Exhibit 10.36
RETENTION
AGREEMENT
This Retention Agreement (the
“ Agreement ”) is entered into as of
October 28, 2008 (the “ Effective Date ”),
by and between Robert G. Younge (the “ Executive
”) and Hansen Medical, Inc. (the “ Corporation
”).
RECITALS
WHEREAS, on October 11, 2005,
Executive and the Corporation entered into a Vesting Acceleration
and Severance Agreement (the “ Prior Agreement
”) which provides for certain benefits upon the occurrence of
an involuntary termination of Executive’s employment without
cause or a resignation for good reason or upon the occurrence of
certain events which adversely affect the nature of
Executive’s employment following an acquisition of the
Corporation (the “ Retention Benefit Provisions
”); and
WHEREAS, the parties wish to modify
the Retention Benefit Provisions, including, without limitation, to
reflect recent changes affecting the taxation of deferred
compensation arrangements under Section 409A of the Internal
Revenue Code of 1986, as amended, pursuant to the terms and
conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the promises and mutual covenants set forth herein, the parties
hereby agree as follows:
1. Definitions . As used in
this Agreement, unless the context requires a different meaning,
the following terms shall have the meanings set forth
herein:
(a) “ Board ”
shall mean the Board of Directors of the Corporation.
(b) “ Cause ”
shall mean any of the following: (i) an intentional
unauthorized use or disclosure of the Corporation’s
confidential information or trade secrets, which use or disclosure
causes material harm to the Corporation, (ii) a material
breach of any agreement between Executive and the Corporation,
(iii) a material failure to comply with the
Corporation’s written policies or rules, (iv) conviction
of, or plea of “guilty” or “no contest” to,
a felony under the laws of the United States or any state thereof,
(v) gross negligence or willful misconduct or (vi) a
continued failure to perform assigned duties after receiving
written notification of such failure from the Board. Executive
shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to Executive a Notice of
Termination and copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of those members
of the Board who are not then employees of the Corporation at a
meeting of the Board called and held for the purpose (after
reasonable notice to Executive and an opportunity for Executive,
together with Executive’s counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board,
Executive was guilty of the conduct set forth in the first sentence
of this Section 1(b) and specifying the particulars thereof in
detail.
(c) “ Change in Control
” means the occurrence of any of the following
events:
(i) a transaction or series of
transactions (other than an offering of the Corporation’s
Common Stock to the general public through a registration statement
filed with the Securities and Exchange Commission) whereby any
“person” or related “group” of
“persons”, as such terms are used in Sections l3(d) and
l4(d)(2) of the Exchange Act (other than the Corporation, any of
its subsidiaries, an employee benefit plan maintained by the
Corporation or any of its subsidiaries or a “person”
that, prior to such transaction, directly or indirectly controls,
is controlled by, or is under common control with, the Corporation)
directly or indirectly acquires beneficial ownership (within the
meaning of Rule l3d-3 under the Exchange Act) of securities of the
Corporation possessing more than 50% of the total combined voting
power of the Corporation’s securities outstanding immediately
after such acquisition; or
(ii) During any period of two
consecutive years, individuals who, at the beginning of such
period, constitute the Board together with any new director(s)
(other than a director designated by a person who shall have
entered into an agreement with the Corporation to effect a
transaction described in Section l(c)(i) or Section 1(c)(iii))
whose election by the Board or nomination for election by the
Corporation’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of the two-year period or whose election
or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; or
(iii) The consummation by the
Corporation (whether directly involving the Corporation or
indirectly involving the Corporation through one or more
intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other
disposition of all or substantially all of the Corporation’s
assets in any single transaction or series of related transactions,
in each case, other than a transaction:
(A) Which results in the
Corporation’s voting securities outstanding immediately
before the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
Corporation or the person that, as a result of the transaction,
controls, directly or indirectly, the Corporation or owns, directly
or indirectly, all or substantially all of the Corporation’s
assets or otherwise succeeds to the business of the Corporation
(the Corporation or such person, the “ Successor
Entity ”)) directly or indirectly, at least a majority of
the combined voting power of the Successor Entity’s
outstanding voting securities immediately after the transaction,
and
(B) After which no person or group
beneficially owns voting securities representing 50% or more of the
combined voting power of the Successor Entity; provided, however,
that no person or group shall be treated for purposes of this
Section l(c)(iii)(B) as beneficially owning 50% or more of combined
voting power of the Successor Entity solely as a result of the
voting power held in the Corporation prior to the consummation of
the transaction.
