Exhibit 10.13
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of March 24, 2001, is
entered into between Bio-Medical Automation, Inc. (the "Company" or
"Bio-Medical"), located at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx
00000, and Xxxxxx X. Xxxxxxx ("Employee").
W I T N E S S E T H :
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WHEREAS, the Company desires to employ the Employee and to be assured of
his services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such terms
and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, the Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee as the
President and Chief Executive Officer of the Company, and the Employee accepts
such employment, upon the terms and subject to the conditions set forth in this
Agreement.
2. Term. The term of this Agreement shall commence on March 25, 2001, and
terminate on March 24, 2002 (the "Term"), subject to earlier termination
pursuant to the provisions of Section 7 hereof.
3. Duties. During the term of this Agreement, the Employee shall serve as the
President and Chief Executive Officer of the Company and shall perform all
duties commensurate with his position (including, but not limited to, those
heretofore performed by the Employee) and as may be assigned to him by the Board
of Directors of the Company and subject to the control of the Board of Directors
of the Company. It is understood that Employee will not devote his full business
time and energies to the business and affairs of the Company, however Employee
shall use his best efforts, skills and abilities to promote the interests of the
Company and to diligently and competently perform the duties of his position.
4. Compensation, Benefits, Options and Incentive Bonus.
4.1 Base Salary. During the term of this Agreement, as compensation for the
proper and satisfactory performance of all duties to be performed by Employee
hereunder, the Company shall pay to Employee a base salary of $48,000.00 per
annum for the term of this Employment Agreement, payable in equal bi-weekly
installments of $2,000.00 each, payable on the first and fifteenth day of each
month, less required deductions for state and federal withholding tax, Social
Security, and other employee taxes.
4.2 Bonus Compensation. Employee shall be entitled to earn and receive
bonus compensation provided that certain performance goals are achieved by the
Company. Bonuses shall be granted in accordance with a bonus plan to be adopted
by the Company, the terms and conditions of which shall be determined by the
Board of Directors of Bio-Medical.
4.3 Employee Benefit Plans. At all times during the term of this Agreement
the Employee shall be provided the opportunity to participate in all health,
pension and welfare plans, programs and benefits (the "Plans") offered generally
to all employees of Bio-Medical.
5. Reimbursement of Business Expenses. During the term of this Agreement, upon
submission of proper invoices, receipts or other supporting documentation
satisfactory to the Company and in specific accordance with such guidelines as
may be established from time to time by the Company's Board of Directors, the
Employee shall be reimbursed by the Company for all reasonable business expenses
actually and necessarily incurred by the Employee on behalf of the Company in
connection with the performance of services under this Agreement.
6. Representations.
6.1 Employability. The Employee represents and warrants that he is not
party to, or bound by, any agreement or commitment, or subject to any
restriction, including, but not limited to agreements related to previous
employment containing confidentiality or non-compete covenants, which in the
future may have a possibility of adversely affecting the business of the Company
or the performance by the Employee of his duties under this Agreement.
6.2 Awareness of Certain Employment Regulations. The Employee represents
and warrants that he is aware that there are laws and regulations that prohibit
discrimination in the workplace based upon, among other things, race, religion,
gender, and national origin such as Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000e et. seq., and similar laws adopted by the states (the
"Discrimination Laws"). Employee represents and warrants that he will abide by
the Discrimination Laws in the performance of his duties under this Agreement.
The Employee, further, represents and warrants that if he becomes aware of any
violation or potential violation of the Discrimination Laws that he will
immediately notify the Company, in writing, of any such violation or potential
violation of the Discrimination Laws.
7. Termination. This Agreement may be terminated prior to the expiration of the
Term set forth in Section 2 upon the occurrence of any of the events set forth
in, and subject to the terms of, this Section 7.
(a) Death. This Agreement will terminate immediately and automatically upon the
death of the Employee.
