothing in this Agreement shall affect the Executive's
or the Company's obligations under the Noncompetition Agreement or the
Confidential and Proprietary Information Agreement each dated as of November 11,
1998, between the parties hereto.
10.2. Amendment; Waiver. This Agreement may not be amended, supplemented,
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cancelled or discharged, except by written instrument executed by the party
affected thereby. No failure to exercise, and no delay in exercising, any
right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any breach of any provision of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other
provisions.
10.3. Binding Effect; Assignment. The rights and obligations of this
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Agreement shall bind and inure to the benefit of any successor of the Company by
reorganization, merger or consolidation, or any assignee of all or substantially
all of the Company's business and properties. The Executive's rights or
obligations under this Agreement may not be assigned by the Executive; except
that the Executive's right to compensation to the earlier of the date of death,
disability pursuant to Section 3.5 hereof, or termination of actual employment,
shall pass to the Executive's executor or administrator.
10.4. Headings. The headings contained in this Agreement are for reference
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purposes only and shall not affect the meaning or interpretation of this
Agreement.
10.5. Governing Law; Interpretation. This Agreement shall be construed in
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accordance with and governed for all purposes by the laws and public policy of
the Commonwealth of Massachusetts applicable to contracts executed and to be
wholly performed within such Commonwealth. Service of process in any dispute
shall be effective (a) upon the Company, if service is made on any officer of
the Company other than the Executive; (b) upon the Executive, if served at the
Executive's residence last known to the Company with an information copy to the
Executive at any other residence, or in care of a subsequent employer of which
the Company may be aware.
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10.6. Further Assurances. Each of the parties agrees to execute,
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acknowledge, deliver and perform, or cause to be executed, acknowledged,
delivered or performed, at any time, or from time to time, as the case may be,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be necessary or proper to carry out the
provisions or intent of this Agreement.
10.7. Severability. If any one or more of the terms, provisions, covenants
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or restrictions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. If,
moreover, any one or more of the provisions contained in this Agreement shall
for any reason be determined by a court of competent jurisdiction to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting or reducing it so as to be enforceable to the
extent compatible with then applicable law.
EXECUTION
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The parties executed this Agreement as a sealed instrument as of the date
first above written, whereupon it became binding in accordance with its terms.
CARDIOTECH INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxx, Ph.D.
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Xxxxxxx Xxxxxxx, Ph.D.
Chief Executive Officer
EXECUTIVE
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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Attachments:
Exhibit A: Noncompetition Agreement
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Exhibit B: Confidential and Proprietary Information Agreement
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EXHIBIT A
AGREEMENT NOT TO COMPETE
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I recognize that CardioTech International, Inc., a Massachusetts corporation
(the "Company", which term shall include its subsidiaries and affiliated
entities), desires to retain me in its employ and that the Company wishes to
ensure that I do not compete with the Company, as specified below, in the event
my employment with the Company is terminated.
In consideration of the Company's employment or continued employment of me, I
agree as follows:
1. I will not, for a period of one (1) year commencing with the termination
of my employment with the Company, engage (directly or indirectly) in any
activities or render any services similar or reasonably related to those in
which I shall have engaged or those which I shall have rendered as an employee
of the Company during any part of the two-year period preceding my termination
for any trade or business which directly competes with the Company in any place
where the Company does or may do business in any line of business engaged in (or
planned to be engaged in) by the Company, whether now existing or hereafter
established, nor shall I engage in such activities nor render such services for
any other person or entity engaged or about to become engaged in such activities
to, for or on behalf of any such trade or business.
2. I agree that for a period of one (1) year following termination of my
employment with the Company, I will not solicit or in any manner encourage
employees of the Company to leave their employ. I further agree that during
such period I will not offer or cause to be offered employment to any person who
was employed by the Company at any time during the six (6) months prior to the
termination of my employment with the Company.
3. For purposes of this Agreement, "termination of employment" shall mean
voluntary termination by me or termination by the Company for "cause" (as that
term is defined in an Employment Agreement of even date herewith between me and
the Company).
4. I understand that nothing in this Agreement shall affect my obligations
under the "Confidential and Proprietary Information Agreement" between the
Company and myself of even date herewith.
5. I agree that in addition to any other rights and remedies available to the
Company for any breach by me of my obligations hereunder, the Company shall be
entitled to enforcement of my obligations hereunder by court injunction.
6. If any provision of this Agreement shall be declared invalid, illegal or
unenforceable, then such provision shall be enforceable to the extent that a
court shall deem it reasonable to enforce such provision. If such provision
shall be unreasonable to enforce to any extent, such provision shall be severed
from this Agreement and all remaining provisions shall continue in full force
and effect.
This Agreement shall be governed in all respects by the laws of the Commonwealth
of Massachusetts.
IN WITNESS WHEREOF I have executed this Agreement under seal as of November
11, 1998.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
ACCEPTED AND AGREED TO:
CardioTech International, Inc.
By: /s/ Xxxxxxx Xxxxxxx, Ph.D.
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Xxxxxxx Xxxxxxx, Ph.D.
Chief Executive Officer
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EXHIBIT B
FOR EMPLOYEES
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CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT
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In consideration of my employment by CardioTech International, Inc., a
Massachusetts corporation (the "Company"), I hereby agree as follows:
1. I will make full and prompt disclosure to the Company of all inventions,
improvements, modifications, discoveries, methods, data, ideas and developments
(all of which are collectively termed "developments" hereinafter), whether
patentable or not, made or conceived or reduced to practice or learned by me
either alone or jointly with others or under my direction during the period of
my employment, whether or not made or conceived during normal working hours or
on the premises of the Company. I do not have any developments other than those
I have already disclosed to you.