(d) “ COBRA ”
shall mean the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended.
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(e) “ COBRA Coverage
” shall mean the coverage under the Corporation’s
medical, dental and/or vision benefit plans that Executive and/or
Executive’s eligible dependents participates following a
termination of employment pursuant to COBRA.
(f) “ Code ”
shall mean the Internal Revenue Code of 1986, as
amended.
(g) “ Covered
Termination ” shall mean (i) an Involuntary
Termination Without Cause or (ii) a voluntary termination of
employment by Executive for Good Reason, provided that in either
case, the termination constitutes a Separation from
Service.
(h) “ Date of
Termination ” shall mean (i) if Executive’s
employment is terminated due to Executive’s death, the date
of Executive’s death; (ii) if Executive’s
employment is terminated for Disability, thirty (30) days
after Notice of Termination is given (provided that Executive shall
not have returned to the full time performance of Executive’s
duties during such thirty (30) day period), and (iii) if
Executive’s employment is terminated for any reason other
than death or Disability, the date specified in the Notice of
Termination.
(i) “ Disability
” shall mean Executive’s absence from the full-time
performance of Executive’s duties with the Corporation for
six (6) consecutive months by reason of Executive’s
physical or mental illness.
(j) “ Exchange Act
” shall mean the Securities Exchange Act of 1934, as
amended.
(k) “ Good Reason
” shall mean Executive’s resignation due to any of the
following events which occurs without Executive’s written
consent, provided that the requirements regarding advance notice
and an opportunity to cure set forth below are satisfied:
(i) a material diminution of Executive’s compensation,
including but not limited to, base salary, (ii) a material
diminution of Executive’s authority, duties or
responsibilities, or (iii) a material change in the geographic
location at which Executive must perform services for the
Corporation (each of (i), (ii) and (iii), a “ Good
Reason Condition ”). In order for Executive to resign for
Good Reason, Executive must provide written notice to the
Corporation of the existence of the Good Reason Condition within 90
days of the initial existence of such Good Reason Condition. Upon
receipt of such notice of the Good Reason Condition, the
Corporation will be provided with a period of 30 days during which
it may remedy the Good Reason Condition and not be required to
provide for the payments and benefits described herein as a result
of such proposed resignation due to the Good Reason Condition
specified in the Notice of Termination. If the Good Reason
Condition is not remedied within the period specified in the
preceding sentence, Executive may resign based on the Good Reason
Condition specified in the Notice of Termination effective no later
than 180 days following the initial existence of such Good Reason
Condition.
(l) “ Involuntary
Termination Without Cause ” shall mean termination of
Executive’s employment by the Corporation other than for
Cause. The termination of Executive’s employment as a result
ofExecutive’s death or inability to perform the essential
functions of his job due to Disability will not be deemed to be an
Involuntary Termination Without Cause.
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(m) “ Notice of
Termination ” shall mean a notice from Executive or the
Corporation to the other party regarding the intent to terminate
Executive’s employment. To the extent applicable, the Notice
of Termination shall indicate the specific termination provision in
this Agreement (if any) relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive’s employment under the
provision so indicated.
(n) “ Release ”
shall mean a release by Executive of all claims arising out of
Executive’s employment with the Corporation or the
termination thereof, in a form reasonably acceptable to the
Corporation.
(o) “ Separation from
Service ” means Executive’s termination of
employment or service which constitutes a “separation from
service” within the meaning of Treasury Regulation
Section 1.409A-1(h).
2. Notice .
(a) Notice of Termination .
Any termination of Executive’s employment by the Corporation
or by Executive (other than termination due to Executive’s
death, which shall terminate Executive’s employment
automatically) shall be communicated by a written Notice of
Termination to the other party hereto in accordance with
Section 2(b) and shall set forth the Date of Termination,
which shall not be earlier than the date on which the Notice of
Termination is provided.
(b) Manner of Notice . For
purposes of this Agreement, a Notice of Termination, as well as
other notices and communications provided for in this Agreement,
shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the
Corporation at its principal office or to Executive at the address
in the Corporation’s payroll records, provided that all
notices to the Corporation shall be directed to the attention of
its Secretary, or to su
