Exhibit 10.10
EMPLOYMENT AGREEMENT
--------------------
This Agreement, which supersedes all prior written or oral agreements, is
made this 2nd day of September, 1999, by and between Sparta Surgical
Corporation, a Delaware Corporation, and its wholly owned subsidiary, Sparta
Xxxxx Electrosurgical, Inc., a Delaware Corporation (collectively referred to as
the "Employer"), having its principal offices at 0000 Xxxxxxxx Xxxx Xxxx.,
Xxxxxxx, Xxxxxxxxxx 00000, and Xxxxxx X. Xxxxxx, Xx. (the "Employee").
WHEREAS, the Employer and Employee are desirous of entering into a
comprehensive agreement to replace and cancel all prior and existing agreements
and all amendments, whereby the Employer shall have the right to have the
Employee perform senior management and other services on behalf of the Employer;
and
WHEREAS, the Employer and the Employee are desirous of setting forth their
respective rights and obligations in respect to the Employee's employment with
the Employer;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Employer and the
Employee agree as follows:
1. Employment. The Employer hereby agrees to employ the Employee, and the
Employee hereby accepts employment, all upon the terms, conditions and covenants
set forth in this Agreement.
2. Duties. The Employer hereby employs the Employee to serve as its
President, Chief Executive Officer and Chairman of the Board and such other
offices as Employee may be elected to hold from time to time, with all powers
and duties customarily associated with such titles. During the term of this
Agreement, the Employee shall serve also, without additional compensation, as a
Director of the Employer, if and when so elected by the shareholders of the
Employer. The Employee shall be required to devote an average of 40 hours per
week to his duties hereunder. Nothing contained herein shall be deemed to
prohibit the Employee from devoting any of his time, attention, and energies to
other business interest, however, provided that such other interests are not
directly competitive with the business of the Employer; and further provided
that such other interests shall not materially detract from such efforts which,
in Employee's reasonable judgment, are necessary in order to promote the
interests of the Employer. The Employee's duties hereunder will be performed
primarily within the State of California, and, until otherwise changed by mutual
agreement, his work location shall be Contra Costa County, California.
3. Term. Subject to Section 11, the term of this Agreement shall begin on
September 2, 1999 and, unless terminated sooner to Section 11, shall continue
until September 2, 2006 (the "Term"), providing in the event the Employer has
net sales for any fiscal year in excess of Seven Million Dollars ($7,000,000)
(the "Employment Agreement Term Extension"), then the term of this Agreement
shall be extended for an additional period of three (3) years.
Xxxxxx X. Xxxxxx, Xx.
Employment Agreement
September 2, 1999
Page 2 of 9
4. Compensation, Benefits and Indebtedness.
(a) In each year of this Agreement the Employer shall pay to the
Employee an annual base salary for each year of the Term in the amount of One
Hundred Ninety-Five Thousand Dollars ($195,000) in the first year hereof, and in
each subsequent year 115% of the base salary is payable in the immediate
preceding year. The payment of the annual salary shall be made in accordance
with the Employer's general payroll policies and shall be prorated for any
partial years of employment hereunder. The Board of Directors shall have the
right to increase, but not decrease, the annual salary from year to year, and,
in its discretion, to pay bonuses to the Employee for exemplary performance when
and as it deems appropriate.
(b) In each year of this Agreement, the Employee shall be provided with
additional incentives to continue his performance and to increase the sales and
income levels of the Company and the share price of the Common Stock by the
previous adoption of an Option and Bonus Performance Plan pursuant to the
previous Action by Unanimous Written Consent of the Board of Directors of Sparta
Surgical Corporation dated July 17, 1998 which shall be further incorporated
into this Employment Agreement as set forth in the Exhibit A attached hereto
(the "Plan"), pursuant to 'which additional cash and non-cash compensation would
be provided to Xxxxxx in the event the Company reach certain sales, income and
share price thresholds and to which Xxxxxx'x base salary would be increased upon
the Company's reaching certain levels of annual net sales.
(c) The Employee shall be entitled to participate (to the extent that he
is eligible) in all other employee benefits, if any, provided by the Employer
for its employees, including participation in any qualified pension or profit
sharing plan, eligibility for participation in any group life, health (including
family dependent coverage), dental and eye care benefits. If a "change in
control" occurs (as defined in Section 13), the Employee may choose, within one
year following the event giving rise to the change in control, to receive
instead of any regularly- provided employee benefit or other benefit provided
for hereunder, the similar benefit provided by the Employer prior to such event,
for the balance of the Term hereunder. If there is no benefit then provided
which is similar to a previously-provided employee benefit, or if the benefit
elected by the Employee cannot be provided by the Employer, then the Employer
(or its successor) shall pay the Employee, no less than monthly, as additional
compensation, a cash amount equal to the value of the benefit to the Employee.
