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EXHIBIT 10(y)
EMPLOYMENT AGREEMENT made as of the 1st day of May, 1993, by and between
CRYOMEDICAL SCIENCES, INC., a Delaware corporation (hereinafter referred to as
the "Company"), and XxxxXxx Xxxxx, Ph.D., residing at 00000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000 (hereinafter referred to as "Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to employ Employee, and Employee is willing
to accept such employment, all on the terms and subject to the conditions
hereinafter set forth,
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, the parties hereto agree as follows:
1. Employment
The Company hereby employs Employee, and Employee hereby accepts
employment with the Company as Director of Developmental Engineering Research,
and Senior Biomedical Research Engineer on the terms and conditions herein set
forth.
2. Term of Agreement
The term of this Agreement shall commence as of the date hereof and
shall continue for a period of three years, and shall thereafter be
automatically renewed on each anniversary date of this Agreement for an
additional one year period, unless the term of such employment shall be
terminated sooner pursuant to the
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express provisions hereof or be terminated by written notice by any party to
the other within 90 days of any anniversary date of this Agreement that this
Agreement shall not extend beyond such anniversary date (the "Term").
3. Duties
Effective upon the date hereof, Employee shall perform such functions
as are normally carried out by the Director of Developmental Engineering
Research in a business of the type in which the Company is engaged, including
those functions specified in Schedule A hereto, and such other functions as the
Chief Executive Officer or other executive officers shall from time to time
reasonably determine in keeping with Employee's office and capacity.
Employee's full time, energies and abilities shall be devoted exclusively to
the Company's business pursuant to, and in accordance with, reasonable business
policies and procedures, as fixed from time to time by the Chief Executive
Officer or other executive officers of the Company. Employee covenants and
agrees that he will faithfully adhere to and fulfill such policies as are
established from time to time by the Chief Executive Officer or other executive
officers of the Company.
4. Compensation
4.1 Subject to the provisions of Section 6 hereof, for the period
from May 1, 1993 to April 30, 1994, Employee's annual salary shall be $80,000.
On each anniversary date of this Agreement, Employee shall receive a minimum of
a cost of living increase equal to the prior year's annual salary times the
percentage increase
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in the Consumer Price Index for All Urban Consumers, Washington D.C. for the 12
month period ended on December 31st immediately preceding such anniversary
date.
4.2 The Company shall reimburse Employee within 30 days for all
reasonable expenses incurred by Employee in connection with the performance of
his duties to the Company hereunder for which Employee submits supporting
vouchers.
4.3 Employee shall be entitled to family coverage under the
Company's group medical and dental insurance plan, which shall become effective
upon commencement of full-time employment with the Company.
4.4 Employee shall also be eligible, to the extent he qualifies, for
any retirement, pension, life or other similar employee benefit plans which may
be adopted by the Company for its employees.
4.5 Employee shall be entitled to a two-week paid vacation each year
during the Term, to be taken at such time as is consistent with the needs of
the Company.
5. Stock Options
5.1 As of April 19, 1993, Employee shall receive options to purchase
an aggregate of 20,000 shares of common stock, par value $.001 per share, of
the Company at a purchase price equal to $6.875 per share, the fair market
value on the date thereof. The option shall be subject to and governed by such
other terms and conditions as set forth in the respective option agreements.
6. Termination
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The Term shall terminate upon the happening of any of the following
events:
6.1 Automatically and without notice upon death of Employee during
the Term;
6.2 Employee leaves the employ of the Company with or without the
consent of the Company;
6.3 Upon written notice of termination from the Company to Employee,
in the event that Employee becomes disabled, either totally or partially, for a
period of 90 consecutive days or 120 days in any 150 day period, so that he is
prevented from performing all or substantially all of his duties pursuant to
this Agreement. For purposes of this Agreement, disability shall be defined as
Employee's mental or physical inability to perform effectively the regular
duties of his employment for the aforesaid periods of time;
6.4 Upon discharge of Employee, on written notice, by the Company's
Chief Executive Officer on grounds of any of the following: conviction of a
crime which would bear on Employee's character for employment as distinguished
from a minor offense or minor traffic infraction; failure to carry out the
reasonable policies of the Chief Executive Officer or other executive officers
of the Company as they may relate to Employee's duties hereunder; persistent
absenteeism; insubordination; alcohol or drug abuse; fraud, embezzlement or
misappropriation of Company assets or the like; disloyal, dishonest or illegal
conduct; or a default or material breach of any of the covenants made by
Employee in this Agreement;
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6.5 Upon notice as specified in Section 2 hereof.
In the event any one of the foregoing events shall occur, the Company
shall be obligated to pay to Employee the compensation due him under Section 4
hereof up to the date of termination only and Employee shall not be entitled to
receive any additional compensation of any nature whatsoever.
In the event this Agreement is terminated by the Company for a reason
other than one of those set forth above, the Company shall be required to
continue to pay Employee a salary for six months at the rate of Employee's
salary immediately prior to the time of termination. Any compensation received
by Employee from any employment which Employee takes on shall be utilized to
mitigate payment required under this paragraph.
