Exhibit 10.64
EMPLOYMENT AGREEMENT
This Agreement is effective as of the 14th day of February, 2001, by and
between Xxxxxxx X. Xxxxx (the "Executive") and NMT Medical, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Company wishes to employ the Executive as the Vice President
and Chief Financial Officer of the Company under the terms and conditions set
forth below; and
WHEREAS, the Executive wishes to accept such employment under those terms
and conditions;
NOW, THEREFORE, in consideration of the provisions and mutual covenants
contained in this Agreement and for other good and valuable consideration, the
Company and the Executive (the "Parties") agree as follows:
1. TERM OF EMPLOYMENT.
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The Company agrees to employ the Executive, and the Executive agrees to
serve, on the terms and conditions of this Agreement, for a period commencing as
of the date hereof (the "Effective Date") and ending on February 14, 2004, or
such shorter period as may be provided for herein. The employment term
described above is hereinafter referred to as the "Employment Term". The
Employment Term may be extended only in writing signed by both the Company and
the Executive.
2. POSITION, DUTIES, RESPONSIBILITIES.
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During the Employment Term, the Executive shall serve as Vice President and
Chief Financial Officer of the Company. In such capacity, the Executive shall
report to the President and Chief Executive Officer of the Corporation (the
"President") and shall perform such duties and have such responsibilities of an
executive nature as are set forth in the Company's Amended and Restated By-Laws,
as amended from time to time (the "By-Laws"), and as are customarily performed
by a person holding such office, it being recognized that the Executive's duties
and responsibilities, consistent with his titles hereunder, may be changed by
the Board of Directors of the Company (the "Board of Directors") from time to
time. The Executive shall devote his full business time and attention to the
performance of his duties under this Agreement.
3. BASE SALARY.
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During the Employment Term, the Executive shall be paid an annual base
salary of $190,000 ("Salary"), subject to deductions for social security, state
payroll and unemployment and all other legally required or authorized deductions
and withholding. The Executive's Salary shall be payable in accordance with the
Company's standard payroll practice. The President shall review the Executive's
Salary at least on an annual basis, upon the anniversary of this Agreement;
provided, however, that any actual additional Salary increases shall be in the
sole discretion of the President.
4. STOCK OPTIONS.
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On the Effective Date, the Executive shall be granted a stock option (the
"Options") to purchase 85,000 shares of common stock, par value $.001 per share,
of the Company (the "Common Stock"), under either the Company's 1998 Stock
Incentive Plan or 1996 Stock Option Plan. The exercise price for the Options
shall be the closing price ($1.25) of the Common Stock on the date of grant,
which date shall be the Effective Date. The Options shall, to the maximum
extent permissible under Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), constitute incentive stock options, with any balance of
the Options to be treated as non-statutory stock options. The Options shall
vest in 48 equal monthly installments on each monthly anniversary of the date of
grant. Once exercisable, the Options shall remain exercisable for a period of
ten (10) years from the date of grant (the "Final Exercise Date").
Notwithstanding the foregoing, the Options shall become immediately exercisable
in the event of a Change of Control of the Company or the termination of the
Executive's employment without cause pursuant to Section 13. For purposes of
this Agreement, a "Change of Control of the Company" shall be deemed to have
occurred only upon (a) any merger or consolidation of the Company with or into
another entity as a result of which the Common Stock is converted into or
exchanged for the right to receive cash, securities or other property or (b) any
exchange of all or substantially all shares of the Company for cash, securities
or other property pursuant to a statutory share exchange transaction.
5. ANNUAL BONUS
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Commencing with the Company's fiscal year 2001, after the completion of the
Company's fiscal year and as soon as the Company's financial information
required to be included in its Annual Report on Form 10-K for such fiscal year
is available, but in no event later than 90 days after the end of such fiscal
year, the Executive shall be entitled to receive an annual bonus (the "Annual
Bonus") consisting of a cash bonus of up to 30% of the Salary as then in effect
for such fiscal year provided that (i) the Executive satisfies agreed-upon
financial and other performance goals each as contained in an annual incentive
plan for the Executive as established in good faith by the President in
consultation with the Executive on an annual basis (the "Incentive Plan") and
(ii) the Company achieves an agreed-upon profit target as contained in the
Incentive Plan as established in good faith by the President in consultation
with the Executive on an annual basis; provided, however, that the President, in
his reasonable discretion, shall determine whether the Executive has satisfied
such goals. In the event that the Executive is entitled to the Annual Bonus,
then the Executive shall receive the Annual Bonus prior to the Company filing
its Annual Report on Form 10-K for such fiscal year.
