EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated as of June 1,
2002 (the "Date of this Agreement"), is made by and between CardioGenesis
Corporation, a California corporation (the "Company"), and Xxxxxxx Xxxxxxxx (the
"Executive").
WHEREAS, the Company wishes to employ Executive on the terms set
forth below.
WHEREAS, Executive wishes to accept such employment.
Accordingly, the parties hereto agree as follows:
1. Term. The Company hereby employs Executive, and Executive hereby
accepts such employment, for an initial term commencing as of the Date of this
Agreement and ending 18 months thereafter, unless sooner terminated in
accordance with the provisions of Section 4 or Section 5; with such employment
to continue thereafter for successive one-year periods in accordance with the
terms of this Agreement on each anniversary of the Date of this Agreement
(subject to termination as aforesaid) unless either party notifies the other
party in writing not less than thirty (30) days before expiration of the initial
term and each annual renewal thereof (the period during which Executive is
employed hereunder being hereinafter referred to as the "Term") of an intent not
to renew this Agreement. Upon execution of this Agreement, that certain
Employment Agreement by and between Executive and the Company, dated as of
December 27, 2000, shall terminate and shall be of no further force or effect.
2. Duties. During the Term, Executive shall be principally employed by
the Company as its President, Chief Operating Officer, Acting Chief Financial
Officer, Acting Chief Accounting Officer, Acting Treasurer and Acting Secretary
or in such other management position as the Company shall determine, and as
such, Executive shall faithfully perform for the Company the duties and have the
powers customary for such position. The Executive shall devote substantially all
of his business time and effort to the performance of Executive's duties
hereunder, and shall work primarily at the Company's main business offices.
3. Compensation.
3.1 Salary. The Company shall pay Executive during the Term a
salary at the rate of Two Hundred Seventy Seven Thousand, Seven Hundred and
Twenty Five Dollars ($277,725) per annum (the "Annual Salary"), in accordance
with the customary payroll practices of the Company applicable to senior
executives, provided the payments are no less frequent than monthly (or, if
there is no such policy, payments shall be semi-monthly). The Annual Salary
shall be annually reviewed by the Company for possible increases. The Annual
Salary shall be subject to possible further increase from time to time in the
sole discretion of the Board of Directors of the Company (the "Board") or such
committee of the Board as they shall designate for such purpose from time to
time. Any increased Annual Salary shall thereupon be the
"Annual Salary" for the purposes hereof. The Executive's Annual Salary shall not
be decreased without his or her prior written consent at any time during the
Term.
3.2 Incentive Compensation. During the Term, Executive shall be
eligible to receive, in addition to his or her Annual Salary, a bonus (the
"Bonus") of up to 40% of the Annual Salary. The amount of such Bonus and any
performance standards or goals required to be attained in order to receive such
Bonus shall be set by the Board or such committee of the Board as they shall
designate for such purpose from time to time. The Bonus shall be calculated on
or before January 31 and paid not later than the end of the first quarter
following the year for which the Bonus is being paid.
3.3 Stock Options. All stock options to purchase shares of the
Company's Common Stock granted to Executive prior to the Date of this Agreement
and all stock options granted to Executive during the Term of this Agreement
shall become fully vested immediately upon (i) a termination of Executive by the
Company without Cause (defined in Section 5.1(a) below), or a termination by
Executive for Good Reason (defined in Section 5.2(a) below) (a "Triggering
Event") or (ii) a Change of Control, defined below, of the Company. In addition,
upon the occurrence of a Triggering Event, all vested stock options then held by
Executive shall remain exercisable for a period of eighteen (18) months from the
date of Executive's termination rather than the period provided for in the
Notice of Grant with respect to such option; provided, however, that if
Executive's employment is terminated with Cause or by Executive without Good
Reason, no such extension of the exercise period shall occur; and provided
further, however, that in no event shall the exercise period extend later than
the expiration of the term of such option as set forth in the applicable Notice
of Grant. For purposes of this Agreement "Change of Control" shall be deemed to
have occurred if as a result of a tender offer, other acquisition, merger,
consolidation or sale or transfer of assets, any person(s) (as used in Sections
13(d) or 14(d) of the Securities Exchange Act of 1934 ("SEA")) becomes the
beneficial owner (as defined in Rule 13(d)-3 of the SEA) of a total of fifty
percent (50%) or more of either the outstanding shares of Company's stock or
Company's assets.
