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Exhibit 10.8
EMPLOYMENT AGREEMENT
AGREEMENT by and between Maxxim Medical, Inc., a Texas corporation
(the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive"), dated as of the 16th day
of June, 2000.
WHEREAS, the Company has determined to secure the services of the
Executive as provided for below, and the Executive desires to secure employment
with the Company as provided for below.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment Period. The Company shall employ the Executive,
and the Executive shall serve the Company, on the terms and conditions set
forth in this Agreement, for the period commencing on June 16, 2000 (the
"Effective Date"), and ending on October 31, 2004 (the "Employment Period");
provided, however, that commencing on October 31, 2004 and on each annual
anniversary of such date (October 31, 2004 and each annual anniversary thereof
shall hereinafter be referred to as the "Renewal Date"), unless previously
terminated, the Employment Period shall be automatically extended so as to
terminate one year from the applicable Renewal Date, unless 90 days prior to
such Renewal Date the Company or the Executive shall terminate this Agreement
by giving written notice to the other party that the Employment Period shall
not be so extended.
2. Position and Duties. (a) The Executive shall serve as Vice
Chairman of the Board of Directors of the Company (the "Board") and President
of the Company, reporting initially to the Board or such other person as the
Board may designate, with such duties and responsibilities as are customarily
assigned to such position, and such other duties and responsibilities not
inconsistent therewith as may be assigned to the Executive from time to time by
the Company. In addition, pursuant to the Services Agreement by and among the
Company, Maxxim Medical Group, Circon Holdings Corp. ("Circon Holdings") and
Circon Corporation, the Executive during the Employment Period and any
extensions thereto in accordance with this Agreement, to the extent so
requested by the Company, shall perform services for Circon Holdings and its
subsidiaries (including, without limitation, serving as acting President of
Circon Holdings). The Executive shall become a member of the Board of Directors
of Circon Holdings during the Employment Period.
(b) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote his full business time and efforts to the business and
affairs of the Company (and Circon Holdings and its subsidiaries to the extent
requested by the Company) and use his best efforts to carry out such
responsibilities faithfully and efficiently. During the Employment Period, the
Executive shall not be engaged in any other business activity (other than with
respect to his duties and responsibilities to Circon Holdings) without the
prior written consent of the Company except for time spent in managing his
personal, financial and legal affairs, in each case only if, and to the extent
that, such activities do not interfere with the performance of the Executive's
duties and responsibilities hereunder.
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(c) The Executive's services shall be performed at the
Company's Clearwater headquarters subject to such business travel as may be
required from time to time, or such other headquarters location as the Board
shall, in its discretion, determine.
3. Cash Compensation. (a) Base Salary. During the Employment
Period, the Executive shall receive a base salary (the "Annual Base Salary") at
the annual rate of $425,000. The Annual Base Salary shall be payable in
accordance with the Company's payroll practices as in effect from time to time,
subject to applicable taxes and withholding, but no less frequently than in
equal monthly installments.
(b) Annual Bonus. For each fiscal year ending during the
Employment Period, the Executive shall be eligible to earn an annual
performance bonus (the "Annual Bonus") based upon the terms and conditions of
an annual bonus program to be established by the Board, and subject to
applicable taxes and withholding. The terms and conditions of such an annual
bonus program shall be determined in the sole and absolute discretion of the
Board and may include performance goals and targets relating to the business
and operations of the Company (and Circon Holdings) and shall be subject to
adjustment for any restructuring charges, reserves or other matters that the
Board in its sole and absolute discretion may deem appropriate. The annual
bonus program established under this Agreement shall provide that the Executive
shall receive an annual bonus as follows:
o Fiscal Year 2000 - the Executive shall receive an
Annual Bonus equal to $108,333 (the "FY 2000
Bonus").
o Fiscal Year 2001 and thereafter - the Executive
shall receive an Annual Bonus equal to (x) $325,000
to the extent that the Board determines that the
Executive has achieved 100% of targeted performance
for the applicable fiscal year, or (y) $700,000 to
the extent that the Board determines that the
Executive has achieved 125% of targeted performance
(or greater) for the applicable fiscal year;
provided, however, that the Executive shall be
entitled to receive a minimum Annual Bonus of
$216,667 in fiscal year 2001 (the "FY 2001 Bonus");
and provided, further however, that the Executive
shall not be entitled to any Annual Bonus in fiscal
year 2002 or any year thereafter in which he fails
in the sole judgment of the Board to achieve at
least 100% of the annual targeted performance for
such fiscal year; provided that if the Executive
remains employed through the completion of the
Employment Period (October 31, 2004) the Executive
shall receive the applicable Annual Bonus determined
by the Board for such Fiscal Year, notwithstanding
the expiration of the Employment Period and his
termination of employment thereafter (other than any
termination as a result of events that would have
otherwise constituted Cause had this Agreement
remained in effect).
In each case set forth above, and except as provided for in Section
6(a)(i)(B)(2) hereof, payment of the Annual Bonus is expressly conditioned on
the Executive remaining actively employed in good standing with the Company at
the time such Annual Bonus payment is made. Any Annual Bonus payable pursuant
to this subsection shall be paid in accordance with the terms of the management
incentive program then applicable to the Executive, but in any
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event no later than thirty (30) days following delivery of the audited
financial statements for the applicable fiscal year.
(c) Employee Benefit and Compensation Plans. During the
Employment Period, except as otherwise expressly provided herein, the Executive
shall be eligible to participate in all employee benefit plans, practices,
policies and programs of the Company as made available to the Company's senior
executive officers from time to time; provided that to the extent any written
welfare or benefit plans so permit, the Company shall credit the Executive with
his years of continuous service with Parker Hannifin Corporation for purposes
of determining the Executive's eligibility and benefit entitlement.
(d) Office and Support Staff. During the Employment
Period, the Executive shall be entitled to an office and secretarial support as
made available to the Company's senior executive officers from time to time.
(e) Perquisites. During the Employment Period, the
Executive shall be eligible to receive perquisites under the Company's
practices, policies and programs as made available to the Company's senior
executive officers from time to time.
(f) Vacation. Executive shall be entitled to be paid
vacation consistent with the Company's practices, policies and programs for its
senior executive officers, but in any event four (4) weeks during each twelve
(12) months of employment.
(g) Relocation Expenses. The Company shall pay for or
reimburse the Executive for all reasonable and documented relocation and moving
expenses to facilitate the Executive's relocation to the Company's headquarters
in Florida (or such other locale where the Company's headquarters may be
located) and incurred in connection with the relocation of the Executive's
family and as agreed to in advance by the Company.
