EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of February 6, 1997, by and between
Hydrogel Design Systems, Inc., a Delaware corporation (the "Company"), and XXXX
XXXXXXX, an individual residing at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 (the "Executive").
W I T N E S E T H :
WHEREAS, the Company desires to secure the services of the Executive
upon the terms and conditions hereinafter set forth; and
WHEREAS, the Executive desires to render services to the Company upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties mutually agree as follows:
Section 1. Employment. The Company hereby employs the Executive and the
Executive hereby accepts such employment, as the Company's Chief Operating
Officer and Vice President of Research, subject to the terms and conditions set
forth in this Agreement.
Section 2. Duties. The Executive shall serve as the Chief Operating
Officer and Vice President of Research for the Company and shall (i) be
responsible for the installation and supervision of an electron beam
accelerator, as well as coordinating, supervising and managing the day-to-day
operations for the Company; and (ii) properly perform such duties as may be
lawfully assigned to him from time to time by the Board of Directors of the
Company. If requested by the Company, the Executive shall serve on the Board of
Directors or any committee thereof without additional compensation. During the
term of this Agreement, the Executive shall
devote the majority of his business time to the performance of his duties
hereunder unless otherwise authorized by the Board of Directors; provided,
however, that the Executive may devote reasonable amounts of time, to the
pursuit of Executive's personal business activities which are wholly unrelated
to the Company's industry, provided such activities are not conducted during
normal business hours or at such times as the Company may require Executive's
services.
Section 3. Term of Employment; Vacation.
(a) The term (the "Term") of the Executive's employment shall
be for a period of sixty (60) months commencing on February 6, 1997 (the "Start
Date"), subject to earlier termination by the parties pursuant to Sections 5 and
6 hereof. Unless otherwise specifically provided herein, all compensation
obligations commence as of the Start Date.
(b) The Executive shall be entitled to four (4) weeks
vacation during each year of the Term.
Section 4. Compensation of Executive.
4.1 Salary. The Company shall pay to the Executive a base
salary of One Hundred Thousand ($100,000) Dollars per annum (the "Base Salary"),
less such deductions as shall be required to be withheld by applicable law and
regulations. All salaries payable to Executive shall be paid at such regular
weekly, biweekly or semi-monthly time or times as the Company makes payment of
its regular payroll in the regular course of business.
4.2 Discretionary Bonus. During the term of this Agreement
and in addition to the salary set forth in Section 4.1 above, the Executive
shall be entitled to such bonus compensation as the Board of Directors of the
Company may determine from time to time in its
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sole discretion payable in cash, options and/or capital stock of the Company.
4.3 Additional Bonus. Upon the signing of this contract, the
Executive shall be entitled to receive an amount of the Company's capital stock
equal to ten (10%) percent of the then issued and outstanding shares of the
Company's Common Stock.
4.4 Expenses. During the Term, the Company shall promptly
reimburse the Executive for all reasonable and necessary travel expenses and
other disbursements incurred by the Executive on behalf of the Company, in
performance of the Executive's duties hereunder, assuming the Executive has
received prior approval for such travel expenses and disbursements by the
Company to the extent possible. Additionally, the Executive shall also receive
from the Company an allowance for automobile expenses in the amount of $500 per
month during the Term of this Agreement.
4.5 Benefits. The Executive shall be permitted during the
Term to participate in any hospitalization or disability insurance plans, health
programs, pension plans, bonus plans or similar benefits that may be available
to other executives of the Company subject to such eligibility rules as are
applied to senior managers generally. In the event that the Executive elects not
to be covered the benefit plans provided by the Company to its other executives,
the Company shall pay to the Executive an amount equal to the amount the Company
would have paid on the Executive's behalf for such benefits, less any amount
which each participating executive is required to contribute for such plan
coverage.
5. Disability of the Executive. If the Executive is
incapacitated or disabled by accident, sickness or otherwise so as to render the
Executive mentally or physically incapable
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of performing the services required to be performed under this Agreement for a
period of 180 days in any period of 360 consecutive days (a "Disability"), the
Company may, at the time or any time thereafter, at its option, terminate the
employment of the Executive under this Agreement immediately upon giving the
Executive written notice to that effect.