3.4 Benefits. Except otherwise provided herein, Executive shall
participate in any group life, medical or disability insurance plans, health
programs, retirement plans, fringe benefit programs and similar benefits that
may be available to other senior executives of the Company generally, on the
same terms as such other executives, to the extent that Executive is eligible
under the terms of such plans or programs as they may be in effect from time to
time. Company will provide coverage for Executive under the Company's health
benefits plan and will pay 100% of the cost of spouse and dependent coverage.
Coverage under the health benefits plan will be in effect commencing with
Executive's employment.
3.5 Expenses. The Company shall pay or reimburse Executive for
all ordinary and reasonable out-of-pocket expenses actually incurred (and, in
the case of reimbursement, paid) by Executive during the Term in the performance
of Executive's services under this Agreement, provided that Executive submits
proof of such expenses, with the properly completed forms as prescribed from
time to time by the Company, no later than thirty (30) days after the end of the
monthly period in which such expenses have been so incurred.
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4. Termination upon Death or Disability. If Executive dies during the
Term, the Term shall terminate as of the date of death, and the obligations of
the Company to or with respect to Executive shall terminate in their entirety
upon such date except as otherwise provided under this Section 4. If Executive
becomes disabled for purposes of the long-term disability plan of the Company
for which Executive is eligible, or, in the event that there is no such plan, if
Executive by virtue of ill health or other disability is unable to perform
substantially and continuously the duties assigned to him for more than 180
consecutive or non-consecutive days out of any consecutive 12-month period, then
the Company shall have the right, to the extent permitted by law, to terminate
the employment of Executive upon notice in writing to Executive. Upon
termination of employment due to death or disability, (i) Executive (or
Executive's estate or beneficiaries in the case of the death of Executive) shall
be entitled to receive any Annual Salary and other benefits earned and accrued
under this Agreement prior to the date of termination (and reimbursement under
this Agreement for expenses incurred prior to the date of termination),
including, but not limited to a pro-rata Bonus for the year of termination
(which in no event shall be less than a similar pro-rata portion of Executive's
bonus for the preceding year) to be paid at such time as Bonuses are ordinarily
paid; (ii) in the case of termination due to disability, Executive shall be
entitled to receive his or her Annual Salary for the lesser of twelve (12)
months following such termination, or the period until long term disability
insurance benefits commence under disability coverage furnished by the Company
to Executive; and (iii) Executive (or, in the case of Executive's death,
Executive's estate and beneficiaries) shall have no further rights to any other
compensation or benefits hereunder on or after the termination of employment, or
any other rights hereunder, except as otherwise provided in the plans and
policies of the Company.
5. Certain Terminations of Employment.
5.1 Termination for Cause; Termination of Employment by Executive
without Good Reason.
(a) For purposes of this Agreement, "Cause" shall mean
Executive's:
(i) conviction of (or pleading nolo contendere to) a
felony involving moral turpitude, or any crime involving the Company;
(ii) engagement in the performance of his or her duties
hereunder or otherwise to the material detriment of the Company, in
willful misconduct, willful or gross neglect, fraud, misappropriation or
embezzlement;
(iii) the failure to adhere to the lawful and
reasonable directions of the Company's Board of Directors and/or Chief
Executive Officer that are consistent with the terms of this Agreement,
or the failure to devote substantially all of the business time and
effort to the Company (except for any activities expressly authorized by
the Company);
(iv) material breach of any of the provisions of
Section 6; or
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(v) breach in any material respect of the terms and
provisions of this Agreement and failure to cure such breach within
fifteen (15) days following written notice from the Company specifying
such breach; provided however, if Executive delivers written notice to
Company during the fifteen (15) day cure period requesting to be heard
at a meeting of the Board, his or her termination under this Section
5.2(a)(v) shall not be effective until such Board meeting at which
Executive had an opportunity to be heard.
provided that Cause shall not exist except on written notice given to Executive
at any time not more than sixty (60) days following the occurrence of any of the
events described above (or, if later, the Company's knowledge thereof).