This provision shall survive any termination of this Agreement.
(d) The Employer shall provide or reimburse the Employee for disability
insurance coverage in the minimum amount of $12,500 per month, and whole life
insurance coverage in the minimum amount of $1,000,000 during the Term and to
further provide the Employee with a Retirement Plan to be funded pursuant to the
attached Exhibit B Life Insurance Bonus Plan, with Retired Income, which policy
shall be in the name of the Employee and payable to such beneficiaries as
designated by Employee.
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Employment Agreement
September 2, 1999
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(e) The Employer shall reimburse the Employee, as additional
compensation if so required, an amount equal to all amounts paid by or billed to
the Employee or any member of the immediate family of Employee for any dental,
eye care, disability coverage, medical or hospital expenses not covered by the
insurance, if any, maintained by the Employer, regardless of whether the
procedure is or could be covered under the policy provided or any other policy.
Such payments shall be made as provided for reimbursed expenses under Section 7.
(f) The Employer shall pay to the Employee, upon demand by the Employee
and as additional compensation, the amount of (i) any federal, state and local
excise taxes or other non-income tax the Employee must pay as a result of any
payments made or benefits provided to the Employee to this Agreement; (ii) any
federal, state and local excise taxes or income tax on taxable income recognized
as a result of any payments made or benefits provided to Sections 4 (b), (c),
(d) and (e) and Sections 8 and 9 hereof; and (iii) an additional sum of money,
in compensation for any federal, state and local income or excise taxes payable
upon payments made to this Section 4 (f) including any such taxes upon payments
to this subsection 4 (1) (iii), the intention being that payments to this
Section 4 (f) will entirely repay any cost to Employee for any such taxes.
Payment amounts to this Section 4 (f) shall be calculated at the highest
marginal rate to which the Employee might be subject for the year in which the
income is recognized, regardless of the Employee's actual marginal rates.
(g) In addition to all benefits, Employee shall also be entitled to 50%
of all pooled management bonuses to be shared among the Employer's management
during the Term, which pooled management bonuses shall be equal to 7% of the
Employer's pre-tax earnings for each fiscal year. For purposes hereof, pre-tax
earnings will be determined before reduction for any bonus accrual for
management or other similar bonus arrangements in accordance with generally
accepted accounting principles consistently applied. Such bonus will be paid no
later than 10 days following public release of annual financial statements for
said year.
(h) It is acknowledged and agreed hereto, by the Employer, as of August
16, 1999, the Employer Is indebted to the Employee (with no right of offsets of
any kind by the Employer) and agrees to reimburse and/or pay in full to the
Employee during the next twelve (12) months from the date herein, for accrued
salaries in the amount of $86,161, accrued vacation in the amount of $15,505,
benefits/tax reimbursement in the amount of $60,495 and $464,698.27 for various
loans (principal and accrued interest) advanced by the Employee to the Employer
under the May 1997 Working Capital Credit Facility during the period of 9/25/97
through 8/16/99. (See attached Exhibits C, D and E.)
5. Sick Pay and Disability Income. Salary, employee benefits, vacation
accruals, automobile allowance and all other benefits set forth herein shall be
paid to the Employee for any temporary periods of illness during which the
Employee is unable to work and through the period of any disability (as defined
hereinafter).
6. Vacation and Conventions. The Employee shall be entitled each year to
five (5) weeks of paid vacation, prorated for any partial year. Unused vacation
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Employment Agreement
September 2, 1999
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time (including time accumulated prior to the date hereof) shall accumulate from
year to year and the Employee will be compensated for any unused vacation
accumulated upon demand at any time following its accrual. In addition, the
Employee will be entitled to leaves of absence, at full pay, for attendance at
conventions, seminars or as otherwise reasonably determined by the Employee. In
the event any vacation time shall not be taken by the Employee during any given
year, Employee shall be entitled to carry over such time into any subsequent
year or years during the Term. In the Event that Employee has any unused
vacation time accrued under this Agreement upon the termination of Employee's
employment or at the conclusion of the Term, Employee shall be entitled to be
compensated for such unused vacation time.
