Exhibit 10.08
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 16th day of August 1999, between
Advanced Business Sciences, Inc., a Delaware corporation, ("Company") and Xxxxx
X. Xxxxx,(Employee).
WITNESSETH:
WHEREAS, Company is a development stage company, which develops, produces,
markets and supports a broad product line of solutions relating to the tracking,
monitoring and reporting of individuals and things; and
WHEREAS, the parties hereto desire to enter into an agreement for Company's
employment of Employee on the terms and conditions contained herein;
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1 . Employment and Duties. Subject to the terms and conditions of this
Agreement, Company hereby employs Employee, and Employee hereby accepts
employment with Company. Employee will have such duties of an Employee nature as
are assigned to him from time to time and will serve as Corporate Controller.
Employee shall report to the President & CEO and serve as a keyman of the
Company.
2 . Time Commitment. During the Term, Employee shall devote substantially all of
his business time, attention and energies to the diligent and faithful
performance of his duties as an Employee employee of the Company. Employee shall
not, without the prior written consent of Company, at any time during the Term:
(a) accept employment with, or render services of a business, professional or
commercial nature to, any other Person (as defined below); (b) engage in any
venture or activity which Company may in good faith consider to be competitive
with or adverse to the Company Business, whether alone or with any other Person
as a partner, officer, director, employee, agent, shareholder, consultant sales
representative or otherwise, except that the ownership of not more that 3% of
the shares or other equity interests of any Person which is publicly traded
shall not be deemed a violation of this Section 2; or (c) engage in any venture
or activity which the Board of Directors of Company may in good faith consider
to interfere with Employee's performance of his duties hereunder. As used in the
Agreement, "Person" means any individual, corporation, limited liability
company, bank, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or other entity.
3. Compensation. In consideration of Employee's services hereunder, Company
shall provide to Employee the following compensation:
3.1 Salary. Company shall pay to Employee an initial base salary for
services rendered at the rate of $ 85,000.00 per annum, to be earned and
payable in accordance with Company's normal payroll practices for similarly
situated employees.
3.2 Benefits. To the extent that Employee is not disqualified by
requirements of the applicable benefit plans, and subject to the terms and
conditions thereof, Employee shall be entitled during employment to
participate in any employee benefit plans generally provided by Company to
its employees similarly situated for so long as Company provides such benefit
plans. In addition, Employee shall be entitled to any other benefits,
allowances or remuneration as granted from time to time by the Board of
Directors.
3.3 Vacation. Employee shall be entitled to two weeks of paid vacation
(in addition to Company's regular paid holidays) in each calendar year of
Employee's employment subject to and in accordance with Company's policies
regarding vacations for employees in the state in which Employee works.
Except as otherwise required by law, or as otherwise provided under Company's
policies regarding vacations for employees in the state in which Employee
works, (i) Company shall not pay Employee any additional compensation for any
vacation time which is not used prior to the end of a calendar year, and (ii)
any vacation time which is not used prior to the end of a calendar year may
not be used in any subsequent year without prior approval of the Board of
Directors but in any advent 14 days can be carried over.
3.4 Expenses. Company shall reimburse Employee for, or pay directly, all
reasonable business expenses incurred by Employee in the performance of his
duties under this Agreement, provided that Employee incurs and accounts for
such expenses in accordance with all Company policies and directives as in
effect from time to time.
3.5 Options. Company shall grant to Employee on the date hereof options
to purchase 30,000 shares Common Stock of the Company at a share value of
twenty cents (.20) per share. An option agreement to provide for vesting and
exercise schedule for these shares shall be:
Block 1: One third of such options shall become vested and exercisable
beginning the earlier of August 16, 2000 or when the closing bid price for
the common shares of ABS exceeds $3.00 per share for at least five
consecutive trading days. The options shall remain exercisable for a
period of three years from the date of vesting.
Block 2: One third of such options shall become vested and exercisable
beginning the earlier of August 16, 2001 when the closing bid price for
the common shares of ABS exceeds $4.00 per share for at least five
consecutive trading days. The options shall remain exercisable for a
period of three years from the date of vesting.
