Employment Agreement - Kaminski

First Amendment

Corrected Second Amendment

Amendment 3 to Employment Agreement

Employment Agreement- Mills

 

 

<DOCUMENT>

<TYPE>EX-10.8

<SEQUENCE>26

<FILENAME>c84511exv10w8.txt

<DESCRIPTION>EMPLOYMENT AGREEMENT

<TEXT>

<PAGE>

                                                                    EXHIBIT 10.8

 

 

                          AT-WILL EMPLOYMENT AGREEMENT

 

It is understood and agreed that the employment by Stereotaxis, Inc., a Delaware

corporation (the "Company" or "Stereotaxis"), of the employee named below

("Employee") shall be subject to the terms and conditions of this At-Will

Agreement ("Agreement").

 

1.       Position; Base Salary; Incentive Compensation; Termination.

 

         1.1      Position: Employee shall serve as Chief Operating Officer, or

                  in such other capacity or capacities as Stereotaxis may from

                  time to time direct. Employee shall report to CEO or such

                  other person as he may from time to time direct. Employee's

                  supervisor shall schedule employee's hours of work and

                  Employee's position with the Company is exempt.

 

         1.2      Base and Incentive Salary: Employee shall be paid a base

                  salary equivalent to $240,000 in semi-monthly installments,

                  which shall be subject to applicable withholdings and

                  deductions (pro-rated based on Employee's start date).

                  Employee shall also have an incentive bonus opportunity of up

                  to 25% per calendar year subject to attainment of mutually

                  agreed upon goals (pro-rated based on Employee's start-date)

                  as provided for in the Employee's offer letter.

 

         1.3      Other Compensation: Employee shall be granted options to

                  purchase 500,000 shares of stock in accordance with the

                  Company's Incentive Stock Option Plan. Such options would be

                  subject to a 4-year vesting provisions in accordance with the

                  Employee's offer letter.

 

         1.4      Termination: For purposes of this Agreement, termination for

                  cause shall mean gross misconduct or gross negligence such as

                  gross breach of fiduciary duty, dishonesty, theft or

                  commission of a crime involving moral turpitude. Termination

                  for cause shall also include the Employee's failure to comply

                  with the provisions of his offer letter. Such provisions

                  include failure to commute to St. Louis so as to be present at

                  the Company's offices each week or failure to permanently

                  relocate to St. Louis within three months of the Employee's

                  acceptance of his offer letter unless otherwise agreed to in

                  writing.

 

                  1.4.a Termination without Cause: As provided for in the

                  Employee's offer letter, if Employee's employment is

                  terminated by Stereotaxis without cause, Employee will be paid

                  a salary continuance equal to his monthly base salary for six

                  (6) months in accordance with the Company's normal payroll

                  practices. However, if Employee is re-employed (by the Company

                  or another employer), all salary continuance pay will cease

                  immediately. If such involuntary termination occurs during the

                  first twelve (12) months of Employee's employment, those stock

                  options which would have vested at the end of Employee's first

                  year of employment will vest pro-rata at a rate of 1/12th for

                  each month of his actual employment.

 

<PAGE>

 

                  1.4.b Change of Control: As provided for in the Employee's

                  offer letter, if Employee's employment is terminated without

                  cause as a result of, or following, an acquisition or merger

                  of the Company where the Company is not the surviving entity

                  and a change of control occurs and Employee is not offered a

                  comparable position and salary in the surviving entity, (i)

                  Employee will be paid salary continuance equal to his monthly

                  base salary for six (6) months in accordance with the

                  Company's normal payroll practices and (ii) 100% of Employee's

                  unvested stock options will vest at the end of the salary

                  continuance period. However, if Employee is re-employed (by

                  the Company or another employer), all salary continuance pay

                  will cease immediately.

 

                  1.4.c Other Termination: Employee is not entitled to severance

                  pay if Employee's termination is voluntary or for cause.

 

2.                Vacation and Sick Leave Benefits.

 

Company-paid vacation and sick leave will be as per the Employee's offer letter.

 

3.                Company Benefits.

 

While Employed by the Company, Employee shall be entitled to receive the

benefits of employment as the Company may offer from time to time. Employee

agrees that as a condition of Employee's employment by the Company that Employee

will be bound and subject to the terms and conditions of the Company's Employee

Handbook. The Employee Handbook may be revised from time to time at the sole

discretion of the Company with or without prior notice.

 

4.                Attention to Duties; Conflict of Interest.

 

While employed by the Company, Employee shall devote Employee's full business

time, energy and abilities exclusively to the business and interests of

Stereotaxis, and shall perform all duties and services in a faithful and

diligent manner and to the best of Employee's abilities. Employee shall not,

without the Company's prior written consent, render to others, services of any

kind for compensation, or engage in any other business activity that would

materially interfere with the performance of Employee's duties under this

Agreement. Employee represents that Employee has no other outstanding

commitments inconsistent with any of the terms of this Agreement or the services

to be rendered to Stereotaxis. While employed by the Company, Employee shall

not, directly or indirectly, whether as a partner, employee, creditor,

shareholder, or otherwise, promote, participate or engage in any activity or

other business competitive with the Company's business. Employee shall not

invest in any company or business, which competes in any manner with the

Company, except those companies whose securities are listed on the national

securities exchanges.

 

<PAGE>

 

5.       Proprietary Information.

 

Employee agrees to be bound by the terms of the Confidentiality and Noncompete

Agreement and exhibits thereto, which are attached as Exhibit A and incorporated

by this reference ("Confidentiality and Noncompete Agreement"), and, by the

rules of confidentiality promulgated by Stereotaxis from time to time.

 

At-Will employer.

 

The Company is an "at-will" employer. This means that the Company may terminate

Employee's employment at any time, with or without cause, and that Employee may

terminate Employee's employment at any time, with our without cause. Stereotaxis

makes no promise that Employee's employment will continue for a set period of

time, nor is there any promise that it will be terminated only under particular

circumstances. No raise or bonus, if any, shall alter Employee's status as an

"at-will" employee or create any implied contract of employment. Discussion of

possible or potential benefits in future years is not an express or implied

promise of continued employment. No manager, supervisor or officer of

Stereotaxis has the authority to change Employee's status as an "at-will"

employee. The "at-will" nature of the employment relationship with Employee can

only be altered by a written agreement signed by each member of the Board of

Directors of Stereotaxis. No position within Stereotaxis is considered

permanent.

 

6.       Binding Arbitration.

 

Any dispute, claim or controversy with respect to Employee's termination of

employment with the Company (whether the termination of employment is voluntary

or involuntary), and any dispute, claim or controversy with respect to incidents

or events leading to such termination or the method or manner of such

termination, and any question of arbitrability hereunder, shall be settled

exclusively by arbitration.

 

Employee and Stereotaxis each waive their constitutional rights to have such

matters determined by a jury. Instead of a jury trial, Stereotaxis and Employee

shall choose an arbitrator. Arbitration is preferred because, among other

reasons, it is quicker, less expensive and less formal than litigation in court.

The provisions governing arbitration shall be described in detail in

Stereotaxis' Employee Handbook.

 

The arbitrator shall not have the authority to alter, amend, modify, add to or

eliminate any condition or provision of this Agreement, including, but not

limited to, the "at-will" nature of the employment relationship. The arbitration

shall be held in St. Louis, Missouri. The award of the arbitrator shall be final

and binding on the parties. Judgment upon the arbitrator's award may be entered

in any court, state or federal, having jurisdiction over the parties. If a

written request for arbitration is not made within one (1) year of the date of

the alleged wrong or violation, all remedies regarding such alleged wrong or

violation shall be waived.

 

<PAGE>

 

Should any court determine that any provision(s) of this Agreement to arbitrate

is void or invalid, the parties specifically intend every other provision of

this Agreement to arbitrate to remain enforceable and intact. The parties

explicitly and definitely prefer arbitration to recourse to the courts, for the

reasons described above, and have prescribed arbitration as their sole and

exclusive method of dispute resolution.

 

7.       No Inconsistent Obligations.

 

Employee represents that Employee is not aware of any obligations, legal or

otherwise, inconsistent with the terms of this Agreement or Employee's

undertakings under this Agreement.

 

8.       Miscellaneous.

 

Stereotaxis may assign this Agreement and Employee's employment to an affiliated

entity to which the operations it currently manages are transferred.

 

No promises or changes in Employee's status as an employee of the Company or any

of the terms and conditions of this Agreement can be made unless they are made

in writing and approved by the Board of Directors of Stereotaxis. This Agreement

and the terms and conditions described in it cannot be changed orally or by any

conduct of either Employee or Stereotaxis or any course of dealings between

Employee, or another person and Stereotaxis.

 

Unless otherwise agreed upon in writing by the parties, Employee, after

termination of any employment, shall not seek nor accept employment with the

Company in the future and the Company is entitled to reject without cause any

application for employment with the Company made by Employee, and not hire

Employee. Employee agrees that Employee shall have no cause of action against

the Company arising out of any such rejection.

 

This agreement and performance under it, and any suits or special proceedings

brought under it, shall be construed in accordance with the laws of the United

States of America and the State of Missouri and any arbitration, mediation or

other proceeding arising hereunder shall be filed and adjudicated in St. Louis,

Missouri.

 

If any term or condition, or any part of a term or condition, of this Agreement

shall prove to be invalid, void or illegal, it shall in no way affect, impair or

invalidate any of the other terms or conditions of this Agreement, which shall

remain in full force and effect.

 

The failure of either party to enforce any provision of this Agreement shall not

be construed as a waiver of or acquiescence in or to such provision.

 

The Parties to this Agreement represent and acknowledge that in executing this

Agreement they do not rely and have not relied upon any representation or

statement made by the other party or the other party's agents, attorneys or

representatives

 

<PAGE>

 

regarding the subject matter, basis, or effect of this Agreement or otherwise,

other than those specifically stated in this written Agreement. This Agreement

shall be interpreted in accordance with the plain meaning of its terms and not

strictly for or against any party. This Agreement shall be construed as if each

party was its author and each party hereby adopts the language of this Agreement

as if it were his, her or its own. The captions to this Agreement and its

sections, subsections, tables and exhibits are inserted only for convenience and

shall not be construed as part of this Agreement or as a limitation on or

broadening of the scope of this Agreement or any section, subsection, table or

exhibit.

 

Employee and Stereotaxis have executed this Agreement and agree to enter into

and be bound by the provisions hereof as of April 17, 2002.

 

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY

THE PARTIES.

 

STEREOTAXIS, INC.

 

By: /s/ Bevil J. Hogg

    --------------------------------------------

 

Name:  Bevil J. Hogg

 

Title: President and CEO

 

EMPLOYEE

 

Signature: /s/ Michael P. Kaminski

           -------------------------------------

           Michael P. Kaminski

 

<PAGE>

 

                    CONFIDENTIALITY AND NONCOMPETE AGREEMENT

 

This Confidentiality and Non-compete Agreement ("Agreement") is made and entered

into this 17th day of April 2002, by and between Stereotaxis, Inc., a Delaware

corporation ("Company"), and Michael P. Kaminski, ("Employee").

