NEWCARDIO, INC. EMPLOYMENT AGREEMENT
Exhibit 10.12
THIS
EMPLOYMENT AGREEMENT (the "Agreement")
is made and entered into as of November 1, 2007 by and between NewCardio,
Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (the "Executive").
BACKGROUND
A. The Company desires to retain the
services of the Executive as the Chief Executive Officer of the Company from the
date of this Agreement (the "Effective
Date"). The Company also
desires to provide employment security to the Executive, thereby inducing the
Executive to continue employment with the Company and enhancing the Executive's
ability to perform effectively.
B. The Executive is willing to be employed
by the Company on the terms and subject to the conditions set forth in this
Agreement.
THE
PARTIES AGREE AS FOLLOWS:
1. Title,
Duties and Responsibilities.
1.1 Title. The
Executive will be employed by the Company as its Chief Executive Officer, at the
pleasure of the Board of Directors of the Company (the "Board"). For so long as
Executive remains the Chief Executive Officer of the Company, the Company shall
use commercially reasonable efforts to nominate Executive for membership on the
Board at each annual meeting of the stockholders of the Company, or at any
meeting of the stockholders of the Company at which members of the Board are to
be elected, or whenever members of the Board are to be elected by written
consent, subject in each case to the approval of the Company's stockholders
and/or the Board, as applicable.
1.2 Duties.
The Executive will devote all of the Executive's business time, energy,
and skill to the affairs of the Company; provided, however, that reasonable time
for the activities set forth on Exhibit A, personal
business, charitable or professional activities or such other activities which
shall be approved in advance by the Board will he permitted, in any case so long
as such activities do not materially interfere with the Executive's performance
of services under this Agreement.
1.3 Performance of
Duties. The Executive will discharge the duties described herein and
duties as set forth by the Board from time to time, in a diligent and
professional manner. The Executive will report to the Board, and will further
comply with the Company's business policies, rules and regulations, as adopted
from time to time by the Board.
2. Terms of
Employment.
2.l
For purposes of this Agreement, the following terms will have the following
meanings:
(a) "Accrued
Compensation" means any
accrued Total Cash Compensation, any benefits under any plan of the Company in
which the Executive is a participant to the full extent of the Executive's
rights under such plans, any accrued vacation pay, and any appropriate business
expenses incurred by the Executive in connection with the performance of the
Executive's duties hereunder, all to the extent unpaid on the date of
termination.
(b) "Base Salary"
will have the meaning set forth in Section 3.1 hereof.
(c) "Change
of Control' means the
occurrence of any one of the following: (i) any "person", as such term is used
in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")
(other than the Company, a
subsidiary, an affiliate, or a Company employee benefit plan, including any
trustee of such plan acting as trustee) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Company representing 50% or more of the combined voting power of
the Company's then outstanding securities; or (ii) a sale of all or
substantially all of the assets of the Company; or (iii) any merger,
reorganization or other transaction of the Company whether or not another entity
is the survivor, pursuant in which holders of all the shares of capital stock of
the Company outstanding prior to the transaction hold, as a group, less than 50%
of the shares of capital stock of the Company outstanding after the transaction;
provided, however, that neither (A) a merger effected exclusively for the
purpose of changing the domicile of the Corporation in which the holders of all
the shares of capital stock of the Company immediately prior to the merger hold
the voting power of the surviving entity following the merger in the same
relative amounts with substantially the same rights, preferences and privileges,
nor (B) a transaction the primary purpose of which is to raise capital for the
Company, nor (C) a reverse merger involving a publicly traded entity and the
Company during such time the Company is a privately-held entity (the
"Reverse
Merger"), will constitute
a Change of Control.
(d) "Death
Termination" means
termination of the Executive's employment due to the death of the
Executive.
(e)"Disability
Termination" means termination of the Executive's employment by the
Company due to the Executive's incapacitation due to disability. The Executive
will be deemed to be incapacitated due to disability if at the end of any month
the Executive is unable to perform substantially all of the Executive's duties
under this Agreement in the normal and regular manner due to illness, injury or
mental or physical incapacity, and has been unable so to perform for either (i)
three consecutive full calendar months then ending, or (ii) 90 or more of the
normal working days during the 12 consecutive full calendar months then ending.
Nothing in this paragraph will alter the Company's obligations under applicable
law, which may, in certain circumstances, result in the suspension or alteration
of the foregoing time periods.
(f)"PIPE Financing"
means the Company's first sale and issuance of restricted securities to a
third party investor following the closing of the Reverse Merger during the term
hereof.
(g) "Termination
For Cause" means
termination of the Executive's employment by the Company due to (i) the
Executive's dishonesty or fraud, gross negligence in the performance of the
Executive's duties and responsibilities; (ii) the Executive's conviction of a
felony involving moral turpitude; (iii) the Executive's incurable material
breach of the terms of this Agreement or the Confidentiality Agreement (as
defined below); or (iv) the willful and continued refusal by Executive to
substantially perform Executive's duties or responsibilities for the Company
described herein and as set forth by the Board from time to
time.
(h) "Termination
Other Than For Cause" means termination of the Executive's
employment by the Company due to any reason other than as specified in Sections
2.1(d), (e), or (g) hereof.
