Exhibit
10.18
[***] A CONFIDENTIAL PORTION OF
THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Cambridge Heart,
Inc.
100 Ames Pond Road
Tewksbury, MA 01876
EMPLOYMENT
AGREEMENT
Effective as of November 24,
2008
Roderick de Greef
c/o Cambridge Heart, Inc.
100 Ames Pond Road
Tewksbury, MA 01876
Dear Roderick:
You have agreed to serve as Chairman
of the Board of Cambridge Heart, Inc. (the “Company”)
commencing November 24, 2008 (the “Effective
Date”), in accordance with the following terms of your
employment by the Company. You are referred to herein as the
“Executive”.
1. EMPLOYMENT AND TERM
: Subject to the terms and conditions set forth in this
Agreement, the Company hereby offers and the Executive hereby
accepts employment. The term of this Agreement (the
“Employment Period”) shall commence on the Effective
Date and end on November 24, 2011, or the date on which your
employment is sooner terminated as provided below. The Employment
Period shall be automatically extended for successive periods of
one year unless either party gives to the other written notice not
less than thirty (30) days prior to the then-current
expiration date that it or he does not wish to extend the term of
this Agreement.
2. CAPACITY AND
PERFORMANCE :
(a) During the Employment Period,
the Executive will serve as the Company’s Chairman of the
Board. During the Employment Period, the Executive shall devote
approximately 50% of a regular work week and his best efforts,
business judgment, skill and knowledge to the advancement of the
business and interests of the Company and to the discharge of his
duties and responsibilities hereunder. The Executive shall comply
with all lawful written policies of the Company in effect from time
to time. The Executive may engage in other business activities and
may pursue personal interests (including, without limitation,
industry civil and charitable activities), and attend to his
personal investments, so long as such activities and interests do
not interfere with or adversely affect the performance of his
duties and responsibilities hereunder.
(b) Subject to the direction and
control of the Board and any committee thereof, the Executive
shall, together with the Chief Executive Officer and Board,
formulate the strategic plan for the Company and, together with the
Chief Executive Officer, oversee the execution of that corporate
strategy. The Executive shall perform such other duties and
responsibilities on behalf of the Company as may be designated from
time to time by the Board, provided that such duties shall be
reasonably consistent with those duties assigned to Chairmen of the
Board in organizations comparable to the Company.
(c) On the Effective Date, the
Executive shall be appointed a member of the Company’s Board
of Directors and shall serve as a member of the Board without
additional compensation. During the Employment Period, at each
annual meeting of the Company’s stockholders at which the
Executive’s membership on the Board has expired, the Company
will nominate the Executive to serve as a member of the Board. Upon
termination of the Executive’s employment with the Company
for any reason, unless the Company’ s Board of Directors
affirmatively requests that the Executive remain on the Board, the
Executive will be deemed to have resigned from the Board
voluntarily as of the last day of employment with the Company; and
at the Board’s request, the Executive shall execute any
documents necessary to reflect such resignation.
(d) The Executive hereby represents
and warrants that the execution of this Agreement and the
performance of his obligations hereunder will not breach or be in
conflict with any other agreement to which the Executive is a party
or is bound and that the Executive is not subject to any covenants
against competition or similar covenants that would affect the
performance of his obligations hereunder. The Executive will not
disclose to or use any proprietary information of a third party
without such party’s consent.
3. SALARY : The
Company shall pay the Executive a base salary at the rate of One
Hundred Twenty Thousand Dollars ($120,000) per annum, payable in
accordance with the payroll practices of the Company for its
executives. Such base salary, as from time to time increased by the
Board in its sole discretion, is hereafter referred to as the
“Base Salary.”
4. STOCK OPTIONS
:
(a) Grant of Stock Option :
The Executive shall receive a stock option (the “Stock
Option”) to purchase Five Hundred Fifty Thousand
(550,000) shares of common stock of the Company. The Stock
Option shall be granted under, and shall be subject to the terms
and conditions of, the Company’s 2001 Stock Incentive Plan
(the “2001 Plan”) and shall otherwise contain such
terms and conditions consistent with the terms and conditions of
options regularly granted to senior executives of the Company. The
Stock Option shall have an exercise price equal to the closing
price for shares of common stock of the Company on the Effective
Date and shall have a term of 10 years. The Executive will have the
right to exercise the Stock Option for a period of 90 days after
the termination of employment (but in no event after the expiration
date of the Stock Option) to the extent that the Executive was
entitled to exercise the Option on the date of such
termination.
