EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BY AND BETWEEN
MEDICAL INDUSTRIES OF AMERICA, INC.
AND
XXXX X. XXXXXX
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is executed by and between
Medical Industries of America, Inc., a Florida corporation (the "COMPANY") and
Xxxx X. Xxxxxx ("Employee") on July 9, 1999 to be effective as of the
effectiveness of that certain Stock Exchange Agreement by and between the
Company and CyberCare, Inc., a Georgia corporation ("CCI") (the "COMMENCEMENT
DATE").
WHEREAS, the Company and Employee have previously entered into an
oral agreement pursuant to which the Company proposed to engage Employee as its
Senior Vice President in charge of the Company's technology markets and
President of CCI; and
WHEREAS, the Company and Employee desire to enter into this
Agreement to memorialize their oral agreement and to set forth the respective
rights and duties of the parties hereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Employee agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND TITLE. As of the Commencement Date, the Company
employs Employee, and Employee accepts such employment, as a Senior Vice
President of the Company in charge of the Company's technology markets,
divisions and subsidiaries, and as President of CCI, all upon the terms and
conditions set forth herein.
1.2 SERVICES. During the Initial Term and any and all Renewal Terms
(as hereinafter defined), Employee shall faithfully perform his duties in
accordance with this Agreement and the Bylaws of the Company and of CCI, serve
the Company and CCI faithfully and to the best of his ability and devote
substantially all of his business time and attention, knowledge, energy and
skills to the Company and CCI. Employee shall be responsible for the normal
day-to-day management, operation and maintenance of the technology markets
sector of the business and affairs of the Company in accordance with the
Company's annual business plan and the Company's budget, and the business and
affairs of CCI in accordance with CCI's annual business plan and budget. Subject
to the directions of and limitations imposed by the Board
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of Directors, the Chief Executive Officer and/or President of the Company, the
Employee shall be responsible for interpretation and executive implementation of
the corporate policies with respect to its technology markets, systems and
companies as set by the Board of Directors, the Chief Executive Officer and/or
President of the Company, and shall perform all the duties and have and exercise
all rights and powers usually pertaining and attributable, by law, custom, or
otherwise, with respect thereto. Subject to the directions of and limitations
imposed by the Board of Directors of CCI, Employee shall be responsible for
interpretation and executive implementation of the corporate policies with
respect to CCI as set by the Board of Directors of CCI, and shall perform all
the duties and have and exercise all rights and powers usually pertaining and
attributable, by law, custom, or otherwise, with respect thereto. Subject to the
directions of and limitations imposed by the Board of Directors, the Chief
Executive Officer and/or President of the Company, the Employee shall have the
authority to effectuate all business matters with respect to his
responsibilities and to execute such legal instruments as may be necessary to
carry out his duties in the name of the Company and on its behalf. Subject to
the directions of and limitations imposed by the Board of Directors of CCI,
Employee shall have the authority to effectuate all business matters with
respect to his responsibilities and to execute such legal instruments as may be
necessary to carry out his duties in the name of CCI and on its behalf. The
Employee shall, if requested, at each meeting of the Board of Directors of the
Company or CCI, as the case may be, present a report of the business and affairs
of the technology markets, systems, companies, business and affairs of the
Company and/or CCI. Employee shall coordinate and supervise the activities of
all employees of CCI and the Company which are under his control, have the power
to employ and terminate the employment of all such subordinate officers, agents,
clerks, and other employees and have the authority to fix and change, from time
to time, the compensation of all such officers, agents, clerks and other
employees, subject to Board approval.
Notwithstanding anything herein to the contrary, Employee shall be
entitled to engage in or otherwise participate in those activities set forth on
SCHEDULE 1.2 attached hereto so long as it does not interfere with his duties
and responsibilities to the Company and CCI.
1.3 LOCATION. The current principal place of employment and the
location of Employee's principal office shall be at the principal corporate
address of the Company which is presently: 0000 Xxxxx Xxxxxxxx Xxx., Xxxxx 000,
Xxxxxxx Xxxxx, Xxxxxxx (the "Office"); provided, however, Employee shall, when
requested by the Chief Executive Officer and/or President of the Company, the
Board of Directors of CCI, or may, if he determines it to be reasonably
necessary, perform outside of the Office such services as are reasonably
required for the proper execution of his duties under this Agreement.
