EXHIBIT 10.8
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of the 16th of November, 1998, by
and between Rochester Medical Corporation, a Minnesota corporation (the
"Company"), and Dara Xxxx Xxxxxx ("Employee").
WHEREAS, the Company and the Employee desire to record the terms of
Employee's employment by the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. TERM OF EMPLOYMENT. Subject to the terms and conditions of this
Agreement, the Company hereby employs Employee and Employee hereby accepts
employment for the period commencing November 16, 1998, and continuing
thereafter until the employment is terminated according to the provisions of
this Agreement.
2. DUTIES. During the term of this Agreement, Employee shall perform
the duties of Marketing Director, Femsoft(R) Product Line, and such additional
duties as may be prescribed from time to time by the Board of Directors, the
Company's Chief Executive Officer or the Company's Vice President Marketing and
Sales.
3. BASE SALARY; OTHER COMPENSATION.
3.1 Base Salary. The Corporation shall pay Employee an initial Base
Salary ("Base Salary") of Ninety Five Thousand Dollars ($95,000) per annum
commencing November 16, 1998. The Base Salary shall be paid according to the
Corporation's regular payroll procedure, in equal increments not less frequently
than monthly. The Base Salary shall be subject to annual review and merit
increase adjustment in accordance with the Corporation's customary practices, as
may be then in effect, for salary planning and administration.
3.2 Incentive Bonuses. Employee shall be entitled to receive an initial
bonus payment in the amount of Seven Thousand Five Hundred Dollars ($7,500)
payable with her first regular payroll. Employee shall also be eligible to
participate in the Corporation's bonus incentive plan with a targeted bonus
("Bonus") determined in accordance with the Corporation's Executive Bonus
Program. The targets and performance necessary to earn the Bonus or any portion
thereof shall be set annually by the Corporation; provided, that the Bonus
payable to Employee for the Corporation's
Dara Xxxx Xxxxxx
Employment Agreement
November 16, 1998
fiscal quarter ending December 31, 1998, shall be in the amount of Eighteen
Thousand Five Hundred Dollars ($18,500).
3.3 Relocation Allowance. Upon Employee's election to relocate to the
Rochester, Minnesota area, then in addition to any other compensation to which
Employee may be entitled by this agreement, the Corporation shall pay Employee a
Relocation Allowance (the "Relocation Allowance") consisting of (i) all direct
moving costs and expenses incurred by Employee in connection with Employee's
associated relocation to the Rochester, Minnesota, area, (ii) reimbursement of
all realtor's commissions and closing costs paid by Employee in connection with
the sale of his present home, (iii) reimbursement of closing costs paid by
Employee in connection with the purchase of his new home, (iv) reimbursement of
all expenses for meals and lodging, not to exceed eight days, in connection with
Employee's travel to the Rochester, Minnesota, area for purposes of finding a
new home, and (v) income tax gross-up to the extent any payments to or on behalf
of employee hereunder are taxable as income to Employee.
3.4 Temporary Housing Allowance. Until Employee elects to relocate to
the Rochester, Minnesota area, the Corporation shall pay Employee a Temporary
Housing Allowance consisting of (i) housing allowance in amount of Seven Hundred
Dollars ($700) per month through and including September 2000, and (ii) to the
extent Employee's rent and utilities exceed Seven Hundred Dollars ($700) per
month, an additional amount sufficient to pay all monthly utility charges.
3.5 Incentive Stock Option. In addition to any other compensation to
which Employee may be entitled by this agreement, Employee shall be entitled to
receive an Incentive Stock Option for Twenty Thousand (20,000) shares of the
Corporation under the Corporation's 1991 Stock Option Plan according to the
Incentive Stock Option Agreement appended hereto as Exhibit 1. The exercise
price of the Incentive Stock Option shall be fair market value, as determined
according to the 1991 Stock Option Plan, as of the close of business on the date
of grant by the Corporation's Board of Directors. Employee acknowledges
receiving a copy of the 1991 Stock Option Plan.
4. BENEFITS.
4.1 Vacation. During each year of employment, Employee will be entitled
to reasonable vacations, holidays and sick leave in accordance with the
Company's standard policies as may be adopted or amended from time to time
hereafter. Employee shall be entitled to four (4) weeks' vacation during each of
the Company's fiscal years, prorated for any part of a fiscal year. Vacations
shall be at such time or times and for such periods as Company and Employee
shall agree; provided that vacations must be taken by Employee during the year
earned or be forfeited.
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4.2 Benefit Programs, Insurance. Employee shall be entitled to
participate in customary employee benefit programs as may be from time to time
determined by the Board of Directors including, but not limited to, life
insurance, hospitalization, surgical and major medical coverage, and long-term
disability as are or may be made available from time to time to other salaried
employees of the Company.
4.3 Expenses. Employee shall be reimbursed weekly against expense
reports for ordinary and necessary expenses incurred in the performance of her
duties.
