EXHIBIT 10.31b
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of the 29th day of January, 1998, between Luther Medical
Products, Inc., a California corporation (the "Company"), and XXXXX XXXXX (the
"Executive").
WHEREAS, the Board of Directors (the "Board") of the Company desires that
the Executive remain as President and Chief Executive Officer of the Company;
and
WHEREAS, the Executive desires to continue to serve the Company on the
terms herein provided, which terms expressly supersede the terms of the
Employment Agreement, dated May 31, 1995, between the Company and the Executive;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Employment. The Company hereby agrees to employ the Executive and the
----------
Executive hereby agrees to serve the Company, on the terms and conditions set
forth herein for an unspecified period of time. Notwithstanding any other
provision of this Agreement, and unless this Agreement has been terminated in
accordance with the provisions of Sections 6 and 7, below, (in which event the
provisions of Section 8, below, shall control), either the Company or the
Executive may, at any time, advise the other party, in writing, of its or his
decision to terminate the employment relationship set forth herein by providing
to the other party a written notice thereof in the manner specified in Section
10, below. Upon such occurrence, the employment relationship shall terminate
12 months following the date on which such notice, pursuant to the provisions of
Section 10, shall be deemed to have been given.
2. Position; Duties; Place of Performance. The Executive shall serve as
--------------------------------------
the President and Chief Executive Officer of the Company, reporting only to the
Board, and shall have supervision and control over, and responsibility for, the
general management and operation
-1-
of the Company, and shall have such other powers and duties as may from time to
time be prescribed by the Board, provided that such duties are consistent with
the Executive's position as the senior executive officer in charge of, among
other items, the general management of the Company. During the term of this
Agreement, the Executive shall devote substantially all his working time and
efforts to the business and affairs of the Company.
The Company shall not, without the written consent of the Executive,
relocate or transfer the facilities at which the Executive performs his duties
for the Company to a location outside of the geographic boundaries of the
County of Orange, State of California. Any such alternative facilities, whether
within or without such geographical boundaries shall be no less suited for the
performance of the Executive's duties hereunder than the current principal
executive offices of the Company.
The Executive's performance under this Agreement may be excused and the
Executive may terminate this Agreement without recourse if (i) the Executive's
duties hereunder are altered such that they are no longer consistent with the
Executive's position and duties (as set forth above) or (ii) the Company
relocates or transfers its facilities in a manner or to a location at variance
with the terms of the Agreement set forth in the preceding paragraph.
3. Compensation and Related Matters.
--------------------------------
(a) Base Salary. During each year that this Agreement is effective, the
-----------
Company shall pay to the Executive an annual base salary ("Base Salary") of not
less than $150,000, all payable in substantially equal semi-monthly
installments; provided, however, that the Base Salary (including the initial
Base Salary) shall be subject to cost of living increases in the manner
hereinafter set forth. The Base Salary shall be adjusted annually to reflect
the increase, if any, in the cost of living by adding to the initial or then-
current Base Salary, as relevant, an amount obtained by multiplying the then-
current Base Salary by a percentage increase in the
-2-
level of the Consumer Price Index for the LA-Long Beach, Anaheim Metropolitan
Area (the "CPI"), as reported by the Bureau of Labor Statistics of the United
States Department of Labor, as follows:
(i) for the Agreement period of December 6, 1995, through December
5, 1996, the percentage increase in the level of the CPI between November
of 1994 and November of 1995;
(ii) for the Agreement period of December 6, 1996, through December
5, 1997, the percentage increase in the level of the CPI between November
of 1995 and November of 1996;
(iii) for the Agreement period of December 6, 1997, through December
5, 1998, the percentage increase in the level of the CPI between November
of 1996 and November of 1997; and
(iv) for the Agreement period commencing December 6, 1998, and for
each subsequent anniversary of such date, the Base Salary shall be adjusted
using the same principles set forth above.
Any increase in Base Salary not resulting from any such cost of living
adjustments or other compensation granted by the Compensation Committee of the
Board (the "Compensation Committee") shall in no way limit or reduce any other
obligation of the Company hereunder and, once established at an increased
specified rate, the Executive's Base Salary hereunder
-3-
shall not thereafter be reduced. The Compensation Committee shall review the
Base Salary annually and shall cause the Base Salary and other compensation to
be increased, if appropriate, in relation to the Executive's performance and
progress of the Company.
(b) Warrants. During the term of this Agreement, the Board may, but shall
--------
not be required to, grant to the Executive warrants to purchase shares of the
Company's common stock, no par value per share. Such grants, if any, shall be
appropriate in relation to the Executive's performance and progress of the
Company.
(c) Bonus Payments. In addition to Base Salary, the Executive shall be
--------------
entitled to receive bonus payments as the Compensation Committee may determine
in accordance with the Company's past practice, if any, pursuant to the
Company's bonus plan, if, when, and as adopted and as the same thereafter may be
amended or modified from time to time (the "Plan"); provided, however, that such
bonus payments, if any, shall be appropriate in relation to the Executive's
performance and progress of the Company.