(b) The Company may terminate Executive's employment
hereunder for Cause, and Executive may terminate his employment for any or no
reason on at least 30 days' and not more than 60 days' written notice given to
the Company. If the Company terminates Executive for Cause, or Executive
terminates his employment and the termination by Executive is not covered by
Section 4 or 5.2, (i) Executive shall receive Annual Salary and other benefits
earned and accrued under this Agreement prior to the termination of employment
(and reimbursement under this Agreement for expenses incurred prior to the
termination of employment); and (ii) Executive shall have no further rights to
any other compensation or benefits hereunder on or after the termination of
employment, or any other rights hereunder, except as otherwise provided in the
plans and policies of the Company.
5.2 Termination by the Company without Cause; or by Executive for
Good Reason.
(a) For purposes of this Agreement, "Good Reason" shall
mean, unless otherwise consented to in writing by Executive;
(i) a reduction in Annual Salary or in benefits of
Executive, or the failure of the Company to timely make any payment due
to Executive;
(ii) any action by the Company that results in a
material diminution in Executive's position, authority, duties or
responsibilities;
(iii) a material breach of any provision of this
Agreement by the Company;
(iv) relocation of Executive outside of the Orange
County, California area without Executive's consent; or
(v) a failure of the Company to have a successor entity
specifically assume this Agreement.
Notwithstanding the foregoing, (i) Good Reason shall not be deemed to exist
unless notice of termination on account thereof (specifying a termination date
no later than thirty (30) days from the date of such notice) is given no later
than sixty (60) days after the time at which the event or
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condition purportedly giving rise to Good Reason first occurs or arises (or when
Executive first becomes aware of such circumstances); and (ii) if there exists
(without regard to this clause (ii)) an event or condition that constitutes Good
Reason, the Company shall have thirty (30) days from the date notice of such a
termination is given to cure such event or condition and, if the Company does so
fully cure such event or condition, such event or condition shall not constitute
Good Reason hereunder.
(b) The Company may terminate Executive's employment at any
time for any reason or no reason and Executive may terminate Executive's
employment with the Company for Good Reason. A notice of non-renewal shall
constitute a termination of employment by the Company without Cause.
(c) If the Company terminates Executive's employment
and the termination is not covered by Section 4 or 5.1, or Executive
terminates his employment for Good Reason, Executive shall receive:
(i) Annual Salary and other benefits earned and accrued
under this Agreement prior to the termination of employment (and
reimbursement under this Agreement for expenses incurred prior to the
termination of employment);
(ii) an amount equal to one and one-half (1 1/2) times
Executive's Annual Salary, payable in eighteen (18) monthly installments
over the eighteen (18) month period following the termination date;
(iii) an amount equal to one and one-half (1 1/2) times
the maximum Bonus possible for the year of termination, payable in
eighteen (18) monthly installments over the eighteen (18) month period
following the termination date;
(iv) reimbursement for COBRA payments equal to
employee's regular monthly contributions toward Executive's health
insurance benefits for the eighteen (18) month period following the
termination date if Executive elects COBRA benefits; and
(v) the right to exercise any or all vested stock
options for a period of eighteen (18) months after the termination date.
In order to be eligible to receive the benefits specified under sections
5.2(c)(ii) - (iv), Executive must execute a general release of claims in a form
acceptable to the Company, which shall not apply to the Company's obligations
described above in this Section 5.2(c).
6. Invention, Non-Disclosure and Non-Solicitation.
6.1 Inventions and Patents.
(a) The Executive will promptly and fully disclose to the
Company any and all inventions, discoveries, improvements, ideas, developments,
designs, products, formulas, software programs, processes, techniques,
technology, know-how, negative know-
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how, data, research, technical data and original works of authorship (whether or
not patentable or registrable under patent, copyright or similar statutes and
including all rights to obtain, register, perfect and enforce those proprietary
interests) that are related to or useful in the Company's present or future
business or result from use of property owned, leased, or contracted for by the
Company and which Executive develops, makes, conceives or reduces to practice
during Executive's employment by the Company, either solely or jointly with
others (collectively, the "Developments"). All such Developments shall be the
sole property of the Company, and Executive hereby assigns to the Company,
without further compensation, all of Executive's right, title and interest in
and to such Developments and any and all related patents, patent applications,
copyrights, copyright applications, trademarks, service marks and trade names in
the United States and elsewhere.