(i) "Total
Cash Compensation" means
the Executive's Base Salary plus any cash bonuses, commissions or similar
payment accrued during the preceding calendar year, and if there is no complete
preceding calendar year, then the preceding 12 month period, and if there is no
complete preceding 12 month period, then the preceding employment period
annualized to a twelve (12) month period.
2
(j) "Voluntary
Termination" means
termination of the Executive's employment by the voluntary action of the
Executive, other than by reason of a Disability Termination or a Death
Termination or as described in 2.1(k).
(k)"Voluntary Resignation for
Good Reason" means Executives voluntary resignation of Executive's
employment with the Company within thirty (30) days following the expiration of
any Company cure period (discussed below) following the occurrence of one or
more of the following, without Executive's consent: (i) the assignment to
Executive of any authority, duties, or responsibilities, or the reduction of
Executive's authority, duties, or responsibilities, either of which results in a
material diminution of Executive's authority, duties, or responsibilities with
the Company in effect immediately prior to such assignment, or the removal of
Executive from Executive's authority, duties, or responsibilities with the
Company in effect immediately prior to such removal; provided, however, that the
Company's hiring of a new Chief Executive Officer following the date hereof (and
removal of Executive from such office) and reassignment of Executive to a Vice
President level or superior position or executive office of the Company (with a
corresponding reduction in authority, duties, or responsibilities based on such
title change) will not constitute "Good Reason" hereunder; (ii) a material
reduction of Executive's Base Salary (in other words, a reduction of more than
ten percent of Executive's Base Salary in any one year); (iii) a material change
in the geographic location at which Executive must perform services (in other
words, the relocation of Executive to a facility that is more than fifty (50)
miles from Executive's current location); and (iv) the failure of the Company to
obtain assumption of this Agreement by any successor. Executive will not resipt
for Good Reason without first providing the Company with written notice of the
acts or omissions constituting the grounds for "Good Reason" within ninety (90)
days of the initial existence of the grounds for "Good Reason" and a reasonable
cure period of not less than thirty (30) days following the date of such
notice.
2.2
Employee at
Will. The
Executive is an "at will" employee of the Company, and the Executive's
employment may be terminated by the Company at any time by giving the Executive
written notice thereof, subject to the terms and conditions of this Agreement
and the At-Will Employment, Confidential Information, Invention Assignment and
Arbitration Agreement attached as Exhibit B hereto (the
"Confidentiality
Agreement"),
the terms
of which are herein incorporated by reference.
2.3
Termination
For Cause. Upon a Termination For
Cause, the Company will pay the Executive Accrued Compensation, if
any.
2.4 Termination Other
Than For Cause.
The Company shall give Executive not less than three (3) months advance
notice of a Termination Other Than For Cause. Upon a Termination Other Than For
Cause, and provided Executive executes and delivers to the Company a release and
waiver of claims in the form attached hereto as Exhibit C and such
release and waiver of claims is not revoked and has become effective pursuant to
its terms, the Company will pay the Executive (a) Accrued Compensation, if any,
and (b) a monthly cash severance payment equal to (x) the Total Cash
Compensation, divided by twelve (12), times (y) thirty three (33) months, minus
the number of whole months elapsing during the period beginning with the date of
this Agreement and ending on the effective termination date of Executive's
employment, with any fractional month prorated based on the number of days so
elapsed divided by the total number of days in such calendar month (the result
of (y), the "Other Than For
Cause Severance Period"). For certainty, in no event shall the Other Than
For Cause Severance Period exceed thirty three (33) months.
2.5
Voluntary
Resignation For Good Reason. Upon a Voluntary
Resignation For Good Reason, and provided Executive executes and delivers to the
Company a release and waiver of claims in the form attached hereto as Exhibit C and such
release and waiver of claims is not revoked and has become effective pursuant to
its terms, the Company will pay the Executive (a) Accrued Compensation, if any,
and (b) a monthly cash severance payment equal to (x) the Total Cash
Compensation, divided by twelve (12), times (y) thirty six (36) months, minus
the number of whole months elapsing during the period beginning with the date of
this Agreement and ending on the effective termination date of Executive's
employment, with any fractional month prorated based on the number of days so
elapsed divided by the total number of days in such calendar month (the result
of (y), the "Good Reason
Severance Period"). For certainty, in no event shall the Good Reason
Severance Period exceed thirty six (36) months.
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2.6
Disability
Termination. The Company will have the right to effect a Disability
Termination by giving written notice thereof to the Executive. Upon a Disability
Termination, the Company will pay the Executive all Accrued Compensation, if
any.
2.7 Death
Termination. Upon a Death Termination, the Executive's employment will he
deemed to have terminated as of the last day of the month during which her death
occurs, and the Company will promptly pay to the Executive's estate Accrued
Compensation, if any.
2.8 Voluntary
Termination. In the event the Executive wishes to consummate a Voluntary
Termination, the Executive shall give the Company at least thirty (30) days
advance written notice. During such period, the Executive will continue to
receive regularly scheduled Base Salary payments and benefits. Following the
effective date of a Voluntary Termination, the Company will pay the Executive
Accrued Compensation, if any.
2.9 Timing of
Termination Payments. Unless expressly provided otherwise, the foregoing
termination payments will be made at the usual and agreed times provided for in
Section 3.1 of this Agreement.
3. Compensation and
Benefits.
