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EXHIBIT 10.34
EMPLOYMENT AGREEMENT
AGREEMENT, made as of the 27th day of July, 1995, between DAVSTAR
INDUSTRIES, LTD., a corporation organized and existing under the laws of
Ontario, Canada ("Davstar"), and XXXXXX X. XXXX, Ph.D. ("Employee").
WHEREAS, Davstar wishes to employ Employee in the capacities of
Executive Vice President and Vice Chairman of the Board of Davstar during the
period specified herein; and
WHEREAS, Employee is prepared to enter into an employment relationship
with Davstar on the terms and conditions specified herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Employment. Davstar agrees to and hereby does employ Employee as Executive
Vice President and Vice Chairman of the Board of Davstar. Employee shall have
such duties and responsibilities as are normally attendant to the positions of
Executive Vice President and Vice Chairman of the Board. Employee accepts said
employment and agrees, during the term hereof, to discharge faithfully,
diligently and to the best of his ability the responsibilities of such
positions on a full-time basis and to perform such substitutive or additional
duties as Davstar may reasonable request from time to time. During the term of
Employee's employment, Davstar shall use its best efforts to cause Employee to
be elected as a voting member of Davstar's Board of Directors.
2. Term. The initial term of Employee's employment by Davstar under this
Agreement shall commence on August 1, 1995 and, unless sooner terminated as
provided herein, continue thereafter through July 31, 1998. Thereafter, this
Agreement will automatically renew for successive three year terms, unless
sooner terminated pursuant to paragraph 6 hereof.
3. Compensation and Benefits. As compensation and consideration for Employee's
performance of services pursuant to this Agreement, Davstar agrees to pay
Employee, and Employee agrees to accept, the following amounts and benefits at
Davstar's sole expense:
(a) Salary. During the term of this Agreement, an annual
salary, payable bi-monthly in accordance Davstar's regular
paydays. Employee's annual salary for calendar year 1995
shall be $125,000. Thereafter, Employee's annual salary
shall be not less than $160,000, the exact amount to be
determined each year by the Board prior to January 1 of
such year.
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(b) Bonus. A special bonus of up to $60,000 for calendar year
1995 to be awarded pursuant to a plan established by
mutual agreement of the Chief Executive Officer of Davstar
and Employee within 30 days of the date of this Agreement.
(c) Benefits.
(i) Vacation. During the term of this Agreement,
Employee shall be entitled to 12 weeks per year of paid
vacation. Employee shall be compensated for any unused
vacation days within 30 days after the end of each
calendar year hereunder, the value of such compensation to
be based upon Employee's then current salary.
(ii) Health Benefits. During the term of this Agreement,
Employee shall be entitled to health and dental insurance,
including immediate coverage for himself and his eligible
dependents, as provided by Davstar for its executive
personnel in accordance with its group health insurance
plan coverage.
(i) Disability Benefits. During the term of this
Agreement, Davstar shall provide Employee with long-term
disability insurance coverage equal to two-thirds of
Employee's full salary at the time of any event of
disability as defined in such policy.
(ii) Life Insurance. Davstar shall pay or reimburse, as
the case may be, Employee such amount as is necessary for
employee to maintain a term life insurance policy with
coverage in the amount of $1,000,000. Employee shall be
responsible for obtaining such insurance and determining
the amount of coverage. In the event that Employee's
employment by Davstar is terminated, Davstar shall have no
further obligation to reimburse Employee for premium
payments. Employee shall designate the beneficiary(ies)
of such policy, and title to such policy shall be held by
Employee during the term of this Agreement and following
termination or expiration of this Agreement.
(v) Stock Ownership and Stock Options. The parties agree
that Employee shall have the right to purchase or obtain
shares of Davstar's common stock through a combination of
stock option grants, performance stock plans, other stock
awards as approved by the Board of Directors, and pursuant
to purchases of Davstar's stock by Employee in accordance
with the terms of the stock ownership guidelines
established by Davstar.
