Exhibit 10.2 to 8-K
AGREEMENT FOR SERVICES
AGREEMENT FOR SERVICES (this "Agreement") dated as of the 1st day of
January, 2005 (the "Effective Date") between Diomed Holdings, Inc., a Delaware
corporation (the "Company"), and BrookstoneFive, Inc. ("BrookstoneFive"), for
the services of David B. Swank ("Employee").
WHEREAS, BrookstoneFive employs and makes available to third party
employers the service of its employees as executives, including Employee; and
WHEREAS, Employee is willing to provide his services at the request of
BrookstoneFive as the chief financial officer of the Company and to serve as a
member of the boards of directors of the Company and its subsidiary, Diomed,
Inc., a Delaware corporation.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter stated, the Company, BrookstoneFive and Employee hereby agree as
follows:
1. Employment and Term.
(a) As of the Effective Date, the Company will engage BrookstoneFive
to provide the services of Employee, and BrookstoneFive will provide the
services of Employee, to work for the Company for the Term (as defined in
Section 3(a)). During the Term, Employee shall serve the Company's Chief
Financial Officer. During the Term, Employee shall be subject to, observe and
carry out such rules, regulations and policies as the Company may from time to
time reasonably establish and which are generally applicable to senior
executives of the Company. During the Term, Employee will serve the Company
faithfully and to the best of his ability to perform such services and duties of
an executive nature in connection with the business, affairs and operations of
the Company as may be assigned or delegated to him from time to time by or under
the authority of the Board of Directors of the Company (the "Board").
Notwithstanding the foregoing, Employee shall not be required to provide
services under this Agreement for more than sixteen business days per month, of
which at least twelve will be spent at the Company's headquarters in Andover,
Massachusetts or traveling on the Company's behalf.
(b) In the role of Chief Financial Officer, Employee will be
primarily responsible for the financial, accounting, tax, treasury, legal and
MIS functions of the Company. Employee will report directly to the Chief
Executive Officer, and Employee's direct reports will include both the Vice
President Finance and the UK-based Controller (functionally
direct/administratively indirect).
(c) Employee will be nominated to serve as a member of the board of
directors of the Company and be appointed to serve as a member of the board of
directors of Diomed, Inc. In the case of each such board, Employee will serve
thereon until his successor is elected and qualifies.
2. Compensation.
(a) During the Term, beginning as of January 1, 2005, as base
compensation for the services of Employee, the Company shall pay BrookstoneFive
at the rate of $200,000 per annum, subject to the review by Board from time to
time that results in an increase in the rate of compensation (the "Base
Compensation"), in each case payable in twenty-four (24) equal semi-monthly
installments on the 15th and the last day of each month. During the Term, the
Base Compensation may be increased from time to time as determined by the Board.
(b) In addition, as incentive compensation for the services of
Employee (the "Incentive Compensation") during the Term, the Company shall pay
BrookstoneFive an additional amount (payable not later than the later of (a)
March 3l of the following year or (b) within ten (10) business days of the
completion of the independent audit of the Company's financial statements for
the fiscal year) equal to 30% of the Base Compensation, payable in cash, based
on specific goals to be mutually agreed upon between the Company and
BrookstoneFive prior to January 31, 2005.
(c) The Company shall reimburse BrookstoneFive for all reasonable
out-of-pocket expenses incurred by Employee in the performance of his duties
hereunder, including without limitation, travel expenses, in accordance with the
Company's expense reimbursement policy as in effect from time to time for its
direct employees, including for travel expenses to and from headquarters and
lodging while at headquarters.
(d) In lieu of all benefits that are available to executives of the
Company, the Company will pay BrookstoneFive or Employee an amount not to exceed
$800.00 per month to cover Employee's health insurance costs.
(e) BrookstoneFive understands and acknowledges that the Base
Compensation and Incentive Compensation shall be in lieu of any and all other
compensation, benefits and plans payable to or account for the benefit of
BrookstoneFive or Employee and represents payment in full for all services to be
provided to the Company by BrookstoneFive and Employee. Notwithstanding, the
foregoing, the Company may in its sole discretion, from time to time, grant
stock options, restricted shares or other equity-based compensation directly to
Employee.
3. Term and Termination.
(a) This Agreement shall be effective from the Effective Date and
shall continue until December 31, 2005 (the "Initial Term"), unless earlier
terminated in accordance with the provisions of this Section 3. Thereafter this
Agreement shall be effective for additional periods of one year each, each
ending on December 31, unless either BrookstoneFive or the Company has notified
the other, not later that November 30 of the preceding year (beginning with
November 30, 2005) that such party is unwilling to extend the term of
BrookstoneFive's engagement under this Agreement. The Initial Term, as so
extended, is referred to in this Agreement as the "Term."
