EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (the “Agreement”), effective as of October 21, 2008 (the “Effective
Date”), is entered into on November 21, 2008 (the “Execution Date”) by and between The
Spectranetics Corporation, a Delaware corporation (the “Company”), and Xxxxx Xxxxxxxxxxxx (the
“Executive”).
WHEREAS, the Company desires to employ the Executive as its President and Chief Executive
Officer, and the Executive desires to be employed by the Company in such capacities, in accordance
with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the parties hereto
hereby agree as follows:
1. Term. Subject to earlier termination as hereinafter provided, Executive’s
employment hereunder shall be for a period (the “Employment Period”) commencing on the Effective
Date and ending on the third anniversary of the Effective Date (the “Initial Termination Date”).
If not previously terminated, the Employment Period shall automatically be extended for one
additional year on the Initial Termination Date and on each subsequent anniversary of the Initial
Termination Date, unless either Executive or the Company elects not to so extend the Employment
Period by notifying the other party, in writing, of such election not less than sixty (60) days
prior to the last day of the then current Employment Period.
2. Position, Duties and Responsibilities.
(a) Position. Effective on the Effective Date, the Company shall employ Executive,
and Executive hereby agrees to serve the Company, as President and Chief Executive Officer of the
Company. Executive shall perform such employment duties as are usual and customary for such
positions and shall report to the Board of Directors of the Company (the “Board”). Subject to the
provisions of Section 2(c) below, Executive shall devote his best efforts and his full business
time and attention to the performance of services hereunder for the Company and its subsidiaries
and affiliates and as may reasonably be requested by the Board. In addition, during the Employment
Period, the Company shall use its best efforts to cause the Executive to be nominated to stand for
election to the Board at any meeting of stockholders of the Company during which any such election
is held and the Executive’s term as director will expire if he is not reelected; provided, however,
that the Company shall not be so obligated if any of the events constituting Cause (as defined
below) have occurred and not been cured. Subject to election by the Board, Executive shall serve
as the Chairman of the Board.
(b) Place of Employment. During the Employment Period, Executive’s principal place of
employment shall be the Company’s offices in Connecticut, provided that Executive shall travel
to/from and work at the Company’s principal business offices located in Colorado Springs, Colorado
as necessary or desirable to perform the duties and responsibilities contemplated hereby.
Notwithstanding the foregoing, the Company may from time to time require Executive to travel
temporarily to other locations on the Company’s business.
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(c) Exclusivity. Except with the prior written approval of the Board (which the Board
may grant or withhold in its sole and absolute discretion), during the Employment Period, Executive
shall not (i) accept any other employment or consultancy, (ii) serve on more than two boards of
directors or similar bodies of any other entity, or (iii) engage, directly or indirectly, in any
other business activity (whether or not pursued for pecuniary advantage), in each case that is or
may be competitive with, or that might place him in a competing position to, that of the Company or
any of its subsidiaries or affiliates; provided, however, that nothing in this Agreement shall (1)
limit Executive’s ability to provide services to or participate in non-profit, charitable or civic
organizations or to manage personal investments, or (2) preclude Executive from conducting the
affairs of Madison Investment Partners, Inc. and its affiliates, in each case, to the extent that
such activities do not materially interfere with Executive’s performance of his duties hereunder.
3. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company shall pay Executive an annual
base salary of not less than $500,000 per year (the “Base Salary”), which shall be paid to
Executive in accordance with the Company’s standard payroll practices. Executive’s Base Salary
shall be subject to review by the Board or the Compensation Committee of the Board on an annual
basis commencing no later than October 21, 2009.
(b) Annual Bonus. Provided that the Executive remains employed by the Company on the
last day of the applicable fiscal year of the Company, during the Employment Period, Executive will
be eligible to receive an annual bonus under the Company’s incentive bonus plan applicable to
similarly situated executives of the Company. The amount of Executive’s annual bonus (the “Annual
Bonus”) will be based on the attainment of annual performance criteria established and evaluated by
the Compensation Committee of the Board in accordance with the terms of such bonus plan as in
effect from time to time, provided that, subject to the terms of such bonus plan, Executive’s
Annual Bonus at target performance will be 50% of Executive’s Base Salary for such year. Any
Annual Bonus payable to the Executive with respect to the 2008 fiscal year shall be pro rated based
on the Base Salary actually paid for such partial fiscal year and shall be based on the 2008 bonus
targets for executive officers that were set by the Compensation Committee of the Board in early
2008 and include quantitative targets weighted at 75% of the Annual Bonus and qualitative targets
weighted at 25% of the Annual Bonus. Any Annual Bonus that becomes payable to the Executive shall
be paid as soon as practicable following the end of the year for which the Annual Bonus is earned,
but in no event later than June 30 of such following year.