(b) The Executive shall disclose promptly to an officer or
to attorneys of the Company in writing any inventions, discoveries,
improvements, ideas, developments, designs, products, formulas, software
programs, processes, techniques, technology, know-how, negative know-how, data,
research, technical data and original works of authorship, whether or not
patentable or registrable under patent, copyright or similar statutes, Executive
may conceive, make, develop or work on, in whole or in part, solely or jointly
with others during Executive's employment, for the purpose of permitting the
Company to determine whether they constitute Developments. The Company shall
receive such disclosures in confidence.
(c) The Executive will keep and maintain adequate and
current written records of all Developments (in the form of notes, sketches,
drawings and as may be specified by the Company), which records shall be
available to and remain the sole property of the Company at all times.
(d) The Executive will assist the Company in obtaining and
enforcing patent, copyright, trademark, service marks and other forms of legal
protection for the Developments in any country. Upon request, Executive will
sign all applications, assignments, instruments and papers and perform all acts
necessary or desired by the Company to assign all such Developments fully and
completely to the Company and to enable the Company, its successors, assigns and
nominees, to secure and enjoy the full and exclusive benefits and advantages
thereof.
(e) The Executive understands that Executive's obligations
under this section will continue after the termination of Executive's employment
with the Company and that during Executive's employment Executive will perform
such obligations without further compensation, except for reimbursement of
expenses incurred at the request of the Company. The Executive further
understands that if Executive is not employed by the Company as an employee at
the time Executive is requested to perform any obligations under this section,
Executive shall receive for such performance a reasonable per diem fee, as well
as reimbursement of any expenses incurred at the request of the Company.
(f) Any provision in this Agreement requiring Executive to
assign Executive's rights in all Developments shall not apply to an invention
that qualifies fully under the provisions of California Labor Code section 2870,
the terms of which are set forth below:
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(i) Any provision in an employment agreement which
provides that an employee shall assign, or offer to assign, any of his
or her rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely on his or her own time
without using the employer's equipment, supplies, facilities, or trade
secret information except for those inventions that either:
(1) Relate at the time of conception or reduction
to practice of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee
for the employer.
(ii) To the extent a provision in an employment
agreement purports to require an employee to assign an invention
otherwise excluded from being required to be assigned under subdivision
(i), the provision is against the public policy of this state and is
unenforceable.
7. Proprietary Information.
(a) The Executive recognizes that Executive's relationship
with the Company is one of high trust and confidence by reason of Executive's
access to and contact with the trade secrets and confidential and proprietary
information of the Company including, without limitation, information not
previously disclosed to the public regarding current and projected revenues,
expenses, costs, profit margins and any other financial and budgeting
information; marketing and distribution plans and practices; business plans,
opportunities, projects and any other business and corporate strategies; product
information; names, addresses, terms of contracts and other arrangements with
customers, suppliers, agents and employees of the Company; confidential and
sensitive information regarding other employees, including information with
respect to their job descriptions, performance strengths and weaknesses, and
compensation; and other information not generally known regarding the business,
affairs and plans of the Company (collectively, the "Proprietary Information").
The Executive acknowledges and agree that Proprietary Information is the
exclusive property of the Company and that Executive shall not at any time,
either during Executive's employment with the Company or thereafter disclose to
others, or directly or indirectly use for Executive's own benefit or the benefit
of others, any of the Proprietary Information.
(b) The Executive acknowledges that the unauthorized use or
disclosure of Proprietary Information would be detrimental to the Company and
would reasonably be anticipated to materially impair the Company's value.
(c) The Executive's undertakings and obligations under this
Section 6.2 will not apply, however, to any Proprietary Information which: (a)
is or becomes generally known to the public through no action on Executive's
part, (b) is generally disclosed to third parties by the Company without
restriction on such third parties, (c) is approved for release by written
authorization of the Board, (d) is known to Executive other than as a result of
work
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performed for the Company, or (e) is required to be disclosed by law or
governmental or court process or order.
