EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") amends and restates the agreement
made April 30, 1996 by and among Delcath Systems, Inc., a Delaware Corporation
with its principal offices at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
("the Company ") and Xx. Xxxxxx Xxxxxxxxxxxx ("the Executive"). This Agreement
is effective as of October 1, 2003.
1. Position and Responsibilities.
1.1 The Executive currently serves as Chief Technical Officer of the Company.
The Executive shall continue to serve in that capacity, or in such other
executive capacity as shall be designated by the Board of Directors of the
Company and reasonably acceptable to the Executive, and shall perform the duties
customarily associated with such capacity from time to time and at such place or
places as the Board of Directors of the Company shall designate as appropriate
and necessary in connection with such employment.
1.2 The Executive will, to the best of his ability, devote his full business
time, as requested or required by the Chief Executive Officer (except for his
existing directorships listed in Exhibit A or directorships otherwise approved
in advance by the Board of Directors), and his best efforts and ability to the
performance of his duties hereunder and to the business and affairs of the
Company. The Executive agrees to perform such executive duties as may be
assigned to him by or on authority of the Company's Board of Directors from time
to time. After receipt of notice of termination of his employment hereunder, the
Executive shall continue to be available to the Company on a part-time basis at
reasonable and customary hourly rates to assist in any necessary transition.
1.3 The Executive will duly, punctually, and faithfully perform and observe any
and all rules and regulations which the Company may now or shall hereafter
reasonably establish governing his conduct as an employee and the conduct of its
business.
1.4 The Executive hereby ratifies and affirms the agreement relating to
proprietary information and inventions dated May 20, 1996 and attached hereto as
Exhibit B between the Executive and the Company (the "Proprietary Information
and Inventions Agreement").
2. Term of Employment.
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2.1 The initial term of this Agreement shall be for three years. Thereafter,
this Agreement shall be automatically renewed for successive periods of one (1)
year, unless the Executive shall give the Company not less than ninety (90) days
prior written notice of non-renewal. The Company may terminate the Executive's
employment as provided in Sections 2.2 or 2.3.
2.2 The Company shall have the right to terminate the Executive's employment at
any time under this Agreement prior to the stated term in any of the following
ways:
(a) upon the death of the Executive;
(b) upon the disability of the Executive (disability shall be defined as his
inability to perform duties under this Agreement for an aggregate of ninety (90)
days out of any one hundred eighty (180) day period due to mental or physical
injury or illness);
(c) immediately without prior notice to the Executive by the Company for Cause,
as hereinafter defined provided, however, that prior to any such termination for
Cause, he shall have had a reasonable opportunity to be heard thereon;
(d) immediately without prior notice to the Executive, in the event of the
liquidation or reorganization of the Company under the federal Bankruptcy Act or
any state insolvency or bankruptcy law;
(e) at any time without Cause, provided the Company shall be obligated to pay to
the Executive upon notice of termination, the Termination Payments, as defined
in Section 3.1.
2.3. The Executive shall also have the right to terminate his employment
hereunder in the event of a material change, without his consent, in his duties
or responsibilities. For the purposes of this Section 2.3, a material change
includes, but is not limited to:
(a) without the express written consent of the Executive, a material diminution
in his position, duties, responsibilities or status with the Company, or a
material reduction or alteration (not in the nature of a promotion) in his
reporting responsibilities;
(b) a reduction by the Company of the annual base salary of the Executive as the
same may be increased from time to time hereafter, or a failure by the Company
to increase such base salary each year at least by the percentage specified in
Section 4.1;
(c) the failure of the Company to continue in effect any incentive, benefit,
bonus or compensation, insurance, pension or other employee benefit plan of the
Company (or plans and benefits which are, in the aggregate, no less favorable to
the Executive than those he enjoyed immediately prior thereto);
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(d) the relocation of the Company's principal executive offices to a location
outside a one hundred mile radius of Times Square, New York City, the
requirement by the Company that he, without his consent, be based anywhere other
than the Company's principal executive offices, or, in the event he consents to
such move, the failure of the Company to reimburse him for moving expenses and
any loss realized on the sale of his principal residence in connection with such
move;
(e) a reduction in the number of the Executive's yearly paid leave business
days;
(f) the failure by the Company to pay to the Executive any portion of his then
current compensation or to pay any portion of an installment of deferred
compensation under any deferred compensation program of the Company within seven
(7) days of the date such compensation is due.
2.4 If the Executive elects to terminate his employment due to a material change
in his duties or responsibilities, the Company shall be obligated to pay to him
immediately in one lump sum, upon notice to the Company, the Termination
Payments, as defined in Section 3.1.
