EXHIBIT 10.42
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of October 18, 2002, by and between ENDOLOGIX, INC., a Delaware corporation (the
"Company"), and [EMPLOYEE NAME], an individual (the "Executive").
R E C I T A L
The Company desires to employ Executive in the capacity hereinafter
stated, and the Executive desires to enter into the employ of the Company in
that capacity pursuant to the terms and conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and the Executive,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive as the
[TITLE] of the Company, reporting to the [INSERT MANAGER TITLE] of the Company,
and the Executive accepts such employment and agrees to devote substantially all
his business time and efforts and skills on such reasonable duties as shall be
assigned to him by the Company commensurate with such position. The term of this
Agreement shall commence on [INSERT DATE] and expire on [INSERT DATE] unless
sooner terminated pursuant to the terms and provisions herein stated. This
Agreement shall automatically be extended for additional one (1) year renewal
terms (unless sooner terminated pursuant to the terms and provisions herein)
unless either party gives written notice to the other to terminate this
Agreement at least thirty (30) days prior to the end of the preceding term.
2. STOCK OPTIONS: ACCELERATION OF OPTIONS. Notwithstanding any
provisions of the Company's option or stock incentive plan, or of the
Executive's stock option or restricted stock agreements, in the event of a
"Corporate Transaction" or "Change in Control," as defined below, during the
period of the Executive's employment with the Company, all of the Executive's
stock options shall vest in full and all rights of the Company to repurchase
restricted stock of the Executive shall terminate.
For purposes hereof, "Change in Control" shall mean a change in
ownership or control of the Company effected through the acquisition, directly
or indirectly, by any person or related group of persons (other than the Company
or a person that directly or indirectly controls, is controlled by, or is under
common control with, the Company), of beneficial ownership (within the meaning
of Rule 13d-3 of the 1934 Act) of securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding securities
pursuant to a tender or exchange offer made directly to the Company's
stockholders which the Board does not recommend such stockholders to accept.
For purposes hereof, "Corporate Transaction" shall mean either of the
following stockholder-approved transactions to which the Company is a party:
(A) A merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction; or
(B) The sale, transfer or other disposition of all or
substantially all of the Company's assets in complete liquidation or
dissolution of the Company.
3. TERMINATION.
3.1 TERMINATION BY THE COMPANY FOR CAUSE. Any of the following
acts or omissions shall constitute grounds for the Company to terminate the
Executive's employment pursuant to this Agreement for "cause":
(a) Willful misconduct by Executive causing material
harm to the Company but only if Executive shall not have discontinued such
misconduct within 30 days after receiving written notice from the Company
describing the misconduct and stating that the Company will consider the
continuation of such misconduct as cause for termination of this Agreement,
(b) Any material act or omission by the Executive
involving gross negligence in the performance of the Executive's duties to, or
material deviation from any of the policies or directives of, the Company, other
than a deviation taken in good faith by the Executive for the benefit of the
Company,
(c) Any illegal act by the Executive which materially
and adversely affects the business of the Company, provided that the Company may
suspend the Executive with pay while any allegation of such illegal act is
investigated, or
(d) any felony committed by Executive, as evidenced by
conviction thereof, provided that the Company may suspend the Executive with pay
while any allegation of such felonious act is investigated.
Termination by the Company for cause shall be accomplished by written notice to
the Executive and, in the event of a termination pursuant to Sections 3.1(a),
3.1(b), and/or 3.1(c) above, shall be preceded by a written notice providing a
reasonable opportunity for the Executive to correct his conduct.
3.2 TERMINATION FOR DEATH OR DISABILITY. In addition to
termination for cause pursuant to Section 3.1 hereof, the Executive's employment
pursuant to this Agreement shall be immediately terminated without notice by the
Company (i) upon the death of the Executive or (ii) upon the Executive becoming
totally disabled. For purposes of this Agreement, the term "totally disabled"
means an inability of Executive, due to a physical or mental illness, injury or
impairment, to perform a substantial portion of his duties for a period of one
hundred eighty (180) or more consecutive days, as determined by a competent
physician selected by the Company's Board of Directors and reasonably agreed to
by the Executive, following such one hundred eighty (180) day period.
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3.3 TERMINATION FOR GOOD REASON. Executive's employment pursuant
to this Agreement may be terminated by the Executive for "good reason" if the
Executive voluntarily terminates his employment as a result of any of the
following:
(a) Without the Executive's prior written consent, a
reduction in his then current Base Salary; or
(b) Without the Executive's prior written consent, the
assignment to Executive of duties substantially and materially inconsistent with
the position and nature of Executive's employment as set forth in Section 1 of
this Agreement, or
(c) Without Executive's prior written consent, a
relocation of the Executive's place of employment outside of Orange County,
California.