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(b) Vesting of Stock Option :
The Stock Option shall become exercisable in three equal annual
installments beginning on the first anniversary of the Effective
Date (the “Annual Vesting Dates”) as follows: 183,333
on November 24, 2009, 183,333 on November 24, 2010, and
183,334 on November 24, 2011. Notwithstanding the foregoing,
upon the occurrence of each of the following events (each, a
“Performance-Based Acceleration Event”), the Stock
Option shall immediately become exercisable with respect to the
lesser of (i) the number of shares set forth opposite each
Performance-Based Acceleration Event below and (ii) the
positive difference between total number of shares under the Stock
Option that are not yet exercisable and the number of shares set
forth opposite the respective Performance-Based Acceleration Event
below. The Performance-Based Acceleration Events are:
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the achievement by the Company of 12-month
trailing revenue of $[***] million
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162,500 shares
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the consummation by the Company of one or more
equity financing transactions in a twelve-month period that result
in the receipt by the Company of sufficient proceeds (net of
transaction fees or expenses or other offsets) to fund the
Company’s operations for a 12-month period as determined in
good faith by the Board
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162,500
shares
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the consummation by the Company of a strategic
distribution agreement
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62,500
shares
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The shares underlying the Stock
Option that become exercisable upon the occurrence of a
Performance-Based Acceleration Event shall reduce the number of
shares that otherwise would next become exercisable on an Annual
Vesting Date following the date of the Performance-Based
Acceleration Event. In no event shall the occurrence of a
Performance-Based Acceleration Event cause the total number of
shares covered by the Stock Option to exceed 550,000
shares.
5. VACATIONS : During
the term of his employment, the Executive shall be entitled to two
(2) weeks of vacation per annum, on terms as provided by the
Company for its other senior executives, to be taken at such times
and intervals as shall be determined by the Executive, subject to
the reasonable business needs of the Company. Vacation time shall
not cumulate from year to year.
6. BENEFITS : During
the term of his employment and subject to any contribution therefor
generally required of employees of the Company, the Executive shall
be entitled to participate in any and all employee benefit plans
from time to time in effect for part-time employees of the Company
generally, except to the extent such plans are in a specific
category of benefits otherwise provided to the Executive. Such
participation shall be subject to (a) the terms of the
applicable plan documents, (b) generally applicable Company
policies and (c) the discretion of the Board or any
administrative or other committee provided for in or contemplated
by such plan. The Company may alter, modify, add to or delete its
employee benefit plans at any time as it, in its sole judgment,
determines to be appropriate, without recourse by the Executive. In
the event that the Executive is not eligible to participate in the
Company’s health insurance
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benefit plan, the Company shall reimburse the
Executive for the cost to the Executive of maintaining his current
family medical insurance coverage, provided that the aggregate
amount of such reimbursement shall not exceed $2,000 per month.
Reimbursement of the Executive’s family medical insurance
coverage costs shall be subject to such reasonable substantiation
and documentation as may be specified by the Company from time to
time.
7. BUSINESS EXPENSES :
The Company shall pay or reimburse the Executive for all reasonable
and necessary business expenses incurred or paid by the Executive
in the performance of his duties and responsibilities hereunder,
subject to reasonable substantiation and documentation as may be
specified by the Company from time to time.
8. TERMINATION OF
EMPLOYMENT : The Employment Period (and thereby the
Executive’s employment hereunder) may be terminated as set
forth below.
(a) Death . In the event of
the Executive’s death during the term hereof, the Employment
Period shall immediately and automatically terminate. In that
event, the Company shall pay to the Executive’s designated
beneficiary or, if no beneficiary has been designated by the
Executive, to his estate, any earned and unpaid Base Salary,
prorated through the date of his death. The Company shall have no
further obligation or liability to the Executive or his
estate.
(b) Disability .
(i) The Company may terminate the
Employment Period, upon notice to the Executive, in the event that
the Executive becomes disabled during his employment hereunder
through any illness, injury, accident or condition of either a
physical or psychological nature and, as a result, is unable to
perform the essential functions of his position hereunder, with or
without reasonable accommodation, for ninety (90) days during
any period of three hundred sixty-five (365) consecutive
calendar days.
