EXHIBIT 10.29
EMPLOYMENT AGREEMENT
Endocare, Inc. ("Endocare"), with its principal offices located at 7
Studebaker, Xxxxxx, XX 00000, and Xxxxx Xxxxxxxx (hereinafter "Xxxxxxxx") agree
as follows:
The parties hereto acknowledge that Xxxxxxxx has been employed by
Endocare since August 14, 2000. In consideration of Endocare's agreement to
continue employing Xxxxxxxx pursuant to the terms of this written Employment
Agreement (the "Agreement"), Xxxxxxxx' promise to continue working for Endocare
pursuant to the terms of this Agreement and the other mutual promises contained
herein, the parties voluntarily agree as follows:
1. EFFECTIVE DATE: The provisions of this Agreement shall be effective
beginning May 1, 2002 (the "Effective Date").
2. TERM AND NATURE OF EMPLOYMENT:
(a) Services. Pursuant to the terms of this Agreement, Xxxxxxxx
agrees to provide in-house counseling services ("Services") to Endocare.
(b) Part-Time Employment; Hours Requirements. From May 1, 2002, until
September 30, 2002, inclusive (the "First Period"), Xxxxxxxx shall provide
Services to Endocare on a schedule representing eighty percent (80%) of a
full-time employment schedule, or thirty-two (32) hours per week.
From October 1, 2002, until April 30, 2003, inclusive (the "Second
Period"), Xxxxxxxx shall provide Services to Endocare on a schedule representing
twenty percent (20%) of a full-time employment schedule, or eight (8) hours per
week.
(c) Compensation. Xxxxxxxx shall receive a semi-monthly salary,
payable on the fifteenth (15th) and last days of each month. Xxxxxxxx'
semi-monthly salary during the First Period shall be $4,000.00 less applicable
withholding taxes. Xxxxxxxx' semi-monthly salary during the Second Period shall
be $1,000.00 less applicable withholding taxes.
In the event that Xxxxxxxx shall provide Services in excess of
thirty-two (32) hours in a single workweek during the First Period of her
employment, or in excess of eight (8) hours in a single workweek during the
Second Period of her employment, she shall be compensated at an hourly rate of
fifty-eight dollars ($58) for each such hour worked in excess of the hours
requirements described in Paragraph 2(b) of this Agreement.
Compensation will be paid in accordance with Endocare's standard
payroll procedures and practices.
(d) Business Expenses. Upon presentation of appropriate
documentation, Endocare shall reimburse Xxxxxxxx for reasonable, out-of-pocket
business expenses incurred by Xxxxxxxx in the course of her provision of
Services under this Agreement. Xxxxxxxx will submit monthly expense reports for
approval by the Board of Directors or Chief Financial Officer of Endocare.
(e) Stock Options. On December 28, 2000, Xxxxxxxx was granted an
incentive stock option to purchase up to Twenty Thousand (20,000) shares of
Endocare's Common Stock at $12.4375 per share; on January 1, 2001, Xxxxxxxx was
granted an incentive stock option to purchase up to Fifteen Thousand Four
Hundred Eleven (15,411) shares of Endocare's Common Stock at $5.1200 per share;
on January 1, 2001, Xxxxxxxx was granted a nonqualified stock option to purchase
up to Twenty Nine Thousand Five Hundred Eighty Nine (29,589) shares of
Endocare's Common Stock at $5.1200 per share; and on July 19, 2001, Xxxxxxxx was
granted a nonqualified stock option to purchase up to Twenty Thousand (20,000)
shares of Endocare's Common Stock at $17.6400 per share (collectively, the
"Options"). As of the Effective Date, Xxxxxxxx had acquired a vested interest in
Twenty Thousand Three Hundred Thirteen shares under the Options, and had
exercised her right under the Option to purchase no shares of Endocare's Common
Stock. Xxxxxxxx' interest under the Options shall continue to vest in accordance
with Endocare's 1995 Stock Plan, as amended, and Xxxxxxxx' individual Stock
Option Agreements thereunder, throughout the term of Xxxxxxxx' employment by
Endocare under this Agreement.
(f) Facilities. Endocare shall not provide Xxxxxxxx with facilities
or office space during Xxxxxxxx' employment by Endocare under this Agreement.
3. TERMINATION: Xxxxxxxx' employment under this Agreement may only be
terminated by Endocare solely upon the occurrence of any of the following:
(a) Xxxxxxxx' commission of any act of fraud with respect to Endocare
or Endocare's business.
(b) Xxxxxxxx' conviction of or being formally charged with the
commission of any felony; or
(c) Xxxxxxxx' conviction of or being formally charged with the
commission of any crime which, in the good faith judgement of Endocare's Board
of Directors, involved moral turpitude and has caused or will cause material
harm to Endocare's standing and/or reputation.