Employee shall also be entitled to participate in future
grants of stock options to key employees of Davstar to the
extent determined in good
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faith by the Board of Directors and upon terms no less
favorable than options issued to any of Davstar's other
directors, officers or employees, and on the same terms
and conditions as similarly situated executive officers of
Davstar.
(vi) Annual Bonuses. In the event the Board of Directors
of Davstar establishes an annual incentive bonus plan for
Davstar's key management personnel, Employee shall be
entitled to participate in such bonus plan, or in such
other plan(s) that Davstar may from time to time
establish.
(vii) General. Employee shall be entitled to such
additional bonuses, salary increases and other and further
benefits as Davstar may designate.
4. Expenses and Car Allowance. Davstar shall reimburse Employee for proper
and necessary expenses incurred by him in the performance of his duties under
this Agreement. Employee shall be provided a car allowance of $1,500 per
month.
5. Counsel Fees and Indemnification.
(a) Reimbursement. In the event either party seeks to enforce
its or his rights hereunder by litigation or otherwise, the
prevailing party shall be entitled to be reimbursed by the
other party for all reasonable costs and expenses, including
reasonable attorneys' fees, costs and expenses.
(b) Directors' and Officers' Insurance. Davstar further
agrees:
(i) that Davstar will use its best efforts to obtain
directors' and officers' liability insurance
(ii) that Employee shall be covered and insured up
to the maximum individual limits provided by
such insurance, if any, throughout the term
of this Agreement; and
(iii) that Davstar will exert its best efforts to
maintain such insurance in effect throughout
the term of this Agreement; provided that the
Board of Directors may reevaluate the
continuation or amount of coverage in the
event of any material premium increases or
any material changes in the scope of coverage
of such policy.
(c) No conflict. Davstar hereby warrants and represents that
the undertakings of payment, indemnification and
maintenance of insurance covering Employee set out in
subparagraphs 5(a) and 5(b) above are not in conflict with
the Articles of Incorporation or Bylaws
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of Davstar or with any validly existing agreement or other
proper corporate action of Davstar.
6. Termination and Severance.
(a) For Cause. Except as set forth in subparagraph 6(b) of
this Agreement, Davstar may terminate this Agreement at
any time only for cause. For purposes of this Agreement,
"cause" shall mean (i) final conviction for fraud or of
any felony, (ii) Employee's habitual use and abuse of
illegal drugs and/or alcohol, or (iii) Employee's willful
failure to perform his reasonable responsibilities and
duties under this Agreement if Employee fails to commence
to perform such reasonable responsibilities and duties
under this Agreement within 30 days of his receipt of a
notice from the Board of Directors of Davstar identifying
the manner in which the Board of Directors believes
Employee has failed to perform such responsibilities and
duties. In the event Davstar intends to terminate this
Agreement pursuant to this subparagraph 6(a), Davstar
shall provide prior written notice to Employee by
certified mail, return receipt requested.
(b) At End of Term. Davstar or Employee may terminate this
Agreement without cause effective at the end of the
initial three year term and each subsequent three year
term thereafter; provided, however, that Davstar must
provide at least three months' prior written notice to
Employee by certified mail, return receipt requested, of
its intent to terminate this Agreement pursuant to this
subparagraph 6(b).
(c) Upon a Change of Control. Employee may terminate this
Agreement upon 30 days' written notice at any time a
"change of control" occurs. For purposes of this
Agreement, a "change of control" shall mean any of the
following acts:
(i) The acquisition (other than from Davstar directly
or from any stockholder of Davstar who on the date
hereof owns 25 percent or more of the outstanding
shares of Davstar's common stock) by any person,
entity or group, within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of
1934, of beneficial ownership of 25% or more of
the outstanding shares of Davstar's common stock;
or
(ii) If the individuals who currently serve on
Davstar's Board of Directors no longer constitute
a majority of the members of Davstar's Board;
provided, however, any person who becomes a
director subsequent to the date of this Agreement,
who (A) was elected to fill a vacancy or nominated
as a director by a majority
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of the individuals now serving on Davstar's Board
or their successors who were so elected or
nominated or (B) was elected or nominated at the
request of Employee, shall be considered as if a
member prior to the date of this Agreement; or
(iii) Pending approval by a majority of the stockholders
of Davstar of a merger, reorganization or
consolidation whereby the stockholders of Davstar
immediately prior to such approval do not,
immediately after consummation of such
reorganization, merger or consolidation own more
than 50% of the voting stock of the surviving
entity; or
(iv) A liquidation or dissolution of Davstar or the sale
of all or substantially all of the assets of
Davstar.
