EXHIBIT 10.28
EMPLOYMENT AGREEMENT
BETWEEN: ATHENA MEDICAL CORPORATION, a Nevada corporation (the "Company");
AND: XXXXX X. XXXXXX ("Employee").
DATED: Effective May 1, 1997.
R E C I T A L:
The Company (dba A FEM Medical Corporation) is engaged in the business of
developing and marketing feminine hygiene products and diagnostics
world-wide. Employee is a member of the Company's Board of Directors and was
appointed by the Board of Directors as the Company's Treasurer on October 22,
1996. The parties desire to set forth their agreement as to Employee's
services as such on and after May 1, 1997.
AGREEMENT:
In consideration of the foregoing Recital and the terms, conditions and
covenants set forth below, the parties agree as follows:
SECTION 1. EMPLOYMENT
The Company agrees to employ Employee for a term commencing on May 1,
1997, and continuing until termination in accordance with Section 5.
Employee accepts employment with the Company on the terms and conditions set
forth in this Agreement, and agrees to perform the duties of the Company's
Treasurer as provided in the Company's Bylaws (except as otherwise assigned
by the Company's Board of Directors to the chief financial officer or other
officers). Employee further agrees to perform any specific duties assigned
to Employee by the Company's Board of Directors. The parties anticipate that
Employee will be required to devote at least three days of each week on
behalf of the Company.
Employee agrees that in all aspects of his employment, Employee shall
comply with the policies, standards, rules and regulations of the Company
from time to time established, and shall perform Employee's duties
faithfully, intelligently, to the best of Employee's ability and in the best
interest of the Company. The devotion of reasonable periods of time by
Employee for personal purposes, outside non-competitive business activities
or charitable activities shall not be deemed a
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breach of this Agreement, provided that such purposes or activities do not
materially interfere with the services required to be rendered to or on
behalf of the Company.
SECTION 2. CONFIDENTIALITY
2.1 Confidential Information
Employee acknowledges and agrees that all research, product and equipment
specifications, manufacturing methods, lists of the Company's customers and
suppliers, marketing and product planning information, and other Company data
related to its business, as well as information of third parties that the
Company is required to keep confidential (collectively, the "Confidential
Information"), are valuable assets of the Company. Except for disclosures
reasonably made to advance the business of the Company and information which
is a matter of public record, Employee shall not, during the term of this
Agreement or after termination of employment with the Company for any reason,
disclose any Confidential Information to any person or use any Confidential
Information (regardless of whether same is considered proprietary or a trade
secret) for the benefit of Employee or any other person, except with the
prior written consent of the Company in each instance.
2.2 Return of Documents and Property
Employee acknowledges and agrees that all originals and all copies of
records, reports, files, correspondence, lists, plans, drawings, memoranda,
notes, sketches, summaries, schedules, codes, tapes and other documentation
and property related to the business of the Company or containing any
Confidential Information are and shall be the sole and exclusive property of
the Company, and shall be returned to the Company upon termination of
Employee's employment with the Company or upon the written request of an
authorized representative of the Company at any time.
2.3 Related Company Policies
Employee further agrees to comply with all policies, rules and
regulations adopted by the Company's Board of Directors or shareholders from
time to time with respect to xxxxxxx xxxxxxx and other duties applicable to
the employees of a publicly-traded corporation. Employee also agrees, if
requested, to sign a separate confidentiality agreement applicable to all
employees. The terms of such separate agreement will control over any
conflicting term in this Agreement.
2.4 Injunction
Employee agrees that it would be difficult to measure damage to the
Company from any breach by Employee of Section 2.1, 2.2 or 2.3 and that
monetary damages
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would be an inadequate remedy for any such breach. Accordingly, Employee
agrees that if Employee shall breach Section 2.1, 2.2 or 2.3, the Company
shall be entitled, in addition to any and all other remedies it may have at
law or in equity, to an injunction or other appropriate order to restrain any
such breach, without showing or proving any actual damage sustained by the
Company, and without posting bond or other undertaking.
2.5 No Release
Employee agrees that termination of employment with the Company shall not
release Employee from any of Employee's obligations under Section 2.1, 2.2 or
2.3.
SECTION 3. COMPENSATION
3.1 Amount
In consideration of all services to be rendered by Employee to the
Company under this Agreement, the Company shall pay to Employee compensation
of $5,000.00 per month for a period commencing May 1, 1997, payable monthly
in arrears or on the same dates as other management personnel are paid.
Compensation shall be subject to the customary withholding of income taxes
and to other employment taxes required with respect to compensation paid by
an employer to an employee.
3.2 Other Benefits
Employee's services will be as a part-time employee. Accordingly,
neither Employee or Employee's spouse and dependents are or will be entitled
to coverage and participation with respect to profit-sharing plan, retirement
plan, accident and health insurance, life insurance or other employment
benefits, unless Employee meets the respective eligibility conditions
(including minimum hours-of-service) of each such benefit.
3.3 Income From Employee's Efforts
All income generated by Employee for Employee's services to the Company,
and all activities related to such services, shall belong to the Company,
whether paid directly to the Company or to Employee. Employee agrees to,
upon request by the Company from time to time, render a detailed accounting
of all transactions during the course of Employee's employment.
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3.4 Work Made for Hire
All techniques, processes, products, manuals, documents, materials, ideas
and Confidential Information developed by Employee while employed by the
Company shall be considered work made for hire and shall, unless specifically
otherwise agreed in writing by the Company prior to such development, become
the sole and exclusive property of the Company.
