Exhibit 10.5.b
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (“Agreement”) is made and entered into by and
between BEVIL J. HOGG (hereinafter “HOGG” or
“you” or “your”), and STEREOTAXIS, INC.
(“Company” or “we” or “us” or
“our”), to be effective as of November
, 2008 (the “Effective Date”).
For and in consideration of the following promises, the parties
agree to the following:
WHEREAS, you and we have entered
into that certain Restated At–Will Employment Agreement which
you signed on or about March 16, 2006 (the “Restated
Agreement”); and
WHEREAS, you have indicated to us
your earnest desire to spend your time and energies to satisfy a
variety of interests and in that regard you have advised us of your
intention to resign and take retirement and in that light we have
mutually agreed that your regular full time employment with us will
end on December 31, 2008 (“Separation Date”);
and
WHEREAS, you and we desire to enter
into this Agreement to supplement and amend in their entirety the
terms in the Restated Agreement, and to otherwise release any
claims thereunder and otherwise terminate the obligations
thereunder as set forth herein; and
WHEREAS, you and we desire to enter
into such other arrangements and terms as are mutually satisfactory
to both parties to accomplish the above objectives, including, but
not limited to, any issues that might arise out of the transition
of your current duties with us;
NOW THEREFORE, for and in
consideration of the mutual covenants, releases, and undertakings
hereinafter set forth, and for other good and valuable
consideration, which each party hereby acknowledges, it is agreed
as follows:
1. Payments and
Benefits . Company
will provide the payments and benefits described in this Paragraph
1 in consideration and exchange for and subject to your promises,
agreements, and obligations set out in this Agreement.
(A)
Payments . Subject to the offsets
provided in Paragraphs 1(D) and 1(G) below, you and we agree that
we shall pay you forty-eight (48) semi-monthly installments,
each in the amount of $16,666.67, less all legally required
federal, state, and local tax withholdings and any other
deductions, such as those for medical and dental insurance, which
are made in amounts then required of our employees. Such
semi-monthly installments shall be made in accordance with the
Company’s normal payroll practices, which are currently on
the 15 th and 30 th of each month, with the last
installment payment on December 30, 2010. Each installment
payment required under this Section 1(A) shall be considered a
separate payment under Section 409A of the Internal Revenue
Code.
(B) Rights To Equity
Awards .
(i) A complete list
of your outstanding equity awards (except for awards that have been
fully exercised by you prior to the Separation Date (as defined
below)) is set forth on Schedule A . In addition to
the payments set forth above, the number of stock options, stock
appreciation rights or other equity awards subject to vesting that
would have vested over the 24 month period following your
Separation Date shall be automatically fully vested as of the date
of the Separation Date. Otherwise said, as of
December 31 st , 2008 you will be vested in
Seven Hundred Sixty-Nine Thousand Seven Hundred Seventy Nine
(769,779) outstanding options to purchase common stock as
specifically set forth on Schedule A hereto.
Accordingly, you will thereafter have an exercise period of two
(2) years next following your Separation Date, each option
being exercisable by five (5) business days prior written
notice of exercise to the Company.
(ii) With respect to your interest
in Performance Based Restricted shares (“PBRs”), you
specifically agree to relinquish the PBRs issued to you in June
2005 and in February 2006, numbering eighty-five thousand nine
hundred (85,900) shares, in exchange for the grant of
twenty-one thousand four hundred seventy five (21,475) Time
Based Restricted Shares (“TBRs”), all rights to which
shall vest in full upon your retirement on December 31, 2008.
The Company shall grant you the said TBRs upon execution of this
Agreement, and you acknowledge and agree this grant and the
acceleration of vesting to the Separation Date constitute good and
valuable consideration for any present or future interest you may
have had in the PBRs being relinquished, which you shall return to
the Company on the date of execution of this Agreement. The
procedures for the exercise of TBRs shall be governed by the TBRs
plan as adopted by the Company and applicable to all holders of
TBRs.
(iii) To the extent the foregoing is
contrary to the terms of any other agreements between the parties,
the provisions of this Agreement shall control and be deemed to
amend and supersede such contrary provisions. You and we jointly
acknowledge and agree that this will cause any outstanding equity
awards that are incentive stock options to be treated as
non-qualified options.