Block 3: One third of such options shall become vested and exercisable
beginning the earlier of August 16, 2002 or when the closing bid price for
the common shares of ABS exceeds $6.00 per share for at least five
consecutive trading days. The options shall remain exercisable for a
period of three years from the date of vesting.
Any blocks not yet vested would vest and be immediately exercisable upon the
occurrence of a sale or merger of ABS, which includes a transfer of control.
If Employee voluntarily resigns from the Company during the initial 18
months of this agreement, Company can repurchase all vested options at the
option strike price. The repurchase must be completed within 30 days of
Employee's resignation.
Employee will, if determined in the sole discretion of the Board of
Directors, be eligible to participate in the Company's incentive option
program(s) for key employees as they are instituted from time to time. All
options provided for under this paragraph 3.5 shall become exercisable
immediately upon a merger, consolidation or reorganization of the Company
with one or more other corporations in which the Company is not the surviving
corporation, or upon a sale of substantially all of the assets of the Company
to another corporation, or upon any transaction (including, without
limitation, a merger or reorganization in which the Company is the surviving
corporation) approved by the Board which results in any person or entity
(other than persons who are holders of stock of the Company at the time the
plan is approved by the stockholders and other than an Affiliate) owing 60
percent or more the combined voting power al all classes of stock of the
Company.
4 . Covenants of Employee. Employee understands and agrees that the Company
Business is one which makes it crucial for Company to develop and retain trade
secrets customer lists, proprietary techniques, information regarding customer
needs and other confidential information; and acknowledges that Employee will
develop and learn such information in the course of his employment. In light of
these facts and in consideration of Employee's employment with Company and
Company's agreement to compensate Employee on the terms set forth in Section 3
hereof, Employee covenants and agrees with Company as follows:
4.1 Covenant to Protect Confidential Information. Without limiting any
other obligation Employee may have with respect to use or nondisclosure of
any information, Employee shall protect all Company Confidential Information
(as defined below) at all times, and shall not disclose to any Person, or
otherwise use, except in connection with his duties performed in accordance
with this Agreement any Company Confidential Information. For purposes of the
Agreement, "Company Confidential Information" means technical, business and
other information of Company, whether or not in writing, which derives value
from not being generally known to the public or to other Persons who can
obtain value from its disclosure or use, including, without limitation,
technical or nontechnical data, compositions, devices, methods, techniques,
drawings, inventions, processes, financial data, financial plans, product
plans, lists or information concerning actual or potential customers or
suppliers, information regarding business plans and operations, methods and
plans of operation, marketing strategies, sales and distribution plans or
strategies, cost information, pricing strategies, and acquisition and
investment plans. Company Confidential Information includes information
disclosed by third parties that Company treats or is obligated to maintain as
confidential. The foregoing provision shall not apply to any confidential
information which is generally available to the public immediately prior to
the time of disclosure. The restrictions of this Section 4.1 shall expire one
year after the Termination Date. As used in this Agreement the "Termination
Date" means the last day Employee is employed by Company, whether separation
is voluntary or involuntary and with or without cause.
4.2 Covenants against Competition. Without limiting any other restrictive
covenant or obligation to which Employee may be subject hereunder, under any
other agreement or under applicable law, Employee shall not, except on behalf
of Company or an affiliate of Company, at any time during the period
commencing on the date of this Agreement and continuing for the period set
out below after the Termination Date, whether alone or with any other Persons
as a partner, officer, director, employee, agent, shareholder, consultant
sales representative or otherwise:
(a) for a period of one year following termination from employment, without
cause, Employee shall not engage in any business activity that is competitive
with the business the Company was engaged in at time of Employee's
termination. In consideration of the initial one-year period of
noncompetition as described in this section, Employee shall receive the
compensation equivalent to one (1) month of salary.
(b) for a period of two years following termination, for any reason, whether
with or without cause, whether voluntary or involuntary, Employee shall not
solicit or assist in the solicitation of any customer who is, at the time of
Employee's termination from employment with Company, for the purpose of
obtaining the patronage of such customer for purposes which are competitive
to those of the Company at the time of Employee's termination.
