EXHIBIT 10.25
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is executed and delivered as of
March 25, 2003 (the "Effective Date"), by and between Endocare, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxx, an individual resident of the
State of California ("Employee").
1. POSITION AND RESPONSIBILITIES
a. POSITION. Employee is employed by the Company to render services to
the Company in the position of Senior Vice President, Sales & Marketing.
Employee shall perform such duties and responsibilities as are normally related
to such position, in accordance with industry standards, and any additional
duties now or hereafter assigned to Employee by the Company. Employee shall
abide by the Company's rules, regulations and practices, as adopted or modified
from time to time in the Company's sole discretion.
b. OTHER ACTIVITIES. Except with the prior written consent of the
Company, Employee shall not, during the term of this Agreement, (i) accept any
other employment, or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary gain) that might interfere with
Employee's duties and responsibilities hereunder or create a conflict of
interest with the Company. Employee may serve as a member of the board of
directors of any company that does not compete with the Company.
c. NO CONFLICT. Employee represents and warrants that Employee's
execution of this Agreement, Employee's employment with the Company and the
performance of Employee's proposed duties under this Agreement shall not violate
any obligations Employee may have to any prior employer, or any other person or
entity, including, without limitation, any obligations with respect to
proprietary or confidential information of any prior employer, or any other
person or entity.
2. COMPENSATION AND BENEFITS
a. BASE SALARY. In consideration of the services to be rendered under
this Agreement, the Company shall pay to Employee a salary at the rate of Two
Hundred Thousand ($200,000) per year (the "Base Salary"). The Base Salary shall
be paid in accordance with the Company's payroll practices. The Base Salary will
be reviewed from time to time in accordance with the Company's procedures for
adjusting salaries for similarly-situated employees and may be increased or
decreased at any time in the Company's sole discretion.
b. BONUS. Employee shall be eligible to receive commission of 0.3% of
gross domestic revenue, subject to Employee's attainment of a minimum of 70% of
agreed upon gross revenue
objectives. In addition, Employee shall be eligible for an incremental
commission of 1% of all gross revenues in excess of plan.
c. BENEFITS. Effective as of the Effective Date, Employee shall be
eligible to participate in the benefits made generally available by the Company
to similarly-situated employees, in accordance with the benefit plans
established by the Company, as such plans may be amended from time to time in
the Company's sole discretion.
d. VACATION. Employee shall receive paid vacation time in accordance
with the executive vacation plan to be established by the Company.
3. AT-WILL EMPLOYMENT
a. AT-WILL TERMINATION BY COMPANY. The employment of Employee shall be
"at-will" at all times. The Company may terminate Employee's employment with the
Company at any time, without any advance notice, for any reason or no reason at
all, notwithstanding anything to the contrary contained in or arising from any
statements, policies or practices of the Company relating to the employment,
discipline or termination of its employees. Upon and after the date of such
termination, all obligations of the Company shall cease, except as set forth
below in Section 3(c).
b. AT-WILL TERMINATION BY EMPLOYEE. Employee may terminate employment
with the Company at any time for any reason or no reason at all, upon two weeks'
advance written notice. During such notice period Employee shall continue to
diligently perform all of Employee's duties hereunder. The Company shall have
the option, in its sole discretion, to make Employee's termination effective at
any time prior to the end of such notice period as long as the Company pays
Employee all compensation to which Employee is entitled up through the last day
of the two-week notice period. Thereafter all obligations of the Company shall
cease, except as set forth below in Section 3(c).
c. TERMINATION BY COMPANY WITHOUT CAUSE OR BY EMPLOYEE FOR GOOD REASON.
(i) If the Company terminates Employee's employment other than for
Cause (as defined below) prior to the first anniversary of the Effective Date,
or if Employee terminates his employment for Good Reason (as defined below)
prior to the first anniversary of the Effective Date, then, during the period of
time from the termination date until the first anniversary of the Effective
Date, the Company shall continue to (A) pay to Employee the Base Salary, in
accordance with the Company's payroll practices, and (B) make available to
Employee the benefits made generally available by the Company to its employees,
to the extent permitted under applicable law and the terms of the benefit plans.
