EXHIBIT 10.10
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 23rd day of
August, 2001, by Angiotech Pharmaceuticals (U.S.), Inc., a Washington
corporation (the "Company"), and Xxxxxx X. Xxxxxxxx of 00 Xxxxxxxx Xxxx,
Xxxxxxx, 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 Vice President, Corporate
Development, 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 Vice President, Corporate
Development, 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 $ 185,208 (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.
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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.
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
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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 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
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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 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.
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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/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- ------------------------------
Xxxxxx X. Xxxxxxxxxxx Xxxxxx X. Xxxxxxxx
Dated: August 23, 2001 Dated: August 23, 2001
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EXHIBIT A TO EXECUTIVE EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXXXXXX
ADDITIONAL BENEFITS
INITIALED BY COMPANY
REPRESENTATIVE:
1. YOU WILL WORK OUT OF YOUR HOME OFFICE IN MELROSE, MA WHEN WORKING IN THE US. _______
2. SHOULD YOU RELOCATE TO VANCOUVER, BC WITHIN YOUR FIRST TWO (2) YEARS OF
EMPLOYMENT, THE COMPANY WILL REIMBURSE YOU FOR ALL REASONABLE MOVING
EXPENSES. AT THAT TIME, IF YOU CHOOSE TO PURCHASE A RESIDENCE IN
VANCOUVER, THE COMPANY WILL PAY FOR THE CLOSING COSTS ASSOCIATED WITH
THIS PURCHASE. _______
3. THE COMPANY WILL PAY FOR FURNISHED ACCOMMODATIONS IN VANCOUVER AND THE COST
OF A RENAL CAR, WHILE YOU ARE WORKING IN VANCOUVER. _______
4. YOU ARE ELIGIBLE FOR PAID MEDICAL TRAVEL INSURANCE WHEN YOU ARE TRAVELING
OUTSIDE OF THE US. _______
5. THE COMPANY WILL PAY MEMBERSHIP DUES ON YOUR BEHALF FOR PROFESSIONAL
SOCIETIES. _______
6. THE COMPANY WILL PAY THE COST OF ONE (1) MEMBERSHIP IN AN AIRLINE CLUB OF
YOUR CHOICE ON YOUR BEHALF. _______
7. THE COMPANY WILL ASSIST YOU WITH THE IMMIGRATION PROCESS AS REQUIRED. _______
8. THE COMPANY WILL ARRANGE TAX ADVICE FOR YOU WITH RESPECT TO ANY
CONSEQUENCES OF HAVING BEEN EMPLOYED BY A CANADIAN COMPANY OR RECEIVING
STOCK OPTIONS FROM A CANADIAN COMPANY AND THE ENGAGEMENT OF AN
ACCOUNTANT TO ASSIST IN THE COMPLETION OF YOUR TAX RETURNS. _______
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