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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made and entered into as of
the 1st day of March, 2000, by and between Kensey Nash Corporation, a Delaware
corporation (the "Company"), and Caron S. D'Ambruso (Executive").
WHEREAS, the Company wishes to retain Executive as an executive
employee, and Executive wishes to be employed by the Company in such capacity,
all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants of parties
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. EMPLOYMENT OF EXECUTIVE. The Company engages and employs Executive in an
executive capacity and Executive accepts such employment and agrees to act as an
employee of the Company in accordance with the terms of employment hereinafter
specified. Executive shall hold the position of Director of Marketing, and
shall, subject to the direction and supervision of the Company's Officers, (a)
have the responsibilities and authority customarily associated with such
position, and (b) perform such other duties and responsibilities as the
Company's Officers shall from time to time assign to him/her. Executive agrees
diligently and faithfully to serve the Company and to devote her best efforts,
her full business time and her highest talents and skills to the furtherance and
success of the Company's business.
2. COMPENSATION. As full and complete compensation to Executive for all services
to be rendered by Executive hereunder, the Company shall pay Executive as
follows:
(a) The Company shall, during the term of Executive's full-time
employment, pay or cause to be paid to Executive a base salary at the rate of
$125,000 per annum, or Executive's most recent per annum Kensey Nash Corporation
base salary, whichever is greater. Such base salary shall be paid in periodic
installments at the discretion of the Company (but not less frequently than
monthly) in accordance with the Company's normal mode of executive salary
payment.
(b) The Company may, during the term of Executive's employment, pay or
cause to be paid to Executive an annual bonus of cash, stock or other property
in such amounts as the Company's Officers may determine in their sole
discretion, but not to exceed 75% of Executive's base salary.
3. TERM OF EMPLOYMENT; SEVERANCE.
(a) The term of Executive's employment hereunder (the "Employment
Term") shall commence on the date hereof and shall expire two (2) years after
such date.
(b) Termination of Executive's employment pursuant to this Agreement or
voluntary termination of employment shall not constitute a waiver of any of
Executive's obligations hereunder
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which survive termination hereof, including without limitation those arising
under paragraphs 5 through 9 inclusive hereof.
(c) In the event Executive's employment is terminated by the Company
without cause (as hereinafter defined), Executive shall continue to be entitled
to receive those fringe benefits enumerated in paragraph 4 hereof until the
expiration of the original Employment Term and the Company shall pay to
Executive a severance fee equal to any amount of base salary remaining until the
expiration of the original Employment Term; provided, however, that Executive
shall not be entitled to receive any fringe benefits or such severance fee if
Executive breaches any of her obligations arising under paragraphs 7 through 9
hereof. The continuance of Executive's fringe benefits and the payment by the
Company of any severance fee to Executive pursuant to this Agreement shall be in
complete satisfaction and settlement of, and as liquidated damages for, any and
all of Executive's claims, damages or causes of action arising directly or
indirectly from this Agreement; and shall be conditional upon Executive's prior
execution of a waiver and release of all claims for the benefit of the Company.
In addition, upon the termination of Executive's employment by the Company
without cause, all options to purchase shares of common stock of the Company
("Options") that were granted to Executive and have vested prior to the date of
such termination without cause shall remain exercisable for a period of one (1)
year from the date of such termination without cause.
(d) In the event Executive's employment is terminated with cause, the
Company shall have no further obligations hereunder or otherwise with respect to
Executive's employment from and after the date of such termination, except for
the payment of Executive's base salary accrued through the date of such
termination. For purposes of this Agreement, "cause" for termination shall be
deemed to exist upon (i) a determination by the Company's Officers that
Executive has committed an act of fraud, embezzlement or other act of dishonesty
which would reflect adversely on the integrity of the Company or if Executive is
convicted of any criminal statute involving breach of fiduciary duty or moral
turpitude; (ii) a reasonable determination by the Company's Officers that
Executive has failed to discharge her duties in a reasonably satisfactory manner
which failure is not cured by Executive within thirty (30) days after delivery
of written notice to Executive specifying the nature of such failure; (iii) the
death of Executive; (iv) a mental or physical disability of Executive which
renders Executive, in the reasonable opinion of the Company's Board of
Directors, unable to effectively perform her duties hereunder for a
substantially continuous period of one hundred eighty (180) days; or (v) the
voluntary termination of Executive's employment hereunder other than as a result
of a breach of the Company's obligations hereunder.
