EXHIBIT 10.40
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 2nd day of December, 1996, between Luther
Medical Products, Inc., a California corporation (the "Company"), and XXXXXX
XXXXXX (the "Executive").
WHEREAS, the Executive has expertise with the U.S. Food and Drug
Administration's ("FDA") good manufacturing practices ("gmp") requirements and
in the areas of quality assurance and regulatory affairs; and
WHEREAS, the Company is engaged in the design and manufacture of
sterile medical devices in compliance with gmp;
WHEREAS, the Company desires to engage Executive to provide his time
and talents in supporting the Company's quality assurance programs and
regulatory affairs compliance in connection with the design and manufacture of
its products in accordance with gmp;
WHEREAS, the Executive desires to serve the Company on the terms
herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. Employment; Employee Handbook; Confidentiality and Patent
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Assignment Agreement. The Company hereby agrees to employ the Executive and the
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Executive hereby agrees to serve the Company, on an "at will" basis and such
other terms and conditions as are set forth herein. The anticipated
commencement date of the employment relationship shall be on or about January 6,
1997, and shall continue until terminated as hereinafter set forth. The terms
and conditions hereof merely act to supplement the contents of the Company's
Employee Handbook, the contents of which govern the employment relationship
created hereby. Not later than the effective date hereof, the Executive shall
execute and deliver to the Company the Company's Confidentiality and Patent
Assignment Agreement.
2. Position; Duties; Place of Performance. The Executive shall serve
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as the Company's Vice President of Quality Assurance and Regulatory Affairs and
shall report directly to the President, and shall emphasize daily review and
analysis of the Company's operations in respect of quality assurance and
regulatory affairs compliance in connection with the gmp requirements of the FDA
and analogous international regulatory agencies.
3. Compensation and Related Matters.
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(a) Base Salary. During the period that this Agreement is effective,
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the Company shall pay to the Executive a base salary ("Base Salary") of not less
than $100,000 (on an annualized basis), all payable in substantially equal
semi-monthly installments. The Company's Compensation Committee may
periodically review the Executive's Base Salary and other compensation, if any,
and shall cause the Base Salary and such other compensation to be modified, if
appropriate in their sole discretion.
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(b) Housing. In addition to Base Salary, the Executive shall be
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entitled to be reimbursed for the costs incurred by him in respect of an
apartment, i.e., rent and utilities, exclusive of telephone and cable
television charges, for the first three months of the Executive's employment
with the Company; provided, however, that the aggregate of such reimbursement
shall not exceed $2,300 per month.
(c) Expenses. During the term of his employment hereunder, the
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Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance with the Company's then-current policies
and procedures for its senior executive officers) in performing services
hereunder, provided that the Executive properly accounts therefor in accordance
with Company policy.
4. Termination. THE EMPLOYMENT RELATIONSHIP CREATED HEREBY IS "AT
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WILL." The employment relationship created hereby may be terminated without any
breach of this Agreement by either the Company or the Executive at any time with
or without cause. Such termination, in and of itself, shall not entitle either
party hereto to any compensation therefor. The provisions of Sections 4 through
10, inclusive, shall survive any termination of this Agreement.
5. Successors; Binding Agreement.
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(a) If any successor (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company, shall fail to continue to employ the Executive on terms
no less favorable to the Executive than those contained for a six-month period
commencing from and after the closing of such transaction, the Executive shall
be entitled to receive compensation from such successor in the same amount and
on the same terms as if this Agreement had continued in effect during such six-
month period. As used in this Agreement, "Company" shall mean the Company as
herein-before defined and any successor to its business and/or assets as
aforesaid that executes and delivers the agreement provided for in this Section
5 or that otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's devisee, legatee,
or other designee or, if there be no such designee, to the Executive's estate.
6. Notice. For purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Xxxxxx Xxxxxx
0000 Xxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
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If to the Company:
Luther Medical Products, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7. Miscellaneous. No provisions of this Agreement may be modified,
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waived, or discharged, unless such waiver, modification, or discharge is agreed
to in writing signed by the Executive and the President. No waiver by either
party hereto of, or in compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of California.
8. Validity. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
9. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
10. Arbitration. Any dispute or controversy arising under or in
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connection with this Agreement shall be settled exclusively by arbitration in
Orange County, California, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, that the Company
shall be entitled to seek a restraining order or injunction in any court of
competent jurisdiction to prevent any continuance of any violation of
Confidentiality and Patent Assignment Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
LUTHER MEDICAL PRODUCTS, INC.
By: --------------------------------- ----------------------------------
Xxxxx Xxxxx, President XXXXXX XXXXXX
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