2.5 "Cause" for the purpose of Section 2.2 of this Agreement shall mean:
(a) the falseness or material inaccuracy of any of the Executive's warranties or
representations herein;
(b) the willful failure or refusal to comply with explicit directives of the
Board of Directors or to render the services required herein;
(c) fraud or embezzlement involving assets of the Company, its customers,
suppliers or affiliates or other misappropriation of the Company's assets or
funds;
(d) the conviction of a criminal felony offense;
(e) the willful breach or habitual neglect of obligations under this Agreement
or duties as an employee of the Company.
The existence of Cause for termination of employment by the Company shall be
subject, upon the written election of the Executive or the Company, to binding
arbitration as provided in Section 9 hereof.
2.6 If his employment is terminated under Section 2.2 (a) through (d), above,
all obligations of the Company hereunder cease, except with respect to amounts
and obligations accrued to the Executive through the last day of the month
during which his employment ended.
3. Termination Payments
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3.1 In the event of a Termination under sections 2.2(e) or 2.3, the Company
shall pay to the Executive immediately in one lump sum, and he shall be entitled
to a payment (together with the payments provided in Sections 3.2 and 3.3 below,
the "Termination Payments") equal to two times the sum of the amounts set forth
in clauses (A), (B) and (C) below:
(A) the Executive's base salary as in effect immediately prior to the
Termination;
(B) the average of the bonuses received by the Executive with respect to the
three completed fiscal years of the Company immediately preceding the
Termination; and
(C) the annual cost to the Company of all benefits to which the Executive is
entitled (other than contingent stock, stock options and other similar benefits)
immediately preceding the Termination, including, without limitation (but
without duplication), any pension, savings, or other employee benefit plans.
3.2 In the event of a Termination under sections 2.2(e) or 2.3, the Company
shall continue, for a period of thirty six (36) months, to cover the Executive
and his dependents under those life, disability, accident and health insurance
benefits which were applicable to him on the date of the Termination at the same
benefit levels then in effect, or shall provide substantially similar benefits.
3.3 In the event of a Termination under sections 2.2(e) or 2.3, upon the
election of the Executive at his sole discretion, the Company shall pay to him,
in cash, an amount equivalent to the excess, if any, of the aggregate market
value (measured as of the close of trading on the date of the Termination) of
all shares of any class or series of the Company's capital stock issuable upon
exercise of then outstanding employee stock options granted to him (whether or
not then exercisable) over the aggregate exercise price of such options, and
such options shall thereupon be cancelled and of no further force or effect.
3.4 The Company shall pay to the Executive legal fees and expenses incurred by
him as a result of any termination during the thirty-six (36) month period
following a Termination (including such fees and expenses, if any, incurred in
contesting or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement or in connection with any tax
audit or proceeding to the extent attributable to the application of section
4999 of the Code, to any payment or benefit provided hereunder.
3.5 In the event that the Executive becomes entitled to the Termination
Payments, if those Termination Payments would be subject to the tax imposed by
section 4999 of the Code (or any
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similar tax that may hereafter be imposed) (the "Excise Tax"), the Executive
shall return to the Company any amount which constitutes an "excess parachute
payment" within the meaning of section 280G(b)(2) of Code, unless, in the
opinion of tax counsel selected by the Company's independent auditors and
acceptable to the Executive such other payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or part) represent reasonable compensation for services actually
rendered within the meaning of section 280G(b)(4) of the Code in excess of the
base amount within the meaning of section 280G(b)(3) of the Code, or are
otherwise not subject to the Excise Tax.
4. Compensation
4.1 Base Salary. The Executive's Base Salary shall be $ 155,000 per annum,
payable in accordance with the Company's payroll policies and practices, and
subject to increases thereafter in amounts equal to the greater of the change in
the Cost of Living Index, as published by the American Chamber of Commerce
Researchers Association, or the rate of increase applied to employees,
generally.
4.2 Bonus. The Executive may receive bonuses at the discretion of the Company's
Board of Directors or the Compensation Committee.
4.3 Vacation. The Executive shall be entitled to thirty paid leave business days
per annum, in lieu of all legal holidays, religious holidays, vacation days and
sick days. The Executive shall make all reasonable efforts to arrange for paid
leave business days in advance at such time or times as shall be mutually
agreeable to him and the Company. Any paid leave days not used in any particular
year may be carried forward into the subsequent year. The Executive may not
receive cash in lieu of paid leave business days.