7. Reimbursement for Expenses. At the end of each month during the Term,
the Employer shall reimburse the Employee for items of travel, entertainment and
miscellaneous expenses incurred or paid by the Employee in the performance of
his duties under this Agreement (including conventions and seminars), upon
presentation by the Employee of such expense statements, vouchers or other
supporting information as the Employer may reasonably require.
8. Automobile. The Employer will provide the Employee with either an
automobile allowance of a minimum of $1,395.00 per month (increased at the
beginning of each year, only, by the Consumer Price Index as determined by the
United States Department of Commerce, or any replacement index), or, if Employee
so elects, with free use of any automobile of Employee's choice. In addition,
the Employer will either pay directly or reimburse the Employee for all expenses
incurred in connection with such automobile, including without limitation,
insurance, fuel, maintenance and repairs. Reimbursement shall be made only
against a signed itemized list of such expenses. The value of any benefits given
to or of any amounts paid to the Employee under this Section 8 in excess of
Employee's actual costs and expenses incurred in the performance of services for
Employer shall be deemed additional compensation under this Agreement and not
subject to reimbursement to the Employer.
9. Office. The Employer shall provide the Employee with an office,
secretarial and administrative assistance, office equipment and supplies and
such other facilities and services as are suitable to the Employee's position
and adequate for the performance of his duties. In addition, the Employer shall
reimburse the Employee for any expenses incurred by the Employee for use of his
home for business purposes.
10. Withholding. The Employer shall withhold or deduct from the Employee's
compensation any amounts required by law to be so withheld or deducted.
11. Termination. This Agreement shall be terminated (except for those
obligations of the Employer which by their terms survive termination) by the
occurrence of any of the following:
(a) The Employee's death.
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Employment Agreement
September 2, 1999
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(b) The action by the Board of Directors following the Employee's
"disability". For this purpose, "disability" means a physical or mental illness
or other incapacity which renders the Employee unable to perform substantially
all of his duties for a period of 48 months. For the purposes of this Agreement,
disability shall be deemed a continuation of any prior disability if the
disability is related to the prior disability and commences within 12 months of
the termination of the prior disability. Disability, and any relation to any
prior disability, shall be determined by a physician mutually acceptable to the
parties to this Agreement or appointed by a court having personal jurisdiction
over the Employee.
(c) Action of the Board of Directors of the Employer for Cause. "Cause"
is defined as the occurrence of any of the following events: (i) Employee's
willful breach of this Agreement, repeated after written notice of such breach
has been given to Employee, and having a material adverse effect upon the
Employer's business or financial circumstances; (ii) Employee's refusal or
intentional failure to carry out the reasonable directives of the Board of
Directors, repeated after written notice of such refusal or failure has been
given to Employee, and having a material adverse effect upon the Employer's
business or financial circumstances; (iii) Employee's habitual gross neglect of
a substantial portion of his duties hereunder, which has not been cured by the
Employee within 30 days after prior written notice thereof is given by the
Employer to the Employee; and (iv) the Employee's conviction of a felony
involving fraud, theft, or embezzlement. In no event shall "cause" be deemed to
mean the Board of Director's mere disagreement, after the fact, with any lawful
action undertaken by the Employee in the good faith exercise of his business
judgment.
(d) Upon the election of the Employee by written notice to the Employer
not less than: (i) 120 days prior to the effective date of termination, or (ii)
after a change in control (as defined in Section 13), 30 days prior to the
effective date of termination.
(e) Upon the election of the Employee with "good reason". "Good reason"
is defined as a material breach of this Agreement by the Employer and includes,
but is not limited to, any decrease in the salary or benefits provided to the
Employee, relegating the Employee to duties which are unrelated to or at a lower
level of responsibility than those currently performed by Employee, having
Employee report to any other officer rather than directly to the Board of
Directors, altering Employee's title as Chairman, President or Chief Executive
Officer, or relocating the Employee to a location unreasonably distant from his
work location.
12. Damages for Breach by Employer.
(a) The employment provisions in this Agreement are a material
inducement to the Employee in continuing to render services to the Employer
during the Term and thereafter. The parties acknowledge that if the Employer
should breach such provisions, the Employee may be required to bring legal
action for damages and that questions of mitigation of damages would be
presented which could be very difficult to resolve prior to expiration of the
Term. For the sake of certainty and to avoid the costs, difficulty and delay of
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Employment Agreement
September 2, 1999
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proving damages in such circumstances, both parties agree that the Employee
shall be entitled to the amount of liquidated damages as set forth in Section 12
(c) in the event of the Employer's breach.