(d) Expenses. During the term of his employment hereunder, the Executive
--------
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him (in accordance with the policies and procedures presently
established by the Board for the Company's senior executive officers) in
performing services hereunder, provided that the Executive properly accounts
therefor in accordance with Company policy.
(e) Vacations. The Executive shall be entitled to the number of paid
---------
vacation days in each Company fiscal year determined by the Compensation
Committee from time to time for its senior executive officers, but not less than
three weeks in any Company fiscal year (prorated in any Company fiscal year
during which the Executive is employed hereunder for less than the entire such
year in accordance with the number of days in such Company fiscal year during
which he is so employed). The Company's fiscal year commences July 1 and
-4-
concludes June 30. The Executive shall also be entitled to all paid holidays
given by the Company to its senior executive officers.
4. Offices. During the term of this Agreement, the Board shall cause the
-------
Executive to be nominated, and the Company shall use its best efforts to cause
the Executive to be elected, to the Board; provided, that the Executive shall
not have provided written notice of his intention to the contrary. The
Executive agrees to serve as a director of the Company and each of its
subsidiaries, whether now owned or acquired during the term of this Agreement,
and in one or more executive offices of each of such subsidiaries, provided he
is indemnified for serving in any and all such capacities on a basis no less
favorable than is currently provided by the Company's Articles or By-laws.
5. Unauthorized Disclosure.
-----------------------
(a) During the period of his employment hereunder, the Executive shall not,
without the written consent of the Board or a person authorized thereby,
disclose to any person, other than an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as a senior executive officer of the
Company, any material confidential information obtained by him while in the
employ of the Company with respect to any of the Company's products,
improvements, formulas, designs or styles, processes, customers, methods of
distribution, or methods of manufacture, the disclosure of which he knows will
be materially damaging to the Company; provided, however, that confidential
information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by persons engaged
in the same business or a business similar to that conducted by the Company.
For the period
-5-
ending two years following the termination of employment hereunder, the
Executive shall not disclose any confidential information of the type described
above.
(b) The foregoing provisions of this Section 5 shall be binding upon the
Executive's heirs, successors, and legal representatives.
6. Termination. The Executive's employment hereunder may be terminated
-----------
without any breach of this Agreement only under the following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon his
-----
death.
(b) Disability. If, as a result of the Executive's incapacity due to
----------
physical or mental illness, the Executive shall have been absent from his duties
hereunder on a full time basis for 90 consecutive calendar days, and within 30
days after written notice of termination is given (which may occur only after
the end of such 90-day period) shall not have returned to the performance of his
duties hereunder on a full-time basis, the Company may terminate the Executive's
employment hereunder.
(c) Cause. The Company may terminate the Executive's employment hereunder
-----
for Cause. For purposes of this Agreement, the Company shall have "Cause" to
terminate the Executive's employment hereunder upon (i) the willful and
continued failure by the Executive substantially to perform his duties hereunder
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness) after demand for substantial performance has been
delivered by the Board specifically identifying the manner in which the Board
believes the Executive has not substantially performed his duties, or (ii) the
willful engaging by the Executive in misconduct that is materially injurious to
the Company, monetarily or otherwise, or (iii) the willful violation by the
Executive of the provisions of Section 5 hereof, provided that such violation
results in material injury to the Company. For purposes of this paragraph, no
act, or failure to act, on the Executive's part shall be considered "willful"
unless
-6-
done, or omitted to be done, by him not in good faith and without reasonable
belief that his action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution, duly adopted by the affirmative vote of not
less than majority of the entire membership of the Board of a meeting of the
Board called and held for such purpose (after reasonable notice to the Executive
and an opportunity for him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board the Executive was
guilty of conduct set forth above in clause (i), (ii), or (iii) of the second
sentence of this subparagraph, and specifying the particulars thereof in
detail.
(d) Termination by the Executive. The Executive may terminate his
----------------------------
employment hereunder if (i) the Company sells all or substantially all of its
assets, (ii) a "Change of Control of the Company" shall occur, or (iii) if his
health should become impaired to an extent that makes the continued performance
of his duties hereunder hazardous to his physical or mental health or his life;
provided, however, that the Executive shall have furnished the Company with a
written statement from a qualified doctor to such effect; and provided, further,
that, at the Company's request and expense, the Executive shall submit to an
examination by a doctor selected by the Company and such doctor shall have
concurred in the conclusion of the Executive's doctor.
For purposes of this Agreement, a "change in control of the Company" shall
mean a change in control of a nature that would be required to be reported in
response to Item 5(f) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided,
however, that such "person" (as such term is used in Section 13(d) and 14(d) of
the Exchange Act), other than the Company or any "person" who on
-7-
the date hereof is a director or officer of the Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 80% or more of the
combined voting power of the Company's then outstanding securities.
