Exhibit 10.8.c
SECOND AMENDMENT TO EMPLOYMENT
AGREEMENT
This SECOND AMENDMENT TO
EMPLOYMENT AGREEMENT (this “Second Amendment”) is
entered into by and between Stereotaxis, Inc. (the
“Company” or “Stereotaxis” or
“we”) and Michael P. Kaminski ( “Employee”,
“you” or “your”), collectively referenced
herein as “ the parties” or
“we”.
WHEREAS , you and the Company have previously entered
into an At-Will Employment Agreement dated as of April 17,
2002, as amended by a First Amendment thereto on May 29, 2008
(as so amended, the “ Employment Agreement
”);
WHEREAS , you and the Company now desire
to further amend the Employment Agreement (the Employment
Agreement, as amended by this Second Amendment, referenced herein
as this “Agreement” ) in light of the fact that
you have agreed to accept the position of Chief Executive Officer
(“CEO”) of Stereotaxis effective on or about
January 1 st , 2009; and
NOW, THEREFORE
, in consideration of your continued
employment and the promises and mutual covenants set forth in the
Employment Agreement, as well as the mutual covenants set forth
herein, the parties agree as follows:
SECTION 1.
Section 1 of the Employment
Agreement is hereby deleted in its entirety and replaced with the
following:
1.1 Position and
Duties . Commencing on January 1, 2009 you shall hold
the positions of President and Chief Executive Officer and shall
report to, and at all times be subject to the lawful direction of,
the Board of Directors of the Company. Additionally, you shall
serve as a member of the executive staff and lead the strategic
decision-making of the Company from time to time. You shall also
serve as a member of the Board of Directors of the Company so long
as you hold the positions of President and Chief Executive Officer,
without additional compensation for such Board service. During the
period of your employment by the Company (the “Employment
Period”), you shall devote your best efforts and full
business time and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the
business affairs of the Company. You shall perform your duties and
responsibilities to the best of your abilities in a diligent,
trustworthy, businesslike and efficient manner. Nothing herein
shall preclude you from pursuing your personal, financial and legal
affairs, or, subject to the prior written consent of the Board,
(a) serving on any corporate or governmental board of
directors (b) serving on the board of, or working for, any
charitable, not-for-profit or community organization, or
(c) pursuing any other activity; provided that you shall not
engage in any other business, profession, occupation or other
activity, for compensation or otherwise, which would violate the
provisions of this Agreement or would, in each case, and in the
aggregate, otherwise conflict or interfere with the performance of
your duties and responsibilities hereunder, either directly or
indirectly, without the prior written consent of the
Board.
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1.2 Base Salary .
Commencing on January 1, 2009, the Company shall pay you as
compensation for services to be rendered hereunder a base salary in
the amount of Four Hundred Thousand Dollars ($400,000.00) per year,
payable in semi-monthly installments or otherwise in accordance
with the Company’s normal payroll practices, subject to
increases, if any, as may be determined from time to time by the
Company’s Board of Directors (or any duly authorized
committee thereof, including without limitation the Compensation
Committee) (the full board and any such committee individually and
collectively referred to herein as the “Board”), which
periodic payments shall be subject to the usual and customary tax
deductions, and any other deductions authorized by you as a
participant, for example in certain of our employee benefit
plans.
1.3 Bonus Opportunity
. You will be eligible to participate in a cash incentive bonus
plan that will provide for a “Target Bonus” of an
amount equal to fifty percent (50%) of and maximum of one
hundred per cent (100%) of your then-current base
compensation, subject to achievement of Company objectives and
performance goals established for you by the Board, and subject to
the Board’s determination whether and the extent to which
such objectives and goals have been achieved and the amount of
bonus payable as a result.
1.4 Equity Awards
.
(a) You will receive One Hundred
Twenty-Five Thousand (125,000) Stock Appreciation Rights
(“SARs”) upon the execution and delivery of this Second
Amendment and effective upon and conditioned on the final approval
of the Board or the Compensation Committee thereof, which shall be
undertaken at its first scheduled meeting following said execution
and delivery.
(b) Thereafter, subject to the
approval of the Board, you will be eligible to receive additional
equity grants in 2009.
