Exhibit 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of 5/15/00
(the "Effective Date") by and between NxSTAGE Medical, Inc., a Delaware
corporation (the "Company" or "NXS"), and Xxx Xxxx, an individual ("Xx. Xxxx"),
residing at 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
W I T N E S S E T H
WHEREAS, the Company desires to employ Xx. Xxxx to provide certain
services to the Company subject to the terms set forth herein; and
WHEREAS, Xx. Xxxx desires to be employed by the Company in return for
certain compensation and benefits.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT BY THE COMPANY. Subject to the terms and conditions set
forth in this Agreement, the Company agrees to employ Xx. Xxxx to render
full-time services to the Company as its Marketing Vice President. Xx. Xxxx
shall perform the duties and have the responsibilities and authorities that are
customarily associated with his then current title, and such other duties of an
executive nature as may be assigned from time to time by the President of the
Company, consistent with the Bylaws of the Company. As Marketing Vice President,
Xx. Xxxx agrees to devote his best efforts and substantially all of his business
time and attention (except for vacation periods as set forth herein and
reasonable periods of illness or other incapacities permitted by the Company's
general employment policies or, in the absence of such policies, consistent with
the employment policies common to the industry at large) to the business of the
Company and to use the highest degree of professionalism in performing services
for the Company.
2. COMPENSATION.
2.1 Salary. During the term of this Agreement, as compensation for
the proper and satisfactory performance of all duties to be performed and
services to be provided under this Agreement, the Company agrees to pay Xx. Xxxx
a base salary ("Base Salary") in the amount of Two Hundred Thousand Dollars
($200,000) per year of employment, payable on a semi-monthly basis and in
accordance with the Company's standard payroll practices, less required
deductions for state and federal withholding taxes, Social Security and all
other employee taxes and payroll deductions (the "Semi-Monthly Base Payment").
Xx. Xxxx'x Base Salary shall be reviewed annually by the President and may be
increased or decreased in the sole discretion of the President; provided,
however, that if at any time during the Period of Employment Xx. Xxxx'x Base
Salary is reduced by more than 15% from the previous fiscal year, except for
across-the-board salary reductions similarly affecting all or substantially all
management employees and reductions related to the Optionee's job performance,
then Xx. Xxxx shall be entitled to terminate his employment with the Company and
such termination shall be considered a Company initiated termination without
cause in accordance with Section 7.3(a) hereof.
2.2 Equity.
(a) As of the Effective Date and subject to the terms of this
Agreement, the Company shall grant to Xx. Xxxx an Non-Qualified stock option,
exercisable at any time during the Period of Employment (as defined below) and
within ten (10) years after the grant of the option (the "Stock Option"), to
purchase an aggregate of one hundred thirty eight thousand five hundred and
thirty three (138,533) shares of the Company's Common Stock at a price of One
Dollar ($1.00) per share (the "Shares"). Such number of shares of Common Stock
constitutes two percent (2%) of the fully-diluted shares of capital stock of the
Company as of the Effective Date. The Company will offer Xx. Xxxx a loan to
exercise all of his granted incentive stock options in the form of a PROMISSORY
NOTE and PLEDGE AGREEMENT, Exhibit B and C.
(b) The terms of this Stock Option shall be governed by that
certain Non-Qualified Stock Option Agreement executed by Xx. Xxxx and the
Company as of the Effective Date (the "Option Agreement"), Exhibit D.
(c) In the event that Xx. Xxxx exercises the Stock Option,
then, upon the death or complete and permanent disability of Xx. Xxxx, or upon
the termination of Xx. Xxxx'x employment for any reason, the Company shall have
the right but not the obligation to repurchase from Xx. Xxxx all Shares subject
to such exercise that have not yet vested as of the date of such death,
disability or termination.
3. ADDITIONAL BENEFITS.
3.1 Standard Company Benefits. Xx. Xxxx shall be entitled to all
rights and benefits for which he would be eligible under the terms and
conditions of the Company's standard benefits package in effect from time to
time for its executive employees, including by way of illustration only,
long-term disability insurance, family health care insurance, vacation and sick
leave (the "Fringe Benefits"). For the purpose of calculating vacation benefits,
Xx. Xxxx will be recognized as having >10 years of industry experience as of the
Effective Date. The Company reserves the right to change such Fringe Benefits
from time to time in its sole discretion.
