EXHIBIT 10.9(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 18th day of January, 1999 by and between
XXXXXX X. XXXXXXXX (hereinafter referred to as "EMPLOYEE"), and CRYOLIFE, INC.,
a Florida Corporation (hereinafter referred to as "EMPLOYER"):
WITNESSETH:
1. Employment: Employer hereby employs Employee and Employee hereby
accepts employment upon the terms and conditions as set forth hereinafter. It is
agreed that this Employment Agreement shall replace the previous Employment
Agreement dated April 10, 1995.
2. Term of Employment: Subject to the provisions of termination as
hereinafter provided, the term of this Agreement shall begin on the 18th day of
January, 1999, and terminate on the 18th day of January, 2004 and shall
automatically be renewed for one successive five (5) year term unless either
party gives the other notice to terminate the Employment Agreement at the
expiration of the original term, which notice must be given at least sixty (60)
days prior to the expiration of said original five year term.
3. Compensation: The Employer shall pay to the Employee the following
compensation:
(a) A base salary of $442,750.00 per year which may be increased
annually during the term of this agreement. Said salary may be
increased annually by the Compensation Advisory Committee of the
Company, pursuant to its annual review. In this agreement all
references to "salary" shall be defined as the "base salary" and
any increases thereof of the Employee at the time involved,
whether the amount set forth above, or the amount hereafter set
by the said Compensation Advisory Committee. Nothing in this
agreement shall be deemed to preclude the Employee from receiving
raises in salary or options to purchase stock during the term of
this agreement. The salary will be reviewed annually by the
Compensation Committee of the Company, being guided by the
Xxxxxxx study and his performance;
(b) Additional compensation may be paid to Employee in the form of
salary increases and stock option grants, depending upon his
performance as determined by Employer;
(c) The Employee may receive an annual bonus in addition to said
salary; and
(d) The Employer agrees to reimburse the Employee for the costs of
the motor vehicle that he drives by making payments to Employee
to reimburse him for the down payment and monthly payments on the
motor vehicle purchased by him, together with payments to
reimburse him for the gasoline, oil and repairs of the Employee's
motor vehicle and for all other reasonable motor vehicle
expenses. Employee shall maintain the motor vehicle in good
operating condition.
4. Duties: Employee is engaged as President and Chief Executive Officer
for the Employer and shall serve as a Director and Chairman of the Board of
Directors, and shall perform such duties of those positions including but not
limited to the following:
(a) Employee shall have such duties as may from time to time be
assigned to him by the Employer;
(b) Employee shall devote his full time to the performance of his
duties as the President and Chief Executive Officer of the
Employer and shall not enter into competition with Employer
and/or any of its subsidiaries or affiliates during the term of
this Agreement; and
(c) Employee's duties shall include acting as Chief Executive Officer
for the Employer and he shall be responsible for the operation of
all of the business of the Employer. The requirements imposed in
this paragraph are not intended to be all inclusive and Employee
will perform all of the duties associated with being Chairman,
President and Chief Executive Officer for this enterprise. The
titles "President", "CEO", and "Chairman" will not be assigned to
any other person.
5. Extent of Service: Employee shall be employed on a full time basis
and exercise his efforts to the optimum benefit of the Employer. Employee shall
be granted a vacation of up to four (4) weeks per year and shall be eligible for
such vacation upon the signing of this agreement. Scheduling of such vacation
shall be arranged at least fifteen (15) days in advance thereof if possible. Any
vacation time unused during any one year period of employment may be carried
forward to the next year. Employee shall be compensated for any unused vacation
time remaining at the end of the contract.
6. Illness and Incapacity: Employee shall receive compensation for any
period of illness or incapacity during the terms of this Agreement, at the same
rate provided under this agreement.
