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EXHIBIT 10.23
TERMINATION AGREEMENT
This Termination Agreement (the "Agreement") is entered into as of this
fifteenth day of February 2000 by and between:
The Spectranetics Corporation, a corporation organized under the laws of the
State of Colorado and with its registered address at 00 Xxxxxxxx Xxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx, X.X.X. and Spectranetics International B.V., a
company organized under the laws of The Netherlands and with its registered
address at Xxxxxxxxxxxxx 0, 0000 XX Xxxxxxx, Xxx Xxxxxxxxxxx (the "Employer"),
represented collectively by Xx. Xxxx X. Xxxx, on the one side;
and
Xxxxxxxxx Xxx, domiciled at Xxxxxxxxxxxxx 00, 0000 XX Xxxxxx, Xxx Xxxxxxxxxxx,
(the "Employee"), on the other side.
RECITALS
WHEREAS as of January 11, 1993, the Employee entered into an
Employment Agreement with Spectranetics International B.V. pursuant to which
the Employee agreed to perform the duties of Managing Director ("statutair
directeur") for Spectranetics International B.V. (the "1993 Agreement"); and
WHEREAS subsequent to such date, but without terminating the 1993
Agreement, Employee entered into an Employment Agreement with The Spectranetics
Corporation whereby the Employee agreed to perform the duties of Vice President,
Sales & Marketing of Employer as from January 1, 1997 (the "1997 Agreement");
and
WHEREAS Employee has been performing his duties under the 1993
Agreement and the 1997 Agreement and Employer has fulfilled its obligations
under the 1993 Agreement and the 1997 Agreement; and
WHEREAS Employer and Employee have mutually determined that the choice
of forum provisions in the 1993 Agreement and the choice of law and forum
provisions in the 1997 Agreement shall be modified such that the laws of The
Netherlands shall be applicable to the 1993 Agreement and the 1997 Agreement
prior to their termination; and
WHEREAS Employer and Employee have mutually determined that the 1993
Agreement and the 1997 Agreement shall be terminated for the mutual benefit of
both the parties;
WHEREAS Employer and Employee have mutually determined that the 1993
Agreement and the 1997 Agreement shall be terminated as soon as reasonably
possible after execution of this agreement; and
WHEREAS Employer and Employee desire that the 1993 Agreement and the
1997 Agreement shall be terminated simultaneously and in a manner other than
that provided for under the 1993 Agreement or the 1997 Agreement, and thus are
entering into this present Agreement.
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NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency being hereby acknowledged, the parties hereby agree as follows:
1. TERMINATION OF EMPLOYMENT
Employer and Employee agree that Employer shall seek in the District Court and
the Cantonal Court, both located in the District ("Arrondissement") of Utrecht,
the Netherlands, a court order under Section 7:685 of the Dutch Civil Code, for
the termination of the 1993 Agreement and the 1997 Agreement respectively.
Employer and Employee agree that Employer shall simultaneously request said
District Court to terminate the 1993 Agreement and said Cantonal Court to
terminate the 1997 Agreement. The requested termination date shall be February
15, 2000, or such date thereafter as said District Court and said Cantonal court
may reasonably determine (the "Termination Date"). In furtherance of the
foregoing, Employer agrees to file in said District Court and Cantonal Court,
within seven (7) calendar days following the date of the execution of this
Agreement, a request for termination in substantially the same form as Annex 1
to this Agreement (the "Request"). In response, Employee agrees to file, within
seven (7) calendar days following the day on which Employer's Request is filed,
a "formal reply" in substantially the same form as Annex 2 to this Agreement. In
the event the Cantonal Court shall not terminate the 1997 Agreement, such
agreement shall by operation of law terminate on the date of termination of the
1993 Agreement. The Employee shall receive his salary and all other benefits
from the 1993 Agreement and the 1997 Agreement respectively until the date of
termination of the 1993 Agreement and the 1997 Agreement respectively.
