Exhibit 10.1
LETTER AGREEMENT
THIS LETTER AGREEMENT
(the “Letter Agreement”)
is entered into this 11 th day of November, 2005, by Novoste
Corporation, a Florida corporation (hereinafter referred to as the
“Company”) and Alfred J. Novak, a Florida resident,
(hereinafter referred to as the “Executive”). The
Company and the Executive are hereinafter referred to,
collectively, as the “Parties.”
W I T N E S S E T
H:
WHEREAS, the Parties have entered into an Amended and
Restated Termination Agreement dated May 30, 2003, as amended
on May 18, 2005 (the agreement, as amended, is hereinafter
referred to as the “Termination Agreement”), pursuant
to which the Executive is entitled to receive certain payments upon
a termination of his employment without Cause or for Good Reason
(each as defined in the Termination Agreement) following a Change
in Control (as defined in the Termination Agreement);
and
WHEREAS, the Parties have also entered into an employment
agreement dated October 8, 2002 (the “Employment
Agreement”); and
WHEREAS, the Company and the Executive have mutually
agreed to enter into this Letter Agreement, which shall supersede
the Employment Agreement and the Termination Agreement in their
entirety, except as hereinafter set forth.
NOW, THEREFORE,
in consideration of the promises and
mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
1. Termination of Employment:
The Executive shall continue to be employed by the Company through
March 31, 2006, at which point his employment, together with
all accompanying benefits of employment, shall be deemed
terminated. Notwithstanding the foregoing, the Executive agrees to
extend his employment until April 30, 2006 at the request of
the Company if the Company’s Annual Report on Form 10-K with
respect to the year ending December 31, 2005 has not been
filed with the Securities and Exchange Commission
(“SEC”) by March 31, 2006, a Quarterly Report on
Form 10-Q with respect to the quarter ending March 31, 2006 is
required to be filed with the SEC or the Company otherwise
determines that there are matters requiring the attention of the
Executive. The date on which the Executive’s employment with
the Company terminates in accordance with this Section 1 is
referred to herein as the “Termination Date.” The
Executive shall be entitled to his base salary at the rate in
effect as of the date of this Letter Agreement through the
Termination Date. The Executive shall perform
no further services for, and shall have no
authority to act on behalf of, the Company after the Termination
Date. In his capacity as Chief Executive Officer of the Company,
the Executive will report directly to the Company’s Board of
Directors and perform such duties and responsibilities as are from
time to time directed by the Board of Directors consistent with the
Executive’s position as Chief Executive Officer and the
Company’s needs. Such duties and responsibilities may be
performed at locations other than the Company’s offices in
Norcross, Georgia as reasonably determined by the Company and the
Executive. Nothing in this Letter Agreement shall preclude the
Executive from interviewing for employment, as long as such
activity does not substantially interfere with his performance of
duties as Chief Executive Officer. In addition, nothing in this
Letter Agreement shall preclude the Executive from continuing the
affiliations and associations set forth in Paragraph 5 of the
Conflict of Interest Agreement (as defined in the Employment
Agreement) and any similar professional affiliations, or any civic,
charitable or other non-professional activities that do not
significantly interfere with his performance of services to the
Company.
2. Certain Payments: Subject
to the Executive’s acceptance and compliance with all of the
terms and conditions set forth in this Letter Agreement, the
Company shall pay to the Executive the following
payments:
(i) a first payment (the
“First Payment) in the amount of $579,200, payable in a lump
sum by the Company upon the Executive’s execution of this
Letter Agreement, less applicable deductions, including, without
limitation, federal and state withholding;
(ii) a second payment (the
“Second Payment”) in the amount of $142,300, less
applicable deductions, including, without limitation, federal and
state withholding, to be paid on January 2, 2006.
Notwithstanding the foregoing, if the composition of the
Company’s Board of Directors changes such that the number of
directors on the Board of Directors who are directors of the Board
of Directors as of the date of this Letter Agreement is less than
the number of directors on the Board of Directors who are not
directors of the Board of Directors as of the date of this Letter
Agreement, the Executive shall be entitled to immediate payment of
the Second Payment (to the extent such payment has not previously
been made);
(iii) a third payment (the
“Third Payment”) in the amount of $27,375 to be paid on
January 31, 2006, a fourth payment (the “Fourth
Payment”) in the amount of $27,375 to be paid on
February 28, 2006 and a fifth payment (the “Fifth
Payment”, and together with the Third Payment and the Fourth
Payment, the “2006 Payments”) in the amount of $27,375
to be paid on March 31, 2006, in each case less applicable
deductions, including without
2
limitation, federal and state
withholding; provided, that, the Executive shall not receive the
2006 Payments (to the extent any of the 2006 Payments have not
previously been made) if the Executive voluntarily terminates
employment with the Company without Good Reason (as defined in
Section 2(v)) prior to March 31, 2006. Notwithstanding
the foregoing, if the composition of the Company’s Board of
Directors changes such that the number of directors on the Board of
Directors who are directors of the Board of Directors as of the
date of this Letter Agreement is less than the number of directors
on the Board of Directors who are not directors of the Board of
Directors as of the date of this Letter Agreement, the Executive
shall be entitled to immediate payment of the 2006 Payments (to the
extent any of such payments have not previously been made);
provided, that, if the Executive voluntarily terminates his
employment with the Company without Good Reason (as defined in
Section 2(v)) prior to March 31, 2006, the Executive
shall repay to the Company a pro-rata portion of the 2006 Payments
based on the number of days between the date the Executive
terminates employment and March 31,