4.4 Insurance and Benefits. The Executive shall be eligible for participation in
any health or other group insurance plan which may be established by the Company
or which the Company is required to maintain by law. He shall also be entitled
to participate in any employee benefit program which the Company may establish
for its key employees or for its employees generally, including, but in no way
limited to, bonuses and stock purchase or option plans. The Company shall
provide comprehensive health insurance for the Executive and his dependents.
Additionally, the Company shall maintain term life insurance in the amount of at
least three times his then annual base salary payable to a beneficiary or
beneficiaries of his own choosing in the event of his death. The Company shall
also maintain a long-term disability insurance policy
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payable to a beneficiary or beneficiaries of his choosing should he suffer a
long-term disability. Should his employment be terminated for any reason, the
Company will use its best efforts to allow the Executive to assume these
policies.
4.5 Expenses. The Company shall reimburse the Executive promptly for all
reasonable and ordinary business and out-of-pocket expenses incurred by him in
connection with the Company's business and in the scope of his employment
hereunder, as approved by the Company, including, without limitation, reasonable
and necessary travel, lodging, entertainment and meals incurred by him during
the term of this Agreement, provided the expenses are incurred in furtherance of
the Company's business and at the request of the Company. The Executive agrees
to keep and maintain records of the aforesaid expenses as may be requested by
the Company and to account to the Company for the expenses prior to
reimbursement.
5. Other Activities During Employment
5.1 Except for the outside employments, consultancies and directorships
currently held by the Executive as listed on Exhibit A attached hereto, and
except with the prior written consent of the Company's Board of Directors,
exclusive of himself, which consent will not be unreasonably withheld, the
Executive will not, during the term of this Agreement, undertake or engage in
any other employment, occupation or business enterprise which directly competes
with the Company other than one in which he is an inactive investor.
5.2 The Executive hereby agrees that, except as disclosed on Exhibit A attached
hereto, during his employment hereunder, he will not, directly or indirectly,
engage (i) individually, (ii) as an officer, (iii) as a director, (iv) as an
employee, (v) as a consultant, (vi) as an advisor, (vii) as an agent (whether a
salesperson or otherwise), (viii) as a broker, or (ix) as a partner,
co-venturer, stockholder or other proprietor owning directly or indirectly more
than a five percent (5%) interest in any firm, corporation, partnership, trust,
association, or other organization which is engaged in the planning, research,
development, production, manufacture, marketing, sales, or distribution of drug
delivery and filtration systems, related products, equipment, or services (such
firm, corporation, partnership, trust, association, or other organization being
hereinafter referred to as a "Prohibited Enterprise"). Except as may be shown on
Exhibit A attached hereto, the Executive hereby represents that he is not
engaged in any of the foregoing capacities (i) through (ix) in any Prohibited
Enterprise.
6. Former Employees.
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6.1 The Executive represents and warrants that his employment by the Company
will not conflict with and will not be constrained by any prior or current
employment, consulting agreement or relationship whether oral or written. The
Executive represents and warrants that he does not possess confidential
information arising out of any such employment, consulting agreement or
relationship which, in his best judgment, would be utilized in connection with
his employment by the Company in the absence of Section 6.2.
6.2 If, in spite of the second sentence of Section 6.1, the Executive should
find that confidential information belonging to any other person or entity might
be usable in connection with the Company's business, he will not intentionally
disclose to the Company or use on behalf of the Company any confidential
information belonging to any of his former employers; but during his employment
by the Company he will use in the performance of his duties all information
which is generally known and used by persons with training and experience
comparable to his own all information which is common knowledge in the industry
or otherwise legally in the public domain.
7. Post-Employment Activities.
7.1 For a period of one (1) year after the termination, for any reason, of his
employment with the Company hereunder, absent the Board of Directors' prior
written approval, the Executive will not directly or indirectly engage in
activities similar to those described in Section 5.2, nor render services
similar or reasonably related to those which he shall have rendered hereunder to
any person or entity whether now existing or hereafter established which
directly competes with (or proposes or plans to directly compete with) the
Company ("Direct Competitor") in the drug filtration and delivery systems
business, or any line of business engaged in or under demonstrable development
by the Company. Nor shall he entice, induce or encourage any of the Company's
other employees to engage in any activity which, were it done by him, would
violate any provision of the Proprietary Information and Inventions Agreement or
this Section 7. As used in this Section 7.1, the term "any line of business
engaged in or under demonstrable development by the Company" shall be applied as
at the date of termination of his employment, or, if later, as at the date of
termination of any post-employment consultation,
7.2 For a period of one (1) year after the termination of his employment with
the Company, the provisions of Section 5.2 shall be applicable to the Executive
and he shall comply therewith.