6. EMPLOYEE BENEFITS.
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(a) Benefit Programs. During the Employment Term, the Company shall
provide the Executive and eligible family members with medical, dental, and
disability insurance and such other benefits and perquisites as are provided in
the Company's applicable plans and programs to its employees generally;
provided, that the Executive meets the qualifications therefor ("Benefits").
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(b) Vacation. During each twelve month period of the Employment Term,
the Executive shall be entitled to three weeks of vacation; provided, however,
that any vacation time not taken during any year shall be forfeited. The
Executive shall also be entitled to all paid holidays given by the Company to
its officers and employees.
7. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE.
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The Executive represents and warrants to the Company that the Executive is
under no contractual or other restriction or obligation which is inconsistent
with the execution of this Agreement, the performance of his duties hereunder,
or the other rights of the Company hereunder.
8. NON-COMPETITION; NON-SOLICITATION.
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In view of the unique and valuable services it is expected Executive will
render to the Company, Executive's knowledge of the customers, trade secrets,
and other proprietary information relating to the business of the Company and
its customers and suppliers and similar knowledge regarding the Company it is
expected Executive will obtain, and in consideration of the compensation to be
received hereunder, Executive agrees that he will not, during the period he is
employed by the Company under this Agreement or otherwise, and for a period of
one year after he ceases to be employed by the Company under this Agreement or
otherwise, compete with or be engaged in, or Participate In (as defined below)
any other business or organization (which shall not include a university,
hospital, or other non-profit organization) which during such one year period is
or as a result of the Executive's engagement or participation would become
competitive with the Company's business of designing, developing, manufacturing,
marketing and selling neurosurgical devices, xxxx xxxx filters, stents, septal
repair devices or other medical devices being designed, developed, manufactured,
marketed or sold by the Company up to the time of such cessation; provided,
however, that the provisions of this Section 8 shall not be deemed breached
merely because the Executive owns less than 1% of the outstanding capital stock
of a corporation, if, at the time of its acquisition by the Executive such stock
is listed on a national securities exchange. The term "Participate In" shall
mean: "directly or indirectly, for his own benefit or for, with or through any
other person (including the Executive's immediate family), firm or corporation,
own, manage, operate, control, loan money to, or participate in the ownership,
management, operation or control of, or be connected as a director, officer,
employee, partner, consultant, agent, independent contractor, or otherwise with,
or acquiesce in the use of his name in."
The Executive will not, directly or indirectly, solicit or interfere with,
or endeavor to entice away from the Company any of its suppliers, customers or
employees within a period of one year after the date of termination of the
Executive's employment (the "Termination Date"). The Executive will not
directly or indirectly employ any person who was an employee of the Company
within a period of one year after such person leaves the employ of the Company.
If any restriction contained in this Section 8 shall be deemed to be
invalid, illegal, or unenforceable by reason of the extent, duration or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration,
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geographical scope or other provisions hereof, and in its reduced form such
restriction shall then be enforceable in the manner contemplated hereby.
9. INTELLECTUAL PROPERTY RIGHTS.
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Any interest in patents, patent applications, inventions, technological
innovations, copyrights, copyrightable works, developments, discoveries, designs
and processes which the Executive during the period he is employed by the
Company under this Agreement or otherwise may acquire, conceive of or develop,
either alone or in conjunction with others, utilizing the time, material,
facilities or information of the Company ("Inventions") shall belong to the
Company; as soon as the Executive owns, conceives of, or develops any Invention,
he agrees immediately to communicate such fact in writing to the Board of
Directors, and without further compensation, but at the Company's expense,
forthwith upon request of the Company, the Executive shall execute all such
assignments and other documents (including applications for patents, copyrights,
trademarks, and assignments thereof) and take all such other action as the
Company may reasonably request in order (a) to vest in the Company all of the
Executive's right, title and interest in and to such Inventions, free and clear
of liens, mortgages, security interests, pledges, charges and encumbrances and
(b), if patentable or copyrightable, to obtain patents or copyrights (including
extensions and renewals) therefor in any and all countries in such name as the
Company shall determine.
10. NONDISCLOSURE.
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The Employee Nondisclosure and Secrecy Agreement dated as of February 15,
2001 between the Company and the Executive shall remain in full force and
effect.
11. INJUNCTIVE RELIEF.
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Because a breach of the provisions of any of Section 8, Section 9 and
Section 10 could not adequately be compensated by money damages, the Company
shall be entitled, in addition to any other right and remedy available to it, to
an injunction restraining such breach or a threatened breach, and in either case
no bond or other security shall be required in connection therewith. The
Executive agrees that the provisions of each of Section 8, Section 9 and Section
10 are necessary and reasonable to protect the Company in the conduct of its
business.