6. Termination.
(a) The Company may terminate the employment of the Executive and all
of the Company's obligations under this Agreement at any time for Cause (as
hereinafter defined) by giving the Executive notice of such termination, with
reasonable specificity of the details thereof. "Cause" shall mean (i) the
Executive's misconduct which could reasonably be expected to have a material
adverse effect on the business and affairs of the Company, (ii) the Executive's
disregard of lawful instructions of the Company's Board of Directors or
President consistent with the Executive's position relating to the business of
the Company or neglect of duties or failure to act, which, in each case, could
reasonably be expected to have a material adverse effect on the business and
affairs of the Company, (iii) the Executive engages in conduct which is publicly
abusive to the Company's Chief Executive Officer or members of the Board of
Directors, (iv) the commission by the Executive of an act constituting common
law fraud, or a felony, or criminal act against the Company or any affiliate
thereof or any of the assets of any of them, (v) the Executive's abuse of
alcohol or other drugs or controlled substances, or conviction of a crime
involving moral turpitude, (vi) the Executive's material breach of any of the
agreements contained herein or (vii) the Executive's death or resignation
hereunder; provided however, that if the Executive resigned as a result of a
material breach by the Company of this Agreement, such resignation shall not be
considered "Cause" hereunder. A termination pursuant to Section 6(a)(i),
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(ii), (iv), (v) (other than as a result of a conviction of a crime involving
moral turpitude) or (vi) shall take effect 60 days after the giving of the
notice contemplated hereby unless the Executive shall, during such 60-day
period, remedy to the reasonable satisfaction of the Board of Directors of the
Company the misconduct, disregard, abuse or breach specified in such notice;
provided, however, that such termination shall take effect immediately upon the
giving of such notice if the Board of Directors of the Company shall, in its
reasonable discretion, have determined that such misconduct, disregard, abuse or
breach is not remediable (which determination shall be stated in such notice). A
termination pursuant to Section 6(a)(iii), (v) (as a result of a conviction of a
crime involving moral turpitude) or (vii) shall take effect immediately upon the
giving of the notice contemplated hereby.
(b) The Company or the Executive may terminate the employment of the
Executive and all of the Company's obligations under this Agreement (except as
hereinafter provided) at any time during the Employment Period without Cause by
giving the Executive or the Company, as appropriate, written notice of such
termination, to be effective 90 days following the giving of such written
notice. For convenience of reference, the date upon which any termination of the
employment of the Executive pursuant to Sections 5 or 6 shall be effective shall
be hereinafter referred to as the "Termination Date". In the event the Executive
resigns as a result of a material breach of the Agreement by the Company, such
resignation shall be treated as a termination by the Company other than for
Cause, as described in Section 7(c) provided the Executive shall have given the
Company thirty (30) days written notice, and the Company shall not have cured
the breach within such thirty (30) day period.
7. Effect of Termination of Employment.
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(a) Upon the termination of the Executive's employment for
Cause, neither the Executive nor the Executive's beneficiaries or estate shall
have any further rights to compensation under this Agreement or any claims
against the Company arising out of this Agreement, except the right to receive
(i) the unpaid portion of the Base Salary provided for in Section 4.1, earned
through the Termination Date (the "Unpaid Salary Amount"), and (ii)
reimbursement for any expenses for which the Executive shall not have
theretofore been reimbursed, as provided in Section 4.4 (the "Expense
Reimbursement Amount").
(b) Upon the termination of the Executive's employment for a
Disability, neither the Executive nor the Executive's beneficiaries or estate
shall have any further rights to compensation under this Agreement or any claims
against the Company arising out of this Agreement, except the right to receive
(i) the Unpaid Salary Amount, (ii) the Expense Reimbursement Amount and (iii)
accrued and unpaid amounts owed to the Executive under Section 4.2 and 4.3
hereof through the Termination Date (collectively, the "Additional Payments").
(c) Upon the termination of the Executive's employment for
other than Cause or a Disability, neither the Executive nor the Executive's
beneficiaries or estate shall have any further rights to compensation under this
Agreement or any claims against the Company arising out of this Agreement,
except the Executive shall have the right to receive (i) the Unpaid Salary
Amount, (ii) the Expense Reimbursement Amount, (iii) severance compensation
equal to the Base Salary for the term of this Agreement (as if this Agreement
was not terminated), 50% of which is payable on the Termination Date and 50% of
which is payable in equal monthly installments during the period commencing
thirty (30) days following the Termination Date and
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continuing for a period of twelve months thereafter, and (iv) the Additional
Payments.
Section 8. Disclosure of Confidential Information. The Executive
recognizes that he has had and will continue to have access to secret and
confidential information regarding the Company, including but not limited to its
customer list, products, know-how, proprietary technology, and business plans.
The Executive acknowledges that such information is of great value to the
Company, is the sole property of the Company, and has been and will be acquired
by him in confidence. In consideration of the obligations undertaken by the
Company herein, the Executive will not, at any time, during or after his
employment hereunder, reveal, divulge or make known to any person, any
information acquired by the Executive during the course of his employment, which
is treated as confidential by the Company, including but not limited to its
proprietary technology and customer list, not otherwise in the public domain,
other than in the ordinary of business during his employment hereunder. The
provisions of this Section 8 shall survive the Executive's employment hereunder.
Section 9. Covenant Not To Compete.