5. TERMINATION.
5.1 Events of Termination. This Agreement may be terminated upon the
occurrence of any one of the following events:
(a) Voluntary. Employee may terminate this Agreement at any time during
the term of this Agreement by giving two weeks' prior written notice of
termination to the Company.
(b) Involuntary Without Cause. The Company may terminate this Agreement
at any time during the term of this Agreement by giving 30 days' prior
written notice of termination to the Employee.
(c) Death or Disability. This Agreement shall automatically terminate
upon the death or permanent disability of the Employee. For the
purposes of this Agreement, Employee shall be deemed permanently
disabled if any ailment, illness or other incapacity prevents her from
performing her duties as specified in this Agreement for a period of
three consecutive months or for an aggregate of three months in any
twelve month period from the date of this Agreement.
5.2 Consequences of Termination. In the event of the termination of
this Agreement, Employee or her estate, as the case may be, shall be entitled to
Base Salary and the Commissions earned by her prior to the date of termination
as provided herein computed on a pro rata basis to and including such date of
termination. In addition, Employee shall also be reimbursed for her reasonable
business expenses incurred prior to the date of termination.
6. NON-COMPETITION; INVENTIONS.
6.1 Definitions. For purposes of this Section 6, the following words
and phrases have the meanings ascribed to them, respectively.
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(a) "Confidential Information" means all formulas, processes, customer
lists, computer user identifiers and passwords, and all purchasing,
engineering, accounting, marketing and other information that is
proprietary to the Company and not generally known or readily
ascertainable by proper means, relating to research, development,
manufacture or sale of the Company's products, as well as formulas,
processes and other information received by the Company from third
parties under an obligation of secrecy. All information disclosed to
Employee or to which Employee has access during the period of her
employment, which she has reasonable basis to believe to be
Confidential Information, or which is treated by the Company as being
Confidential Information, shall be presumed to be Confidential
Information.
(b) "Inventions" means all formulas, processes, discoveries,
improvements, ideas and works of authorship, whether patentable or
copyrightable or not, which Employee learns, has access to, has a part
in developing, first conceives or first reduces to practice alone or
with others (1) that are developed on the Company's time, or (2) that
relate directly to the Company's business or actual or anticipated
research, or (3) for which any of the Company's property, including
Confidential Information, is used or (4) that result from any of
Employee's work for the Company.
6.2 Disclosure and Assignment. Except as provided elsewhere in this
Agreement, Employee shall treat as for the Company's sole benefit and fully and
promptly disclose to the Company, without additional compensation, all ideas,
discoveries, inventions and improvements, whether patentable or not, which,
while the Employee is employed by the Company, are made, conceived or reduced to
practice by Employee, alone or with others, during or after usual working hours,
either on or off the job, and Employee hereby assigns to the Company all such
ideas, discoveries, inventions and improvements to be the Company's exclusive
property.
6.3 Further Documents. Employee will acknowledge and deliver promptly
without charge all documents to the Company, and will do such other acts as may
be necessary in the Company's opinion to obtain and maintain patents (including
divisional, reissued or extended Letters Patent) or copyrights and to vest the
entire right and title in the Company to such patents, copyrights and Inventions
in all countries.
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6.4 Confidentiality. Employee will not use or disclose any Confidential
Information, either during or after employment by the Company, except as
required by her duties to the Company, and Employee acknowledges and understands
that the obligation to maintain the confidentiality of the Company's
Confidential Information is unconditional and shall not be excused by any
conduct on the part of the Company except its prior voluntary disclosure of the
information. Upon termination of employment, Employee agrees that (a) all
Confidential Information, including all copies, excerpts and summaries in her
possession or control (whether prepared by the Company, the Employee or others),
and also all other Company property, including keys, credit cards, software,
reports and the like, shall be left with the Company and (b) Employee will stop
use of all Confidential Information. Employee shall not at any time during the
term of this Agreement or thereafter, or in any manner, either directly or
indirectly, divulge, disclose or communicate to any person, firm or corporation
in any manner whatsoever any information concerning any matters affecting or
relating to the business of the Company, including without limiting the
generality of the foregoing, any of its customers, the prices it obtains or has
obtained from the sale of, or at which it sells or has sold, its products, or
any other information concerning the business of the Company, its manner of
operation, its plans, processes, or other data without regard to whether all of
the foregoing matters will be deemed confidential, material, or important, the
parties hereto stipulating that as between them, the same are important,
material, and confidential and gravely affect the effective and successful
conduct of the business of the Company, and the Company's good will, and that
any breach of the terms of this Section 6 shall be a material breach of this
Agreement.
6.5 Limitation; First Refusal. The obligations of Section 6.2 and 6.3
shall not apply to any ideas, discoveries, inventions and improvements for which
no equipment, supplies, facility or trade secret information of the Company was
used, and which was developed entirely on Employee's own time, and (1) which
does not relate (a) directly to the business of the Company or (b) to the
Company's actual or demonstrably anticipated research or development, or (2)
which does not result from any work performed by Employee for the Company.