(b) Reserved.
(c) Reserved.
(d) Employee shall have the contractual right to enforce any
indemnification obligations of the Company provided for in this Agreement, the
charter documents, by law or in any other instruments.
(e) The Company may terminate BrookstoneFive's engagement under this
Agreement for Cause (as defined below in this Section 3(c)) at any time upon
written notice to BrookstoneFive. The following shall constitute cause ("Cause")
for termination: (i) Employee's repeated failure to comply with reasonable
directives of the Board which failure has not been cured by Employee within
thirty (30) days following receipt of written notice from the Company to
BrookstoneFive and Employee specifying the nature of such failure; (ii)
Employee's gross negligence or willful misconduct in the performance of duties
assigned to him by the Board which failure Employee has not cured within thirty
(30) days following receipt of written notice from the Company to BrookstoneFive
and Employee specifying the nature of such gross negligence or willful
misconduct; (iii) intentional conduct by Employee or BrookstoneFive materially
harmful to the Company's business and affairs intended to result in substantial
personal gain or enrichment to Employee or BrookstoneFive at the expense of the
Company, including without limitation a material breach of Employee's
obligations pursuant to Section 4 or Section 5 of this Agreement; (iv) the
determination by the Securities and Exchange Commission, National Association of
Securities Dealers, Inc., American Stock Exchange or any other securities
regulator to which the Company is subject of any misconduct by BrookstoneFive or
Employee, whether related to the Company or any other person or entity and
whether arising prior to or after the Effective Date; or (v) conviction of
BrookstoneFive or Employee or a plea of nolo contendre by BrookstoneFive or
Employee of any crime involving personal dishonesty or fraud or any felony. Upon
termination for Cause as provided in this Section 3(c), the Company will pay
BrookstoneFive any Base Compensation and Incentive Compensation that has accrued
under the terms of this Agreement and that remains unpaid as of the date of
termination, but all other benefits (including without limitation vesting of any
unvested Options as of the date of such termination) shall immediately
terminate; provided, however, that any Base Compensation or Incentive
Compensation accrued and payable to BrookstoneFive prior to said termination
date shall be paid to BrookstoneFive.
(f) The Company may terminate BrookstoneFive's engagement under this
Agreement other than for Cause at any time upon not less than thirty (30) days'
prior written notice to BrookstoneFive. In the event of such termination by the
Company under this Section 3(d), the Company will pay to BrookstoneFive, in
accordance with the Company's general payroll practices for its direct executive
employees, the greater of (i) the Base Compensation for the remainder of the
Term and (ii) an amount equal to twelve months of Base Compensation at the rate
then in effect. Notwithstanding the foregoing, the Company shall have no
obligation to make any payments to Employee following termination without Cause
(i) unless and until BrookstoneFive and Employee execute and deliver to the
Company, and neither revokes, the Company's standard release of all claims
(other than for amounts owed under this Section 3d), including the Company's
satisfaction that such release complies with the requirements of the Age
Discrimination in Employment Act or (ii) if Employee breaches his obligations
set forth in Sections 4 and 5.
(g) BrookstoneFive may terminate its engagement under this Agreement
for Good Reason (as defined herein) at any time upon notice by BrookstoneFive to
the Company setting forth in reasonable detail the nature of such Good Reason.
The following shall constitute "Good Reason" for termination (unless with
respect to items (i), (ii) and (iii) cured in all material respects by the
Company within 30 days following written notice by BrookstoneFive to the
Company): (i) any material reduction in the nature or scope of Employee's
position, duties, responsibilities or authority with the Company, (ii) the
failure of the Company to remit or execute any compensation provided for under
this Agreement which in any such case BrookstoneFive does not consent to in
writing, (iii) the Company's material breaches of its material obligations or
material representations under this Agreement, (iv) the Company's failure to
obtain in writing the assumption of its obligations under this Agreement by any
successor to the Company prior to or concurrent with any transaction that
results in a change in control (as defined in Rule 405 of rules and regulations
promulgated under the Securities Act of 1933, as amended) of the Company or (v)
the Company's notice to BrookstoneFive that it is unwilling to extend the term
of BrookstoneFive's engagement as provided in Section 3(a). In the event of such
termination by Employee for Good Reason, the Company shall pay to BrookstoneFive
the greater of (A) a lump sum equal to Base Compensation at the rate in effect
on the date of termination for the remainder of the Term and (ii) an amount
equal to twelve months of Base Compensation at the rate in effect on the date of
termination. Notwithstanding the foregoing, the Company shall have no obligation
to make any payments to BrookstoneFive following termination for Good Reason (i)
unless and until BrookstoneFive and Employee execute and deliver to the Company,
and neither revokes, a release of all claims (other than for amounts owed under
this Section 3(e)) in form and substance satisfactory to the Company, including
the Company's satisfaction that such release complies with the requirements of
the Age Discrimination in Employment Act or (ii) if Employee breaches his
obligations set forth in Sections 4 and 5.
