EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 20th day of August,
2001, by Angiotech Pharmaceuticals (U.S.), Inc., a Washington corporation (the
"Company"), and Xxxxx X. XxXxxxxxx of 00000 X.X. 000xx, Xxxxx Xxxx, 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 General Counsel and Vice President,
Intellectual Property, subject to the terms and conditions set forth in this
Agreement.
1.2 DUTIES. The Employee shall report directly to the Chief Executive
Officer or President of the Company or his designee(s) and perform those duties
which are customary with the position of General Counsel and Vice President,
Intellectual Property, together with such additional duties as may be
established by the Company's Chairman, Chief Executive Officer or President. 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, Chief Executive Officer or President 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 $ 325,000 (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, the Chief Executive Officer or President;
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
12 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 and Angiotech Canada shall execute and deliver to the Employee, the
Executive Change of Control Agreement attached hereto as EXHIBIT B.
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.
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,
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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.
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.
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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/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxx X. XxXxxxxxx
----------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxxxxxx Xxxxx X. XxXxxxxxx
Dated: August 20, 2001 Dated: August 20, 2001
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EXHIBIT A TO EXECUTIVE EMPLOYMENT AGREEMENT OF
XXXXX X. XxXXXXXXX
ADDITIONAL BENEFITS
INITIALED BY COMPANY
REPRESENTATIVE:
1. YOU WILL WORK OUT OF THE COMPANY'S OFFICE IN
WASHINGTON, WHEN WORKING IN THE US. ______
2. THE COMPANY WILL PAY FOR FURNISHED ACCOMMODATIONS IN
VANCOUVER AND THE COST OF A RENAL CAR, WHILE YOU ARE
WORKING IN VANCOUVER. ______
3. YOU ARE ELIGIBLE FOR PAID MEDICAL TRAVEL INSURANCE
WHEN YOU ARE TRAVELING OUTSIDE OF THE US. ______
4. THE COMPANY WILL PAY MEMBERSHIP DUES ON YOUR BEHALF
FOR PROFESSIONAL SOCIETIES. ______
5. THE COMPANY WILL ASSIST YOU WITH THE IMMIGRATION
PROCESS AS REQUIRED. ______
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