(d) Upon termination of Executive's employment with the
Company or at any other time upon request, Executive will promptly deliver to
the Company all notes, memoranda, notebooks, drawings, records, reports, written
computer code, files and other documents (and all copies or reproductions of
such materials) in Executive's possession or under Executive's control, whether
prepared by Executive or others, which contain Proprietary Information. The
Executive acknowledges that this material is the sole property of the Company.
7.2 Absence of Restrictions Upon Disclosure and Competition.
(a) The Executive hereby represents that, except as
Executive has disclosed in writing to the Company on Exhibit A attached hereto,
Executive is not bound by the terms of any agreement with any previous employer
or other party to refrain from using or disclosing any trade secret or
confidential or proprietary information in the course of Executive's employment
with the Company or to refrain from competing, directly or indirectly, with the
business of such previous employer or any other party.
(b) The Executive further represents that Executive's
performance of all the terms of this Agreement and as an employee of the Company
does not and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by Executive in confidence or in trust
prior to his employment with the Company, and Executive will not disclose to the
Company or induce the Company to use any confidential or proprietary information
or material belonging to any previous employer or others.
7.3 Prohibition on Solicitation of Customers. During the Term and
for a period of two (2) years thereafter, Executive agrees not to, directly or
indirectly, either for Executive or for any other person or entity, solicit any
person or entity to terminate such person's or entity's contractual and/or
business relationship with the Company, nor will Executive interfere with or
disrupt or attempt to interfere with or disrupt any such relationship. None of
the foregoing shall be deemed a waiver of any and all rights and remedies the
Company may have under applicable law.
7.4 Prohibition on Solicitation of Employees, Agents or
Independent Contractors. During the Term and for a period of two (2) years
thereafter, Executive agrees not to solicit any of the employees, agents or
independent contractors of the Company to leave the employ of the Company for a
competitive company or business. However, Executive may solicit any employee,
agent or independent contractor who voluntarily terminates his or her employment
with the Company after a period of ninety (90) days have elapsed since the
termination date of such employee, agent or independent contractor. None of the
foregoing shall be deemed a waiver of any and all rights and remedies the
Company may have under applicable law.
7.5 Other Obligations. The Executive acknowledges that the
Company from time to time may have agreements with other persons or with the
U.S. Government or agencies
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thereof, which impose obligations or restrictions on the Company regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. The Executive agrees to be bound by all such
obligations and restrictions which are made known to Executive and to take all
action necessary to discharge the obligations of the Company under such
agreements.
7.6 Rights and Remedies upon Breach. The Executive acknowledges
and agrees that any breach by him of any of the provisions of Section 6 (the
"Restrictive Covenants") would result in irreparable injury and damage for which
money damages may not provide an adequate remedy. Therefore, if Executive
breaches any of the provisions of Section, the Company shall have the following
rights and remedies, each of which rights and remedies shall be independent of
the other and severally enforceable, and all of which rights and remedies shall
be in addition to, and not in lieu of, any other rights and remedies available
to the Company under law or in equity (including, without limitation, the
recovery of damages) the right and remedy to have the Restrictive Covenants
specifically enforced (without posting bond and without the need to prove
damages) by any court having equity jurisdiction, including, without limitation,
the right to an entry against Executive of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent) against violations, threatened
or actual, and whether or not then continuing, of such covenants.
8. Other Provisions.
8.1 Severability. The Executive acknowledges and agrees that (i)
he has had an opportunity to seek advice of counsel in connection with this
Agreement and (ii) the Restrictive Covenants are reasonable in geographical and
temporal scope and in all other respects. If it is determined that any of the
provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the provisions of this Agreement shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
8.2 Duration and Scope of Covenants. If any court or other
decision-maker of competent jurisdiction determines that any of Executive's
covenants contained in this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, then, after such determination
has become final and unappealable, the duration or scope of such provision, as
the case may be, shall be reduced so that such provision becomes enforceable
and, in its reduced form, such provision shall then be enforceable and shall be
enforced.