1.4 DIRECTORSHIP. During the term of this Agreement, Xxxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxx, agree to vote their shares in the Company and
otherwise use their reasonable best efforts to elect Employee as a director of
the Company.
1.5 REPRESENTATIONS. Each party represents and warrants to the other
that he/it has full power and authority to enter into and perform this Agreement
and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Other than as provided
herein, each party represents that no consent or approval of any third party is
required for his/its execution, delivery and performance of this Agreement or
that all consents or approvals of any third party required for his/its
execution, delivery and performance of this Agreement have been obtained.
ARTICLE II
TERM
2.1 TERM. The initial term (the "Initial Term") of Employee's
employment hereunder shall commence as of the Commencement Date and shall
continue through the third (3rd) anniversary of the Commencement Date (the
"Scheduled Termination Date"), unless renewed or earlier terminated pursuant to
the provisions of Article VII of this Agreement. This Agreement shall be renewed
automatically for successive one (1) year terms, after the Scheduled Termination
Date (each, a "RENEWAL TERM"), unless either party provides the other party with
written notice of his/its election not to renew at least thirty (30) days prior
to the Scheduled Termination Date or the last day of the Renewal Term, as
applicable, unless earlier terminated pursuant to Article VII of this Agreement.
The Initial Term and any and all Renewal Terms shall collectively
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comprise the Term of this Agreement (the "Term").
ARTICLE III
COMPENSATION
3.1 BASE SALARY. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term, an annual base salary
of One Hundred Seventy-Five Thousand Dollars ($175,000.00). Such base salary
shall accrue monthly (prorated for periods less than a month) and shall be paid
every two (2) weeks, in arrears, or as otherwise established by the Company with
respect to all of its executive officers. The Company shall review Employee's
job performance annually to determine if the Employee shall be granted an annual
increase in the base salary.
3.2 INCENTIVE COMPENSATION. Employee shall be entitled to such
incentive compensation as approved by the Compensation Committee of the Board of
Directors of the Company.
3.3 NONQUALIFIED STOCK OPTIONS. Upon the execution of this
Agreement, the Company shall grant to Employee nonqualified options to acquire
two hundred thousand (200,000) shares of its common stock (the "Options"),
subject to the following terms and conditions:
(a) The exercise price per each of the Options shall be equal to the
fair market value of a share of Company common stock on the date of grant which,
for purposes of this Section 3.3, shall be the lesser of (i) the average of the
closing bid and asked prices per share of Company common stock on the business
day immediately preceding the Commencement Date; or (ii) One Dollar and 75/00
($1.75) per share.
(b) The Options shall vest in accordance with the following
schedule:
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NUMBER OF
DATE OPTIONS VESTED
---------------------------------------------------------------------
06/01/2000 66,666
---------------------------------------------------------------------
06/01/2001 66,667
---------------------------------------------------------------------
06/01/2002 66,667
---------------------------------------------------------------------
TOTAL 200,000
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(c) The right to exercise the Options shall expire (unless
previously exercised in accordance with the terms of this Section 3.3), on the
third anniversary date of the VESTING of such Options. Vested Options shall be
exercisable by Employee, in whole or in part, on or before such expiration by
payment in full, in cash, by check or any other consideration permitted by
applicable law and agreed to by the Company, to the Company of the aggregate
option price for the Options so acquired.
(d) All unvested Options shall be subject to immediate forfeiture
upon a termination For Cause (as such term is defined in Section 7.1 hereof).
(e) In the event of a termination Without Cause (as such term is
defined in Section 7.2 hereof), all unvested Options shall immediately vest in
full and may be exercised in accordance with the provisions of Section 3.3(c)
above.
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(f) During the Term hereof and for a period of two (2) years
thereafter, Employee shall have the right with respect to any registration of
the Company's common stock (other than a registration inappropriate for the
registration of Options) to have his Options included in such registration.