Notwithstanding the foregoing, if at any time (whether before, on or after the
first anniversary of the Effective Date) the Company terminates Employee's
employment other than for Cause, or if at any time Employee terminates his
employment for Good Reason, then Employee shall be entitled to a minimum of six
(6) months' worth of severance, so that, during the period of time from the
termination date until the six (6)-
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month anniversary of the termination date, the Company shall continue to (A) pay
to Employee the Base Salary, in accordance with the Company's payroll practices,
and (B) make available to Employee the benefits made generally available by the
Company to its employees, to the extent permitted under applicable law and the
terms of the benefit plans.
(ii) The Company's termination of Employee's employment shall be
for "Cause" if Employee: (A) exhibits willful misconduct or dishonesty; (B) is
convicted of a felony; (C) acts (or fails to act) in bad faith and to the
Company's detriment; (D) materially breaches this Agreement or any other
agreement with the Company; or (E) engages in misconduct that is demonstrably
and materially injurious to the Company, including, without limitation, willful
and material failure to perform his duties as an officer or employee of the
Company or excessive absenteeism unrelated to illness or vacation.
(iii) Employee's termination of his employment shall be for "Good
Reason" if Employee terminates his employment: (A) within the thirty (30)-day
period immediately following the six (6)-month anniversary of the date of the
occurrence of a Change in Control (as defined below); (B) within six (6) months
of the Company's material reduction of Employee's level of responsibility; or
(C) within six (6) months of the Company's material reduction of the Base
Salary, except for any salary reduction that is generally applicable to the
Company's executives.
(iv) For purposes of this Agreement, the term "Change in Control"
shall mean any of the following transactions:
(A) a merger or consolidation in which the Company is not
the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated;
(B) the sale, transfer or other disposition of all or
substantially all of the assets of the Company;
(C) any reverse merger in which the Company is the
surviving entity but in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Company's
outstanding securities are transferred to a person or persons different
from those who held such securities immediately prior to such merger;
or
(D) the acquisition in a single or series of related
transactions by any person or related group of persons (other than by
the Company or by a Company-sponsored employee benefit plan) of
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities possessing
more than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities.
(v) Employee's right to receive any payments or other benefits
under this Section 3(c) is expressly conditioned upon: (A) Employee's execution
of a general release of all claims as of the date of Employee's termination, in
substantially the form attached to this Agreement as
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Exhibit A (the "General Release"); and (B) Employee's compliance with his
obligations under this Agreement, the General Release and all other agreements
between Employee and the Company.
4. TERMINATION OBLIGATIONS
a. RETURN OF PROPERTY. Employee agrees that all property (including,
without limitation, all equipment, tangible proprietary information, documents,
records, notes, contracts and computer-generated materials) furnished to or
created or prepared by Employee incident to Employee's employment belongs to the
Company and shall be promptly returned to the Company upon termination of
Employee's employment.
b. COOPERATION. Following any termination of his employment, Employee
shall perform any and all acts requested by the Company to ensure the orderly
and efficient transition of Employee's duties. Such acts may include, but are
not limited to: (i) participating in meetings or telephone conferences; (ii)
reviewing, preparing or executing documents; and (iii) providing assistance in
connection with any litigation, investigation or audit involving the Company, or
any of its affiliates, directors, officers, employees, agents, attorneys,
representatives, stockholders, insurers, divisions, successors and/or assigns
and any related holding, parent or subsidiary corporations.
5. NON-DISCLOSURE OF THIRD-PARTY INFORMATION
Employee represents and warrants and covenants that Employee shall not disclose
to the Company, or use, or induce the Company to use, any proprietary
information or trade secrets of others at any time, including but not limited to
any proprietary information or trade secrets of any former employer, if any; and
Employee acknowledges and agrees that any violation of this provision shall be
grounds for Employee's immediate termination and could subject Employee to
substantial civil liabilities and criminal penalties. Employee further
specifically and expressly acknowledges that no officer or other employee or
representative of the Company has requested or instructed Employee to disclose
or use any such third-party proprietary information or trade secrets.
