EXHIBIT 10.9(o)
EMPLOYMENT AGREEMENT
This Agreement ("the Agreement") dated as of the 1st day of August, 2003
(the "Effective Date"), is by and between CryoLife, Inc., a Florida corporation
("CryoLife") and Xxxxxx X. Xxxxx, X.X., Ph.D. (the "Employee").
WITNESSETH:
WHEREAS, the Board of Directors of CryoLife (the "Board"), has determined
that it is in the best interests of CryoLife and its shareholders to enter into
this Employment Agreement in order to assure the Employee of CryoLife's
commitment and, in so doing, to motivate the Employee to continue in Employee's
dedicated service to CryoLife,
WHEREAS, in order to accomplish these objectives, the Board has caused
CryoLife to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, the promises hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledges, it is hereby agreed as follows:
1. Employment.
(a) CryoLife hereby employs Employee in the capacity of Vice
President, Regulatory Affairs and Quality Assurance and Employee hereby accepts
such duties as are customarily performed and exercised by such officer subject
to the supervision of the President of CryoLife. The duties of Employee shall
include those duties more specifically described on Exhibit A attached hereto
together with such additional duties as are assigned by the President of
CryoLife.
(b) CryoLife agrees to continue the Employee in its employ, and the
Employee hereby agrees to remain in the employ of CryoLife subject to the terms
and conditions of this Agreement, for the period commencing on the Effective
Date and ending on the second anniversary of such date (the "Employment
Period"). Unless either party elects not to extend the term of this Agreement by
so notifying the other in writing at least 30 days prior to the first
anniversary of the Effective Date, the Employment Period shall automatically
extend for an additional one year.
2. Employment Duties.
(a) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Employee is entitled, the Employee agrees
to devote reasonable attention and time to the business and affairs of CryoLife
and, to the extent necessary to discharge the responsibilities assigned to the
Employee hereunder, to use the Employee's reasonable best efforts to perform
faithfully and efficiently such responsibilities.
(b) During the Employment Period, the Employee will not, without the
prior written consent of CryoLife, directly or indirectly other than in the
performance of the duties hereunder, render services of a business, professional
or commercial nature to any other person or firm, whether for compensation or
otherwise, except with respect to any noncompetitive family businesses of the
Employee for which the rendering of such services will not have an adverse
effect upon Employee's performance of his duties and obligations hereunder.
3. Compensation, Benefits and Business Expenses.
(a) For all services which Employee renders to CryoLife or any of its
subsidiaries or affiliates during the term hereof, CryoLife agrees to pay the
Employee the salary and bonus compensation as set by the Compensation Advisory
Committee of the Board of Directors. Employee's salary at the Effective Date is
set forth on Exhibit A.
(b) CryoLife shall pay all reasonable expenses incurred by the
Employee directly related to performance of his responsibilities and duties for
CryoLife hereunder. Employee shall submit to CryoLife statements that justify in
reasonable detail all reasonable expenses so incurred. Subject to such audits as
CryoLife may deem necessary, CryoLife shall reimburse Employee the full amount
of any such expenses advanced by Employee.
(c) Employee shall be entitled to a vacation each year of his
employment with CryoLife, according to the standard vacation policy, as well as
insurance and other employment benefits, as more particularly described on
Exhibit A. Vacations not taken shall be cumulative and carried over to a
subsequent year.
4. Termination of Employment.
(a) Disability or Death. If CryoLife determines in good faith that the
Disability of the Employee has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Employee
written notice in accordance with Section 11(b) of this Agreement of its
intention to terminate the Employee's employment. In such event, the Employee's
employment with CryoLife shall terminate effective on the 30th day after receipt
of such notice by the Employee (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, the Employee shall not have returned to
full-time performance of the Employee's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Employee from the Employee's duties
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with CryoLife on a full-time basis for 180 consecutive business days as a result
of incapacity due to mental or physical illness which is determined to be total
and permanent by a physician selected by CryoLife or its insurers and acceptable
to the Employee or the Employee's legal representative. The Employee's
employment shall terminate automatically upon the Employee's death during the
Employment Period.
(b) Cause. CryoLife may terminate the Employee's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Employee to perform
substantially the Employee's duties with CryoLife (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to Employee by the Board or the
Chief Executive Officer of CryoLife which specifically identifies the manner in
which CryoLife believes that the Employee has not substantially performed the
Employee's duties, or
(ii) the willful engaging by the Employee in illegal conduct or
gross misconduct which is materially and demonstrably injurious to CryoLife.
For purposes of this provision, no act or failure to act, on the part of the
Employee, shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or omission was in the best interests of CryoLife. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or upon the instructions of the Chief Employee Officer or a senior
officer of CryoLife or based upon the advice of counsel for CryoLife shall be
conclusively presumed to be done, or omitted to be done, by the Employee in good
faith and in the best interests of CryoLife.
(c) Notice of Termination. Any termination by CryoLife for Cause,
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 11(b) of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's employment under
the provision so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than 30 days after the giving of
such notice). The failure by CryoLife to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Cause shall not waive
any right of CryoLife hereunder or preclude CryoLife from asserting such fact or
circumstance in enforcing CryoLife's rights hereunder.
(d) Date of Termination. "Date of Termination" means (i) if the
Employee's employment is terminated by CryoLife for Cause, the date of receipt
of the Notice of Termination, or any later date specified therein, as the case
may be, (ii) if the Employee's employment is terminated by CryoLife other than
for Cause or Disability, the Date of Termination shall be the date on which
CryoLife notifies the Employee of such termination and (iii) if the Employee's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Employee or the Disability
Effective Date, as the case may be.