Notwithstanding any other provision of this Section, if an underwriter advises
the Company in writing that, in such firm's opinion, marketing factors prohibit
or require a limitation of the number of shares to be underwritten, the
underwriter or the Company may exclude the Options in the same proportion, as
nearly as practicable to other selling shareholders of the Company who have
obtained option shares pursuant to an acquisition or otherwise or the
underwriter or the Company may limit the number of Options to be included in the
registration and underwriting to a specified percentage of the Options to be
distributed through the underwriting in the same proportion, as nearly as
practicable, to other selling shareholders of the Company who have obtained
option shares pursuant to an acquisition or otherwise. The Company shall so
advise Employee of the Options which would otherwise be registered and
underwritten under this subsection and the number of shares of Options that may
be included in the registration and underwriting shall be allocated
proportionately among all holders who hold securities. If Employee disapproves
of the terms of any such underwriting, he may elect to withdraw from such
underwriting by written notice to the Company.
3.4 BENEFITS. Employee shall be entitled, during the Term, to the
same medical, hospital, pension, profit sharing, dental, disability and life
insurance coverage, director and officer insurance and benefits as are available
to the Company's senior officers on the Commencement Date, together with the
following additional benefits:
(a) An automobile allowance of five hundred dollars ($500.00) per
month;
(b) The Company's normal vacation allowance in accordance with
Company policy for all employees who are executive officers of the Company, but
at least four (4) weeks annually; and
(c) The Employee will be entitled to participate in any
comprehensive employee benefit plan or program of the Company provided senior
vice presidents of the Company, including but not limited to personal leave,
holidays and all other fringe benefits and perquisites, which may currently be
in place or implemented in the future.
3.5 WITHHOLDING. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article III, shall be
subject to and reduced by any applicable federal, state and local taxes imposed
by law.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 WORKING FACILITIES AND EXPENSES. Employee shall be furnished
with an office at the Office of the Company, or at such other location as agreed
to by Employee and the Company, and other working facilities and secretarial and
other assistance suitable to his position and reasonably required for the
performance of his duties hereunder. The Company shall reimburse Employee for
all of Employee's reasonable expenses incurred by Employee with respect to his
relocation to Southeast Florida as well as reasonable expenses incurred while
employed and performing his duties under and in accordance with the terms and
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conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to the Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code") and applicable
regulations as are in effect from time to time.
4.2 INSURANCE. The Company may secure in its own name or otherwise,
and at its own expense, life, disability and other insurance covering Employee
or Employee and others, and Employee shall not have any right, title or interest
in or to such insurance other than as expressly provided herein. Employee agrees
to assist the Company in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s)
as the Company or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance.
ARTICLE V
ILLNESS OR INCAPACITY
5.1 RIGHT TO TERMINATE. If, during the Term, Employee shall be
unable to perform the essential functions of his job, with or without reasonable
accommodation, for a period exceeding six (6) consecutive months by reason of
physical or mental illness or condition, this Agreement may be terminated by the
Company in its reasonable discretion pursuant to Section 7.2 hereof.
5.2 RIGHT TO REPLACE. If Employee's illness or condition, as defined
below, whether by physical or mental cause, renders him unable for a minimum
period of thirty (30) consecutive calendar days to perform the essential
functions of his job, with or without reasonable accommodation, the Company
shall have the right to designate a person to replace Employee temporarily in
the capacity described in Article I hereof; provided, however, that if Employee
returns to work from such illness or condition within the six (6) month period
following his inability due to such illness or condition, he shall be entitled
to be reinstated in the capacity described in Article I hereof with all rights,
duties and privileges attendant thereto.
5.3 RIGHTS PRIOR TO TERMINATION. Employee shall be entitled to his
full remuneration and benefits hereunder during such illness or condition unless
and until an election is made by the Company to terminate this Agreement in
accordance with the provisions of this Article.
5.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of this
Article V, the term "illness or condition" shall mean Employee's inability to
perform the essential functions of his job, with or without reasonable
accommodation, on a full-time basis due to physical or mental illness as
determined by a qualified, independent physician selected by and compensated by
the Company and approved by the Employee.