(b) If (i) the Employee terminates this Agreement for "good reason", or
(ii) If during the Term hereof, the Employer (or any successor) terminates the
Employee's employment for any reason other than "cause", as defined herein,
then, in either such case, the Employer shall pay to the Employee, not later
than ten days after the date of such termination, the amount of damages as set
forth in Section 12 (c).
(c) In the event of the termination of this Agreement to Sections 12 (a)
or (b), Employee shall be entitled to an amount of damages equal to: (i) 100% of
the Employee's base salary (including any required increases) for the remainder
of the Term, but in no event for less than five (5) years from the date of
termination, plus (ii) an additional 50% of such base salary, paid in a lump
sum, 1:0 compensate for the loss of fringe benefits, plus (iii) the average
annual bonus paid by the Employer to the Employee for the three (3) full fiscal
years of the Employer prior to the fraction thereof in the period described in
subsection (i) hereof, provided however, that Employer shall not be required to
pay the Employee in excess of $4,000,000 to this Section 12 (c). The Employee
shall not be required to mitigate the amount of any payment provided for in this
Section 12 (C:) by seeking other employment or otherwise, nor shall the
Employee's income from any source after such termination be deducted for any
reason from the sum computed under this Section 12 (c).
(d) If the Employer refuses to pay the Employee any amount due the
Employee under this Agreement, including salary, benefits or the amount provided
in Sections 12 (a) or (b), and the Employee disputes the Employer's legal right
to do so, and whether or not such refusal is occasioned by a termination or
purported termination of this Agreement, then, regardless of whether the
Employee has a right to do so, the Employer shall pay to the Employee the
amounts due (including all futUre amounts) in a timely manner until the dispute
is settled or adjudicated. The Employer shall also reimburse the Employee (in
the manner described in Section 7) for any fees or expenses related to the
dispute. If the Employer prevails in resolution of such dispute, the Employee
shall repay the Employer all sums received under this Section 12 (d) (including
fees and expenses), without interest. The parties acknowledge that if the
Employer should fail to honor its obligations under this Section 12 (d), the
Employee could be irreparably injured by, among other things, not being able to
support himself and also support the enforcement of his rights under this
Agreement and accordingly the eventual award of damages would under the
circumstances not be an adequate remedy.
(e) The provisions of this Section 12 shall survive any termination of
this Agreement.
13. Change in Control Defined. A "change in control" occurs upon the
occurrence of one of the following events, but only if the Employee elects,
within five years thereafter, to have such event treated as a change in control:
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Employment Agreement
September 2, 1999
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(a) An event that would be required to be reported in response to the
Item 5 (f) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act'~), or any successor thereof, assuming
the Employer was a reporting company or was otherwise required to file reports
under the Exchange Act.
(b) Any "person" (as such term is defined in Sections 13 (d) and 14 (d)
(2) of the Exchange Act) who is not currently an owner of securities of the
Employer, is or becomes the beneficial owner, directly or indirectly, of
securities of the Employer representing 20% or more of the combined voting power
of the Employer's then outstanding securities to a tender offer or otherwise.
(c) During any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Employer cease
for any reason to constitute at least a majority thereof unless the. election of
each director, who was not a director at the beginning of the period, was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
14. Notice: Any notices required to be given pursuant to the provisions of
this Agreement shall be in writing and delivered by hand delivery, express
delivery service or by certified mail return receipt requested to the parties at
the following addresses:
Employer: Sparta Surgical Corporation and Sparta Xxxxx
Electrosurgical, Inc.
0000 Xxxxxxxx Xxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
Employee: Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
15. Successors: Binding Effect.
(a) The Employer shall require any successor (whether direct or indirect
by purchase of assets, purchase or exchange of stock, merger, consolidation or
otherwise) to all or substantially all of the business and / or assets of the
Employer, by agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Employer would be required to perform it if no such
succession had taken place. Failure of the Employer to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement. As used in this Agreement, "Employer" shall mean Sparta Surgical
Corporation and any successor to the business and / or assets of Sparta Surgical
Corporation which executes and delivers the agreement provided for in this
Section 15 (a) or which otherwise becomes bound by all of the terms and
provisions of this Agreement by operation of law.
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Employment Agreement
September 2, 1999
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(b) This Agreement and all rights of the Employee hereunder shall inure
to the benefit of and be enforceable by the administrators, successors, heirs,
distributees, devisees and legatees of the Employee. If the Employee should die
prior to the payment to him of any amounts due him hereunder, all such payments
shall be made in accordance with this Section 15 (b).