 

WHEREAS, Company is engaged in, among other things, the business of researching,

marketing and selling medical devices. The Company is headquartered and its

principal place of business is located in St. Louis, Missouri and this agreement

is being signed in St. Louis, Missouri;

 

WHEREAS, Company has expended a great deal of time, money and effort to develop

and maintain its proprietary Confidential and Trade Secret Information (as

defined herein) which provides it with a significant competitive advantage;

 

WHEREAS, the success of Company depends to a substantial extent upon the

protection of its Confidential and Trade Secret Information and customer

goodwill by all of its employees;

 

WHEREAS, Employee desires to be employed, or to continue to be employed, by

Company to provide managerial, administrative, technical and/or sales services

for Company; to be eligible for opportunities for advancement within Company

and/or compensation increases which otherwise would not be available to

Employee; and to be given access to Confidential and Trade Secret Information of

Company which is necessary for Employee to perform his or her job, but which

Company would not make available to Employee but for Employee's signing and

agreeing to abide by the terms of this Agreement as a condition of Employee's

employment and continued employment with Company. Employee recognizes and

acknowledges that Employee's position with Company has provided and/or will

continue to provide Employee with access to Company's Confidential and Trade

Secret information;

 

WHEREAS, Company compensates its employees to, among other things, develop and

preserve goodwill with its customers on Company's behalf and business

information for Company's ownership and use;

 

WHEREAS, If Employee were to leave Company, Company, in all fairness, would need

certain protections in order to prevent competitors of Company from gaining an

unfair competitive advantage over Company and/or diverting goodwill from

Company, and to prevent misuse or misappropriation by Employee of the

Confidential and Trade Secret Information;

 

WHEREAS, Company desires to obtain the benefit of the services of Employee and

Employee is willing to render such services on the terms and conditions

hereinafter set forth;

 

<PAGE>

 

NOW, THEREFORE, in consideration of the compensation and other benefits of

Employee's employment by Company and the recitals, mutual covenants and

agreements hereinafter set forth, Employee and Company agrees as follows:

 

1.       Employment Services.

 

         1.1      Employee agrees that throughout Employee's employment with

                  Company, Employee will (i) faithfully render such services as

                  may be delegated to Employee by Company, (ii) devote

                  Employee's entire business time, good faith, best efforts,

                  ability, skill and attention to Company's business, and (iii)

                  follow and act in accordance with all of Company's rules,

                  policies and procedures of Company, including, but not limited

                  to, working hours, sales and promotion policies and specific

                  Company rules.

 

         1.2      "Company" means Stereotaxis, Inc. or one of its subsidiaries;

                  whichever is Employee's employer. The "Subsidiary" means any

                  corporation, joint venture or other business organization in

                  which Stereotaxis, Inc. now or hereafter, directly or

                  indirectly, owns or controls more than fifty percent (50%)

                  interest.

 

2.       Confidential and Trade Secret Information.

 

         2.1      Employee agrees to keep secret and confidential, and not to

                  use or disclose to any third parties, except as directly

                  required for Employee to perform Employee's employment

                  responsibilities for Company, any of Company's proprietary

                  Confidential and Trade Secret Information.

 

         2.2      "Confidential and Trade Secret Information" includes any

                  information pertaining to Company's business which is not

                  generally known in the medical devices industry, such as, but

                  not limited to, trade secrets, know-how, processes, designs,

                  products, documentation, quality control and assurance

                  inspection and test data, production schedules, research and

                  development plans and activities, equipment modifications,

                  product formulae and production and recycling records,

                  standard operating procedure and validation records, drawings,

                  apparatus, tools, techniques, software and computer programs

                  and derivative works, inventions (whether patentable or not),

                  improvements, copyrightable material, business and marketing

                  plans, projections, sales data and reports, confidential

                  evaluations, the confidential use, nonuse and compilation by

                  the Company of technical or business information in the public

                  domain, margins, customers, customer requirements, costs,

                  profitability, sales and marketing strategies, pricing

                  policies, operational methods, strategic plans, training

                  materials, internal financial information, operating and

                  financial data and projections, distribution or sales methods,

                  prices charged by or to Company, inventory lists, sources of

                  supplies, supply lists, lists of current or past employees,

                  mailing lists and information

 

<PAGE>

 

                  concerning relationships between Company and its employees or

                  customers.

 

         2.3      During Employee's employment, Employee will not copy,

                  reproduce or otherwise duplicate, record, abstract, summarize

                  or otherwise use, any papers, records, reports, studies,

                  computer printouts, equipment, tools or other property owned

                  by the Company, except as expressly permitted or required for

                  the proper performance of his or her duties on behalf of the

                  Company.

 

3.       Post-Termination Restrictions.

 

Employee recognizes that (i) Company has spent substantial money, time and

effort over the years in and in developing its Confidential and Trade Secret

Information; (ii) Company pays its employees to, among other things, develop and

preserve business information, customer goodwill, customer loyalty and customer

contacts for and on behalf of Company; and (iii) Company is hereby agreeing to

employ and pay Employee based upon Employee's assurances and promises contained

herein not to put himself or herself in a position following Employee's

employment with Company in which the confidentiality of Company's information

might somehow be compromised. Accordingly, Employee agrees that during

Employee's employment with Company, and for a period of two years thereafter,

regardless of how Employee's termination occurs and regardless of whether it is

with or without cause, Employee will not, directly or indirectly (whether as

owner, partner, consultant, employee or otherwise):

 

         3.1      engage in, assist or have an interest in, enter the employment

                  of, or act as an agent, advisor or consultant for, any person

                  or entity which is engaged, or will be engaged, in the

                  development, manufacture, supplying or sale of a product,

                  process, apparatus, service or development which is

                  competitive with a product, process, apparatus, service or

                  development on which Employee worked or with respect to which

                  Employee has or had access to Confidential or Trade Secret

                  Information while at Company ("Competitive Work"), and which

                  Employee seeks to serve in any market which was being served

                  by Employee at the time of Employee's termination or was

                  served at any time during Employee's last six (6) months of

                  employment by Company;

 

         3.2      solicit, call on or in any manner cause or attempt to cause,

                  or provide any Competitive Work to any customer or active

                  prospective customer of the Company with whom Employee dealt,

                  or on whose account he or she worked for which Employee was

                  responsible, or with respect to which Employee was provided or

                  had access to Confidential and Trade Secret Information to

                  divert, terminate, limit, modify or fail to enter into any

                  existing or potential relationship with Company; and

 

<PAGE>

 

         3.3      induce or attempt to induce any Employee, consultant or

                  advisor of Company to accept employment or an affiliation

                  involving Competitive Work.

 

4.       Acknowledgment Regarding Restrictions.

 

Employee recognizes and agrees that the restraints contained in Section 3 are

reasonable and enforceable in view of Company's legitimate interests in

protecting its Confidential and Trade Secret Information and customer goodwill.

Employee understands that the post-employment restrictions contained herein will

preclude, for a time, Employee's employment with such major competitors of

Company in magnetic instrument guidance. Employee understands that the

restrictions of Section 3 are not limited geographically in view of Company's

nationwide operations and the Confidential and Trade Secret Information and

customers to which Employee had access.

 

5.       Inventions.

 

         5.1      Any and all ideas, inventions, discoveries, patents, patent

                  applications, continuation-in-part patent applications,

                  divisional patent applications, technology, copyrights,

                  derivative works, trademarks, service marks, improvements,

                  trade secrets and the like, which are developed, conceived,

                  created, discovered, learned, produced and/or otherwise

                  generated by Employee, whether individually or otherwise,

                  during the time that Employee is employed by Company, whether

                  or not during working hours, that relate to (i) current and

                  anticipated businesses and/or activities of Company, (ii)

                  Company's current and anticipated research or development, or

                  (iii) any work performed by Employee for Company, shall be the

                  sole and exclusive property of Company, and Company shall own

                  any and all right, title and interest to such. Employee

                  assigns and agrees to assign to Company any and all right,

                  title and interest in and to any such ideas, inventions,

                  discoveries, patents, patent applications,

                  continuation-in-part patent applications, divisional patent

                  applications, technology, copyrights, derivative works,

                  trademarks, service marks, improvements, trade secrets and the

                  like, whenever requested to do so by Company, at Company's

                  expense, and Employee agrees to execute any and all

                  applications, assignments or other instruments which Company

                  deems desirable or necessary to protect such interests.

 

         5.2      Paragraph 5(*.1) shall not apply to any invention for which no

                  equipment, supplies, facilities or Confidential and Trade

                  Secret Information of Company was used and which was developed

                  entirely on Employee's own time, unless (i) the invention

                  relates to Company's business or to Company's actual or

                  demonstrably-anticipated research or development, or (ii) the

                  invention results from any work performed by Employee for

                  Company.

 

<PAGE>

 

6.       Company Property.

 

Employee acknowledges that any and all notes, records, sketches, computer

diskettes, training materials and other documents relating to the Company

obtained by or provided to Employee, or otherwise made, produced or compiled

during the course of Employee's employment with Company regardless of the type

of medium in which they are preserved, are the sole and exclusive property of

Company and shall be surrendered to Company upon Employee's termination of

employment and on demand at any time by Company.

 

7.       Non-Waiver of Rights.

 

Company's failure to enforce at any time any of the provisions of this Agreement

or to require at any time performance by Employee of any of the provisions

hereof shall in no way be construed to be a waiver of such provisions or to

affect either the validity of this Agreement, or any part hereof, or the right

of Company thereafter to enforce each and every provision in accordance with the

terms of this Agreement.

 

8.       Company's Right to Injunctive Relief.

 

In the event of a breach or threatened breach of any of Employee's duties and

obligations under the terms and provisions of Sections 2, 3 and 5 hereof,

Company shall be entitled, in addition to any other legal or equitable remedies

it may have in connection therewith (including any right to damages that may

suffer), to temporary, preliminary and permanent injunctive relief restraining

such breach or threatened breach. Employee hereby expressly acknowledges that

the harm which might result to Company's business as a result of any

noncompliance by Employee with any of the provisions of Sections 2, 3 or 5 would

be largely irreparable. Employee specifically agrees that if there is a question

as to the enforceability of any of the provisions of Sections 2, 3 or 5 hereof,

Employee will not engage in any conduct inconsistent with or contrary to such

Sections until after the question has been resolved by a final judgment of a

court of competent jurisdiction.

 

9.       Invalidity of Provisions.

 

If any provision of this Agreement is adjudicated to be invalid or unenforceable

under applicable law in any jurisdiction, the validity or enforceability of the

remaining provisions thereof shall be unaffected as to such jurisdiction and

such adjudication shall not affect the validity or enforceability of such

provisions in any other jurisdiction. To the extent that any provision of this

Agreement is adjudicated to be invalid or unenforceable because it is overbroad,

that provision shall not be void, but rather shall be limited only to the extent

required by applicable law and enforced as to limited. The parties expressly

acknowledge and agree that this Section is reasonable in view of the parties'

respective interests.

 

<PAGE>

 

10.      Employee Representations.

 

Employee represents that the execution and delivery of the Agreement and

Employee's employment with Company do not violate any previous employment

agreement or other contractual obligation of Employee.

 

11.      Company's Right to Recover Costs and Fees.

 

Employee agrees that if Employee breaches or threatens to breach this Agreement,

Employee shall be liable for any attorneys' fees and costs incurred by the

Company in enforcing its rights under this Agreement in the event that a court

determines that Employee has breached this Agreement or if the Company obtains

injunctive relief against the Employee and is successful on the merits of its

claim against employee.