Employee will, nonetheless, promptly disclose all such ideas, discoveries,
inventions and improvements to the Company and offer to the Company the right of
first refusal to enter into a license or purchase agreement covering the subject
idea, discovery, invention or improvement on terms mutually agreed to by
Employee and the Company. In the event the Company and Employee cannot agree on
terms and Employee receives an offer to enter into a license or purchase
agreement with some other party on terms more favorable to that other party than
the terms offered to the Company, then the Company shall have the right and
Employee shall have the obligation to offer to the Company the idea, discovery,
invention or improvement on such favorable terms. When such an offer is made to
the Company pursuant to the preceding sentence, it must be accepted by the
Company
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within thirty (30) days; or if not accepted, the right of first refusal
hereunder as to that offer shall terminate.
NOTICE: SECTION 6 HEREOF REQUIRES EMPLOYEE TO ASSIGN RIGHTS TO
INVENTIONS TO THE COMPANY OR ITS SUCCESSORS. MINNESOTA STATUTES SS. 181.78
LIMITS THE SCOPE OF AGREEMENTS REQUIRING THE INVENTIONS BE ASSIGNED TO
EMPLOYERS. THE STATUTE STATES THAT SUCH ASSIGNMENT AGREEMENTS DO NOT APPLY:
"TO AN INVENTION FOR WHICH NO EQUIPMENT, SUPPLIES, FACILITY OR TRADE
SECRET INFORMATION OF THE EMPLOYER WAS USED AND WHICH WAS DEVELOPED
ENTIRELY ON THE EMPLOYEE'S OWN TIME, AND (1) WHICH DOES NOT RELATE (a)
DIRECTLY TO THE BUSINESS OF THE EMPLOYER OR (b) TO THE EMPLOYER'S
ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (2)
WHICH DOES NOT RESULT FROM ANY WORK PERFORMED BY THE EMPLOYEE FOR THE
EMPLOYER.
PLEASE NOTE THAT SECTION 6 OF THIS AGREEMENT USES THESE STATUTORY TERMS
TO DEFINE THE INVENTIONS WHICH ARE NOT AUTOMATICALLY ASSIGNED TO THE COMPANY BUT
INSTEAD ARE SUBJECT TO A RIGHT OF FIRST REFUSAL IN FAVOR OF THE COMPANY.
6.6 Assistance to the Company. Employee shall give the Company, at the
Company's expense, all assistance the Company reasonably requires to perfect,
protect, and exercise the rights to all ideas, discoveries, inventions or
improvements acquired by the Company pursuant to the assignment provisions or
the right of first refusal provisions of this Section 6.
6.7 Remedies. The Employee's obligations set forth in Section 6 of this
Agreement shall continue to be binding upon Employee, notwithstanding the
termination of her employment with the Company for any reason whatsoever. Such
obligations shall be deemed and construed as separate agreements independent of
any other provisions of this Agreement. The existence of any claim or cause of
action by Employee against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company or
any or all of such obligations. It is expressly agreed that the remedy at law
for the breach of any such obligation is inadequate and that temporary and
permanent injunctive relief shall be available to prevent the breach or any
threatened breach thereof, without the necessity of proof of actual damages.
7. NOTICES. Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid, with return receipt requested.
Personal delivery to the Company shall mean personal delivery to the Chief
Executive Officer of the Company. Mailed notices
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Employment Agreement
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shall be addressed to the respective addresses shown below. Either party may
change its address for notice by giving written notice according to the terms of
this Section 7.
(a) If to Employee:
Dara Xxxx Xxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
(b) If to the Company:
Rochester Medical Company
Xxx Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
8. GENERAL PROVISIONS.
8.1 Law Governing. This Agreement shall be governed by and construed
according to the laws of the State of Minnesota, except the conflicts of laws
provisions thereof.
8.2 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and still be legal, valid or enforceable.
8.3 Entire Agreement. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements or
understandings, whether written or oral, with respect to the subject matter
hereof. No terms, conditions, warranties, other than those contained herein, and
no amendments or modifications hereto shall be binding unless made in writing
and signed by the parties hereto.
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8.4 Binding Effect. This Agreement shall extend to and be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
representatives, successors and assigns. This Agreement may not be assigned by
Employee.
8.5 Waiver. The waiver by either party hereto of a breach of any term
or provision of this Agreement shall not operate or be construed as a waiver of
a subsequent breach of the same provision by any party or of the breach of any
other term or provision of this Agreement.
8.7 Titles. Titles of the paragraphs herein are used solely for
convenience and shall not be used for interpretation or construing any word,
clause, paragraph, or provision of this Agreement.
8.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the date and year first written above.
"Employee" Rochester Medical Corporation
/s/ Dara Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------- -----------------------------------
Dara Xxxx Xxxxxx Xxxxxxx Xxxxxx,
Chief Executive Officer
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