7. Disability Insurance: Employer agrees to provide to the Employee
appropriate disability insurance coverage, providing the Employee with
disability benefits appropriate to his position in the company and his earnings
therefor. Employee agrees to obtain quotations for disability insurance and
provide them to Employer for its consideration. The decision as to which
disability insurance carrier to select remains in the sole discretion of
Employer. The coverage obtained shall provide disability benefits to Employee
appropriate to his income at the time of disability. The disability policy shall
be owned by the Employee, but the annual premium shall be paid by the Employer.
The Employer shall have the right to terminate this Agreement if such illness or
incapacity shall be of such a character as to totally prohibit Employee from
rendering substantially all services to the Employer for a period of more than
one hundred eighty (180) days in one calendar year, by giving at least sixty
(60) days written notice of intention to do so. For the purposes of determining
ability or inability to render substantial services, the criterion to be used
shall be that which is used in determining total disability under the Social
Security Act of 1934 as Amended. If Employee shall resume his duties within
sixty (60) days following receipt of such notice, and shall perform such duties
on a regular basis for 180 consecutive days thereafter, this Agreement and
Employee's employment shall continue and the notice of intention to terminate
shall have no further force, effect or validity.
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8. Termination Upon Disability: Employer may terminate the employment
of Employee in the event of the disability of Employee. As used herein,
"Disability" shall mean a mental or physical condition of Employee which, in the
professional determination of an independent physician chosen by Employer,
renders Employee incapable of performing his duties under this Agreement for a
continuous period of six (6) months or longer. In the event Employee (or his
custodian) disagrees with the determination of the independent physician,
Employee may obtain the determination of another physician, reasonably
acceptable to Employee and Employer, whose opinion shall be conclusive.
9. Major Medical and Life Insurance: Employer agrees to provide major
medical and life insurance coverage for Employee. The major medical policy shall
designate Employee's wife, Xxx X. Xxxxxxxx, as an insured under the said policy
in addition to Employee. Said insurance coverage shall be provided to Employee
and his wife, Xxx X. Xxxxxxxx, during the employment of Employee and as
otherwise provided for hereinafter. A life insurance policy shall be provided to
Employee by Employer provided Employee meets the requirements of the insurer for
coverage. Said policy shall provide benefits in an amount up to two (2) times
Employee's current salary or more. Employee shall designate the beneficiaries of
said life insurance policy. Employee agrees to cooperate with the Company to
obtain key-man life insurance on Employee's life should Employer desire to
purchase same for its benefit.
10. Death and Survivor Benefits: If Employee should die during the term
of his employment, the employment is terminated and the Employer shall pay to
the spouse of the Employee, or other survivor designated by Employee, including
the Employee's estate if so designated, the compensation which would otherwise
be payable to Employee through to the end of the month in which his death
occurs, plus one (1) year's salary. The Employer shall have no other financial
obligations to Employee's spouse or other designated survivor, or estate with
the exception of the provisions for health insurance to Employee's wife, Xxx X.
Xxxxxxxx. In the event of Employee's demise prior to the termination of this
agreement, Employer agrees to continue the major medical insurance as described
hereinabove for Employee's wife, Xxx X. Xxxxxxxx, for the duration of her life.
11. Termination of Employment: Notwithstanding any provision stated in
Paragraph 3 hereinabove, the Employee may terminate this Agreement upon giving
adequate notice thereof as described herein. In the event the Employee
terminates this Agreement, he shall be required to give one hundred eighty (180)
days written notice. Said termination shall be effective upon the expiration of
said one hundred eighty (180) days.
Employer may terminate the employment of the Employee hereunder with or
without good cause (as defined hereinbelow, and also sometimes referred to as
"cause") by giving one hundred eighty (180) days written notice of its intention
to do so. If the termination of the employment of Employee is without good
cause, Employer shall pay compensation to Employee consisting of the base salary
and any increase thereof for the period remaining on the agreement or for two
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(2) years whichever is greater. If the Employer gives notice of termination
without good cause, or if the termination is without good cause, the Employer
will be required to pay to the Employee the sum due to Employee for his base
salary, plus any increase thereof, for the year(s) remaining on the contract or
for a period of twenty four (24) months, whichever is greater, as reasonable
compensation for the reminder of the term of this agreement and its renewal
term. The said compensation shall be paid in a lump sum within one hundred
eighty (180) days from the date of the notice of termination. The termination
shall be effective as of the date set forth by the Employer in the Notice of
Termination, which may not be less than one hundred eighty (180) days after
delivery of the notice.
