Exhibit 10.35
EMPLOYMENT CONTRACT
THE UNDERSIGNED:
(1) NSI Netherlands B.V., (the "Company") whose registered office is in
Amsterdam, The Netherlands and whose place of business is at Xxxxxxxxxxxxxx
00 (1014 BV) for these presents lawfully represented by Xxxx Xxxxxxxxx; and
(2) Xxxx Xxxxxx (the "Employee") residing at The Hague, The Netherlands.
HEREBY AGREE AS FOLLOWS:
1. Commencement and term of employment
1.1 As of November the Employee shall enter the service of the Company.
1.2 This Agreement has been entered into for an indefinite period of time and
may be period as may be required by law, the term of notice to expire on
the last day of a calendar month. terminated by either party by notice
given in writing observing two (2) months' notice or such longer period as
may be required by law, the term of notice to expire on the last day of as
calendar month. This Agreement shall in any event end on the last day of
the calendar month in which the Employee reaches the pensionable age
applicable to him, without any prior notice of termination being required.
1.3 The first two (2) months of the Employee's employment hereunder shall be a
trial period during which either party may terminate this Agreement with
immediate effect without being required to give any reason and without
incurring any liability for damages to the other party.
2. Position and duties
2.1 In the Company's service hereunder the Employee shall have the position of
President. He shall perform all the work required thereto. The Employee
shall act in his employment in accordance with the general and/or specific
directions and instructions of the Company.
2.2 The Company reserves the right, within the limits of what is reasonable, to
make changes to the Employee's position and to modify the conditions of
employment of the Employee accordingly.
2.3 The Employee agrees that he shall do and omit anything which a good
Executive ought to do or refrain from doing and the he shall devote all his
energy and skill to the Company and shall promote the Company's interests
to the best of his knowledge and ability.
2.4 The usual working time shall be forty (40) hours per week. The usual
working days are Monday to Friday.
2.5 The Employee's work location shall be in Amsterdam, The Netherlands.
Notwithstanding this the Employee agrees that he shall perform his work at
a different location than the place where the work is normally done and/or
at different days or hours than those which normally apply, unless due to
special circumstances the Employee cannot be required to do so.
3. Salary holiday allowance stock options & sign on bonus
3.1 The Employee shall receive a salary of NLG 250,000 gross per month, payable
in arrears no later than on the last day of every calendar month. At the
end of each calendar year the Company shall decide whether or not to
increase the Employee's salary.
3.2 The Employee shall be entitled to a holiday allowance of 8% of the gross
total salary received by him in the twelve (12) months preceding the month
of payment, that allowance to be paid on the last day of May of every
calendar year. In the event of premature termination of this Agreement the
Employee shall receive a pro rata part of the holiday allowance such as it
has accrued due on the date of termination.
3.3 The Employee shall be entitled to receive 50,000 stock options to purchase
NSI stock at fair market price on the date of grant per the terms &
conditions outlined in Annex A.
3.4 The Employee shall receive a "sign on bonus" of NLG 38,149 "gross" within
thirty (30) days after being employed (assuming employed not later than
November 1996).
4. Business expenses
4.1 As compensation for business telephone charges incurred by the Employee
during his actual work the Employee shall receive every two (2) months the
amount of the telephone xxxx received by him over that period reduced by
the minimum employee contribution as prescribed by the Dutch Inland Revenue
at that time, if and to the extent that his private use does not exceed the
fiscal maximum prescribed in this context.
-2-
4.2 Any expenses which the Employee has reasonably incurred in the discharge of
his duties shall be reimbursed to the Employee upon presentation of bills
and proofs of payment. Expense claims are to be presented without thirty
(30) days from the date when the expenses concerned were incurred.
5. Company Car
For the purposes of performing his function the Employee shall be provided
by the Company with a vehicle of a list value of NLG 75,000 maximum ("ex-
VAT"). The Company shall pay all expenses relating to the use of the car,
with the exception of the cost of fuel used on private travel of the
Employee (including holidays) abroad and any tax and social security
contributions levied on account of a company car being provided as part of
an employee's remuneration, which costs, tax and contributions shall be
paid by the Employee.
6. Pension
The Employee and his surviving relations shall have the benefit of the
Companies pension plan. The Company agrees to contribute 12% of the annual
gross salary of the Employee to the individual pension plan and will be
paid once a year at the end of each calendar year.
