Exhibit 10.17
AT-WILL EMPLOYMENT AGREEMENT
It is understood and agreed that the employment by Stereotaxis, Inc., a Delaware
corporation (the "Company" or "Stereotaxis"), of the employee named below
("Employee") shall be subject to the terms and conditions of this At-Will
Agreement ("Agreement").
1. Position; Salary; Incentive Compensation; Termination.
1.1 Position: Employee shall serve as Vice President and Chief Financial
Officer or in such other capacity or capacities as Stereotaxis may from
time to time direct. Employee shall report to Xxxxx X. Xxxx or such other
person as he may from time to time direct. Employee's supervisor shall
schedule employee's hours of work and Employee's position with the Company
is Exempt.
1.2 Salary: Employee shall be paid a base salary equivalent to $200,000
(annualized) in semi-monthly installments, which shall be subject to
applicable withholdings and deductions (pro-rated based on Employee's start
date). Employee shall also have an incentive bonus opportunity of up to 25%
of his salary subject to attainment of goals (pro-rated based on Employee's
start-date) as provided for in the Employee's offer letter.
1.3 Incentive Compensation: Employee shall be granted an option to purchase up
to 250,000 shares of stock in accordance with the Company's 2002 Incentive
Stock Incentive Plan in accordance with the terms of his offer letter.
1.4 Termination: If Employee is terminated without cause, Employee shall be
eligible for up to 12 months of salary continuation under certain
circumstances as defined in his offer letter.
2. Vacation and Sick Leave Benefits (PTO).
The terms and conditions under which Employee is eligible for paid time off
(PTO) is governed by the Employee Handbook; however, the number of vacation and
sick leave days available to Employee will be as described in his offer letter.
3. Company Benefits.
While employed by the Company, Employee shall be entitled to receive the
benefits of employment as the Company may offer from time to time. Employee
agrees that as a condition of Employee's employment by the Company that Employee
will be bound and subject to the terms and conditions of the Company's Employee
Handbook. The Employee Handbook may be revised from time to time at the sole
discretion of the Company.
4. Attention to Duties; Conflict of Interest.
While employed by the Company, Employee shall devote Employee's full business
time, energy and abilities exclusively to the business and interests of
Stereotaxis, and shall perform all duties and services in a faithful and
diligent manner and to the best of Employee's abilities. Employee shall not,
without the Company's prior written consent, render to others, services of any
kind for compensation, or engage in any other business activity that would
materially interfere with the performance of Employee's duties under this
Agreement. Employee represents that Employee has no other outstanding
commitments inconsistent with any of the terms of this Agreement or the services
to be rendered to Stereotaxis. While employed by the Company, Employee shall
not, directly or indirectly, whether as a partner, employee, creditor,
shareholder, or otherwise, promote, participate or engage in any activity or
other business competitive with the Company's business. Employee shall not
invest in any company or business, which competes in any manner with the
Company, except those companies whose securities are listed on the national
securities exchanges.
5. Proprietary Information.
Employee agrees to be bound by the terms of the Confidentiality and Non-compete
Agreement and exhibits thereto, which are attached as Exhibit A and
incorporated by this reference ("Confidentiality and Noncompete Agreement"),
and, by the rules of confidentiality promulgated by Stereotaxis from time to
time.
6. At-Will employer.
The Company is an "at-will" employer. This means that the Company may terminate
Employee's employment at any time, with or without cause, and that Employee may
terminate Employee's employment at any time, with or without cause. Stereotaxis
makes no promise that Employee's employment will continue for a set period of
time, nor is there any promise that it will be terminated only under particular
circumstances. No raise or bonus, if any, shall alter Employee's status as an
"at-will" employee or create any implied contract of employment. Discussion of
possible or potential benefits in future years is not an express or implied
promise of continued employment. No manager, supervisor or officer of
Stereotaxis has the authority to change Employee's status as an "at-will"
employee. The "at-will" nature of the employment relationship with Employee can
only be altered by a written agreement signed by each member of the Board of
Directors of Stereotaxis. No position within Stereotaxis is considered
permanent.
7. Binding Arbitration.
Any dispute, claim or controversy with respect to Employee's termination of
employment with the Company (whether the termination of employment is voluntary
or involuntary), and any dispute, claim or controversy with respect to
incidents or events leading to such termination or the method or manner of such
termination, and any question of arbitrability hereunder, shall be settled
exclusively by arbitration.
