EMPLOYMENT AGREEMENT
AGREEMENT, dated as of February 28, 2005, between OMNICORDER
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and the Executive
identified on Exhibit A attached hereto (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of the Executive
and to that end desires to enter into a contract of employment with him, upon
the terms and conditions herein set forth; and
WHEREAS, the Executive desires to be employed by the Company upon such
terms and conditions;
NOW, THEREFORE, in consideration of the premises and of the mutual
benefits and covenants contained herein, the parties hereto, intending to be
bound, hereby agree as follows:
1. APPOINTMENT AND TERM
Subject to the terms hereof, the Company hereby employs the Executive,
and the Executive hereby accepts employment with the Company, all in accordance
with the terms and conditions set forth herein, for a period commencing on the
date hereof (the "Commencement Date") and ending on the date (the "Expiration
Date") set forth in Exhibit A, unless the parties mutually agree in writing upon
a later date.
2. DUTIES
(a) During the term of this Agreement, the Executive shall be employed
in the position set forth in Exhibit A and shall, unless prevented by
incapacity, devote all of his business time, attention and ability during normal
corporate office business hours to the discharge of his duties hereunder and to
the faithful and diligent performance of such duties and the exercise of such
powers as may be assigned to or vested in him by the Board of Directors of
the Company (the "Board"), such duties to be consistent with his position. The
Executive shall obey the lawful directions of the Board, and shall use his
diligent efforts to promote the interests of the Company and to maintain and
promote the reputation thereof. Beginning on the date of the commencement of his
employment, the Executive will be appointed as an interim member of the Board
and will be nominated to be elected to the Board at the next general meeting of
shareholders.
(b) The Executive shall not during his term of employment (except as a
representative of the Company or with the consent in writing of the Board) be
directly or indirectly engaged, concerned or interested in any other business
activity (including, but not limited to, as an employee, consultant or
director), except through ownership of an interest of not more than 2% in any
entity that does not compete with the Company with the exception of Stinger
Industries LLC, (a/k/a Stinger Medical), provided it does not impair the ability
of the Executive to discharge fully and faithfully his duties hereunder.
(c) Notwithstanding the foregoing provisions, the Executive shall be
entitled to serve in various leadership capacities in civic, charitable and
professional organizations. The Executive recognizes that his primary and
paramount responsibility is to the Company.
(d) The Executive shall be based in Suffolk County, New York, or any
other location subsequently designated by the Board as the Company's
headquarters, except for required travel on the Company's business.
3. REMUNERATION
(a) As compensation for his services pursuant hereto, the Executive
shall be paid a base salary during the first year of his employment hereunder at
the annual rate set forth in Exhibit A. This amount shall be payable in equal
periodic installments in accordance with the usual payroll practices of the
Company.
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(b) Except as provided above, in Exhibit A and in Sections 4 and 6
hereof, the Executive shall not be entitled to receive any additional
compensation, remuneration or other payments from the Company.
4. HEALTH INSURANCE AND OTHER FRINGE BENEFITS
The Executive shall be entitled to participate in regular
employee fringe benefit programs to the extent such programs are offered by the
Company to its executive employees, including, but not limited to, medical,
hospitalization and disability insurance and life insurance that are
substantially consistent with the programs of the Company in effect prior to the
Commencement Date.
5. VACATION
The Executive shall be entitled to the number of weeks of vacation set
forth in Exhibit A (in addition to the usual national holidays) during each
contract year during which he serves hereunder. Such vacation shall be taken at
such time or times as will be mutually agreed between the Executive and the
Company. Vacation not taken may be carried forward to a maximum of two weeks.
The maximum vacation taken in one year will be eight weeks. In the event
of severance from the Company, four weeks is the maximum liability for the
Company.
6. REIMBURSEMENT FOR EXPENSES
The Executive shall be reimbursed for reasonable documented business
expenses incurred in connection with the business of the Company in accordance
with practices and policies established by the Company. This will include actual
temporary housing expenses not to exceed $2000 per month until December 31,
2005. The Executive and the Company agree that it will be a priority to
determine the optimum location of the Company and that it is in the best
interest of both parties to resolve this question as soon as practicable. In the
event that unforeseen circumstances delay this process, a fair and equitable
extension of the above stated timing shall be negotiated in good faith. If the
headquarters of Company is to remain in Suffolk
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County, New York, or moved to a location that is not within a reasonable commute
from the Executive's current residence, the Executive will relocate his
residence and the Company will separately offer and negotiate a fair and
equitable relocation package.
