Exhibit 10.6 to 8-K
[Letterhead of Diomed]
February 15, 2005
Xx. Xxxxx Xxxxxx
c/o Diomed Limited
One Dundee Park
Andover, MA 01810
Dear Xxxxx:
This letter refers to the agreement dated September 4, 2001, between you and
Diomed, Ltd. (the "Company") (the "Agreement"). After consideration by the
Compensation Committee of the Board of Directors of Diomed Holdings, Inc., the
Company has determined to extend to you a right to receive severance pay that
may become payable under certain circumstance set forth below in this letter.
Subject to your acceptance of the following terms and conditions, the Company
proposes to amend the Agreement by the following new Section 18 thereto:
"18. ADDITIONAL SEVERANCE.
If the Company terminates your employment without Cause (as defined
below in this Section), you shall be entitled to receive as severance
an amount equal to twelve (12) months of your annual base salary at the
time in effect (including the three (3) month notice period provided
for in Section 11.3 of the Agreement) and subject to deduction of
income tax and national insurance contributions as appropriate as
liquidated damages in full and final settlement of all your claims
arising from such termination, payable in a single lump sum payable
within ten (10) business days of the date on which you receive notice
of termination of employment;
provided, that the Company shall have no obligation to make any
severance payment to you
(i) to the extent permitted under applicable law, unless and until you
execute and deliver to the Company compromise agreement which satisfies
the conditions regulating compromise agreements under s.203 of the
Employment Rights Act and any other acts which may be applicable in
full satisfaction of all claims arising from the termination of your
employment, or
(ii) if you breach your obligation not to compete with the Company or
not to divulge confidential information of the Company as set forth in
the Agreement, or
(iii) if you voluntarily terminate your employment.
For all purposes of the Agreement, "Cause" shall mean:
(i) your embezzlement, willful breach of fiduciary duty or fraud with
regard to the Company or any of the Company's assets or businesses;
(ii) your conviction of any criminal offense (other than a traffic
violation);
(iii) your behavior, which is likely in the reasonable opinion of the
Company to prejudice the interests or reputation of the Company, or;
(iv) any other breach by you of a material provision of the terms of
your employment hereunder that remains uncured for thirty (30) days
after written notice thereof is given to you. If the Company terminates
your employment for Cause, the Company shall have no further obligation
or liability to you relating to your employment hereunder, or the
termination thereof, other than for your base salary earned but unpaid
through to the date of termination."
Except as expressly set forth herein, the Agreement will remain in full force
and effect without further amendment of any other provision thereof.
To indicate your agreement with the foregoing, please sign in the space provided
below and return an original executed counterpart to me, whereupon the
Agreement, as amended hereby, will be a binding and enforceable agreement
between you and the Company.
Very truly yours,
/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
President and Chief Executive Officer
Accepted and agreed to:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