7. Other insurance
Upon presentation of the xxxx concerned and of proof of payment the Company
shall reimburse to the Employee a gross amount equivalent to 100% of the
premium of a medical insurance policy to be taken out by him for the
benefit of himself and his family, provided that the gross amount so
contributed by the Company shall not exceed the maximum contribution which
employers are required to pay under the State Health Insurance Fund Act
("Ziekenfondswet").
8. Holidays
For each full calendar year during which his employment hereunder
continues, the Employee shall be entitled to twenty (20) work days' holiday
on full pay; In addition to all Dutch public holidays, to be taken with the
prior approval of the Company. Holidays not taken within two (2) years
after the calendar year during which they have accrued shall be forfeited
without any right of compensation therefore.
9. Illness or disablement
9.1 In the event of the Employee's incapacity to work on account of illness or
disablement the Company shall for a maximum period of twelve months, but
until no later than the date when the Employee's employment hereunder ends
(if that
-3-
date is the earlier), continue to pay 100% of the salary as specified in
Article 3 of this Agreement, such to deduction of any benefits to be
received by the Employee under the social security laws and/or benefits
under any other relevant insurance taken out by the Company.
9.2 During the period specified in paragraph 9.1 the Company shall continue to
pay the premiums referred to Article (6) and (7) at any rate to the extend
that such premiums are under said Articles to be borne by the Company and
are not on any other account not payable.
9.3 For the purposes of this Article and Articles (4) and (5) periods of
incapacity to work following each other at intervals of less than four
weeks shall be regards as one consecutive period of incapacity to work.
9.4 On pain of forfeiture of his entitlement to continued payment of salary
pursuant to this Article, the Employee must strictly comply with the
guidelines and instructions given by or on behalf of the Company regarding
sick leave and if so requested must co-operate in any medical examination
with regard thereto.
10 Side activities/remuneration from third parties
10.1 During his employment hereunder the Employee shall not be permitted to
perform any paid or unpaid side activities without prior written approval
of the Company.
10.2 The Employee shall not accept any monies or other remuneration from third
parties in connection with his work for the Company and/or the companies
affiliated with the Company.
11. Confidentiality/non-disclosure and Intellectual property rights
11.1 During his employment hereunder as well as after its termination-
irrespective of the manner in which and the reasons for which his
employment maybe terminated-the Employee shall treat as strictly
confidential and not disclose to third parties, whether directly or
indirectly, in any form or manner whatsoever, any information which comes
to his knowledge regarding the business and interest of the Company and/or
the companies affiliated with the Company and/or its customer and other
business relations, all this in the broadest sense, unless the discharge of
his duties as President of the Company requires the disclosure of such
information to third parties on a need-to-know basis.
11.2 In the event that the Employee is suspended and upon termination of his
employment hereunder-irrespective of the manner in which and the reasons
for which his employment may be terminated-the Employee shall at the
Company's first request to that effect surrender to the Company all
property of the Company in his possession as well as all documents which in
any way whatever relate to the
-4-
Company and/or the companies affiliated with the company and/or its
customer and other business relations, all this in the broadest sense, as
well as all copies of such documents and property.
11.3 All intellectual property rights, including but not limited to copyright
and patent, design and trade xxxx rights, in any products, work and/or
services developed by the Employee during or in connection with his
employment hereunder shall vest in the Company.
11.4 The Employee hereby, in so far as necessary, assigns to the Company, which
assignment is hereby accepted by the Company, all intellectual property
rights in any products, works and/or services developed (completely or in
part) by the Employee during or in connection with his employment
hereunder. The Employee agrees that where this assignment (or part
thereof) should at any time prove to be legally invalid, he shall at such
time assign said rights-without imposing any condition thereon-to the
Company by a separate deed.
11.5 In respect of the products, works and/or services referred to in this
Article, the Employee hereby waives any and all moral rights as defined in
Section 25 of the Copyright Act.
11.6 The provisions of this Article imply that both during his employment
hereunder and at any time thereafter the Employee shall not be permitted to
commercially exploit or cause others to commercially exploit in whatever
manner and/or to register or cause others to register to any products,
works and/or services developed by him during or in connection with his
employment hereunder.