(h) Automobile Allowance. For so long as the Executive
remains an employee in good standing under the terms of this Agreement, the
Company will provide Executive with an automobile allowance of $1,000 per
month.
(i) Financial Planning Services. For so long as the
Executive remains an employee in good standing under the terms of this
Agreement, the Company shall reimburse the Executive for reasonable and
documented annual financial planning services in an amount not to exceed $7,500
for his initial year of employment and $3,000 per year of employment
thereafter.
(j) Country Club Membership. For so long as the
Executive remains an employee in good standing under the terms of this
Agreement, the Company shall pay for or reimburse the Executive for annual
country club membership dues.
4. Equity Compensation. (a) Stock Option Grant. The Executive
shall receive a grant of stock options for 750,000 shares of the Company's
common stock (the "Maxxim Options") under the Company's 1999 Stock Incentive
Plan (the "1999 Plan"). The foregoing grant shall be effective as of the
Effective Date and shall be subject to a per share exercise price of $5. The
Maxxim Options shall vest in 25% increments on each anniversary of the
Effective Date for so long as the Executive remains employed; provided that no
vesting of any portion of
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the Maxxim Options shall occur unless the Executive purchases the Maxxim Stock
(as defined below) and the 22,500 shares of common stock of Circon that the
Executive is required to purchase pursuant to that certain letter agreement by
and between the Executive and Circon (the "Circon Stock"); and provided further
that in the event of Change in Control (as defined in Annex 1 attached hereto)
any unvested Maxxim Options shall immediately vest and become exercisable. The
Maxxim Options shall consist of non-qualified stock options under the terms of
the 1999 Plan. Unless otherwise provided for herein, the terms of the 1999 Plan
and the individual form of option agreement issued pursuant to the 1999 Plan (a
form of which is attached hereto as Exhibit B) shall govern the Executive's
rights and obligations with respect to the Maxxim Options.
(b) Stock Purchase. During the 120-day period commencing
as of the Effective Date, the Executive shall purchase 127,500 shares of common
stock in the Company for an aggregate purchase price of $637,500 ($5 per share)
(the "Maxxim Stock"). Should the Executive elect to purchase the Maxxim Stock,
the purchase price shall be paid as follows: (i) one-half (50%) or $318,750
shall be paid in cash at the time of purchase; and (ii) subject to the receipt
by the Company of the cash payment in subclause (i), one-half (50%) or $318,750
shall be payable by delivery of a promissory note (the "Promissory Note")
issued by the Executive to the Company, in the form attached hereto as Exhibit
A-1. The Promissory Note shall be secured by a pledge of the Maxxim Stock,
pursuant to the form of Stock Pledge Agreement attached hereto as Exhibit A-2.
In connection with this purchase of the Maxxim Stock, the Executive represents
and warrants as provided for in Annex 2 hereto.
All Maxxim Stock purchased pursuant to this Section 4 shall be
governed in all respects and be subject to the provisions of the Company
Stockholder's Agreement dated as of November 12, 1999 (the "Stockholders'
Agreement"); it being understood that (i) Executive shall be deemed to be a
"Stockholder" for purposes of the Stockholders' Agreement, (ii) Executive shall
be subject in all respects to the transfer restrictions set forth in Article 2
of the Stockholders' Agreement, and (iii) the Executive shall not be deemed to
be an "Executive Management Investor" for purposes of Article 4 of the
Stockholders' Agreement. Executive covenants and agrees that he shall take all
necessary steps to become a signatory to the Stockholders' Agreement together
with any amendments thereto.
5. Termination of Employment. (a) Death or Disability. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. The Company shall, to the full extent permitted
by law, be entitled to terminate the Executive's employment because of the
Executive's "Disability" (as herein defined) during the Employment Period.
"Disability" means that the Executive has been unable to perform or has not,
for a period of three months, or for a total of 90 days in any given period of
twelve months, performed, the Executive's duties under this Agreement, as a
result of physical or mental illness or injury or otherwise as reasonably
determined by the Company.
(b) By the Company. (i) The Company may terminate the
Executive's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, the term "Cause" shall be defined as: (A) the
Executive's continuing failure to substantially perform his duties or
obligations under this Agreement, after specific written demand from the
Company regarding such failure to perform, or (B) the Executive's willful
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engaging in misconduct which is materially and demonstrably injurious to the
Company, Circon Holdings or any of their respective affiliates. This subclause
(B) shall be triggered without a showing of injury to the Company in the event
that (i) the Executive is charged with a felony; (ii) the Company reasonably
determines that the Executive committed any fraud, embezzlement, dishonesty or
breach of business ethics (and such breach of business ethics has an adverse
effect on the reputation, business or prospects of the Company); (iii) the
Executive commits any material breach of any Company bona fide policies or
procedures; (iv) the Executive commits any breach of Section (7) or (8) of this
Agreement; or (v) the Executive fails to purchase the Maxxim Stock pursuant to
Section 4(b) hereof and the Circon Stock, as provided for in the letter
agreement between the Executive and Circon Holdings Corporation, dated as of
June 16, 2000.
(c) By the Executive for Good Reason. (i) For purposes
of this Agreement, "Good Reason" means:
A. any change in the Executive's title to one
of lesser status;
B. any reduction in the Executive's Annual
Base Salary;
C. assignment to the Executive of any duties
inconsistent with his position, duties or responsibilities as
of the Effective Date (other than any duties or
responsibilities assigned to the Executive regarding the
business and affairs of Circon Holdings); or
D. continuing failure by the Company to
substantially comply with any material provision of this
Agreement, other than failures that are not taken in bad
faith and are remedied by the Company within 10 business days
after receipt of written notice thereof from the Executive.
(ii) A termination of employment by the
Executive for Good Reason shall be effectuated by giving the Company written
notice ("Notice of Termination for Good Reason") of the termination, setting
forth the conduct of the Company that constitutes Good Reason within thirty
(30) days of the Executive's knowledge or constructive knowledge of the alleged
event giving rise to Good Reason and the failure of the Executive to give
notice within such thirty (30) day period shall result in a complete and
irrevocable waiver of any claim by the Executive that such conduct constituted
Good Reason. A termination of employment by the Executive for Good Reason shall
be effective 30 days following the date when the Notice of Termination for Good
Reason is given, unless the Company shall, in its discretion, elect to
terminate the Executive for any reason at an earlier time after the delivery of
such notice, or the Company shall at any time have Cause to terminate the
Executive, in which case such Notice of Termination for Good Reason shall be
ineffective.
(d) Date of Termination. The "Date of Termination" means
the date of the Executive's death, disability, or the date on which the
termination of the Executive's employment by the Executive for Good Reason is
effective, or the date on which the Company gives the Executive notice of a
termination of employment with cause or without Cause, as the case may be.