ARTICLE VI
CONFIDENTIALITY
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6.1 CONFIDENTIALITY. Employee shall not divulge, communicate, use to
the detriment of the Company or any of its subsidiaries, or for the benefit of
any other business, firm, person, partnership or corporation, during the Term
and for a period of two (2) years thereafter, any "Confidential Information",
pertaining to the Company or any of its subsidiaries including, without
limitation, all (i) data or trade secrets, including processes, formulas or
other technical data; (ii) production methods; (iii) customer lists; (iv)
personnel lists; (v) proprietary information; (vi) financial or corporate
records; (vii) operational, sales, promotional and marketing methods and
techniques; (viii) development ideas, acquisition strategies and plans; (ix)
financial information and records; (x) "know-how" and methods of doing business;
and (xi) computer programs, including source codes and/or object codes and other
proprietary, competition-sensitive or technical information or secrets developed
with or without the help of Employee. Employee acknowledges that any such
information or data he may have acquired was received in confidence and by
reason of his relationship to the Company and/or its subsidiaries. Confidential
Information, data or trade secrets shall not include any information which: (a)
at the time of disclosure is within the public domain; (b) after disclosure
becomes a part of the public domain or is generally known within the industry
through no fault, act or failure to act, error, effort or breach of this
Agreement by Employee; (c) is known to the recipient at the time of disclosure;
(d) is subsequently discovered by Employee independently of any disclosure by
the Company or its subsidiaries; (e) is required by order, statute or regulation
of any governmental authority to be disclosed to any federal or state agency,
court or other body; or (f) is obtained from a third party who has acquired a
legal right to possess and disclose such information.
6.2 NON-REMOVAL OF RECORDS. All documents, papers, materials, notes,
books, correspondence, drawings and other written and graphic records relating
to the business of the Company or any of its subsidiaries which Employee shall
prepare or use, or come into contact with, shall be and remain the sole property
of the Company and, effective immediately upon the termination of the Employee's
employment with the Company for any reason, shall be returned to the Company and
not be removed from the Company's premises without the Company's prior written
consent.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. This Agreement and the employment of
Employee may be terminated by the Company "For Cause" under any one of the
following circumstances:
(a) Employee commits any material act of fraud, misappropriation or
theft against the Company, CCI or any of its subsidiaries;
(b) Employee's default or breach of any material provision of this
Agreement; provided, that Employee shall not be in default or breach hereunder
unless he shall have failed to cure such default or breach within thirty (30)
days after receiving written notice thereof by the Company to Employee.
Notwithstanding the foregoing, Employee may be terminated pursuant to this
provision if he shall have received such written notice from the Company on at
least two (2) prior instances for the same or substantially similar breach or
default (whether or not incurred by Employee);
(c) Employee engages in gross negligence, malfeasance, or
intentional misconduct in the performance of his duties hereunder; provided,
that Employee shall not be in default hereunder unless he shall have failed to
cure such default within thirty (30) days after written notice thereof by the
Company to Employee. Employee may be terminated pursuant to this provision if he
shall have received such written notice
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on at least two prior instances for the same or substantially similar default
(whether or not cured by Employee);
(d) Employee is convicted of a felony offense other than traffic
offenses which do not result in an incarceration of Employee for a period
greater than 60 days;
(e) At the election of Employee; or
(f) Employee fails to operate the Company's technology divisions
and/or CCI in accordance with their annual business plans including, without
limitation, obtaining at least 80 percent of the projected revenues and net
profits, as defined in the annual business plans, and keeping costs and
expenses, as defined in the annual business plans, within such amounts so as not
to exceed the annual budget by 10 percent for costs and expenses of the
Company's technology divisions and/or CCI. Notwithstanding the foregoing, the
requirement of adherence to the budget with respect to projected revenues and
net profits as described above shall not apply to the first year of this
Agreement unless such failure results from gross negligence or intentional
misconduct of Employee.
A termination For Cause under this Section 7.1 shall be effective
(the "Effective Termination Date") as of the date set forth in a written notice
of termination as the last date of Employee employment, delivered in accordance
with the notice provisions of this Agreement.