7. Notices
All notices required or permitted to be given by either party
hereunder shall be in writing and either delivered by hand or mailed by
registered or certified mail, return receipt requested, to the other party at
the address set forth above or such different address as may be given by notice
as provided for herein (or, in the case of notice to Employee, at his then
current residence or business address). Any notice mailed as provided above
shall be deemed given three (3) days after the date of mailing or on the date
of receipt, whichever is sooner.
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8. Proprietary Information
Simultaneously herewith, Employee is entering into a Proprietary
Information and Inventions Agreement with the Company, the terms of which are
included herein by reference and made a part hereof as Exhibit A,
9. Non-Competition
9.1 In view of the unique and valuable services it is expected
Employee will render to the Company, Employee's knowledge of the business of
the Company and proprietary information relating to the business of the Company
and similar knowledge regarding the Company, which knowledge it is expected
that Employee will obtain during the course of his employment with the Company
and in consideration of the compensation to be received by Employee hereunder,
Employee agrees that during the Term and for a period of three years
immediately following the termination thereof (the Term and the subsequent
three year period being hereinafter collectively referred to as the "Covenant
Period"), he will not compete with the Company, or, directly or indirectly,
own, manage, operate, control, loan money to, or participate in the ownership,
operation or control of, or be connected with as a director, partner,
consultant, agent, independent contractor or otherwise, or acquiesce in the use
of his name in any other business or organization which is in competition with
the Company in any geographical area in which the Company is then conducting
business or any geographical area in which, to the knowledge of Employee at the
time of cessation of employment, the Company plans to conduct business within
three years from the date thereof; provided however, that Employee shall be
permitted after the cessation of his
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employment to own less than a 5% interest as a shareholder in any company which
is listed on any national securities exchange even though it may be in
competition with the Company.
9.2 Employee will not, during the Covenant Period, solicit or
interfere with, or endeavor to entice away from the Company any of its
employees or customers without the written consent of the Company.
9.3 Since a breach of the provisions of this Section 9 could not be
adequately compensated by money damages and will cause irreparable injury to
the Company, the Company shall be entitled, in addition to any other right or
remedy available to it, to an injunction or restraining order restraining such
breach or a threatened breach, and no bond or other security shall be required
in connection therewith, and Employee hereby consents to the issuance of any
such injunction or restraining order. Employee agrees that the provisions of
this Section 9 are reasonable and necessary to protect the Company and its
business. It is the desire and intent of the parties that the provisions of
this Section 9 shall be enforced to the fullest extent permitted under the
public policies and laws applied in each jurisdiction in which enforcement is
sought. If any restriction contained in this Section 9 shall be deemed to be
invalid, illegal or unenforceable by reason of the extent, duration or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration,
geographical scope or other provision hereof and in its reduced form such
restriction shall then be enforceable in the manner contemplated hereby.
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10. Entire Agreement
The provisions hereof (including the agreements being, or to be
entered into, between the parties hereto as referred to herein) constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede any prior oral understanding, and no modification, supplement or
discharge hereof shall be effective unless in writing and executed on behalf of
the Company and Employee.
11. Waiver
No waiver by either party of any condition, term or provision of this
Agreement shall be deemed to be a waiver of any preceding or succeeding breach
of the same or of any other condition, term or provision hereof.
12. Assignability
This Agreement and its rights and obligations may not be assigned by
Employee. The Company may assign any of its rights and obligations hereunder to
a successor or surviving corporation resulting from a merger, consolidation,
sale of assets or stock, or other corporate reorganization, upon condition that
the assignee shall assume, either expressly or by operation of law, all of the
Company's obligations hereunder.
13. Counterparts
This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
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14. Construction
This Agreement shall be construed in accordance with the laws of the
State of Maryland.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ XxxxXxx Xxxxx
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XxxxXxx Xxxxx, Ph.D.
CRYOMEDICAL SCIENCES, INC.
By: /s/
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SCHEDULE A
Subject to the directions of the Board of Directors and the Chief
Executive Officer of the Company, the functions of Employee shall include, but
are not limited to, the following:
- Xx. Xxxxx'x official title is Senior Biomedical Research Engineer and
Director of Developmental Engineering Research. He directs the day-to-
day activities of the Research and Development staff of engineers,
technicians, and machinists; organizes and procures the necessary
materials for each project; coordinates the use of proprietary
cryosurgical systems with cooperating surgical centers; and assists in the
operation of new cryosurgical apparatuses during surgical procedures.
Xx. Xxxxx is also responsible for the promotion of these proprietary
systems within the medical and scientific community which includes giving
lectures at international conferences, obtaining patents, and publishing
manuscripts.
- Xx. Xxxxx regularly works with a variety of cryosurgical apparatuses
and high-performance vacuum systems as well as with heat-transfer
software and the MS DOS, Macintosh, and CAD-CAM computer
systems. He has experience in differential scanning calorimetry, mass
spectrometry, helium-leak detection, tissue cultures, and nuclear
magnetic-resonance spectroscopy.