2. I agree that all developments covered by Paragraph 1 shall be the sole
property of the Company and its assigns, and the Company and its assigns shall
be the sole owner of all patents and other rights in connection therewith. I
hereby assign to the Company any rights in connection therewith. I hereby assign
to the Company any rights I may have or acquire in all developments. I further
agree as to all developments to assist the Company in every proper way (but at
the Company's expense) to obtain and from time to time enforce patents in
developments in any and all countries, and to that end I will execute all
documents for use in applying for and obtaining such patents thereon and
enforcing same, as the Company may desire, together with any assignments thereof
to the Company or persons designated by it. My obligation to assist the Company
in obtaining and enforcing patents for developments in any and all countries
shall continue beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after such termination for time actually
spent by me at the Company's request on such assistance.
I understand that this Paragraph 2 does not apply to developments for which no
equipment, supplies, facility or trade secret information of the Company was
used and which was developed entirely on my own time, and (a) which does not
relate (1) to the business of the Company or (2) to the Company's actual or
demonstrable anticipated research or development, and (b) which does not result
from any work performed by me for the Company, but I agree that the Company
shall have a non-exclusive royalty-free license to use such developments for all
purposes.
3. I hereby represent that, to the best of my knowledge, I have no present
obligation to assign to any former employer or any
other person, corporation or firm, any development covered by Paragraph 2. I
represent that my performance of all the terms of this Agreement as an employee
of the Company does not and will not breach any agreement to keep in confidence
proprietary information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not enter
into, any agreement (either written or oral) in conflict herewith.
4. I will also assign to the Company any and all copyrights and reproduction
rights to any material prepared by me in connection with my employment.
5. I understand as part of the consideration for the offer of employment
extended to me by the Company and of my employment or continued employment by
the Company, that I have not brought and will not bring with me to the Company
or use in the performance of my responsibilities at the Company any materials or
documents of a former employer which are not generally available to the public,
unless I have obtained written authorization from the former employer for their
possession and use.
6. During the course of my employment by the Company, I may learn of the
Company's confidential information or confidential information entrusted to the
Company by other persons, corporations, or firms. The Company's confidential
information includes matters not generally known outside the Company, such as
developments relating to existing and future products and services marketed or
used by the Company and data relating to the general business operations of the
Company (e.g., concerning sales, costs, profits, organizations, customer lists,
pricing methods, etc.). I agree not to disclose any confidential information of
the Company or of such other persons, corporations, or firms to others or to
make use of it, except on the Company's behalf, whether or not such information
is produced by my own efforts. Also, I may learn of developments, ways of
business, etc., which in themselves are generally known, but whose use by the
Company is not generally known, and I agree not to disclose to others such use,
whether or not such use is due to my own efforts.
7. At the time I begin my employment and during the term of my employment by
the Company, I will not become employed by or act on behalf of any other person,
corporation, or firm which is engaged in any business or activity similar to or
competitive with that of the Company, unless such employment has been approved
by the Company in writing and signed by an appropriate personnel manager of the
Company.
8. In the event that my employment is transferred by the Company to a
subsidiary or affiliated company (as the case may
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be), my employment by such company will, for the purposes of this Agreement, be
considered as continued employment by the Company, unless I execute an agreement
substantially similar in substance to this Agreement, in which event my
employment by the Company shall be deemed to continue until the effective date
of said agreement in any such company for which I become employed.
9. I hereby give the Company and its assigns permission to reasonably use
photographs of me, either during or after my employment, with or without using
my name, for whatever purposes it deems necessary.
10. Upon termination of my employment, unless my employment is transferred to
a subsidiary or affiliated company of the Company, I agree to leave with the
Company all records, drawings, notebooks, and other documents pertaining to the
Company's confidential information, whether prepared by me or others, and also
any equipment, tools or other devices owned by the Company, then in my
possession however such items are obtained, and I agree not to reproduce any
document or data relating thereto.
11. My obligations under this Agreement shall survive the termination of my
employment regardless of the manner of such termination, and shall be binding
upon my heirs, executors, and administrators.
12. Contemporaneously with entering the employ of the Company I have
terminated employment with all past employers.
13. I represent that I have made no developments relevant to the subject
matter of my employment by the Company that have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
the Company.
14. I agree that in addition to any other rights and remedies available to
the Company for any breach by me of my obligations hereunder, the Company shall
be entitled to enforcement of my obligations hereunder by court injunction.
15. If any provision of this Agreement shall be declared invalid, illegal or
unenforceable, then such provision shall be enforceable to the extent that a
court shall deem it reasonable to enforce such provision. If such provision
shall be unreasonable to any extent, such provision shall be severed from this
Agreement and all remaining provisions shall continue in full force and effect.
16. This Agreement shall be effective as of the date set forth below next to
my signature.
17. This Agreement shall be governed in all respects by the laws of the
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, I have executed this Agreement under seal as of
November 11, 1998.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
ACCEPTED AND AGREED TO:
CardioTech International, Inc.
By: /s/ Xxxxxxx Xxxxxxx, Ph.D.
---------------------------------
Xxxxxxx Xxxxxxx, Ph.D.
Chief Executive Officer
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