(e) In the event Executive's employment is terminated by the Company
pursuant to a Change in Control (as that term is defined in that certain
Termination and Change in Control Agreement dated of even date herewith between
the Company and Executive (the "Change in Control Agreement")), the Company
shall pay to Executive a severance fee equal to the greater of (i) the amount
Executive would be entitled to receive under paragraph 3(c) of this Agreement
for a termination without cause, or (ii) the amount Executive would be entitled
to receive pursuant to a Change in Control under the Change in Control
Agreement. Such payment shall be conditional upon Executive's prior execution of
a waiver and release of all claims.
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4. FRINGE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate in all health insurance and retirement benefit programs normally
available to other executives of the Company holding positions similar to that
of Executive hereunder (subject to all applicable eligibility rules thereof), as
from time to time in effect
(b) Executive shall be entitled to paid vacation according to the
normal vacation schedule for other executive employees. Executive shall make
good faith efforts to schedule such vacations so as to least conflict with the
conduct of the Company's business and shall give the Company adequate advance
notice of her planned absences.
(c) The Company shall reimburse Executive for all business-related
expenses incurred by Executive at the Company's direction. Executive shall
submit to the Company expense reports in compliance with established Company
guidelines.
5. INVENTIONS. Executive agrees, on behalf of himself, her heirs and personal
representatives, that she will promptly communicate, disclose and transfer to
the Company free of all encumbrances and restrictions (and will execute and
deliver any papers and take any action at any time deemed necessary by the
Company to further establish such transfer) all inventions and improvements
relating to Company's business originated or developed by Executive solely or
jointly with others during the Employment Term hereunder. Such inventions and
improvements shall belong to the Company whether or not they are patentable and
whether or not patent applications are filed thereon. Such transfer shall
include all patent rights (if any) to such inventions or improvements in the
United States and in all foreign countries. Executive further agrees, at the
request of Company, to execute and deliver, at any time during the term of her
employment hereunder or after termination thereof, all assignments and other
lawful papers (which will be prepared at the Company's expense) relating to any
aspect of the prosecution of such patent applications and rights in the United
States and foreign countries.
6. EXPOSURE TO PROPRIETARY INFORMATION.
(a) Executive acknowledges and agrees that during the course of her
employment by Company, she will be in continuous contact with customers,
suppliers and others doing business with the Company throughout the world.
Executive further acknowledges that the performance of her duties hereunder will
expose him to data and information concerning the business and affairs of the
Company, including but not limited to information relative to the Company's
proprietary rights and technology, patents, financial statements, sales
programs, pricing programs, profitability analyses and profit margin
information, customer buying patterns, needs and inventory levels, supplier
identities and other related matters, and that all of such data and information
(collectively "the Proprietary Information") is vital, sensitive, confidential
and proprietary to Company.
(b) In recognition of the special nature of her employment hereunder,
including but not limited to her special access to the Proprietary Information,
and in consideration of her employment, Executive agrees to the covenants and
restrictions set forth in paragraphs 7 through 9 inclusive hereof. As used in
this Agreement, the term "Company" shall include, where applicable, any parent,
subsidiary, sub-subsidiary, or affiliate of Company.
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7. USE OF PROPRIETARY INFORMATION. Executive acknowledges that the Proprietary
Information constitutes a protectible business interest of Company, and
covenants and agrees that during the Employment Term hereunder and after the
termination of such employment, she shall not, directly or indirectly, whether
individually, as a director, stockholder, owner, partner, employee or agent of
any business, or in any other capacity, make known, disclose, furnish, make
available or utilize any of the Proprietary Information, other than in the
proper performance of her duties during the term of her employment hereunder.
Executive's obligations under this paragraph with respect to particular
Proprietary Information shall terminate only at such time (if any) as the
Proprietary Information in question becomes generally known to the public other
than through a breach of Executive's obligations hereunder.
8. RESTRICTION AGAINST COMPETITION AND EMPLOYING OR SOLICITING COMPANY
EMPLOYEES, CUSTOMERS OR SUPPLIERS. Executive covenants and agrees that during
the Employment Term hereof and for the one (1) year period immediately following
the effective date of any termination of her employment hereunder (the
"Termination Date"), she shall not, directly or indirectly, whether
individually, as a director, stockholder, partner, owner, employee or agent of
any business, or in any other capacity, (i) engage in a business substantially
similar to that which is conducted by the Company in any market area in which
such business is operated; (ii) solicit any party who is or was a customer or
supplier of the Company on the Termination Date or at any time during the six
month period immediately prior thereto for the sale or purchase of any type or
quantity of products sold by or used in the business of the Company on the
Termination Date or at any time within such six month period; or (iii) solicit
for employment any person who was or is an employee of the Company on the
Termination Date or at any time during the twelve month period immediately prior
thereto.