3.1 Base Salary.
As payment for the services to be rendered by the Executive as provided
in Section 1 and subject to the provisions of Section 2 of this Agreement, the
Company will pay the Executive a "Base Salary" at the rate of $290,000 per year,
payable on the Company's normal payroll schedule. The Executive's "Base Salary"
may be increased in accordance with the provisions hereof or as otherwise
determined from time to time, but reviewed at least annually, by the
Compensation Committee of the Board.
3.2 Additional
Benefits.
(a) Benefit
Plans. The Executive will
be eligible to participate in such of the Company's benefit plans as are now
generally available or later made generally available to senior officers of the
Company, including, without limitation, medical, dental, life, and disability
insurance plans.
(b) Expense
Reimbursement. The Company
ogees to reimburse the Executive for all reasonable, ordinary and necessary
travel and entertainment expenses incurred by the Executive in conjunction with
the Executive's services to the Company consistent with the Company's standard
reimbursement policies. The Company will pay travel costs incurred by the
Executive in conjunction with the Executive's services to the Company consistent
with the Company's standard travel policies.
(c) Vacation.
The Executive will be entitled, without loss of compensation, to twenty
(20) days of vacation per year. Unused vacation in any given year may be accrued
by the Executive pursuant to the Company's standard vacation
policies.
3.3 Bonus.
(a) Mandatory.
As soon as practicable following the closing of the PIPE Financing, the
Company shall pay Executive a one time, lump sum cash bonus in the amount of (x)
$24,166.67, times the number of whole months elapsing during the period
beginning April 1, 2007 and ending on the closing date of the PIPE Financing,
with any fractional month prorated based on the number of days so elapsed
divided by the total number of days in such calendar month, minus (y) the total
amount of cash compensation paid to Executive by the Company during the period
beginning April 1, 2007 and ending on the closing date of the PIPE Financing,
which bonus shall be subject to normal withholdings.
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(b)
Other.
The Executive will be entitled to participate in any management bonus
plan adopted by the Company on terms comparable to other senior officers of the
Company, which may include the following:
(i) 2007
Program. In the event the
PIPE Financing is closed during calendar year 2007, then Executive may be entitled to
a one time, lump sum cash bonus payment, payable upon the first payroll date
following December 31, 2007 in accordance with the Company's normal payroll
procedures, in an amount equal to 0% to 37.5% of Executive's Base Salary as of
December 31, 2007, with such final percentage determined by the Board based upon
Executive's and/or the Company's achievement by December 31, 2007 of the
following milestones:
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Milestone
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Percentage
of then Base Salary
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(1)
Closinof a PIPE Financing
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|
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(A) Closing of a PIPE Financing at a
pre-money Company valuation of $20M but less than $25M;
or
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5%;
or
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(B) Closing of a PIPE Financing at a
pre-money Company valuation of greater than $25M
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10%
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(2)
Completion of new QTinno studies involving at least 5,000
ECGs
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4%
|
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(3) Identification, interviewing of,
and proposal of at least two (2) qualified candidates for the position of
Chief Financial Officer of the Company either full or part
time
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8%
|
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(4) Identification, interviewing of,
and proposal of at least two (2) qualified candidates for membership on
the Board
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8%
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|
(5)
Submission of a detailed financial and investor relations plan for
calendar year 2008
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7.5%
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TOTAL
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37.5%
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(ii) 2008
Program. Provided the PIPE
Financing has closed prior to or during calendar year 2007, then Executive may
be entitled to a one time,
lump sum cash bonus payment, payable upon the first payroll date following
December 31, 2008 in accordance with the Company's normal payroll procedures, in
an amount equal to 0% to 50.0% of Executive's Base Salary as of December 31,
2008, with such final percentage determined by the Board based upon Executive's
achievement by December 31, 2008 of certain milestones to be determined by the
Board and Executive as soon as practicable following the later to occur of the
date of closing of the PIPE Financing and January 1. 2008.
3.4 Option to
Purchase common Stock. Promptly following the
Effective Date, the senior management of the Company will recommend that the
Board grant the Executive an option (the "Option") to purchase 1,000,000
shares of the Company's Common Stock pursuant to the Company's 2004 Equity
Incentive Plan (the "Plan") at an exercise price per
share equal to the fair market value of a share of the Company's Common Stock as
of the date of such grant, as determined by the Board, and subject to the
following vesting schedule: 1/36 of the shares subject to the Option shall vest
on each monthly anniversary of the date of this Agreement, subject to
Executive's Continuous Service (as defined in the Plan) through each such date.
Notwithstanding the above, the Option will vest immediately with respect to 100%
of any then unvested or unreleased shares upon a Termination Other Than For
Cause.
5
3.5 Future
Options. Any
other equity award made to Executive following the Effective Date in addition to
the Option which is subject to vesting or forfeiture (each such equity award, a
"Future
Option") shall
also vest immediately with respect to 100% of any then unvcsted or unreleased
shares upon a Termination Other Than For Cause.
4. Miscellaneous.
4.1 Waiver. The waiver of the breach of
any provision of this Agreement will not operate or be construed as a waiver of
any subsequent breach of the same or other provision hereof.