(d) Severance Pay.
(i) If employee terminates this Agreement at any time
(other than in the event of his death or pursuant to
subparagraph 6(c)), or if Employee is terminated for cause
pursuant to subparagraph 6(a), employee shall be entitled
to that compensation under subparagraph 3(a) of this
Agreement which has accrued, but has not been paid, at the
time of such termination or death, and Davstar shall have
no further obligation to provide any compensation or
benefits. Nothing herein shall affect Davstar's
obligation to provide benefits as required by COBRA or any
other applicable federal or state law.
(ii) If Employee is terminated by Davstar other than for
cause (as defined in subparagraph 6(a)), or if Employee
terminates this Agreement within one year of the event
described in subparagraph 6(c), Davstar shall be obligated
to continue to pay Employee (as severance payments) the
compensation and benefits provided for in Section 3 hereof
through the remainder of the three year term provided for
in Section 2 hereof during which such termination occurs.
(iii) In the event that an event giving rise to a change of
control (as defined in subparagraph 6(c)) is initiated by
Davstar, then prior to the Board of Directors approving
the change of control, Employee shall inform the Board
whether he intends to terminate this Agreement pursuant to
subparagraph 6(c). In the event that Employee informs the
Board that he does not intend to terminate this Agreement
as a result of such change of control, then Employee shall
have forfeited all rights under subparagraph 6(c) with
respect to that particular change of control, and the
payment provisions of this subparagraph 6(d) with respect
to any termination of Employee's employment due to a
change
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in control shall be deemed null and void with respect to
that particular change of control transaction.
(e) Notice. Except as otherwise specifically set forth in
this paragraph 6, termination shall become effective upon
delivery of written notice thereof to Employee or Davstar,
whichever is applicable, pursuant to paragraph 11.
(f) No Duty to Mitigate. Davstar agrees that the position,
duties and responsibilities of Employee are unique and, as
a result, agrees that Employee shall have no duty to
mitigate damages upon termination or expiration of his
employment hereunder for any reason.
7. Certain Limitations on Timing of Payments. Notwithstanding any other
provision of this Agreement, payment of amounts required to be paid to Employee
pursuant to paragraphs 1 through 6 of this Agreement shall be subject to
postponement to the extent that payment of any such amount in the taxable year
of Davstar in which it was originally scheduled to be paid results in
disallowance of a deduction for any such amount pursuant to either Section
162(m) or Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") as determined by the Internal Revenue Service. However, nothing herein
shall relieve Davstar of its obligations to pay any amounts due hereunder. Any
amount which is not paid in the taxable year in which it was originally
scheduled to be paid as a result of the postponement thereof pursuant to this
paragraph 7 shall be payable in the next succeeding taxable year in which such
payment will not result in the disallowance of a deduction pursuant to either
Section 162(m) or Section 280G of the Code; provided, however, that (a) if a
dispute arises as to the payment of the postponed payments to Employee, the
prevailing party shall be entitled to receive attorneys' fees and related
costs, and (b) all postponed payments shall be placed in a Rabbi trust or
similar vehicle for the benefit of Employee in such a way that the amounts so
transferred are not taxable to Employee or deductible by Davstar until payment
from such trust or other vehicle to Employee is made. In the event that a
payment has been made to Employee, but then disallowed as a deduction by the
Internal revenue Service and return of the payment into the trust or other
vehicle is required, said payment to Employee shall be treated as a loan and
said payment to the trust or other vehicle shall be treated as repayment of
said loan.