(c) Equity Compensation. The Company shall, on the Execution Date, grant Executive
the following stock options (the “Options”) to purchase shares of common stock of the Company under
the Company’s 2006 Incentive Award Plan (the “Incentive Plan”), in each case at an exercise price
per share equal to the Fair Market Value (as defined in the Incentive Plan) of a share of Company
common stock on the date of grant:
(i) An option to purchase 250,000 shares of common stock of the
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Company (the “Time Vesting
Option”). The terms and conditions of the Time Vesting Option, including, without limitation, such
option’s vesting and exercisability, shall be set forth in a stock option agreement to be entered
into by the Company and Executive substantially in the form attached hereto as Exhibit A
(the “Time Vesting Option Agreement”).
(ii) An option to purchase 150,000 shares of common stock of the Company (the “Conditional
Time Vesting Option”). The terms and conditions of the Conditional Time Vesting Option, including,
without limitation, such option’s vesting and exercisability, shall be set forth in a stock option
agreement to be entered into by the Company and Executive substantially in the form attached hereto
as Exhibit B (the “Conditional Time Vesting Option Agreement”).
(iii) An option to purchase 400,000 shares of common stock of the Company (the “Conditional
Performance Vesting Option”). The terms and conditions of the Conditional Performance Vesting
Option, including, without limitation, such option’s vesting and exercisability, shall be set forth
in a stock option agreement to be entered into by the Company and Executive substantially in the
form attached hereto as Exhibit C (the “Conditional Performance Vesting Option Agreement,”
and collectively with the Time Vesting Option Agreement and the Conditional Time Vesting Option
Agreement, the “Option Agreements”).
The parties acknowledge and agree that the Options will be granted prior to approval by the
Company’s stockholders of the Plan Amendment (as defined below). The Company shall submit the Plan
Amendment for approval by the Company’s stockholders at the next annual meeting of the Company’s
stockholders following the Execution Date. Notwithstanding anything contained in this Agreement or
any Option Agreement, neither the Conditional Time Vesting Option nor the Conditional Performance
Vesting Option shall be exercisable to any extent by anyone prior to the time when the Plan
Amendment is approved by the Company’s stockholders, and if such approval is not obtained at such
annual meeting (or by the end of the twelve month period immediately following the date on which
the Board adopted the Plan Amendment, if earlier), each of the Conditional Time Vesting Option and
the Conditional Performance Vesting Option shall thereupon automatically be canceled and become
null and void.
For purposes of this Agreement, “Plan Amendment” shall mean that certain Sixth Amendment to The
Spectranetics Corporation 2006 Incentive Award Plan which was adopted by the Board as of November
19, 2008, subject to approval thereof by the Company’s stockholders.
(d) Housing and Automobile Allowance. During the Employment Period, the Company shall
pay Executive a combined monthly housing and automobile allowance in an aggregate amount equal to
$5,000 per month, payable on the first regular Company payroll date of each month.
(e) Business and Travel Expenses. During the Employment Period, the Company shall
reimburse Executive for reasonable business expenses actually incurred by Executive in connection
with the conduct of the Company’s business, and shall reimburse Executive for reasonable travel
expenses actually incurred by Executive for travel by him (but not any member of his family or any
other party) between Connecticut and the Company’s
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offices in Colorado Springs, Colorado, in each
case upon presentation of proper documentation of such expenses consistent with the Company’s
policies as in effect from time to time.
(f) Health Care Premiums. During the Employment Period, provided that Executive is
not then participating in the Company’s health insurance plan, the Company shall reimburse
Executive in an amount not to exceed $23,000 per year for premium costs actually incurred by
Executive for family health insurance coverage under a plan not sponsored or maintained by the
Company. Executive’s right to such reimbursement shall be subject to and conditioned on his
submission to the Company of proper documentation evidencing such expenditures not later than the
30th day following the end of the calendar quarter in which such expense was incurred.
