EXHIBIT 10.10
EMPLOYMENT AGREEMENT
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AGREEMENT dated as of July 30, 1998 between CARESIDE, INC., a Delaware
corporation with its principal place of business in California (the "Company"),
and XXXXX X. XXXX, a Texas resident ("Employee").
W I T N E S S E T H:
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WHEREAS, the Company and Employee mutually desire to enter into this
Agreement with respect to Employee's employment with the Company on the terms
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and intending to be legally bound, the Company and Employee agree as
follows:
1. Employment and Term. The Company agrees to employ Employee and
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Employee agrees to serve the Company as Vice President and Chief Financial
Officer or in such other executive position as may be mutually agreed upon by
Employee and the Company, during the Term (as defined below). The term of this
Agreement (the "Term") shall commence on the date hereof and end on the date
which is the one-year anniversary thereof, or such later date to which
Employee's employment may be extended as provided in Section 11.
2. Duties. During the Term, Employee agrees to serve the Company
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faithfully, to devote his entire business time during regular business (except
for illness or incapacity, and except for vacation time as provided herein) to
such employment; to use his best efforts, skills and ability to promote its
interests; and to perform such duties as from time to time may be assigned to
him by the Board of Directors of the Company (the "Board"), subject to Section 3
hereof. Notwithstanding the foregoing, Employee may engage in charitable and
public activities and other activities in the health care industry, including
board memberships, so long as such activities do not materially interfere with
the performance of his duties and responsibilities under this Agreement. During
the Term, Employee shall be elected to, and shall serve as a member of the
Board.
3. Responsibilities. Employee's area of responsibility shall be
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that of Chief Financial Officer of the Company or such other executive position
as may be mutually agreed upon by Employee and the Company. During the Term,
the Company shall not assign any duties to or remove any duties from Employee
inconsistent with Employee's position. The Company shall at all times provide
Employee with such executive powers and authority as shall reasonably be
required by him to enable him to discharge such duties in an efficient manner,
together with such facilities and services as are suitable or customary to such
position. During the Term, Employee shall report directly to the Chief
Executive Officer of the Company.
4. Compensation. The Company agrees to pay Employee as compensation
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("Compensation") for all duties performed by him in any capacity during the
period of his employment under this Agreement:
(a) Base salary of $160,000 ("Base Salary"), payable in equal
biweekly installments or in such other installments as the Company shall pay its
other executive officers, subject to increases during future terms as mutually
agreed to between Employee and Company;
(b) A bonus (the "Bonus"), at the discretion of the Board; and
(c) Stock options, pursuant to the Careside, Inc. 1996 Incentive and
Non-Qualified Stock Option Plan, the Careside, Inc. 1996 Key Executive Stock
Option Plan, and any other equity-based plan of the Company (collectively the
"Stock Plans"), to the extent determined by the Board or the committee
responsible for administering the Stock Plans and consistent with the terms of
the Stock Plans, provided that the determination of the level of participation
for the Employee shall be consistent with that which is customary for the Chief
Financial Officer of similarly-situated companies.
5. Benefits; Reimbursement of Expenses. Employee shall also be
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entitled to:
(a) Participate in all of the benefit programs which are presently or
may hereafter be provided by the Company to any of its executives and key
employees, including, without limitation, all pension, thrift, incentive,
retirement, health insurance and life insurance programs.
(b) Reimbursement by the Company of expenses reasonably incurred by
him in connection with the performance of his duties, including, without
limitation, travel and entertainment expenses reasonably related to the business
or interests of the Company, upon submission by him of written documentation of
such expenses.
(c) A vacation of four (4) weeks each year at such time or times as he
shall reasonably determine with the consent of the Chief Executive Officer of
the Company.
(d) A one-time signing bonus of $15,000 to be paid by the Company
to him within ninety days of the date of this Agreement.
(e) A one-time reimbursement by the Company of expenses reasonably
incurred in connection with the relocation of him and his immediate family's
household goods from their present location in Texas to the Los Angeles area, as
well as, a one-time reimbursement by the Company of expenses reasonably incurred
in connection with travel and lodging costs for him and his immediate family to
visit the Los Angeles area to review and secure housing and schooling
opportunities, all such reimbursements shall be upon submission by him of
written documentation of such expenses.