3.2 Accumulation of Fringe Benefits. Xx. Xxxx shall not earn or
accumulate unused vacation or sick leave, or other Fringe Benefits, in excess of
an unused amount equal to the amount of such benefit earned during a one (1)
year period. Furthermore, Xx. Xxxx shall not be entitled to receive payments in
lieu of such unused Fringe Benefits, other than for unused vacation earned and
accumulated at the time the employment relationship terminates. All unused sick
leave and other Fringe Benefits earned during the twelve (12) month period
ending on each anniversary of the Commencement Date shall be forfeited if not
used within ninety (90) days
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following such anniversary date. Notwithstanding the foregoing, in the event
that the Company adopts a more favorable accumulation policy for its executive
officers, Xx. Xxxx shall be entitled to the benefits of such more favorable
accumulation policy as of the adoption by the Company thereof.
3.3 Moving Expenses. If at any time the during the Period of
Employment the Company's offices move further than 35 miles from 000 Xxxxxxx
xxxxxx, Xxxxxxx, XX, the Company shall offer Xx. Xxxx a relocation package
similar to that offered other executives within the company, and if there are no
similar packages, shall offer a package consistent with relocation policies of
the industry at large.
4. OUTSIDE ACTIVITIES. Xx. Xxxx agrees that he will not, without first
obtaining the President's prior written approval, directly or indirectly engage
or prepare to engage in any activity in competition with the Company, provide
services to, or establish a business relationship with, a business or individual
engaged in or preparing to engage in competition with the Company, or accept a
seat on the board of directors or other managing committee or team for any other
business entity, except as otherwise provided herein. For purposes of this
paragraph, the holding of less than one percent (1%) of the outstanding voting
securities of any firm, business or organization in competition with the Company
shall not constitute activities or services precluded by this section.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION OBLIGATIONS. Xx. Xxxx hereby
agrees to execute and acknowledges his obligations pursuant to the Employee
Proprietary Information and Inventions Agreement attached hereto as Exhibit A
(the "Proprietary Information Agreement"), including but not limited to, the
obligation to refrain from using or disclosing the proprietary and confidential
information of the Company. Xx. Xxxx further acknowledges that these obligations
shall survive the termination of Xx. Xxxx'x employment with the Company.
6. NONSOLICITATION. While employed by the Company and for one (1) year
thereafter, Xx. Xxxx agrees that in order to protect the Company's confidential
and proprietary information from unauthorized use, Xx. Xxxx will not, either
directly or through others, solicit or attempt to solicit (i) any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity or (ii) the
business of any customer, vendor or distributor of the Company which, at the
time of termination or one (1) year immediately prior thereto, was listed on the
Company's customer, vendor or distributor list to the extent that the business
solicited relates to products or services which are directly competitive with
those of the Company.
7. TERM AND TERMINATION OF EMPLOYMENT.
7.1 Period of Employment. Xx. Xxxx'x period of employment by the
Company pursuant to this Agreement shall commence on May 15, 2000 (the
"Commencement Date") and shall end upon the date that the employment
relationship is terminated pursuant to this Section 7 (the "Termination Date").
The period of employment commencing on the
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Commencement Date and ending on the Termination Date shall be known as the
Period of Employment (the "Period of Employment").
7.2 Termination at Will. Although Xx. Xxxx and the Company
anticipate a long and mutually rewarding employment relationship, Xx. Xxxx and
the Company each acknowledge that either party has the right to terminate Xx.
Xxxx'x employment with the Company at any time for any reason whatsoever, with
or without cause subject, however, to the terms of this Agreement. This at-will
employment relationship cannot be changed except in writing signed by a duly
authorized officer of the Company and Xx. Xxxx.
7.3 Termination Without Cause or for Good Reason.
(a) The Company may terminate this employment relationship
immediately without cause upon written notice to Xx. Xxxx. Xx. Xxxx may
terminate his employment for Good Reason (as defined in the Option Agreement) 30
days after the Company has been given written notice specifying the inadequate
performance in reasonable detail demanding its cure, and provided that the
Company has not cured within, or, if it is not possible to cure such performance
within 30 days, if the Company has not taken appropriate steps to begin to cure
such inadequate performance within such 30 day period. In the event such a
termination occurs, and provided that Xx. Xxxx has executed a release of
liability in favor of NxSTAGE Medical in a form reasonably acceptable to NxSTAGE
Medical, Xx. Xxxx shall receive a lump sum payment equivalent to his then
accumulated but unused vacation time through the date of termination and, as
severance, continued payment of his Semi-Monthly Base Payment and Consolidated
Omnibus Budget Reconciliation Act (COBRA) payments for a period of time not to
exceed six (6) months after the Termination Date, or until Xx. Xxxx has secured
full-time employment or consulting assignment(s), which ever first occurs (the
"Severance Period"). No other employee benefits will not be continued during
this Severance Period.
i. In the event that, during the Severance Period, Xx.