 

12.      Employment at Will.

 

Employee acknowledges that employee is, and at all times will be, an

employee-at-will of Company and nothing contained herein shall be construed to

alter or affect such employee-at-will status.

 

13.      Exit Interview.

 

To ensure a clear understanding of this Agreement, Employee agrees, at the time

of termination of Employee's employment, to engage in an exit interview with

Company at a time and place designated by Company and at Company's expense.

Employee understands and agrees that during said exit interview, Employee may be

required to confirm that Employee will comply with Employee's obligations under

Sections 2, 3 and 5 of this Agreement. Company may elect, at its option, to

conduct the exit interview by telephone.

 

14.      Amendments.

 

No modification, amendment or waiver of any of the provisions of this Agreement

shall be effective unless in writing specifically referring hereto, and signed

by the parties hereto. This Agreement supersedes all prior agreements and

understandings between Employee and Company to the extent that any such

agreements or understandings conflict with the terms of this Agreement.

 

15.      Assignments.

 

This Agreement shall be freely assignable by Company to and shall inure to the

benefit of, and be binding upon, Company, its successors and assigns and/or any

other entity which shall succeed to the business presently being conducted by

Company. Being a contract for personal services, neither this Agreement nor any

rights hereunder shall be assigned by Employee.

 

<PAGE>

 

16.      Choice of Forum and Governing Law.

 

In light of Company's substantial contacts with the State of Missouri, the

parties' interests in ensuring that disputes regarding the interpretation,

validity and enforceability of this Agreement are resolved on a uniform basis,

and Company's execution of, and the making of this Agreement in Missouri, the

parties agree that: (i) any litigation involving any noncompliance with or

breach of the Agreement, or regarding the interpretation, validity and/or

enforceability of the Agreement, shall be filed and conducted exclusively in the

state or federal courts in St. Louis County, Missouri; and (ii) the Agreement

shall be interpreted in accordance with and governed by the laws of the State of

Missouri, with regard for any conflict of law principles.

 

17.      Headings.

 

Section headings are provided in this Agreement for convenience only and shall

not be deemed to substantively alter the content of such sections.

 

PLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT

EMPLOYEE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE

EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS

HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS

EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS TO ALL

SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE

AGREEMENT.

 

IN WITNESS WHEREOF, the parties hereof have caused this Agreement to be executed

as of the day and year first above written.

 

/s/ Michael P. Kaminski

------------------------------------------------

Employee: Michael P. Kaminski

 

/s/ Bevil J. Hogg

------------------------------------------------

Stereotaxis, Inc.

Bevil J. Hogg, President/CEO

 

</TEXT>

</DOCUMENT>

Top of the Document

EX-10 2 ex_10-1.htm EX_10-1-EMPLOYMENT AGREEMENT 1ST AMENDMENT

Exhibit 10.1

 

FIRST AMENDMENT TO EMPLOYMENT AGREEMENT

This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of this 29th day of May, 2008, by and between Stereotaxis, Inc. (the “Company” or “Stereotaxis”) and Michael P. Kaminski (the “Employee”).

WHEREAS, the Company and the Employee entered into that certain Employment Agreement dated as of April 17, 2002 (the “Employment Agreement”); and

WHEREAS, the Company and the Employee now desire to amend the Employment Agreement;

NOW, THEREFORE, in consideration of the continued employment of the Employee and the promises and mutual covenants set forth in the Employment Agreement, as well as the mutual covenants set forth herein, the parties agree as follows:

Section 1.     Section 1.4 of the Employment Agreement is hereby deleted in its entirety and replaced with the following:

 

“1.4

Termination: For purposes of this Agreement, “Cause” shall mean gross misconduct or gross negligence such as gross breach of fiduciary duty, dishonesty, theft or commission of a crime involving moral turpitude.

 

 

1.4.a

Termination without Cause: If Employee’s employment is terminated by Stereotaxis without Cause, Employee will be paid a salary continuance equal to his monthly base salary for twelve (12) months in accordance with the Company’s normal payroll practices. However, if Employee is re-employed (by the Company or another employer), all salary continuance pay will cease immediately.

 

 

1.4.b

Change of Control: If Employee’s employment is terminated without Cause as a result of, or following, an acquisition or merger of the Company where the Company is not the surviving entity and a change of control occurs and Employee is not offered a comparable position and salary in the surviving entity, (i) Employee will be paid salary continuance equal to his monthly base salary for twelve (12) months in accordance with the Company’s normal payroll practices and (ii) 100% of Employee’s unvested stock options will vest at the end of the salary continuance period. However, if Employee is re-employed (by the Company or another employer), all salary continuance pay will cease immediately.

 

 

1.4.c

Other Termination: Employee is not entitled to severance pay if Employee’s termination is voluntary or for Cause.”

Section 2.        All provisions of the Employment Agreement not hereby amended shall remain in full force and effect.

Section 3.        This Amendment and the Employment Agreement shall be read and construed together as a single instrument.

Section 4.        This Amendment shall be interpreted in accordance with and governed by the laws of the State of Missouri.

IN WITNESS WHEREOF, the parties have executed this Amendment on the date and year first written above.

 

STEREOTAXIS, INC.

 

 

 

 

 

By:

/s/ Bevil J. Hogg

 

Name:

Bevil J. Hogg

 

Title:

Chief Executive Officer

 

 

 

 

 

 

 

EMPLOYEE:

 

 

 

/s/ Michael P. Kaminski

 

Michael P. Kaminski

 

 

 

Top of the Document

EX-10.3 4 dex103.htm CORRECTED SECOND AMENDMENT TO EMPLOYMENT AGREEMENT

Exhibit 10.3

CORRECTED SECOND AMENDMENT TO

EMPLOYMENT AGREEMENT

This CORRECTED SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this “Corrected Second Amendment”) is entered into by and between Stereotaxis, Inc. (the “Company” or “Stereotaxis” or “we”) and Michael P. Kaminski ( “Employee”, “you” or “your”), collectively referenced herein as “ the parties” or “we”.

WHEREAS, you and the Company have previously entered into an At-Will Employment Agreement dated as of April 17, 2002, as amended by a First Amendment thereto on May 29, 2008 (as so amended, the “Employment Agreement”);

WHEREAS, you and the Company further amended the Employment Agreement in December 2009 (the “Second Amendment”) in light of the fact that you agreed to accept the position of Chief Executive Officer (“CEO”) of Stereotaxis effective on or about January 1st , 2009; and now desire to correct the Second Amendment to Employment Agreement executed in December 2009 by replacing Section 1.5(c) and inserting language concerning compliance with Internal Revenue Code Section 409A as set out hereinbelow (the Amended Employment Agreement, as corrected hereinbelow, referenced herein as the “Corrected Second Amendment” or this “Agreement”).

NOW, THEREFORE, in consideration of your continued employment and the promises and mutual covenants set forth in the Employment Agreement, as well as the mutual covenants set forth herein, the parties agree as follows:

SECTION 1. This Corrected Second Amendment to Employment Agreement replaces in its entirety the Second Amendment to Employment Agreement. Section 1 of the Employment Agreement is hereby deleted in its entirety and replaced with the following:

1.1 Position and Duties. Commencing on January 1, 2009 you shall hold the positions of President and Chief Executive Officer and shall report to, and at all times be subject to the lawful direction of, the Board of Directors of the Company. Additionally, you shall serve as a member of the executive staff and lead the strategic decision-making of the Company from time to time. You shall also serve as a member of the Board of Directors of the Company so long as you hold the positions of President and Chief Executive Officer, without additional compensation for such Board service. During the period of your employment by the Company (the “Employment Period”), you shall devote your best efforts and full business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business affairs of the Company. You shall perform your duties and responsibilities to the best of your abilities in a diligent, trustworthy, businesslike and efficient manner. Nothing herein shall preclude you from pursuing your personal, financial and legal affairs, or, subject to the prior written consent of the Board, (a) serving on any corporate or governmental board of directors (b) serving on the board of, or working for, any charitable, not-for-profit or community organization, or (c) pursuing any other activity; provided that you shall not engage in any other business, profession, occupation or other activity, for compensation or otherwise, which would violate the provisions of this Agreement or would, in each case, and in the aggregate, otherwise conflict or interfere with the performance of your duties and responsibilities hereunder, either directly or indirectly, without the prior written consent of the Board.

 

1


1.2 Base Salary. Commencing on January 1, 2009, the Company shall pay you as compensation for services to be rendered hereunder a base salary in the amount of Four Hundred Thousand Dollars ($400,000.00) per year, payable in semi-monthly installments or otherwise in accordance with the Company’s normal payroll practices, subject to increases, if any, as may be determined from time to time by the Company’s Board of Directors (or any duly authorized committee thereof, including without limitation the Compensation Committee) (the full board and any such committee individually and collectively referred to herein as the “Board”), which periodic payments shall be subject to the usual and customary tax deductions, and any other deductions authorized by you as a participant, for example in certain of our employee benefit plans.

1.3 Bonus Opportunity. You will be eligible to participate in a cash incentive bonus plan that will provide for a “Target Bonus” of an amount equal to fifty percent (50%) of and maximum of one hundred per cent (100%) of your then-current base compensation, subject to achievement of Company objectives and performance goals established for you by the Board, and subject to the Board’s determination whether and the extent to which such objectives and goals have been achieved and the amount of bonus payable as a result.

1.4 Equity Awards.

(a) You will receive One Hundred Twenty-Five Thousand (125,000) Stock Appreciation Rights (“SARs”) upon the execution and delivery of the Second Amendment and effective upon and conditioned on the final approval of the Board or the Compensation Committee thereof, which shall be undertaken at its first scheduled meeting following said execution and delivery.

(b) Thereafter, subject to the approval of the Board, you will be eligible to receive additional equity grants in 2009.