Employee and Stereotaxis each waive their constitutional rights to have such
matters determined by a jury. Instead of a jury trial, Stereotaxis and Employee
shall choose an arbitrator. Arbitration is preferred because, among other
reasons, it is quicker, less expensive and less formal than litigation in court.
The arbitrator shall not have the authority to alter, amend, modify, add to or
eliminate any condition or provision of this Agreement, including, but not
limited to, the "at-will" nature of the employment relationship. The
arbitration shall be held in St. Louis, Missouri. The award of the arbitrator
shall be final and binding on the parties. Judgment upon the arbitrator's award
may be entered in any court, state or federal, having jurisdiction over the
parties. If a written request for arbitration is not made within one (1) year
of the date of the alleged wrong or violation, all remedies regarding such
alleged wrong or violation shall be waived.
Should any court determine that any provision(s) of this Agreement to arbitrate
is void or invalid; the parties specifically intend every other provision of
this Agreement to arbitrate to remain enforceable and intact. The parties
explicitly and definitely prefer arbitration to recourse to the courts, for the
reasons described above, and have prescribed arbitration as their sole and
exclusive method of dispute resolution.
8. No Inconsistent Obligations.
Employee represents that Employee is not aware of any obligations, legal or
otherwise, inconsistent with the terms of this Agreement or Employee's
undertakings under this Agreement.
9. Miscellaneous.
Stereotaxis may assign this Agreement and Employee's employment to an affiliated
entity to which the operations it currently manages are transferred.
No promises or changes in Employee's status as an employee of the Company or any
of the terms and conditions of this Agreement can be made unless they are made
in writing and approved by the Board of Directors of Stereotaxis. This
Agreement and the terms and conditions described in it cannot be changed orally
or by any conduct of either Employee or Stereotaxis or any course of dealings
between Employee, or another person and Stereotaxis.
Unless otherwise agreed upon in writing by the parties, Employee, after
termination of any employment, shall not seek nor accept employment with the
Company in the future and the Company is entitled to reject without cause any
application for employment with the Company made by Employee, and not hire
Employee. Employee agrees that Employee shall have no cause of action against
the Company arising out of any such rejection.
This agreement and performance under it, and any suits or special proceedings
brought under it, shall be construed in accordance with the laws of the United
States of America and the State of Missouri and any arbitration, mediation or
other proceeding arising hereunder shall be filed and adjudicated in St. Louis,
Missouri.
If any term or condition, or any part of a term or condition, of this Agreement
shall prove to be invalid, void or illegal, it shall in no way affect, impair
or invalidate any of the other terms or conditions of this Agreement, which
shall remain in full force and effect.
The failure of either party to enforce any provision of this Agreement shall
not be construed as a waiver of or acquiescence in or to such provision.
The Parties to this Agreement represent and acknowledge that in executing this
Agreement they do not rely and have not relied upon any representation or
statement made by the other party or the other party's agents, attorneys or
representatives regarding the subject matter, basis, or effect of this
Agreement or otherwise, other than those specifically stated in this written
Agreement. This Agreement shall be interpreted in accordance with the plain
meaning of its terms and not strictly for or against any party. This Agreement
shall be construed as if each party was its author and each party hereby adopts
the language of this Agreement as if it were his, her or its own. The captions
to this Agreement and its sections, subsections, tables and exhibits are
inserted only for convenience and shall not be construed as part of this
Agreement or as a limitation on or broadening of the scope of this Agreement or
any section, subsection, table or exhibit.
Employee and Stereotaxis have executed this Agreement and agree to enter into
and be bound by the provisions hereof as of 3/22/04.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED
BY THE PARTIES.
STEREOTAXIS, INC.
By: /s/ XXXXX X. XXXX
------------------------------------
Name: Xxxxx X. Xxxx, President and CEO
XXXXXXX X. XXXXXXXXX
Signature: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------
EXHIBIT A
CONFIDENTIALITY AND NONCOMPETE AGREEMENT
This Confidentiality and Noncomplete Agreement ("Agreement") is made and
entered into this 22nd day of March, 2004, by and between Stereotaxis, Inc., a
Delaware corporation ("Company"), and Xxxxxxx X. Xxxxxxxxx, ("Employee").