4.2 Notices. All notices and other
communications under this Agreement will be in writing and will be given by
personal or courier delivery, facsimile or first class mail, certified or
registered with return receipt requested, and will be deemed to have been duly
given upon receipt if personally delivered or delivered by courier, on the date
of transmission if transmitted by facsimile, or three business days after
mailing if mailed, to the addresses of the Company and the Executive contained
in the records of the Company at the time of such notice. Any party may change
such party's address for notices by notice duly given pursuant to this Section
4.2.
4.3 Headings. The section headings used
in this Agreement are intended for convenience of reference and will not by
themselves determine the construction or interpretation of any provision of this
Agreement.
4.4 Governing
Law. This
Agreement will be governed by and construed in accordance with the laws of the
State of California, excluding those laws that direct the application of the
laws of another jurisdiction.
4.5 Survival of
Obligations. This Agreement will be
binding upon and inure to the benefit of the executors, administrators, heirs,
successors, and assigns of the parties; provided, however, that except as herein
expressly provided, this Agreement will not be assignable either by the Company
(except to an affiliate or successor of the Company) or by the Executive without
the prior written consent of the other party.
4.6 Counterparts and
Facsimile Signatures. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. This Agreement may be
executed by facsimile signature (including signatures in Adobe PDF or similar
format).
4.7 Withholding.
All sums payable to the Executive hereunder will be reduced by all
federal, state, local, and other withholdings and similar taxes and payments
required by applicable law.
4.8
Enforcement.
If any portion of this Agreement is determined to be invalid or
unenforceable, such portion will be adjusted, rather than voided, to achieve the
intent of the parties to the extent possible, and the remainder will be enforced
to the maximum extent possible.
4.9 Entire Agreement;
Modifications. Except as otherwise provided herein or in the exhibits
hereto, this Agreement and all exhibits hereto represents the entire
understanding among the parties with respect to the subject matter of this
Agreement, and supersedes any and all prior and contemporaneous understandings,
agreements, plans, and negotiations, whether written or oral, with respect to
the subject matter hereof, including, without limitation, any understandings,
agreements, or obligations respecting any past or future compensation, bonuses,
reimbursements, or other payments to the Executive from the Company. All
modifications to the Agreement must be in writing and signed by each of the
parties hereto. The Company and Executive acknowledge that upon the execution of
this Agreement, the Consulting Agreement dated March 1, 2007, as amended,
between the parties is hereby terminated, save for any surviving obligations of
the parties set forth therein, and Executive hereby waives any notice
requirements in connection therewith; provided, however, that to the extent any
provision of this Agreement or the Confidentiality Agreement conflicts with a
surviving obligation of the Consulting Agreement, the provision set forth in
this Agreement and/or the Confidentiality Agreement shall control.
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4.10
Section
409A.
(a)
Notwithstanding anything to the contrary in this Agreement, if Executive is a
"specified employee" within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code")
and the final regulations and any guidance promulgated thereunder ("Section 409A")
at the time of Executive's termination, and the severance payable to
Executive, if any, pursuant to this Agreement, when considered together with any
other severance payments or separation benefits which may be considered deferred
compensation under Section 409A (together, the "Deferred
Compensation Separation Benefits") will not and could not under any
circumstances, regardless of when such termination occurs, be paid in full by
March 15 of the year following Executive's termination, then only that portion
of the Deferred Compensation Separation Benefits which do not exceed the Section
409A Limit (as defined below) may be made within the first six (6) months
following Executive's termination of employment in accordance with the payment
schedule applicable to each payment or benefit. For these purposes, each
severance payment is hereby designated as a separate payment and will not
collectively be treated as a single payment. Any portion of the Deferred
Compensation Separation Benefits in excess of the Section 409A Limit shall
accrue and, to the extent such portion of the Deferred Compensation Separation
Benefits would otherwise have been payable within the first six (6) months
following Executive's termination of employment, will become payable on the
first payroll date that occurs on or after the date six (6) months and one (1)
day following the date of Executive's termination of employment. All subsequent
Deferred Compensation Separation Benefits, if any, will be payable in accordance
with the payment schedule applicable to each payment or benefit.
(b) The foregoing provision is intended to
comply with the requirements of Section 409A so that none of the severance
payments and benefits to be provided hereunder will be subject to the additional
tax imposed under Section 409A, and any ambiguities herein will he interpreted
to so comply. The Company and Executive agree to work together in good faith to
consider amendments to this Agreement and to take such reasonable actions which
are necessary, appropriate or desirable to avoid imposition of any additional
tax or income recognition prior to actual payment to Executive under Section
409A.
(c) For purposes of this Agreement,
"Section
409A Limit" means the
lesser of two (2) times: (i) Executive's annualized compensation based upon the
annual rate of pay paid to Executive during the Company's taxable year preceding
the Company's taxable year of Executive's termination of employment as
determined under Treasury Regulation 1..409A1(b)(9)(iii)(A)(1) and any
Internal Revenue Service guidance issued with respect thereto; or (ii) the
maximum amount that may be taken into account under a qualified plan pursuant to
Section 401(a)(17) of the Code for the year in which Executive's employment is
terminated.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the Effective Date.
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By:
/s/ ▇. ▇.
