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EX-10.44
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of April, 1994, between AMERICAN HEALTH
PRODUCTS CORPORATION, a Texas corporation having an office at 00 Xxxx Xxxxx
Xxxx, Xxx Xxxxxx, XX 00000 (the "Corporation"), and XXXXXX X. XXXXXXX, residing
at 0000 Xxxxx Xxxx Xxxxx Xxxxx, Xxx. Xx. 00X. Xxxxxxx, XX 00000 (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Corporation and Executive entered into an Employment Agreement
dated October 4, 1990 (which was subsequently amended) pursuant to which the
Executive was employed as the President and Chief Executive Officer of the
Corporation (the "Prior Employment Agreement"); and
WHEREAS, the Corporation now desires to employ the Executive solely as its
President and the Executive desires to be employed by the Corporation in that
capacity.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants contained herein, the parties agree as follows:
1. Employment.
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(a) The Corporation hereby agrees to employ Executive as its President
to perform the duties and services usually pertaining to such office and to
perform such other administrative and managerial functions as may be assigned to
Executive from time to time by the Chairman or by the board of directors of the
Corporation (the "Board of Directors").
(b) Executive hereby accepts such employment upon the terms and
conditions set forth in this Agreement and agrees to supervise and direct the
daily operations of the Corporation, subject at all times to the general
supervision and direction of the Chairman and the Board of Directors. Except as
set forth in Paragraph 1(c), Executive represents that he is free to enter into
and perform this Agreement and that he will not thereby be in violation of any
agreement or obligation to any other person or entity. Each party hereby agrees
that the Prior Employment Agreement shall terminate on the execution of this
Agreement and neither party shall have any further obligations thereunder.
(c) Executive shall devote his full time, energies, and attention to
the performance of his duties and services hereunder, shall exercise his best
efforts.
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judgment, skill, and talents in the business and interests of the Corporation,
shall perform such duties and services conscientiously and to the full limit of
his abilities at all times, and shall not engage in any other business activity,
whether or not for profit, or be otherwise employed without the prior written
consent of the Chairman, except that it is understood by the Corporation that
Executive is the sole owner of American Healthcare Corporation. Executive hereby
represents to the Corporation that the business of American Healthcare
Corporation does not compete with the business of the Corporation and that his
ownership thereof shall not interfere with Executive's ability to perform fully
his duties and services hereunder.
2. Compensation.
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Base Salary. The Corporation shall pay executive for all of his duties
and services a base salary at the annual rate of ONE HUNDRED THIRTY SEVEN
THOUSAND FIVE HUNDRED ($137,500.00) DOLLARS, effective as of January 1, 1994,
which shall be payable in equal monthly installments or other installments in
accordance with the general practice of the Corporation (the "Base Salary").
3. Stock Option.
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MBf USA, Inc. ("MBf") shall grant Executive a non-qualified stock option
pursuant to and in accordance with the MBf's Omnibus Equity Compensation Plan to
purchase THREE HUNDRED FIFTY THOUSAND (350,000) shares of the common stock of
MBf, par value $.01 per share, which shall become exercisable in whole or in
part (i) commencing on the date of grant for 50,000 shares, (ii) commencing one
year after the date of grant for an aggregate of 250,000 shares, and (iii)
commencing two years after the date of grant for an aggregate of 350,000 shares,
all at an exercise price of $1.1875 per share, the closing price of MBf's common
stock as reported on NASDAQ on April 6, 1994, the date the option was granted by
the compensation committee of MBf, and on such other terms and conditions as
shall be determined by such compensation committee and contained in the stock
option agreement between MBf and Executive. Executive hereby agrees to terminate
his currently outstanding options to purchase 200,000 shares of MBf common stock
pursuant to the Option Agreement dated June 18, 1992, between Executive and
American Drug Screens, Inc., the predecessor to MBF.
4. Expenses.
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The Corporation shall reimburse Executive for his reasonable and
necessary out of pocket business expenses incurred in connection with the
performance of his duties, services, and obligations hereunder, upon submission
of appropriate supporting documents in accordance with the corporation's expense
reimbursement policies and procedures from time to time in effect and applicable
to management employees.
