March 1, 2006
Mr. Alfred Novak
Chief Executive Officer
4350 International Boulevard
Norcross, Ga 30093
Dear Mr. Novak:
Tatum, LLC (Tatum) understands that Novoste Corporation (the Company) desires to extend the employment of Subhash C. Sarda, one of our partners, as an employee of the Company (the Tatum Partner) from March 1, 2006 through to March 31, 2006, and if asked by the Board of Directors of Novoste Corporation, an additional extension through April 30, 2006, in accordance with Mr. Sardas Amendment No. 1, dated to the Letter Agreement with Novoste Corporation dated November 11, 2005. It is understood that Tatum and the Tatum Partner will do, or cause such work to be done as is necessary to properly execute the office of the Chief Financial Officer of Novoste Corporation.
Although the Tatum Partner will dedicate substantially all of his business time and attention to the Company, the Company acknowledges that the Tatum Partner is and will remain a partner in our firm so that he or she will have access to our firms resources for use in his or her employment with the Company. This Interim Executive Services Agreement sets forth the rights of the Company, through the Tatum Partner, to use such resources for the benefit of the Company and for the payment for such services.
Since the Tatum Partner will be under the control and direct management of the Company, and not Tatum, Tatums obligations to the Company are exclusively those set forth in this agreement. This document will serve as the entire agreement between the Company and Tatum.
The Company will pay directly to Tatum a fee of $2,770 on a bi-weekly basis (Resource Fee) as full compensation for resources provided by Tatum.
Novoste will continue to pay Subhash Sarda in accordance with his Amended Letter Agreement.. In the event that Novoste extends the term of this agreement with Tatum Novoste shall have the right to extend the agreement for Subhash Sarda. If the extended agreement with Tatum is for part time services, compensation to Subhash Sarda, will be reduced on the same basis as the reduction in payment to Tatum. For purposes hereof, (i) Salary means all compensation, including retention and other bonuses, paid to Tatum Partner, except for benefits (including medical benefits subsidy paid to Tatum Partner). All compensation payable or deliverable to Tatum is referred to herein as the Resource Fee.
Payments to Tatum should be made by direct deposit through the Companys payroll, or by an automated clearing house (ACH) payment at the same time as payments are made to the Employee. If such payment method is not available and payments are made by check, Tatum will issue invoices to the Company, and the Company agrees to pay such invoices no later than ten (10) days after receipt of invoices.
Company agrees to pay Tatum and to maintain a security deposit of $5,540 for the Companys future payment obligations to Tatum under this agreement (the Deposit). If the Company breaches this agreement and fails to cure such breach as provided in this agreement, Tatum will be entitled to apply the Deposit to its damages resulting from such breach. Upon termination or expiration of this agreement, Tatum will return to the Company the balance of the Deposit remaining after application of any amounts to unfulfilled payment obligations of the Company to Tatum as provided for in this agreement.
This agreement will terminate immediately upon the earlier of the effective date of termination or expiration of the Tatum Partners employment with the Company or upon the Tatum Partner ceasing to be a partner of Tatum.
In the event that either party commits a breach of this agreement and fails to cure the same within seven (7) days following delivery by the non-breaching party of written notice specifying the nature of the breach, the non-breaching party will have the right to terminate this agreement immediately effective upon written notice of such termination.
Hiring Tatum Partner Outside of Agreement
During the twelve (12)-month period following termination or expiration of this agreement, other than in connection with another Tatum agreement, the Company will not solicit the employment of the Tatum Partner, or engage the Tatum Partner as an independent contractor, to render services of substantially the same nature as those for which Tatum is making the Tatum Partner available pursuant to this agreement except if the Tatum Partner is no longer a partner or otherwise employed by Tatum. The parties recognize and agree that a breach by the Company of this provision would result in the loss to Tatum of the Tatum Partners valuable expertise and revenue potential and that such injury will be impossible or very difficult to ascertain. Therefore, in the event this provision is breached, Tatum will be entitled to receive as liquidated damages an amount equal to forty-five percent (45%) of the Tatum Partners Annualized Compensation (as defined below), which amount the parties agree is reasonably proportionate to the probable loss to Tatum and is not intended as a penalty. If, however, a court or arbitrator, as applicable, upon application of or suit filed by the Company, determines that liquidated damages are not appropriate for such breach, Tatum will have the right to seek actual damages. The amount will be due and payable to Tatum upon written demand to the Company. For this purpose, Annualized Compensation will mean the Tatum Partners most recent annual Salary and the maximum amount of any bonus for which the Tatum Partner was eligible with respect to the then current bonus year.
The Company will provide Tatum or the Tatum Partner with written evidence that the Company maintains directors and officers insurance in an amount reasonably acceptable to the Tatum Partner at no additional cost to the Tatum Partner, and the Company will maintain such insurance at all times while this agreement remains in effect.