2. MODIFICATION OF 1997 AGREEMENT; MODIFICATION OF 1993 AGREEMENT;
TERMINATION OF PRIOR AGREEMENTS
The clauses concerning choice of law (Article 18 - Applicable Law) and choice of
forum (Article 19 - Competent Court, first sentence) of the 1997 Agreement are
hereby modified by the parties thereto; the law applicable to the 1997 Agreement
shall be the laws of The Netherlands and the competent court with exclusive
jurisdiction of all disputes relating to the 1997 Agreement shall be the
Cantonal Court in the District of Utrecht.
The clauses concerning choice of forum (Article 18 - Competent Court) of the
1993 Agreement are hereby modified by the parties thereto; the competent court
with exclusive jurisdiction of all disputes relating to the 1993 Agreement shall
be the District Court in the District of Utrecht.
The 1993 Agreement and the 1997 Agreement shall terminate as set forth above
under 1., with the exception of: (a) Articles 10 (Company Property), 11
(Confidentiality), 12 (Non-Competition), 13 (Special Achievements), and 14
(Penalty Clause) of the 1993 Agreement; and (b) Articles 10 (Company Property),
11 (Confidentiality), 12 (Non-Competition), 14 (Special Achievements), and (15
(Liquidated Damages) of the 1997 Agreement. The parties hereby specifically
waive any rights or obligations that either may have under Article 2.2 of the
1993 Agreement and Article 2.2 of the 1997 Agreement concerning Notice.
3. SEVERANCE COMPENSATION; LETTER OF REFERENCE; SEPARATION ANNOUNCEMENT
In connection with the termination of Employee's employment relationship with
the Employer, the parties hereby agree to the following:
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x. Xxxxxxxxx Pay
Employer agrees to pay the Employee an amount equivalent to USD 335,418 (three
hundred thirty-five thousand four hundred eighteen United States dollars)
("Severance Pay"). Of this amount, Spectranetics International B.V. agrees to
pay Employee an amount of NLG 171,902 (one hundred seventy-one thousand nine
hundred two Dutch Guilders) (the "1933 Severance") without withholding taxes or
premiums ("ten titel van stamrecht") through transfer into bank account number
00.00.00.000 with ABN AMRO Bank N.V. of Kove Beheer B.V. within eight (8)
calendar days after the date of termination of the 1993 Agreement. The
Spectranetics Corporation agrees to pay to Employee an amount of USD 251,564
(two hundred fifty-one thousand five hundred sixty-four United States dollars)
(the "1997 Severance") within (8) calendar days after the date of termination of
the 1997 Agreement by transfer into bank account number 000 000 0000 with
Norwest bank of Employee. As from the date of execution of this Agreement the
Employee shall be released from his obligation to perform his functions as
described in Article 1.1, 1.2, and 3.1 of the 1997 Agreement. The Employee shall
be responsible and liable for any taxes or duties levied in relation with
payment of the Severance Pay.
The parties agree that the 1997 Severance and the Employer's obligation to pay
the 1997 Severance shall be reduced with any amount of gross salary paid out to
Employee by Employer as from January 1, 2000.
b. Miscellaneous
(i) Automobile
As of January 1, 2000, Employee will no longer be entitled to
reimbursement of the lease of a car.
(ii) Mobile Telephone
Employee shall be entitled to buy the mobile telephone currently owned
by Employer but in use with Employee, for an amount of NLG 432.70,
which amount shall be payable as of Termination Date and which amount
may be deducted by Employer from the Severance Pay.
(iii) Stock Options
The stock options relating to shares in the capital of The
Spectranetics Corporation (the "Stock Options") which have vested and
are owned and exercisable by Employee as per Termination Date, as
mentioned in employee's Personal Option Status as per Termination Date,
may be exercised during a period of three (3) months from Termination
Date and in accordance with the terms and conditions of the Stock
Option Plan. A copy of the Employee's Personal Option Status as per
February 15, 2000 is attached to this Agreement. Employee will not earn
any new Stock Options as from January 1, 2000.