SECTION 4. EXPENSES
The compensation provided under Section 3.1 above is intended to
compensate Employee for normal travel expenses (such as those between
Employer's home or office and the Company's principal office) and incidental
expenses. However, Employee shall be entitled to reimbursement from the
Company for other non-ordinary reasonable expenses necessarily incurred by
Employee in the performance of Employee's duties under this Agreement (such
as out-of-state travel), upon presentation of vouchers detailing the amount,
date and business purpose of each such expense. All expenses in excess of
$200.00 must be approved in advance by another officer of the Company, and
all travel and related expenses and reimbursements will be governed by the
travel policies and procedures adopted by the Company.
SECTION 5. TERMINATION
5.1 Termination by Prior Notice or Agreement
The employment of Employee by the Company may be terminated by either the
Company or Employee upon the giving of 30 days' prior written notice to the
other party. This Agreement may be terminated at any earlier time upon the
mutual written agreement of the Company and Employee.
5.2 Immediate Termination
The employment of Employee by the Company may be terminated immediately
in the sole discretion of the Board of Directors of the Company upon the
occurrence of any one of the following events:
5.2.1 If Employee shall willfully and continuously fail or refuse to
comply with any of the policies, standards, rules and regulations established
by the Company's Board of Directors or shareholders from time to time.
5.2.2 If Employee shall be guilty of fraud, dishonesty or any other
act of misconduct in the performance of Employee's duties on behalf of the
Company.
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5.2.3 If Employee shall fail or refuse to perform any provision of
this Agreement to be performed by Employee.
5.2.4 Upon the sale, transfer or other disposition of all or
substantially all the assets of the Company, the distribution of the
Company's assets to its shareholders in liquidation, or the discontinuance of
the Company's conduct of the business described in the Recital.
5.2.5 If Employee shall suffer a permanent disability. For purposes
of this Agreement, "permanent disability" shall be defined in accordance with
the terms of any disability income policy insuring Employee which may be
purchased by the Company, as determined by the company issuing such policy.
But if such a policy is not in force, "permanent disability" shall be defined
as Employee's inability due to physical or mental illness, or other cause, to
perform the majority of Employee's usual duties for a period of three months
or more, as determined by a physician licensed to practice medicine in Oregon
and chosen by the Company.
5.3 Death
In the event Employee dies during the term of this Agreement, this
Agreement shall automatically terminate, and the Company shall pay to
Employee's estate the compensation which would be otherwise payable to
Employee through the last day of the month in which Employee's death occurs.
5.4 Proration of Compensation
Except as otherwise provided in Section 5.3, upon termination of
employment, the compensation payable to Employee pursuant to Section 3.1
shall be prorated to the date of such termination and shall be payable on the
first day of the month following such termination date.
5.5 At-Will Employment
The employment by Employee by the Company is "at-will". Employee may
terminate employment at any time, for any reason or for no reason.
Correspondingly, the Company may terminate Employee's employment at any time,
for any reason or for no reason.
SECTION 6. MISCELLANEOUS
6.1 Representation by Employee
Employee represents and warrants to the Company that there is no
employment contract or any other contractual obligation to which Employee is
subject which
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prevents Employee from entering into this Agreement or from performing fully
Employee's duties under this Agreement.
6.2 Notices
Any notice or consent required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
personally delivered to a party or 24 hours after deposit in the United
States Mail, first class postage prepaid by both first class and certified
mail, return receipt requested, or 24 hours after delivery to a recognized
national overnight carrier, with overnight shipping charges paid, and
addressed to such party as follows:
If to Employee: Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
If to the Company: Athena Medical Corporation
00000 XX Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
Attn: President
or such other address as a party may specify by a notice in writing, given in
the same manner.
6.3 Attorneys' Fees
If any action or other proceeding shall be instituted relating to any
term or condition of this Agreement or relating to any of the rights, duties
or obligations arising under it (including without limitation a proceeding
for injunction as provided by Section 2.4), the prevailing party shall be
entitled to recover from the other party, and the other party agrees to pay
to the prevailing party, whether or not the matter proceeds to final judgment
or decree, in addition to costs and disbursements allowed by law, such sum as
the trial and each appellate court may adjudge reasonable as attorneys' fees
in such action or other proceeding, and in any appeal of it.
6.4 Interpretation
The waiver by either party of a breach of any term or provision of this
Agreement shall not be construed as a waiver of any subsequent breach of the
same or any other term or provision by either party. Time is of the essence
of this Agreement in all particulars. The term "days" means calendar days.
This Agreement may not be amended or modified except by written agreement
executed by the parties. The captions heading the sections and subsections
of this Agreement are inserted for
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convenience of reference only, and are not to be used to define, limit,
construe or describe the scope or intent of any term, provision or section of
this Agreement. This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
6.5 Integration
This Agreement has been approved by the Company's Board of
Directors pursuant to Nevada Revised Statutes 78.140(3) and Article III,
Section 13 of the Company's Bylaws. THIS AGREEMENT CONTAINS THE FINAL AND
CONCLUSIVE AGREEMENT AND UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER OF IT, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS
AGREEMENTS, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE PARTIES'
CONSULTANT AGREEMENT OF DECEMBER 1, 1996 . EXCEPT AS SET FORTH IN THIS
AGREEMENT, THERE ARE NO PROMISES, REPRESENTATIONS, AGREEMENTS OR
UNDERSTANDINGS, ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT.
EXECUTED as of the date first set forth above.
COMPANY:
Athena Medical Corporation
By: ---------------------------
Its President
EMPLOYEE:
-------------------------------
Xxxxx X. Xxxxxx
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