7.2 TERMINATION WITHOUT CAUSE. This Agreement and the employment of
the Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto;
(b) At the election of the Company (by the Company giving not less
than thirty (30) days advance written notice to Employee) in the event of an
illness or condition described in Article V;
(c) Upon Employee's death;
(d) At the election of Employee in the event that the Company, and
any successor thereof, without Employee's consent, removes Employee from the
office of Senior Vice President of the Company or President of CCI, or in the
event there is a material diminution in Employee's duties and responsibilities
for the Company or CCI, or such duties and responsibilities are otherwise
diminished such that they no longer reflect the duties and responsibilities
customary for a Senior Vice President or President; or
(e) At the election of the Employee if the Company or CCI requires
Employee to relocate his residence outside of Southeast Florida.
In the event that the events or circumstances in 7.2(d) or (e) occur
or arise, the Company shall provide written notice to Employee of such events or
circumstances as soon as reasonably possible.
The Effective Termination Date for purposes of Section 7.2(a) hereof
shall be the date of mutual agreement. The Effective Termination Date for
purposes of Sections 7.2(b), (d) or (e) shall be the date set forth in the
written notice required hereunder and delivered in accordance with the notice
provisions of Article V. The Effective Termination Date for purposes of Section
7.2(c) hereof shall be the date the described event takes place.
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7.3 EFFECT OF TERMINATION FOR CAUSE. If Employee's employment is
terminated "For Cause":
(a) Employee shall be entitled to accrued base salary under Section
3.1 hereof through the Effective Termination Date.
(b) Employee shall be entitled to receive all benefits as would have
been available under Section 3.4 hereof through the Effective Termination Date,
and in accordance with the terms and provisions of any such plan or program
providing such benefits unless otherwise modified pursuant to this Agreement.
(c) Employee shall be entitled to reimbursement for expenses accrued
through the Effective Termination Date in accordance with the provisions of
Section 4.1 hereof.
(d) All unpaid incentive compensation and unvested stock options
under Sections 3.2 and 3.3 hereof, respectively, shall be forfeited except as
same may have been earned prior to the Effective Termination Date.
Except as provided in Article XI, this Agreement shall thereupon
terminate and cease to be of any further force or effect.
7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Employee's employment is
terminated "Without Cause":
(a) Employee shall be entitled to accrued base salary under Section
3.1 hereof through the Effective Termination Date.
(b) Employee shall be entitled to receive all benefits as would have
been available under Section 3.4 hereof through the date which is the earlier of
(i) one (1) year from the Effective Termination Date or (ii) the last day of the
remaining Initial Term or Renewal Term of this Agreement, as the case may be,
which benefits shall be available as and when the same would have been available
under the Agreement had it not been terminated.
(c) Employee shall be entitled to reimbursement for expenses accrued
through the Effective Termination Date in accordance with the provisions of
Section 4.1 hereof.
(d) Employee shall be entitled to receive all amounts of incentive
compensation as would have been payable under Section 3.2 and 3.3 hereof through
the Initial Term or Renewal Term of the Agreement, as the case may be, which
amounts shall be paid as and when the same would have been paid under the
Agreement had it not been terminated. Notwithstanding the foregoing, Employee,
in accordance with Section 3.3(e) of this Agreement, shall become fully vested
in all Options granted under Section 3.3.
(e) Employee shall be entitled to a lump sum severance payment in an
amount equal to One Hundred Seventy-Five thousand dollars ($175,000.00) or such
prorata portion thereof if the remaining Initial Term or Renewal Term of this
Agreement, as the case may be, is less than one (1) year.
Except as provided in Article XI, this Agreement shall thereupon
terminate and cease to be of any further force or effect.