In the event of termination for good cause, the Employee will be paid
his base salary and increases thereof for one hundred eighty (180) days, but no
other compensation shall be due under this agreement for the remainder of the
term of this agreement, however, Employee shall be entitled to a hearing before
the board of directors of the Company within one hundred eighty (180) days, and
Employee may xxx for damages claiming the termination was not for good cause and
seek damages and he may pursue such other remedies as may be available.
Employer may terminate Employee's employment under this agreement for
good cause which shall mean (i) Employee's willful and wanton wrongful act
having a substantial material adverse effect on the Employer; (ii) Employee's
acts amounting to gross negligence to the material detriment and substantial
material adverse effect on the Employer; (iii) Embezzlement of funds of the
Employer; or (iv) Employee's conviction of a felony. In order to terminate the
employment of Employee pursuant to this paragraph, Employer must first provide
Employee with written notice of termination which notice shall specifically
identify the circumstances which constitute cause for termination as defined
herein. In the event of termination for cause under the provisions set forth in
subsections (i) or (ii) of this paragraph, Employee shall have one hundred
eighty (180) days in which to cure such default. In the event the Notice of
Termination states that it is "for good cause", then during the one hundred
eighty (180) days, Employee shall be entitled to meet with the directors at a
meeting called for the purpose of reconsidering the termination. At that
meeting, the Employee may present such information or evidence as may bear upon
the issue of cause for termination. Upon the Employee making such presentation,
the directors shall reconsider the issue of termination and determine whether
the Employee is or is not terminated at the close of said directors' meeting. If
the Employer's notice of termination is for good cause the employee may make the
above presentation and if the directors do not reconsider and withdraw the
termination, then the Employee may xxx at law for damages or may pursue such
other remedies available. If the notice of termination is withdrawn then the
Employee will remain employed pursuant to this agreement. Nothing set forth
above shall require that the Employee request a meeting with the directors for
reconsideration or present any evidence at such a meeting. If no meeting is
requested by Employee he shall be entitled to file suit at law for damages for
breach of contract or to pursue any other remedies available to him.
In the event that Employer terminates this agreement, the employment
shall cease one hundred eighty (180) days after such notice is delivered and
this agreement shall be terminated. The Employer reserves the right to discharge
the Employee without good cause and without hearing provided the Employee is
paid the base salary, plus any increases thereof for the period specified above,
together with any earned but unpaid salary, earned but unused vacation time,
bonus or other compensation, as of the date of the termination. Both parties
shall be bound to honor any and all bonuses,
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allowances, unpaid but earned vacation time, loans and separate agreements which
have previously been specified in writing. The Employer's notice of termination
must state whether the termination is "for good cause" or "without good cause".
The parties agree that any termination by the Employer which fails to state
whether it is "for good cause" or "without good cause" shall be deemed as being
"without good cause" and shall be treated as a termination "without good cause".
The parties agree that the Employer may not change its Notice of Termination
from being "without good cause" to being "with good cause". Upon delivery of the
Notice of Termination by the Employer to the Employee, Employee may request
reconsideration or he may xxx at law for damages or he may do both.
12. Personal Information: Employee agrees to provide the Employer with
complete pertinent information upon request. Such information shall be in the
form of a completed application for employment as requested. Employee agrees to
supplement or update such information in writing upon request of Employer.
13. Approval: Employer shall be the sole judge as to whether the
Employee is performing his duties in a satisfactory manner.
Employee covenants and agrees that he will treat as confidential and
will not, without the prior written approval of Employer, use (other than in the
performance of his designated duties of Employer) or disclose in any manner
either during or after the term of his employment hereunder any Trade Secret.