(c) for a period of one year following termination of employment, for any
reason, whether with or without cause, whether voluntary or involuntary,
Employee shall not solicit or assist in the solicitation of, any Person
employed by Company in any capacity (including without limitation as an
employee or independent contractor), to terminate such employment, whether or
not such Person is employed pursuant to a contract with Company and whether
or not such Person is employed at will.
The foregoing provisions of this Section 4.2 shall not prohibit Employee
from owning, not to exceed 3%, of the outstanding stock on any publicly
traded corporation that might be deemed a competitor of the Company.
5 . Inventions, Copyrights, Etc.
5.1 Inventions. Employee shall disclose promptly to Company (which shall
receive it in confidence), and only to Company, any invention or ideas of
Employee (developed alone or with others) conceived or made during Employee's
employment by Company any such invention or idea in any way connected with
Employee's employment or related to Company's business, research or
development, or demonstrably anticipated research or development, and will
cooperate with Company and sign all documents deemed necessary by Company to
enable it to obtain, maintain, protect and defend patents covering such
inventions and ideas and to confirm Company's exclusive ownership of all
rights in such inventions, ideas and patents, and irrevocably appoints
Company as his agent to execute and deliver any assignments or documents
Employee fails or refuses to execute and deliver promptly, this power and
agency being coupled with an interest and being irrevocable. This constitutes
Company's written notification that this assignment does not apply to an
invention for which no equipment, supplies, facility or trade secret
information of Company was used and which was developed entirely on
Employee's own time, unless (a) the invention relates (i) directly to the
business of Company, or (ii) to Company's actual or demonstrably anticipated
research or development, or (b) the invention results from any work performed
by Employee for Company.
5.2 Work for Hire Acknowledgement; Assignment. Employee acknowledges that
Employee's work on and contributions to documents and other expressions in
tangible media relating to the business of the Company (collectively,
"Works") are within the scope of Employee's employment and part of Employee's
duties and responsibilities for Company and its affiliates, and are, and at
all times shall be regarded as, "work made for hire" as that term is used in
the United States Copyright Laws. Without limiting this acknowledgment
Employee assigns, grants and delivers exclusively to Company all rights,
titles, and interests in and to any such Works, and all copies and versions,
including all copyrights and renewals, Employee will execute and deliver to
Company, its successors and assigns, any assignments and documents Company
requests for the purpose of establishing evidencing, and enforcing or
defending its complete, exclusive, perpetual and worldwide ownership of all
rights, titles, and interest of every kind and nature, including all
copyrights, in and to the Works, and Employee constitutes and appoints
Company as its agent to execute and deliver any assignments or documents
Employee fails or refuses to execute and deliver, this power and agency being
coupled with an interest and being irrevocable.
5.3 Return of Company Documents and Equipment. At the end of employment,
or at any time upon Company's request, Employee shall deliver to Company all
material files, customer lists, price lists, bids, specifications, forms,
software financial data, papers and other documents, including all copies of
the foregoing (including those contained in magnetic media or other forms of
computer storage); all computers, modems, diskettes, samples, credit cards,
keys, security passes, tools, vehicles and equipment and all other materials
and other property in his possession or control that relate to the Company
Business or his employment with Company, all of which at all times shall be
the property of Company unless otherwise agreed by Company in writing.
6 . Termination.
6.1 By Either Party. Either party may terminate the Employee's employment
under this Agreement, with or without cause, by giving the other party not
less than thirty days advance written notice thereof.
6.2 Other Terminations Without Cause. Employee's employment under this
Agreement shall terminate immediately upon the occurrence of one of the
following events:
(a) the death of Employee;
(b) termination by Company on written notice of termination after Employee
becomes unable to perform his services by reason of illness or which illness
or incapacity results in his failure to discharge his duties under this
Agreement for an aggregate total of 30 days (whether consecutive or
nonconsecutive) during any 90 day period; or
6.3 By Employee for Cause. Employee shall have the right to terminate his
employment under this agreement on written notice to Company and receive the
salary compensation of two (2) months salary, if Company has: (a) failed to
make any payments due to Employee under this Agreement and such failure has
not been cured within thirty days after written notice of such failure from
Employee to Company, or (b) otherwise materially breached this Agreement and
such breach, if capable of cure, has not been cured within thirty days after
written notice of such breach from Employee to Company.