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6. Obligations of the Company upon Termination. (a) Other Than
for Cause, Death or Disability; Good Reason. If, during the Employment Period,
the Company terminates the Executive's employment, other than for Cause or
Disability, or the Executive terminates his employment for Good Reason (except
with respect to subclause (a)(i)(B)(2) below), the Company shall pay the
amounts and, continue the benefits described below. The payments and other
provisions provided pursuant to this Section 6(a) are intended as liquidated
damages for the termination of the Executive's employment by the Company other
than for Cause or Disability or for the actions of the Company leading to a
termination of the Executive's employment by the Executive for Good Reason and
shall be the sole and exclusive remedy therefor; provided further that as a
condition precedent for the receipt of such payments the Executive shall
execute and deliver a general release (in the form attached hereto as Exhibit
C) of all claims against the Company.
(i) The amounts to be paid as described above are:
A. The Executive's earned and accrued but
unpaid cash compensation, in the form of a lump-sum payment,
to be paid within 30 days after the Date of Termination,
which shall equal the sum of (1) any portion of the
Executive's Annual Base Salary earned through the Date of
Termination that has not yet been paid, (2) any earned and
unpaid Annual Bonus that was earned by the Executive for a
prior fiscal year and that was declared due and owing by the
Company; and (3) any accrued but unpaid vacation time (but
without giving effect to any carry-over of unused time from
prior years), in each case subject to applicable taxes and
withholding (the amounts set forth in subclauses (1)-(3)
constitute the "Accrued Obligation").
B. (1) A payment, payable in accordance with
the Company's standard monthly payroll practices in equal
monthly installments, and subject to withholding and taxes,
of an amount determined by the following formula: $35,417 x
(36 - the aggregate number of months during which the
Executive has rendered any services under this Agreement
during the Employment Period); provided that in no event
shall the Executive receive less than eighteen (18) months
severance under this Section 6(a)(i)(B).
(2) If the Executive is terminated by
the Company without Cause, if such termination
occurs in (x) FY 2000, a pro rata portion of the FY
2000 Bonus (with such pro ration based on the actual
number of full months the Executive remained
employed during the applicable fiscal year divided
by 12), (y) FY2001, a pro rata portion of the FY
2001 Bonus (with such pro ration based on the actual
number of full months the Executive remained
employed during the applicable fiscal year divided
by 12) and (z) in any other fiscal year, a pro rata
portion of the Annual Bonus up to the date of
termination (based on the extent to which (i)
targeted performance has been met for each completed
quarter as of the date of termination and (ii) the
actual number of full months the Executive remained
employed during the applicable fiscal year divided
by 12).
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(ii) The payments provided for in Subsection 6(a)(i)(B)
above (other than the pro rata portion of any Annual
Bonus otherwise due the Executive pursuant to
Subsection 6(a)(i)(B)(2) above as of the date of his
termination) shall immediately cease if Executive is
offered, within 60 days of the termination of his
employment, full-time employment with Fox ▇▇▇▇▇ &
Co., LLC ("FPC") or any of its affiliates (including
any entity, which directly or indirectly, controls,
is controlled by or is under common control with,
FPC) in a position of substantially equivalent title
and responsibilities providing for an annual base
salary comparable to the base salary for which the
Executive was eligible at the time of his
termination, and requiring that the Executive's
executive offices be located at Foster City,
California or at a location within a reasonable
commuting distance of the Executive's home or then
principal executive offices of the Company; provided
that if Executive accepts such offer and Executive's
employment is terminated by FPC prior to October 31,
2004, the Company shall pay to the Executive the
payments (if any) provided for in Subsection
6(a)(i)(B)(1) so long as the events giving rise to
Executive's termination by FPC would not have
constituted Cause hereunder, and after aggregating
service with the Company and FPC for purposes of
determining the extent to which Executive has
"rendered any services under this Agreement during
the Employment Period" for purposes of Subsection
6(a)(i)(B)(1).
(iii) Executive shall be entitled to retain the Maxxim
Options and Maxxim Stock vested as of the Date of
Termination (but without giving effect to the
additional 30 days following delivery of a Notice of
Termination for Good Reason) in each case subject to
the terms of the 1999 Plan, Stockholder's Agreement
and any other applicable documents. All unvested
Maxxim Options and Maxxim Stock shall be cancelled
upon the Executive's termination for any reason and
be of no further force and effect.
(b) Death or Disability. If the Executive's employment
is terminated by reason of the Executive's death or Disability during the
Employment Period, the Company shall pay the Accrued Obligations to the
Executive or the Executive's estate or legal representative, as applicable, in
a lump-sum payment (subject to applicable taxes and withholding) within 30 days
after the Date of Termination, and the Company shall have no further
obligations under this Agreement. In the event of the Executive's death, all of
the unvested Options shall be immediately canceled. In the event of the
Executive's disability, the Options shall be governed by the terms of the 1999
Plan and relevant stock option agreements.
(c) Cause; Other than for Good Reason. If the Executive's
employment is terminated by the Company for Cause during the Employment Period,
or if the Executive terminates his employment during the Employment Period
other than for Good Reason, the Company shall pay the Executive, in a lump-sum
payment (subject to applicable taxes and
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withholding) within 30 days of the Date of Termination, any earned and unpaid
Annual Base Salary through the Date of Termination, and any Maxxim Options held
by the Executive (whether vested or unvested) shall be immediately canceled,
and the Company shall have no further obligations under this Agreement.
7. Confidential Information; Work Product. The Executive
acknowledges that as a senior executive of the Company he is familiar with a
range of confidential proprietary information regarding the Company and its
affiliates. The Executive further acknowledges and agrees that his employment
by the Company will, throughout the Employment Period, bring him into close
contact with the confidential affairs of the Company and its affiliates,
including information about their client and customer lists and information
concerning proprietary manufacturing formulations and processes, costs,
profits, real estate, markets, sales, products, key personnel, pricing
policies, operational methods, patents, medical device designs and procedures,
technical processes and other business affairs and methods and other
information not readily available to the public, and plans for future
development. The Executive further acknowledges that the services to be
performed under this Agreement are of a special, unique, unusual, extraordinary
and intellectual character. The Executive further acknowledges that the
business of the Company and its subsidiaries is international in scope, that
its products are marketed throughout the world, that the Company competes in
nearly all of its business activities with other entities that are or could be
located in nearly any part of the world and that the nature of the Executive's
services, position and expertise are such that he is capable of competing with
the Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
(a) The Executive acknowledges that the Executive will
have knowledge of certain trade secrets of the Company, including, without
limitation, information concerning its client and customer lists and
information concerning proprietary manufacturing formulations and processes.
The Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the
Company or any of its affiliates, and their respective businesses, (including,
without limitation, any client names, client lists, trade secrets, research,
proprietary manufacturing formulations and processes, medical device designs
and procedures, secret data, business methods, operating procedures or
programs), which shall have been obtained by the Executive during the
Executive's employment by the Company and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement) (collectively the "Trade Secrets and
Confidential Information"). After termination of the Executive's employment
with the Company, except as may be required by law, the Executive shall not
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. The Executive further acknowledges
that should he become involved in a "Competing Business" (as defined in Section
8(a) hereof), it would be an inevitable outcome of such activity that Trade
Secrets and Confidential Information would be disclosed during the course of
his involvement. For the purposes of this Section 7, information shall not be
deemed to be publicly available merely because it is embraced by general
disclosures or because individual features or combinations thereof are publicly
available. All records, files, memoranda, reports, customer lists, documents
and the like that the Executive uses, prepares or receives during the course of
the Executive's employment shall remain the sole
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property of the Company or one or more of its affiliates, as applicable, and
shall be turned over to the Company or its affiliates upon termination of the
Executive's employment.
(b) In view of the fact that the services to be rendered by
the Executive on behalf of the Company are of special, unique and extraordinary
character, while employed by the Company or any of its affiliates and for three
years after the Executive's termination of employment for any reason, the
Executive will not, without the written consent of the Board, directly or
indirectly: (i) attempt in any manner to persuade any client or customer of the
Company or any of its affiliates to cease to do business or to reduce the
amount of business which any client or customer has customarily done or
contemplates doing with the Company or any of its affiliates; (ii) solicit
business of any client or customer of the Company or any of its affiliates
unless such solicitations are rendered as an employee of the Company or such
affiliates to the extent such business is of the sort then engaged in, or
proposed to be engaged in, by the Company or its affiliates; or (iii) render
any services of the type usually rendered by the Company or an affiliate for
any such client or customer of the Company or any of its affiliates (unless
such services are rendered as an employee of the Company or such affiliates),
in the case of clauses (i), (ii) and (iii), whether or not the relationship
between the Company or such affiliate and such client or customer was
originally established, in whole or in part, through the Executive's efforts.
(c) While employed by the Company or any of its
affiliates and for three years after the Executive's termination of employment
for any reason, the Executive will not, directly or indirectly, on behalf of
the Executive or any other person, solicit for employment by other than the
Company or such affiliates any person then employed by the Company or its
affiliates.
(d) The Executive acknowledges that during the
Employment Period, the Executive may conceive of, discover, invent or create
inventions, improvements, new contributions, literary property, computer
programs and software material, ideas and discoveries, whether patentable or
copyrightable or not (all of the foregoing being collectively referred to
herein as "Work Product"), and that various business opportunities shall be
presented to the Executive by reason of the Executive's employment by the
Company. The Executive acknowledges that all of the foregoing shall be owned by
and belong exclusively to the Company and that the Executive shall have no
personal interest therein, provided that they are either related in any manner
to the business (commercial or experimental) of the Company, or are, in the
case of Work Product, conceived or made on the Company's time or with the use
of the Company's facilities or materials, or, in the case of business
opportunities, are presented to the Executive for the possible interest or
participation of the Company. The Executive shall (i) promptly disclose any
such Work Product and business opportunities to the Company; (ii) assign to the
Company, upon request and without additional compensation, the entire rights to
such Work Product and business opportunities; (iii) sign all papers necessary
to carry out the foregoing; and (iv) give testimony in support of the
Executive's inventorship or creation in any appropriate case. The Executive
agrees that the Executive will not assert any rights to any Work Product or
business opportunity as having been made or acquired by the Executive prior to
the Date of this Agreement except for Work Product or business opportunities,
if any, disclosed to and acknowledge by the Company in writing prior to the
Date hereof.
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(e) The Executive acknowledges and agrees that: (i) the
purposes of Section 7 are to protect the goodwill and Trade Secrets and
Confidential Information of the Company and its affiliates for whom the
Executive performs services under this Agreement, and to prevent the Executive
from interfering with the business of the Company and such affiliates as a
result of or following termination of the Executive's employment with the
Company; (ii) that the covenants of Section 7, are being given in part in
consideration for the consideration being received by the Executive hereunder;
(iii) because of the nature of the business in which the Company and its
affiliates are engaged and because of the nature of the Trade Secrets and
Confidential Information to which the Executive has access, it would be
impractical and excessively difficult to determine the actual damages of the
Company and its affiliates in the event the Executive breached any of the
covenants of Section 7; and (iv) remedies at law (such as monetary damages) for
any breach of the Executive's obligations under Section 7 would be inadequate.
The Executive therefore agrees and consents that if the Executive commits any
breach of a covenant under this Section 7 or threatens to commit any such
breach, the Company and its affiliates shall have the right (in addition to,
and not in lieu of, any other right or remedy that may be available to it) to
(i) temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage and (ii) to implement the repayment
obligations set forth more fully in Annex 3 hereto and the Executive
acknowledges and agrees that the provisions of Annex 3 shall be enforceable
independently and severally with respect to any violation arising hereunder,
notwithstanding the applicability of Annex 3 to any violations of Section 8
hereof. With respect to any provision of Section 7 finally determined by a
court of competent jurisdiction to be unenforceable, the Executive, the Company
and its affiliates hereby agree that such court shall have jurisdiction to
reform this Agreement or any provision hereof so that it is enforceable to the
maximum extent permitted by law, and the parties agree to abide by such court's
determination. If any of the covenants of Section 7 are determined to be wholly
or partially unenforceable in any jurisdiction, such determination shall not be
a bar to or in any way diminish the right of the Company or its affiliates to
enforce any such covenant in any other jurisdiction.
(f) The provisions of Section 7 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment
hereunder.