(h) BrookstoneFive's engagement under this Agreement will terminate
upon the death of Employee, in which event the Company will pay BrookstoneFive
any accrued but unpaid Base Compensation through the end of the month in which
Employee's death occurs and any obligations related to the provision for taxes
under Section 2(c).
(i) The Company may terminate BrookstoneFive's engagement under this
Agreement, upon notice to BrookstoneFive, in the event that Employee becomes
permanently disabled during the Term through any illness, injury, accident or
condition of either a physical or psychological nature and, as a result, is
unable to perform substantially all of his duties and responsibilities hereunder
for ninety (90) days during any period of six (6) consecutive months. The Board
may designate another person to act in Employee's place during any period of
disability. Designation of a person to act in place or the disabled Employee
while disabled but prior to his having become permanently disabled as aforesaid
shall not be Good Reason. Upon termination for disability as provided in this
Section 3(g), the Company shall continue to pay BrookstoneFive the Base
Compensation through the date on which Employee first receives payment of
disability benefits under the Company's employee benefit plans then in effect.
(j) Notwithstanding the foregoing, Employee's obligations under
Section 4 and Section 5 of this Agreement shall survive the termination of
BrookstoneFive's engagement under this Agreement for any reason other than (A)
by the Company without cause or (B) by Employee with Good Reason. Upon any
termination of BrookstoneFive's engagement, Employee shall be deemed to have
resigned from the Board of the Company if he is a Director as well as from all
other directorships and other offices he then holds with the Company and with
any of the Company's subsidiaries.
(k) The obligations of the Company to pay Incentive Compensation
that has become due and payable in accordance with Section 2(b) shall survive
any termination of this Agreement or expiration or termination of the Term,
other than a termination for Cause. If the Company terminates BrookstoneFive's
engagement for Cause, then, notwithstanding any other provision of this
Agreement to the contrary, the Company shall have no obligation to pay any
Incentive Compensation and Incentive Compensation that has theretofore become
due and payable under the terms and conditions of this Agreement.
4. Inventions; Trade Secrets
(a) In order to induce the Company to enter into this Agreement with
BrookstoneFive, Employee agrees that his relationship with the Company under
this Agreement creates a relationship of confidence and trust between him and
the Company with respect to (i) all Proprietary Information, as defined below,
and (ii) the confidential information of others with which the Company has a
business relationship and which is supplied to the Company under an obligation
of confidence. Employee agrees that during the Term and thereafter, Employee
will keep in confidence and trust all such information, and will not use or
disclose any such information without the written consent of the Company, except
as may be necessary in the ordinary course or performing his duties to the
Company while employed by the Company. "Proprietary Information" means
information that the Company possesses or has rights to which has commercial
value in the Company's business, including, without limitation, confidential
information, trade secrets, product ideas, processes, formulas, designs,
software, improvements, inventions, data and know-how, copyrightable materials,
marketing plans and strategies, sales and financial reports and forecasts and
customer lists, provided that "Proprietary Information" shall not include any
such information which is generally known to the public or in the trade unless
such knowledge results from a breach of this Agreement by Employee.
(b) In order to induce the Company to enter into this Agreement with
BrookstoneFive, Employee further agrees that:
(i) All Proprietary Information shall be the sole property of
the Company and its assigns, and the Company and its assigns shall be the sole
owner of all trade secrets, patents, copyrights, and other rights in connection
therewith. Employee hereby assigns to the Company any rights he may have or
acquire in such Proprietary Information.
(ii) All documents, records, apparatus, equipment and other
physical property, whether or not pertaining to Proprietary Information,
furnished to Employee by the Company or produced by him or others in connection
with his employment shall he and remain the sole property of the Company.
Employee shall return to the Company all such materials and property as and when
requested by the Company. Even if the Company does not so request, Employee
shall return all such materials and property upon termination or his employment
for any reason, and will not take with him or otherwise retain possession of any
such material or property or any duplicate or reproduction thereof in any medium
upon such termination.