6.4 By Company for Cause. The Employee's employment may be terminated
effective immediately by the Company for "cause" by notice of termination to
the Employee. "Cause" for such termination shall include, but not be limited
to, the following: (i) Dishonesty of the Employee with respect to the Company
or any of its subsidiaries; (ii) Willful misfeasance or nonfeasance of duty
intended to injure or having the effect of injuring the reputation, business
or business relationships of the Company or any of its subsidiaries or any of
their respective officers, directors or employees; (iii) Conviction of the
Employee upon a charge of any crime involving moral turpitude or which could
reflect unfavorably upon the Company or any of its subsidiaries; (iv) Willful
or prolonged absence from work by the Employee (other than by reason of
disability due to physical or mental illness) or failure, neglect or refusal
by the Employee to perform his duties and responsibilities without the same
being corrected upon ten (10) days prior written notice: or (v) Breach by the
Employee of any of the covenants contained in this agreement.
7 . Other Employees. Nothing in this Agreement shall limit Company's discretion
to employ other personnel on such terms and conditions and for such position as
may be satisfactory to Company.
8 . Insurance. Company may obtain, in the name and for the benefit of Company,
such life, disability, and other insurance policies on Employee as Company may
from time to time determine to be in the interest of Company. Employee shall
take such
medical and physical examinations which Company may from time to time reasonable
request, including any examination required to obtain such insurance policies.
9 . No Conflicting Obligations. Employee represents and warrants that he is not
subject to any noncompetition agreement, nondisclosure agreement, employment
agreement, or any other contract of any nature whatsoever, oral or written, with
any Person other than Company, which will cause a breach of or default in or
which is in any way inconsistent with, the terms and provisions of this
Agreement except as noted in Section 3.
10 . Notice to Future Employers. If Employee leaves the employ of Company for
any reason, (a) Employee shall, during the two years following termination of
Employee's employment with Company, inform any subsequent employers or business
partners of the existence and provisions of this Agreement and, if requested,
provide a copy of this Agreement to such employer or business partner, and (b)
Company may, at any time, notify any future employer or business partner of
Employee of the existence and provisions at the Agreement.
11 . Miscellaneous. This Agreement shall inure to the benefit of and be binding
upon Company, and its successors and assigns, and Employee and his heirs,
executors, administrators and personal representatives. This Agreement may not
be assigned by Employee or by Company, except that Company may assign its rights
under this Agreement without the written consent of Employee to any affiliate of
Company providing services to Company or in connection with any transfer of
Company or of any substantial part of the Company Business (and such assignment
shall not constitute a termination of Employee's employment by Company for
purposes of the Agreement); provided, however, that such affiliate or transferee
shall be obligated to perform this Agreement in accordance with its terms.
11.1 Entire Agreement. This Agreement, including any attachments, contains
the entire agreement between the parties and no statement, promises or
inducements made by either party hereto, or agent of either party hereto, or
agent of either party, which is not contained in this Agreement, shall be
valid or binding; and this Agreement may not be enlarged, amended, modified
or altered except in a writing signed by Company and Employee and
specifically referencing this Agreement. Commencement of Employee's
employment hereunder shall constitute, automatically and without further
action by the parties, a termination of any existing employment agreement
between Employee and Company effective on the date of such event, provided
that salary and other rights and obligations of the parties accrued under any
such agreement prior to the effective date hereof shall not, except as
otherwise expressly provided herein, be affected by such termination and
shall be paid or satisfied when due in the ordinary course. The provisions of
this Agreement do not in any way limit or abridge any rights of Company or
any affiliate under the laws of unfair competition, trade secret, copyright,
patent, trademark or any other applicable laws, all of which are in addition
to and cumulative of the rights of Company under this Agreement.
11.2 Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal
or unenforceable, either in whole or in part, then such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of the remaining provisions or covenants, or any part thereof,
of this Agreement, all of which shall remain in full force and effect.