(C) Medical and Dental
Insurance Continuation . 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 two
years following your Separation Date, 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 December 31, 2008.
(D) Offsets
. Any or all of the payments set out
in Paragraph 1(A) above shall be offset by any sums you receive
from other employment or from performing consulting services for
any other individual or entity, regardless of whether such
employment or consulting services are on a full-time or part-time
basis, and upon our request you agree to provide us with reasonably
satisfactory documentation of same as a condition of further
payments to you under Paragraph 1(A). Excluded from this right of
offset are fees received by you arising from service as a board
member or trustee of charitable or civic organizations.
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(E) Management Bonus
Plan . You shall
continue to be eligible to participate in the 2008 Quarterly Bonus
Plan and 2008 Annual Management Bonus Plan during and through the
fourth quarter of fiscal year 2008, in accordance with and subject
to the terms and conditions set forth in such plans. However, you
specifically covenant and agree that in consideration for the above
payments and vesting benefits accruing to you, that you will not
receive any employee equity grants or otherwise have any claims to
any Incentive Bonus arrangements after December 31,
2008.
(F) Board of
Directors . It is
anticipated that you will continue as a member of the Board of
Directors at least through the end of your current term (i.e. the
date of the 2010 Annual Shareholders meeting). You agree that you
shall receive only those benefits as a member of the Board as shall
be approved by the Compensation Committee of the Board and in a
manner consistent with all board members for the period of your
service as a member and those shall cease as and when you cease to
be retained as a Board member. You specifically agree that you are
not eligible to receive any equity grants for your service on the
Board of Directors, including without limitation any automatic
grants provided under the 2002 Non-Employee Director Plan. To the
extent you receive cash compensation for your service as a member
of the Board (including any committees), such amounts shall offset
the payments otherwise payable to you pursuant to Paragraph 1(A)
above. Company shall maintain at its expense for your benefit the
current or substantially equivalent directors and officers
liability insurance coverage (which includes a tail to cover claims
made against you during a period after such time as you are
(i) no longer an officer of the Company, and (ii) no
longer a director of the Company). In addition, the Indemnification
Agreement dated March 30, 2004, between Company and you
(“Indemnification Agreement”) shall continue upon and
after the execution of this Agreement, and the same is hereby
ratified and confirmed by the parties.
(G) Paid Time
Off . At the first
normal payroll date after December 31, 2008, the Company will
pay to your designated account all sums attributable to accrued,
but unused, paid time off which the parties determine to remain as
of December 31, 2008.
(H) Administrative Assistance;
Expenses . The
Company agrees to make available to you reasonable administrative
and clerical assistance as necessary from time to time after the
Separation Date to support you in effectively discharging your
duties in your role with the Company. The Company will reimburse
you for the same type of business expenses for which Board members
of the Company are reimbursed in accordance with Company policy,
upon submission to the Company of supporting documentation
concerning the type and amount of such expenses incurred by you in
the discharge of your duties as a director of the
Company.
2. Release of
Claims . In exchange
for the receipt of the consideration/payments set out in Paragraph
1 above and other good and valuable consideration, you and we
hereby agree to relinquish any and all claims under any prior
agreements between us, and do, remise, release and forever
discharge each other and any of our respective parent companies,
affiliate companies, subsidiary companies, both current and future,
and our respective directors, officers, shareholders, employees,
agents, attorneys, successors and assigns (the
“RELEASEES”), from any and all matters, claims,
including but not limited to those which might relate to the
Restated Agreement, and any and all prior agreements which you may
have executed with us or our predecessor entities or affiliated
operations, or demands, damages, causes of action, debts,
liabilities, controversies, judgments and suits of every kind and
nature whatsoever, foreseen or unforeseen, known or
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unknown, which have arisen or could arise
between you and our RELEASEES or between us and your RELEASEES from
matters, actions, or inactions which occurred prior to the
effective date of this Agreement, other than for acts of willful
misconduct or intentional bad faith. The Restated Agreement and
Confidential and Non-Compete Agreement dated June 23, 1997 are
superseded in their entirety; however, nothing herein is intended
to replace or supersede the obligations set out in the
Indemnification Agreement by and between the Parties, which shall
remain in full force and effect.