WHEREAS, Company is engaged in, among other things, the business of
researching, marketing and selling medical devices. The Company is
headquartered and its principal place of business is located in St. Louis,
Missouri;
WHEREAS, Company has expended a great deal of time, money and effort to develop
and maintain its proprietary Confidential and Trade Secret Information (as
defined herein) which provides it with a significant competitive advantage;
WHEREAS, the success of Company depends to a substantial extent upon the
protection of its Confidential and Trade Secret Information and customer
goodwill by all of its employees;
WHEREAS, Employee desires to be employed, or to continue to be employed, by
Company to provide managerial, administrative, technical and/or sales services
for Company; to be eligible for opportunities for advancement within Company
and/or compensation increases which otherwise would not be available to
Employee; and to be given access to Confidential and Trade Secret Information
of Company which is necessary for Employee to perform his or her job, but which
Company would not make available to Employee but for Employee's signing and
agreeing to abide by the terms of this Agreement as a condition of Employee's
employment and continued employment with Company. Employee recognizes and
acknowledges that Employee's position with Company has provided and/or will
continue to provide Employee with access to Company's Confidential and Trade
Secret Information;
WHEREAS, Company compensates its employees to, among other things, develop and
preserve goodwill with its customers on Company's behalf and business
information for Company's ownership and use;
WHEREAS, If Employee were to leave Company, Company, in all fairness, would
need certain protections in order to prevent competitors of Company from
gaining an unfair competitive advantage over Company and/or diverting goodwill
from Company, and to prevent misuse or misappropriation by Employee of the
Confidential and Trade Secret Information;
WHEREAS, Company desires to obtain the benefit of the services of Employee and
Employee is willing to render such services on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, In consideration of the compensation and other benefits of
Employee's employment by Company and the recitals, mutual covenants and
agreements hereinafter set forth, Employee and Company agrees as follows:
1. Employment Services.
1.1 Employee agrees that throughout Employee's employment with Company,
Employee will (i) faithfully render such services as may be delegated
to Employee by Company, (ii) devote Employee's entire business time,
good faith, best efforts, ability, skill and attention to Company's
business, and (iii) follow and act in accordance with all of
Company's rules, policies and procedures of Company, including, but
not limited to, working hours, sales and promotion policies and
specific Company rules.
1.2 "Company" means Stereotaxis, Inc. or one of its subsidiaries;
whichever is Employee's employer. The "Subsidiary" means any
corporation, joint venture or other business
organization in which Stereotaxis, Inc. now or hereafter, directly or
indirectly, owns or controls more than fifty percent (50%) interest.
2. Confidential and Trade Secret Information.
2.1 Employee agrees to keep secret and confidential, and not to use or
disclose to any third parties, except as directly required for
Employee to perform Employee's employment responsibilities for
Company, any of Company's proprietary Confidential and Trade Secret
Information.
2.2 "Confidential and Trade Secret Information" includes any information
pertaining to Company's business which is not generally known in the
medical devices industry, such as, but not limited to, trade secrets,
know-how processes, designs, products, documentation, quality control
and assurance inspection and test data, production schedules,
research and development plans and activities, equipment
modifications, product formulae and production and recycling records,
standard operating procedure and validation records, drawings,
apparatus, tools, techniques, software and computer programs and
derivative works, inventions (whether patentable or not),
improvements, copyrightable material, business and marketing plans,
projections, sales data and reports, confidential evaluations, the
confidential use, nonuse and compilation by the Company of technical
or business information in the public domain, margins, customers,
customer requirements, costs, profitability, sales and marketing
strategies, pricing policies, operational methods, strategic plans,
training materials, internal financial information, operating and
financial data and projections, distribution or sales methods, prices
charged by or to Company, inventory lists, sources of supplies,
supply lists, lists of current or past employees, mailing lists and
information concerning relationships between Company and its
employees or customers.
2.3 During Employee's employment, Employee will not copy, reproduce or
otherwise duplicate, record, abstract, summarize or otherwise use,
any papers, records, reports, studies, computer printouts, equipment,
tools or other property owned by the Company, except as expressly
permitted or required for the proper performance of his or her duties
on behalf of the Company.