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5. Benefits.
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(a) Vacation and Sick Pay.
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Executive shall be entitled annually to three (3) weeks of vacation with
pay and reasonable periods of sick leave with pay in accordance with the
Corporation's policy, provided that Executive shall not take his vacation weeks
consecutively.
(b) Life and Medical Insurance.
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The Corporation shall provide Executive with life, disability and
medical insurance in accordance with the Corporation's standard benefits package
or his existing insurance coverage.
(c) Automobile.
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The Corporation shall provide Executive with a monthly automobile
allowance of $600 for the purchase and maintenance of a suitable automobile to
be used for business purposes and shall pay for insurance and fuel therefor.
(d) Additional Benefits.
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Executive shall be entitled to participate in any plans, arrangements,
or distributions of the Corporation pertaining to or in connection with any
group health care, insurance, or other benefit program, or any pension or
profit-sharing program for which Executive is eligible under the general terms
and provisions of such plans or programs, and in accordance with the provisions
thereof.
6. Insurance.
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At any time after the execution of this Agreement, the Corporation may
apply for and procure as owner, and for its sole benefit, life and disability
insurance policies covering Executive in such amounts and in such form as the
Corporation may determine. Executive shall have no interest whatsoever in any
such policy, but at the Corporation's request Executive agrees to submit to a
medical examination, supply necessary information, and execute such documents as
may be required by the insurance company providing such policy. Executive's
obligations under this Section are limited to those expressly set forth in the
preceding sentence, and Executive shall not be deemed to have breached this
Agreement if the Corporation is unable to procure life and disability insurance
covering Executive, unless such inability results from Executive's failure to
perform his obligations under this Section.
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7. Nondisclosure of Confidential Business Information.
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(a) Executive shall not disclose to any third person, other than in the
performance of his duties and services hereunder, any Confidential Business
Information (as hereinafter defined) not then generally available in the public
domain relating to the business or operations of the Corporation and shall not
use any of such information for his own benefit or for the benefit of any third
person, either during the term of this Agreement, or thereafter, whether such
information was obtained or conceived by Executive or others, without the prior
written consent of the Board of Directors, except as required in the course of
Executive's employment hereunder.
(b) For purposes of this Agreement, the term Confidential Business
Information, in addition to any meaning ascribed to it by law, shall be defined
as matters relating to the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of the Corporation or of
any customer, including but not limited to short and long-term sales and
marketing programs, research and development planning, design and packaging of
products, processes, formulas, know how, and procedures, trade and shop secrets,
retailing methods, sources of supply, channels of distribution, identity of
distributors and retail customers, discount and billing systems, income and
expense data, customer lists, systems, technical information, and records
relating to the business or operations of the Corporation. All lists, books, and
records of, or used in connection with, the business of the Corporation, and in
particular its customer lists, and all other property belonging to the
Corporation are the sole property of the Corporation and shall at all times
remain in its exclusive custody and possession except as necessary for Executive
to carry out his duties and obligations hereunder. Upon termination of this
Agreement or at the request of the Corporation, Executive hereby agrees to
deliver to the Corporation all such lists, books, records, and property, and any
copies or notes thereof.
8. Non-competition.
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(a) Executive shall not during the terms of this Agreement and for a
period of one (1) year after notice of termination of this Agreement, unless
otherwise approved in writing by the Chairman, (x) directly or indirectly
compete with, associate with, or be engaged in, the same or substantially
similar business as the Corporation, or be employed by, or act as an
independent contractor, consultant, or lender to, or be a director, officer,
employee, owner, or partner of, or invest in the securities of, any business or
organization which during such period directly or indirectly competes with or
is engaged in the same or substantially similar business as the Corporation
except that nothing herein shall prevent Executive from acquiring not more than
five (5%) percent of the outstanding common stock of any corporation listed on
a national securities exchange, or (y) directly or indirectly solicit or
provide services to any customers of the
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Corporation if Executive has solicited or provided services to or supervised or
directed the solicitation of, or provision of services to, such customers, or
learned of their identities or needs or developed or participated in marketing
directed at such customers during Executive's association with the Corporation,
or (z) directly or indirectly solicited any such customer of the Corporation
with a view to discouraging such customer from continuing to do business with
the Corporation.