(a) The Executive recognizes that the services to be performed by him
hereunder are special, unique and extraordinary. The parties confirm that it is
reasonably necessary for the protection of the Company that the Executive agree,
and accordingly, the Executive does hereby agree, that he shall not, directly or
indirectly, at any time during the term of the Agreement and the "Restricted
Period" (as defined in Section 9(e) below):
(i) except as provided in Subsection (c) below, be
engaged in the sale, marketing or distribution of
medical wire and cable, hydrogel or any other product
or device developed, marketed or sold by the Company
during the
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Term or provide technical assistance, advice or
counseling regarding the medical wire and cable and
hydrogel industries in any state in the United States
in which the Company or any affiliate thereof is
engaged in business, either on his own behalf or as
an officer, director, stockholder, partner,
consultant, associate, employee, owner, agent,
creditor, independent contractor, or co-venturer of
any third party; or
(ii) employ or engage, or cause or authorize, directly or
indirectly, to be employed or engaged, for or on behalf of
himself or any third party, any employee or agent of the
Company or any affiliate thereof.
(b) The Executive hereby agrees that he will not, directly or
indirectly, for or on behalf of himself or any third party, at any time during
the term of the Agreement and during the Restricted Period solicit any customers
of the Company or any affiliate thereof.
(c) If any of the restrictions contained in this Section 9 shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope thereof, or otherwise, then the court making such determination shall have
the right to reduce such extent, duration, geographical scope, or other
provisions hereof, and in its reduced form this Section shall then be
enforceable in the manner contemplated hereby.
(d) This Section 9 shall not be construed to prevent the Executive from
owning, directly or indirectly, in the aggregate, an amount not exceeding five
percent (5%) of the issued and outstanding voting securities of any class of any
company whose voting capital stock is traded on a national securities exchange
or on the over-the-counter market other than securities of the Company.
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(e) The term "Restricted Period," as used in this Section 9, shall mean
the period of the Executive's actual employment hereunder plus (A) in the event
the Executive voluntarily terminates his employment after the Preliminary Period
other than a resignation as a result of a material breach of the Agreement by
the Company, sixty (60) months, and (B) in the event the Executive's employment
is terminated without Cause or a Disability as described in Section 7(c) above,
the period during which the Company is required to make continued payments to
the Executive pursuant to this Agreement; provided, however, that, in the event
the Executive waives, in writing, his right to receive such continued payments,
the Executive shall not be subject to this Section 9.
(f) The provisions of this Section 9 shall survive the end of the
Restricted Period as provided in Section 9(e) hereof.
Section 10. Miscellaneous.
10.1 Injunctive Relief. Executive acknowledges that the
services to be rendered under the provisions of this Agreement are of a special,
unique and extraordinary character and that it would be difficult or impossible
to replace such services. Accordingly, Executive agrees that any breach or
threatened breach by him of Sections 8 or 9 of this Agreement shall entitle the
Company, in addition to all other legal remedies available to it, to apply to
any court of competent jurisdiction to seek to enjoin such breach or threatened
breach. The parties understand and intend that each restriction agreed to by
Executive hereinabove shall be construed as separable and divisible from every
other restriction, that the unenforceability of any restriction shall not limit
the enforceability, in whole or in part, of any other restriction, and
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that one or more or all of such restrictions may be enforced in whole or in part
as the circumstances warrant. In the event that any restriction in this
Agreement is more restrictive than permitted by law in the jurisdiction in which
the Company seeks enforcement thereof, such restriction shall be limited to the
extent permitted by law.
10.2 Assignments. Neither the Executive nor the Company may
assign or delegate any of their rights or duties under this Agreement without
the express written consent of the other.
10.3 Entire Agreement. This Agreement constitutes and embodies
the full and complete understanding and agreement of the parties with respect to
the Executive's employment by the Company, supersedes all prior understandings
and agreements, whether oral or written, between the Executive and the Company,
and shall not be amended, modified or changed except by an instrument in writing
executed by the party to be charged. The invalidity or partial invalidity of one
or more provisions of this Agreement shall not invalidate any other provision of
this Agreement. No waiver by either party of any provision or condition to be
performed shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same time or any prior or subsequent time.
10.4 Binding Effect. This Agreement shall inure to the
benefit of, be binding upon and enforceable against, the parties hereto and
their respective successors, heirs, beneficiaries and permitted assigns.
10.5 Headings. The headings contained in this Agreement
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.6 Notices. All notices, requests, demands and other
communications
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required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when personally delivered, sent by registered or
certified mail, return receipt requested, postage prepaid, or by private
overnight mail service (e.g. Federal Express) to the party at the address set
forth above or to such other address as either party may hereafter give notice
of in accordance with the provisions hereof. Notices shall be deemed given on
the sooner of the date actually received or the third business day after
sending.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to such State's conflicts of laws provisions and each of the parties
hereto irrevocably consents to the jurisdiction and venue of the federal and
state courts located in the State of New York, County of New York.
10.8 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one of the same instrument.
10.9 Separability. If any of the restrictions contained in
this Agreement shall be deemed to be unenforceable by reason of the extent,
duration or geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, geographical
scope, or other provisions hereof, and in its reduced form this Agreement shall
then be enforceable in the manner contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
HYDROGEL DESIGN SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
/s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
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