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5. Obligations of CryoLife upon Termination.
(a) Other Than for Cause, Death or Disability. If, during the
Employment Period, CryoLife shall terminate the Employee's employment other than
for Cause, Death or Disability, then CryoLife shall pay to Employee as severance
compensation an amount equal to $240,000.00. Such payment shall be in addition
to sums due to Employee through the Date of Termination and shall be subject to
normal withholding requirements of CryoLife. Payment of the amount shall be made
in one lump sum payment or in six equal monthly installments as directed by the
Employee.
(b) Death. If the Employee's employment is terminated by reason of the
Employee's death during the Employment Period, this Agreement shall terminate
without further obligations to the Employee's legal representatives under this
Agreement, other than for payment of obligations accruing through the Date of
Termination.
(c) Disability. If the Employee's employment is terminated by reason
of the Employee's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Employee, other than for payment
obligations accruing through the Date of Termination.
(d) Cause. If the Employee's employment shall be terminated by
CryoLife for Cause during the Employment Period, this Agreement shall terminate
without further obligations to the Employee other than the obligation to pay to
the Employee his or her salary through the Date of Termination.
6. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Employee's continuing or future participation in any plan, program,
policy or practice provided by CryoLife or any of its affiliated companies and
for which the Employee may qualify, nor shall anything herein limit or otherwise
affect such rights as the Employee may have under any contract or agreement with
CryoLife or any of its affiliated companies. Amounts which are vested benefits
or which the Employee is otherwise entitled to receive under any plan, practice
or program of or any contract or agreement with CryoLife or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. Full Settlement. In no event shall the Employee be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Employee under any of the provisions of this Agreement
and such amounts shall not be reduced whether or not the Employee obtains other
employment. CryoLife agrees to pay as incurred, to the full extent permitted by
law, all legal fees and expenses which the Employee may reasonably incur as a
result of any contest (regardless of the outcome thereof) by CryoLife, the
Employee or others of the validity or enforceability of, or liability under, any
provision of this Agreement.
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8. Limitation or Expansion of Benefits.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any benefit, payment or distribution by the
Company to or for the benefit of the Employee (whether payable or distributable
pursuant to the terms of this Agreement or otherwise) (a "Payment") would, if
paid, be subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"; such excise tax, the "Excise
Tax"), then the Payment shall be reduced to the extent necessary of avoid the
imposition of the Excise Tax. The Employee may select the Payment to be limited
or reduced.
(b) All determinations required to be made under this Section 8,
including whether an Excise Tax would otherwise be imposed and the assumptions
to be utilized in arriving at such determination and the value of the maximum
amount payable without imposition of the Excise Tax, shall be made by the
certified public accounting firm regularly engaged by the Company (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Employee within 30 business days of the receipt of notice
from the Employee that a Payment is due to be made, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any determination by the Accounting Firm shall be
binding upon the Company and the Employee. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Payments hereunder will
have been unnecessarily limited by this Section 8 ("Underpayment"), consistent
with the calculations required to be made hereunder. The Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be paid by the Company to or for the benefit of the Employee.
(c) The provisions of this Section 8 shall not apply unless and until
amounts become payable to Employee pursuant to Section 5(a) hereof.
9. Confidential Information. The Employee and CryoLife are parties to
one or more separate agreements respecting confidential information, trade
secrets, inventions and non-competition (collectively, the "IP Agreements"). The
parties agree that the IP Agreements shall not be superceded or terminated by
this Agreement and shall survive any termination of this Agreement.
10. Successors.
(a) This Agreement is personal to the Employee and without the prior
written consent of CryoLife shall not be assignable by the Employee otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Employee's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
CryoLife and its successors and assigns.
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(c) CryoLife will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of CryoLife to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that CryoLife would be
required to perform it if no such succession had taken place. As used in this
Agreement, "CryoLife" shall mean CryoLife as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force and effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder 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 Employee:
Xxxxxx X. Xxxxx, X.X., Ph.D.
_____________________________
_____________________________
If to CryoLife:
CryoLife, Inc.
0000 Xxxxxxx Xxxxxxxxx, X.X,
Xxxxxxxx, Xxxxxxx 00000
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability or any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) CryoLife may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) From and after the Effective Date this Agreement shall supersede
any other agreement between the parties with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, the Employee has hereunder set the Employee's hand and,
pursuant to the authorization from its Board, CryoLife has caused these presents
to be executed in its name on its behalf, all as of the day and year first above
written.
Xxxxxx X. Xxxxx, X.X., Ph.D.
CRYOLIFE, INC.
By:
-------------------------------------------
Xxxxxx X. Xxxxxxxx
Chairman, President and CEO
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Exhibit A
Duties and Responsibilities of XXXXXX X. XXXXX, X.X., PH.D.:
All duties of Vice President, Regulatory Affairs and Quality Assurance
and duties not inconsistent with such duties that are assigned by the
President.
Compensation:
Salary of $240,000.00 and bonus set by the Compensation Advisory
Committee. Salary & Bonus subject to yearly review by the Compensation
Advisory Committee of the Board of Directors:
Vacation and Employee Benefits:
See attached Company vacation plan, standard Company medical plan and
contributory 401K plan.
Company Business:
The development, marketing, sale and distribution of tissue
preservation services and biomedical and medical products.