6. NONINTERFERENCE; NONSOLICITATION
Employee acknowledges and agrees that the Company's relationships with its
employees, consultants, customers, vendors and service providers are valuable
business assets. Accordingly, Employee agrees that, during his employment with
the Company and for a period of two (2) years after the date of any termination
of such employment, he will not (for himself or for any third party) divert or
attempt to divert from the Company any business, employee, consultant, customer,
vendor or service provider, through solicitation or otherwise, or otherwise
interfere with the Company's business or the Company's relationships with its
employees, consultants, customers, vendors and service providers.
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7. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived except by a writing signed by
Employee and by a duly authorized officer of the Company. Failure to exercise
any right under this Agreement shall not constitute a waiver of such right. Any
waiver of any breach of this Agreement shall not operate as a waiver of any
subsequent breaches. All rights or remedies specified for a party herein shall
be cumulative and in addition to all other rights and remedies of the party
hereunder or under applicable law.
8. ASSIGNMENT; BINDING EFFECT
a. ASSIGNMENT. The performance of Employee is personal hereunder, and
Employee agrees that Employee shall have no right to assign and shall not assign
or purport to assign any rights or obligations under this Agreement. This
Agreement may be assigned or transferred by the Company; and nothing in this
Agreement shall prevent the consolidation, merger or sale of the Company or a
sale of any or all or substantially all of its assets.
b. BINDING EFFECT. Subject to the foregoing restriction on assignment
by Employee, this Agreement shall inure to the benefit of and be binding upon
each of the parties; the affiliates, officers, directors, agents, successors and
assigns of the Company; and the heirs, devisees, spouses, legal representatives
and successors of Employee.
9. NOTICES
All notices or other communications required or permitted hereunder shall be
made in writing and shall be deemed to have been duly given if delivered: (a) by
hand; (b) by a nationally recognized overnight courier service; or (c) by United
States first class registered or certified mail, return receipt requested, to
the principal address of the other party, as set forth below on the signature
page of this Agreement. The date of notice shall be deemed to be the earlier of
(i) actual receipt of notice by any permitted means, or (ii) three business days
following dispatch by overnight delivery service or the United States mail.
Employee shall be obligated to notify the Company in writing of any change in
Employee's address. Notice of change of address shall be effective only when
provided in accordance with this Section 9.
10. SEVERABILITY
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.
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11. TAXES
All amounts paid under this Agreement (including, without limitation, the Base
Salary) shall be paid less all applicable state and federal tax withholdings and
any other withholdings required by any applicable jurisdiction.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of California, without regard to conflicts of law
principles.
13. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the context
requires, references to the singular shall include the plural and the plural the
singular.
14. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT
Employee agrees that any and all of Employee's obligations under this Agreement
shall survive the termination of his or her employment and the termination of
this Agreement.
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
16. AUTHORITY
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
17. ENTIRE AGREEMENT
This Agreement is intended to be the final, complete and exclusive statement of
the terms of Employee's employment by the Company and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements.
Notwithstanding the foregoing, this Agreement shall not supersede or otherwise
affect any agreements previously or concurrently executed by Employee relating
to the Company's proprietary information or intellectual property rights, or
relating to Employee's non-interference or non-solicitation obligations relative
to the Company's
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business or employees. To the extent that the practices, policies or procedures
of the Company, now or in the future, apply to Employee and are inconsistent
with the terms of this Agreement, the provisions of this Agreement shall
control. Any subsequent change in Employee's duties, position or compensation
shall not affect the validity or scope of this Agreement.
18. EMPLOYEE ACKNOWLEDGEMENT
Employee acknowledges that Employee has had the opportunity to consult legal
counsel concerning this Agreement, that Employee has read and understands this
Agreement, that Employee is fully aware of its legal effect and that Employee
has entered into this Agreement freely based on Employee's own judgment and not
on any representations or promises other than those contained in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
Effective Date.