7. Notice of Termination; Date of Termination. Any termination of the
------------------------------------------
Executive's employment by the Company or by the Executive (other than
termination pursuant to Subsection 6(c), above) shall be communicated by
written Notice of Termination to the other party hereto (which Notice of
Termination shall be delivered in conjunction with the resolution referenced in
Subsection 6(c) for a termination pursuant to Subsection 6(c), above). For
purposes of this Agreement, a "Notice of Termination" shall mean a notice that
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
"Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death; (ii) if the Executive's
employment is terminated pursuant to Subsection 6(b), above, 30 days after
Notice of Termination is given (provided that the Executive shall not have
returned to the performance of his duties on a full-time basis during such 30-
day period); (iii) if the Executive's employment is terminated pursuant to
Subsection 6(c), above, the date specified in the Notice of Termination; and
(iv) if the Executive's employment is terminated for any other reason, the date
on which a Notice of Termination is given; provided, that if within 30 days
after any Notice of Termination is given, the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award, or
-8-
by a final judgment order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected).
8. Compensation Upon Termination or During Disability.
--------------------------------------------------
(a) If the Executive's employment shall be terminated by reason of his
death, the Company shall pay to such person as he shall designate in a notice
filed with the Company, or, if no such person shall be designated, to his estate
as a lump sum death benefit, his full Base Salary to the date of his death in
addition to any payments the Executive's spouse, beneficiaries, or estate may
be entitled to receive pursuant to any pension or employee benefit plan or life
insurance policy then maintained by the Company, and such payments shall fully
discharge the Company's obligations hereunder.
(b) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Executive shall continue to receive his full Base Salary and bonus payments
unless and until the Executive's employment is terminated pursuant to
Subsection 6(b) hereof, or until the Executive terminates his employment
pursuant to Subsection 6(d)(iii) hereof, whichever first occurs. After
termination, the Executive shall be paid 50% of his Base Salary, at the rate in
effect at the time Notice of Termination is given, for the one-year period
thereafter.
(c) If the Executive's employment shall be terminated for Cause, the
Company shall pay the Executive through the Date of Termination his full Base
Salary, at the rate in effect at the time Notice of Termination is given, and
the Company shall have no further obligations to the Executive under this
Agreement.
(d) If the Company shall terminate the Executive's employment for any
reason other than pursuant to Subsections 6(a), 6(b), or 6(c) hereof (it being
understood that a purported termination pursuant to Subsection 6(b) or 6(c)
hereof that is disputed and finally
-9-
determined not to have been proper shall be a termination by the Company in
breach of this Agreement), or if, within 90 days of the occurrence of an event
specified in Subsection 6(d)(i) or 6(d)(ii) hereof, the Executive terminates his
employment hereunder, or, if within such 90-day time period, the Company, or any
successor-in-interest thereof, shall terminate the Executive's employment
hereunder for any reason, then the Company shall pay the Executive, through the
Date of Termination, his full Base Salary at the rate in effect at the time
Notice of Termination is given and in lieu of any further Base Salary payments
to the Executive for periods subsequent to the Date of Termination, the Company
shall pay as severance pay to the Executive on the fifth day following the Date
of Termination, a lump sum amount equal to 100% of the annual Base Salary at the
highest rate in effect during the 12 months immediately preceding the Date of
Termination.
9. Successors; Binding Agreement.
-----------------------------
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to compensation from the Company in the same amount and on the same terms as if
this Agreement were terminated pursuant Section 8(d), above, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that executes and
-10-
delivers the agreement provided for in this Section 9 or that otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall inure
to the benefit of and be enforceable by the Executive's devisee, legatee, or
other designee or, if there be no such designee, to the Executive's estate.
10. Notice. For purposes of this Agreement, notices and all other
------
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Xxxxx Xxxxx
00000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
If to the Company:
Luther Medical Products, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be modified,
-------------
waived, or discharged, unless such waiver, modification, or discharge is agreed
to in writing signed by the Executive and such officer as may be specifically
designed by the Board. No waiver by either party hereto of, or in compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or representa-
-11-
tions, oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party that are not set forth expressly in this
Agreement. The validity, interpretation, construction, and performance of this
Agreement shall be governed by the laws of the State of California.
12. Validity. The invalidity or unenforceability of any provision or
--------
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Counterparts. This Agreement may be executed in several counterparts,
------------
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Arbitration. Any dispute or controversy arising under or in
-----------
connection with this Agreement shall be settled exclusively by arbitration in
Orange County, California, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, that the Company
shall be entitled to seek a restraining order or injunction in any court of
competent jurisdiction to prevent any continuance of any violation of Section 5
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
LUTHER MEDICAL PRODUCTS, INC.
/s/ XXXXX XXXXX By: /s/ XXXXXXX XXXXXXX
_______________________________ _______________________________
XXXXX XXXXX Xxxxxxx Xxxxxxx
Member, Board of Directors
By: /s/ XXXX XXXXXX
_______________________________
Xxxx Xxxxxx
Member, Board of Directors
-12-
