Exhibit 10.33
Employment Agreement Between the Company and
Xxxxx Xxxx Dated January 1, 1997
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into this
1st day of January 1997, by and between AMDL, Inc.. a Delaware corporation (the
"Company") and Xxxxx Xxxx ("Xxxx").
In consideration of the mutual covenants, promises and agreements herein
contained, the Company and Xxxx hereby covenant, promise and agree to and with
each other as follows:
1. Employment. The Company shall employ Xxxx and Xxxx shall be employed
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by the Company upon the terms and conditions set forth in this Agreement.
2. Positions and Duties of Employment. Xxxx shall be required to devote
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substantially all his business time to the furtherance of his duties to the
Company. Subject to the direction of the President and the Board of Directors,
Xxxx shall perform and discharge well and faithfully the duties which may be
assigned to him from time to time by the Company in connection with the conduct
of the Company's business. While serving in any corporate capacities, Xxxx shall
have the responsibilities, duties, obligations, rights, benefits and requisite
authority as is customary for his positions and as may be determined by the
President.
3. Term. The term of this Agreement shall commence on the date of this
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Agreement and terminate on December 31, 1997, unless earlier terminated as
provided below.
4. Compensation. Xxxx shall receive the following as compensation:
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(a) During the term of this Agreement, Xxxx shall receive a monthly
salary of $6,667. The Company, through action of the Company's President, may at
any time during the term hereof increase Xxxx'x salary up to a maximum of ten
percent for the remainder of the term. Any greater increase shall be subject to
Board of Director approval.
(b) The Company is considering adopting an incentive compensation
bonus plan for its senior executives and other key personnel. If the Company
adopts such a plan, Xxxx shall be entitled to participate in such plan and to
receive additional amounts as an incentive compensation bonus. If a plan is
adopted by the Company, it is anticipated that the plan will provide for bonuses
based upon a percentage of the Company's annual net income. Xxxx acknowledges
that the Company presently has no net income and has never achieved net income
from operations. He further acknowledges that the Company presently has no
incentive compensation bonus plan, and that such plan to be adopted must be
approved by the Board of Directors of the Company.
(c) The Company shall, at the Company's sole cost and expense, provide
Xxxx and spouse coverage in any group plans or agreements maintained by the
Company relating to health insurance or other related benefits in accordance
with their respective terms.
(d) Xxxx shall be entitled to sick leave, holidays and four week's
vacation for each full year of his employment by the Company to be taken in
accordance with the regular policies of the Company. Xxxx'x total accrued
vacation shall not exceed four weeks and any accrued vacation in excess of four
weeks shall be forfeited unless taken prior to the expiration of the term of
this agreement.
(e) Any payment which the Company shall make to Xxxx pursuant to this
Agreement shall be reduced by any amounts required to be withheld with respect
to those amounts under and for the purposes of any of the Company's employee
benefit plans in which Xxxx may be participating, or under present and future
social security, income tax and other applicable laws or regulations.
(f) During the term of his employment, Xxxx shall be reimbursed for
reasonable expenses incurred by him for the benefit of the Company. Any direct
payment or reimbursement of expenses shall be made only upon presentation of an
itemized accounting conforming in form and content to standards prescribed by
the Internal Revenue Service relative to the substantiation of the deductibility
of business expenses.
5. Stock Options. The Company shall xxxxx Xxxx options to purchase up to
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100,000 shares of the Company's common stock at an exercise price equal to the
closing bid price on the date of approval of this agreement by the Board of
Directors of the Company. All of such 100,000 options be part of and granted
under the proposed 1997 Employee Stock Option Plan ("Plan") being considered by
the Corporation. Xxxx understands that the Plan, in order to be effective is
subject to shareholder approval. The Plan is intended to qualify under Internal
Revenue Code Sections 421 and 422. The options, which are intended to be
"Incentive Stock Options" under the Internal Revenue Code, will vest in
quarterly installments of 25,000 options at the end of each calendar quarter
over the one year term. Not withstanding the foregoing, and in addition to any
requirements of the Plan, any unvested options shall vest immediately upon
termination of this Agreement, unless such termination is pursuant to Sections 8
(ii) or 8 (iii), in which event any options which are not vested at that time
shall not vest. The options shall be exercisable until December 31, 2000. These
terms and conditions shall be incorporated into the form of Incentive Stock
Options granted to Xxxx under the Plan. The understanding of the parties
regarding the stock options are independent of the other terms and conditions of
this Agreement and the grant of stock options to Xxxx shall not be deemed
additional compensation to Xxxx.