8. Non-Competition. The Executive acknowledges that as a senior
executive of the Company he is familiar with a range of confidential
proprietary information regarding the Company and its affiliates. The Executive
further acknowledges and agrees that his employment by the Company will,
throughout the Employment Period, bring him into close contact with the
confidential affairs of the Company and its affiliates, including information
about their client and customer lists and information concerning proprietary
manufacturing formulations and processes, costs, profits, real estate, markets,
sales, products, key personnel, pricing policies, operational methods, patents,
medical device designs and procedures, technical processes and other business
affairs and methods and other information not readily available to the public,
and plans for future development. The Executive further acknowledges that the
services to be performed under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character. The Executive further
acknowledges that the business of the Company and its subsidiaries is
international in scope, that its products are marketed throughout the world,
that the Company competes in nearly all of its business activities with other
entities that are or could be
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located in nearly any part of the world and that the nature of the Executive's
services, position and expertise are such that he is capable of competing with
the Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
(a) While employed by the Company or any of its
affiliates and for eighteen (18) months after the Executive's termination of
employment for any reason, the Executive will not, directly or indirectly, for
the Executive's own account or the account of others, own, manage, operate,
control or participate in the ownership, management, operation or control of or
be connected as a principal, employee, officer, director, independent
contractor, representative, stockholder, financial backer, partner, advisor,
manager, consultant or in any other individual or representative capacity with
any business which engages in any business within any market area served by the
Company or any of its affiliates involving the development, manufacture,
distribution or marketing of any hospital or medical products of the type
developed, manufactured, distributed or marketed by the Company or its
affiliates at any time within two years prior to the termination of the
Executive's employment (a "Competing Business"). Ownership for personal
investment purposes only of less than 5% of the voting stock of any publicly
held Competing Business shall not constitute a violation hereof.
(b) The Executive acknowledges and agrees that: (i) the
purposes of Section 8 are to protect the goodwill and Trade Secrets and
Confidential Information of the Company and its affiliates for whom the
Executive performs services under this Agreement, and to prevent the Executive
from interfering with the business of the Company and such affiliates as a
result of or following termination of the Executive's employment with the
Company; (ii) that the covenants of Section 8, are being given in part in
consideration for the consideration being received by the Executive hereunder;
(iii) because of the nature of the business in which the Company and its
affiliates are engaged and because of the nature of the Trade Secrets and
Confidential Information to which the Executive has access, it would be
impractical and excessively difficult to determine the actual damages of the
Company and its affiliates in the event the Executive breached any of the
covenants of Section 8; and (iv) remedies at law (such as monetary damages) for
any breach of the Executive's obligations under Section 8 would be inadequate.
The Executive therefore agrees and consents that if the Executive commits any
breach of a covenant under this Section 8 or threatens to commit any such
breach, the Company and its affiliates shall have the right (in addition to,
and not in lieu of, any other right or remedy that may be available to it) to
(i) temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage and (ii) to implement the repayment
obligations set forth more fully in Annex 3 hereto. With respect to any
provision of Section 8 finally determined by a court of competent jurisdiction
to be unenforceable, the Executive, the Company and its affiliates hereby agree
that such court shall have jurisdiction to reform this Agreement or any
provision hereof so that it is enforceable to the maximum extent permitted by
law, and the parties agree to abide by such court's determination. If any of
the covenants of Section 8 are determined to be wholly or partially
unenforceable in any jurisdiction, such determination shall not be a bar to or
in any way diminish the right of the Company or its affiliates to enforce any
such covenant in any other jurisdiction.
(c) The provisions of Section 8 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment
hereunder.
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9. Successors. (a) This Agreement is personal to the Executive
and, without the prior written consent of the Company, shall not be assignable
by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns, and may be assigned by
the Company in connection with any sale, transfer or other disposition of all
or substantially all of its business and assets.
10. Indemnification. The Executive shall be entitled throughout
the Employment Period in the capacity as an officer or director of the Company
or any of its subsidiaries, or as a member of any other governing body or any
partnership or joint venture in which the Company has an equity interest (and
after the term of employment, to the extent relating to any continued service
as such officer, director or member) to the benefit of the indemnification
provisions contained in the Certificate of Incorporation and By-Laws of the
Company as in effect from time to time, to the extent not prohibited by
applicable law at the time of the assertion of any liability against the
Executive.
11. Post-Termination Assistance. For so long as the Executive is
receiving any payments pursuant to this Agreement, the Executive shall
cooperate, at the reasonable request of the Company (i) in the transition of
any matter for which the Executive had authority or responsibility during the
Employment Period, or (ii) with respect to any other matter involving the
Company for which the Executive may be of assistance.
12. Arbitration. Subject to the provisions of Sections 7 and 8
hereof, the Company and the Executive agree that any disputes with respect to
this Agreement shall be subject to binding arbitration in San Mateo County,
California, in accordance with the rules of the Commercial Panel of American
Arbitration Association. All aspects of the arbitration, including the
existence of such proceedings, all claims and allegations arising in such
proceeding and the results of such arbitration shall be treated as confidential
information subject to Section 7 and 8 hereof, except to the extent disclosure
of such information is required by law, and shall be final and binding on the
parties thereto. Each party agrees to pay for the costs of arbitration and its
own attorneys' fees and expenses incurred as a result of such arbitration. The
dispute shall be submitted to a single arbitrator to be mutually agreed upon by
the parties who shall apply California law as provided for in Section (13)
below. If the parties cannot agree upon a single arbitrator, each party shall
appoint one arbitrator who shall then jointly appoint a third arbitrator.
Judgment upon the arbitration award may be entered in any court having
jurisdiction.
13. Miscellaneous. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, applicable
to agreements made and to be performed entirely within such state. The captions
of this Agreement are not part of the provisions hereof and shall have no force
or effect. This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective successors and
legal representatives.
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(b) All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive, to the Executive's address
as maintained by the Company.
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Tilles, Webb, ▇▇▇▇▇ & Grant
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Maxxim Medical, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this Section 13. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law, and the invalid or unenforceable provision shall be deemed
to have been redrafted as if in the original, so as to be valid and enforceable
to the maximum extent permissible under applicable law.
(d) Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this Agreement
all federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
(e) The failure of the Executive or the Company to
insist upon strict compliance with any provision of, or to assert any right
under, this Agreement shall not be deemed to be a waiver of such provision or
right or of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this
Agreement represents the complete agreement between the parties and supersedes
any other agreement between them concerning the subject matter hereof,
including the letter dated June 5, 2000 from Fox ▇▇▇▇▇ & Company, LLC, which
shall be terminated as of the Effective Date and without any
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force or effect. This Agreement may not be modified except by express written
agreement between the parties.
(g) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and which together
shall constitute one instrument.
(h) Whenever this Agreement provides for any payment to
the Executive's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Executive may designate by written notice to the Company.
The Executive shall have the right to revoke any such designation and to
redesignate a beneficiary or beneficiaries by written notice to the Company
(and to any applicable insurance company) to such effect.
(i) The Executive represents and warrants to the Company
that this Agreement has been duly authorized, executed and delivered by the
Executive and the execution of this Agreement and the performance of the
Executive's obligations hereunder does not and will not constitute a breach of,
or conflict with the terms or provisions of, any agreement or understanding to
which the Executive is a party (including, without limitation, any other
employment agreement). The Company represents and warrants to the Executive
that this Agreement has been duly authorized, executed and delivered by the
Company and the execution of this Agreement and the performance of the
Company's obligations hereunder does not and will not constitute a breach of,
or conflict with the terms or provisions of, any agreement or understanding to
which the Company is a party.