1.5. Termination
.
a) Termination by Company With
Cause . Your employment hereunder is at will, and may be may be
terminated at any time by Company with or without
“Cause”. For purposes of this Agreement,
“Cause” shall mean: (i) embezzlement, theft or
other intentional misappropriation of any property of Company,
(ii) any willful act involving moral turpitude which brings
disrepute or disparagement to the Company or substantially impairs
its good will and reputation, or results in a conviction for or
plea of guilty to a felony involving moral turpitude, fraud or
misrepresentation, (iii) material neglect of your duties as
CEO pursuant to this Agreement, (iv) material breach of your
fiduciary obligations to Company, or (v) any chemical
dependence which materially affects the performance of your duties
and responsibilities to Company; provided that in the case of the
misconduct set forth in clauses (iii), (iv) and
(v) above, you will be given written notice setting forth in
reasonable detail the purported acts which constitute Cause, and
you will be given the opportunity within thirty (30) days to
appear before the Board with counsel to respond to any such
allegations.
b) Termination Without Cause
. If your employment is terminated by the Company without Cause, i)
you shall receive salary continuance equal to your then current
monthly base salary for the twenty-four (24) month period next
following your without-Cause termination; however, if you are
reemployed by the Company or find comparable employment during that
twenty–four month period next following your without-Cause
termination, such salary continuation payments will be
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offset by the amount of any salary from your new
employer ( or us) commencing upon such new employment; and ii) in
addition to the payments set forth in (i) above, the number of
stock options, stock appreciation rights or other equity awards
subject to vesting that would have vested over the 12 month period
following the date of your without-Cause termination shall be
automatically fully vested as of the date of the termination; and
iii) you will thereafter have an exercise period of one
(1) year next following your termination date, each option
being exercisable by five (5) business days prior written
notice of exercise to the Company.
c) Change of Control . If, in
the event of a Change of Control of the Company under which the
Company is not the surviving entity you are not offered a
comparable position and salary in the surviving entity after the
Change of Control, you shall receive salary continuance equal to
your then current monthly base salary for the twenty-four
(24) month period next following your without-Cause
termination or the said Change of Control, subject to your
compliance with any post-termination restrictions and covenants
herein, and provided that, as a condition precedent to your receipt
of the salary continuance payments, you shall execute a release
which releases the Company and its representatives from any and all
claims that you may have against us. However, if you are reemployed
by the Company or find comparable employment during that
twenty–four month period next following your without-Cause
termination, such salary continuation payments will be offset by
the amount of any salary from your new employer (or us) commencing
upon such new employment. A Change of Control, for purposes of this
Second Amendment, is (i) an event whereby any natural person,
corporation, general partnership, limited partnership, joint
venture, proprietorship or other business organization (each, a
“Person”), including such Person’s affiliates, or
“group” (as such term is defined under
Section 13(d) of the Securities Exchange Act of 1934, as
amended) acquires beneficial ownership of capital stock of
Stereotaxis entitling the holder(s) thereof to more than fifty
percent (50%) of the voting power of the then outstanding
capital stock of Stereotaxis with respect to the election of
directors of Stereotaxis, or (ii) a sale or transfer of all or
substantially all of the assets of Stereotaxis to any
Person.
d) Pro rata Payment of Bonus
. In the event of termination under b) or c) above in a year in
which you have served as CEO and President for no less than six
months, you will be entitled to receive a bonus from any bonus plan
in which you were a participant as a member of management, which
shall be paid on the same basis and at the same level as the other
management employees who remain employed by the Company, pro rated
on the basis of the number of days in the year that you worked
prior to your termination.
e) Medical and Dental Insurance
Continuation . In the event of termination under b) or c) above
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
twenty-four months following your date of termination, 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 your termination
date.
f) Release of Claims . The
salary continuation payments and other post-termination
compensation benefits are conditioned on and subject to your
compliance with all post-termination restrictions and covenants and
provided that, as a condition precedent to your receipt of the
salary continuance payments you shall execute a release which
releases the Company and its
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representatives from any and all claims that you
may have against us. You are not entitled to salary continuation if
your termination is voluntary or for cause.
SECTIO