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Name:
▇. ▇. ▇▇▇▇▇
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Title:
Chairman of Board
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/s/ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Address:
▇▇ ▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Telephone:
▇▇▇-▇▇▇-▇▇▇▇
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Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
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Email:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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8
EXHIBIT
A
OTHER
ACTIVITIES
N/A
EXHIBIT
B
AT-WILL
EMPLOYMENT, CONFIDENTIAL INFORMATION, INVENTION
ASSIGNMENT
AND ARBITRATION AGREEMENT
AT
WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,
INVENTION
ASSIGNMENT,
AND
ARBITRATION AGREEMENT
As a
condition of my employment with NewCardio, Inc., its subsidiaries, affiliates,
successors or assigns (together the "Company"), and in
consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company, I agree to the
following:
1. At-Will
Employment.
I
UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN
UNSPECIFIED DURATION AND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY
REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN
WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. T ACKNOWLEDGE THAT THIS
EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD
CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER Of' THE COMPANY OR MYSELF,
WITII OR WITHOUT NOTICE.
2. Confidential
Information.
A. Company
Information. I agree at
all times during the term of my employment and thereafter, to hold in strictest
confidence, and not to use, except for the benefit of the Company, or to
disclose to any person, firm or corporation without written authorization of the
Board of Directors of the Company, any Confidential Information of the Company,
except under a nondisclosure agreement duly authorized and executed by the
Company. I understand that "Confidential
Information" means any
non-public information that relates to the actual or anticipated business or
research and development of the Company, technical data, trade secrets or
know-how, including, but not limited to, research, product plans or other
information regarding Company's products or services and markets therefor,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the term of my
employment), software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information. I further understand that
Confidential Information does not include any of the foregoing items which have
become publicly known and made generally available through no wrongful act of
mine or of others who were under confidentiality obligations as to the item or
items involved or improvements or new versions thereof.
B. Former Employer
Information. I agree that
I will not, during my employment with the Company, improperly use or disclose
any proprietary information or trade secrets of any former or concurrent
employer or other person or entity and that 1 will not bring onto the premises
of the Company any unpublished document or proprietary information belonging to
any such employer, person or entity unless consented to in writing by such
employer, person or entity.
C. Third Party Information. I
recognize that the Company has received and in the future will receive
from third parties their confidential or proprietary information subject to a
duty on the Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. I agree to hold all such
confidential or proprietary information in the strictest confidence and not to
disclose it to any person. firm or corporation or to use it except as necessary
in carrying out my work for the Company consistent with the Company's agreement
with such third party.
1
3. Inventions.
A. Inventions Retained
and Licensed. I have
attached hereto, as Exhibit
A, a list describing all
inventions, original works of authorship, developments, improvements, and trade
secrets which were made by me prior to my employment with the Company
(collectively referred to as "Prior Inventions"),
which belong to me, which
relate to the Company's proposed business, products or research and development,
and which are not assigned to the Company hereunder; or, if no such list is
attached, I represent that there are no such Prior Inventions, If in the course
of my employment with the Company, I incorporate into a Company product, process
or service a Prior Invention owned by me or in which I have an interest, I hereby grant to the
Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual,
worldwide license to make, have made, modify, use and sell such Prior Invention
as part of or in connection with such product, process or service, and to
practice any method related thereto.
B. Assignment of
Inventions. I agree that I
will promptly make full written disclosure to the Company, will hold in trust
for the sole right and benefit of the Company, and hereby assign to the Company,
or its designee, all my right, title, and interest in and to any and all
inventions, original works of authorship, developments, concepts, improvements,
designs, discoveries, ideas, trademarks or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which I may solely or
jointly conceive or develop or reduce to practice, or cause to be conceived or
developed or reduced to practice, during the period of time I am in the employ
of the Company (collectively referred to as "Inventions"),
except as provided in
Section
3.F below. I further
acknowledge that all original works of authorship which are made by rue (solely
or jointly with others) within the scope of and during the period of my
employment with the Company and which are protectible by copyright are "works
made for hire," as that term is defined in the United States Copyright Act. I
understand and agree that the decision whether or not to commercialize or market
any invention developed by me solely or jointly with others is within the
Company's sole discretion and for the Company's sole benefit and that no royalty
will be due to me as a result of the Company's efforts to commercialize or
market any such invention.
C. Inventions Assigned
to the United States. I
agree to assign to the United States government all my right. title, and
interest in and to any and all Inventions whenever such full title is required
to be in the United States by a contract between the Company and the United
States or any of its agencies.
D. Maintenance of
Records. I agree to keep
and maintain adequate and current written records of all Inventions made by me
(solely or jointly with others) during the term of my employment with the
Company. The records will he in the form of notes, sketches, drawings, and any
other format that may be specified by the Company. The records will be available
to and remain the sole property of the Company at all times.
E. Patent and Copyright Registrations.
I agree to assist the Company, or its designee, at the Company's expense,
in every proper way to secure the Company's rights in the Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the disclosure to the
Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the Company, its
successors, assigns, and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. I further agree
that my obligation to execute or cause to be executed, when it is in my power to
do so, any such instrument or papers shall continue after the termination of
this Agreement If the Company is unable because of my mental or physical
incapacity or for any other reason to secure my signature to apply for or to
pursue any application for any United States or foreign patents or copyright
registrations covering Inventions or original works of authorship assigned to
the Company as above, then I hereby irrevocably designate and appoint the
Company and its duly authorized officers and agents as my agent and attorney in
fact, to act for and in my behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
2
F. Exception to Assignments. I
understand that the provisions of this Agreement requiring assignment of
Inventions to the Company do not apply to any invention which qualifies fully
under the provisions of California Labor Code Section 2870 (attached hereto as
Exhibit
13). I will
advise the Company promptly in writing of any inventions that I believe meet the
criteria in California Labor Code Section 2870 and not otherwise disclosed on
Exhibit
A.