(j) Neither the Executive, his legal representative nor
any beneficiary designated by the Executive shall have any right, without the
prior written consent of the Company, to assign, transfer, pledge, hypothecate,
anticipate or commute to any person or entity any payment due in the future
pursuant to any provision of this Agreement, and any attempt to do so shall be
void and shall not be recognized by the Company.
(k) Each of the parties has been represented by counsel
(or has had the opportunity to be so represented) in the negotiation and
preparation of this Agreement. The parties agree that this Agreement is to be
construed as jointly drafted. Accordingly, this Agreement will be construed
according to the fair meaning of its language, and the rule of construction
that ambiguities are to be resolved against the drafting party will not be
employed in the interpretation of this Agreement.
(l) Notwithstanding the expiration, non-renewal or
termination of this Agreement, the provisions of Sections (7), (8), (9) (11)
and (12) of the Agreement shall continue in full force and effect and remain
fully binding upon the parties to the extent provided for therein.
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15
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization of its Board of Directors, the Company
has caused this Agreement to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Maxxim Medical, Inc.
By:/s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------
Title:Chairman
-----------------------
15
16
ANNEX 1
For purposes of this Agreement "Change in Control" shall mean (i) the
acquisition by any "Person" or "Group" (as such terms are used in Regulation
13D under the Securities Exchange Act of 1934, as amended) other than Fox ▇▇▇▇▇
& Company, LLC or any of its "affiliates" (as defined below) or any "Person" or
"group" that is a stockholder of the Company as of the Effective Date of
beneficial ownership of a majority or more of the Company's outstanding voting
securities; or (ii) any sale, lease, exchange or other transfer in one
transaction or a series of related transactions, other than a transfer to an
entity which is majority controlled by Fox ▇▇▇▇▇ & Company, LLC or any
affiliate thereof, any other "Person" or "Group" that is a stockholder of the
Company as of the Effective Date or any entity with substantially the same
equity holders as the Company immediately prior to such transfer, of all or
substantially all of the assets of the Company or its operating subsidiaries
(taken together). For purposes of this Annex 1, "affiliate" of Fox ▇▇▇▇▇ &
Company, LLC shall mean a person or entity directly or indirectly controlled
by, controlling or under common control with Fox ▇▇▇▇▇ & Company, LLC and their
equity holders.
17
ANNEX 2
REPRESENTATIONS AND WARRANTIES
In connection with the purchase and sale of the Maxxim Stock
hereunder, Executive represents and warrants to the Company that:
(a) The Maxxim Stock to be acquired by Executive pursuant to this
Agreement shall be acquired for Executive's own account and
not with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any applicable state
securities laws, and the Maxxim Stock shall not be disposed
of in contravention of the Securities Act or any applicable
state securities laws.
(b) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate
the risks and benefits of the investment in the Maxxim Stock.
Executive is an "accredited investor", as defined in
Regulation D promulgated under the Securities Act.
(c) Executive is able to bear the economic risk of Executive's
investment in the Maxxim Stock for an indefinite period of
time because the Maxxim Stock has not been registered under
the Securities Act and, therefore, cannot be sold unless
subsequently registered under the Securities Act or an
exemption from such registration is available.
(d) Executive has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering
of Maxxim Stock and has had full access to such other
information concerning the Company as Executive has
requested. Executive has reviewed, or has had an opportunity
to review, a copy of the Stockholders' Agreement.
(e) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its
terms, and the execution, delivery and performance of this
Agreement by Executive does not and shall not conflict with,
violate or cause a breach of any agreement, contract or
instrument to which Executive is a party or any judgment,
order or decree to which Executive is subject.
(f) Executive is not a party to or bound by any employment
agreement, noncompete agreement or confidentiality agreement
with any person or entity other than the Company.
(g) Executive has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and
that he fully understands the terms and conditions contained
herein. Executive has obtained advice from persons other than
the Company and its counsel regarding the tax effects of the
transaction contemplated hereby.
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ANNEX 3
OPTION AND RESTRICTED STOCK FORFEITURE
Forfeiture of Options and Restricted Stock and Gains Realized upon
Prior Option Exercises or Sale of Stock. Unless otherwise determined by the
Board of Directors of the Company, the Maxxim Options granted under this
Employment Agreement, together with any future options grants made to the
Executive or options on the common stock of, Circon Holdings, shall be subject
to the following additional forfeiture conditions (the Maxxim Options and any
future options (including options on Circon Holdings) shall be referred to
herein as the "Options" to which the Executive, by accepting such Options,
hereby agrees. In the event of the Executive's breach or failure to comply with
any of the terms or conditions of Sections 7 or 8 of this Employment Agreement
(a "Forfeiture Event"), all of the following forfeitures will result:
(i) The unexercised portion of the Options will immediately be
forfeited and canceled upon the occurrence of the Forfeiture
Event; and
(ii) The Executive will be obligated to repay to the Company, in
cash, within five (5) business days after demand is made
therefore by the Company, the total amount of Award Gain (as
defined herein) realized by the Executive (I) upon each
exercise of the Options that occurred on or after (A) the
date that is six (6) months prior to the Forfeiture Event, if
the Forfeiture Event occurred while the Executive was
employed by the Company or a subsidiary or affiliate, or (B)
the date that is six (6) months prior to the date that
Executive's employment by the Company or a subsidiary or
affiliate terminated, if the Forfeiture Event occurred after
the Executive ceased to be so employed, or (II) upon any
sale, transfer or other disposition of the common stock of
the Company or Circon Holdings (other than the Maxxim Stock)
(the "Stock"). For purposes of this Annex 3, the term "Award
Gain" shall mean (i) in respect of a given Options exercise,
the product of (X) the Fair Market Value per share of stock
at the date of such exercise (without regard to any
subsequent change in the market price of such share of stock)
minus the exercise price times (Y) the number of shares as to
which the Options were exercised at that date, and (ii), in
respect of any sale of Stock, the value of any cash or the
Fair Market Value of stock or property paid or payable to the
Executive less any cash or the Fair Market Value of any stock
or property (other than stock or options which would have
itself been forfeitable hereunder and excluding any payment
of tax withholding) paid by the Executive to the Company as a
condition or in connection with the acquisition of such Stock
or amount otherwise included in subclause (i) above.
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EXHIBIT A-1
THIS NOTE IS ISSUED TO SECURE PAYMENT FOR SHARES OF MAXXIM
CORPORATION STOCK SOLD TO THE MAKER.