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7.3 For a period of three (3) months after termination, for any reason, of his
employment with the Company hereunder, the Executive shall be entitled to the
use of his then current executive office space, with the continuation of his
then current secretarial and administrative assistance.
7.4 No provision of this Agreement shall be construed to preclude the Executive
from performing the same services which the Company hereby retains him to
perform for any person or entity which is not a Direct Competitor of the Company
upon the expiration or termination of his employment (or any post-employment
consultation) so long as he does not thereby violate any term of this Agreement
or the Proprietary Information and Inventions Agreement.
8. Remedies.
The obligations under the Proprietary Information and Inventions Agreement and
the provisions of Sections 5.2, 7, 8, 9, and 11 of this Agreement (as modified
by Section 15, if applicable) shall survive the expiration or termination of
employment (whether through his resignation or otherwise) with the Company. The
Executive acknowledges that a remedy at law for any breach or threatened breach
by him of the provisions of the Proprietary Information and Inventions Agreement
or Section 5 or 7 hereof would be inadequate and he therefore agrees that the
Company shall be entitled to such injunctive relief in case of any such breach
or threatened breach.
9. Arbitration.
Any dispute concerning this Agreement including, but not limited to, its
existence, validity, interpretation, performance or non-performance, arising
before or after termination or expiration of this Agreement, shall be settled by
a single arbitrator in Stamford, Connecticut, in accordance with the expedited
procedures of the commercial rules then in effect of the American Arbitration
Association. The cost of arbitration, exclusive of the cost of each party's
legal representation (which, except as otherwise provided in this Agreement,
shall be borne by the party incurring the expense), shall be borne by the
instigating party; provided, however, that the arbitrators' award may require
either party to reimburse the other for the reasonable cost of legal
representation in the arbitration proceedings.
10. Assignment.
This Agreement and the rights and obligations of the parties hereto shall bind
and inure to the benefit of any successor or successors of the Company by
reorganization, merger or consolidation and any assignee of all or substantially
all of its business and properties, but,
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except as to any such successor or assignee of the Company, neither this
Agreement nor any rights or benefits hereunder may be assigned by the Company or
by The Executive, except by operation of law or by a further written agreement
by the parties hereto.
11. Interpretation.
It is the intent of the parties that, in case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. Moreover, it is the intent of the
parties that, if any one or more of the provisions contained in this Agreement
is or becomes or is deemed invalid, illegal or unenforceable or in case any
shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, such provision shall be construed by
amending, limiting and/or reducing it to conform to applicable laws so as to be
valid and enforceable or, if it cannot be so amended without materially altering
the intention of the parties, it shall be stricken and the remainder of this
Agreement shall remain in full force and effect.
12. Notices.
Any notice which the Company is required to or may desire to give the Executive
shall be given by registered or certified mail, return receipt requested,
addressed to him at his address of record with the Company, or at such other
place as he may from time to time designate in writing under the terms of this
Section 12. Any notice which the Executive is required or may desire to give to
the Company hereunder shall be given by registered or certified mail, return
receipt requested, addressed to the Company at its principal office, or at such
other office as the Company may from time to time designate in writing under the
terms of this Section 12.
13. Waivers.
No waiver of any right under this Agreement shall be deemed effective unless
contained in a writing signed by the party charged with such waiver, and no
waiver of any right arising from any breach or failure to perform shall be
deemed to be a waiver of any future such right or of any other right arising
under this Agreement.
14. Complete Agreement.
The foregoing, including Exhibits A and B attached hereto, is the entire
agreement of the parties with respect to the subject matter hereof, superseding
any previous oral or written
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communications, representations, understandings, or agreements with the Company
or any officer or representative thereof.
15. Amendments.
This Agreement may be amended or modified or certain provisions waived only by a
written instrument signed by the parties hereto, upon authorization of the
Company's Board of Directors.
16. Headings.
The headings of the Sections contained in this Agreement are inserted for
convenience and reference only and in no way define, limit, extend or describe
the scope of this Agreement, the intent of any provisions hereof, and shall not
be deemed to constitute a part hereof nor to affect the meaning of this
Agreement in any way.
17. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Connecticut.
In Witness Whereof, the Company has caused this Agreement to be signed by its
duly authorized officer and its seal affixed hereto, and the Executive has
hereunto set his hand and seal as of the day and year first above written.
Delcath Systems Inc.
By: ________________________________ __________________________
Xxxx X. Xxxxxxxxxx, Director and Xxxxxx Xxxxxxxxxxxx
Chairman of the Compensation Committee
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Exhibit A
Outside Employments and Directorships of Xxxxxx Xxxxxxxxxxxx
The NYU Psychoanalytic Institute
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