9. RETURN OF COMPANY MATERIALS UPON TERMINATION. Executive acknowledges that all
price lists, sales manuals, catalogs, binders, customer lists and other customer
information, supplier lists, financial information, and other records or
documents containing Proprietary Information prepared by Executive or coming
into her possession by virtue of her employment by the Company is and shall
remain the property of the Company and that upon termination of her employment
hereunder, Executive shall return immediately to the Company all such items in
her possession, together with all copies thereof.
10. EQUITABLE REMEDIES.
(a) Executive acknowledges and agrees that the covenants set forth in
paragraphs 5 through 9 inclusive hereof are reasonable and necessary for the
protection of the Company's business interests, that irreparable injury will
result to the Company if Executive breaches any of the terms of said covenants,
and that in the event of Executive's actual or threatened breach of any such
covenants, the Company will have no adequate remedy at law. Executive
accordingly agrees that in the event of any actual or threatened breach by him
of any of said covenants, the Company shall be entitled to immediate injunctive
and other equitable relief, without bond and without the necessity of showing
actual monetary damages. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of any damages which it
is able to prove.
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(b) Each of the covenants in paragraphs 5 through 9 inclusive hereof
shall be construed as independent of any other covenants or other provisions of
this Agreement.
(c) In the event of any judicial determination that any of the
covenants set forth in paragraphs 5 through 9 inclusive hereof is not fully
enforceable, it is the intention and desire of the parties that the court treat
said covenants as having been modified to the extent deemed necessary by the
court to render them reasonable and enforceable, and that the court enforce them
to such extent.
11. LIFE INSURANCE. The Company may at its discretion and at any time apply for
and procure as owner and for its own benefit and at its own expense, insurance
on the life of Executive in such amounts and in such form or forms as the
Company may choose. Executive shall cooperate with the Company in procuring such
insurance and shall, at the request of Company, submit to such medical
examinations, supply such information and execute such documents as may be
required by the insurance company or companies to whom the Company has applied
for such insurance. Executive shall have no interest whatsoever in any such
policy or policies, except that, upon the termination of Executive's employment
hereunder, Executive shall have the privilege of purchasing any such insurance
from the Company for an amount equal to the actual premiums thereon previously
paid by Company.
12. NOTICES. Any notice required or permitted pursuant to the provisions of this
Agreement shall be deemed to have been properly given if in writing and when
sent by United States mail, certified or registered, postage prepaid, when sent
by facsimile or when personally delivered, addressed as follows:
If to Company:
Kensey Nash Corporation
Marsh Creek Corporate Center
55 East Uwchlan Avenue, Suite 204
Exton, Pennsylvania 19341
Attention: Kenneth Kensey
With a copy to:
Katten Muchin Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: David R. Shevitz, Esq.
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If to Executive:
Caron D'Ambruso
69 Bouwery Place
Whitehouse Station, NJ 08889
Each party shall be entitled to specify a different address for the
receipt of subsequent notices by giving written notice thereof to the other
party in accordance with this paragraph.
13. WAIVER OF BREACHES. No waiver of any breach of any of the terms, provisions
or conditions of this Agreement shall be construed or held to be a waiver of any
other breach, or a waiver of, acquiescence in or consent to any further or
succeeding breach thereof.
14. ASSIGNMENT. This Agreement shall not be assignable by either party without
the written consent of the other; provided, however, that this Agreement shall
be assignable to any corporation or entity which purchases the assets of or
succeeds to the business of the Company (a "Successor Employer"), and the
Company agrees to cause this Agreement to be assumed by any Successor Employer
as a condition to such purchase or succession. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors and assigns.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with laws and judicial decisions of the State of Pennsylvania.
16. SEVERABILITY. If any term or provision of this Agreement shall be held to be
invalid or unenforceable, the remaining terms and provisions hereof shall not be
affected thereby.
17. MISCELLANEOUS. Paragraph headings herein are for convenience only and shall
not affect the meaning or interpretation of the contents hereof. This Agreement
contains the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
between the parties and all prior obligations of the Company with respect to the
employment of Executive by the Company or the payment to Executive of
compensation of any kind whatsoever. No supplement or modification of this
Agreement shall be binding unless in writing and signed by both parties hereto.
This agreement may be executed in multiple counterparts, each of which shall be
deemed enforceable without production of the others.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first hereinabove set forth.
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Caron S. D'Ambruso
KENSEY NASH CORPORATION
By:
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Title:
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Exhibit A
BENEFITS
Health/prescription, dental, and vision insurance equal to that provided for all
other full-time exempt Kensey Nash Corporation employees.
Life insurance in the amount of $50,000
Short term disability insurance equal to that provided for all other full-time
exempt Kensey Nash Corporation employees.
Long term disability benefits at 60% of salary
Three weeks annual vacation
Six days annual personal leave
Eleven holidays each year
401K Plan
Employee Incentive Compensation Plan
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