3. Agreement Not to File Suit
or Other Claims . In
exchange for the receipt of the consideration/payments set out in
Paragraph 1 above, you agree as follows:
(A) Neither one of us will file suit or otherwise
submit any charge, claim, complaint, or action to any agency,
court, organization, or judicial forum (nor will you or we permit
any person, group of persons, or organization to take such action
on our or your behalf) against the other’s RELEASEES arising
out of any actions or non-actions that have occurred on the part of
the RELEASEES up to the Effective Date, other than for acts of
willful misconduct or intentional bad faith. Said claims,
complaints, and actions include, but are not limited to, any claims
you or we may have relating to any aspect of your employment and/or
the separation of that employment, any breach of an actual or
implied contract of employment between you and us, any claim of
unjust or tortious discharge, any claim related to the issuance or
non-issuance of stock, any common-law claim (including, but not
limited to, fraud, negligence, intentional or negligent infliction
of emotional distress, negligent hire/retention/supervision, or
defamation), or any claims of violations arising under the Civil
Rights Act of 1866, 42 U.S.C. § 1981, the Civil Rights
Act of 1964, 42 U.S.C. § 2000 et seq ., as
amended by the Civil Rights Act of 1991, the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq .
(including, but not limited to, the Older Worker Benefit Protection
Act), the Employee Retirement Income Security Act, 29 U.S.C.
§ 1001 et seq ., the Fair Labor Standards
Act of 1938, 29 U.S.C. § 201 et seq ., the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq ., the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq ., the Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq ., the
Missouri Human Rights Act, the Missouri Worker’s Compensation
Act, the Missouri Employment Security Act, § 288.010
RSMo. et seq ., the Missouri Service Letter Statute,
§ 290.140 RSMo., or any other relevant federal, state, or
local statutes or ordinances governing or concerning
employment.
(B) In the event that any person or entity should
bring such a charge, claim, complaint, or action on your or our
behalf, you and we hereby waive and forfeit any right to recovery
under said claim and will exercise every good faith effort to have
such claim dismissed. For purposes of the Age Discrimination in
Employment Act (“ADEA”) only, this Agreement does not
affect the EEOC’s rights and responsibilities to enforce the
ADEA (including a challenge to the validity of the waiver of claims
in this Agreement), nor does this Agreement prohibit you from
filing a charge under the ADEA with the EEOC or participating in
any investigation or proceeding conducted by the EEOC.
Nevertheless, you agree the RELEASEES will be shielded against any
recovery by you, provided this Agreement is valid under applicable
law.
(C) You and we waive any right to participate in any
settlement, verdict or judgment in any pending or threatened class
action against your and our respective RELEASEES arising from
conduct occurring before the effective date of this Agreement, and
that you and we waive
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any right to accept anything of value or any
injunctive relief associated with any pending class action against
your and our respective RELEASEES.
(D) If you or we violate this Agreement by suing the
RELEASEES, such violator shall pay all costs and expenses of
defending against the suit incurred by the sued RELEASEES,
including, but not limited to, reasonable attorneys’ fees and
costs of litigation, and that such violator shall hold the
RELEASEES harmless against any judgment which may be rendered
against them. This provision in no way imposes any condition
precedent, any penalty, or any other limitation which adversely
affects your right to challenge this Agreement and its waiver under
the ADEA.
4. No Knowledge of
Injury . You
represent and warrant that you have no present actual knowledge of
any injury, illness or disease to you that is or might be
compensable as a workers’ compensation claim.
5. Release of Benefit
Claims . In exchange
for the consideration/payment set out in Paragraph 1 above, you
further release and waive any claim for any type of compensation or
employee benefits with the RELEASEES, other than claims to benefits
as provided in this Agreement.
6. Vested
Rights . The parties
agree that this Agreement shall not adversely affect, alter, or
extinguish any vested rights you may have with respect to any
401(k) plan to which you are or may be entitled by virtue of your
employment with Company, and nothing in this Agreement will
prohibit you from enforcing your rights to any such 401(k) plan
which would have accrued prior to December 31, 2008. You waive
any and all claims to any other benefits as an employee of the
Company and under the terms of any previously executed agreement
with us.
7. 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
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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.
(iii) “ Restricted
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