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Exhibit
10.22
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated
Executive Employment Agreement (“Agreement”) is made
effective as of September 5, 2007 (“Effective
Date”), by and between CryoCor, Inc. (“CryoCor”)
and Helen Barold (“Barold”) and amends, restates and
supersedes in its entirety the Executive Employment Agreement by
and between CryoCor and Barold dated August 30, 2007. This
Agreement also supersedes in its entirety the Employment Offer
Letter by and between CryoCor and Barold dated August 3,
2006.
The parties agree as
follows:
1. Employment .
CryoCor has employed Barold since August 2006, and Barold has
accepted such employment, upon the terms and conditions set forth
herein.
2. Duties .
2.1 Position . Barold
is employed as Chief Medical Officer, reporting to the Chief
Executive Officer (“CEO”), and shall have the duties
and responsibilities assigned by CryoCor both upon initial hire and
as may be reasonably assigned from time to time. Initially,
Barold’s duties shall include oversight of clinical and
regulatory affairs, including discussions with the FDA related the
atrial flutter and atrial fibrillation clinical initiatives. Barold
shall perform faithfully and diligently all duties assigned to him.
CryoCor reserves the right to modify Barold’s position and
duties at any time in its sole and absolute discretion, provided
that the duties assigned are consistent with the position of a
senior executive and that Barold continues to report to the
CEO.
2.2 Best
Efforts/Full-time . Barold will expend her best efforts on
behalf of CryoCor, and will abide by all policies and decisions
made by CryoCor, as well as all applicable federal, state and local
laws, regulations or ordinances. Barold will act in the best
interest of CryoCor at all times. Barold shall devote her full
business time and efforts to the performance of her assigned duties
for CryoCor, unless Barold notifies CryoCor in advance of her
intent to engage in other paid work and receives CryoCor’s
express written consent to do so. CryoCor agrees that Barold will
continue her clinical practice approximately one day per
week.
2.3 Covenant Not To
Compete . Except with prior written consent of CryoCor’s
Board of Directors, Barold will not, during the term of this
Agreement, in any period during which Barold is receiving
compensation or any other consideration from CryoCor, including,
but not limited to, severance pay or benefits pursuant to
Section 7 herein, engage in competition with CryoCor, either
directly or indirectly, in any manner or capacity, as advisor,
principal, agent, affiliate, promoter, partner, officer, director,
employee, stock holder, owner, co-owner, consultant, or any member
of any association or otherwise, in any phase of the business of
developing, manufacturing and marketing of products or services
which are in the same field of use or which otherwise compete with
the products or services or proposed products or services of
CryoCor.
2.4 Work Location .
Barold’s principal place of work shall be located in
Bethesda, Maryland, or such other location as the parties may agree
upon from time to time.
3. Term . The term of
this Agreement shall begin on the Effective Date and shall continue
until it is terminated pursuant to Section 7 herein
(“Term”).
4. Compensation
.
4.1 Base Salary . As
compensation for Barold’s performance of her duties
hereunder, CryoCor shall pay to Barold a Base Salary of Two Hundred
Fifty Thousand Dollars ($250,000) per year, payable in accordance
with CryoCor’s normal payroll practices, less required
deductions for state and federal withholding tax, social security
and all other employment taxes and payroll deductions.
4.2 Incentive Bonus .
Barold will be eligible for an incentive bonus of up to 25% of Base
Salary, less required deductions for state and federal withholding
tax, social security and all other employment taxes and payroll
deductions (“Bonus”). This Bonus shall be based upon
the achievement of certain company-wide goals and milestones to be
mutually agreed to following discussions amongst the management
team, with final approval of the Compensation Committee of the
Board of Directors.
4.3 Stock Options .
CryoCor’s Board of Directors granted Barold an initial
incentive stock option to purchase 125,000 shares of CryoCor common
stock (“Common Stock”) under CryoCor, Inc.’s 2005
Stock Option Plan (the “Plan”) at an exercise price
equal to the fair market value of that stock on the date of grant
of such option (the “Initial Option). The Initial Option
vests 50% over a four year period following the date of grant
thereof, and 50% upon the approval of CryoCor’s PMA for
atrial fibrillation. The Board of Directors granted Barold a second
incentive stock option to purchase 60,000 shares of Common Stock
under the Plan at an exercise price equal to the fair market value
of that stock on the date of grant of such option (the
“Second Option”). The Second Option vests ratably on a
monthly basis over a 48-month period following the date of grant
thereof. Subject to the approval of the Board of Directors or the
Compensation Committee thereof, Barold will receive an additional
incentive stock option to purchase 30,000 shares of Common Stock
under the Plan at an exercise price equal to the fair market value
of that stock on the date of grant of such option (the
“Additional Option”). The Additional Option shall vest
25% on the first anniversary following the date of grant thereof
with the remainder vesting ratably on a monthly basis over the
following 36-month period.