(ii) The Board may designate another
employee to act in the Executive’s place during any period in
which the Executive is unable to perform the essential functions of
his position as a result of any illness, injury, accident or
condition of either a physical or psychological nature.
Notwithstanding any such designation, the Executive shall continue
to receive the Base Salary in accordance with Section 3 and
his other benefits pursuant to Section 6, to the extent
permitted by the then-current terms of the applicable benefit
plans, until the Executive becomes eligible for disability income
benefits under any disability income plan provided by the Company
or until the termination of his employment, whichever shall first
occur.
(iii) If any question shall arise as
to whether during any period the Executive is disabled through any
illness, injury, accident or condition of either a physical or
psychological nature so as to be unable to perform the essential
functions of his position hereunder, the Executive may, and at the
request of the Company shall, submit to a medical examination by a
physician designated by agreement between the Company and the
Executive or his duly appointed guardian, if any, to determine
whether the Executive is so disabled, and such determination shall
for the purposes of this Agreement be conclusive of the issue. If
such question shall arise and the Executive shall fail to submit to
such medical examination, the Company’s determination of the
issue shall be binding on the Executive.
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(c) By the Company for Cause
. The Company may terminate the Employment Period hereunder for
Cause (as defined below) at any time upon notice to the Executive
setting forth in reasonable detail the nature of such Cause. The
following, as determined by the Board in its reasonable and good
faith judgment, shall constitute Cause for termination:
(i) conviction or plea of nolo contendere in a court of law of
(x) any felony or (y) any misdemeanor involving
dishonesty, breach of trust, misappropriation or illegal narcotics,
(ii) commission of any act involving theft, embezzlement,
fraud, dishonesty or moral turpitude or that otherwise impairs the
reputation, goodwill or business of the Company,
(iii) material breach of any of the material provisions of
this Agreement or of any other material agreement between the
Executive and the Company or any of its Affiliates,
(iv) demonstration of gross negligence, willful misconduct or
dereliction of duty in the execution of his duties under this
Agreement or breach of his duty of loyalty to the Company or any of
its Affiliates that is materially injurious to the Company, or
(v) repeated and consistent failure to be present at work or
to perform his duties at a level consistent with his position with
the Company. Upon the giving of notice of termination of the
Executive’s employment hereunder for Cause, the Company shall
not have any further obligation or liability to the Executive,
other than for Base Salary earned and unpaid through the date of
termination. Notwithstanding the foregoing, following written
notice from the Board of Directors of any of the events described
in (iii) or (v) above (such notice to set forth in
reasonable detail the nature of the alleged breach or conduct):
(x) the Executive shall have thirty (30) calendar days in
which to cure the alleged breach or conduct, except where such
breach or conduct by its nature may not be cured, and (y) if
the Executive fails to cure, the Executive’s termination
shall become effective on the 31st calendar day following such
written notice.
(d) By the Company without
Cause . The Company may terminate the Employment Period
hereunder without Cause at any time upon notice.
(e) By the Executive . The
Executive may terminate the Employment Period hereunder, with or
without cause, at any time upon at least thirty
(30) days’ advance written notice to the
Company.
9. SEVERANCE BENEFITS
: In the event that the Executive’s employment terminates
without Cause pursuant to Section 8(d), the Executive shall be
entitled, subject to the requirements of Section 9(c), to
receive the following severance benefits (the “Severance
Benefits”):
(a) Salary and Health Care
Benefit Continuation :
(i) The Company will pay the
Executive installments of his Base Salary in effect as of the last
day of the Employment Period for a period of three (3) months
from and after the date of such termination (the “Severance
Period”); and
(ii) The Company will either
(A) continue the Executive’s group health plan benefits
to the extent authorized by and consistent with 29 U.S.C. §
1161 et seq. (commonly known as “COBRA”), with the cost
of the regular employer portion of the
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premium for such benefits paid by
the Company during the Severance Period, or (B) in the event
that as of the date of termination of the Executive’s
employment the Company was reimbursing the Executive for the cost
of maintaining his current family medical insurance coverage
pursuant to Section 6, continue such reimbursement during the
Severance Period.
In the event that a Change in
Control (as defined below) occurs and the Executive’s
employment with the Company or the successor/acquiror of the
Company