ENDOCARE, INC. EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxx Xxxxxx
---------------------- -----------------------
Name: Xxxxx Xxxxxx
Title:
Address for notices: Address for notices:
000 Xxxxxxxxxx Xxxxx _______________________
Xxxxxx, XX 00000 _______________________
Attention: Xxxx X. Xxxxx _______________________
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
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EXHIBIT A
FORM OF GENERAL RELEASE OF CLAIMS
THIS GENERAL RELEASE OF CLAIMS (this "Release") is executed and delivered as of
[[___________]], 2003, by and between Endocare, Inc., a Delaware corporation
(the "Company"), and the individual named on the signature page hereof (the
"Releasor"). Each of the Company and the Releasor is referred to herein as a
"Party," and, collectively, as the "Parties."
RECITALS
WHEREAS, the Company and the Releasor previously executed and delivered
an Employment Agreement (the "Employment Agreement");
WHEREAS, pursuant to terms and conditions of the Employment Agreement,
the Releasor is entitled to certain severance payments in specific
circumstances, subject to, among other things, Releasor's execution and delivery
of this Release; and
WHEREAS, by execution hereof, the Releasor acknowledges and agrees
that: (i) this Release is a compromise of doubtful and disputed claims, if any,
which remain untested; (ii) there has not been a trial or adjudication of any
issue of law or fact herein; (iii) the terms and conditions of this Release are
in no way to be construed as an admission of liability on the part of the
Company; and (iv) the Company denies any liability and intends merely to avoid
litigation with this Release;
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and promises contained herein, the
adequacy and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1. Release of the Company by the Releasor.
(a) The Releasor does hereby unconditionally, irrevocably and
absolutely release and discharge the Company, and its affiliates, directors,
officers, employees, agents, attorneys, representatives, stockholders, insurers,
divisions, successors and/or assigns and any related holding, parent or
subsidiary corporations, from any and all loss, liability, claims, costs
(including, without limitation, attorneys' fees), demands, causes of action, or
suits of any type, whether in law and/or in equity, related directly or
indirectly or in any way connected with any transaction, affairs or occurrences
between them and arising on or prior to the date of this Release, including, but
not limited to, the Releasor's employment with the Company, the termination of
said employment and claims of emotional or physical distress related to such
employment or termination. This Release specifically applies to any claims for
age discrimination in employment, including, without limitation, any claims
arising under the Age Discrimination In Employment Act or any other statutes or
laws that govern discrimination in employment.
(b) The Releasor irrevocably and absolutely agrees that he will
not prosecute nor allow to be prosecuted on his behalf in any administrative
agency, whether federal or state, or in any court, whether federal or state, any
claim or demand of any type related to any of the matters released above, it
being an intention of the Parties that with the execution by the Releasor of
this Release, the Company, its officers, directors, employees, agents,
attorneys, representatives, successors and/or assigns, and any related holding,
parent and subsidiary corporations, will be absolutely, unconditionally and
forever discharged of and from all obligations to or on behalf of the Releasor
related in any way to the matters released above.
(c) The Releasor does expressly waive all of the benefits and
rights granted to him pursuant to any applicable law or regulation to the effect
that:
A general release does not extend to claims which the creditor
does not know of or suspect to exist in his favor at the time
of executing the release, which if known by him must have
materially affected his settlement with the debtor.
(d) The Releasor does certify that he has read all of this
Release, and that he fully understands all of the same. The Releasor hereby
expressly agrees that this Release shall extend and apply to all unknown,
unsuspected and unanticipated injuries and damages, as well as those that are
now known.
(e) The Releasor further declares and represents that no promise,
inducement or agreement not herein expressed has been made to him and that this
Release contains the full and entire agreement between the Parties relating to
the Releasor's release of claims, and that the terms of this Release are
contractual and not a mere recital.
2. Review and Revocation Periods. The Releasor represents, acknowledges
and agrees that: (i) the Company has advised him, in writing, to discuss this
Release with an attorney, and that to the extent, if any, that the Releasor has
desired, the Releasor has done so; (ii) the Company has given the Releasor
twenty-one (21) days to review and consider this Release before signing it, and
the Releasor understands that he may use as much of this twenty-one (21) day
period as he wishes prior to signing; (iii) that no promise, representation,
warranty or agreements not contained herein have been made by or with anyone to
cause him to sign this Release; (iv) that he has read this Release in its
entirety, and fully understands and is aware of its meaning, intent, contents
and legal effect; and (v) he is executing this Release voluntarily, and free of
any duress or coercion. The Parties acknowledge that for a period of seven (7)
days following the execution of this Release, the Releasor may revoke this
Release, and this Release shall not become effective or enforceable until the
revocation period has expired. This Release shall become effective eight (8)
days after it is signed by the Parties, and in the event the Parties do not
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sign on the same date, then this Release shall become effective eight (8) days
after the date it is signed by the Releasor.