1.5. Termination.

a) Termination by Company With Cause. Your employment hereunder is at will, and may be may be terminated at any time by Company with or without “Cause”. For purposes of this Agreement, “Cause” shall mean: (i) embezzlement, theft or other intentional misappropriation of any property of Company, (ii) any willful act involving moral turpitude which brings disrepute or disparagement to the Company or substantially impairs its good will and reputation, or results in a conviction for or plea of guilty to a felony involving moral turpitude, fraud or misrepresentation, (iii) material neglect of your duties as CEO pursuant to this Agreement, (iv) material breach of your fiduciary obligations to Company, or (v) any chemical dependence which materially affects the performance of your duties and responsibilities to Company; provided that in the case of the misconduct set forth in clauses (iii), (iv) and (v) above, you will be given written notice setting forth in reasonable detail the purported acts which constitute Cause, and you will be given the opportunity within thirty (30) days to appear before the Board with counsel to respond to any such allegations.

b) Termination Without Cause. If your employment is terminated by the Company without Cause, i) you shall receive salary continuance equal to your then current monthly base salary for the twenty-four (24) month period next following your without-Cause

 

2


termination; however, if you are reemployed by the Company or find comparable employment during that twenty–four month period next following your without-Cause termination, such salary continuation payments will be offset by the amount of any salary from your new employer ( or us) commencing upon such new employment; and ii) in addition to the payments set forth in (i) above, the number of stock options, stock appreciation rights or other equity awards subject to vesting that would have vested over the 12 month period following the date of your without-Cause termination shall be automatically fully vested as of the date of the termination; and iii) you will thereafter have an exercise period of one (1) year next following your termination date (or, if shorter, the expiration date of the option), each option being exercisable by five (5) business days prior written notice of exercise to the Company. Salary continuation payments shall be made in accordance with the regularly scheduled payroll frequency in effect on the date of your termination of employment. Each installment payment required under this section shall be considered a separate payment under Internal Revenue Code Section 409A.

c) Change of Control. If, in the event of a Change of Control of the Company under which the Company is not the surviving entity you are not offered a comparable position and salary in the surviving entity after the Change of Control, you shall receive salary continuance equal to your then current monthly base salary for the twenty-four (24) month period next following your without-Cause termination or the said Change of Control, subject to your compliance with any post-termination restrictions and covenants herein, and provided that, as a condition precedent to your receipt of the salary continuance payments, you shall execute a release which releases the Company and its representatives from any and all claims that you may have against us. Salary continuation payments shall be made in accordance with the regularly scheduled payroll frequency in effect on the date of your termination of employment. Each installment payment required under this section shall be considered a separate payment under Internal Revenue Code Section 409A. Notwithstanding anything to the contrary in this Agreement, if you are a “specified employee” for purposes of Code Section 409A on the date of your termination and if any such payments set forth in this Agreement are classified as nonqualified deferred compensation, as defined in Internal Revenue Code Section 409A and the regulations thereunder, such payments subject to Section 409A shall be deferred until at least six (6) months after the date of termination. Any payment of nonqualified deferred compensation otherwise due in such six (6) month period shall be suspended and become payable in a lump sum at the end of such six (6) month period, and shall not otherwise be subject to any offset or reduction solely because of said deferral. However, any payments not subject to Section 409A shall be immediately payable and will not be suspended or deferred. A Change of Control, for purposes of this Corrected Second Amendment, is (i) an event whereby any natural person, corporation, general partnership, limited partnership, joint venture, proprietorship or other business organization (each, a “Person”), including such Person’s affiliates, or “group” (as such term is defined under Section 13(d) of the Securities Exchange Act of 1934, as amended) acquires beneficial ownership of capital stock ofStereotaxis entitling the holder(s) thereof to more than fifty percent (50%) of the voting power of the then outstanding capital stock of Stereotaxis with respect to the election of directors of Stereotaxis, or (ii) a sale or transfer of all or substantially all of the assets of Stereotaxis to any Person.

d) Pro rata Payment of Bonus. In the event of termination under b) or c) above in a year in which you have served as CEO and President for no less than six months, you will be entitled to receive a bonus from any bonus plan in which you were a participant as a member of management, which shall be paid on the same basis and at the same level as the other management employees who remain employed by the Company, pro rated on the basis of the number of days in the year that you worked prior to your termination.

 

3


e) Medical and Dental Insurance Continuation. In the event of termination under b) or c) above you shall be entitled to participate in the Company’s then-prevailing medical and dental plans upon the same contribution terms as those provided to or for the benefit of the Company’s employees from time to time during the 24-month period following your Separation Date, after which time such benefits will cease. This obligation will cease sooner than twenty-four months following your date of termination, if and at such time as you assume a full-time position with any other employer. Your participation in all other Company provided benefit plans and programs shall cease as of your termination date.

f) Release of Claims. The salary continuation payments and other post-termination compensation benefits are conditioned on and subject to your compliance with all post-termination restrictions and covenants and provided that, as a condition precedent to your receipt of the salary continuance payments you shall execute a release which releases the Company and its representatives from any and all claims that you may have against us. You are not entitled to salary continuation if your termination is voluntary or for cause. The release required by this section shall be in the form approved by the Company and must be executed and returned to the Company within thirty (30) days of your termination of employment to avoid forfeiture of the salary continuation payments and other post-termination benefits.

SECTION 2. The Confidentiality and NonCompete Agreement previously entered into by the Parties in connection with the Employment Agreement (Exhibit A thereto) is hereby deleted in its entirety and replaced with the following:

2.1 Confidential Information, Non-Competition, and Non-Disparagement.

a) Definitions. For purposes of this Agreement:

(i) “Business” shall mean and include the development, manufacture and sale of equipment, software, devices, and methods in the field of remote, computer-controlled or computer-aided navigation and delivery of interventional disposable devices, for endovascular applications (including electrophysiology and interventional cardiology), and within the peripheral vasculature in cardiology applications, with or without the use of magnetic devices or systems, and related interventional workstations and networks, used in or with interventional medical procedures, and related areas of research and business development being currently implemented by the Company, all as presented from time to time to the Stereotaxis Board of Directors.

(ii) “Related Parties” shall mean and include (a) any and all of our customers served by the Company or any of our personnel or distributors or agents or at any time during the final two years of your employment with us, (b) material investors whom you contacted or met or corresponded with concerning an investment in or loan to the Company during your final two years of employment with us, (c) companies or entities or their representatives with respect to which you prepared and submitted materials to the Board of Directors for the purpose of pursuing a collaboration or alliance and associated Confidential Information at any time during your final two years of employment with us, (d) prospective new customers, investors or collaborators which become affiliated with us during the term of this Agreement.

 

4


(iii) “Restricted Period” shall mean the period of your employment with us plus two (2) years immediately following the date of your termination for any reason.

(iv) “Territory” shall mean the geographic regions for which you have executive, managerial, supervisory, sales, marketing and/or other responsibilities at any time during your employment with us, which you acknowledge is worldwide.

b) Confidentiality.

(i) You agree to keep secret and confidential, and not to use or disclose to any third parties, including but not limited to Related Parties, except as required for the performance of your responsibilities on behalf of the Company any confidential or proprietary information, including but not limited to intellectual property, systems, programs, analyses, and/or other information of Company acquired during the course or as a result of your employment with Company (collectively, “Confidential Information”). Excluded from the scope and definition of Confidential Information is information made generally available to the public in any manner other than a breach of this Paragraph (b) by you, and information required to be disclosed by you pursuant to process of law. In that regard and in recognition that due to the nature and duration of your employment by the Company the use and disclosure of Confidential Information would inevitably result from your involvement with or engagement by the Company’s competitors or Related Parties in connection with Business as defined herein, you agree that the covenants relating to non-competition in Paragraph (c) hereinbelow are appropriate and fair and necessary to the protection of Confidential Information hereunder.

(ii) All notes, records, correspondence, data, hardware, software, documents or the like obtained by or provided to Company regarding the Business, or otherwise made, produced, or compiled during the course or as a result of your employment with Company which contain Confidential Information, regardless of the type of medium that such is preserved in, are the sole and exclusive property of Company, and shall be surrendered to Company upon your termination for any reason.

(iii) Based on the information available to you in your current position, you covenant that you have not disclosed, and will not disclose any information, whether confidential, proprietary, or otherwise, which you are not legally free to disclose. You agree to adhere to these commitments now and in the future and further, you agree that during the Restricted Period, Company may contact you and request your cooperation and consultation in securing data or information about which you may have particular knowledge, and you agree to fully and confidentially cooperate in any such consultations.

c) Non-Competition; Restrictive Covenants.

(i) You hereby acknowledge and agree that (a) the Company competes globally for and has relationships with customers, collaborators, employees, distributors, agents, and investors throughout the world; and has spent substantial time, money and effort over the years in developing and solidifying its relationships with Related Parties and protecting its Confidential Information and

 

5


goodwill, (b) long-term customer and investor relationships and collaborations with other companies can be difficult to develop and require a significant investment of time, effort and expense, (c) we compensate our employees to, among other things, develop and preserve goodwill, loyalty and contacts among Related Parties, as well as Confidential Information, for and on behalf of us, (d) the Company, in all fairness, needs certain protection in order to ensure that there is no disclosure, misappropriation or misuse of any Confidential Information, which would cause injury or disruption to or interference with the operation of the Company Business, (e) the Company is hereby agreeing to pay you based upon your assurances and promises contained herein not to misuse or divert the Company’s Confidential Information, and (f) because of your role in the Company, any interactions concerning the Business that you have with competitors or Related Parties after termination of your employment may result in the disclosure of Confidential Information or may affect the Company’s relationships with competitors or Related Parties.

(ii) In consideration of the foregoing, as well as the Company’s entering into this Agreement and making the payments and granting the other benefits herein, except as required for the performance of your responsibilities on behalf of the Company you shall not during the Restricted Period, directly or indirectly, on your behalf or for or on behalf of any other person, firm, corporation or entity.

(A) provide consultative services with or without pay, own, manage, operate, join, control, participate in, or be connected as a stockholder, general partner, officer, director, agent, consultant, independent contractor, or otherwise with, any business, individual, partner, firm, corporation, or other entity which is then in competition with the Company or engaged in Business, including without limitation to the generality of the foregoing, those firms listed on Attachment A or the divisions, departments, or affiliates engaged in the Business within those firms listed on Attachment B,

(B) provide any executive, managerial, supervisory, sales, marketing, research, or customer-related services to assist any competitor in competing, directly or indirectly, against us with respect to Business, in the Territory;

(C) obtain or use our Confidential Information and/or to divert goodwill generated and/or developed for or on behalf of us;

(D) solicit, divert, or take away, or attempt to solicit, divert or take away, from us the business of any customers for the purpose of selling or providing to or servicing for any such customer any product or service which is part of the Business;

(E) knowingly to cause or attempt to cause any customer of Company to terminate or reduce their existing relationships with us; or

(F) knowingly to solicit, induce, or hire, or attempt to solicit, induce, or hire, any employee, consultant, or distributor of the Company to leave the employ of us and/or to work for any competitor of the Company.

d) Nondisparagement. You and we agree that neither party will in any way disparage the other party including current or former officers, directors and employees of the Company, and neither party will, at any time, make or solicit any comments, statements or the like to the media or to others, including their agents or representatives, that may be considered to be derogatory or detrimental to the good name or business reputation of either party.

 

6


e) Acknowledgements Regarding Restrictions.

(i) We agree the restrictions herein shall apply only to prevent you from making contacts and providing services relating to the Business, and/or regarding which you have Confidential Information at any time, except as required for the performance of your responsibilities on behalf of the Company. You agree that the restrictions herein, both separately and in total, are reasonable and enforceable in view of, among other things, (A) our legitimate interests in protecting Confidential Information, goodwill and relationships with Related Parties, (B) the narrow range of the activities prohibited, (C) the Confidential Information to which you have had and will have access, which you agree has a useful competitive life of more than two years, and (D) your background, which is such that the restrictions should not impose any undue hardship on you.

(ii) None of these restrictions is intended to prevent you from owning up to one percent (1%) of the publicly traded stock of any company, or after termination of your employment with the Company, providing services to or being employed by firms such as those listed on Attachment B in divisions, departments, or affiliates within those firms not engaged in Business, so long as the restrictions in Sections 2.1(b) or (c), or any of your duties or obligations under the Confidentiality or Non-Competition provisions of this Agreement are not violated thereby.

(iii) In the event of a breach or threatened breach of any of your duties or obligations under the Confidentiality or Non-Competition provisions hereof, the Company shall be entitled, in addition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief restraining such breach or threatened breach. You hereby expressly acknowledge that the harm which might result to the Company as a result of any noncompliance by you with any of these provisions would be largely irreparable. You specifically agree that if there is a question as to the enforceability of any of the restrictions in 2.1(c)(ii)p you will not engage in any conduct inconsistent with or contrary to such provision during the Restricted Period unless and until the question has been resolved by a court of competent jurisdiction in a manner that would permit such conduct.