(g) Other Benefits. During the Employment Period, Executive shall be eligible to
participate in all savings and retirement plans, and all group welfare benefit plans maintained by
the Company from time to time which are applicable to the Company’s senior executive officers,
subject to the terms and conditions of such plans. Notwithstanding the foregoing, nothing herein
is intended, or shall be construed to require the Company to institute or continue any, or any
particular, plan or benefits.
(h) Vacation, Etc.. During the Employment Period, Executive shall be entitled to
vacation, sick leave, holidays and other paid time-off benefits provided by the Company from time
to time which are applicable to the Company’s senior executive officers.
(i) Taxes. Except to the extent otherwise required by applicable law, Executive shall
be solely responsible for any and all income and other taxes with respect to the amounts payable to
him under Section 3(d) and 3(e), and the Company shall not have any obligation or liability with
respect thereto or any obligation or liability to make any additional payments to Executive to
cover any such taxes.
4. Termination. Executive’s employment hereunder shall be terminated, or may be
terminated, as the case may be, under the following circumstances:
(a) Death. Executive’s employment hereunder shall automatically terminate upon his
death.
(b) Disability. The Company may terminate Executive’s employment hereunder in the
event of his physical or mental disability or infirmity which, in the opinion of a competent
physician selected by the Board, renders Executive unable to perform his duties under this
Agreement for more than 90 days during any 180-day period.
(c) Cause. The Company may terminate Executive’s employment hereunder for Cause. For
purposes of this Agreement, “Cause” shall mean (i) a failure by Executive to render services to the
Company or its subsidiaries in accordance with his assigned duties and responsibilities, and such
failure of performance continues for a period of more than fifteen days after notice thereof has
been provided to Executive by the Company (other than any such failure resulting from Executive’s
disability); (ii) any action or omission by Executive involving willful
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misconduct or gross
negligence relating to his duties and responsibilities to the Company or its affiliates, including
without limitation, disloyalty, dishonesty or breach of fiduciary duty; (iii) Executive’s
commission of (as determined by the Company) or indictment for a crime, either in connection with
the performance of his obligations to the Company or its affiliates or which otherwise shall
significantly adversely affect his ability to perform such obligations or which shall significantly
adversely affect the business activities, reputation, goodwill or image of the Company or its
affiliates; (iv) Executive’s breach of any material obligation he has under any written agreement
with the Company or its affiliates or which have been delegated to him by the Company which, if
capable of cure, is not cured within five days from receipt of notice from the Company; or (v) any
act of fraud, embezzlement, theft or misappropriation from the Company or its affiliates by
Executive.
(d) Non-Cause Termination. Subject to Section 5(c) below, the Company may terminate
Executive’s employment hereunder without Cause. Notwithstanding anything contained herein, in no
event shall the expiration of the Employment Period or the Company’s election not to renew the
Employment Period constitute a termination of Executive’s employment by the Company without Cause.
(e) Resignation. Executive may resign his position and terminate his employment with
the Company at any time with or without Good Reason by delivery of a written notice of resignation
to the Company (the “Notice of Resignation”). In the event of a resignation without Good Reason,
the Notice of Resignation shall set forth the date such resignation shall become effective, which
date shall, in any event, be at least thirty (30) days and no more than such number of days as the
Company may determine following the date the Notice of Resignation is delivered to the Company.
For purposes of this Agreement, “Good Reason” shall mean (i) a material diminution in the
authority, duties or responsibilities of the Executive as President and Chief Executive Officer of
the Company, or (ii) a material reduction of Executive’s Base Salary; provided, however, that
no resignation shall constitute a resignation for Good Reason unless and until (1) Executive has
first provided the Company with written notice specifically identifying the acts or omissions
constituting the grounds for “Good Reason” within thirty days after the initial existence of the
facts or circumstances constituting Good Reason, (2) the Company has not cured such acts or
omissions within thirty days of its actual receipt of such notice, and (3) the effective date of
Executive’s termination for Good Reason occurs no later than ninety days after the initial
existence of the facts or circumstances constituting Good Reason.