4.4 Performance and Salary
Review . CryoCor will periodically review Barold’s
performance on no less than an annual basis. Adjustments to salary
or other compensation, if any, will be made by CryoCor in its sole
and absolute discretion.
4.5 Employment Taxes .
All of Barold’s compensations shall be subject to customary
withholding taxes and any other employment taxes as are commonly
required to be collected or withheld by CryoCor.
5. Customary Fringe
Benefits . Barold will be eligible for all customary and usual
fringe benefits generally available to senior executives of
CryoCor, subject to the terms and conditions of CryoCor’s
benefit plan documents. CryoCor reserves the right to change or
eliminate the fringe benefits on a prospective basis, at any time,
effective upon notice to Barold.
6. Business Expenses .
Barold will be reimbursed for all reasonable, out-of-pocket
business expenses incurred in the performance of her duties on
behalf of CryoCor. To obtain reimbursement, expenses must be
submitted promptly, with appropriate supporting documentation, in
accordance with CryoCor’s policies.
7. Termination
.
7.1 At-Will Employment
. Either Barold or CryoCor shall have the right to terminate the
employment relationship at any time, with or without cause or
advance notice, subject to the provisions set forth in
Section 7 herein. It is expressly understood that the
employment relationship is at-will. CryoCor reserves the right to
modify Barold’s position or duties to meet business needs and
to use discretion in deciding on appropriate discipline. Any change
to this at-will employment relationship must be by a specific,
written agreement signed by Barold and the President and CEO of
CryoCor.
7.2 Termination for Cause
by CryoCor . Notwithstanding Section 7.1 above, CryoCor
may terminate Barold’s employment immediately at any time for
Cause. For purposes of this Agreement, “Cause” is
defined as the Board of Directors determination of any of the
following: (a) acts or omissions constituting gross
negligence, recklessness or willful misconduct on the part of
Barold with respect to Barold’s obligations or otherwise
relating to the business of CryoCor; (b) Barold’s
material breach of this Agreement or CryoCor’s Employee
Innovations and Proprietary Rights Agreement;
(c) Barold’s conviction or entry of a plea of nolo
contendere for fraud, misappropriation or embezzlement, or any
felony or crime of moral turpitude; (d) Barold’s willful
neglect of duties as determined in the sole and exclusive
discretion of the Board of Directors; (e) Barold’s
failure to perform the essential functions of her position, with or
without reasonable accommodation, due to a mental or physical
disability; and (f) Barold’s death. With respect to (a),
(b) and (d) above, CryoCor shall give Barold written
notice of the offending conduct and a 30-day opportunity to cure
any such violation or failure before terminating Barold’s
employment for Cause; provided however, that Barold shall only be
entitled to one cure period in any consecutive three month period.
In the event Barold’s employment is terminated in accordance
with this subsection 7.2, Barold shall be entitled to receive
only the Base Salary then in effect, prorated to the date of
termination. All other CryoCor obligations to Barold pursuant to
this Agreement will become automatically terminated and completely
extinguished. In addition, Barold will not be entitled to receive
the severance payment described in subsection 7.3
below.
7.3 Termination Without
Cause by CryoCor/Severance . CryoCor may terminate
Barold’s employment under this Agreement without Cause at any
time, with or without advance notice. In the event of such
termination, Barold will receive the Base Salary then in effect,
prorated to the date of termination, and continuation of her Base
Salary for a period of twelve (12) months, payable in
accordance with CryoCor’s regular payroll cycle, provided
that Barold: (a) complies with all surviving provisions of
this Agreement as specified in subsection 13.8 below; and
(b) executes a Release (as defined in Section 7.5 below).
All other CryoCor obligations to Barold will be automatically
terminated and completely extinguished.
7.4 Termination Upon A
Change In Control .
(a) Acceleration of
Vesting Upon a Change in Control (as defined in the Plan) of
CryoCor, 50% of the then unvested shares shall immediately vest and
become exercisable. In addition, in the event Barold’s
Continuous Service (as defined in the Plan) with CryoCor ceases as
a result of a Termination After Change in Control (as defined in
the stock option agreement applicable to such shares), then all of
the then unvested shares shall immediately vest and become
exercisable upon Barold’s execution of a Release (as defined
in Section 7.5 below).
(b) 280G . Anything in
this Agreement to the contrary notwithstanding, if any payment or
benefit Barold would receive under this Agreement, taken together
with any other agreement or benefit plan of CryoCor (including
stock options) (“Payment”) would (i)
constitute a “parachute
payment” within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the “Code”),
and (ii) but for this sentence, be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise
Tax”), then such Payment shall be equal to the Reduced
Amount. The R
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