(iv) Company’s failure to enforce at any time any of the provisions of this Agreement or to require at any time your performance of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or any part hereof, or the right of Company thereafter to enforce each and every provision in accordance with the terms of this Agreement.

(v) If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any jurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall not affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is overbroad, that provision shall not be void, but rather shall be limited only to the extent required by applicable law and enforced as to limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’ respective interests.

 

7


2.2 Conflict of Interest You shall take no action or obtain any direct or indirect interests in or relationships with any organization that might affect the objectivity and independence of your judgment or conduct in carrying out duties and responsibilities to Company under this Agreement. Any such actions or interests which may even create the appearance of a conflict of interest shall be promptly brought to the attention of Company.

2.3 Notification of Prospective or Subsequent Employers. You agree to notify any prospective employer of the existence and terms of this Agreement, prior to acceptance of employment outside of the Company. Company may inform any person or entity subsequently employing You, or evidencing an intention to employ you, of the nature of the information Company asserts to be Confidential Information, and may inform that person or entity of the existence of this Agreement, the terms hereof, and provide to that person or entity a copy of this Agreement.

2.4 Inventions and Patents. You agree that you will promptly, from time to time, fully inform and disclose to Company all inventions, designs, improvements, and discoveries which you now have or may discover during the term of this Agreement which pertain or relate to the Business of Company or to any experimental work carried on by Company, whether conceived by you alone or with others and whether or not conceived during regular working hours. All such inventions, designs, improvements, and discoveries shall be the exclusive property of Company. You shall assist Company at Company’s sole expense, to obtain patents on all such inventions, designs, improvements, and discoveries deemed patentable by Company, and shall execute all documents and do all things necessary to obtain patents, vest Company with full and exclusive title thereto, and protect the same against infringement by others. You shall be entitled to no additional compensation for any and all inventions or designs made during the course of this Agreement.

SECTION 3. All other provisions of the Employment Agreement not hereby amended shall remain in full force and effect.

SECTION 4. This Corrected Second Amendment and the Employment Agreement shall be read and construed together as a single instrument.

SECTION 5. This Corrected Second Amendment and the rest of this Agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri.

IN WITNESS WHEREOF, the parties have executed this Corrected Second Amendment on the date first written below.

 

 

 

 

 

 

 

 

 

 

 

 

STEREOTAXIS, INC.

 

 

 

 

Date: August 6, 2009

 

 

 

By:

 

/s/ Fred A. Middleton

 

 

 

 

Name:

 

Fred A. Middleton

 

 

 

 

Title:

 

Chairman of the Board of Directors

 

8


 

 

 

 

 

 

 

Date: August 4, 2008

 

 

 

EMPLOYEE:

 

 

 

 

 

 

 

/s/ Michael P. Kaminski

 

 

 

 

Michael P. Kaminski

 

9


Attachment A

 

1.

Catheter Robotics

 

2.

Corindus

 

3.

Hansen

 

4.

Magnetecs

 

5.

SmithCurl/Curlview

 

6.

Systems One

 

10


Attachment B

 

1.

Atricure

 

2.

Boston Scientific

 

3.

Biosense Webster

 

4.

Biotronik

 

5.

GE Medical

 

6.

Intuitive Surgical

 

7.

Medtronics

 

8.

Philips

 

9.

Pulse Technologies

 

10.

Siemens

 

11.

St. Jude

 

12.

Swiss Medical

 

11

Top of the Document

 

 

EX-10.5D 4 d315040dex105d.htm AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT

Exhibit 10.5d

AMENDMENT TO

EXECUTIVE EMPLOYMENT AGREEMENT

This Amendment to Executive Employment Agreement (this “Amendment”) is entered into effective as of the first day of October, 2011, by and between Stereotaxis, Inc. (the “Company”) and Michael P. Kaminski (“Employee”), collectively referred to herein as the “Parties”.

WHEREAS, the Company and Employee entered into an At-Will Employment Agreement dated April 17, 2002, as amended by a First Amendment to Employment Agreement dated May 29, 2008, as further amended by a Corrected Second Amendment to Employment Agreement dated as of August 5, 2009 (the “Employment Agreement”); and

WHEREAS, the Company and Employee have mutually agreed that Employee’s base salary shall be temporarily reduced for a period of 18 months in order that the Company may reduce its operating expenses during such period.

NOW, THEREFORE, the Parties agree as follows:

1. For the period beginning on October 1, 2011, through March 31, 2013, Employee’s annual base salary amount set forth in Section 1.2 of the Employment Agreement shall be $352,000. Effective April 1, 2013, Employee’s annual base salary amount set forth in Section 1.2 of the Employment Agreement shall be $420,000.

2. For purposes of salary continuation payments in the event of a termination of Employee’s employment without Cause under Section 1.5(b) of the Employment Agreement, or in the event of a Change of Control of the Company under Section 1.5(c) of the Employment Agreement, Employee’s monthly base salary on the date of termination shall be determined based on an annualized base salary equal to the greater of Employee’s base salary as of September 30, 2011, or Employee’s annualized base salary in effective immediately prior to termination without Cause or Change of Control, as the case may be. Further, in the event of a Change of Control of the Company as described in Section 1.5(c), the comparable salary held immediately prior to the Change of Control shall be deemed to be the greater of Employee’s annualized base salary in effect on September 30, 2011, or the salary held immediately prior to the Change of Control.

3. All other provisions of the Employment Agreement not hereby amended shall remain in full force and effect.

IN WITNESS WHEREOF, the Parties have executed this Amendment effective as of the date first written above.

STEREOTAXIS, INC.

By       /s/ Fred A. Middleton                                

Name: Fred A. Middleton

Title:   Chairman

Employee:

/s/ Michael P. Kaminski                                        

 

 

 

 

EX-10.1 2 d738329dex101.htm EX-10.1

Exhibit 10.1

EXECUTIVE EMPLOYMENT AGREEMENT

This Executive Employment Agreement (this “Agreement”) is entered into as of this 30th day of May, 2014, by and between Stereotaxis, Inc, a Delaware corporation (the “Company”), and William C. Mills III (“Employee”).

WHEREAS, Employee desires to continue in the employment of the Company, and the Company desires to continue to employ Employee, subject to the terms and conditions herein;

WHEREAS, the Company considers the establishment and maintenance of a sound and vital management to be essential to protecting and enhancing the best interests of the Company and its stockholders. In this connection, the Company recognizes that, as is the case with many publicly held corporations, the possibility of a change of control exists and that such possibility, and the uncertainty and questions that it may raise among management, could result in the departure or distraction of key management personnel to the detriment of the Company and its stockholders. Accordingly, the Company’s Board of Directors has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the Company’s management, including the Employee, to their assigned duties without distraction and disruption in the event of a threatened or actual Change of Control; and

WHEREAS, this Agreement does not constitute an employment contract, nor does it alter the Employee’s status as an at-will employee of the Company. This Agreement merely sets out the severance benefits that the Company will provide if, but only if, the Employee’s separation from service with the Company is without Cause or in connection with the occurrence of an actual Change of Control under the circumstances described herein.

 

1)

Definitions.

 

 

a)

“Act” means the Securities Exchange Act of 1934, as in effect on the date of this Agreement.

 

 

b)

“Cause” means

 

 

i)

the institution of criminal charges against the Employee, or the admission by Employee of, or any action or omission by Employee that constitutes embezzlement, theft or other intentional misappropriation of any property of Company,

 

 

ii)

any willful act involving moral turpitude which brings disrepute or disparagement to the Company or substantially impairs its good will and reputation, or results in a conviction for or plea of guilty or nolo contendre to a felony involving moral turpitude, fraud or misrepresentation,

 

 

iii)

material neglect of duties (other than due to Disability) which, if curable, is not cured by the Employee, provided however, the Employee shall receive a reasonable opportunity to cure within at least fifteen (15) days after written notice of such neglect of duties if such material neglect of duties is curable within such period,

 

 

iv)

material breach of fiduciary obligations to Company after written notice of such breach, or

 

 

v)

substance or alcohol use that violates Company policy or materially affects the performance of Employee’s duties and responsibilities.


 

c)

“Change of Control” means the occurrence of one or more of the following:

 

 

i)

The purchase or other acquisition (other than from the Company) by any person, entity or group of persons, within the meaning of Section 13(d) or 14(d) of the Act (excluding, for this purpose, the Company or its subsidiaries or any employee benefit plan of the Company or its subsidiaries), of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Act) of more than 50% of either the then-outstanding shares of common stock of the Company or the combined power of the Company’s then-outstanding voting securities entitled to vote generally in the election of directors;

 

 

ii)

Individuals who, as of the date hereof, constitute the Board (as of the date hereof, the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any person who becomes a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of directors of the Company, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Act) shall be, for purposes of this section, considered as though such person were a member of the Incumbent Board; or

 

 

iii)

The consummation of a reorganization, merger or consolidation, in each case with respect to which persons who were the stockholders of the Company immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than 50% of, respectively, the common stock and the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated corporation’s then-outstanding voting securities, or of a liquidation or dissolution of the Company or of the sale of all or substantially all of the assets of the Company.

Notwithstanding the foregoing, a Change of Control shall not be deemed to have occurred with respect to any benefit that (i) provides “non-qualified deferred compensation” within the meaning of Code Section 409A; and (ii) settles upon a Change of Control, unless such foregoing event constitutes a “change in ownership” of the Company, a “change in effective control” of the Company, or a “change in the ownership of a substantial portion of the assets” of the Company in each case, as defined under Code Section 409A. For purposes of this Agreement, where a Change of Control results from a series of related transactions, the Change of Control shall be deemed to have occurred on the date of the consummation of the first such transaction.

 

 

d)

“Confidential Information” means any information pertaining to the Stereotaxis Business and/or other information of the Company acquired by Employee during the course of or as a result of employment with the Company, which is not publicly known, such as but not limited to, trade secrets, know-how, processes, designs, products, documentation, data, research and development plans and activities, standard operating procedures and validation records, drawings, tools, techniques, software and computer programs and derivative works, inventions (whether patentable or not), improvements, copyrightable material, business and marketing plans, projections, sales data and reports, confidential evaluations, the confidential use, nonuse or compilation by the Company of technical or business information in the public domain, customers and prospects, customer requirements, costs, profitability, sales and marketing strategies, pricing policies, operational methods, strategic plans, training materials, internal financial information, operating and financial data and projections, distribution or sales methods, prices charged by or to Company, inventory lists, sources of supplies, supply lists, lists of current or past employees and information concerning relationships between Company and its employees, collaborators, or customers.

 

2


 

e)

“Disability” means the Employee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.