8. Confidentiality and Non-Disclosure of Information.
(a) Non-Disclosure of Information. Employee shall not, during
the term of this Agreement or at any time thereafter,
without Davstar's prior written consent, divulge, furnish,
release or make accessible to anyone, any knowledge or
information with respect to any confidential or secret
aspect of the business, including, but not limited to:
Davstar's costs; suppliers' names, pricing and terms;
patient names, addresses or telephone numbers; billing
procedures and pricing of purchases;
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Davstar's business techniques, computer programs and
printouts; identity of prospective customers; confidential
information disclosed by Davstar's customers to Davstar;
Davstar's banking relationships; including the extent and
terms of lines of credit and borrowing costs; or other
confidential information concerning the business or its
employees.
(b) Exclusive Property of Davstar. Employee recognizes that
all records, customer lists, supplier lists, material cost
data, files, correspondence with customers and suppliers
of material and services, insurance companies, computer
printouts, contracts, reports, notes, business plans,
compilations of other recorded matter, and copies or
reproductions thereof, relating to Davstar's operations
and activities and other information relating to Davstar's
customers and suppliers, made or received by Employee in
the course of his employment, are the exclusive property
of Davstar and Employee holds and uses same as trustee for
Davstar and subject to Davstar's sole control and will
deliver same to Davstar at the termination of his
employment, or earlier if so requested by Davstar.
Employee acknowledges that all of such information which
is used by Employee outside the scope of his employment
would cause irreparable and continuing injury to Davstar's
business for which there would not be an adequate remedy
at law making injunctive relief appropriate.
9. Non-Compete.
(a) Non-Compete. As an inducement to cause Davstar to enter
into this Agreement, Employee covenants and agrees that
during his employment, and
(i) for a period of 18 months after Employee is
terminated for cause pursuant to subparagraph 6(a) or
Employee terminates this Agreement other than
pursuant to subparagraphs 6(b) or 6(c), or
(ii) for any period during which Employee receives
severance pay pursuant to subparagraph 6(d)(ii),
he will not be an employee, agent, director, stockholder or owner (except of
not more than 1% of the securities of any publicly traded entity), partner,
consultant, financial backer or creditor or be otherwise directly or indirectly
connected with or participate in the management, operation or control of any
business, firm, proprietorship, corporation, partnership, association, entity
or venture engaged in the same business as Davstar in any city, county, state
or foreign jurisdiction in which Davstar or any of its subsidiaries conducts
business during the term of this Agreement.
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(b) Solicitation of Business. Employee covenants and agrees
that during his employment, and
(i) for a period of 18 months after Employee is
terminated for cause pursuant to subparagraph 6(a)
or Employee terminates this Agreement other than
pursuant to subparagraphs 6(b) or 6(c)
(ii) for any period during which Employee receives
severance pay pursuant to subparagraph 6(d)(ii),
he will not contact, call upon, solicit business from,
sell or render services to any to any customer of Davstar
with respect to the provision of the same service or
products as those provided by Davstar, or purchase from
any supplier or potential supplier any medical materials
for same, and Employee shall not directly or indirectly
aid or assist any other person, firm or corporation to do
any of the aforesaid acts.
(c) Solicitation of Employees. Employee covenants and agrees
that during his employment, and
(i) for a period of 18 months after Employee is terminated
for cause pursuant to subparagraph 6(a) or Employee
terminates this Agreement other than pursuant to
subparagraphs 6(b) or 6(c), or
(ii) for any period during which Employee receives
severance pay pursuant to subparagraph 6(d)(ii),
he will not directly or indirectly, as principal, agent,
owner, partner, stockholder, officer, director, employee,
independent contractor or consultant, or in any individual or
representative capacity for himself or on behalf of any
business, firm, corporation, partnership, association or
proprietorship, enter into any agreement with or solicit, or
directly or indirectly cause others to solicit, the employment
of any officer, sales person, agent or other employee of
Davstar for the purpose of causing said officer, sales person,
agent or other employee of Davstar to terminate employment
with Davstar.
