Spectranetics
EMPLOYMENT AGREEMENT
The undersigned:
1. THE SPECTRANETICS CORPORATION,
represented by Xxxxx X. XxXxxxxxx,
hereafter referred to as "The Company";
and
2. Xxxxxxxxx Xxx, hereafter referred to as "the Employee";
WHEREAS
The general meeting of shareholders of Spectranetics International B.V. has
appointed the Employee at its meeting of January 8, 1993 as Managing Director
("statutair directeur") of Spectranetics International B.V.
Employee has now accepted the position of Vice President, Sales & Marketing of
the Company as per January 1, 1997, as of which date the hereinafter contained
conditions will apply.
The actual performance of his duties in this respect in the Netherlands will be
minor in relation to his duties as Vice President, Sales & Marketing of the
Company worldwide.
The Parties acknowledge that the position for which the Employee has been
offered and for which the employee has accepted is high within management and
involves worldwide sales of the Company's products. The Parties further
acknowledge that Employee will be privy to the most sensitive of the Company's
information, including, without limitation, trade secrets, lists of customer
identities, list of potential customers, technical information and
specifications,
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marketing materials, marketing plans, promotional strategies, research and
development materials and plans, as well as all other marketing and technical
strategies. The Parties acknowledge that this information is highly sensitive
and valuable to the Company and involves the underpinnings of the Company's
global business. Accordingly, the Parties intend and expect that this Agreement
protect the confidentiality of such information and prevent the use of such
information in competition with the Company's business.
NOW HEREBY AGREE AS FOLLOWS:
Article 1 Employment
1.1 Subject to the terms and conditions of this agreement, the Employee hereby
undertakes to act as Vice President, Sales & Marketing, in the employ of
the Company, and the Company hereby so employs the Employee.
1.2 The function of the Employee is set out in his job description per
attached.
1.3 The Company is entitled to change and/or adapt the function of the Employee
in case this reasonably will be required by the Company.
1.4 The Employee will report to the C.E.O. and President of the Spectranetics
Corporation.
Article 2 Term
2.1 This Agreement shall be effective when executed by both parties, subject to
the conditions set forth herein, and the term and conditions of this
Agreement shall be as set forth herein.
2.2 Employee and the Company agree that employee shall be employed at will and
may be terminated with or without cause at any time. However, the parties
agree that they shall give notice of their intent to terminate this
Agreement six months prior to termination beginning on the last day of the
month in which notice is given.
Article 3 Obligations of the Employee
3.1 In addition to any other obligations imposed by Colorado Common Law,
employee's job description, and as may be imposed upon the employee by
instructions from the company, the employee shall have the following
obligations. Except for the performance of his duties as Managing Director
of Spectranetics International B.V. in the Netherlands, the Employee shall
devote his working time and his best efforts to the Company and its
business and he shall not be engaged or financially interested, in any
manner, in any other employment or business during the term of this
agreement.
3.2 The Employee shall also at all times observe the best interests of the
Company and all subsidiaries/group companies (all the aforementioned
companies hereinafter to be called the "Group Companies").
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3.3 The Employee shall duly observe the directives given by the C.E.O. and
President of the Spectranetics Corporation concerning the general course of
the Company's financial, social and economic policy and its personnel
management.
Article 4 Remuneration
4.1 The Employee shall receive a fixed gross salary of USD 11.800,-- per month,
(including vacation allowance) payable bi-weekly in the gross amount of
$5,446.15.
4.2 The Employee is entitled to receive annual incentive compensation when
those plans exist and in accordance with the annual incentive compensation
plan program in place at that time. It is understood that these plans may
change from time to time. The incentive program for 1997 is described in
annex 1.
4.3 The Employee is entitled to stock options as described in the stock option
plan, annex 2 to the extent and under the terms and conditions set forth in
such stock option plan.
4.4 The Employee is entitled to participate in the Employee Stock Purchase Plan
of The Spectranetics Corporation to the extent and under the terms and
conditions set forth in such Employee Stock Purchase Plan. It should be
noted that as an officer of the corporation the Employee will be subject to
additional restrictions for participation in said plan.
Article 5 Pension
The Employee will stay entitled to participate in the pension plan of
Spectranetics International B.V. to the extent and under the terms and
conditions set forth in such pension plan.
Article 6 Car and Other Reimbursements
The Company will provide a monthly auto allowance in the amount of $750.00 month
to cover the purchase or lease of a vehicle, registration fees, licenses,
maintenance, insurance and applicable income taxes. In addition, for business
use of the vehicle, reimbursement will be provided in the amount of $.09/mile to
cover oil, gas and tires. The Company shall reimburse the Employee's telephone
expenses.
Article 7 Vacation
The Employee shall conform to the current U.S. vacation policy of 20 days of
vacation per annum under this contract, the contract between the Employee and
Spectranetics International B.V. included, such vacation to be taken in
consultation with the Company. The Employee is not allowed to take vacation for
a period longer than three (3) weeks in sequence.