(iv) Computer
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Employee must return the computer Gateway Solo provided by Employer
to Employee at the office address of Employer at Leusden no later than
the calendar day immediately following Termination Date.
No later than the Termination Date, Employee shall return to the
Employer the following items:
o All keys to the Employer's premises situated at Leusden, as
well as any and all other keys in the possession or control
of Employee which would give Employee access to Employer's
premises.
o KLM Credit Card
o Scope card
Employee will also receive a letter of reference from Employer describing his
responsibilities during his employment with Employer. Such letter may be used
by the Employee for the purposes of procuring employment. Notwithstanding the
foregoing, such letter shall be considered as an integral part of this
Agreement and use of such letter shall be governed by Paragraph 4(a) of this
Agreement relating to Confidentiality and Non-Disclosure.
The foregoing contains all compensation, benefits and rights to which Employee
shall be entitled as a result of his separation from Employer. Employee
specifically and irrevocably waives all other compensation, benefits and rights
to which Employee may be entitled to under the 1993 Agreement, 1997 Agreement
or any applicable laws or court decisions.
4. RETURN OF EMPLOYER PROPERTY
Employee agrees to return to Employer no later than 4:00 P.M. on the
Termination Date, without limitation, all correspondence, papers, documents,
files, data, computer software and programs, work in progress, customer lists,
business plans, contracts, business proposals, notes, drawings, calculations,
and any other property belonging to Employer and all subsidiaries/group
companies of Employer, both in The Netherlands and abroad, which may be in
Employee's possession or control, whether or not such materials were addressed
to Employee personally or otherwise ("Employer Property").
Employee further agrees to retain no duplicates or copies of any Employer
Property without the prior express written consent of Employer. To the extent
not covered herein, Employer agrees to comply fully with the provisions of
Articles 10 and 11.3 of the 1993 Agreement and Articles 10, 11.3, 12.4, and
13.5 of the 1997 Agreement.
5. CONFIDENTIALITY
a. Non-Disclosure of Separation Agreement
Employee covenants and agrees that Employee will hold the terms and
conditions of this Agreement in the strictest of confidence and that
Employee will not disclose to any other employee of the Employer, nor
any other third party (other than Employee's legal counsel), any of the
terms or conditions of this Agreement without first obtaining the
express written consent of the Employer.
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This Agreement may not be introduced into evidence in the connection
with any legal or other process, by Employee against Employer, or by
Employer against Employee, for any reason other than the enforcement of
its terms.
b. Protection of Employer Proprietary Information
Employee further acknowledges and agrees that during the course of
employment with Employer, Employee's relationship with Employer was one
of high trust and confidence and that in the course of such employment
with Employer, Employee had access and made use of a variety of
proprietary information of the Employer, including information relating
to Employer's business, marketing plans, products, software programs,
manuals, guides, customer lists, business plans, client proposals, and
confidential documents and communications within or concerning Employer
and its affiliates which are not freely available to outsiders
(collectively, "Proprietary Information"). Employee hereby agrees and
covenants that Employee will not disclose to any third party any
Proprietary Information in Employee's possession or control without the
prior express written consent of Employer.
c. Survival of Confidentiality
Employee further agrees that the Confidentiality provisions of Article
11 of the 1993 Agreement and of Article 11 of the 1997 Agreement
remain in full force and effect, and are incorporated herein by
reference. Nothing contained herein limits the terms or effectiveness
of such provisions, nor limits Employer's rights and/or remedies
thereunder.
6. ADEQUATE COMPENSATION
Employee covenants and agrees that the Severance Pay, taking into consideration
all relevant facts and circumstances, including but not limited to Employee's
knowledge and experience and his position on the relevant employment market,
constitutes adequate and sufficient compensation for Employee's obligations
described in article 2 and article of this Agreement.