3. Post-Termination Restrictions.
Employee recognizes that (i) Company has spent substantial money, time and
effort over the years in and in developing its Confidential and Trade Secret
Information; (ii) Company pays its employees to, among other things, develop
and preserve business information, customer goodwill, customer loyalty and
customer contacts for and on behalf of Company; and (iii) Company is hereby
agreeing to employ and pay Employee based upon Employee's assurances and
promises contained herein not to put himself or herself in a position following
Employee's employment with Company in which the confidentiality of Company's
information might somehow be compromised. Accordingly, Employee agrees that
during Employee's employment with Company, and for a period of two years
thereafter, regardless of how Employee's termination occurs and regardless of
whether it is with or without cause. Employee will not, directly or indirectly
(whether as owner, partner, consultant, employee or otherwise):
3.1 engage in, assist or have an interest in, enter the employment of, or
act as an agent, advisor or consultant for, any person or entity
which is engaged, or will be engaged, in the development,
manufacture, supplying or sale of a product, process, apparatus,
service or development which is competitive with a product, process,
apparatus, service or development on which Employee worked or with
respect to which Employee has or had access to Confidential or Trade
Secret Information while at Company ("Competitive Work"), and which
Employee seeks to serve in any market which was being served by
Employee at the time of Employee's termination or was served at any
time during Employee's last six (6) months of employment by Company.
Competitive Work shall be
limited to the field of magnetic instrument guidance and related
therapeutic agents or devices;
3.2 solicit, call on or in any manner cause or attempt to cause, or
provide any Competitive Work to any customer or active
prospective customer of the Company with whom Employee dealt, or
on whose account he or she worked for which Employee was
responsible, or with respect to which Employee was provided or
had access to Confidential and Trade Secret Information to
divert, terminate, limit, modify or fail to enter into any
existing or potential relationship with Company; and
3.3 induce or attempt to induce any Employee, consultant or advisor
of Company to accept employment or an affiliation with an
organization other than Stereotaxis.
4. Acknowledgement Regarding Restrictions.
Employee recognizes and agrees that the restraints contained in Section 3 are
reasonable and enforceable in view of Company's legitimate interests in
protecting its Confidential and Trade Secret Information and customer goodwill.
Employee understands that the post-employment restrictions contained herein
will preclude, for a time, Employee's employment with such major competitors of
Company in the field of magnetic instrument guidance. Employee understands that
the restrictions of Section 3 are not limited geographically in view of
Company's nationwide operations and the Confidential and Trade Secret
Information and customers to which Employee had access.
5. Inventions.
5.1 Any and all ideas, inventions, discoveries, patents, patent
applications, continuation-in-part patent applications,
divisional patent applications, technology, copyrights,
derivative works, trademarks, service marks, improvements, trade
secrets and the like, which are developed, conceived, created,
discovered, learned, produced and/or otherwise generated by
Employee, whether individually or otherwise, during the time that
Employee is employed by Company, whether or not during working
hours, that relate to (i) current and anticipated businesses
and/or activities of Company, (ii) Company's current and
anticipated research or development, or (iii) any work performed
by Employee for Company, shall be the sole and exclusive property
of Company, and Company shall own any and all right, title and
interest to such. Employee assigns and agrees to assign to
Company any and all right, title and interest in and to any such
ideas, inventions, discoveries, patents, patent applications,
continuation-in-part patent applications, divisional patent
applications, technology, copyrights, derivative works,
trademarks, service marks, improvements, trade secrets and the
like, whenever requested to do so by Company, at Company's
expense, and Employee agrees to execute any and all applications,
assignments or other instruments which Company deems desirable or
necessary to protect such interests.
5.2 Paragraph 5(*.1) shall not apply to any invention for which no
equipment, supplies, facilities or Confidential and Trade Secret
Information of Company was used and which was developed entirely
on Employee's own time, unless (i) the invention relates to
Company's business or to Company's actual or
demonstrably-anticipated research or development, or (ii) the
invention results from any work performed by Employee for
Company.
6. Company Property.
Employee acknowledges that any an all notes, records, sketches, computer
diskettes, training materials and other documents relating to the Company
obtained by or provided to Employee, or otherwise made, produced or compiled
during the course of Employee's employment with Company regardless of the type
of medium in which they are preserved, are the sole and exclusive property of
Company and shall be
surrendered to Company upon Employee's termination of employment and on demand
at any time by Company.
7. Non-Waiver of Rights.
Company's failure to enforce at any time any of the provisions of this
Agreement or to require at any time performance by Employee of any of the
provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement, or any part
hereof, or the right of Company thereafter to enforce each and every provision
in accordance with the terms of this Agreement.