Xxxx secures full-time employment in which he is paid less per semi-monthly
period than the amount of the Semi-Monthly Base Payment to be received as
severance hereunder, then Xx. Xxxx shall be entitled to be paid reduced
severance payments by the Company equal to the difference between the amount of
the Semi-Monthly Base Payment and the semi-monthly compensation to be paid to
Xx. Xxxx pursuant to such full-time employment or consulting assignment(s).
ii. During this Severance Period and provided Xx. Xxxx
does not secure full time employment, Xx. Xxxx'x options shall continue to vest
according to the vesting schedule outlined in the Option Agreement. In no event
shall Xx. Xxxx'x cumulative vested options at the end of this period be less
than 25% of those granted.
iii. IN THE EVENT THAT XX. XXXX ELECTS TO AND DOES
RECEIVE ANY OF THE BENEFITS PROVIDED UNDER THIS SUBSECTION 7.3, XX. XXXX AGREES
THAT SUCH PAYMENTS SHALL CONSTITUTE HIS SOLE AND EXCLUSIVE RIGHTS AND
ENTITLEMENTS IN CONNECTION WITH HIS EMPLOYMENT BY THE COMPANY, THE TERMINATION
OF SUCH EMPLOYMENT AND ANY AND ALL MATTERS RELATING TO OR ARISING IN CONNECTION
WITH
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SUCH EMPLOYMENT, AND AGREES THAT HIS ACCEPTANCE OF ANY SUCH PAYMENTS SHALL
RELEASE THE COMPANY AND ANY AND ALL AFFILIATED PERSONS AND ENTITIES (INCLUDING
ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) FROM ANY CLAIMS THAT XX. XXXX MAY
OTHERWISE HAVE OR ASSERT IN CONNECTION WITH SUCH MATTERS. IF XX. XXXX DESIRES TO
PURSUE OR ENFORCE ANY RIGHTS, ENTITLEMENTS OR REMEDIES THAT WOULD OTHERWISE BE
WAIVED OR RELEASED, THEN HE SHALL REFUSE ANY PAYMENTS PROVIDED FOR IN THIS
SUBSECTION 7.3. IF XX. XXXX ACCEPTS ANY SUCH SEVERANCE PAYMENT OR PAYMENTS, HE
SHALL BE DEEMED TO HAVE AGREED TO THE FOREGOING EXCLUSIVITY OF RIGHTS AND WAIVER
OF CLAIMS.
(b) The Company may immediately terminate this employment
relationship for Cause upon written notice to Xx. Xxxx. In the event Xx. Xxxx'x
employment is terminated at any time with Cause, all of Xx. Xxxx'x compensation
and benefits will cease immediately, and Xx. Xxxx shall not be entitled to any
compensation, severance, acceleration of vesting or other benefits as of the
date of such termination. For purposes of this Agreement, "for Cause" shall be
as that term is defined in the Option Agreement.
(c) Except as expressly provided herein, Xx. Xxxx will not be
entitled to any other compensation, severance, pay-in-lieu of notice or any
other such compensation upon the termination of his employment by the Company.
This severance provision does not affect the "at will" nature of Xx. Xxxx'x
employment.
7.4 Xx. Xxxx Initiated Termination. Xx. Xxxx may voluntarily
terminate his employment with the Company at any time by giving the Board thirty
(30) days written notice. In the event Xx. Xxxx voluntarily terminates his
employment with the Company for other then Good Reason, all of Xx. Xxxx'x
compensation and benefits will cease as of the termination date. Xx. Xxxx
acknowledges that he will not receive any severance pay or other benefits upon
such voluntary termination, other than a lump sum payment equivalent to his then
accumulated but unused vacation time together with any unpaid benefits through
the date of termination.
7.5 Exclusive Remedy. The parties agree that the payments and/or
benefits described in subsection 7.3 shall be Xx. Xxxx'x sole and exclusive
remedy in the event the Company terminates Xx. Xxxx'x employment, and Xx. Xxxx
shall be entitled to no further compensation for any damage or injury arising
out of the termination of his employment by NxSTAGE Medical; provided, however,
that nothing contained in this paragraph shall limit Xx. Xxxx'x right to be
indemnified by NxSTAGE Medical for his actions as its officer or employee.
7.6 Obligations Upon Termination.
(a) The obligations of the parties under Sections 5, 6, 7, and
9 shall survive the termination of this Agreement.
(b) Upon the end of the Period of Employment, Xx. Xxxx shall
promptly deliver to the Company all materials, property, documents, data and
other information
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belonging to the Company or containing the Company's trade secrets or other
Proprietary Information, as such term is defined in the Proprietary Information
Agreement attached hereto as Exhibit A. Xx. Xxxx shall not take any materials,
property, documents or other information, or any reproduction or excerpt
thereof, belonging to the Company or containing any of the Company's Proprietary
Information.