4. GENERAL MUTUAL RELEASE: The parties, including their heirs,
executors, administrators, assigns, successors and current, former and future
parents, subsidiaries, related entities, employee benefit plans and their
fiduciaries, predecessors, successors, officers, directors, shareholders, agents
and employees, if any, fully and forever release and discharge one another with
respect to any and all claims, liabilities and causes of action, of every
nature, kind and description, in law, equity or otherwise, which have arisen,
occurred or existed at any time prior to the Effective Date of this Agreement,
including, without limitation, any and all claims, liabilities and causes of
action arising out of or relating to Xxxxxxxx' employment with Endocare or the
cessation of that employment.
5. KNOWING WAIVER OF EMPLOYMENT-RELATED CLAIMS: Xxxxxxxx understands and
agrees that, with the exception of potential employment-related claims
identified below, she is waiving any and all rights she may have had, now has,
or in the future may have, to pursue against Endocare or any of its current,
former and future parents, subsidiaries, related entities, employee benefit
plans and their fiduciaries, predecessors, successors, officers, directors,
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shareholders, agents, employees and assigns, any and all remedies available to
her under any employment-related causes of action, including without limitation,
claims of wrongful discharge, breach of contract, breach of the covenant of good
faith and fair dealing, fraud, violation of public policy, defamation,
discrimination, personal injury, physical injury, emotional distress, claims
under Title VII of the Civil Rights Act of 1964, as amended, the Americans With
Disabilities Act, the Age Discrimination in Employment Act, the Federal
Rehabilitation Act, the Family and Medical Leave Act, the California Fair
Employment and Housing Act, the California Family Rights Act, the Equal Pay Act
of 1963, the provisions of the California Labor Code and any other federal,
state or local laws and regulations relating to employment, conditions of
employment (including wage and hour laws) and/or employment discrimination.
Claims not covered by the release provisions of this Agreement are (i) claims
for unemployment insurance benefits, and (ii) claims under the California
Workers' Compensation Act.
6. WAIVER OF CIVIL CODE SECTION 1542. Each party expressly waives any
and all rights and benefits conferred upon such party by Section 1542 of the
Civil Code of the State of California, which states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HER MUST HAVE MATERIALLY AFFECTED HER
SETTLEMENT WITH THE DEBTOR."
Each party expressly agrees and understands that the release given in
Paragraph 4 of this Agreement applies to all unknown, unsuspected and
unanticipated claims, liabilities and causes of action which such party may have
against the other party.
7. BENEFITS: Xxxxxxxx shall be entitled to participate in the health
care plan provided by Endocare to its employees, on the same terms and
conditions as other participating employees, from the Effective Date through
June 30, 2002.
Commencing July 1, 2002, Xxxxxxxx shall not be entitled to
participate in the health care plan provided by Endocare to its employees.
Xxxxxxxx acknowledges and understands that the health care benefits
provided by Endocare may be changed or terminated at any time in Endocare's sole
discretion.
Endocare acknowledges that Xxxxxxxx is entitled to participate in
Endocare's calendar year 2001 401(k) plan and other calendar year 2001 benefit
programs of Endocare under the terms and conditions of such plan or programs, as
may be amended by the Board of Directors of Endocare from time to time.
8. BONUSES: Xxxxxxxx acknowledges and understands that she will not be
eligible for any bonus for her Services during either the First Period or Second
Period of her employment pursuant to this Agreement. Xxxxxxxx further
acknowledges and understands that she is not currently eligible for any bonus
for services she has already provided to Endocare.
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9. CONFIDENTIALITY: The parties acknowledge and agree that the
identities of Endocare's customers and potential customers is confidential,
trade secret information. In the event Xxxxxxxx'x employment with Endocare
terminates for any reason whatsoever, Xxxxxxxx agrees that for one year from the
date of said termination, she will not directly or indirectly, as principal,
agent, owner, employee, officer, director, shareholder or otherwise, contact any
of Endocare's customers or prospects for the purpose of attempting to provide
such persons or entities with services offered by Endocare, or for the purpose
of selling or soliciting the sale of marketing research or consulting services
to said customers or prospects.
10. NON-DISPARAGEMENT. Xxxxxxxx shall not at any time after the date
hereof disparage Endocare or it's officers, directors, employees or agents.
Similarly, Endocare and its officers, directors, employees and agents shall not
disparage Xxxxxxxx.
11. TERMS OF AGREEMENT. Both Xxxxxxxx and the Company agree that the
terms and conditions of this Agreement are confidential shall not be disclosed
to any third-party by either party to this Agreement without written consent of
the other party. The obligations under this Section 11 shall not apply to
disclosures required by applicable law, regulation or order or court or
governmental agency, or disclosure to either party's attorneys or accountants.
12. ENTIRE AGREEMENT: This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Xxxxxxxx by Endocare and contains all of the covenants and
agreements between the parties with respect to that employment. The parties
acknowledge and agree that no other representations, inducements, promises or
agreements have been made by any party, and that this Agreement reflects the
entire agreement between them. The parties further agree that this Agreement may
be changed only in a writing signed by both parties.
ENDOCARE, INC.
Dated: 6/5/02 /s/ XXXX XXXXXXXXXX
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Dated: 6/5/02 /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
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