8. Company's Right to Injunctive Relief.
In the event of a breach or threatened breach of any of Employee's duties and
obligations under the terms and provisions of Sections 2, 3 and 5 hereof,
Company shall be entitled, in addition to any other legal or equitable remedies
it may have in connection therewith (including any right to damages that may
suffer), to temporary, preliminary and permanent injunctive relief restraining
such breach or threatened breach. Employee hereby expressly acknowledges that
the harm which might result to Company's business as a result of any
noncompliance by Employee with any of the provisions of Sections 2, 3 or 5
would be largely irreparable. Employee specifically agrees that if there is a
question as to the enforceability of any of the provisions of Sections 2, 3 or
5 hereof, Employee will not engage in any conduct inconsistent with or contrary
to such Sections until after the question has been resolved by a final judgment
of a court of competent jurisdiction.
9. Invalidity of Provisions.
If any provision of this Agreement is adjudicated to be invalid or
unenforceable under applicable law in any jurisdiction, the validity or
enforceability of the remaining provisions thereof shall be unaffected as to
such jurisdiction and such adjudication shall not affect the validity or
enforceability of such provisions in any other jurisdiction. To the extent that
any provision of this Agreement is adjudicated to be invalid or unenforceable
because it is overbroad, that provision shall not be void, but rather shall be
limited only to the extent required by applicable law and enforced as to
limited. The parties expressly acknowledge and agree that this Section is
reasonable in view of the parties' respective interests.
10. Employee Representations.
Employee represents that the execution and delivery of the Agreement and
Employee's employment with Company do not violate any previous employment
agreement or other contractual obligation of Employee.
11. Company's Right to Recover Costs and Fees.
Employee agrees that if Employee breaches or threatens to breach this
Agreement, Employee shall be liable for any attorneys' fees and costs incurred
by the Company in enforcing its rights under this Agreement in the event that a
court determines that Employee has breached this Agreement or if the Company
obtains injunctive relief against the Employee and is successful on the merits
of its claim against employee.
12. Employment at Will.
Employee acknowledges that employee is, and at all times will be, an
employee-at-will of Company and nothing contained herein shall be construed to
alter or affect such employee-at-will status.
13. Exit Interview.
To ensure a clear understanding of this Agreement, Employee agrees, at the time
of termination of Employee's employment, to engage in an exit interview with
Company at a time and place designated by Company and at Company's expense.
Employee understands and agrees that during said exit interview,
Employee may be required to confirm that Employee will comply with Employee's
obligations under Sections 2, 3 and 5 of this Agreement. Company may elect, at
its option, to conduct the exit interview by telephone.
14. Amendments.
No modification, amendment or waiver of any of the provisions of this Agreement
shall be effective unless in writing specifically referring hereto, and signed
by the parties hereto. This Agreement supersedes all prior agreements and
understandings between Employee and Company to the extent that any such
agreements or understandings conflict with the terms of this Agreement.
15. Assignments.
This Agreement shall be freely assignable by Company to, and shall inure to
the benefit of, and be binding upon, Company, its successors and assigns and/or
any other entity which shall succeed to the business presently being conducted
by Company. Being a contract for personal services, neither this Agreement nor
any rights hereunder shall be assigned by Employee.
16. Choice of Forum and Governing Law.
In light of Company's substantial contacts with the State of Missouri, the
parties' interests in ensuring that disputes regarding the interpretation,
validity and enforceability of this Agreement are resolved on a uniform basis,
and Company's execution of, and the making of this Agreement in Missouri, the
parties agree that: (i) any litigation involving any noncompliance with or
breach of the Agreement, or regarding the interpretation, validity and/or
enforceability of the Agreement, shall be filed and conducted exclusively in the
state or federal courts in St. Louis County, Missouri; and (ii) the Agreement
shall be interpreted in accordance with the governed by the laws of the State of
Missouri, with regard for any conflict of law principles.
17. Headings.
Section headings are provided in this Agreement for convenience only and shall
not be deemed to substantially alter the content of such sections.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT
EMPLOYEE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE
EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS
HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS
EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS TO ALL
SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE
AGREEMENT.
IN WITNESS WHEREOF, the parties hereof have caused this Agreement to be
executed as of the day and year first above written.
/s/ XXXXXXX X. XXXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ XXXXX X. XXXX
----------------------------------
Sterotaxis, Inc.