4. Conflicting
Employment.
I agree
that, during the term of my employment with the Company, I will not engage in
any other employment, occupation or consulting directly related to the business
in which the Company is now involved or becomes involved during the term of my
employment, nor will I engage in any other activities that conflict with my
obligations to the Company.
5. Returning Company
Documents. I agree that,
at the time of leaving the employ of the Company, I will deliver to the Company
(and will not keep in my possession, recreate or deliver to anyone else) any and
all devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items developed by
me pursuant to my employment with the Company or otherwise belonging to the
Company, its successors or assigns, including, without limitation, those records maintained pursuant to
paragraph 3.D.
In the event of the
termination of my employment, I agree to sign and deliver the "Termination
Certification" attached hereto as Exhibit
C.
6. Notification of New
Employer. In the event
that I leave the employ of the Company, I hereby grant consent to notification
by the Company to my new employer about my rights and obligations under this
Agreement.
7. Solicitation of
Employees. I agree that
for a period of twelve (12) months immediately following the termination of my
relationship with the Company for any reason, whether with or without cause, I
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company's employees to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, either for myself or for any other person or
entity.
8. Conflict of
Interest Guidelines. I
agree to diligently adhere to the Conflict of Interest Guidelines attached as
Exhibit
D
hereto.
9. Representations.
I agree to execute any
proper oath or verify any proper document required to carry cut the terms of
this Agreement. I represent that my performance of all the terms of this
Agreement will not breach any agreement to keep in confidence proprietary
information acquired by me in confidence or in trust prior to my employment by
the Company. I hereby represent and warrant that I have not entered into, and I
will not enter into, any oral or written agreement in conflict
herewith.
10. Arbitration and Equitable
Relief
A. Arbitration. IN CONSIDERATION
OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL
EMPLOYMENT-RELATED DISPUTES AND MY RECEIPT OF THE COMPENSATION, PAY RAISES AND
OTHER BENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE
THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE
COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER OR BENEFIT PLAN OF THE
COMPANY IN THEIR CAPACITY AS SUCH OR OTHERWISE) ARISING OUT OF, RELATING TO, OR
RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY
EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE
SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1280 THROUGH 1294.2, INCLUDING
SECTION 1283.05 (THE "RULES") AND PURSUANT TO CALIFORNIA LAW. DISPUTES WHICH I
AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY,
INCLUDE ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, INCLUDING, BUT NOT
LIMITED TO, CLAIMS UNDER TITLE VII OF THIS CIVIL RIGHTS ACT OF 1964, THE
AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE
FAMILY AND MEDICAL LEAVE ACT. THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA
LABOR CODE, CLAIMS OF HARASSMENT, DISCRIMINATION OR WRONGFUL TERMINATION AND ANY
STATUTORY CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO
APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.
3
B. Procedure.
I AGREE THAT ANY
ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA")
AND THAT THE NEUTRAL ARBITRATOR WILL BE SELECTED IN A MANNER CONSISTENT WITH ITS
NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES. I AGREE THAT THE
ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO
THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION AND
MOTIONS TO DISMISS AND DEMURRERS, PRIOR TO ANY ARBITRATION HEARING. I ALSO AGREE
THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES, INCLUDING
ATTORNEYS' FEES AND COSTS, AVAILABLE UNDER APPLICABLE LAW. I UNDERSTAND THAT THE
COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE
ARBITRATOR OR AAA EXCEPT THAT I SHALL PAY THE FIRST $125.00 OF ANY FILING FEES
ASSOCIATED WITH ANY ARBITRATION I INITIATE. I AGREE THAT THE ARBITRATOR SHALL
ADMINISTER AND CONDUCT ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES AND
THAT TO THE EXTENT THAT THE AAA'S NATIONAL RULES FOR THE RESOLUTION OF
EMPLOYMENT DISPUTES CONFLICT WITH THE RULES, THE RULES SHALL TAKE PRECEDENCE. I
AGREE THAT THE DECISION OF THE ARBITRATOR SHALL BE IN
WRITING.
C. Remedy.
EXCEPT AS PROVIDED BY THE
RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL
REMEDY FOR ANY DISPUTE BETWEEN ME AND TILE COMPANY. ACCORDINGLY, EXCEPT AS
PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE
PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO
ARBITRATION. NOTWITHSTANDING, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO
DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL COMPANY POLICY, AND THE ARBITRATOR
SHALL NOT ORDER OR REQUIRE THE COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED
BY LAW WHICH THE COMPANY HAS NOT ADOPTED.