3.4 TERMINATION WITHOUT CAUSE. The Company may terminate this
Agreement, and the employment of the Executive under this Agreement, without
cause, at any time upon at least thirty (30) days' prior written notice to the
Executive. This Section 3.4 shall not apply to a termination of the Executive by
the Company as a result of a "Corporate Transaction" or "Change in Control",
but, instead, the provisions of Section 3.5 below shall apply.
3.5 TERMINATION DUE TO CORPORATE TRANSACTION OR CHANGE IN
CONTROL. The Company may terminate this Agreement and the employment of the
Executive under this Agreement, upon at least thirty (30) days' prior written
notice to the Executive in the event of a "Corporate Transaction" or "Change in
Control," as defined in Section 2, during the period of the Executive's
employment. The Executive may terminate this Agreement and the employment of the
Executive under this Agreement upon at least thirty (30) days' prior written
notice to the Company upon the occurrence of a "Corporate Transaction" or
"Change in Control," as defined in Section 2, during the period of Executive's
employment if any of the following occur as a result of the "Corporate
Transaction" or "Change in Control": (i) a reduction in Executive's current Base
Salary, (ii) the assignment to Executive of duties substantially and materially
inconsistent with the position and nature of Executive's employment as set forth
in Section 1 of this Agreement, (iii) the failure by the Company to obtain from
any successor an agreement to assume and perform this Agreement; (iv) Executive
is not offered a new employment agreement; or (v) Executive is not offered a new
employment agreement on substantially the same terms as provided in this
Agreement.
3.6 PAYMENTS UPON REMOVAL OR TERMINATION.
(a) If, during the term of this Agreement, the Executive
resigns for one of the reasons stated in Section 3.3, or if the Company
terminates Executive's employment pursuant to Section 3.4 above, the Executive
shall be entitled to the following compensation: (i) the portion of his then
current Base Salary which has accrued through his date of termination, (ii) any
payments for unused vacation and reimbursement expenses, which are due, accrued
or payable at the date of Executive's termination, (iii) severance payment in an
amount of six-months equal to Executive's then-current Base Salary; (the
"Severance Amount"), and (iv) to the extent not already vested under Section 2
or otherwise all of Executive's options to purchase shares of the Company's
common stock and restricted stock shall vest by six additional months, and such
options shall otherwise be exercisable in accordance with their terms. In
addition, in such event, Executive shall be entitled to (a) a prorated payment
equal to the target bonus amount for which Executive would be eligible for the
year in which such resignation or termination occurred, and (b) continuation of
the insurance
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benefits set forth in Exhibit A, for six-months. The payments provided by this
paragraph 3.6(a) shall be Executive's complete and exclusive remedy for any such
termination.
(b) If, during the term of this Agreement, the Company
terminates Executive's employment pursuant to Section 3.5 above or the Executive
terminates his employment pursuant to Section 3.5 above, the Executive shall be
entitled to the following compensation: (i) the portion of his then current Base
Salary which has accrued through his date of termination, (ii) any payments for
unused vacation and reimbursement expenses, which are due, accrued or payable at
the date of Executive's termination, (iii) severance payment in an amount of
twelve-months equal to Executive's then-current Base Salary (the "Severance
Amount"); and (iv) to the extent not already vested under Section 2 or otherwise
all of Executive's options to purchase shares of the Company's common stock and
restricted stock shall accelerate and automatically vest, and such options shall
otherwise be exercisable in accordance with their terms. In addition, in such
event, Executive shall be entitled to (a) a prorated payment equal to the target
bonus amount for which Executive would be eligible for the year in which such
resignation or termination occurred, and (b) continuation of the insurance
benefits set forth in Exhibit A, for twelve-months. The payments provided by
this paragraph 3.6(b) shall be Executive's complete and exclusive remedy for any
such termination.
(c) All payments required to be made by the Company to
the Executive pursuant to this Section 3 shall be paid on a regular basis in
accordance with the Company's normal payroll procedures and policies, including,
without limitation, the Severance Amount which shall be paid at such times and
in such amounts consistent with the Company's normal payroll procedures and
policies over the number of months immediately succeeding the date of
termination that is equal to the number of months of Base Salary payable as the
Severance Amount. If the Company terminates the Executive's employment pursuant
to Sections 3.1 or 3.2, or if the Executive voluntarily resigns (except as
provided in Section 3.3 or Section 3.5), then the Executive shall be entitled to
only the compensation set forth in items (i) and (ii) of Section 3.6(a).