(d) Independent Agreements. It is understood by and between
the parties that the covenants set forth in paragraphs 8
and 9 are essential elements to this Agreement, and that,
but for the agreement of Employee to comply with such
covenants, Davstar would not have entered into this
Agreement. Such covenants by Employee shall be construed
as agreements independent of any other provision of this
Agreement and the existence of any claim or cause of
action Employee
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may have against Davstar, whether predicated on this
Agreement or otherwise, shall not constitute a defense to
the enforcement by Davstar of these covenants.
(e) Failure to Make Severance Payment. If Davstar fails to
make any severance payment within 20 days of such
payment's due date, prior to any default by Employee,
Davstar shall not be entitled to enforce the provisions of
this paragraph 9.
(f) Limitation on Restrictions. In the event that this
Agreement is terminated (i) due to a material breach by
Davstar of its obligations or (ii) by either Davstar or
Employee in accordance with subparagraph 6(b), the
restrictions contained in this paragraph 9 shall not be
applicable to Employee.
10. Severability. If any one or more of the provisions of this Agreement
should be ruled wholly or partly invalid or unenforceable by a court or other
government body of competent jurisdiction, then: (a) the validity and
enforceability of all provisions of this Agreement not ruled to be invalid or
unenforceable shall be unaffected; (b) the effect of the ruling shall be
limited to the jurisdiction of the court or other government body making the
ruling; (c) the provision(s) held wholly or partly invalid or unenforceable
shall be deemed amended, and the court or other government body is authorized
to reform the provision(s), to the minimum extent necessary to render them
valid and enforceable in conformity with the parties' intent as manifested
herein and a provision having a similar economic effect shall be substituted;
and (d) if the ruling and/or the controlling principle of law or equity leading
to the ruling is subsequently overruled, modified or amended by legislative,
judicial or administrative action, then the provision(s) in question as
originally set forth in this Agreement shall be deemed valid and enforceable to
the maximum extent permitted by the new controlling principle of law or equity.
11. Notices. All notices, requests, demands and other communications provided
for hereunder shall be in writing and shall be deemed to have been duly given
if (a) delivered in person; (b) given by prepaid telex or telegram, or by
facsimile or other instantaneous electronic transmission device; (c) sent by
Federal Express or other nationally recognized overnight delivery service,
charges paid by the sender, or (d) deposited in the United States mail, first
class, registered or certified, return receipt requested, with proper postage
prepaid, as follows:
If to Davstar: Davstar Industries, Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
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If to Employee: Xxxxxx X. Xxxx, Ph.D.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Notices given pursuant to this paragraph shall be deemed received and effective
upon receipt by the addressee thereof.
12. Assignment of Agreement. This Agreement shall inure to the
benefit of Employee and Davstar and their respective heirs and successors.
Neither party may assign any rights or obligations hereunder to any person,
firm or corporation without the prior written consent of the other party. This
Agreement shall be personal to Employee for all purposes.
13. Amendment and Waiver. No alteration or modifications hereof shall
be valid except by a subsequent written instrument executed by the parties
hereto. No waiver by either party of any breach by the other party of any
provision or condition of this Agreement in one circumstance shall be deemed a
waiver of said provision or condition in any other circumstance or be deemed a
waiver of any other provision or condition.
14. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of California, without reference to California's
choice of law statutes or decisions.
15. Valid Obligation. This Agreement has been duly authorized,
executed and delivered by Davstar and is a legal, valid and binding obligation
of Davstar.
16. Captions. The captions in this agreement are for convenience only
and shall not be considered a part hereof or affect the construction or
interpretation of any provisions of this Agreement.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original.
18. Entire Agreement. This Agreement contains the entire
understanding between the parties, and there are no agreements or
understandings among the parties with respect to Employee's employment by
Davstar and his obligations except as set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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DAVSTAR:
DAVSTAR INDUSTRIES, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
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Its President
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EMPLOYEE:
/s/ Xxxxxx X. Xxxx
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