7. TERMINATION
(a) This Agreement shall terminate in accordance with the terms of
Section 7(b) hereof; provided, however, that such termination shall not affect
the obligations of the Executive pursuant to the terms of Sections 8 and 9.
(b) This Agreement shall terminate on the Expiration Date; or as
follows:
(i) Upon the written notice to the Executive by the Company at
any time, because of (w) the willful and material malfeasance, dishonesty or
habitual drug or alcohol abuse by the Executive related to or affecting the
performance of his duties, (x) the Executive's continuing and intentional
breach, non-performance or non-observance of any of the terms or provisions of
this Agreement, but only after notice by the Company of such breach,
nonperformance or nonobservance and the failure of the Executive to cure such
default as soon as practicable (but in any event within ten (10) business days
following written notice from the Company), (y) the conduct by the Executive
which the Board in good faith determines could reasonably be expected to have a
material adverse effect on the business, assets, properties, results of
operations, financial condition, personnel or prospects of the Company (within
each category, taken as a whole), but only after notice by the Company of such
conduct and the failure of the Executive to cure same as soon as practicable
(but in any event within ten (10) business days following written notice from
the Company), or (z) upon the Executive's conviction of a felony, any crime
involving moral turpitude (including, without limitation, sexual harassment)
related to or affecting the performance of his duties or any act of fraud,
embezzlement, theft or willful breach of fiduciary duty against the Company.
(ii) In the event the Executive, by reason of physical or mental
disability, shall be unable to perform the services required of him hereunder
for a period of more
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than 60 consecutive days, or for more than a total of 90 non-consecutive days in
the aggregate during any period of twelve (12) consecutive calendar months, on
the 61st consecutive day, or the 91st day, as the case may be. The Executive
agrees, in the event of any dispute under this Section 7(b)(ii), and after
written notice by the Board, to submit to a physical examination by a licensed
physician practicing in the Suffolk County or Nassau County, New York area
selected by the Board, and reasonably acceptable to the Executive.
(iii) In the event the Executive dies while employed pursuant
hereto, on the day in which his death occurs.
(c) If this Agreement is terminated pursuant to Section 7(b), the
Company will have no further liability to the Executive after the date of
termination including, without limitation, the compensation and benefits
described herein; provided that, in the case of termination pursuant to Section
7(b)(ii), the Executive will receive his then current salary until such time
(but not more than 120 days after such disability) as payments begin under any
disability insurance plan of the Executive.
(d) In the event the Company chooses not to enter into any agreement or
amendment extending the Executive's employment beyond the Expiration Date, the
Company agrees to provide Executive at least 75 days prior written notice of
such determination (which notice may be given either prior to or after such
Expiration Date, but if notice is given any later than 75 days prior to the
Expiration Date, then the term of this Agreement shall be extended until the
date which is 75 days after the date such notice is given), during which time
the Executive may seek alternative employment while still being employed by the
Company.
(e) If there is a Change of Control (as defined below), and subsequent
thereto the Executive's employment with the Company terminates at any time
within six months after such Change of Control for reasons other than as
provided in Section 7(b)(i), then (i) the Company shall pay to the Executive a
lump sum amount equal to 90% of the balance of the payments due to the Executive
(at the Executive's then current compensation pursuant to Section 3(a)), plus
any other amounts payable to the Executive, (ii) except as set forth in Sections
8 and 9
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hereof, the Executive and the Company shall thereupon each be released from all
further obligations to each other and (iii) the Executive shall be entitled to
benefits as defined in Section 4 for the remaining term of the Agreement.. A
Change of Control shall be deemed to have occurred at such time as any person,
other than the Company, its existing shareholders or any of its or their
affiliates on the date hereof, purchases the "beneficial ownership" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934), directly or
indirectly, of 50% or more of the combined voting power of voting securities
then ordinarily having the right to vote for directors of the Company. In the
event of a Change of Control, all options granted to the Executive will vest
upon the date of the Change of Control.