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ARTICLE VIII
RESTRICTIVE COVENANTS
8.1 NONCOMPETITION; NONSOLICITATION. As an inducement to the Company to
execute this Agreement and in order to preserve the goodwill associated with the
business of the Company and in addition to and not in limitation of any
covenants contained in any agreements executed and delivered herewith, Employee
hereby covenants and agrees as follows:
(a) COVENANT NOT TO COMPETE. During the term of this Agreement and for a
period of two (2) years after the Effective Termination Date of a Termination
For Cause, Employee will not directly or indirectly, within the Territory, act
as an officer, manager, executive, consultant, advisor or agent or controlling
shareholder, partner or member to any business or otherwise engage in any
business in which his duties at or for such business or entity involve, in any
respect, such services, products or business which are competitive, either
directly or indirectly, with the Business, as defined herein, nor shall employee
become employed by such a business in a capacity which would require Employee to
carry out, in whole or in part, either directly or indirectly, the duties
Employee has performed or is expected to perform for the Company and/or CCI or
which are competitive in any respect with the Business or otherwise engage in
any practice the purpose of which is to evade the provisions of this covenant
not to compete or to commit any act which adversely affects the Company, CCI or
any subsidiary of the Company or their business. For purposes of this Article
VIII, the "Business" shall be defined as creating, designing, developing,
owning, leasing and/or operating e-commerce health care applications, processes,
methods, products and/or services. For purposes of this Article VIII, the
"Territory" shall be defined as the United States of America.
(b) NONSOLICITATION; EMPLOYEES. Employee agrees that during the Term of
this Agreement and for two (2) years after the Effective Termination Date of a
termination For Cause, Employee will not offer employment to any person who was
employed by the Company, CCI or any subsidiary of the Company as of the
Effective Termination Date of a termination For Cause without the prior written
consent of the Company.
(c) NONSOLICITATION; CUSTOMERS. Employee agrees that, during the Term of
this Agreement and for two (2) years after the Effective Termination Date of a
Termination For Cause, Employee will not solicit customers, clients or patients
of the Company, CCI or any subsidiary of the Company, with a view to interfering
or competing with the business of the Company, CCI or any of their subsidiaries
or providing any product or service that is provided by the Company, CCI or any
of their subsidiaries.
Notwithstanding the foregoing, the restrictive covenants shall not
prohibit the ownership of securities of corporations which are listed on a
national securities exchange or traded in the national over-the-counter market
in an amount which shall not exceed 5% of the outstanding shares of any such
corporation. The parties agree that the Company and CCI may sell, assign or
otherwise transfer this covenant not to compete, in whole or in part, to any
person, corporation, firm or entity that purchases all or substantially all of
the Company's or CCI's assets or stock. In the event a court of competent
jurisdiction determines that the provisions of the restrictive covenants are
excessively broad as to duration, geographical scope or activity, it is
expressly agreed that the restrictive covenants shall be construed so that the
remaining provisions shall not be affected, but shall remain in full force and
effect, and any such over broad provisions shall be deemed, without further
action on the part of any person, to be modified, amended and/or limited, but
only to the extent necessary to render the same valid and enforceable in such
jurisdiction.
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8.2. EQUITABLE RELIEF FOR VIOLATIONS. Employee agrees that the
provisions and restrictions contained in this Section are necessary to protect
the legitimate continuing interests of the Company and CCI and that any
violation or breach of these provisions will result in irreparable injury to the
Company and CCI for which a remedy at law would be inadequate and that, in
addition to any relief at law which may be available to the Company or CCI for
such violation or breach and regardless of any other provision contained in this
Agreement, the Company and CCI shall be entitled to injunctive and other
equitable relief as a court may grant after considering the intent of this
Section.
8.3 SEVERABILITY. If any covenant or provision contained in Article
VIII is determined to be void or unenforceable in whole or in part, it shall not
be deemed to affect or impair the validity of any other covenant or provision.
If, in any arbitration or judicial proceeding, a tribunal shall refuse to
enforce all of the separate covenants deemed included in this Article VIII, then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
ARTICLE IX
MISCELLANEOUS
9.1 NO WAIVERS. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
9.2 NOTICES. Any notice to be given to the Company and Employee
under the terms of this Agreement may be delivered personally, by telecopy,
telex or other form of written electronic transmission, or by registered or
certified mail, postage prepaid, and shall be addressed as follows:
IF TO THE COMPANY: Medical Industries of America, Inc.
0000 X. Xxxxxxxx Xxx., #000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, President
IF TO EMPLOYEE: Xxxx X. Xxxxxx
C/O CyberCare, Inc.