(iii) Employee will promptly disclose to the Company, or any
persons designated by it, all improvements, inventions, works of authorship,
formulas, ideas, processes, techniques, know-how and data, whether or not
patentable (collectively, "Inventions"), made or conceived, reduced to practice
or learned by him, either alone or jointly with others, in the course of his
employment or which is otherwise subject to Section 4(b)(iv).
(iv) All Inventions which Employee conceives, develops or has
developed (in whole or in part, either alone or jointly with others) during the
Term which relate at the time of conception or reduction to practice thereof to
the actual or demonstrably anticipated business of the Company or to its actual
or demonstrably anticipated research and development, or which result from any
work performed by Employee for the Company or which are developed on Company
time or through the use of the Company's Proprietary Information or other
resources, shall be the sole property of the Company and its assigns (and to the
fullest extent permitted by law shall be deemed works made for hire), and the
Company and its assigns shall be the sole owner of all patents, copyrights and
other rights in connection therewith. Employee hereby assigns to the Company any
rights he may have or acquire in such Inventions.
(v) With respect to Inventions described in subsection (iv)
above, Employee will assist the Company in every proper way (but at the
Company's expense) to obtain and from time to time enforce patents, copyrights
or other rights on said Inventions in any and all countries, and will execute
all documents reasonably necessary or appropriate for this purpose. Employee
agrees that this obligation shall survive the termination of his employment, but
the Company shall compensate him at a reasonable rate after such Termination for
time actually spent by him or the Company's request on such assistance. In the
event that the Company is unable after using all its reasonable efforts to
secure within three (3) business days of the Company's request therefore the
signature of Employee to any document which the Company determines is reasonably
necessary or appropriate for any of the foregoing purposes, (including renewals,
extensions, continuations, divisions or continuations in part), Employee hereby
irrevocably designates und appoints the Company and its duly authorized officers
and agents, as his agents and attorneys-in-fact to act for and on his behalf and
instead of him, but only for the purpose of executing and filing any such
document and doing all other lawfully permitted acts to accomplish the foregoing
purposes with the same legal force and effect as if executed by Employee. The
foregoing appointment of the Company as Employee's attorney-in-fact is intended
to be and shall be deemed as coupled with an interest
(c) Employee represents that his execution of this Agreement, his
employment with the Company and his performance of his duties for the Company
hereunder will not violate any obligations he may have to any former employer or
any other third party, including any obligations to keep confidential any
proprietary or confidential information. Employee represents that he has not
entered into, and will not enter into, any agreement which conflicts with or
would, if performed by Employee, cause him to breach any of his obligations
under this Agreement.
(d) In the course of performing his duties to the Company, Employee
agrees that he will not utilize any proprietary or confidential information of
any former employer or other third party in any manner that would violate any
obligation to which Employee is subject.
5. Non-Competition and Non-Solicitation.
(a) In order to induce the Company to enter into this Agreement with
BrookstoneFive, during the Term, and for a period of 12 months after the
termination of the Term for any reason (other than termination without Cause by
the Company or with Good Reason by Employee) of BrookstoneFive's engagement with
the Company hereunder, Employee agrees and covenants that he shall not, directly
or indirectly, own, manage, operate, join, control, participate in, invest in,
advise, assist, act as a consultant for or otherwise be connected with, in any
manner, whether as an officer, director, shareholder, employee, partner,
venturer, investor or otherwise, any competitor, which shall mean any person or
business entity engaged in or about to become engaged in the production,
licensing, sale or marketing of any product or service or planned business
involving endovenous laser treatment, photodynamic therapy or any other product
or service of or under development by the Company at the time of termination of
Employee's employment. The foregoing shall not be denied to prohibit Employee
from investing Employee's personal funds in securities of an issuer that is a
competitor of the Company if the securities of such issuer arc listed for
trading on a national securities exchange or are traded in the over-the-counter
market and Employee's holdings therein represent less than 5% of the total
number of outstanding shares or principal amount of the securities of such
issuer.
(b) In order to induce the Company to enter into this Agreement with
BrookstoneFive, during the Term, and for a period of 12 months after the
termination of the Term for any reason of BrookstoneFive's engagement with the
Company hereunder, Employee agrees and covenants that he will not directly or
indirectly, either (or himself or on behalf of any other person or enterprise,
without the express written consent of the Company, (a) solicit or attempt to
solicit or entice away or interfere with the Company's contractual relationships
any of the Company's customers, business partners, suppliers or shareholders in
existence at the time of termination of such employment, or (b) recruit, solicit
or hire, seek or attempt to recruit, solicit or hire or assist in recruiting,
soliciting or hiring any employee or agent of the Company, or except in
connection with the performance of his duties hereunder, take action that
results in the termination of employment or other arrangements between the
Company and any of its employees or agents or otherwise interferes with such
employment or arrangements.