(f) The Executive is an "at will" employee and the Company shall have
no obligation to actually utilize the Executive's services. If the Company
elects not to use the Executive's services at any time, the Company's
obligations to the Executive shall be satisfied, in all respects, by the payment
to the Executive for the balance of the term of the Executive's employment under
this Agreement, the compensation provided in Section 3, plus any other amounts
payable to the Executive, subject to adjustment as described below. During such
remaining term of employment, the Executive shall be entitled to seek other
employment provided that such employment would not violate the terms of this
Agreement, including Sections 8 and 9 hereof; and the seeking of such employment
shall not be deemed a violation of this Agreement. At any time at which the
Company elects not to use the Executive's services, (i) the Company shall pay to
the Executive a lump sum amount equal to 90% of the balance of the payments due
to the Executive (at the Executive's then current compensation pursuant to
Section 3(a)), plus any other amounts payable to the Executive, (ii) except as
set forth in Sections 8 and 9 hereof, the Executive and the Company shall
thereupon each be released from all further obligations to each other and (iii)
the Executive shall be entitled to benefits as defined in Section 4 for the
remaining term of the Agreement.
(g) The Executive may terminate his employment with the Company for
Good Reason. For purposes of this Agreement, "Good Reason" shall mean, in the
absence of the
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written consent of the Executive, a reasonable determination by the Executive
that any of the following has occurred: (i) the assignment to the Executive of
any duties inconsistent in any material respect with the Executive's position
(including titles and reporting requirements, authority, duties or
responsibilities as contemplated by Section 2 hereof), or any other action by
the Company which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated and
insubstantial action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive; or (ii) any
failure by the Company to comply with any of the provisions of this Agreement
applicable to it, other than any isolated and insubstantial failure not
occurring in bad faith and which is remedied promptly after notice thereof from
the Executive. If the Executive terminates his employment for Good Reason, (i)
the Company shall pay to the Executive a lump sum amount equal to 90% of the
balance of the payments due to the Executive (at the Executive's then current
compensation pursuant to Section 3(a)), plus any other amounts payable to the
Executive, (ii) except as set forth in Sections 8 and 9 hereof, the Executive
and the Company shall thereupon each be released from all further obligations to
each other, and (iii) the Executive shall be entitled to benefits as defined in
Section 4 for the remaining term of the Agreement. In the event the Executive
leaves the Company other than for Good Reason, the Executive will not be
entitled to severance package payouts as described above. He will be entitled to
remaining vacation accrued.
8. CONFIDENTIAL INFORMATION
(a) The Executive covenants and agrees that he will not at any time
during the continuance of this Agreement or at any time thereafter (i) print,
publish, divulge or communicate to any person, firm, corporation or other
business organization (except in connection with the Executive's employment
hereunder) or use for his own account any secret or confidential information
relating to the business of the Company (including, without limitation,
information relating to any customers, suppliers, distributors, employees,
products, services, formulae, technology, know-how, trade secrets or the like,
financial information or plans) or any
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secret or confidential information relating to the affairs, dealings, projects
and concerns of the Company, both past and planned (the "Confidential
Information"), which the Executive has received or obtained or may receive or
obtain during the course of his employment with the Company (whether or not
developed, devised or otherwise created in whole or in part by the efforts of
the Executive), or (ii) take with him, upon termination of his employment
hereunder, any information in paper or document form or on any computer-readable
media relating to the foregoing. The term "Confidential Information" does not
include information which is or becomes generally available to the public other
than as a result of disclosure by the Executive or which is generally known in
the medical imaging technology business. The Executive further covenants and
agrees that he shall retain the Confidential Information received or obtained
during such service in trust for the sole benefit of the Company or its
successors and assigns.
(b) The term Confidential Information as defined in Section 8(a) hereof
shall include information obtained by the Company from any third party under an
agreement including restrictions on disclosure known to the Executive.
(c) In the event that the Executive is requested pursuant to subpoena
or other legal process to disclose any of the Confidential Information, the
Executive will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive compliance with
Section 8 of this Agreement. In the event that such protective order or other
remedy is not obtained or that the Company waives compliance with the provisions
of Section 8 of this Agreement, the Executive will furnish only that portion of
the Confidential Information, which is legally required.
9. RESTRICTIONS DURING EMPLOYMENT AND FOLLOWING TERMINATION
(a) The Executive shall not, anywhere within North America or any other
market that the Company conducts business, during his full term of
employment under Section 1 hereof and for a period of one (1) year thereafter,
notwithstanding any earlier termination pursuant to Section 7(b) hereof, without
the prior written consent of the Company which shall
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not be unreasonably withheld, directly or indirectly, and whether as principal,
agent, officer, director, partner, employee, consultant, broker, dealer or
otherwise, alone or in association with any other person, firm, corporation or
other business organization, carry on, or be engaged, have an interest in or
take part in, or render services to any person, firm, corporation or other
business organization (other than the Company) engaged in a business which is
competitive with all or part of the Business of the Company. The term "Business
of the Company" shall mean acquiring, developing and commercializing
infrared-based functional imaging system or any other imaging technology in
development or already commercialized by the Company for the diagnosis and
management of a large variety of diseases including cancer and vascular disease.