D. Availability of Injunctive Relief.
BOTH PARTIES AGREE THAT ANY PARTY MAY PETITION A COURT FOR
INJUNCTIVE RELIEF AS PERMITTED BY THE RULES INCLUDING, BUT NOT LIMITED TO, WHERE
EITHER PARTY ALLEGES OR CLAIMS A VIOLATION OF THE AT-WILL EMPLOYMENT,
CONFIDENTIAL INFORMATION, INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT BETWEEN
ME AND THE COMPANY OR ANY OTHER AGREEMENT REGARDING TRADE SECRETS, CONFIDENTIAL
INFORMATION, NONSOLICITATION OR LABOR CODE §2570. BOTH PARTIES UNDERSTAND THAT
ANY BREACH OR THREATENED BREACH OF SUCH AN AGREEMENT WILL CAUSE IRREPARABLE
INJURY AND THAT MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY THEREFOR AND
BOTH PARTIES HEREBY CONSENT TO THE ISSUANCE OF AN INJUNCTION. IN THE EVENT
EITHER PARTY SEEKS INJUNCTIVE RELIEF, THE PREVAILING PARTY SHALL BE ENTITLED TO
RECOVER REASONABLE COSTS AND ATTORNEYS' FEES.
4
E. Administrative
Relief. I UNDERSTAND
THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING AN ADMINISTRATIVE CLAIM
WITH A LOCAL, STATE OR FEDERAL ADMINISTRATIVE BODY SUCH AS THE DEPARTMENT OF
FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OR THE
WORKERS' COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM
PURSUING COURT ACTION REGARDING ANY SUCH CLAIM.
F. Voluntary Nature of
Agreement. I ACKNOWLEDGE
AND AGREE THAT I AM EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS
OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I FURTHER ACKNOWLEDGE AND
AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE ASKED ANY
QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES AND BINDING EFFECT
OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY
RIGHT TO A JURY TRIAL. FINALLY, I AGREE THAT I HAVE BEEN
PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF MY CHOICE BEFORE
SIGNING THIS AGREEMENT.
11. General
Provisions.
A. Governing Law;
Consent to Personal Jurisdiction. This Agreement will be governed by the
laws of the State of California. I hereby expressly consent to the personal
jurisdiction of the state and federal courts located in California for any
lawsuit filed there against me by the Company arising from or relating to this
Agreement.
B. Entire Agreement.
This Agreement sets forth
the entire agreement and understanding between the Company and me relating to
the subject matter herein and supersedes all prior discussions or
representations between us including, but not limited to, any representations
made during my interview(s) or relocation negotiations, whether written or oral.
No modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing signed by the
President of the Company and me. Any subsequent change or changes in my duties,
salary or compensation will not affect the validity or scope of this
Agreement.
C. Severability. If one or more
of the provisions in
this Agreement are deemed void by law, then the remaining provisions will
continue in full force and effect.
D. Successors and Assigns. This
Agreement will be binding upon my heirs, executors, administrators and other
legal representatives and will be for the benefit of the Company, its
successors, and its assigns.
(signature
page follows)
5
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Date:
Nov 1, 2007
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/s/
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signature
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name
of Employee (typed or printed)
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Witness:
/s/ ▇▇▇▇▇▇▇
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Signature
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Name
(typed or printed)
6
Exhibit
A
LIST OF
PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
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Title
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Date
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Identifying
Number or Brief Description
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All
inventions that I have made prior to employment and contract work for NewCardio
are outside of biomedical/signal processing field. They are property of Intel
Corporation my former employer.
__ No
inventions or improvements
__
Additional Sheets Attached
Signature
of Employee: /s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Print
Name of Employee: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Date:
Nov. 1, 2007
7
Exhibit
B
CALIFORNIA
LABOR CODE SECTION 2870
INVENTION
ON OWN TIME-EXEMPTION FROM AGREEMENT
"(a) Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate at the time of conception or
reduction to practice of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer;
or
(2) Result from any work performed by the
employee for the employer.
(b) To
the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable."
8
Exhibit
C
TERMINATION
CERTIFICATION
This is
to certify that I do not have in my possession, nor have I failed to return, any
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items belonging to
NewCardio, Inc., its subsidiaries, affiliates, successors or assigns (together,
the "Company").
I further
certify that I have complied with all the terms of the Company's At Will
Employment, Confidential Information. Invention Assignment and Arbitration
Agreement signed by me, including the reporting of any inventions and original
works of authorship (as defined therein), conceived or made by me (solely or
jointly with others) covered by that agreement.
I further
agree that, in compliance with the At Will Employment, Confidential Information,
Invention Assignment, and Arbitration Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know- how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further
agree that for twelve (12) months from this date, I will not solicit, induce,
recruit or encourage any of the Company's employees to leave their
employment.
Date: Nov
1, 2007
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/s/
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▇▇▇▇▇▇
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(Employee's
Signature
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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(Type/Print
Employee's Name)
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9
Exhibit
D
CONFLICT
OF INTEREST GUIDELINES
It is the
policy of NewCardio, Inc. to conduct its affairs in strict compliance with the
letter and spirit of the law and to adhere to the highest principles of business
ethics. Accordingly, all officers, employees and independent contractors must
avoid activities which are in conflict, or give the appearance of being in
conflict, with these principles and with the interests of the Company. The
following are potentially compromising situations which must be avoided. Any
exceptions must be reported to the President and written approval for
continuation must be obtained.