 

 

f)

“Good Reason” means any of the following occurrences without the Employee’s written consent:

 

 

i)

a material diminution in the Employee’s duties, responsibilities, or status with the Company as in effect immediately before the Change of Control, or a change in the Employee’s titles or offices (to a lesser title or office) as in effect immediately before a Change of Control, or the removal of the Employee from or any failure to reelect or reappoint the Employee to any of his/her other positions, except in connection with the termination of employment by the Company for Cause or by the Employee for other than Good Reason;

 

 

ii)

a material diminution by the Company in the Employee’s base salary or perquisites as in effect on the date hereof , as the same may be increased from time to time;

 

 

iii)

a material reduction by the Company of the benefits provided to the Employee under any incentive (cash or equity), or compensation plan, or any pension, life insurance, health and accident, or disability plan in which the Employee is participating at the time of a Change of Control (or plans providing the Employee with substantially similar benefits), or the taking of any action by the Company that would adversely affect the Employee’s participation in or materially reduce the Employee’s benefits under any of such plans or deprive the Employee of any material fringe benefit enjoyed by the Employee at the time of the Change of Control, unless such reduction or action is generally applicable to all employees of the Company or relevant subsidiary; or

 

 

iv)

the Company requires the Employee to perform the duties of his/her employment beyond the 50 mile radius from the location of the Employee’s employment immediately before the Change of Control;

provided, however, that (i) any separation from service by the Employee shall not be considered a separation for Good Reason for purposes of this Agreement if such separation occurs after the Employee has been absent from his/her work for a continuous period of at least six months as a result of his/her Disability (“Disability Period”) and occurs while the Employee is receiving benefits under the Company’s (or any subsidiary’s) long-term disability plan(s) in effect immediately before the Change of Control; and (ii) if the Employee returns to work following a Disability Period, clause (i) of this section shall not apply in determining whether Good Reason exists following such return.

 

 

g)

“Restricted Period” means during Employee’s employment plus the later of one year following the date of (i) the final day of the Severance Period, or (ii) separation from service for any reason; however the Restricted Period shall not exceed two years beyond the date of separation from service.

 

 

h)

“Severance Period” means the period during which the Employee receives any salary continuation and/or continuation of benefits due to a separation from service without Cause or in the connection with a Change of Control.

 

 

i)

“Stereotaxis Business” means: (i) the development, manufacture, and sale of (A) equipment, software, devices, and methods in the field of remote, computer-controlled or computer-aided navigation and delivery of interventional medical devices, with or without the use of magnetic devices or systems, and (B) workstations, software, and networks used in or with medical procedures, and (ii) research and planning and business development that is planned or implemented by Company during the term of employment, with respect to which Employee receives Confidential Information during employment.

 

3


2)

Position; Base Salary; Incentive Compensation. Employee shall serve as Chief Executive Officer, and shall report to the Board of Directors of the Company. Employee shall be paid an annual base salary of $475,000 subject to increases as provided by the Company from time to time in writing, and all payments shall be subject to applicable withholdings and deductions.

 

3)

Company Benefits. While employed by the Company, Employee shall be entitled to receive such benefits of employment as the Company may offer from time to time. Company-paid time off for vacation, sick leave, and other personal needs will be governed by the Employee Handbook and Company policies as modified from time to time by the Company.

 

4)

Employment Services; Employee Handbook and Company Policies. Employee agrees that throughout the term of Employee’s employment, as a condition of Employee’s employment, Employee shall (a) diligently, in good faith and to the best of Employee’s abilities render such services as may be delegated to the Employee by the Company; and (b) follow and act in accordance with all of Company’s rules, policies and procedures of Company, including, but not limited to this Agreement, the Company rules and policies, and the Employee Handbook, any of which may be revised from time to time at the sole discretion of the Company, with or without prior notice.

 

5)

At-Will Employment. The Company is an “at-will” employer. This means that the Company or the Employee may terminate Employee’s employment at any time, for any reason or for no reason and/or with or without cause. Company makes no promise that Employee’s employment will continue for a set period of time, nor is there any promise that it will be terminated only under particular circumstances. No raise or bonus or discussion of possible or potential future benefits, if any, or changes to Employee’s capacity, reporting, or compensation shall alter Employee’s status as an “at-will” employee or create any implied or express contract or promise of continued employment. No manager, supervisor or officer of Company has the authority to change Employee’s status as an “at-will” employee.

 

6)

Inventions and Developments.

 

 

a)

Any and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent applications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like, which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether individually or otherwise, during the term of Employee’s employment whether or not during working hours, that relate to Stereotaxis Business or any work performed by Employee for Company (collectively, “Inventions and Developments”), shall be the sole and exclusive property of Company, and Company shall own any and all right, title and interest to such Inventions and Developments. Employee assigns and agrees to assign to Company any and all right, title and interest in and to any such Inventions and Developments whenever requested to do so by Company, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other instruments which Company deems desirable or necessary to protect such interests, both during and after the term of Employment.

 

 

b)

By way of clarification, Section 6(a) shall not apply to any invention for which no equipment, supplies, facilities or Confidential and Trade Secret Information of Company was used and which was developed entirely on Employee’s own time, unless (i) the invention relates to Stereotaxis Business or to Company’s actual or demonstrably-anticipated research or development; or (ii) the invention results from any work performed by Employee for Company.

 

7)

Confidential Information. Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for Employee to perform Employee’s employment responsibilities for Company, any of Company’s Confidential Information. Excluded from the scope of these restrictions is Confidential Information that becomes generally available to the public in any manner other than by a breach of this Agreement by the Employee.

 

4


8)

Company Materials. All notes, records, correspondence, data, hardware, software, documents or the like obtained by or provided to the Company regarding Stereotaxis Business, or otherwise made, produced, or compiled during the course or as a result of employment with the Company which contain Confidential Information, regardless of the type of medium in which such is preserved, (“Company Materials”), are the sole and exclusive property of the Company, and shall be surrendered to the Company on request or upon Employee’s termination for any reason. During Employee’s employment, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or otherwise use, any Company Materials except as expressly permitted or required for the proper performance of Employee’s duties on behalf of the Company.

 

9)

Attention to Duties; Conflict of Interest.

 

 

a)

Employee represents that the execution and delivery of the Agreement and Employee’s employment with Company do not violate any previous employment agreement or other contractual obligation of Employee, and there are no outstanding commitments or agreements inconsistent with any of the terms of this Agreement or the services to be rendered to Company.

 

 

b)

While employed by the Company, Employee shall devote Employee’s full business time, energy and abilities exclusively to the business and interests of the Company and shall not, without the Company’s prior written consent, obtain any direct or indirect interests in or relationships with any organization that might affect the objectivity and independence of the Employee’s judgment or conduct in carrying out duties and responsibilities to the Company under this Agreement or that would interfere with the performance of Employee’s duties under this Agreement. However, nothing herein shall preclude Employee from pursuing Employee’s personal, financial and legal affairs, or, subject to the prior written consent of the Company, (i) serving on any corporate or governmental board of directors, (ii) serving on the board of, or working for, any charitable, not-for-profit or community organization, or (iii) pursuing any other activity; provided that Employee shall not engage in any other business, profession, occupation or other activity, for compensation or otherwise, which would violate the provisions of this Agreement or would otherwise conflict or interfere with the performance of Employee’s duties and responsibilities hereunder, either directly or indirectly.

 

 

c)

If in the course of Employee’s employment, Employee becomes aware of any obligations or commitments under Section 9(a) or any real or apparent conflicts of commitment or conflicts of interest, Employee shall immediately disclose them to Employee’s supervisor.

 

10)

Non-Competition, Non-solicitation. Employee agrees that during the Restricted Period, and regardless of how Employee’s termination occurs and regardless of whether it is with or without Cause, Employee shall not, directly or indirectly (whether individually or as owner, partner, consultant, employee or otherwise):

 

 

a)

engage in, assist or have an interest in, enter the employment of, or act as an agent, advisor or consultant for, any person or entity that then is or intends to be in competition with the Company with respect to Stereotaxis Business. A person or entity will be deemed “in competition” if it is involved in research, development, manufacture, supplying or sale of a product, process, apparatus, service or development which is competitive with a product, process, apparatus, service or development on which Employee worked, or with respect to which Employee has or had access to Confidential Information during the Employee’s employment.

 

 

b)

solicit, divert, or take away, or attempt to solicit, divert or take away from the Company the business of any customers for the purpose of selling or providing to such customer any product or service which is included in the Stereotaxis Business as defined herein;

 

5


 

c)

knowingly to cause or attempt to cause any customer, vendor, or other third party collaborating with the Company to terminate or reduce its existing relationship with the Company; or

 

 

d)

knowingly solicit, induce, or hire, or attempt to solicit, induce, or hire, any employee, consultant, or distributor of the Company to leave the employ of the Company and/or to work for any competitor of the Company.

 

11)

Notification; Non-disparagement. Employee shall notify any prospective employer of the existence and terms of this Agreement, prior to acceptance of employment outside of the Company. Company may inform any person or entity subsequently employing, or evidencing an intention to employ Employee of the nature of the information Company asserts to be Confidential Information, and may inform that person or entity of the existence of this Agreement, the terms hereof, and provide to that person or entity a copy of these terms and conditions. Neither party shall in any way disparage the other, including current or former officers, directors and employees of the Company, and neither party shall make or solicit any comments, statements or the like to the media or to others, including their agents or representatives, that may be considered to be derogatory or detrimental to the good name or business reputation of the other party.

 

12)

Acknowledgments Regarding Restrictions. Employee acknowledges, understands, and agrees that:

 

 

a)

The provisions relating to confidentiality, conflicts of interest, non-competition, and their post-employment continuation are material consideration for the compensation and other benefits of Employee’s employment by Company, and without Employee’s agreement to these provisions and restrictions, Employee would not be employed by the Company.

 

 

b)

Employee agrees that the covenants relating to non-competition, non-solicitation, and disparagement in this Agreement are appropriate and fair and necessary to avoid conflicts of interest and commitment and to protect the Company’s legitimate interests in its Confidential Information, goodwill, and relationships.

 

 

c)

The restrictions contained herein are not limited geographically in view of Company’s worldwide operations and the nature of the Confidential Information, customers and/or other business relationships to which Employee will have access. These restrictions may preclude, for a time, Employee’s employment with competitors of Company. Company agrees, however, that if it is commercially reasonable, after the Employee’s employment and within the Restricted Period it may provide written permission for Employee to provide services to or be employed by firms that are engaged in Stereotaxis Business, so long as such services or employment are provided to divisions, departments, or affiliates that are not engaged in Stereotaxis Business within those firms. Such permission shall not be deemed to waive or diminish the prohibitions on disclosure or use of Confidential Information or the covenants of non-competition in this Agreement.

 

 

d)

None of these restrictions is intended to prevent the Employee from owning up to one percent (1%) of the publicly traded stock of any company during the Restricted Period.

 

 

e)

In the event of a breach or threatened breach of any of Employee’s duties and obligations under Sections 7 to 11, Company shall be entitled, in addition to any other legal or equitable remedies (including any right to damages), to temporary, preliminary and permanent injunctive relief restraining such breach or threatened breach. Employee expressly acknowledges that the harm that might result to Company’s business as a result of any noncompliance by Employee with any of the provisions of these Sections would be largely irreparable, and specifically agrees that if there is a question as to the enforceability of any of the provisions of these Sections, Employee will not engage in conduct alleged to be inconsistent with or contrary to such Sections before the question has been resolved by a final judgment of an arbitrator or court of competent jurisdiction.

 

6


 

f)

To ensure Employee’s understanding of and compliance with the obligations under this Agreement, Employee agrees to engage in an exit interview with the Company at the Company’s expense prior to Employee’s last day of employment, at a time and place or by telephone, as designated by the Company, and that Employee may be required to confirm that Employee will comply with Employee’s post termination obligations.

 

13)

Non-Waiver of Rights. Company’s failure at any time to enforce or require performance by Employee of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or any part hereof, or the right of Company thereafter to enforce each and every provision in accordance with the terms of this Agreement.