(b) The Executive shall not, for a period of one (1) year after
termination of his employment hereunder, either on his own behalf or on behalf
of any other person, firm, corporation or other business organization, endeavor
to entice away from the Company any person who, at any time during the
continuance of this Agreement, was an employee of the Company.
(c) The Executive shall not, for a period of one (1) year after
termination of his employment hereunder, either on his own behalf or on behalf
of any other person, firm, corporation or other business organization, solicit
or direct others to solicit, any of the Company's previous, current or
prospective customers, suppliers, distributors or clinical testing contractors
(including, but not limited to, those customers, suppliers, distributors or
clinical testing contractors with whom the Executive had a business relationship
during his term of employment) for any purpose or for any activity which is
competitive with all or part of the Business of the Company.
(d) It is understood by and between the parties hereto that the
foregoing covenants by the Executive set forth in this Section 9 are essential
elements of this Agreement and that, but for the agreement of the Executive to
comply with such covenants, the Company would not have entered into this
Agreement. It is recognized by the Executive that the Company currently operates
in, and may continue to expand its operations throughout, the geographical
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territories referred to in Section 9(a) above. The Company and the Executive
have independently consulted with their respective counsel and have been advised
in all respects concerning the reasonableness and propriety of such covenants.
10. REMEDIES
(a) Without intending to limit the remedies available to the Company,
it is mutually understood and agreed that the Executive's services are of a
special, unique, unusual, extraordinary and intellectual character giving them a
peculiar value, the loss of which may not be reasonably or adequately
compensated in damages in an action at law, and, therefore, in the event of any
material breach by the Executive that continues after any applicable cure
period, the Company shall be entitled to equitable relief by way of injunction
or otherwise.
(b) The covenants of Section 8 shall be construed as independent of any
other provisions contained in this Agreement and shall be enforceable as
aforesaid notwithstanding the existence of any claim or cause of action of the
Executive against the Company, whether based on this Agreement or otherwise. In
the event that any of the provisions of Sections 8 or 9 hereof should ever be
adjudicated to exceed the time, geographic, product/service or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall not
be rendered void but shall be deemed reformed in any such jurisdiction to the
maximum time, geographic, product/service or other limitations as any court of
competent jurisdiction may judicially determine constitutes a reasonable
restriction under the circumstances. If any part of this Agreement other than
Section 8 or 9 is held by a court of competent jurisdiction to be invalid,
illegible or incapable of being enforced in whole or in part by reason of any
rule of law or public policy, such part shall be deemed to be severed from the
remainder of this Agreement for the purpose only of the particular legal
proceedings in question and all other covenants and provisions of this Agreement
shall in every other respect continue in full force and effect and no covenant
or provision shall be deemed dependent upon any other covenant or provision.
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11. COMPLIANCE WITH OTHER AGREEMENTS
The Executive represents and warrants to the Company that the
execution of this Agreement by him and his performance of his obligations
hereunder will not, with or without the giving of notice or the passage of time
or both, conflict with, result in the breach of any provision of or the
termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound.
12. WAIVERS
The waiver by the Company or the Executive of a breach of any of the
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
13. BINDING EFFECT; BENEFITS
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs and
legal representatives, including any corporation or other business organization
with which the Company may merge or consolidate or sell all or substantially all
of its assets. Insofar as the Executive is concerned, this contract, being
personal, cannot be assigned.
14. NOTICES
All notices and other communications which are required or may be
given under this Agreement shall be in writing and shall be deemed to have been
duly given when delivered to the person to whom such notice is to be given at
his or its address et forth below, or such other address for the party as shall
be specified by notice given pursuant hereto:
(a) If to the Executive, to him at the address set forth in
Exhibit A.
and
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(b) If to the Company, to it at:
OmniCorder Technologies, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, M.D., X.Xx.
15. MISCELLANEOUS
(a) This Agreement contains the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, oral or written,
between the parties hereto with respect to the subject matter hereof; provided,
however, the provisions of the Company's stock option plan, as amended or
restated from time to time, will apply to stock options awarded to the
Executive, except to the extent such provisions are explicitly contradicted by
the terms of this Agreement. This Agreement may not be changed, modified,
extended or terminated except upon written amendment approved by the Board and
executed by a duly authorized officer of the Company.