Without limiting the foregoing, although the parties have, in good faith,
used their best efforts to make the covenants in Section 4 reasonable in all
respects and do not anticipate or intend that any court of competent
jurisdiction would conclude otherwise or would find it necessary or
appropriate to reform any such covenant, if any such covenant is held by a
court of competent jurisdiction to be unreasonable, arbitrary or against
public policy, such covenant will be considered to be divisible with respect
to scope, time and geographic area, and such lesser scope, time, and
geographic area, or all of them, as a court of competent jurisdiction may
determine to be reasonable, not arbitrary, and not against public policy,
will be effective, binding and enforceable against Employee.
11.3 Remedies. Employee acknowledges that if he breaches or threatens to
breach his covenants and agreements in this Agreement, then his actions may
cause irreparable harm and damage to Company which could not be adequately
compensated in damages. Accordingly, if Employee breaches or threatens to
breach this Agreement, then Company shall be entitled to injunctive relief,
in addition to any other rights or remedies of Company hereunder or
otherwise. Upon any breach of this Agreement by Company, Employee shall be
entitled to such rights and remedies as may be allowed by law or in equity.
11.4 Waiver. Failure of either party to insist, in one or more instances,
on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment
of any right granted in this Agreement or of the future performance of any
such term or condition or of any other term or condition of this Agreement,
unless such waiver is contained in a writing signed by the party making the
waiver and specifically referencing this Agreement.
11.5 Notices. All notices and other communications required or permitted
to be given or made hereunder shall be in writing and sent by pre-paid first
class certified or registered mail, return receipt requested, or by facsimile
transmission, to the intended recipient thereof at his or its address or
facsimile number set forth below or last designated address and facsimile
number:
If to Company: If to Employee:
Advanced Business Sciences, Inc. Xxxxx X. Xxxxx
Attention: Xxxxxxxx X. Xxxx 0000 Xxxxxxxx Xxxx
0000 Xxxxx 000xx Xxxxxx Xxxxxxx, Xxxxxxxx 00000
Xxxxx, Xxxxxxxx 00000
Facsimile No:(000) 000-0000
Any such notice or communication shall be deemed to have been duly given
immediately (if given by facsimile confirmed by mailing a copy thereof to the
recipient in accordance with this Section 11.5 on the date of such
facsimile), or three days after mailing (if given or made by mail), and in
proving same it shall be sufficient to show that the envelope containing the
same was delivered to the delivery or postal service and duly addressed, or
that recipient of a facsimile was confirmed by the recipient as provided
above. Any Person entitled to notice may change the address(es) or facsimile
number(s) to which notices or other communications to such Person shall be
delivered, mailed or transmitted by giving notice thereof to the parties
hereto in the manner provided herein. No notice or communication to Company
shall be deemed complete unless also made to Advanced Business Sciences,
Inc., in accordance with this Section 11.5.
11.6 Survival. Employee's obligations pursuant to Sections 4 and 5 shall
survive the Termination Date and any termination of this Agreement for the
period(s) therein provided. Except as expressly provided above in Section
6.2(b) or as required by law or the express terms of any employee benefit
plan in which Employee participates, neither Employee nor his heirs,
executors, administrators or personal representatives, shall be entitled to
any salary, bonus or other compensation or any benefits during or for any
period after the Termination date.
11.7 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, and it shall
not be necessary in making proof of this Agreement to produce or account for
more than on such counterpart.
11.8 Headings. Section and other headings contained in this Agreement are
for reference purposes only and are in no way intended to define, interpret,
describe or otherwise limit the scope, extent or intent of this Agreement or
any of its provisions.
11.9 Witholding. Anything in this Agreement to the contrary
notwithstanding, all payments required to be made by Company hereunder to
Employee shall be subject to the withholding of such amounts relating to
taxes as Company may reasonably determine it should withhold pursuant to any
applicable law or regulation.
11.10 Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Nebraska, without regard to its
principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
EMPLOYEE:
Name:
/s/ Xxxxx X. Xxxxx
Signature Date
COMPANY:
Advanced Business Sciences, Inc.
BY /s/ Xxxxxxxx X. Xxxx
Chief Executive Officer
Title Date