12. TERMINATION OF THE EXECUTIVE UPON DEATH OR DISABILITY.
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(a) The term of the Executive's employment shall terminate
automatically upon his death. In addition, the Company shall have the right to
terminate the Employment Term upon the Disability (as defined below) of the
Executive. If the Executive's employment is terminated by the Company due to
the Executive's death or Disability, then the Executive, his guardian or his
estate, as applicable, shall be entitled to:
(i) Salary and Benefits earned to the Termination Date; and
(ii) other benefits as are provided under the applicable plans
and programs of the Company as then in effect.
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(b) For purposes of this Agreement, "Disability" shall mean any
physical or mental disability or incapacity that renders the Executive incapable
of performing his duties hereunder for a period of 180 consecutive calendar days
or for shorter periods aggregating 180 calendar days during any consecutive
twelve-month period.
13. INVOLUNTARY TERMINATION WITHOUT CAUSE.
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(a) The Executive shall be deemed to have been involuntarily
terminated without Cause (as defined below) if one of the following events
occurs:
(i) The Company terminates the Executive's employment at
anytime without Cause (as defined below);
(ii) There occurs a substantial reduction by the Company in the
Executive's responsibilities, authorities, powers and
duties from the responsibilities, authorities, powers and
duties exercised by the Executive just prior to such
reduction but excluding such reduction effected with the
Executive's prior consent or for reasons arising out of the
Executive's gross negligence or willful misconduct;
(iii) The Company requires the Executive to be based principally
at any office or location which is outside New England,
unless the Executive consents to be based principally at
such other office or location;
(iv) The Company's failure to (x) maintain the Executive's
eligibility for participation in existing benefit plans
then being made available by the Company to other employees
of the Company having substantially similar levels of
responsibility as the Executive or (y) provide to the
Executive substantially the same benefits or other
perquisites then being provided or paid to the other
employees of the Company having substantially similar
levels of responsibility as the Executive; or
(v) There occurs a breach of this Agreement by the Company
which continues for more than seven (7) business days after
the Executive gives written notice to the Company, setting
forth in reasonable detail the nature of such breach.
(b) If the Executive's employment is involuntarily terminated at any
time without Cause (as defined below), the Executive shall be entitled to:
(i) Salary and Benefits earned to the Termination Date;
(ii) Annual Bonus for the fiscal year in which such termination
is effected, notwithstanding the provisions of Section 5
and as if the Executive had served throughout such fiscal
year and had satisfied the goals as set forth in the
Incentive Plan for such fiscal year; and
(iii) Continued Salary for a period of nine months from the
Termination Date.
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In addition, all exercisable Options shall expire 360 days after the
Termination Date.
14. TERMINATION BY THE COMPANY FOR CAUSE.
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(a) GENERAL. The Company shall have the right to terminate the
Executive's employment for Cause, as defined in subsection (b) below, in which
event, the Executive shall be entitled only to Salary and Benefits earned to the
Termination Date. In addition, all exercisable Options shall expire as of the
Termination Date.
(b) CAUSE. For purposes of this Agreement, "Cause" shall mean:
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(i) fraud, embezzlement or gross insubordination on the part of
the Executive;
(ii) conviction of or the entry of a plea of nolo contendere by
the Executive to any felony or crime of moral turpitude;
(iii) a material breach of, or the willful failure or refusal by
the Executive to perform and discharge, his duties,
responsibilities or obligations under this Agreement that
is not corrected within 20 days following written notice
thereof to the Executive by the Company, such notice to
state with specificity the nature of the breach, failure or
refusal; provided, that if such breach, failure or refusal
cannot reasonably be corrected within 20 days of written
notice thereof, correction shall be commenced by the
Executive within such period and shall be corrected as soon
as practicable thereafter; or
(iv) any act of willful misconduct by the Executive which is
intended to result in substantial personal enrichment of
the Executive at the expense of the Company or any of its
subsidiaries or affiliates.
15. TERMINATION BY THE EXECUTIVE WITHOUT CAUSE. The Executive may
terminate this Agreement at any time with or without cause by providing thirty
(30) days' prior written notice to the Company, in which event, the Executive
shall be entitled only to Salary and Benefits earned to the Termination Date.
In addition, all exercisable Options shall expire 90 days after the Termination
Date.