5. Obligations upon Termination.
(a) Executive’s Termination Obligations. Upon termination of the Employment Period
for any reason, Executive shall be deemed to have resigned from all offices and directorships, if
any, then held with the Company or any subsidiary or affiliate, and, at the Company’s request,
Executive shall execute such documents as are necessary or desirable to effectuate such
resignations; provided, however, that this Section 5(a) shall not apply to Executive’s position as
a member of the Board.
(b) Payments of Accrued Obligations Upon Termination of Employment. In the event of
Executive’s termination of employment with the Company for any reason, the
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Company shall pay
Executive or Executive’s estate or legal representative (as applicable) (i) all unpaid salary and
unpaid vacation accrued by Executive through the date of termination, (ii) any accrued, unpaid
bonuses for any fiscal year of the Company ended prior to the date of termination, and (iii) any
unreimbursed business expenses incurred by Executive, in accordance with Company policy for senior
executives, prior the date of termination (the “Accrued Obligations”).
(c) Severance upon Termination Without Cause or for Good Reason. Subject to Section
5(d) below, in the event that Executive incurs a “separation from service” from the Company (within
the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the
“Code”), and Treasury Regulation Section 1.409A-1(h)) (a “Separation from Service”) by reason of a
termination of Executive’s employment by the Company without Cause or by Executive for Good Reason,
then, subject to Section 5(e) below, the Company shall pay Executive within 60 days after the date
of such Separation from Service (the “Termination Date”) (with the exact payment date to be
determined by the Company in its discretion), a lump-sum payment (the “Severance Payment”) in an
amount equal to 100% of the Executive’s Base Salary as in effect on the date of termination of
Executive’s employment.
(d) General Release. The Executive’s right to receive the Severance Payment is
conditioned on and subject to the Executive’s execution within 21 days (or, to the extent required
by applicable law, 45 days) following the Termination Date and non-revocation within 7 days
thereafter of a general release of claims against the Company, its subsidiaries and affiliates in a
form prescribed by the Company.
(e) Six-Month Delay. Notwithstanding anything to the contrary in this Agreement, no
compensation or benefits, including without limitation the Severance Payment, shall be paid to
Executive during the six (6)-month period following the Termination Date to the extent that paying
such amounts at the time or times indicated in this Agreement would result in a prohibited
distribution under Section 409A(a)(2)(b)(i) of the Code. If the payment of any such amounts is
delayed as a result of the previous sentence, then on the first business day following the end of
such six-month period, the Company shall pay Executive a lump-sum amount equal to the cumulative
amount that would have otherwise been payable to Executive during such six-month period.
6. Confidential and Proprietary Information. As a condition of Executive’s employment
with the Company, Executive agrees that during the Employment Period and thereafter, Executive will
not directly or indirectly disclose or appropriate to Executive’s own use, or the use of any third
party, any trade secret or confidential information concerning the Company, its subsidiaries or
affiliates or their businesses, whether or not developed by Executive, except as it is required in
connection with Executive’s services rendered for the Company. Executive further agrees that, upon
termination of Executive’s employment, Executive will not receive or remove from the files or
offices of the Company any originals or copies of documents or other materials maintained in the
course of business of the Company, and that Executive will return any such documents or materials
otherwise in Executive’s possession. Executive hereby acknowledges that irreparable injury will
result to the Company in the event of a breach by Executive of Executive’s obligations under this
Section 6 or Section 7 below, that
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monetary damages for such breach would not be readily
calculable, and that the Company would not have an adequate remedy at law therefor. Executive
further acknowledges, consents and agrees that in the event of such breach, or the threat thereof,
the Company shall be entitled, in addition to any other legal remedies and damages available, to
specific performance thereof and to temporary and permanent injunctive relief (without the
necessity of posting a bond) to restrain the violation or threatened violation of such obligations
by Executive. The provisions of this Section 6 and of Section 7 below, and Executive’s obligations
under such sections, shall survive the termination of Executive’s employment and the termination of
this Agreement.
