1
EXHIBIT 10.92
EMPLOYMENT AGREEMENT
This Employment Agreement made as of the 15th day of December, 1997,
by and between AMERICAN BIOMED, INC., a Delaware corporation (the "Company"),
and XXXXXXXX XXXX, an individual residing at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxxxx
XX 00000 (the "Employee").
WHEREAS, the Company wishes to employ the Employee and the Employee
desires to work for the Company upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
premises hereinafter set forth, the Company and the Employee agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Employee
and the Employee hereby agrees to work for the Company upon the terms and
conditions set forth herein.
2. TERM OF EMPLOYMENT. Subject to Section 6. hereof this
Agreement shall have a term of two (2) years commencing December 15, 1997 (the
"Initial Term"). Thereafter, this Agreement shall continue in effect on a
year-to-year basis unless terminated in accordance with Section 6. hereof
3. SCOPE OF DUTIES; REPRESENTATIONS AND WARRANTIES.
a. The Employee shall be employed by the Company as its
Vice President Sales and Marketing. At all times, the Employee shall serve
under the direction of the President and Chief Executive Officer of the Company
and shall perform such services as the President and Chief Executive Officer in
his discretion shall deem appropriate.
b. So long as he is employed by the Company, the
Employee shall devote his skill, energy and best efforts to the faithful
discharge of his duties as an employee of the Company. The Employee agrees that
in the provision of all services to the Company, he will comply with and
follow all directives, policies, standards and regulations from time to time
established by the Board of Directors of the Company.
c. The Employee represents and warrants that he is under
no contractual or other restrictions or obligations which will in any way limit
his activities on behalf of the Company.
4. COMPENSATION.
a. During the first year of this Agreement, the Company
shall pay the Employee a base salary, payable monthly in arrears, in equal
installments at a rate equal to $80,000 per annum, (effective 2-1-98 108,000 per
annum). The
2
annual salary may be adjusted from time to time based upon performance and the
Company's financial condition. In each subsequent year of this Agreement, the
Company shall pay to the Employee a salary equal to the greater of (i) his
salary for the immediately preceding year or (ii) a salary determined by the
Board of Directors following its annual salary and performance review. The
Company shall pay an annual bonus pursuant to an annual incentive compensation
plan up to 50% of the Employee's base salary, based upon Employee attaining
mutually agreed upon goals.
b. All payments of salary and other compensation to the
Employee shall be made after deduction of any taxes which are required to be
withheld with respect thereto under applicable federal and state laws.
c. The Company hereby agrees to grant to the Employee a
non-qualified stock option for 300,000 shares of common stock in the Company
("Option Shares"). The exercise price per share shall be the fair market value
of the shares of common stock of the Company based on the market price of the
common stock at the date of employment. The Employee shall have seven (7) years
in which to exercise those options which have vested. The stock option shall
vest as follows:
(1) 100,000 shares shall vest over two years as
follows: 50,000 upon the employment of the Employee pursuant to this Agreement;
25,000 on the first anniversary of employment and 25,000 on the second
anniversary of employment;
(2) an additional 200,000 shares shall vest after
the date of this Agreement as follows: 50,000 on the first anniversary of
employment and 150,000 on the second anniversary of employment.
The stock options shall be exercisable as to the vested portion by the Employee
for one year following termination of his employment by the Company for any
reason, except that, in the event of the death of the Employee, his estate
shall have the right to exercise the vested portion of the stock option at the
time of the Employee's death for a two-year period following the date of the
Employee's death. In the event the Employee is terminated by the Company
without cause, all shares (in addition to the already vested portion of the
option) shall immediately vest.
d. If there should occur a change in control of the
Company, or the Company is otherwise sold, merged or consolidated, any stock
options, vested or unvested, shall become immediately exercisable by the
Employee, and shall remain exercisable for a period of ten years.
Page 2
3
5. FRINGE BENEFITS; EXPENSES.
a. So long as the Employee is employed by the Company,
the Employee shall participate in all employee benefit plans sponsored by the
Company for its executive employees, including but not limited to health
insurance, dental insurance; provided, however, that the nature, amount and
limitations of such plans shall be determined from time to time by the Board of
Directors of the Company.
b. The Company will reimburse the Employee for all
reasonable business expenses incurred by the Employee in the scope of his
employment.
6. TERMINATION.
a. During the Initial Term, the Employee's employment by
the Company may be terminated only for cause. "Cause" for this purpose shall
mean gross and continued dereliction of duty or willful misconduct in the
performance of the duties specified herein or conviction of a felony involving
moral turpitude. Following such period, the Employee's employment by the
Company may be terminated by either party at any time, with or without Cause,
by sixty (60) days' written notice to the other party. If the Company
terminates the Employee's employment under this Agreement during the Initial
Term other than for Cause, then the Company shall pay to the Employee (or his
estate or representative, as appropriate) an amount equal to the amount of his
then-current monthly salary times the number of months remaining in the Initial
Term, in a lump sum payment, and shall continue to provide benefits in the kind
and amounts provided up to the date of termination for the remaining period in
the Initial Term, including, without limitation, continuation of any
Company-paid benefits as described in Section 5.a. for the Employee and his
family. Under no circumstances shall Employee be entitled to any compensation
under this Agreement for any period of time following his date of termination
if his termination is for Cause.