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Article 8 Health-insurance
The Employee shall be entitled to participate in the health insurance plan of
Spectranetics International B.V. to the extent permitted and on the terms and
conditions set forth in such health insurance plan.
Article 9 Illness
9.1 During illness or other inability for work of the Employee, the Company
will supplement the social benefits of the Employee up to 100% (one hundred
percent) of his after tax normal monthly check during a period of one (1)
year. In case the inability for work is interrupted for a period of less
than 30 days, the inability for work is deemed not to have been interrupted
in view of the aforementioned period of one year.
9.2 The Company will provide disability insurance for the Employee after the
period of one year as described in the disability plan of Spectranetics
International B.V.
Article 10 Company Property
Upon termination of this agreement for any reason whatsoever, the Employee shall
immediately deliver to the Company all correspondence, papers, documents,
including without limitation customer lists, and other property belonging to the
Company and all subsidiaries/group companies of the latter both in the
Netherlands and abroad, which may be in his possession or under his control or
which refer to or discuss the company's business.
Article 11 Confidentiality
11.1 The Employee will not provide anyone with confidential business
information, neither during employment nor after termination of employment.
The Employee agrees at all times during the term his employment and
thereafter to hold in strictest confidence, and not to use, except for the
benefit of the Company, or to disclose to any person, firm or corporation,
without the written authorization of the Board of Directors of the Company
("Board"), any proprietary information of the Company. Employee agrees to
obtain the Board's written approval before publishing or submitting for
publication any material (written, verbal or otherwise) that relates to any
work at the Company and/or incorporates any proprietary information.
Employee hereby recognizes that all Proprietary Information will be the
sole property of the Company and its assigns.
11.2 The Employee is forbidden to have, or to show to others, books,
correspondence, drawings, calculations and other documents as well as
copies or notes of the above mentioned ("Proprietary Information"). The
term "Proprietary Information" shall mean any and all confidential and/or
proprietary knowledge, data or information of the Company. By way of
illustration but not limitation. "Proprietary Information" includes a)
trade secrets, inventions, mask works, ideas, processes, formulas, source
and object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, development, designs and techniques (hereinafter
collectively referred to as "Inventions"); and b)
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information regarding plans for research, development, new products,
marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers; and c)
information regarding the skills and compensation of other employees of the
company. Notwithstanding the foregoing, it is understood that "Proprietary
Information" does not include and at all such times, Employee is free to
use information which is generally known to the public or in the trade or
industry, is known to Employee at the time of its first disclosure to
Employee by the Company or becomes known to Employee lawfully from a third
party without any restriction on disclosure, and his own, skill, knowledge,
know-how and experience to whatever extent and in whichever way Employee
may wish.
11.3 All these correspondence, notes, drawings, calculations, etc. must be given
to the Company at the end of employment, even if they are/were addressed to
the Employee.
11.4 The Employee is obliged not to use any information about personnel other
than for the purpose of registration or for the purpose of his job. The
Employee is also obliged not to inform unauthorized persons about
personnel.
11.5 The Employee recognizes that the Company imposes the Employee secrecy of
all particulars regarding the Company and its organization. The Employee is
forbidden to provide any kind of information regarding the Company and its
organization to others.
11.6 The Employee agrees and recognizes that the Company has received and in the
future will receive Proprietary Information from third parties subject to a
duty on the Company's part to maintain the confidentiality of such
information and, in some cases, to use it only for certain limited
purposes. Employee agrees that he owes the Company and such third parties,
both during the term of employment and thereafter, a duty to hold all such
Proprietary Information in the strictest confidence and not to, except as
is consistent with the Company's agreement with the third party, disclose
it to any person, firm or corporation or use it for the benefit of anyone
other than the Company or such third party, unless expressly authorized to
act otherwise by an officer of the Company.
11.7 The Employee agrees that he will not, during his employment with the
Company, in breach of any agreement or unlawfully use or disclose any
confidential information or trade secrets of his former or concurrent
employers or companies, if any, and that he will not bring on to the
premises of the Company any unpublished documents or any property belonging
to his former or concurrent employers or companies unless previously and
specifically consented to in writing by the particular employer or company.
Article 12 Non-Competition
12.1 Employee agrees that during the period of his employment by the Company he
will not, without the company's express written consent, engage or prepare
to engage in any activity in competition with the Company or accept
employment, provide services to, or establish a business relationship with
a business or individual engaged in or preparing to engage in
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competition with the Company. For the period of Employee's employment by
the Company and for one (1) year after the date of his separation from the
Company he will not (a) induce any employee, officer, director, consultant
or independent contractor of the Company to leave the service of the
Company or (b) solicit the business of any client or customer of the
Company (other than on behalf of the Company). If any restriction set forth
in this Section is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
12.2 Customers referred to in Article 12.1 are all business relations to whom
the Company has sold and/or delivered any products during a period of 12
months previous to the termination of this agreement, as well as any
prospects at the date of termination of this agreement.
12.3 Company's business and Company's customers are located worldwide. In
addition, as Vice President, Sales and Marketing for The Spectranetics
Corporation, employee will perform his services through the United States.