7. RELEASE
Employee covenants and agrees that this Agreement constitutes the full and
final resolution of all claims and demands that Employee has or may have
against Employer arising out of Employee's employment relationship with
Employer, Employee's termination of employment with Employer, or for any other
reason whatsoever. Employee further waives any and all rights that Employee has
or may have against Employer to make and claim or demand for damages, injury or
loss of whatever kind or natures, and/or to commence, continue, prosecute,
cause or permit to be prosecuted any action or proceeding of any type or
description against Employer or its shareholders, officers, directors, agents,
employees, affiliates, associates, successors, assigns, parent or subsidiary
companies or insurers arising out of Employee's employment with Employer,
Employee's termination of employment with Employer, or for any other reason
whatsoever.
8. REPRESENTATION OF THE COMPANY
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Employee covenants and agrees that as of the Termination Date, Employee shall no
longer be an employee, agent, or representative of Employer in any capacity,
and thus Employee shall not have, nor represent that he has, any power to
represent or to bind Employer.
9. DISMISSAL AS MANAGING DIRECTOR
Employee covenants and agrees to be dismissed and discharged by The
Spectranetics Corporation in its capacity of sole shareholder of Spectranetics
International B.V., and by Spectranetics International B.V., as Managing
Director ("ontslagen en gedechargeerd als statutair directeur") of Spectranetics
International B.V. as of the Termination Date. To the extent legally required,
Employee waives the right to be heard by the General Meeting of Shareholders of
the Spectranetics International B.V. in connection with a resolution for
dismissal of Employee as Managing Director of that company. Employee further
agrees to assist Employer and take all actions necessary in order to effectuate
such dismissal, including the execution of documents, as necessary, for filing
with the competent Trade Register.
10. COURT ORDER; NO MODIFICATION
Employee and Employer covenant and agree that the terms of this Agreement
concerning compensation to be paid to employee shall not be superseded or
altered by any court order received as a result of the actions taken pursuant to
paragraph 1 to this Agreement and that this Termination Agreement shall govern
the terms of Employee's termination in all respects. Employee specifically
waives his right to enforce such court order to the extent the indemnity for the
termination of employee's employment exceeds the indemnity agreed to in this
Agreement. Employer specifically waives its right to enforce such court orders
to the extent the indemnity for the termination of Employee's employment is less
than that agreed to herein.
11. SEVERABILITY
In case any one or more of the provisions of this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained herein shall not in any way
be affected thereby.
12. BINDING AGREEMENT
The Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors, and assigns of Employee and Employer.
13. GOVERNING LAW; JURISDICTION
This Agreement and all rights of Employee and Employer hereunder shall be
governed, construed, and interpreted in accordance with the laws of The
Netherlands. The courts in the District of Utrecht shall have exclusive
jurisdiction of all disputes arising under or related to this Agreement.
14. COMPLETE AGREEMENT; AMENDMENT OR MODIFICATION
Employee and Employer do hereby for themselves, their heirs, executors,
administrators, successors, assigns, trustees, and next of kin covenant that no
promise, agreement, statement, or representation not herein expressed has been
made to or relied upon by them and that this Agreement contains the entire
agreement between Employee and Employer.
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No modification or addendum to this Agreement shall be valid unless made in
writing and signed by the parties hereto.
15. RELATION TO 1993 AGREEMENT AND 1997 AGREEMENT
To the extent any provision contained herein conflicts with any provision of
the 1993 Agreement or the 1997 Agreement, the provisions of this Agreement
shall be controlling and shall supersede those of the 1993 Agreement and the
1997 Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by: on behalf of Employer, its duly
authorized representative; and by Employee, personally.
THE SPECTRANETICS CORPORATION XXXXXXXXX XXX
/s/ XXXX X. XXXX /s/ XXXXXXXXX XXX
By: Xxxx X. Xxxx
Position: Vice President Human Resources
SPECTRANETICS INTERNATIONAL B.V.
/s/ XXXX X. XXXX
By: Xxxx X. Xxxx
Position: Directeur
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