(c) Upon termination of the Period of Employment, Xx. Xxxx
shall be deemed to have resigned from any and all offices then held with the
Company.
8. NOTICES. All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered or delivered by
registered or certified mail (return receipt requested), or private overnight
mail (delivery confirmed by such service) to the address listed below, or to
such other address as either party shall designate by notice in writing to the
other in accordance with the terms hereof:
If to the Company:
NxSTAGE Medical, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
If to Xx. Xxxx:
Xxx Xxxx
000 Xxxxxxx
Xxxxxxx, XX 00000
9. ARBITRATION/ATTORNEYS' FEES. To ensure rapid and economical resolution
of any and all disputes directly or indirectly arising out of or in any way
connected or related to Xx. Xxxx'x employment with the Company or the
termination of that employment, with the sole exception of disputes which arise
under Xx. Xxxx'x Proprietary Information Agreement (collectively, the
"Arbitrable Claims"), the Company and Xx. Xxxx each agree that any and all such
disputes, whether of law or fact of any nature whatsoever, shall, if such
dispute cannot be resolved within thirty (30) days despite good faith
negotiation, be resolved by final and binding arbitration by Judicial
Arbitration and Mediation Services, Inc. ("JAMS") in Boston, Massachusetts. The
Arbitrable Claims include, but are not limited to: any and all such claims
related to salary, bonuses, commissions, stock, stock options, or any other
ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance benefits, or any other form of compensation; claims
pursuant to any federal, state or local law or cause of action including, but
not limited to, the federal Civil Rights Act of 1964, as amended; the federal
Age Discrimination in Employment Act of 1967, as amended; the federal Americans
with Disabilities Act of 1990; tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; emotional distress; and breach of the implied
covenant of good faith and fair dealing. Xx. Xxxx and the Company acknowledge
and agree that any and all rights he may otherwise have to
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resolve such Arbitrable Claims by jury trial, by a court, or in any forum other
than the JAMS, are hereby expressly waived. If any party to this Agreement
brings an action under this Agreement, the prevailing party will be entitled to
recover his or its attorneys' fees and costs, as well as any, other relief to
which that party may be entitled.
10. GENERAL.
10.1 Without in any way limiting the foregoing, this Agreement does
not supersede the terms of Xx. Xxxx'x Option Agreement.
10.2 Entire Agreement. This Agreement, and Exhibit A, B, C, and D is
the complete, final and exclusive embodiment of the entire agreement between Xx.
Xxxx and the Company with respect to the subject matter hereof. This Agreement
is entered into without reliance upon any promise, warranty or representation,
written or oral, other than those expressly contained herein, and it supersedes,
replaces and substitutes for all prior negotiations, representations, promises,
warranties, or agreements made between Xx. Xxxx and the Company, whether written
or oral, concerning the terms and conditions of Xx. Xxxx'x employment or the
termination of such employment.
10.3 Severability. If a court of competent jurisdiction determines
that any term or provision of this Agreement is invalid or unenforceable, then
the remaining terms and provisions shall be unimpaired. Such court shall have
the authority to modify or replace the invalid or unenforceable term or
provision with a valid and enforceable term or provision which most accurately
represents the parties' intention with respect to the invalid or unenforceable
term or provision.
10.4 Successors and Assigns. This Agreement shall bind the heirs,
personal representatives, successors, assigns, executors and administrators of
each party, and inure to the benefit of each party, its heirs, successors and
assigns. However, because of the unique and personal nature of Xx. Xxxx'x duties
under this Agreement, Xx. Xxxx agrees that he shall not be entitled to delegate
the performance of his duties or assign any of his rights or obligations under
this Agreement.
10.5 Applicable Law. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with the laws of
the Commonwealth of Massachusetts as applied to contracts made and to be
performed entirely within Massachusetts.
10.6 Jurisdiction and Venue. In the event that any legal proceedings
are commenced in any court with respect to any matter arising under this
Agreement, Xx. Xxxx and the Company specifically consent and agree that the
courts of the Commonwealth of Massachusetts and/or the United States Federal
Courts located in the Commonwealth of Massachusetts shall have exclusive
jurisdiction over each of the parties and such proceedings.
10.7 Headings. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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10.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
XXX XXXX, NxSTAGE MEDICAL, INC.
an individual a Delaware corporation
/s/ Xxxxxx X. Xxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxxx
----------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President & CEO
Date: 6/13/00 Date: 6/13/00
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