Exhibit 10.22
October 20, 2004
Xxxx Xxxxxxxxx
00 XxxXxxx Xxxx
Xxxxx, XX 00000
Dear Xxxx,
It is our pleasure to formally offer you the position of Chief Executive Officer
for American Bio Medica Corporation (ABMC), reporting directly to the Board of
Directors of ABMC. This agreement supersedes all other agreements whether
written or verbal and may not be amended except as in writing signed by you and
the Chairman of the Board of ABMC as approved by the Board of Directors. Your
position will be co-located between our Kinderhook facility and our New Jersey
office. Below, we have outlined the major terms and conditions of this offer for
your new position.
Term
Your employment with ABMC will be for a term of one year, automatically renewed
unless either side gives advance notice of 60 days.
Compensation.
For the period January 1, 2004 to September 30, 2004, your compensation will be
as set forth in your June 19, 2003 employment agreement, Effective October 1,
2004, your base salary will be $15,000 per month, which is equivalent to
$180,000 on an annualized basis. You will be eligible for your first performance
and merit review by the Board of Directors in May 2005; any merit award will be
prorated for your length of service.
You shall participate in an executive bonus plan as might be approved by the
Board of Directors at its sole discretion. The terms and conditions for cash
bonus and stock option plans will be set by the Board of Directors.
Benefits
20 vacation days
Usual corporate holidays
2 personal days
401 (k)
Health insurance equal to other ABMC executive officers
Severance
In the unlikely event that the Board of Directors of ABMC elects to terminate
your employment for anything other than cause (defined as commission of a crime
(other than minor traffic offenses), acts of dishonesty, fraud or malfeasance in
connection with your service on behalf of the Company, gross dereliction of
duty, willful failure to carry out any lawful directive of the Board of
Directors, or material violations of Company policies) you will receive
severance pay equal to twelve (12) months of your current base salary at the
time of separation, with continuation of all medical benefits during the
twelve-month period. The severance payment will be made under the current pay
cycle, each pay period, during the 12 months.
Additionally, you may elect to exercise this severance provision at your option
under the following circumstances:
If you are required to relocate by the Board of Directors of ABMC as a
condition of continued employment
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A substantial change in responsibilities at the direction of the Board of
Directors of the responsibilities normally assumed by chief executive officer
(i.e., demotion)
Change in control of the Company, (i.e., if the Company is acquired wholly
or if another corporate entity becomes the controlling shareholder)
Restrictive Covenants
Non-Solicitation
During the twelve (12) months immediately following your termination from
employment with ABMC for any reason, you agree that:
You will not, directly or indirectly, solicit in any manner or capacity
whatsoever, including by way of illustration, but not limitation, call upon,
mail or e-mail notices to, or make telephone calls to, any Customer (defined
below) or Customer Prospect (defined below) of ABMC, for the purpose of selling
any Covered Services (defined below) or engaging in any business which directly
or indirectly competes with ABMC.
You will not solicit, endeavor to entice away from ABMC, or otherwise
interfere with the relationship of ABMC with any person who is employed (or, but
for any violation of this agreement, would have been employed) by or otherwise
engaged to perform services for ABMC, whether for your own account or for the
account of any other person or entity.
Confidentiality
You agree not to disclose any Confidential Information (defined below) and you
promise to take all reasonable precautions to prevent its unauthorized
dissemination, both at all times during your employment with ABMC and after your
employment. You agree to limit the disclosure of any Confidential Information to
only those employees and agents of ABMC who have a need to know the information
and who have similarly agreed to keep such information confidential.
You further agree not to use any Confidential Information for your own benefit
or for the benefit of anyone other than ABMC. You acknowledge that all
Confidential Information is and remains the property of ABMC and that no license
or rights in the Confidential Information has been or is granted to you.
"Confidential Information" means and includes all information relating to
marketing, advertising, public relations, development, services, trade secrets,
trade "know-how," business plans, Customer (as defined below) and Customer
Prospect (as defined below) lists, distributor lists, Customers and Customer
Prospects information, distributor information, financial data, personnel data,
employee compensation and benefits information, new personnel acquisition plans,
details of contracts, pricing policies, operational methods, marketing plans or
strategies, service development techniques or plans, business acquisition or
investment plans, or other confidential and proprietary information related to
the business or affairs of ABMC and its Customers or Customer Prospects.
The term "Customer" means any person or entity for which ABMC performed any
Covered Services during the one (1) year period immediately preceding the
termination of your employment with ABMC for any reason whatsoever.
"Customer Prospect" means any person or entity to which ABMC made a new business
presentation or proposal related to Covered Services during the one (1) year
period immediately preceding the termination of your employment with ABMC for
any reason whatsoever.
"Covered Services" means any services or products of whatever kind or character
offered or provided by ABMC to any Customer.
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Enforcement
If any of provision of the restrictive covenants shall be held invalid or
unenforceable, the remainder nevertheless shall remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it nevertheless shall remain in full force and effect in all
other circumstances.
If, in connection with any action taken by ABMC to enforce the provisions of the
restrictive covenants of this agreement, a court shall hold that all or any
portion of the restrictions contained therein are unreasonable under the
circumstances then existing so as to render such restrictions invalid or
unenforceable, the parties agree that any court of competent jurisdiction may
reform such unreasonable restrictions to the extent necessary to make such
restrictions reasonable under the circumstances then existing so as to render
such restrictions both valid and enforceable.
You agree to indemnify, save and hold harmless ABMC from and against any and all
claims, damages, losses, costs and expenses (including reasonable attorneys'
fees) incurred by ABMC arising out of any action to enforce the terms of the
restrictive covenants of this agreement.
Other Employment Information
In making this offer of employment, ABMC has relied on your representations
that: (a) you are not currently a party to any contract of employment that might
impede your ability to accept this offer or to perform the services completed
thereby; and (b) that you are not subject to any non-competition arrangement or
other restrictive covenants that might restrict your employment at ABMC as
contemplated by this offer.
Exclusive Service
You will perform services exclusively for ABMC and you will not perform services
for any other entities during the term of this agreement without the written
agreement of the Board of Directors.
Xxxx, we are enthusiastic about your appointment as chief executive officer and
our expectation is that you will continue to make a tremendous contribution to
the long-term success of ABMC.
Sincerely
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Chairman of the Board of Directors and President
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Chairman of the Compensation Committee of the Board of Directors
Accepted this 20th Day of October, 2004:
/s/ Xxxx Xxxxxxxxx
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