(f) Such other benefits as the Board may determine from time to
time.
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6. Termination Due to Death, Cause or Disability.
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Employee's rights to Compensation under this Agreement shall cease to
accrue as of the date of termination of employment due to death, Cause, or
Disability, the latter two of which are defined as follows:
(a) Cause. Employee will be considered to have been terminated
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for Cause if, during the Term, Employee is terminated because Employee (i) has
engaged in any type of disloyalty to the Company, including without limitation,
fraud, embezzlement, theft, or dishonesty in the course of his employment, or
has otherwise breached any fiduciary duty owed to the Company, or (ii) has been
convicted of a felony or (iii) breached Section 8 of this Agreement regarding
confidentiality or non-competition or (iv) has disclosed trade secrets and
confidential information of the Company.
(b) Disability. Employee may be considered to have been
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terminated on account of Disability if, during the Term of this Agreement,
Employee is terminated because Employee does not perform services for the
Company for either (i) 90 consecutive days or (ii) 90 days within a 120-day
period on account of the Employee's mental or physical disability.
7. Other Termination. Employee's rights to Compensation under this
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Agreement shall continue to accrue through the end of the then current Term that
would exist absent the termination, if :
(a) Employee is terminated by the Company for any other reason
than Cause, including termination for no reason;
(b) Employee terminates his employment for "good reason," which,
for purposes of this Agreement, shall mean a reduction in duties or breach of
the Agreement by the Company; or
(c) Employee terminates employment due to a Change of Control,
which, for purposes of this Agreement, shall mean the happening of an event,
which shall be deemed to have occurred upon the earliest to occur of the
following events:
(i) the date the stockholders of the Company (or the Board,
if stockholder action is not required) approve a plan or other arrangement
pursuant to which the Company will be dissolved or liquidated; or
(ii) the date the stockholders of the Company (or the Board,
if stockholder action is not required) and the stockholders of the other
constituent corporations (or their respective boards of directors, if and to the
extent that stockholder action is not required) have approved a definitive
agreement to merge or consolidate the Company with or into another corporation,
other than, in either case, a merger or consolidation of the Company in which
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holders of shares of the Company's voting capital stock immediately prior to the
merger or consolidation will have at least 30% of the ownership of voting
capital stock of the surviving corporation immediately after the merger or
consolidation (on a fully diluted basis), which voting capital stock is to be
held in the same proportion (on a fully diluted basis) as such holders'
ownership of voting capital stock of the Company immediately before the merger
or consolidation; or
(iii) the date any entity, person or group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934,
as amended), other than (A) the Company, or (B) any of its Subsidiaries, or (C)
any of the holders of the capital stock of the Company, as determined on the
date of this Agreement, or (D) any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its Subsidiaries or (E) any
Affiliate (as such term is defined in Rule 405 promulgated under the Securities
Act of 1933, as amended) of any of the foregoing, shall have acquired beneficial
ownership of, or shall have acquired voting control over more than 70% of the
outstanding shares of the Company's voting capital stock (on a fully diluted
basis), unless the transaction pursuant to which such person, entity or
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group acquired such beneficial ownership or control resulted from the original
issuance by the Company of shares of its voting capital stock and was approved
by at least a majority of directors who shall have been either members of the
Board on the date of this Agreement or members of the Board for at least twelve
(12) months prior to the date of this Agreement; or
(iv) the first day after the date of this Agreement when
directors are elected such that there shall have been a change in the
composition of the Board such that a majority of the Board shall have been
members of the Board for less than twelve (12) months, unless the nomination for
election of each new director who was not a director at the beginning of such
twelve (12) month period was approved by a vote of at least sixty percent (60%)
of the directors then still in office who were directors at the beginning of
such period; or
(v) the date upon which the Board determines (in its sole
discretion) that based on then current available information, the events
described in clause (iii) are reasonably likely to occur.