(b) If any court should determine that the duration or geographical
limit of any restriction contained in this Paragraph 8 is unenforceable, it is
the intention of the parties that such restriction be amended by such court to
the extent required to render the same valid and enforceable, and any such
amendment shall apply only with respect to the operation of this Paragraph 8
within the jurisdiction of the court rendering such determination.
9. No Solicitation of Employees.
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Upon termination of this Agreement, Executive shall not for a period of
three (3) years from the date of termination, directly or indirectly, solicit,
entice, or endeavor to solicit or entice, any of the Corporation's employees to
quit or abandon their employment with the Corporation.
10. Equitable Relief.
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Executive acknowledges and agrees that the Corporation would suffer
irreparable injury by reason of any violation by Executive of the provisions of
Paragraphs 7, 8 or 9 and that the Corporation would not have any adequate
remedy at law, and therefore Executive consents, in the event of any such
violation, to the issuance of an injunction restraining any further violation.
In addition thereto, the Corporation shall be entitled to all other rights it
may have at law or equity.
11. Inventions, Patents, Copyrights, and Trademarks.
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(a) Inventions and Patents.
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(i) Executive hereby agrees that without additional compensation
he will promptly communicate and disclose to the Corporation all inventions,
discoveries, products, product modifications, designs, processes,
specifications, methods, plans, formulae, and improvements whether patentable
or not which in any way pertain or relate to the business, products, or
processes of the Corporation and which may be conceived or originated solely by
Executive or jointly with others during the term of this Agreement or for a
one-year period thereafter or which may be conceived or originated at the
Corporation's facilities, expense, or request, or which may be based on
knowledge or
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information obtained from the Corporation (singly, an "Invention", collectively
the "Inventions"), and Executive agrees that the Inventions shall be the
exclusive property of the Corporation.
(ii) Upon the request of the Corporation, Executive agrees to
execute and deliver to the Corporation such documents as the Corporation may
require to prepare or prosecute a patent application for any Invention or to
assign and transfer to the Corporation free and clear of any encumbrances or
restrictions and without any additional compensation, all the right, title, and
interest of Executive in and to any Invention or patent therefor and if
requested, to give testimony in support of his inventorship or to otherwise
evidence and secure the exclusive rights and the full enjoyment and protection
in and to such inventions by the Corporation. All such assignments and other
transfers shall include rights to the inventions in the United States and in all
foreign countries.
(b) Copyright and Trademarks.
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(i) Executive hereby agrees that without additional compensation
he shall promptly communicate and disclose to the Corporation all trademarks,
slogans, labels, product or other designs, and any marketing programs which in
any way pertain or relate to the business, products, or processes of the
Corporation and which may be conceived or originated solely by Executive or
jointly with others during the term of this Agreement or for a one-year period
thereafter or which may be conceived or originated at the Corporation's
facilities, expense, or request, or which may be based on knowledge or
information obtained from the Corporation (the "Protected Material"), and
Executive agrees that the Protected Material shall be the exclusive property of
the Corporation.
(ii) Executive further agrees that the Protected Material and any
copyrights, trademarks, or other intellectual property rights arising from such
Protected Material shall be solely and exclusively the property of the
Corporation, its successors and assigns; that the Corporation shall have the
right to secure in its name worldwide trademark and copyright registrations and
all extensions and renewals now or hereafter existing for the Protected
Material; and that the Corporation shall have the sole and exclusive right to
use and dispose of the Protected Material.
(iii) Upon the request of the Corporation, Executive agrees to
execute and deliver to the Corporation such documents as the Corporation may
require to prepare and prosecute trademark and copyright applications and to
evidence and secure and protect the Corporation's rights in the Protected
Material and protect the Corporation from liability therefor.
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