7. CONFIDENTIALITY. The Employee understands and agrees that his
employment by the Company creates a relationship of confidence and trust
between himself and the Company with respect "Confidential Information" and
"Inventions". As used herein, the term "Confidential Information" shall mean
and include any and all scientific records, computer programs, data, patent
applications, trade secrets, proprietary information, technology or other
information of any kind or expressed or recorded on any medium arising out of,
concerning or acquired in connection with the research, development and
commercialization activities of the Company; but does not include information
(i) rightfully in the possession of the Employee prior to its disclosure by the
Company; (ii) coming into the Employee's
Page 3
4
possession from another party who is under no obligation to the Company to keep
the information confidential, (iii) generally known or available, through no
fault of the Employee or (iv) later furnished to the Company without disclosure
restrictions; and the term "Inventions" shall mean any discovery, concept or
idea, whether or not patentable or copyrightable, made during the course of the
Employee's employment, including but not limited to apparatus, processes,
methods, software, formulas, substances and techniques, improvements thereof
and know-how relating thereto, which is made, conceived or reduced to practice,
in whole or in part, during the course of the Employee's employment. In
consideration of his employment by the Company and the compensation received
from the Company from time to time, the Employee agrees that all Confidential
Information and Inventions shall be the sole property of the Company and its
assigns, and the Company and its assigns shall be the sole owners of all
patents and other rights in connection therewith. The Employee hereby assigns
to the Company any rights which he may have or acquire in such Confidential
Information or Inventions. At all times, both during his employment by the
Company and for a period of three years thereafter, the Employee will keep in
confidence and trust all Confidential Information and Inventions and will not
use or disclose any Confidential Information or Inventions or anything relating
thereto without the prior written consent of the Company, except as may be
necessary in the ordinary course of performing his duties for the Company. The
Employee agrees that the remedy at law for any breach of any provision of this
Section 7 will be inadequate and that the Company will be entitled to
injunctive relief for any such breach.
8. NON-COMPETITION
a. So long as the Employee is employed by the Company
and for three years thereafter, the Employee shall not directly or indirectly
engage in, manage, operate, join, control or participate in the ownership,
management, operation or control of, or be employed or engaged in any manner by,
any business competing with that of the Company in the continental United
States. For purposes of this Section 8, a business shall be deemed to be
competing with the business of the Company if such other business is
principally engaged in the development, marketing or distribution of products
and/or technology (whether patented or otherwise) involving atherectomy
catheters, heart pumps, or any other technology developed by the Company during
the term of this Agreement, their derivatives or functional substitutes which
are based on technology or information similar thereto.
b. The Employee has carefully read and considered the
provisions of this Section 8. and, having done so, agrees that the restrictions
set forth in such paragraph, including the time period, scope of activity to be
restrained, and the geographical scope, are fair and reasonable and are
Page 4
5
reasonably required for the protection of the interests of the Company, its
officers, directors, employees and shareholders.
c. In the event, notwithstanding the foregoing, that any
of the provisions of this Section 8. shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though the invalid or unenforceable parts had not
been included therein. In the event any provision of Section 8.a. relating to
the time period and/or the areas of restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, the time period and/or areas of restriction
deemed reasonable and enforceable by such court shall become and thereafter be
the maximum time period and/or areas.
The Employee agrees that the remedy at law for any breach of
any provision of this Section 8. will be inadequate and that the Company will
be entitled to injunctive relief for any such breach.
9. NOTICE. All notices, requests, demands and other communications
required by or permitted under this Agreement shall be in writing and shall be
sufficiently delivered if delivered by hand, by courier service, or sent by
registered or certified mail, postage prepaid, to the parties at their
respective addresses listed below:
a. If to the Employee, to the address set out in the
beginning of this Agreement;
b. If to the Company:
Attention: Board of Directors
American BioMed, Inc.
00000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Either party may change such party's address by such notice to the other
parties.
10. ASSIGNMENT. This Agreement is personal to the Employee, and he
shall not assign any of his rights or delegate any of his duties hereunder
without the prior written consent of the Company.
Page 5
6
The Company shall have the right to assign this Agreement to a successor in
interest in connection with a merger, sale of substantially all assets, or the
like.
11. SURVIVAL. This provisions of this Agreement shall survive the
termination of the Employee's employment hereunder in accordance with their
terms.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas.
13. BINDING UPON SUCCESSORS. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and permitted assigns.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Company and the Employee with respect to the terms of
employment of the Employee by the Company and supersedes all prior agreements
and understandings, whether written or oral, between them concerning such terms
of employment.
15. WAIVER AND AMENDMENTS; CUMULATIVE RIGHTS AND REMEDIES.
a. This Agreement may be amended, modified or
supplemented, and any obligation hereunder may be waived only by a written
instrument executed by the parties hereto. The waiver by either party or a
breach of any provision of this Agreement shall not operate as a waiver of any
subsequent breach.
b. No failure on the part of any part to exercise, and
no delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or remedy by
such party preclude any other or further exercise thereof or the exercise of
any other right or remedy. All rights and remedies hereunder are cumulative and
are in addition to all other rights and remedies provided by law, agreement or
otherwise.
c. The Employee's obligations to the Company and the
Company's rights and remedies hereunder are in addition to all other
obligations of the Employee and rights and remedies of the Company created
pursuant to any other agreement.
Page 6
7
16. SEPARABILITY. In the event any provision or provisions of this
Agreement is held to be invalid or unenforceable by any court of law or
otherwise, the remaining provisions of this Agreement shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement on the date first above written.
AMERICAN BIOMED, INC.
[C]
By: /s/ XXXXXX X. XXXX /s/ XXXXXXXX XXXX
------------------------ ------------------------
Name: Xxxxxx X. Xxxx Xxxxxxxx Xxxx
Title: President and CEO
Company Employee
Page 7