16. WITHHOLDING.
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Anything to the contrary notwithstanding, all payments required to be made
by the Company under this Agreement to the Executive, his spouse, his estate or
beneficiaries, shall be subject to withholding of such amounts relating to taxes
as the Company may reasonably determine it should withhold pursuant to any
applicable law or regulation. In addition, in the event that the Company
reasonably determines that it is required to make any payments of
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withholding taxes as a result of Executive's receipt of any other income
pursuant to the terms of this Agreement, the Company may, as a condition to such
receipt, require that the Executive provide the Company with an amount of cash
sufficient to enable the Company to pay such withholding taxes.
17. LOCK-UP AGREEMENT.
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In the event that the Company seeks to consummate a public offering of its
securities during the Employment Term, the Executive shall execute an agreement
in a form and substance satisfactory to the managing underwriter or underwriters
of the Company's securities, not to sell, pledge, contract to sell, grant any
option or otherwise dispose of any shares of stock owned or acquired by the
Executive for such period of time as requested by such underwriter of all other
executive officers of the Company.
18. INDEMNIFICATION.
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During the Employment Term, the Company agrees to (i) indemnify the
Executive in his capacity as an officer of the Company and, to the extent
applicable, as an officer and director of each subsidiary of the Company, as
provided in Article Eighth of the Company's Second Amended and Restated
Certificate of Incorporation, as amended, and (ii) use its best efforts to
maintain in effect its director and officer liability insurance policies.
19. LEGAL FEES.
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The Company shall reimburse the Executive all reasonable and documented
legal fees, costs and expenses incurred by the Executive in contesting or
disputing any breach of this Agreement by the Company or in seeking to obtain or
enforce any right or benefit provided by this Agreement; provided, however, that
the Company shall have no such obligation to reimburse the Executive for such
legal fees, costs and expenses unless the final resolution of such matter is
determined by a court of competent jurisdiction to be in the Executive's favor.
20. ASSIGNABILITY; BINDING NATURE.
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This Agreement and all rights of the Executive shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
estates, executors, administrators, heirs and beneficiaries. All amounts
payable to the Executive hereunder shall be paid, in the event of the
Executive's death, to the Executive's estate, heirs and representatives. This
Agreement shall inure to the benefit of, be binding upon, and be enforceable by,
any successor, surviving or resulting company or other entity to which all or
substantially all of the Company's business and assets shall be transferred.
21. ENTIRE AGREEMENT.
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This Agreement, together with the Employee Nondisclosure and Secrecy
Agreement, contains the entire agreement between the Executive and the Company
(each, a "Party") concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations, and undertakings, whether
written or oral, between the Parties with respect thereto.
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22. AMENDMENTS AND WAIVERS.
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This Agreement may not be modified or amended except by a writing signed by
both Parties. A Party may waive compliance by the other Party with any term or
provision of this Agreement, or any part thereof, provided that the term or
provision, or part thereof, is for the benefit of the waiving Party. Any waiver
will be limited to the facts or circumstances giving rise to the noncompliance
and will not be deemed either a general waiver or modification with respect to
the term or provision, or part thereof, being waived, or as to any other term or
provision of this Agreement, nor will it be deemed a waiver of compliance with
respect to any other facts or circumstances then or thereafter occurring.
23. NOTICE.
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Any notice given under this Agreement shall be in writing and shall be
deemed given when delivered personally or by courier, or five days after being
mailed, certified or registered mail, duly addressed to the Party concerned at
the address indicated below or at such other address as such Party may
subsequently provide, in accordance with the notice and delivery provisions of
this Section 23:
(a) If to the Company: NMT Medical, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
(b) If to the Executive, at his address as it appears on the Company's
records,
With a copy to: Mr. Xxxxx Xxxx, Esq.
Conn Xxxxxxxxx Xxxxxxxxx
Peisch & Ford, LLP
00 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
24. SEVERABILITY.
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In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of this Agreement will be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
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25. SURVIVORSHIP.
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The respective rights and obligations of the Parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
26. REFERENCES.
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In the event of the Executive's death or a judicial determination of his
incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his legal representative or, where appropriate,
to his beneficiary or beneficiaries.
27. GOVERNING LAW.
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This Agreement shall be governed by and construed and interpreted in
accordance with the laws of The Commonwealth of Massachusetts without reference
to the principles of conflicts of law.
28. HEADINGS.
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The headings of sections contained in this Agreement are for convenience
only and shall not be deemed to control or affect the meaning or construction of
any provision of this Agreement. This Agreement may be executed by facsimile
signature.
29. COUNTERPARTS.
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This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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THE UNDERSIGNED have executed this Agreement effective as of the date first
written above.
COMPANY:
NMT Medical, Inc.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx X. Xxxxx
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