(d) To the extent that any or all of the payments and
benefits provided for in this Agreement constitute "parachute payments" within
the meaning of Section 280G of the Internal Revenue Code (the "Code") and, but
for this paragraph, would be subject to the excise tax imposed by Section 4999
of the Code, then at the Executive's election:
(i) The Executive shall receive all such payments and benefits
the Executive is entitled to receive hereunder, and any liability for
taxes pursuant to the above shall be the liability solely of the
Executive; or
(ii) The aggregate amount of such payments and benefits shall be
reduced such that the present value thereof (as determined under the
Code and applicable regulations) is equal to 2.99 times the Executive's
"base amount" (as defined in Section 280G of the Code).
The determination of any reduction or increase of any payment or benefits under
this paragraph pursuant to the foregoing provision shall be made by a nationally
recognized public accounting firm chosen by the Company in good faith, and such
determination shall be conclusive and binding on the Company and the Executive.
4. ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the
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consent of the Executive, assign its rights and obligations under this Agreement
to an Affiliate or to any corporation, firm or other business entity (i) with or
into which the Company may merge or consolidate, or (ii) to which the Company
may sell or transfer all or substantially all of its assets. After any such
assignment by the Company, the Company shall be discharged from all further
liability hereunder and such assignee shall thereafter be deemed to be the
Company for the purposes of all provisions of this Agreement including this
Section 4.
5. SUCCESSORS. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of
California.
6.2 PRIOR AGREEMENTS. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understanding with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
6.3 ARBITRATION. In the event of any controversy, claim or
dispute between the parties hereto arising out of or relating to this Agreement,
the matter shall be determined by arbitration, which shall take place in Orange
County, California, under the rules of the American Arbitration Association. The
arbitrator shall be a retired Superior Court judge mutually agreeable to the
parties and if the parties cannot agree such person shall be chosen in
accordance with the rules of the American Arbitration Association. The
arbitrator shall be bound by applicable legal precedent in reaching his or her
decision. Any judgment upon such award may be entered in any court having
jurisdiction thereof. Any decision or award of such arbitrator shall be final
and binding upon the parties and shall not be appealable. The parties hereby
consent to the jurisdiction of such arbitrator and of any court having
jurisdiction to enter judgment upon and enforce any action taken by such
arbitrator. The fees payable to the American Arbitration Association and the
arbitrator shall be paid by the Company.
6.4 WITHHOLDING TAXES. The Company may withhold from any salary
and benefits payable under this Agreement all federal, state, city or other
taxes or amounts as shall be required to be withheld pursuant to any law or
governmental regulation or ruling.
6.5 AMENDMENTS. No amendment or modification of this Agreement
shall be deemed effective unless made in writing signed by the parties hereto.
6.6 NO WAIVER. No term or condition of this Agreement shall be deemed to
have been waived nor shall there be any estoppel to enforce any provisions of
this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall
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operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
6.7 SEVERABILITY. To the extent any provision of this Agreement
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
6.8 COUNTERPART EXECUTION. This Agreement may be executed by
facsimile and in counterparts, each of which shall be deemed an original and all
of which when taken together shall constitute but one and the same instrument.
6.9 ATTORNEYS FEES. Should any legal action or arbitration be
required to resolve any dispute over the meaning or enforceability of this
Agreement or to enforce the terms of this Agreement, the prevailing party shall
be entitled to recover its or his reasonable attorneys fees and costs incurred
in such action, in addition to any other relief to which that party may be
entitled.
6.10 NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and may be personally served or sent by United
States Mail, and shall be deemed to have been given when personally served or
two days after having been deposited in the United States Mail, registered mail,
return receipt requested, with first class postage prepaid and properly
addressed as follows:
If to Executive: [EMPLOYEE NAME]
13900 Alton Parkway, Suite 122
Irvine, CA 92618
If to the Company: Endologix, Inc.
13900 Alton Parkway, Suite 122
Irvine, CA 92618
Attn: Chief Executive Officer
6.11 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. Executive
agrees to sign the Company's standard form of employee proprietary information
and inventions agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth above.
"COMPANY"
ENDOLOGIX, INC.,
A Delaware corporation
By:
-------------------------------------
Its: Chairman and CEO
"EXECUTIVE"
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[EMPLOYEE NAME]
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EXHIBIT A
[EMPLOYEE NAME] BENEFITS
--Health Insurance
--Dental Insurance
--Prescription Drug Insurance
--Group Life Insurance
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