3. Full and Complete Defense. This Release may be pleaded as a full and
complete defense and may be used as the basis for an injunction against any
action, suit or proceeding that may be prosecuted, instituted or attempted by
the Releasor against the Company.
4. Tax Indemnification. As part of this Release, the Releasor agrees to
indemnify, hold harmless, and, at the Company's request, defend the Company and
its affiliates, directors, officers, employees, agents, attorneys,
representatives, stockholders, insurers, divisions, successors and/or assigns
and any related holding, parent or subsidiary corporations, from and against any
and all loss, liability, claims, costs (including, without limitation,
attorneys' fees), demands, causes of action, or suits of any type, whether in
law and/or in equity, related directly or indirectly or in any way connected
with any federal or state income or other taxes payable or claimed to be payable
as a result of any consideration that the Company pays to the Releasor pursuant
to this Release or the Employment Agreement.
5. Amendments, etc. This Release may not be amended or waived except by
a writing signed by the Releasor and by a duly authorized officer of the
Company. Failure to exercise any right under this Release shall not constitute a
waiver of such right. Any waiver of any breach of this Release shall not operate
as a waiver of any subsequent breaches. All rights or remedies specified for a
Party herein shall be cumulative and in addition to all other rights and
remedies of the Party hereunder or under applicable law.
6. Assignment; Binding Effect. The Releasor agrees that he shall have
no right to assign and shall not assign or purport to assign any rights or
obligations under this Release. This Release may be assigned or transferred by
the Company; and nothing in this Release shall prevent the consolidation, merger
or sale of the Company or a sale of any or all or substantially all of its
assets.
7. Severability. If any provision of this Release shall be held by a
court or arbitrator to be invalid, unenforceable or void, such provision shall
be enforced to the fullest extent permitted by law, and the remainder of this
Release shall remain in full force and effect. In the event that the time period
or scope of any provision is declared by a court or arbitrator of competent
jurisdiction to exceed the maximum time period or scope that such court or
arbitrator deems enforceable, then such court or arbitrator shall reduce the
time period or scope to the maximum time period or scope permitted by law.
8. Governing Law. This Release shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
conflicts of law principles.
9. Interpretation. This Release shall be construed as a whole,
according to its fair meaning, and not in favor of or against any Party.
Sections and section headings contained in this Release are for reference
purposes only, and shall not affect in any manner the meaning or
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interpretation of this Release. Whenever the context requires, references to the
singular shall include the plural and the plural the singular.
10. Counterparts. This Release may be executed in any number of
counterparts, each of which shall be deemed an original of this Release, but all
of which together shall constitute one and the same instrument.
11. Authority. Each Party represents and warrants that such Party has
the right, power and authority to enter into and execute this Release and to
perform and discharge all of the obligations hereunder; and that this Release
constitutes the valid and legally binding agreement and obligation of such Party
and is enforceable in accordance with its terms.
12. Entire Agreement. This Release is intended to be the final,
complete and exclusive statement of the terms set forth herein and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements.
13. Opportunity to Consult Legal Counsel. The Releasor acknowledges
that he has had the opportunity to consult legal counsel concerning this
Release, that he has read and understands this Release, that he is fully aware
of its legal effect and that he has entered into this Release freely based on
his own judgment and not on any representations or promises other than those
contained in this Release.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties hereby execute this Release as of the
date first above written.
ENDOCARE, INC. RELEASOR:
By:
----------------------- ---------------------------
Name: Signature
Title: ---------------------------
Print Name
[SIGNATURE PAGE TO GENERAL RELEASE OF CLAIMS]
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