000 00xx Xxxxxx, X. X., #X-000
Xxxxxxx, XX 00000
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
9.3 SEVERABILITY. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
9.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company under this
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Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, including the survivor upon any merger, consolidation,
share exchange or combination of the Company with any other entity. Employee
shall not have the right to assign, delegate or otherwise transfer any duty or
obligation to be performed by him hereunder to any person or entity provided,
however, that Employee's heirs shall be entitled to all benefits otherwise due
Employee pursuant to this Agreement in the event of a termination of this
Agreement for any reason whatsoever.
9.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings regarding the subject matter of
this Agreement between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination or attempted waiver
shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced. This Agreement was
the subject of negotiation by the parties hereto and their counsel. The parties
agree that no prior drafts of this Agreement shall be admissible as evidence
(whether in any arbitration or court of law) in any proceeding which involves
the interpretation of any provisions of this Agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
9.7 SECTION HEADINGS. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
9.8 FURTHER ASSURANCES. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
9.9 GENDER. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "he" or "his" or "it" or "its" whenever applicable.
Words in the singular shall be read and construed as though in the plural and
words in the plural shall be read and construed as though in the singular in all
cases where they would so apply.
9.10 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
ARTICLE X
INTELLECTUAL PROPERTY
10.1. IDEAS AND INVENTIONS. Employee agrees to assign to the Company
all Employee's right, title and interest in or to any and all ideas, concepts,
know-how, techniques, processes, methods, applications, inventions, discoveries,
developments, innovations and improvements ("Inventions") which relate in any
respect to the Company, CCI or any subsidiary of the Company or their businesses
as they now or hereafter exist which Employee conceives, creates, designs,
develops and/or makes, whether alone or with others, during Employee's
employment with the Company and/or CCI. Employee agrees to disclose all such
Inventions to the Company promptly, and to provide all assistance reasonably
requested by the Company in the preservation of its interests in the Inventions,
such as by executing documents, testifying, etc., such assistance to be provided
at the Company's expense but without any additional compensation to Employee,
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unless Employee is called upon to render such assistance after the termination
of this Agreement for any reason, at which time Employee shall be entitled to a
fair and reasonable rate of compensation for such assistance. Employee shall, at
the request and expense of the Company, assist the Company or its nominees to
obtain patents for such Inventions for which the Company, CCI or any subsidiary
of the Company has or obtains any right, title or interest in any countries
throughout the world. Such Inventions shall be the property of the Company or
its nominees, whether patented or not. Employee shall and does, without charge
to the Company, assign to the Company, all Employee's right, title, and interest
in and to such Inventions, including without limitation patents and patent
applications and reissues thereof. Employee agrees to execute, acknowledge, and
deliver any instruments confirming the complete ownership by the Company of such
Inventions. Such assignments shall include the right to xxx for infringement.
10.2. COPYRIGHTS. Employee agrees that any Invention or other work
(collectively hereinafter called "Work") prepared, developed or produced by
Employee, whether alone or with others, and which relates in any respect to the
Company, CCI or any subsidiary of the Company or their businesses and for which
is eligible for copyright protection in the United States or elsewhere shall be
a work made for hire. If any such Work is deemed for any reason not to be a work
made for hire, Employee shall assign all right, title and interest in the
copyright in such Work, and all extensions and renewals thereof, to Company, and
agrees to provide all assistance reasonably requested by Company in the
establishment, preservation and enforcement of its copyright in such Work, such
assistance to be provided at Company's expense but without any additional
compensation to Employee, at which time Employee shall be entitled to a fair and
reasonable rate of compensation for such assistance. Employee agrees to waive
all moral rights relating to the Work developed or produced, including without
limitation any and all rights of identification of authorship and any and all
rights of approval, restriction or limitation on use or subsequent
modifications.
ARTICLE XI
SURVIVAL
11.1 SURVIVAL. The provisions of Articles VI, VII, VIII, and IX of
this Agreement shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
MEDICAL INDUSTRIES OF AMERICA, INC.
a Florida corporation
By:________________________________
Title: ____________________________
EMPLOYEE
___________________________________
Xxxx X. Xxxxxx
CONSENT
The undersigned hereby agree and consent to be bound by the provisions of
Section 1.4 of this Agreement.
___________________________________
Xxxxxxx X. Xxxxxxx
___________________________________
Xxxx X. Xxxxxxx
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