All records, notes, files, memoranda, reports, price lists, client
lists, drawings, plans, sketches, documents, equipment, apparatus and like
items, and all copies thereof, relating to the business of Employer or Trade
Secrets, which shall be prepared by Employee or which shall be disclosed to or
which shall come into the possession of the Employee, shall be and remain the
sole and exclusive property of Employer. Employee agrees that at any time upon
request from Employer, he will promptly deliver to Employer, as the case may be,
the originals and all copies of any of the foregoing that are in his possession,
custody or control, and any other property belonging to Employer.
14. Reproduction Rights: The Employer shall have the exclusive right
to reproduce any design or invention completed by Employee during the term of
his employment and to reproduce any design or invention produced from such
design work, or to make any and all modifications to such design work and
modifications produced therefrom which the Employer, in its sole discretion, may
feel necessary or desirable.
15. Employee's Warranties: By executing this Agreement, Employee
warrants:
(a) That Employee shall not infringe upon any statutory copyright,
common law right, proprietary right, patent right, or any
other right whatsoever in performing his duties;
(b) That any design work to be done by Employee shall contain no
matter contrary to law; and
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(c) That Employee will not invade the right of privacy by
depicting persons or places in any design work without first
obtaining the written release of privacy rights from all such
persons or owners of such places and shall remit the originals
of such release to the Employer.
Employee agrees that the warranties contained herein are true as of
the date of the execution of this Employment Agreement and shall remain true
throughout the term of his employment, and Employee further agrees to indemnify
and hold harmless the Employer from any and all claims arising from breaches of
the aforesaid warranties.
16. Intellectual Property: The Employee specifically waives any rights
he might be construed to have as a consequence of that industry convention which
grants an employee the right to use for his, in whole or in part, after
termination of his employment, any inventions, innovations or designs, etc.
(hereinafter referred to as "Intellectual Property") susceptible to patent,
registrations, copyright or other legal protection (hereinafter referred to as
"Protection"), whether domestic or foreign, which he may originate during the
term of his employment, using facilities or any other form of assistance
provided by the Employer.
In the specialized case in which the Employee may originate on his own
time, on other than Employer's premises, and with no assistance from Employer,
including use of Employer's facilities, any Intellectual Property susceptible to
Protection, it is understood that he shall have the right to exploit the same
for his personal account (provided he personally undertakes the expense involved
in establishing Protection). In such specialized case, however, the Employer
shall have, and is hereby granted, a fully-paid royalty-free license to use in
its own operation such Intellectual Property for the period of employment and
for two (2) years thereafter.
With further respect to any item of Intellectual Property developed in
the manner defined by the immediately preceding paragraph, in the event the
Employee does not wish or is unable personally to pay for such Protection of any
Intellectual Property, the Employer shall have the option to do so, but shall
not be required to do so, and shall thereafter enjoy the sole proprietorship and
ownership of such Intellectual Property without any duty or liability to
Employee. The Employee shall make available to the Employer all the information
at his disposal relating to such Intellectual Property, and shall cooperate with
it in every way necessarily implied to obtain such Protection for the Employer.
Employee further agrees to execute whatever conveyances, assignments,
bills of sale or other documents that may at any time become necessary to
execute or to provide whatever further assurances Employer deems necessary in
its sole discretion in order to perfect Employer's title to the rights to such
Intellectual Property that Employer has been granted by this Agreement. Employee
agrees not to incorporate in any writings composed by him such Intellectual
Property or any other information of a proprietary nature or trade secrets
(including but not limited to ideas or items susceptible to Protection) that may
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belong to the Employer or subsequently come to, belong or be possessed by the
Employer without the prior written consent of the Employer, which consent may be
arbitrarily, unreasonably or capriciously withheld. In order to effectuate the
rights granted to the Employer, pursuant to this paragraph, Employee agrees to
submit all tracts, manuscripts, texts and writings he intends to publish to
Employer prior to submitting them for publication to any publisher or causing
them to be published himself. In the event the Employer determines the material
submitted violates the provisions of this paragraph, the offending portions
shall be deleted. It is further provided that if Employee disputes the
Employer's decision, the dispute shall be decided by arbitration pursuant to the
Florida Arbitration Code.