PROMISSORY NOTE
$318,750 New York, New York
_______________ __, 2000
FOR VALUE RECEIVED, the undersigned (the "Maker") promises to pay to
the order of MAXXIM MEDICAL, INC., a Texas corporation (the "Company"), at its
principal, executive offices, the principal sum of THREE HUNDRED EIGHTEEN
THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($318,750), in lawful money of the
United States of America, which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment. This Note shall bear
interest annually at the compounded rate of 10% provided, that, all interest
accrued on the Note through to and including the fifth anniversary of the
issuance date shall be added to the initial principal amount of the Note, and
not be due and payable currently, and, provided, further, that on or after the
fifth anniversary of the issuance date, interest shall be due and owing
annually on the then outstanding principal of this Note and payable in cash on
each subsequent anniversary of the date of issuance; and provided further that
if Maker elects in writing to have this Note be fully recourse against the
Maker and his personal assets in addition to the Collateral (as defined below)
then from the date of such election this Note shall bear cash interest annually
at the compounded rate of 6%. This Note shall be due and payable in full nine
years from the date set forth above, subject to (i) mandatory payments equal to
25% of the then outstanding principal on the sixth, seventh, eighth and ninth
anniversary of the date of issuance, (ii) payment in full of any remaining
principal and/or interest then due and owing as of the ninth anniversary of the
date of issuance and (iii) prepayment from the proceeds from the sale by Maker
of any shares of the common stock of the Company, par value $.01 per share
("Common Stock"), or any options to purchase shares of Common Stock, as
provided below. The Maker shall have the right and privilege of prepaying this
Note at any time or times, in whole or in part, without notice or penalty, in
principal amounts of no less than $5,000. All past due installments of
principal shall bear penalty interest at the highest rate permitted by
applicable law, or if no such maximum rate is established by applicable law,
then at the rate of eighteen percent (18%) per annum. The Maker, as well as any
persons or entities to become liable for the payment of this Note, hereby
expressly waive demand or presentment for payment of this Note, notice of
nonpayment, protest, suit, acceleration, intention to accelerate, diligence
and/or any notice of, or defense on account of, the extension of time of
payment or change in the method of payments, and/or any modification of the
terms hereof or any instrument securing or guaranteeing the payment hereof, and
consent to any and all renewals and extensions in the time of payment hereof,
and/or any modification of the terms hereof or any instrument securing or
guaranteeing the payment hereof, and to any substitutions, exchange or release
of any security herefor or the release of any party primarily or secondarily
liable herefor, and further agree that the acceptance of late payment hereunder
by the Company, waiver or other forgiveness of any other defaults by Maker,
shall not constitute a waiver by the Company of any subsequent defaults, late
payments or other violations of the Maker's obligations hereunder and/or in the
20
terms of any instrument securing or guaranteeing the payment hereof. If this
Note is not paid when due (whether the same becomes due by acceleration or
otherwise) and is placed in the hands of an attorney for collection, or if suit
is filed hereon, or if this Note shall be collected by legal proceedings or
through a probate or bankruptcy court, the Maker agrees to pay all costs of
collection, including reasonable attorneys' fees.
This Note shall be construed in accordance with the laws of the State
of New York and the laws of the United States applicable to transactions in New
York.
The payment of this Note is non-recourse to the Maker other than with
respect to the 127,500 shares of Common Stock sold to the Maker (the "Shares")
and is secured by the pledge of the Shares pursuant to the Stock Pledge
Agreement executed as of the date hereof, together with all proceeds, monies,
income and benefits attributable or accruing to such Shares which Maker is or
may hereafter become entitled to receive on account of such Shares, including,
but not by way of limitation, all dividends and other distributions on or with
respect thereto whether payable in cash, stock or other property and all
subscription and other rights (collectively, the "Collateral"). Maker hereby
pledges, assigns, transfers, delivers and grants to the Company a security
interest in the Collateral to secure performance and payment of all obligations
and indebtedness of Maker hereunder, and delivers the certificate representing
the Collateral to the Company, together with a stock power endorsed in blank,
to secure such pledge. A portion of the Collateral may be released from this
pledge upon partial payment of the Note without altering, varying or
diminishing in any way the force, effect, lien, security interest or charge of
this pledge as to the Collateral not expressly released, and this pledge shall
continue as a first and prior lien and charge on all of the Collateral not
expressly released until this Note has been paid in full. Partial release of
the Collateral upon prepayment of a portion of the principal amount of the Note
may be made in the sole discretion of the Company in the amounts deemed
appropriate by it.
So long as this Note is outstanding, then upon the sale by Maker of
any shares of Common Stock (including, but not limited to, any of the Shares
held as part of the Collateral), or the sale by Maker of any options to acquire
shares of Common Stock, the repayment of an amount due under this Note, equal
to the proceeds of such shares remaining after the payment by Maker of any and
all applicable taxes and reasonable fees and charges shall be accelerated and
shall become immediately due and payable, and Maker shall deliver to the
Company all of the proceeds of such sales remaining after the payment of any
and all applicable taxes and reasonable fees and charges until this Note is
repaid in full, including the amount of any interest that may become due
hereunder. Furthermore, in the event that the Maker breaches or fails to comply
with any of the terms or conditions of Sections 7 or 8 of the employment
agreement between the Company and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Employment Agreement"),
then this Note shall accelerate and all amounts owed hereunder shall become
immediately due and payable.
All notices hereunder shall be in writing and shall be deemed to have
been delivered on the date personally delivered or on the date mailed, first
class, registered or certified mail, postage prepaid, if addressed to the
respective parties hereto at their addresses as shown in the corporate records
of the Company.
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21
IN WITNESS WHEREOF, the Maker has executed this Note as of the date
first above written.
MAKER: ▇▇▇▇▇ ▇▇▇▇▇▇ Name:
------------------------------
The Company as secured party:
MAXXIM MEDICAL, INC.
By:
--------------------------
3
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EXHIBIT A-2
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") is made as of _________
___, 2000, by and between ▇▇▇▇▇ ▇▇▇▇▇▇ ("Pledgor") and Maxxim Medical, Inc., a
Texas corporation (the "Company"). Any capitalized terms used herein but not
defined shall have the meanings assigned to them in the Employment Agreement.
The Company and Pledgor are parties to an Employment Agreement (the
"Employment Agreement"), dated as of the date hereof, pursuant to which the
Company sold to Pledgor 127,500 shares of the Company's Common Stock (the
"Pledged Interest"), all of which are pledged pursuant to this Agreement, and
the Company has permitted the Pledgor to pay the purchase price therefor, in
part, by delivery to the Company of a promissory note in the aggregate
principal amount of $318,750 (the "Note"). This Agreement provides the terms
and conditions upon which the Note is secured by a pledge to the Company of the
Collateral (as defined below).