8. Confidential Information; Non-Compete.
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(a) Confidential Information. Without the express prior written
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consent of the Company, Employee shall not disclose or make available to anyone
outside the Company, its subsidiaries or affiliated corporations or entities any
confidential or proprietary information of, or concerning, the Company,
including, without limitation, trade secrets, knowhow, customer lists,
inventions or other information not generally known to any competitor of the
Company, its subsidiaries or affiliated corporations or entities ("Confidential
Information"). Employee shall abide by this prohibition on disclosure of
Confidential Information during the Term of this Agreement and for one (1) year
commencing on the expiration or termination of the Term. Further, Employee
agrees that any Confidential
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Information developed or invented during the Term or any period of employment
preceding the Term shall be considered to be owned by the Company.
(b) Non-Compete. In consideration of the compensation and other
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benefits payable to Employee hereunder, Employee agrees that he shall not,
without the prior written consent of the Company, engage in the point-of-care
diagnostics business ("Prohibited Business") during the Term (the "Non-
Compete"). The Non-Compete shall extend for one (1) year commencing on the
expiration or termination of the Term; provided, however, if the Term of this
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Agreement shall have continued for at least two (2) years from the date hereof,
the Non-Compete shall terminate simultaneously with the expiration or
termination of the Term. Employee shall be regarded as engaged in a Prohibited
Business if he engages as partner, owner, agent, representative, employee,
officer, director or consultant or participates, directly or indirectly, whether
through investment, partnership, license, joint venture, or otherwise, in any
Prohibited Business. Nothing set forth above shall be deemed to prevent
Employee from merely acquiring or owning five percent (5%) or less of any
entity, whether public or private, regardless of the business in which such
entity is engaged. Anything in this paragraph (b) to the contrary
notwithstanding, in the event of the termination of this Agreement by Employee
pursuant to paragraph (b) or (c) of Section 7, or in the event of the
termination of this Agreement by the Company other than for Cause, the Non-
Compete shall thereafter be null and void and of no further force or effect, and
the Company shall not have any right to extend the Non-Compete as set forth
above.
9. Work Situs and Relocation. Except for travel consistent with the
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development of the Company's business, Employee shall not be required to perform
his duties under this Agreement outside of the Los Angeles metropolitan area or
any other area where the Company may choose to locate the business.
10. Termination of Prior Agreements. This Agreement expressly
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supersedes all agreements and understandings between the parties regarding the
subject matter hereof and any such agreement is terminated as of the date first
above written.
11. Renewal/Non-renewal. This Agreement shall be automatically
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extended annually on each July 30 without further action by the parties, for
three year terms unless either party shall, at least 60 days prior to the
expiration date or the expiration date as so extended, have given notice to the
other party that this Agreement shall not be so extended or otherwise terminate
this Agreement. After the first two years of employment, the Employee may
resign with at least 90 days notice subject to the discretion of the Board to
shorten the notice time.
12. Binding Effect. This Agreement shall be binding upon and inure
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to the benefit of the parties hereto, their respective legal representatives and
to any successor of the Company, which successor shall be deemed substituted for
the Company under the terms of this Agreement. As used in this Agreement, the
term "successor" shall include any person, firm,
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corporation or other business entity which at any time, whether by merger,
purchase or otherwise, acquires all or substantially all of the assets or
business of the Company.
13. Waiver of Breach. The waiver by the Company of a breach of any
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provision of this Agreement by Employee shall not operate or be construed as a
waiver of any subsequent breach.
14. Notices. Any notice required or permitted to be given hereunder
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shall be sufficient if in writing and if sent by registered or certified mail to
Employee at his residence or to the Company at its principal place of business.
15. Entire Agreement. This document contains the entire agreement of
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the parties and may not be changed except in a writing signed by both parties.
16. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the Commonwealth of Pennsylvania as applied to
contracts executed and performed wholly within the Commonwealth of Pennsylvania
without regard to the conflict-of-law provisions thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
CARESIDE, INC.
By: /s/ Xxx Xxxxxxxxx
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Name:_______________________________
Title:______________________________
/s/ Xxx Xxxx
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XXXXX X. XXXX
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