(b) The Executive acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals of handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of the Company
(whether written or oral, and whether or not contained in any employee manual or
handbook or personnel policy manual), and no acts or practices of any nature,
shall be construed to modify this Agreement or to create express or implied
obligations of any nature to the Executive.
(c) This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument.
(d) All questions pertaining to the validity, construction, execution
and performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflict of law principles.
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(e) Any controversy or claim arising from, out of or relating to this
Agreement, or the breach hereof (other than controversies or claims arising
from, out of or relating to the provisions in Xxxxxxxx 0, 0 xxx 00), xxxxx xx
determined by final and binding arbitration to be conducted in New York, New
York, in accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association, by a panel of not less than three (3) arbitrators
appointed by the American Arbitration Association. The decision of the
arbitrators may be entered and enforced in any court of competent jurisdiction
by either the Company or the Executive. The arbitrator 's fee will borne equally
by the parties.
The parties indicate their acceptance of the foregoing arbitration
requirement by initialing below:
---------------------------------- ------------------------------
For the Company Executive
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
OMNICORDER TECHNOLOGIES, INC.
By: /s/
-------------------------
EXECUTIVE
-----------------------------
Name:
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EXHIBIT A TO THE EMPLOYMENT AGREEMENT,
DATED AS OF FEBRUARY 28, 2005, BETWEEN
OMNICORDER TECHNOLOGIES, INC. AND XXXXX X. X'XXXXXX
A. For Section 1:
The date referred to in Section 1 shall be March 22, 2007. The two year
term shall have a one year renewal if both parties agree.
B. For Section 2:
The position of the Executive referred to in Section 2 shall be President
and Chief Executive Officer.
C. For Section 3(a):
The annual rate referred to in Section 3(a) shall be Two Hundred Twenty Five
Thousand Dollars and 00/100 ($225,000.00).
D. For Section 3(b):
In addition to the compensation referred to in Section 3(a), the Company
shall also pay or grant to the Executive:
o Upon commencement of employment, 27,000 stock options with a $1.00 per
share exercise price that are fully exercisable at the grant date.
o Upon commencement of employment, 825,000 stock options with a $1.00 per
share exercise price that will become exercisable in 3 equal
installments on the first, second and third anniversary of the grant
date.
o A soon as practical after approval by the Company's shareholders of the
grant of additional options under the Company's stock option plan,
825,000 stock options with a $1.00 per share exercise price that will
become exercisable in 3 equal installments on the first, second and
third anniversary of the date of the Executive's commencement of
employment.
o Based upon the attainment of specified performance goals mutually
agreed to by the Executive and the Board's Executive Committee, (i) up
to $28,000 at the end of each of the Company's fiscal years during the
term of this Agreement, and (ii) at the end of the Company's second and
each subsequent fiscal year during the term of this Agreement, up to
27,000 stock options with an exercise price equal to the market price
of a share of the Company's stock on the date of grant that will become
exercisable in 3 equal installments on the first, second and third
anniversary of the grant date. The amount of the payment and the number
of options granted will be based upon the proportion of performance
goals attained as determined by the Board's Compensation Committee.
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Stock options granted to the Executive under this Agreement will be
subject to the terms of the Company's stock option plan. Future stock
option grants will be made by the Board's Executive Committee based on
the performance of the Executive.
E. In the event the Executive documents that DOBI Medical has withheld
and intends not to pay the Executives 2004 bonus ($55,000), the
Company will pay one half ($27,500) immediately and one half ($27,500)
by the end of 2005. $55,000 is the Company's maximum liability for
assistance in the Executive's transition from DOBI Medical to the
Company. In the event that DOBI Medical pays all or part of the
Executives 2004 bonus, the Company will be liable for difference
between $55,000 and the amount paid to the Executive by DOBI Medical.
F. The Company will be responsible for all legal fees related the
transition of the Executive
G. For Section 5:
The length of vacation referred to in Section 5 shall be four (4) weeks. The
Executive shall be entitled to up to 10 days of paid sick leave and 2 paid
personal days in each year of employment. Paid sick days not taken shall be
carried forward from the calendar year to a maximum of 20 days. Personal
days shall not be carried forward.
F. For Section 14:
The address of the Executive referred to in Section 14 shall be:
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
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