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Company to accept the Note as
payment for the Pledged Interest, Pledgor and the Company hereby agree as
follows:
1. Pledge. Pledgor hereby pledges to the Company, and grants to
the Company a security interest in, the Pledged Interest and any related rights
to payment, profits, distributions thereon, as the case may be, and all
proceeds thereof, including any securities and moneys received (collectively
the "Collateral"), whether now existing or acquired, as security for the prompt
and complete payment when due of the unpaid principal of and interest on the
Note and full payment and performance of the obligations and liabilities of
Pledgor hereunder (including costs and attorneys fees associated with
enforcement hereunder).
2. Delivery of Pledged Interest. Pledgor agrees to deliver to
the Company any certificates or instruments representing the Pledged Interest
or other Collateral, duly endorsed in blank or accompanied by undated stock
powers duly executed in blank by such Pledgor or such other instruments of
transfer as are acceptable to the Company.
3. Voting Rights; Cash Distribution. Notwithstanding anything to
the contrary contained herein, during the term of this Agreement until such
time as there exists a default in the payment of principal or interest on the
Note or any other default under the Note or hereunder, Pledgor shall be
entitled to all voting rights with respect to the Pledged Interest and shall be
entitled to receive all cash distributions paid in respect of the Pledged
Interest. Upon the occurrence of and during the continuance of any such
default, at the option of the Company and upon notice by the Company to the
Pledgor, Pledgor shall not be able to vote the Pledged Interest, such voting
rights with respect thereto shall be exercisable by the Company and the Company
shall retain all such cash distributions payable on the Pledged Interest as
additional security hereunder. In furtherance of the Company's rights under
this Section, the Pledgor shall execute and deliver to the Company, or cause to
be executed and delivered to the Company, all such proxies, powers of attorney,
and other instruments as the Company may reasonably request
23
for the purpose of enabling the Company to exercise the voting rights which it
is entitled to exercise or refrain from exercising pursuant to this Section 3.
4. Other Distributions, etc. If, while this Agreement is in
effect, Pledgor becomes entitled to receive or receives any securities or other
property in addition to, in substitution of, or in exchange for any of the
Pledged Interest (whether as a distribution in connection with any
recapitalization, reorganization or reclassification), Pledgor shall accept
such securities or other property on behalf of and for the benefit of the
Company as additional security for Pledgor's obligations under the Note and
shall promptly deliver such additional security to the Company together with
duly executed forms of assignment, and such additional security shall be deemed
to be part of the Pledged Interest hereunder.
5. Default. If Pledgor (a) defaults in the payment of the
principal under the Note when it becomes due (whether upon demand, acceleration
or otherwise) or any other event of default under the Note or this Agreement
occurs (including, without limitation, the bankruptcy or insolvency of Pledgor)
or (b) defaults in the payment of interest or any other amount related to the
Note, the Company may (following five (5) days notice to Executive, during
which the default is not cured) exercise any and all the rights, powers and
remedies of any owner of the Pledged Interest (including the right to vote the
Pledged Interest and receive any distributions with respect to such Pledged
Interest) and shall have and may exercise without demand any and all the rights
and remedies granted to a secured party upon default under the Uniform
Commercial Code of New York or otherwise available to the Company under
applicable law. Without limiting the foregoing, after the occurrence of and
during the continuance of a default, the Company is authorized to sell, assign
and deliver at its discretion, from time to time, all or any part of the
Collateral at any private sale or public auction, on not less than ten days
written notice to Pledgor, at such price or prices and upon such terms as the
Company may deem advisable. Pledgor shall have no right to redeem the
Collateral after any such sale or assignment. At any such sale or auction, the
Company may bid for, and become the purchaser of, the whole or any part of the
Pledged Interest offered for sale. In case of any such sale, after deducting
the costs, attorneys' fees and other expenses of sale and delivery, the
remaining proceeds of such sale shall be applied to the principal of and
accrued interest on the Note and other amounts related thereto (including
costs, attorneys' fees associated with enforcement hereof); provided that after
payment in full of the indebtedness evidenced by the Note, the balance of the
proceeds of sale then remaining shall be paid to Pledgor and Pledgor shall be
entitled to the return of any of the Pledged Interest remaining in the hands of
the Company. Pledgor shall be liable for any deficiency (to the extent liable
therefor under the Note) if the remaining proceeds are insufficient to pay the
indebtedness under the Note in full, including the fees of any attorneys
employed by the Company to collect such deficiency.
6. Payment of Indebtedness and Release of Pledged Interest. Upon
payment in full of the indebtedness evidenced by the Note and any amounts owed
hereunder, the Company shall take all necessary action required to release any
security interests the Company has with respect to the Collateral.
7. No Other Liens; No Sales or Transfers. Pledgor hereby
represents and warrants that Pledgor has good and valid title to all of the
Collateral, free and clear of all liens, security interests and other
encumbrances and Pledgor hereby covenants that, until such time as all of the
outstanding principal of and interest on the Note and amounts due and owing
hereunder have been repaid, Pledgor shall not (i) create, incur, assume or
suffer to exist any pledge, security
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interest, encumbrance, lien or charge of Fany kind against the Collateral or
Pledgor's rights or a holder thereof, or (ii) sell or otherwise transfer any of
the Collateral or any interest therein.
8. Further Assurances. Pledgor agrees that at any time and from
time to time upon the written request of the Company, Pledgor shall execute and
deliver such further documents (including UCC financing statements) and do such
further acts and things as the Company may reasonably request to effect the
purposes of this Agreement.
9. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10. No Waiver; Cumulative Remedies. The Company shall not by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
the Company, and then only to the extent therein set forth. A waiver by the
Company of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Company would otherwise
have on any future occasion. No failure to exercise nor any delay in exercising
on the part of the Company, any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and may be exercised singly or concurrently, and are not exclusive
of any rights or remedies provided by law.
11. Waivers, Amendments; Applicable Law. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended except
by an instrument in writing, duly executed by the parties hereto. This
Agreement and all obligations of the Pledgor hereunder shall together with the
rights and remedies of the Company hereunder, inure to the benefit of the
Company and its successors and assigns. This Agreement shall be governed by,
and be construed and interpreted in accordance with, the laws of the State of
New York, without giving effect to any applicable principles of conflicts of
laws.
IN WITNESS WHEREOF, this Stock Pledge Agreement has been executed as
of the date first above written.
EXECUTIVE:
-----------------------------------
MAXXIM MEDICAL, INC.
By:
--------------------------------
Its:
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