8.3 Arbitration.
(a) Any controversy, dispute, or claim between the parties
to this Agreement, including any claim arising out of, in connection with, or in
relation to the formation, interpretation, performance or breach of this
Agreement shall be settled exclusively by arbitration, before a single
arbitrator, in accordance with this section and the then most applicable rules
of the American Arbitration Association. Judgment upon any award rendered by the
arbitrator may be entered by any state or federal court having jurisdiction
thereof. Such arbitration shall be administered by the American Arbitration
Association. Arbitration shall be
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the exclusive remedy for determining any such dispute, regardless of its nature.
Notwithstanding the foregoing, either party may in an appropriate matter apply
to a court pursuant to California Code of Civil Procedure Section 1281.8, or any
comparable provision, for provisional relief, including a temporary restraining
order or a preliminary injunction, on the ground that the award to which the
applicant may be entitled in arbitration may be rendered ineffectual without
provisional relief.
(b) In the event the parties are unable to agree upon an
arbitrator, the parties shall select a single arbitrator from a list of nine
arbitrators drawn by the parties at random from the "Independent" (or "Gold
Card") list of retired judges or, at Executive's option, from a list of nine
persons from the Employment Panel and provided by the American Arbitration
Association. If the parties are unable to agree upon an arbitrator from the list
so drawn, then the parties shall each strike names alternately from the list,
with the first to strike being determined by lot. After each party has used four
strikes, the remaining name on the list shall be the arbitrator. If such person
is unable to serve for any reason, the parties shall repeat this process until
an arbitrator is selected.
(c) This agreement to resolve any disputes by binding
arbitration shall extend to claims against any parent, subsidiary or affiliate
of each party, and, when acting within such capacity, any officer, director,
shareholder, employee or agent of each party, or of any of the above, and shall
apply as well to claims arising out of state and federal statutes and local
ordinances as well as to claims arising under the common law. In the event of a
dispute subject to this paragraph the parties shall be entitled to reasonable
discovery subject to the discretion of the arbitrator. The remedial authority of
the arbitrator shall be the same as, but no greater than, would be the remedial
power of a court having jurisdiction over the parties and their dispute. The
arbitrator shall, upon an appropriate motion, dismiss any claim without an
evidentiary hearing if the party bringing the motion establishes that he, she or
it would be entitled to summary judgment if the matter had been pursued in court
litigation. In the event of a conflict between the applicable rules of the
American Arbitration Association and these procedures, the provisions of these
procedures shall govern.
(d) Any filing or administrative fees shall be borne
initially by the party requesting arbitration. The Company shall be responsible
for the costs and fees of the arbitrator, unless Executive wishes to contribute
(up to 50%) of the costs and fees of the arbitrator. The prevailing party in
such arbitration, as determined by the arbitrator, and in any enforcement or
other court proceedings, shall be entitled, to the extent permitted by law, to
reimbursement from the other party for all of the prevailing party's costs
(including but not limited to the arbitrator's compensation), expenses, and
attorneys' fees.
(e) The arbitrator shall render an award and written
opinion, and the award shall be final and binding upon the parties. If any of
the provisions of this Section 7.3, or of this Agreement, are determined to be
unlawful or otherwise unenforceable, in whole or in part, such determination
shall not affect the validity of the remainder of this Agreement, and this
Agreement shall be reformed to the extent necessary to carry out its provisions
to the greatest extent possible and to insure that the resolution of all
conflicts between the parties, including those arising out of statutory claims,
shall be resolved by neutral, binding arbitration. If a court
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should find that this Section's arbitration provisions are not absolutely
binding, then the parties intend any arbitration decision and award to be fully
admissible in evidence in any subsequent action, given great weight by any
finder of fact, and treated as determinative to the maximum extent permitted by
law.
(f) Unless mutually agreed by the parties otherwise, any
arbitration shall take place in Orange County, California.