(b) Disability. This Agreement may be terminated at the Company's option,
immediately upon notice to the Employee, if the Employee shall suffer a
permanent disability. For the purposes of this Agreement, the term "permanent
disability" shall mean the Employee's inability to perform his duties under this
Agreement for a period of ninety (90) consecutive days due to illness, accident
or any other physical or mental incapacity, as determined by the Board of
Directors of the Company. In the event that a dispute arises with respect to the
disability of the Employee, the parties shall each select a duly licensed
medical doctor to make such a determination. If the two doctors so selected
cannot agree on a determination, they will mutually select a third duly licensed
medical doctor and the decision of the majority of the three doctors will be
binding.
(c) Cause. This Agreement may be terminated at the Company's option, immediately
upon notice to the Employee, upon: (1) breach by the Employee of any material
provision of this Agreement; (2) breach by the Employee of any fiduciary duty to
the Company, or any of its affiliates or subsidiaries; (3) gross negligence or
willful misconduct of the Employee in connection with the performance of his
duties under this Agreement; (4) Employee's failure to perform (i) any of his
duties or responsibilities required pursuant to this Agreement, or (ii) any
reasonable directive of the Chief Executive Officer or Board of Directors of the
Company; (5) fraud, criminal conduct, dishonesty or embezzlement by the
Employee; or (6) Employee's misappropriation for personal use of any assets
(having in excess of nominal value) or business opportunities of the Company;
provided that in any such case with respect to any such breach that is capable
of being cured, the Employee is afforded a ten (10)-day cure period for such
monetary breaches and a thirty (30)-day cure period for such non-monetary
breaches.
(d) Termination by Employee. This Agreement may be terminated by Employee prior
to the expiration of the Term set forth in Section 2 upon three (3) months
written notice to the Company, which notice may not be given prior to nine (9)
months following the date hereof.
(e) Effect of Termination. Upon the termination of this Agreement pursuant to
this Section 7, the Employee shall be entitled to his Compensation to the date
of termination as set forth in this Section 7, and after such date shall not be
entitled to any Compensation, benefits or other rights granted herein to the
Employee.
8. Miscellaneous.
(a) Entire Agreement. This Agreement sets forth the entire understanding of
the parties and merges and supersedes any prior or contemporaneous agreements
between the parties pertaining to the subject matter hereof.
(b) Modification. This Agreement may not be modified or terminated orally,
and no modification, termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom
the same is sought to be enforced.
(c) Waiver. Failure of a party to enforce one or more of the provisions of
this Agreement or to require at any time performance of any of the obligations
hereof shall not be construed to be a waiver of such provisions by such party
nor to in any way affect the validity of this Agreement or such party's right
thereafter to enforce any provision of this Agreement, nor to preclude such
party from taking any other action at any time which it would legally be
entitled to take.
(d) Successors and Assigns. Neither party shall have the right to assign
this Agreement, or any rights or obligations hereunder, without the consent of
the other party; provided, however, that upon the sale of all or substantially
all of the assets, business and goodwill of the Company to another company, or
upon the merger or consolidation of the Company with another company, this
Agreement shall inure to the benefit of, and be binding upon, both Employee and
the company purchasing such assets, business and goodwill, or surviving such
merger or consolidation, as the case may be, in the same manner and to the same
extent as though such other company were the Company; and provided, further,
that the Company shall have the right to assign this Agreement to any affiliate
or subsidiary of the Company or Bio-Medical. Subject to the foregoing, this
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their legal representatives, heirs, successors and assigns.
(e) Communications. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been given
at the time personally delivered or when mailed in any United States post office
enclosed in a registered or certified postage prepaid envelope and addressed to
the addresses set forth below, or to such other address as any party may specify
by notice to the other party; provided, however, that any notice of change of
address shall be effective only upon receipt.
To the Company: Xxx-Xxxxxxx.xxx, Inc.
00 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
To the Employee: Xx. Xxxxxx X. Xxxxxxx
00 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
(f) Severability. If any provision of this Agreement is held to be invalid
or unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
(g) Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of New York, without regard to the conflicts
of law principles thereof.
(h) No Third-Party Beneficiaries. Each of the provisions of this Agreement
is for the sole and exclusive benefit of the parties hereto and shall not be
deemed for the benefit of any other person or entity.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement as of the date set forth above.
Bio-Medical Automation, Inc.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Title: Director
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