Furthermore, the Company will maintain such insurance coverage with respect to occurrences arising during the term of this agreement for at least three years following the termination or expiration of this agreement or will purchase a directors and officers extended reporting period, or tail, policy to cover the Tatum Partner.
Disclaimers, Limitations of Liability & Indemnity
It is understood that Tatum does not have a contractual obligation to the Company other than to make its resources available to the Tatum Partner (by virtue of the Tatum Partner being a partner in Tatum) for the benefit of the Company under the terms and conditions of this agreement. The Resource Fee will be for the resources provided. Tatum assumes no responsibility or liability under this agreement other than to render the services called for hereunder and will not be responsible for any action taken by the Company in following or declining to follow any of Tatums advice or recommendations.
Tatum represents to the Company that Tatum has conducted its standard screening and investigation procedures with respect to the Tatum Partner becoming a partner in Tatum, and the results of the same were satisfactory to Tatum. Tatum disclaims all other warranties, either express or implied. Without limiting the foregoing, Tatum makes no representation or warranty as to the accuracy or reliability of reports, projections, forecasts, or any other information derived from use of Tatums resources, and Tatum will not be liable for any claims of reliance on such reports, projections, forecasts, or information. Tatum will not be liable for any non-compliance of reports, projections, forecasts, or information or services with federal, state, or local laws or regulations. Such reports, projections, forecasts, or information or services are for the sole benefit of the Company and not any unnamed third parties.
In the event that any partner of Tatum (including without limitation the Tatum Partner to the extent not otherwise entitled in his or her capacity as an officer of the Company) is subpoenaed or otherwise required to appear as a witness or Tatum or such partner is required to provide evidence, in either case in connection with any action, suit, or other proceeding initiated by a third party or by the Company against a third party, then the Company shall reimburse Tatum for the costs and expenses (including reasonable attorneys fees) actually incurred by Tatum or such partner and provide Tatum with compensation at Tatums customary rate for the time incurred.
As a condition for recovery of any liability, the Company must assert any claim against Tatum within three (3) months after discovery or sixty (60) days after the termination or expiration of this agreement, whichever is earlier.
Tatum will not be liable in any event for incidental, consequential, punitive, or special damages, including without limitation, any interruption of business or loss of business, profit, or goodwill.
If the parties are unable to resolve any dispute arising out of or in connection with this agreement, either party may refer the dispute to arbitration by a single arbitrator selected by the parties according to the rules of the American Arbitration Association (AAA), and the decision of the arbitrator will be final and binding on both parties. Such arbitration will be conducted by the Atlanta, Georgia office of the AAA. In the event that the parties fail to agree on the selection of the arbitrator within thirty (30) days after either partys request for arbitration under this paragraph, the arbitrator will be chosen by AAA. The arbitrator may in his discretion order documentary discovery but shall not allow depositions without a showing of compelling need. The arbitrator will render his decision within ninety (90) days after the call for arbitration. The arbitrator will have no authority to award punitive damages. Judgment on the award
of the arbitrator may be entered in and enforced by any court of competent jurisdiction. The arbitrator will have no authority to award damages in excess or in contravention of this agreement and may not amend or disregard any provision herein. Notwithstanding the foregoing, no issue related to the ownership of intellectual property will be subject to arbitration but will instead be subject to determination by a court of competent jurisdiction, and either party may seek injunctive relief in any court of competent jurisdiction.
Tatum will be entitled to receive all reasonable costs and expenses incidental to the collection of overdue amounts under this agreement, including but not limited to attorneys fees actually incurred.
Neither the Company nor Tatum will be deemed to have waived any rights or remedies accruing under this agreement unless such waiver is in writing and signed by the party electing to waive the right or remedy. This agreement binds and benefits the successors of Tatum and the Company.
Neither party will be liable for any delay or failure to perform under this agreement (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such partys reasonable control.
The terms of this agreement are severable and may not be amended except in a writing signed by Tatum and the Company. If any portion of this agreement is found to be unenforceable, the rest of the agreement will be enforceable except to the extent that the severed provision deprives either party of a substantial portion of its bargain.
The provisions in this agreement concerning payment of compensation and reimbursement of costs and expenses, limitation of liability, directors and officers insurance, and arbitration will survive any termination or expiration of this agreement.
This agreement will be governed by and construed in all respects in accordance with the laws of the State of Georgia, without giving effect to conflicts-of-laws principles.
Nothing in this agreement shall confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns and the Tatum Partner.
Each person signing below is authorized to sign on behalf of the party indicated, and in each case such signature is the only one necessary.
Bank Lockbox Mailing Address for Deposit and Resource Fee only:
Electronic Payment Instructions for Deposit and Resource Fee:
|Routing Number:||For ACH Payments:|
Please sign below and return a signed copy of this letter to indicate the Companys agreement with its terms and conditions.
We look forward to serving you.
Area Managing Partner for TATUM, LLC
Acknowledged and agreed by:
|Title:||President and Chief Executive Officer|
|Date:||March 9, 2006|