8.4 Covenant to Notify Management. Executive agrees to abide by
the ethics policies of the Company as well as the Company's other rules,
regulations, policies and procedures. Executive agrees to comply in full with
all governmental laws and regulations as well as ethics codes applicable to the
profession. In the event that Executive is aware or suspects the Company, or any
of its officers or agents, of violating any such laws, ethics codes, rules,
regulations, policies or procedures, Executive agrees to bring all such actual
and suspected violations to the attention of the Company immediately so that the
matter may be properly investigated and appropriate action taken. Executive
understands that he is precluded from filing a complaint with any governmental
agency or court having jurisdiction over wrongful conduct unless Executive has
first notified the Company of the facts and permits it to investigate and
correct the concerns.
8.5 Statute of Limitations. Executive and the Company hereby
agree that there shall be a one year statute of limitations for the filing of
any requests for arbitration or any lawsuit relating to this Agreement or the
terms or conditions of Executive's employment by the Company. If such a claim is
filed more than one year subsequent to Executive's last day of employment it
shall be precluded by this provision, regardless of whether or not the claim has
accrued at that time.
8.6 Notices. All notices or deliveries authorized or required
pursuant to this Agreement shall be deemed to have been given when in writing
and when (i) deposited in the U.S. mail, certified, return receipt requested,
postage prepaid, or (ii) otherwise delivered by hand or by overnight delivery,
against written receipt, by a common carrier or commercial courier or delivery
service addressed to the parties at the following addresses or to such other
addresses as either may designate in writing to the other party:
to the Company: CardioGenesis Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
to Executive: Xxxxxxx Xxxxxxxx
00 Xxxxxxxxx
Xxxx xx Xxxx, XX 00000
8.7 Entire Agreement. This Agreement, together with the option
agreements described in Section 3.3, contain the entire agreement between the
parties with respect to the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, with respect thereto.
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8.8 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such
right, power or privilege.
8.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
8.10 Assignment. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive; any purported
assignment by Executive in violation hereof shall be null and void. In the event
of any sale, transfer or other disposition of all or substantially all of the
Company's assets or business, whether by merger, consolidation or otherwise, the
Company may assign this Agreement and its rights hereunder; provided that such
assignment shall not limit the Company's liability under this Agreement to
Executive.
8.11 Withholding. The Company shall be entitled to withhold from
any payments or deemed payments any amount of tax withholding required by law.
8.12 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.
8.13 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
8.14 Survival. Anything contained in this Agreement to the
contrary notwithstanding, the provisions of Sections 6, 7.3, 7.5, 7.11 and 7.16,
and the other provisions of this Section 7 (to the extent necessary to
effectuate the survival of Sections 6, 7.3, 7.5, 7.11 and 7.16), shall survive
termination of this Agreement and any termination of Executive's employment
hereunder.
8.15 Headings. The headings in this Agreement are for reference
only and shall not affect the interpretation of this Agreement.
8.16 Indemnification; Directors and Officers Insurance. To the
fullest extent permitted by law, the Company shall indemnify, defend and hold
harmless Executive from and against all actual or threatened actions, suits or
proceedings, whether civil or criminal, administrative or investigative,
together with all attorneys' fees and costs, fines, judgments or settlements
imposed upon or incurred by Executive in connection therewith, that arise from
Executive's employment by, or serving as an officer of, the Company, so long as
Executive acted
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or refrained from acting legally and in good faith or reasonably believed that
his actions or refraining from acting were legal and performed or omitted in
good faith. Company currently has directors and officers liability insurance and
will use reasonable efforts to maintain such insurance coverage during the term
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed their names as of the
day and year first above written.
EMPLOYER
CARDIOGENESIS CORPORATION, a California
corporation
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Its: Chief Executive Officer
----------------------------------------
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxx
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INVENTION, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
Exhibit A
Please list terms of any agreements with any previous employer or other
party which restrains you from using or disclosing any trade secret or
confidential or proprietary information in the course of your employment with
CardioGenesis Corporation or restrains you from competing directly or indirectly
with the business of such previous employer or any other party.
Date Signed by
Executive:
June 1, 2002 /s/ Xxxxxxx Xxxxxxxx
------------------------------------- -------------------------------------
Signature of Executive
Xxxxxxx Xxxxxxxx
-------------------------------------
Printed Name of Executive
Reviewed and accepted by
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
On June 1, 2002
-----------------------------------
By: Xxxxxxx X. Xxxxx
-----------------------------------