 

14)

Employee’s Separation from Service Without Cause.

 

 

a)

Subject to provisions of Sections 16 and 19 hereof, in the event of the Employee’s separation from service without Cause, for a period of twelve (12) months following the date of the Employee’s separation from service, the Company shall pay to Employee an amount equal to Employee’s annualized base salary in effect immediately prior to the date of the separation from service without Cause. Salary continuation payments under this Section 14 shall be made in accordance with the Company’s regular payroll schedule in effect on the date of Employee’s separation from service. Any salary continuation payable under this Section 14 will be offset by the amount of any compensation Employee receives during the Severance Period from the Company or another employer or as an independent contractor.

 

 

b)

If the Employee elects to continue his/her medical and dental benefits under the Consolidated Omnibus Reconciliation Act of 1985, as amended (“COBRA”), the Employee shall pay the same amount for such coverage as if he/she had remained employed by the Company with such amounts deducted from the severance payable under subsection (a) above and the Company shall pay the remaining portion of the required monthly COBRA premium for up to the first twelve months following the Employee’s separation from service or if earlier, the date the Employee becomes eligible for comparable benefits from another employer.

 

 

c)

The Company shall maintain in full force and effect, for one year following Employee’s separation from service, for the continued benefit of the Employee (and his/her spouse and dependents, if applicable), all life insurance, accident, and disability plans and programs in which the Employee was entitled to participate immediately before the occurrence of the event(s) giving rise to his/her separation, provided that the continued participation is possible under the general terms and provisions of such plans and programs. If the continued participation in any such plan or program is barred, the Company shall arrange to provide the Employee, upon comparable terms, with benefits substantially similar to the benefits to which the Employee would have otherwise been entitled under such plans and programs. Employee’s receipt, from a new employer, of any of the benefits described in this subsection shall not eliminate the Company’s obligations to provide the Employee with such benefits (or their equivalent), but shall act as an offset to the Company’s obligations hereunder.

 

15)

Separation from Service In Connection with a Change of Control.

 

 

a)

The Employee shall be entitled to benefits under this Section, rather than under any other severance program of the Company, including amounts described in Section 14 above, if he/she incurs a separation from service under the circumstances described in this Section 15.

 

 

b)

Subject to Sections 16, 17 and 19 herein, if the Company effects the Employee’s separation from service without Cause during the period commencing six (6) months prior to a Change of Control and ending one (1) year after a Change of Control, or if the Employee separates from service for Good Reason within one year after the occurrence of a Change of Control, then the Company shall pay to the Employee (without regard to the provisions of any benefit plan) within thirty (30) days following the Employee’s separation from service date, the sum of the following amounts:

 

7


 

i)

any accrued and owing portion of the Employee’s full base salary through the date of separation at a rate equal to the greater of the rate in effect immediately before the Employee’s separation or the rate in effect immediately before the Change of Control; plus an amount equal to unpaid salary with respect to any vacation days accrued but not taken as of the date of separation;

 

 

ii)

an amount equal to two times the Employee’s annual base salary at a rate equal to the greater of: the rate in effect immediately before the Employee’s separation or the rate in effect immediately before the Change of Control; and

 

 

iii)

in lieu of further payments not otherwise addressed by this Agreement under any long term incentive, bonus or compensation plan of the Company or any subsidiary thereof or any successor plan, an amount equal to all awards earned or accrued thereunder, but not yet paid, for periods up to and including the date of separation.

 

 

c)

Subject to Section 16 herein, the Employee shall be entitled to the following benefits in addition to the severance amounts payable pursuant to subsection (b) above:

 

 

i)

the Company shall maintain in full force and effect, for two years following Employee’s separation from service, for the continued benefit of the Employee (and his/her spouse and dependents, if applicable), all life insurance, accident, and disability plans and programs in which the Employee was entitled to participate immediately before the occurrence of the event(s) giving rise to his/her separation, provided that the continued participation is possible under the general terms and provisions of such plans and programs. In addition, the Company will pay the cost for the Employee (and his/her spouse and dependents, if applicable) to continue group health coverage under the Company’s plan pursuant to COBRA for up to two years following Employee’s separation from service. If the continued participation in any such plan or program is barred, the Company shall arrange to provide the Employee, upon comparable terms, with benefits substantially similar to the benefits to which the Employee would have otherwise been entitled under such plans and programs. Employee’s receipt, from a new employer, of any of the benefits described in this subsection shall not eliminate the Company’s obligations to provide the Employee with such benefits (or their equivalent), but shall act as an offset to the Company’s obligations hereunder.

 

 

ii)

If the Company effects the Employee’s separation from service without Cause during the period commencing six (6) months prior to a Change of Control and ending two (2) years after the Change of Control, or if the Employee separates from service for Good Reason within two years after the occurrence of a Change of Control, all awards to the Employee under any Company stock plan shall vest upon the date of the Change of Control or the date of Employee’s separation from service, whichever is later. This section supersedes any inconsistent provisions in any stock plan or award issued thereunder, and constitutes an amendment to any such award that has been approved by the Compensation Committee of the Board of Directors of the Company as provided under any stock plan (provided, however, that notwithstanding any agreement elsewhere to the contrary, the period of time in which the Employee may exercise vested stock awards shall end on the date on which the right to exercise such award would have expired if the Employee had remained an employee of the Company);

 

 

iii)

the Company shall pay all reasonable out-of-pocket expenses, including reasonable legal fees and legal expenses, incurred by the Employee in connection with any judicial or other proceeding, including any arbitration proceeding, to enforce this Agreement or to construe, determine, or defend the validity of this Agreement.

 

16)

Conditions. The continuation of any salary and benefits under Sections 14 and 15 (other than subsection 15(b)(i)) is conditioned on Employee’s (a) compliance with the terms and conditions of this Agreement, including any post-termination restrictions and covenants, and (b) execution of a release of any and all claims against the Company and its officers, directors, and employees arising from or

 

8


 

related to the Employee’s employment. The release required pursuant to subsection (b) above shall be substantially similar with respect to all material terms and conditions to the form attached hereto as Attachment A, and must be executed and returned to the Company within forty five (45) days after the Employee’s separation from service to avoid forfeiture by Employee of the amounts payable under 14 or 15 above. In the event the prescribed 45-day period extends in to a new calendar year, the benefits under Section 14 or 15 shall be paid in the second calendar year.

 

17)

Code Section 280G. Notwithstanding any provision herein to the contrary, if Employee is a “disqualified individual” for purposes of application of Section 280G of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder (“Code Section 280G), then to the extent that the aggregate severance benefits payable under this Agreement and any other compensation payable to Employee constitute a “parachute payment” within the meaning of Code Section 280G, the amount of the aggregate benefits to which Employee is entitled shall be limited to (a) or (b), whichever yields the greatest after-tax benefit, where (a) refers to such aggregate amounts payable without regard to this Section 17, and (b) refers to such aggregate amounts reduced to the minimum extent necessary to avoid triggering tax under Code Section 4999. Any such reductions under this Section 17(b) shall be made first from the severance benefits that are not deferred compensation subject to regulation under Code Section 409A.

 

18)

General Code Section 409A Compliance. It is intended that this Agreement shall comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder (“Code Section 409A”), or be exempt from the application of Code Section 409A. For purposes of Code Section 409A, the right to a series of installment payments hereunder shall be treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the calendar year of any payment under this Agreement.

 

19)

Specified Employee Six Month Deferral. Notwithstanding anything to the contrary in this Agreement, to the extent any amounts payable under Sections 14 or 15 on account of a separation of service are classified as nonqualified deferred compensation subject to the requirements under Internal Revenue Code Section 409A and the regulations thereunder, payment of such amounts shall be deferred until six (6) months after the date of the Employee’s separation from service if necessary for the Employee to avoid adverse tax consequences under Code Section 409A. Payment of any such nonqualified deferred compensation otherwise due during the first six months following the Employee’s separation from service shall be suspended and become payable in a lump sum at the end of such six (6) month period, and shall not otherwise be subject to any offset or reduction pursuant to Section 17 above solely because of said deferral.

 

20)

Taxable Reimbursements. Notwithstanding anything to the contrary in this Agreement, all taxable reimbursements provided under this Agreement that are subject to Code Section 409A shall be made in accordance with the requirements of Code Section 409A. The amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year. Reimbursement of an eligible expense shall be made in accordance with the Company’s policies and practices and as otherwise provided herein, provided, that, in no event shall reimbursement be made after the last day of the year following the year in which the expense was incurred. The right to reimbursement is not subject to liquidation or exchange for another benefit.

 

21)

No Obligation to Mitigate. The Employee shall not be required to mitigate the amount of any payment or benefits provided for in Section 14 or 15 by seeking other employment or otherwise. The amount of any payment or benefits provided for in Section 15 shall not be reduced by any payments or benefits received by the Employee as the result of employment by another employer after the date of separation, or otherwise; provided, however, that the amount payable under Section 14 or 15 shall be reduced by the amount of any severance, termination, or notice pay (or any other similar amounts) required by law to be paid to the Employee during any notice period that the Company or its subsidiaries is required by law to provide.

 

9


22)

Binding Arbitration. Except in the case of a separation of Employee’s service by the Company or by Employee for Good Reason following a Change of Control:

 

 

a)

Any dispute, claim or controversy with respect to Employee’s employment or its termination (whether the termination of employment is voluntary or involuntary) shall be settled exclusively (except as set out in Section 12(e) above) by arbitration in accordance with the rules of the American Arbitration Association (“AAA”). Either party may request arbitration in writing after good faith efforts to resolve the matter internally, and the parties shall select an arbitrator under the AAA rules. Employee and Company each waive their constitutional rights to have such matters determined by a jury, explicitly and definitely prefer arbitration to recourse to the courts, and have prescribed arbitration as their sole and exclusive method of binding dispute resolution because, among other reasons, it is quicker, less expensive, and less formal than litigation in court.

 

 

b)

Except as set out in Section 24 below, the arbitrator shall not have the authority to modify, add to or eliminate any provision of this Agreement. The arbitration shall be held in St. Louis, Missouri. The award of the arbitrator shall be final and binding on the parties. Judgment upon the arbitrator’s award may be entered in any court, state or federal, having jurisdiction over the parties. If a written request for arbitration is not made within one (1) year of the date of the termination of employment or separation from service or, in the case of disputes not resolved internally, the date of the final decision reached by the Human Resources Department, all remedies regarding such dispute, claim or controversy shall be waived.

 

23)

Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in ensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s execution of, and the making of this Agreement in Missouri, the parties agree that: (a) any litigation involving any noncompliance with or breach of the Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted exclusively in the state or federal courts in St. Louis County, Missouri; and (b) the Agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri.

 

24)

Severability. If any provision(s) of this Agreement are or become invalid, are ruled illegal or are deemed unenforceable by any tribunal of competent jurisdiction, it shall be modified and enforced to the maximum extent permissible under applicable law. It is the intention of the parties that the remainder of this Agreement shall not be affected, provided that a party’s rights under this Agreement are not materially affected, in which case the parties covenant and agree to revise any such provision or the Agreement in good faith in order to provide a term, covenant, condition or application of this Agreement that most closely complies with the intent of the parties under the Agreement as originally executed.

 

25)

Assignment. The Company may assign this Agreement and Employee’s employment to any entity to which the operations it currently manages are transferred, whether through reorganization, merger, sale or any other transfer. As a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.