Therefore, the parties agree that this non-competition provision is
reasonable in geographic scope with respect to all customers outside the
United States and with respect to employee's participation in equal or
similar companies with business interests within the United States.
12.4 When the Employee leaves the employ of the Company, he agrees to deliver to
the Company (and will not keep in his possession, recreate or deliver to
anyone else) any and all devices, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, other documents or property, together with all copies
thereof (in whatever medium recorded) belonging to the Company, its
successors or assigns whether kept at the Company, home or elsewhere.
Employee further agrees that any property situated on the Company's
premises and owned by the Company, including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with our without notice. Prior to leaving, Employee
agrees to cooperate with the Company in completing and signing the
Company's termination statement for technical and management personnel
confirming the above and his obligations under this Agreement.
Article 13 Rights Upon Termination
13.1 In case of termination of this agreement by the company, without cause or
due to company re-organization (merger, acquisition, internal
restructuring, etc.), the Company will provide one year's severance from
the date notice is given under Article 2.2 and will pay to return the
employee to the Netherlands. Severance will include base salary, benefits,
allowances and reimbursements, in whatever form. Employee acknowledges that
during this one year period, he is bound by the non-competition provision
in Article 12 herein in the same manner as he would be bound if he were
still employed. It should be understood that application of this Article
supersedes the compensation outlined in Article 2.2.
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13.2 Should the Employee be terminated, the Employee, shall be entitled to
exercise to the full extent permitted pursuant to the option agreements and
stock option plan of the company, those stock options which have vested.
All the Stock Options held by the Employee shall remain exercisable after
the termination of his employment for a period of three (3) months, but in
no event beyond ten (10) years from the date of grant set forth in
paragraph 1 of each of the Option Agreements.
13.3 In case the Employee is terminated for good cause, or if employee
terminates his employment hereunder for his convenience, the company shall
pay employee his salary through the date of such termination at the rate in
effect at the time of the notice of termination, and the company shall
thereafter have no further obligations to employee under this Agreement.
For purposes of this agreement, "good cause" shall mean (1) employee fails
to substantially perform his duties hereunder (other than such failure
resulting from executive's incapacity due to physical or mental illness);
or (2) Employee engages in one or more acts of dishonesty or
insubordination or violates a written company policy.
13.4 If the Employee is reassigned back to Europe, this would not be deemed
termination.
13.5 When the Employee leaves the employ of the Company, he agrees to deliver to
the Company (and will not keep in his possession, recreate or deliver to
anyone else) any and all devices, records, data, notes, reports, proposals,
lists correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, other documents or
Article 14 Special Achievements
14.1 If the Employee achieves something, which can be considered a result of his
work by the Company and which can lead to certain rights of industrial or
intellectual property or ownership in the Netherlands or elsewhere, the
Company has a right to those achievements. Included are: inventions,
achievements in industrial designing, computer programs, etc.
14.2 The Employee is obliged, as soon as he has made such an achievement, to
inform the Company immediately.
14.3 If the achievement leads to an appliance for patent, the Company will, if
the Employee wishes, promote that the Employee's name will be mentioned in
the patent.
14.4 All costs resulting from the above-mentioned will be at the Company's
expense.
Article 15 Liquidated Damages
If employee breaches the provisions of Articles 10, 11, 12 and 13, the Company
may pursue its legal and equitable remedies against the employee. However,
employee and company agree that damages for violations of these provisions are
difficult to measure, and that violations of these provisions may cause
irreparable harm. Therefore, the parties agree that, in addition to any other
remedies available to the company, employee shall pay to the company. as
liquidated damages.
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one year's gross salary together with 1% of one year's gross salary for each day
that such act is continued, all without prejudice to all other remedies of the
company, including the right of the company to claim full damages, should these
exceed the liquidated damages or to seek injunctive relief to prevent continued
violations.
Article 16 Medical Examination
On request of the Company, the Employee will, from time to time, be medically
examined.
Article 17 Changes
Changes in this contract must be mutually agreed upon and confirmed in writing.
Article 18 Applicable law
This agreement shall be construed and governed in accordance with the laws of
the State of Colorado, notwithstanding the Employee's activities abroad.
Article 19 Competent Court
Any dispute relating to the provisions of this agreement between parties will be
exclusively settled in the first instance by the Courts in Colorado Springs,
except in the case of a legal provision of mandatory law which stipulates
otherwise.
If the court of competent jurisdiction determines that any term or provision of
this Agreement is invalid or unenforceable, then the remaining terms and
provisions will be unimpaired. Such court will have the authority to modify or
replace the invalid or unenforceable term or provision with a valid and
enforceable term or provision which most accurately represents the Parties'
intention with respect to the invalid or unenforceable term or provision.
Thus signed in duplicate on January 0, 0000 xx Xxxxxxxx Xxxxxxx, Xxxxxxxx, XXX.
/s/ Xxxxx X. XxXxxxxxx /s/ Xxxxxxxxx Xxx
----------------------------- -------------------------------
The Spectranetics Corporation Employee
Xxxxx X. XxXxxxxxx Xxxxxxxxx Xxx