7. Non-Solicitation. Executive further agrees that during the Employment Period and
for a period of one year after Executive’s employment is terminated, Executive will not directly or
indirectly solicit, induce, or encourage any employee, consultant, agent, customer, vendor, or
other parties doing business with the Company to terminate their employment, agency, or other
relationship with the Company or to render services for or transfer their business from the Company
and Executive will not initiate discussion with any such person for any such purpose or authorize
or knowingly cooperate with the taking of any such actions by any other individual or
entity.1
8. Notice. Any notice or other communication required or permitted under this
Agreement shall be effective only if it is in writing and delivered personally or sent by fax,
email or registered or certified mail, postage prepaid, addressed as follows (or if it is sent
through any other method agreed upon by the parties):
If to the Company:
The Spectranetics Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Executive: at Executive’s most recent address on the books and records of the
Company.
9. Withholding. All amounts payable under this Agreement shall be subject to
reduction to reflect such federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
10. Code Section 409A.
(a) To the extent applicable, this Agreement shall be interpreted and applied consistent and
in accordance with Section 409A of the Code and Department of Treasury regulations and other
interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the
contrary, if the Company determines that any compensation or benefits payable under this Agreement
may not be either exempt from or compliant with Section 409A of the Code and related Department of
Treasury guidance, the Company may in its sole discretion
| 1 | Subject to review by local counsel. |
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adopt such amendments to this Agreement
or take such other actions that the Company determines are necessary or appropriate to (i) exempt
the compensation and benefits payable under this Agreement from Section 409A of the Code and/or
preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the
requirements of Section 409A of the Code and related Department of Treasury guidance; provided,
however, that this Section 10(a) shall not create any obligation on the part of the Company to
adopt any such amendment or take any other action.
(b) To the extent permitted under Section 409A of the Code, any separate payment or benefit
under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject
to Section 409A of the Code and Section 5(d) hereof to the extent provided in the exceptions in
Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable
exception or provision of Section 409A of the Code.
(c) To the extent that any payments or reimbursements provided to Executive under this
Agreement, including, without limitation, the payments and benefits under Sections 3(d), 3(e) and
3(f), are deemed to constitute compensation to which Treasury Regulation Section 1.409A-3(i)(1)(iv)
would apply, such amounts shall be paid or reimbursed to Executive reasonably promptly, but not
later than December 31 of the year following the year in which the expense was incurred. The
amounts of any such payments eligible for reimbursement in one year shall not affect the payments
or expenses that are eligible for payment or reimbursement in any other taxable year, and
Executive’s right to such payments or reimbursement shall not be subject to liquidation or exchange
for any other benefit.
11. Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
12. Assignment. This Agreement may not be assigned by Executive, but may be assigned
by the Company to any subsidiary or affiliate thereof or to any successor to its business or
assets, and shall inure to the benefit and be binding upon any such entities.
13. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together shall constitute one and the same
instrument.
14. Choice of Law. This Agreement (including any claim or controversy arising out of
or relating to this Agreement) shall be construed, interpreted and the rights of the parties
determined in accordance with the laws of the State of Colorado (without regard to conflict of law
principles that would result in the application of any law other than the law of the State of
Colorado).
15. Entire Agreement. Effective as of the Effective Date, this Agreement replaces,
terminates and supersedes all prior understandings or agreements between Executive and the Company
regarding the subject matter hereof. Executive hereby agrees that as of the Effective Date, any
other such agreement or understanding is hereby terminated and shall be of no further
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force or
effect. This Agreement may be modified only by a further writing that is duly executed by both
parties.
16. Executive’s Acknowledgment. Executive acknowledges (a) that he has consulted
with or has had the opportunity to consult with independent counsel of his own choice concerning
this Agreement and has been advised to do so by the Company, and (b) that he has read and
understands the Agreement, is fully aware of its legal effect, and has entered into it freely based
on his own judgment.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year indicated
above.
| THE SPECTRANETICS CORPORATION. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxxxx | |||||
| Title: | Director | |||||
| EXECUTIVE | ||||||
| /s/ Xxxxx Xxxxxxxxxxxx | ||||||
| Xxxxx Xxxxxxxxxxxx | ||||||
00
EXHIBIT A
TIME VESTING OPTION AGREEMENT
EXHIBIT B
CONDITIONAL TIME VESTING OPTION AGREEMENT
EXHIBIT C
CONDITIONAL PERFORMANCE VESTING OPTION AGREEMENT