16. Arbitration. At the election of the Employee, any dispute respecting
this Agreement, whether commenced by the Employer or Employee may be resolved by
arbitration before a three-person panel of independent arbitrators to the
Commercial Rules of the American Arbitration Association ("AAA"). Any
arbitration compelled to this section shall be held at the AAA office nearest to
Employee's residence at the time such action is commenced. Employee shall be
entitled to a stay of any legal proceeding instituted against by the Employer in
the event that an election to arbitrate pursuant to this Section is made.
17. Attorney's Fees and Litigation. In any litigation or arbitration
relating to this Agreement, including litigation or arbitration with respect to
any instrument, document or other agreement made under or in connection with
this Agreement, the Employer shall bear all costs and attorney's fees of both
parties.
18. Authority. Each party represents that its undersigned representative or
corporate officer has all requisite power and authority to enter into this
agreement and to execute any and all instruments and documents on its behalf
necessary to and in performance of their respective obligations hereunder.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed original, but all of which together
shall constitute one and the same instrument.
20. Severability. If any provisions of this Agreement shall be held to be
invalid or unenforceable to any extent or in any application, then the remainder
of this Agreement and such term and condition, except to such extent or in such
application, shall not be affected thereby, and each and every term and
condition of this Agreement shall be valid and enforced to the fullest extent
and in the broadest application permitted by law.
21. Heading. The paragraph headings contained herein are for convenience
and reference only, and shall be given no effect in the interpretation of any
term or condition of this Agreement.
22. Miscellaneous. This Agreement is entered into and shall be construed
under the laws of the State of California applicable to contracts made and to be
entirely performed which that State. In the event that, notwithstanding Section
16 hereof, any litigation relating to this Agreement is held to be permissible,
the venue thereof shall be in the appropriate court with jurisdiction over the
matter in dispute for the county in which the Employee resides at the time of
the filing of the lawsuit in question. This Agreement shall be amended, modified
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Employment Agreement
September 2, 1999
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or terminated only by an instrument in writing, signed by the party or parties
to be charged. This Agreement shall inure to the benefits of the parties and
their successors in interest. This Agreement is the entire agreement of the
parties relating to the employment of the Employee by the Employer and
supersedes all previous written or oral agreements.
IN WITNESS WHEREOF the parties have executed this Agreement under seal the
day and year first above written.
SPARTA SURGICAL CORPORATION
Employer By: /s/ Xxxxx Xxxx 9/3/99
----------------------------------------
Xxxxx Xxxx, Secretary, Director Date
By: /s/ Xxxx Xxxx 9/8/99
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Xxxx Xxxx, Director Date
By: /s/ Xxxxxxx Xxxxxxx 9/8/99
----------------------------------------
Xxxxxxx Xxxxxxx Date
Employee: By: /s/ Xxxxxx X. Xxxxxx 9/2/99
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Xxxxxx X. Xxxxxx, Xx. Date
9
Exhibit A
OPTION AND BONUS PERFORMANCE PLAN ("PLAN")
I. Sales and Share Price Bonus
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Base Amounts:
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Net Sales: $2.5 Million
Share Price: $1.00
Minimum Net Sales
and Share Price
(as % Increase over
Base Amount) Cash Bonus Stock Options Bonus
------------ ---------- -------------------
25% $10,000 100,000 shares
50% $20,000 200,000 shares
75% $30,000 300,000 shares
100% $40,000 400,000 shares
200% $50,000 500,000 shares
300% $60,000 600,000 shares
II. Net Income Bonus
---------------
Minimum
Net Income Cash Bonus Stock Options Bonus
---------- ---------- -------------------
$100,000 $10,000 100,000 shares
$200,000 $20,000 200,000 shares
$250,000 $30,000 300,000 shares
$300,000 $40,000 400,000 shares
$350,000 $50,000 500,000 shares
$400,000 $60,000 600,000 shares
All of the foregoing stock options (under I and II) shall be cumulative and
issued immediately at such time as the Company obtains the requisite thresholds
during any fiscal year and not at the end of each fiscal year. All of the
foregoing options will be exercisable at a price of $1.00 per share and remain
exercisable for a period of seven (7) years following their vesting.
III. Base Salary Increase on Sales
-----------------------------
At any such time, as any of the following Minimum Annual Net Sales
Thresholds are met (even if during the middle of any fiscal year), Xxxxxx'x
annual base salary shall automatically be increased as follows:
Minimum Annual Net Sales Annual Base Salary
------------------------ ------------------
$ 5,000,000 $225,000
$10,000,000 $255,000
$15,000,000 $285,000
$20,000,000 $325,000
$25,000,000 $385,000