 

26)

Construction. The parties to this Agreement represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by the other party or the other party’s agents, attorneys or representatives regarding the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this written Agreement. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any party. This Agreement shall be construed as if each party was its author and each party hereby adopts the language of this Agreement as if it were his/her or its own. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively affect the content of such sections. In addition, in light of the post-employment compensation to be paid to Employee under Section 14 of this Agreement if Employee is terminated

 

10


 

without Cause, Employee acknowledges and agrees that Employee’s post-employment obligations under Section 10 are reasonable and should be fully enforceable regardless of why or how his/her employment may end, and regardless of the reason(s) why and/or whether or not such termination of employment is with or without Cause.

 

27)

Entire Agreement. This Agreement, including any Exhibits attached hereto, sets forth all the covenants, promises, agreements, representations, conditions and understandings between the parties hereto with respect to the subject matter hereof and supersedes and terminates all prior agreements and understandings between the parties. There are no covenants, promises, agreements, representations, conditions or understandings, either oral or written, between the parties with respect to the subject matter hereof other than as set forth herein and therein. No amendment, change or addition to this Agreement shall be binding upon the parties unless reduced to writing and signed by the Employee and an authorized representative of the Company. This Agreement cannot be changed orally or by any conduct of either Employee or the Company or any course of dealings between Employee, or another person and the Company.

[The Remainder of This Page Has Intentionally Been Left Blank]

 

11


Employee and the Company have executed this Agreement and agree to enter into and be bound by the provisions hereof as of May 30, 2014.

BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS AND TO CONFER WITH COUNSEL; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT.

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION.

 

Employee

 

 

 

Stereotaxis, Inc.

/s/ William C. Mills III

 

 

 

/s/ Fred Middleton

William C. Mills III

 

 

 

Fred Middleton

 

 

 

Chairman, Compensation Committee

 

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Attachment A

FORM OF SEVERANCE AGREEMENT AND RELEASE

This Severance Agreement and Release (“Agreement”) is made between Stereotaxis, Inc. (“Stereotaxis”), including its divisions, subsidiaries, parent and affiliated corporations, their successors and assigns (individually and collectively “Stereotaxis”) and              with Employee’s heirs, executors, administrators, successors and assigns (“Employee”).

WHEREAS, Stereotaxis and Employee entered into an Employment Agreement dated              (said agreement and any and all amendments collectively, the “Employment Agreement”), and now desire to terminate their employment relationship and settle all legal rights and obligations resulting from Employee’s employment with Stereotaxis.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, representations and undertakings of the parties set forth herein, the adequacy and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.

Separation Date. Employee’s employment with Stereotaxis will terminate effective             .

 

2.

Pursuant to the Amended and Restated Executive Employment Agreement, in consideration for Employee’s execution of, and subject to the terms and conditions of this Severance Agreement and Release, Stereotaxis agrees as set forth below. In the event of a conflict between the terms of the Employment Agreement and the benefits described below, the Employment Agreement shall control:

 

 

(a)

SeveranceEmployee will receive [             weeks of base pay in the amount of $             per week],][an amount equal to Employee’s annual base salary at a rate of $            ], as severance pay less deductions required by law. Employee’s severance will payable in accordance with Stereotaxis’ normal payroll dates and will commence once the revocation period set forth in section 6(e) has elapsed without Employee revoking this Release.

 

 

(b)

Insurance. Stereotaxis will permit Employee to exercise his/her COBRA continuation privileges as provided by law, effective             . [Stereotaxis will pay the cost under COBRA for continuing Employee’s group medical and dental insurance from              through             , provided Employee’s regular monthly contribution is made by deduction from the severance payments.] or [Stereotaxis will pay for continuing Employee’s group medical and dental insurance from              through             .] Thereafter, Employee shall be responsible to pay the cost to continue group medical and dental insurance under COBRA. In addition, Stereotaxis will permit Employee to participate in all life insurance, accident and disability plans and programs in which Employee was entitled to participate immediately prior to his/her separation from service or, if such participation is barred, provide substantially similar benefits.

 

 

(c)

[Incentive or Compensation PlansEmployee will be paid $            , less deductions required by law, representing amounts earned or accrued by Employee under any long-term incentive, bonus or compensation plan of the Stereotaxis or any subsidiary or successor that is unpaid.]

 

 

(d)

[Acceleration of Vesting. Employee’s award(s) under any Stereotaxis stock plan shall become fully vested.]


 

(e)

[Out-of-Pocket Expenses. Employee shall be reimbursed for reasonable out-of-pocket expenses, including reasonable legal fees and expenses, incurred in connection with any judicial or other proceeding to enforce his/her rights under the Executive Employment Agreement or to construe, determine or defend the validity of such Agreement.]

 

3.

The parties agree that the compensation and benefits described above provided Employee by Stereotaxis represent additional compensation and benefits to which Employee would not be entitled absent this Agreement, and constitute the total compensation and benefits payable by Stereotaxis to Employee with regard to Employee’s employment by Stereotaxis and its termination, and that no other compensation, commissions, bonuses, benefits or payments of any kind will be paid other than the amounts set forth above.

 

4.

Employee hereby waives and releases Stereotaxis, its subsidiaries, related, parent and affiliated corporations and business entities, their successors and assigns, and their past and present officers, directors, shareholders, employees and agents (“the Released Parties”) from any and all claims made, to be made, or which might have been made of whatever nature, whether known or unknown, since the beginning of time through the date of this Agreement, including, but not limited to, any claim Employee may have under any agreements which Employee may have with any of the Released Parties, any claims that arose as a consequence of Employee’s employment by Stereotaxis, or arising out of the termination of the employment relationship, or arising out of any acts committed or omitted during or after the existence of the employment relationship through the date of this Agreement. Such release and waiver of claims will include, but shall not be limited to, those claims which were, could have been, or could be the subject of an internal grievance or appeal procedure or an administrative or judicial proceeding filed either by Employee or on Employee’s behalf under any federal, state or local law or regulation, any claim of discrimination under any state or federal statute, regulation or ordinance including, but not limited to Titles 29 and 42 of the United States Code, Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1866, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the Older Worker Benefit Protection Act, the Missouri Human Rights Act, City of St. Louis Ordinance 62710, any other federal, state or local law, ordinance or regulation regarding employment, discrimination in employment or termination of employment, any claims for breach of contract, wrongful termination, promissory estoppel, detrimental reliance, negligent or intentional infliction of emotional distress, or any other actions at common law, in contract or tort, all claims for lost wages, bonuses, commissions, benefits, expenses, severance, service letter, re-employment, compensatory or punitive damages, attorney’s fees, and all claims for any other type of legal or equitable relief. Employee further waives all rights to future employment with Stereotaxis and agrees not to apply for employment with Stereotaxis.

This Release does not affect any vested rights Employee may have under any retirement plan of Stereotaxis.

 

5.

Employee covenants not to sue or otherwise make any claims against Stereotaxis or any other party released herein with respect to any claim released pursuant to this Agreement.

 

6.

By execution of this document, Employee expressly waives any and all rights to claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (the “ADEA”).

 

 

(a)

Employee acknowledges that Employee’s waiver of rights or claims refers to rights or claims arising under the ADEA is in writing and is understood by Employee.

 

 

(b)

Employee expressly understands that by execution of this document, Employee does not waive any rights or claims under the ADEA that may arise after the date the waiver is executed.

 

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(c)

Employee acknowledges that the waiver of Employee’s rights or claims arising under the ADEA is in exchange for the consideration outlined in this Agreement which is above and beyond that to which Employee is entitled.

 

 

(d)

Employee acknowledges that Stereotaxis expressly advised Employee to consult an attorney of Employee’s choosing prior to executing this document and that Employee has been given a period of not less than forty-five (45) days within which to consider this Agreement.

 

 

(e)

Employee acknowledges that Employee has been advised by Stereotaxis that Employee is entitled to revoke (in the event Employee executes this document) Employee’s waiver of rights or claims arising under the ADEA within seven (7) days after executing this document by notifying Stereotaxis in writing at: Stereotaxis, 4320 Forest Park Avenue, Suite 100, St. Louis, Missouri 63108, Attn: VP of Human Resources that Employee intends to revoke this waiver and that said waiver will not and does not become effective or enforceable until the seven (7) day period has expired. Employee agrees that payment of monies due under this executed and unrevoked waiver shall not be payable until the seven (7) day revocation period has expired and Employee has not revoked this waiver.

 

7.

Employee agrees that the terms and provisions of this Agreement and the fact and amount of consideration paid pursuant to this Agreement shall at all times remain confidential and not be disclosed to anyone not a party to this Agreement, other than (a) to the extent disclosure is required by law, or (b) to Employee’s spouse, attorneys, accountant and tax advisors who have a need to know in order to render Employee professional advice or service. Employee agrees to ensure said individuals maintain such confidentiality.

 

8.

Employee agrees not to (a) disclose or use confidential information of Employer required to be kept confidential under the Employment Agreement, (b) violate any covenants of non-competition or any other surviving terms or conditions of the Employment Agreement, (c) disparage Employer or make or solicit any comments, statements, or the like to the media or to any third party that may be considered to be derogatory or detrimental to the good name and/or business reputation of Employer, including its directors, officers, employees, agents, representatives and customers.

 

9.

Employee agrees to promptly return to Stereotaxis any and all electronic media files, company keys, company vehicles, credit cards, equipment, documents, papers, records, notes, memoranda, plans, files, and other records containing information concerning Stereotaxis or its employees, customers, or operations, and any other information or materials required to be returned pursuant to the Employment Agreement.

 

10.

Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be contrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law, government regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the provisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.

 

11.

The existence and execution of this Agreement shall not be considered, and shall not be admissible in any proceeding, as an admission by Stereotaxis or anyone released hereby, of any liability, error, violation or omission.

 

12.

This Agreement shall be governed by, and construed and interpreted according to, the laws of the State of Missouri and whenever possible, each provision herein shall be interpreted in such manner as to be effective or valid under applicable law.

 

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13.

The parties acknowledge this Agreement constitutes the entire agreement between them superseding all prior written and oral agreements or understandings between them, with the exception of any terms and conditions of the Employment Agreement that survive its termination.

 

14.

This Agreement may not be modified, altered or changed except by written agreement signed by the parties hereto.

 

15.

Employee acknowledges that the only consideration for Employee signing this Agreement are the terms stated above and that no other promise, agreement, statement or representation of any kind has been made to Employee by any person or entity to cause Employee to sign this Agreement, and that Employee (a) has read this Agreement, (b) has had a reasonable amount of time to consider its terms, (c) is competent to execute this Agreement, (d) has had an adequate opportunity to discuss this Agreement with an attorney and has done so or has voluntarily elected not to do so, (e) fully understands the meaning and intent of this Agreement, and (f) is voluntarily executing it of Employee’s own free will.

AGREED TO AND ACCEPTED:

 

 

Employee

 

STATE OF _____________

  

)

  

)

COUNTY OF _______________

  

)

COMES NOW             , who states to me that he/she has read and understands the foregoing Agreement and agrees to and accepts its terms and conditions as a free act of his/her own volition.

Subscribed and sworn to before me this          day of             .

 

 

Notary Public

My Commission Expires:

 

STEREOTAXIS:

By:

 

 

Date:

 

 

 

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