11.7 The parties agree that the salary of the Employee is deemed to include
compensation for deprivation (if any) of intellectual property rights.
12. Non-competition
For two (2) years after termination of his employment hereunder-
irrespective of the manner in which and the reasons for which his
employment has been terminated-the Employee shall not without prior written
approval of the Company be permitted to do any of the following in or
outside of the Netherlands"
(a) to work for or be involved with, in any manner, whether directly or
indirectly and whether paid or unpaid, any person, organization,
company, or enterprise pursuing activities in competition with or
similar or related to the activities of the Company and/or the
companies affiliated with the Company, or to have or take any interest
in such organization, company or enterprise;
-5-
(b) to maintain in any manner whatsoever, whether directly or indirectly,
business contacts with any person, organization, company or enterprise
with whom during the last two (2) years preceding the termination of
the Employee's employment the Company
(c) to induce present employees of the Company and/or companies affiliated
with the Company or persons who in the period of two years preceding
the termination of the Employee's employment have been or were
employed by the Company and/or the companies affiliated with the
Company to terminate their employment and/or to hire such present or
former employees.
13. Remedy for breach of contract
13.1 In the event that the Employee commits any breach of Article 10, Article
11 and/or Article 12 he shall forfeit to the Company an immediately payable
penalty of NLG (100,000.00/10,000.00) for each such breach, to be increased
by NLG (2,500/10,000) for each day that any such breach continues, without
prior notice or judicial intervention being required and entirely without
prejudice to the Company's right to demand full compensation for the loss
actually suffered by it and/or to demand specific performance.
13.2 Payment of the penalty referred to in 13.1 shall not release the Employee
from his obligations specified in Articles 10, 11 and 1.
14. Relocation expenses
14.1 The Company agrees to pay for "reasonable moving expenses".
15. Final provisions
15.1 This Agreement shall be governed by and construed in accordance with the
laws of the Netherlands.
15.2 All income tax and social security contributions which an employer must by
law deduct from his employees' salaries and pay to the relevant authorities
shall be so deducted from and paid in respect of all amounts to be paid to
the Employee under this Agreement, unless it follows from the nature of the
payment that it may be made tax-free.
15.3 If at any time it is determined by the Dutch Inland Revenue and/or the
National Insurance Authority that any of the payments to be made to the
Employee under Articles (4) and (5) are (in part) subject to the levy of
income tax and/or social security contributions, the compulsory deductions
shall be made yet and charged to the debit of the Employee. As from such
time the amounts of the relevant
-6-
future payments under Article (4) and (5) shall be reduced to the level at
which such payments may be made tax-free.
15.4 The foregoing constitutes the entire agreement between the parties and
supersedes all agreements and undertakings previously made and given by and
between the Employee and the (bodies of the) Company and/or companies
affiliated with the Company. Variations in or additions to this Agreement
shall be valid only if recorded in a dated document signed by both parties.
[Signature Page Follows]
-7-
In witness whereof this Agreement was executed and signed by the parties in
Amsterdam, Netherlands on October 8, 1996.
The Company
By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Title: President
The Employee
/s/ Xxxx Xxxxxx, M.D.
Xxxx Xxxxxx, M.D.
-8-
EMPLOYMENT AGREEMENT AMENDMENT
------------------------------
AMENDMENT, effective as of the 1st day of July, 1997, by and between
NEUROMEDICAL SYSTEMS, INC., a Delaware corporation with principal executive
offices at Two Executive Boulevard, Suffern, New York 10901-4114 (referred to
herein as "NSI" or the "Company"), and Xxxx Xxxxxx, M.D. (the "Employee").
W I T N E S S E T H :
WHEREAS, NSI Netherlands B.V. is a wholly owned subsidiary of NSI;
WHEREAS, the Employee is currently employed by NSI Netherlands B.V. as
President pursuant to an employment contract between the Employee and NSI
Netherlands B.V., dated October 8, 1996 (the "Existing Agreement");
WHEREAS, NSI is desirous of continuing to employ the Employee of NSI
in such capacity, and the Employee is desirous of continuing to serve NSI in
such capacity, all upon the terms and subject to the conditions hereinafter
provided; and
WHEREAS, NSI, NSI Netherlands B.V. and the Employee desire to amend the
Existing Agreement so as to provide for the addition to the Existing Agreement
of the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, agree as
follows:
1. Compensation.
------------
NSI shall pay to the Employee a base salary at a rate of not less than
NLG250,000 per annum (Two Hundred Fifty Thousand Netherlands Guilders, referred
to hereinafter as the "Base Salary"), in accordance with NSI's ordinary payroll
practices as in effect from time to time during the term of the Existing
Agreement (the "Term").