(c) BrookstoneFive and Employee acknowledge and agree that the
provisions of Section 4 and this Section 5 are reasonable and necessary for the
protection of the Company and its intellectual property and business and
interests.
6. Equitable Relief.
BrookstoneFive and Employee recognize and agree that the Company's remedy
at law for any breach of the provisions of Section 4 or Section 5 would be
inadequate, and Employee agrees that for breach of such provisions, the Company
shall, in addition to such other remedies as may be available to it at law or in
equity or as provided in this Agreement, be entitled to injunctive relief and to
enforce its rights by an action for specific performance in any court having
proper jurisdiction. For purposes of the foregoing, Employee agrees to submit to
the jurisdiction of the Federal and state courts located in the counties of
Suffolk and Rockingham. Commonwealth of Massachusetts and in the county of New
York, State of New York, and any other court having proper personal jurisdiction
over Employee, BrookstoneFive and Employee hereby irrevocably waives any right
to seek to have any such proceedings removed to any other court, whether due to
hardship, inconvenience or otherwise.
7. Remedies.
Subject to Section 6, any claim or controversy arising out of or relating
to this Agreement, including without limitation any claim by the Company that
BrookstoneFive or Employee has violated any one or more of the restrictions set
forth in Section 4 or Section 5, shall be settled by arbitration before a single
arbitrator (who shall be a lawyer) in Boston, Massachusetts chosen in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
If the arbitrator finds that a violation of the forgoing restrictions exists or
is threatened, he shall prescribe appropriate relief which may include an award
that Employee desist from such violation where such an order could issue, in the
circumstances, under the equity powers of a court. Judgment upon the award
rendered by the arbitrator may be entered in any court of competent
jurisdiction.
8. Miscellaneous.
(a) The failure of any of the parties to this Agreement to require
the performance of a term or obligation or to exercise any right under this
Agreement or the waiver by any of the parties to this Agreement of any breach
hereunder shall not prevent subsequent enforcement of such term or obligation or
exercise of such right or the enforcement at any time of any other right
hereunder or be deemed a waiver or any subsequent breach of the provision so
breached, or of any other breach, hereunder.
(b) This Agreement shall be deemed entered into in Andover,
Massachusetts and shall be governed by and construed under the laws of the
Commonwealth of Massachusetts, without giving effect to the conflicts of law
provisions thereof.
(c) This Agreement shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by the parties hereto,
provided, that if any one or more of the provisions or parts of a provision
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement,
but this Agreement shall be construed as if such invalid or illegal or
unenforceable provision or part of a provision had been limited or modified
(consistent with its general intent) to the extent necessary so that it shall be
valid, legal and enforceable, or if it shall not be possible to so limit or
modify such invalid or illegal or unenforceable provision or part of a
provision, this Agreement shall be construed as if such invalid or illegal or
unenforceable provision or part of a provision had never been contained herein.
(d) BrookstoneFive shall not assign or transfer in whole or in part
its rights, obligations or interests arising from this Agreement without the
Company's prior written consent. Any such attempt shall be deemed void and may
be construed as a material breach of this Agreement.
(e) The termination of this Agreement for any reason shall not
terminate the obligations or liabilities of the parties under the terms and
conditions of this Agreement regarding confidentiality, non-competition,
non-solicitation, payment, warranties, liabilities, proprietary rights and all
others that by their sense and context are intended to survive the execution,
delivery, performance, termination and expiration of this Agreement, Such
obligations and liabilities shall survive and continue in effect after such
termination.
(f) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and replaces and, as of the Effective
Date, extinguishes any and all prior or contemporaneous agreements, written or
oral, between Employee and the Company, including without limitation the
agreement dated August 5, 2003 (the "Prior Agreement"); provided, that the terms
of the Prior Agreement that provide for the payment of bonus compensation
thereunder shall survive until paid.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first set forth above.
DIOMED HOLDINGS, INC.
By: /s/ James A. Wylie, Jr.
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Name: James A. Wylie, Jr.
Title: President and Chief Executive Officer
BROOKSTONEFIVE, INC.
By: /s/ David B. Swank
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Name: David B. Swank
Title: President
EMPLOYEE
/s/ David B. Swank
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David B. Swank