1. Revealing confidential information to
outsiders or misusing confidential information. Unauthorized divulging of
information is a violation of this policy whether or not for personal gain and
whether or not harm to the Company is intended. (The At Will Employment,
Confidential Information, Invention Assignment and Arbitration Agreement
elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial
gifts, excessive entertainment, favors or payments which may be deemed to
constitute undue influence or otherwise be improper or embarrassing to the
Company.
3. Participating in civic or professional
organizations that might involve divulging confidential information of the
Company.
4. Initiating or approving personnel
actions affecting reward or punishment of employees or applicants where there is
a family relationship or is or appears to be a personal or social
involvement.
5. Initiating or approving any form of
personal or social harassment of employees.
6. Investing or holding outside
directorship in suppliers, customers, or competing companies, including
financial speculations, where such investment or directorship might influence in
any manner a decision or course of action of the Company.
7. Borrowing from or lending to employees,
customers or suppliers.
8. Acquiring real estate of interest to
the Company.
9. Improperly using or disclosing to the
Company any proprietary information or trade secrets of any former or concurrent
employer or other person or entity with whom obligations of confidentiality
exist.
10. Unlawfully discussing prices, costs,
customers, sales or markets with competing companies or their
employees.
11.
Making any unlawful agreement with distributors with respect to
prices.
12. Improperly using or authorizing the use
of any inventions which are the subject of patent claims of any other person or
entity.
13. Engaging in any conduct which is not in
the best interest of the Company.
Each
officer, employee and independent contractor must take every necessary action to
ensure compliance with these guidelines and to bring problem areas to the
attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
10
EXHIBIT
C
RELEASE
AND WAIVER OF CLAIMS
In
consideration of the payments and other benefits set forth in the Employment
Agreement dated [_], 200[_]. to which this form is attached (the "Employment
Agreement"),
I, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, hereby furnish NewCardio, Inc. (the "Company") with the following release
and waiver ("Release and
Waiver").
In
exchange for the consideration provided to me by the Employment Agreement that I
am not otherwise entitled to receive, I hereby generally and completely release
the Company and its directors, officers, employees, stockholders, partners,
agents, attorneys, predecessors, successors, parent and subsidiary entities,
insurers, affiliates, and assigns from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any way related
to events, acts, conduct, or omissions occurring prior to my signing this
Release and Waiver. This general release includes, but is not limited to: (1)
all claims arising out of or in any way related to my employment with the
Company or the termination of that employment; (2) all claims related to my
compensation or benefits from the Company, including, but not limited to,
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (3) all claims for breach of contract, wrongful termination, and
breach of the implied covenant of good faith and fair dealing; (4) all tort
claims, including, but not limited to, claims for fraud. defamation, emotional
distress, and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including, but not limited to, claims for
discrimination, harassment, retaliation, attorneys' fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended), the federal
Americans with Disabilities Act of 1990, the federal Age Discrimination in
Employment Act of 1967 (as amended) ("ADEA"), and the California
Fair Employment and Housing Act (as amended).
I also
acknowledge that I have read and understand Section 1542 of the California Civil
Code which reads as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor
at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor." I hereby expressly waive and relinquish all rights and
benefits under that section and any law of any jurisdiction of similar effect
with respect to any claims I may have against the Company.
I
acknowledge that, among other rights, I am waiving and releasing any rights I
may have under ADEA, that this Release and Waiver is knowing and voluntary, and
that the consideration given for this Release and Waiver is in addition to
anything of value
to which I was already entitled as an executive of the Company. I further
acknowledge that I have been advised, as required by the Older Workers Benefit
Protection Act, that: (a) the release
and waiver granted herein does not relate to claims under the ADEA which may
arise after this Release and Waiver is executed; (h) I should consult with an
attorney prior to executing this Release and Waiver; (c) if I am over the age of
forty (40) on the date I am signing this Release and Waiver, 1 have 21 days in
which to consider this Release and Waiver (although I may choose voluntarily to
execute this
Release
and Waiver earlier); (d) if I am over the age of forty (40) on the date I am
signing this Release and Waiver, I have seven days following the execution of
this Release and Waiver to revoke my consent to this Release and Waiver; and (e)
if I am over the age of forty (40) on the date I am signing this Release and
Waiver, this Release and Waiver shall not be effective until the eighth day
after ! execute this Release and Waiver and the revocation period has expired;
otherwise it shall be effective upon the date of my signature
below.
I
acknowledge my continuing obligations under the At-Will Employment. Confidential
Information, Invention Assignment and Arbitration Agreement a copy of which is
attached hereto (the "Confidentiality Agreement").
Pursuant to the Confidentiality Agreement, I understand that among other
things, I must not use or disclose any confidential or proprietary information
of the Company and I must immediately return all Company property and documents
(including all embodiments of proprietary information) and all copies thereof in
my possession or control. I understand and agree that my right to the severance
pay I am receiving is in exchange for my agreement to the terms of this Release
and Waiver and is contingent upon my continued compliance with my
Confidentiality Agreement.
This
Release and Waiver, including the Confidentiality Agreement, constitutes the
complete, final and exclusive embodiment of the entire agreement between the
Company and me with regard to the subject matter hereof. I am not relying on any
promise or representation by the Company that is not expressly stated herein.
This Release and Waiver may only be modified by a writing signed by both me and
a duly authorized officer of the Company.
Date: __________________ By: __________________________
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11