17. Restrictive Covenant: Employee recognizes that opportunities
afforded him by Employer are valuable assets and of great personal benefit to
him in his line of work, and therefor, provide sufficient basis for the
restrictive covenants contained in this paragraph. In recognition of the above,
and in further consideration of his employment by Employer, Employee further
agrees that during the term of this Agreement and for a period of two (2) years
from the date of any termination of his employment, whether by termination of
this Agreement, by wrongful discharge, or otherwise, shall not directly or
indirectly, in the United States or on offshore islands, engage in competition
which the Employer or its affiliates of which at the time of such termination is
conducting or has conducted business, nor in any State, territory or other
countries in which the Employee knows that the Employer intends to extend, carry
on, or is carrying on, business by expansion of its activities. Competition of
the Employer as referred to in this paragraph shall include but not be limited
to business of the Employer as it now exists or may exist in the future, either
as an individual on his own account, as a partner, joint venture, employee,
agent, salesman or contractor for any person; an officer, director or
stockholder of a corporation or otherwise. Solicitation or acceptance of
business outside the restricted territories for purchase of, shipment to, or
delivery of materials in any of the restricted territories shall constitute
"engaging in business" in the restricted territories and by all reasons of this
paragraph, be a violation of this paragraph. This covenant on the part of
Employee shall be construed as an agreement independent of any other provision
of this Agreement. The existence of any claim or cause of action of Employee
against the Employer, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Employer of this covenant. It
is agreed by the parties hereto that if any portion of this non-compete covenant
is held to be unreasonable, arbitrary or against public policy, the covenant
herein shall be considered divisible both as to time and geographical area. Each
month of the specified period shall be deemed a separate period of time. Each
state of the United States of America, any other country, or territory shall be
deemed a separate geographical area so that the lesser period of time or
geographical area shall remain effective so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree
that, in the event any court determines the specified time period or the
specified geographical area to be unreasonable, arbitrary or against public
policy, then a lesser time period or geographical area which is determined to be
reasonable, non-arbitrary and not against public policy may be enforced against
Employee.
18. Resolution of Disputes: In case of any conflicts or disputes,
normal industry practices shall be considered but the decision of the Employer
shall be final.
19. Entire Agreement: This Agreement represents the entire agreement
between the parties with respect to employment and any matters not specifically
mentioned herein shall not be binding on the parties.
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20. Governing Law: This contract shall be governed by the laws of the
State of Florida.
21. Miscellaneous: Whenever used, the singular number shall include the
plural, the plural the singular, and the use of any gender shall include all
genders.
22. Waiver of Breach: The waiver by the Employer of a breach of any
condition of this Agreement by Employee shall not be construed as a waiver of
any subsequent breach by Employee.
23. Effective Date: This Agreement shall be effective as of January 18,
1999.
24. Notice: Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by certified or
registered mail, return receipt requested, to the parties at the following
addresses:
To the Employer: CryoLife, Inc.
c/o: Xxxxxx XxXxxx, Esquire
Secretary/Treasurer
0000 Xxxxxxx Xxxxxxxxx, X.X.
Xxxxxxxx, Xxxxxxx 00000
To the Employee: Xxxxxx X. Xxxxxxxx
President & CEO
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WITNESSES: CRYOLIFE, INC./EMPLOYER:
____________________________ BY: /s/ Xxxxxx X. XxXxxx
---------------------
XXXXXX X. XXXXXX
It's: Secretary/Treasurer
____________________________
Attest: (SEAL)
/s/ Xxxxxxx X. Xxxxxxx
---------------------
XXXXXXX XXXXXXX
It's: Assistant Secretary
EMPLOYEE:
____________________________ /s/ Xxxxxx X. Xxxxxxxx
---------------------
XXXXXX X. XXXXXXXX
____________________________ Print or type name of Employee
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