6. Life Insurance. The Company may, but shall not be obligated to apply
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for and procure as owner and for its own benefit or the benefit of any lender of
the Company, insurance on Xxxx'x life, in any amount and form or forms that the
Company may choose. Xxxx shall, at the Company's request, submit to all medical
examinations, supply all information and execute all documents required by the
insurance company or companies to whom the Company has applied for the
insurance.
7. Confidentiality.
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(a) Confidentiality and Confidential Information. Xxxx agrees to
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regard and preserve as confidential all information obtained by him relating or
pertaining to the Company's businesS, including projects, products. customers,
trade secrets, confidential information (including business and financial
information), and any computer programs and software or unpublished know-how,
whether patented or unpatented, related to such business, and not to !publish or
disclose any part of such information to others or use the same for my own
purposes or the purposes of others, during the term of this employment or
thereafter. Any information of the Company which is deemed a "trade secret" by
the California Uniform Trade Secret Act shall be considered to be confidential
information and therefore within the scope of this Agreement, unless the Company
advises Xxxx otherwise in writing ('~Confidential Information"). Xxxx further
agrees to preserve as confidential the Confidential Information of any third
party to which he may have access and to treat such information as though it
were Company Confidential Information.
(b) Prevention of Unauthorized Release of Company Information. Xxxx
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agrees to promptly advise the Company of any knowledge which he may have of any
unauthorized release or use of any Company Confidential Information, and shall
take reasonable measures to prevent unauthorized persons or entities from having
access to, obtaining or being furnished with any Company Confidential
Information.
(c) Confidential Information of Third Parties. Xxxx agrees not to
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disclose to the Company and not to use in any way in connection with his
employment any confidential information or trade secrets of any kind, or any
embodiments thereof, of any previous employer or other third party.
Specifically, and without limitation, Xxxx agrees to use only his general
knowledge, experience and skill in connection with his employment with the
Company and acknowledges that this is the purpose for which he has been hired by
the Company.
(d) Termination of Employment. Xxxx agrees that, upon termination of
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his employment with the Company (voluntary or otherwise), that he will return to
the Company all things belonging to the Company, and that all documents,
records, notebooks, and tangible articles containing or embodying Confidential
Information, including copies thereof, then in his possession or control,
whether prepared by Xxxx or others, will be left with the Company. Xxxx
recognizes that the unauthorized taking of any of the Company's trade secrets is
a crime under Section 499(c) of the California Penal Code, and is punishable by
imprisonment in a state prison or in a county jail for a time not exceeding one
year, or by a fine not exceeding five thousand dollars ($5,000), or by both such
fine and such imprisonment. Xxxx further recognizes that such unauthorized
taking of the Company's trade secrets may
also result in civil liability under California Civil Code Section 3426, et
seq., and that a willful taking may result in an award against Xxxx for the
Company' s attorney's fees and triple the amount of the Company's damages.