-9-
2. Indemnification.
---------------
Subject to the provisions of NSI's Certificate of Incorporation and Bylaws,
each as amended from time to time, NSI shall indemnify the Employee to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, for all amounts (including without
limitation, judgments, fines, settlement payments, expenses and attorney's fees)
incurred or paid by the Employee in connection with any action, suit,
investigation or proceeding arising out of or relating to the performance by the
Employee of services for, or the acting by the Employee as an officer or
employee of, NSI, or any other person or enterprise at NSI's request; provided,
however, that NSI shall not be required to indemnify the Employee against any
liability resulting from conduct which is willful, intentional or grossly
negligent. NSI shall use its best efforts to obtain and maintain in full force
and effect during the Term directors' and officers' liability insurance policies
providing full and adequate protection to the Employee for his capacities,
provided that the Board of Directors of NSI shall have no obligation to purchase
such insurance if, in its opinion, coverage is available only on unreasonable
terms.
3. Termination.
-----------
The Employee's employment hereunder shall be terminated upon the Employee's
death and may be terminated as follows:
By NSI for "Cause". A termination for Cause is a termination upon a finding
by NSI that the Employee has (i) intentionally failed to perform reasonably
assigned duties, (ii) engaged in dishonest or willful misconduct in the
performance of his duties, (iii) engaged in a transaction in connection with the
performance of his duties to the Company or any of its Subsidiaries thereof
which transaction is adverse to the interests of the Company or any of its
Subsidiaries and which is engaged in for personal profit by the Employee or (iv)
willfully violated any law, rule or regulation in connection with the
performance of his duties (other than traffic violations or similar offenses).
4. Compensation Upon Termination.
-----------------------------
(a) In the event of the termination of the Employee's employment as a
result of the Employee's death, NSI shall (i) pay to the Employee's estate his
Base Salary through the date of his death and (ii) for the shorter of one (1)
year following his death or the balance of the Term (as if such termination had
not occurred) provide continuation coverage to the members of the Employee's
family under all major medical and other health, accident, life or other
disability plans and programs in which such family members participated
immediately prior to his death.
(b) In the event of the termination of the Employee's employment by NSI
for Cause or by the Employee for any reason, NSI shall pay to the Employee his
Base Salary through the date of his termination and the Employee's entitlement
to any other compensation or benefits shall be determined in accordance with
NSI's plans, policies and practices as in effect from time to time.
(c) In the event that the Employee's employment is terminated by NSI
other than for Cause, for a period of one (1) year following any such
termination, NSI shall (i) continue to pay the Employee the Base Salary in
effect at the time of such termination and (ii) provide continuation coverage
under all accident, life or other disability plans and programs in which the
Employee participated immediately prior to
-10-
such termination, to the extent such benefits continue to be made available to
active employees of NSI. The continuation of Base Salary provided for in clause
(i) of the preceding sentence shall not be reduced by any compensation or other
income that the Employee may earn from subsequent employment or otherwise.
(d) This Section 3 sets forth the only obligations of NSI with respect
to the termination of the Employee's employment with NSI and the Employee
acknowledges that upon his termination of employment he shall not be entitled to
any payments or benefits which are not explicitly provided in the Existing
Agreement, herein above or as otherwise required by law.
[Signature Page Follows]
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year set forth above.
NEUROMEDICAL SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxx, III
-----------------------------------------
Name: Xxxx X. Xxxxxxxx, III
Title: Co-CEO, Vice President of
Corporate Development, Secretary
and General Counsel
NSI NETHERLANDS B.V.
By: Neuromedical Systems, Inc.
By: /s/ Xxxx X. Xxxxxxxx, III
-----------------------------------------
Xxxx X. Xxxxxxxx, III
Co-CEO, Vice President of
Corporate Development,
Secretary and
General Counsel
/s/ Xxxx Xxxxxx, M.D.
-------------------------------------------
Xxxx Xxxxxx, M.D.
-12-