8. Termination. The Company shall have the right at any time to
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terminate Xxxx'x employment under this Agreement without further liability or
obligation pursuant to this Agreement upon the occurrence of any of the
following events:
(i) Xxxx dies, shall become physically or mentally disabled or
impaired so as to prevent him from continuing the normal and proper performance
of his duties and responsibilities hereunder for a period of three consecutive
months; or
(ii) Xxxx is convicted of any crime constituting a felony under the
law of the United States or any State; or
(iii) If Xxxx is in "Material Breach" of this Agreement as determined
by the Board of Directors of the Company. The exercise of the right of the
Company to terminate this Agreement shall not abrogate the rights and remedies
of the Company in respect of the breach giving rise to such termination. For
purposes of this subsection, "Material Breach" shall mean conduct amounting to
fraud, dishonesty, or engaging in other acts of moral turpitude inimicable to
the interests of the Company, or any acts or omissions to act which are
determined by the Board of Directors to constitute gross negligence, or flagrant
misconduct. or the continuous failure to follow instructions of the Board of
Directors. The "Material Breach" shall be specified in a notice of termination
to be delivered by the Company no later than the date as of which the
termination is effective.
If Xxxx'x employment is terminated by the Company for any reason other than
by mutual agreement or any of the reasons set forth in subsections (i) through
(iii) above, then the Company shall pay Xxxx the balance, if any due as salary
for the month in which termination occurred, plus three additional months'
salary and any earned, but unpaid incentive compensation bonus if a plan as
specified in Section 4(c) of this Agreement has been adopted by the Company (the
"Termination Pay") in full settlement of any and all claims of Xxxx arising out
of or in connection with his employment by the Company. Such Termination Pay
shall also include the unpaid, deferred portion of the Base Salary as specified
in Section 4 (a) of this Agreement, if any, for each full month of his
employment prior to termination.
Xxxx shall have the right to terminate this Agreement in the event of a
default by the Company of any material provision of this Agreement but only if
Xxxx shall have first given written notice of the default to the Company and if
within thirty days after receipt of that notice the Company has not cured that
default. Upon termination neither Xxxx nor the Company shall have any further
obligations under any of the provisions of this Agreement except that Xxxx shall
be entitled to termination pay as specified in the immediate preceding
paragraph.
This Agreement may also be terminated by mutual agreement or the parties.
In such event, no termination pay will be due Xxxx.
9. Remedies. If there is a breach or threatened breach of the provisions
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of Section 2 or 7 of this Agreement, the Company shall be entitled to an
injunction restraining Xxxx from such breach. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies for such breach or
threatened breach.
10. Severability. It is the clear intention of the parties to this
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Agreement that no term, provision or clause of this Agreement shall be deemed to
be invalid, illegal or unenforceable in any respect, unless such term provision
or clause cannot be otherwise construed, interpreted, or modified to give effect
to the intent of the parties and to be valid, legal or enforceable. In the event
that such a term, provision. or clause cannot be so construed, interpreted or
modified, the validity, legality and enforceability of the remaining provisions
contained herein and other application(s) thereof shall not in any way be
affected or impaired thereby and shall remain in full force and effect.
11. Waiver of Breach. The waiver by the Company or Xxxx of the breach of
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any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by that party.
12. Entire Agreement. This document contains the entire agreement between
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the parties, supersedes all prior oral agreements, if any, and may not be
changed orally, but only by agreement in writing signed by the parties.
13. This Agreement, its validity, interpretation and enforcement, shall be
governed by the laws of the State of California.
14. Notices. Any notice pursuant to this Agreement shall be validly given
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or served if that notice is made in writing and delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the following
addresses:
If to Company: AMDL, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Executive Officer
If to Xxxx: Xxxx Xxxxxx Xxx 000000
Xxxxxx, Xxxxxxxxxx 00000
All notices so given shall be given effective upon receipt. Either party, by
notice so given, may change the address to which his or its future notices shall
be sent.
15. Assignment and Binding Effect.
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(a) This Agreement shall be binding upon Xxxx and the Company and
shall benefit the Company and its successors and assign.
(b) This Agreement shall not be assignable by Xxxx.
16. Headings. The headings in this Agreement are for convenience only;
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they form no part of this Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
AMDL, Inc.
By:_______________________________
Executive Officer
__________________________________
Xxxxx Xxxx
