EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of March 25, 2005, between XXXXXX X.
XXXXXXXX, residing at 00 Xxxxxxxx Xxxx Xxxx, Xxxxx Xxxxxx, XX 00000
("Employee"), and SALIVA DIAGNOSTIC SYSTEMS, INC., a corporation having its
current office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("the Company").
WHEREAS, the parties hereto desire to enter into this Agreement in order to set
forth the terms pursuant to which the Company will employ the Employee and the
Employee will serve as an employee of the Company.
NOW THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment
The Company agrees to employ the Employee, and the Employee hereby agrees to
such employment, subject to the terms and conditions set forth in this
Agreement.
2. Term
The employment of Employee shall be for a period of two (2) years commencing on
the date of this Agreement, renewable annually thereafter without further action
of the parties, provided that either party can terminate the employment at any
time, for any reason, upon 90 days' notice (the OEmployment PeriodO).
3. Position and Duties
The Employee shall serve as Chairman of the Board of Directors and Chief
Executive Officer, to perform the usual duties of said offices, and shall have
responsibility, subject to direction of the Board of Directors, for
participating in the management and direction of the Company's business and
operations, and shall perform such specific other tasks consistent with such
positions as may from time to time be assigned to him by the Board of Directors.
The Employee shall devote not less than 80% of his business time to the
performance of his duties hereunder, and shall devote his labor, skill,
attention and best ability in a manner that will faithfully and diligently
further the business and interests of the Company. Upon the commencement of the
Employment Period, the Employee shall fulfill such general management duties and
responsibilities as are consistent with the position of Chief Executive Officer.
In his capacity as Chief Executive Officer, the Employee shall endeavor to, and
shall be given all necessary support (including financial and administrative
support) by the Company to (i) identify markets for the Company's products and
services; (ii) maintain, expand, and improve the Company's profile in the
financial markets; (iii) develop strategies and operational plans for bringing
the Company products to market; (iv) identify potential business partners for
strategic or marketing alliances; (v) identify potential senior executives; (vi)
establish budgets and control costs with regard to the foregoing; and (vii)
implement the Company's business strategies.
Employee shall primarily work out of a location of his selection in
Massachusetts. The Employee agrees that he will travel to whatever extent it is
reasonably necessary in the conduct of the Company's business; provided,
however, that the Employee shall not be required directly or indirectly to
relocate without his consent.
4. Indemnification
(a) Subject to the provisions of the Company's Certificate of Incorporation, as
amended from time to time, the Company shall indemnify the Employee to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, for all amounts (including, without
limitation, judgments, fines, settlement payments, expenses, and attorney's
fees) actually and necessarily incurred or paid by the Employee in connection
with any action, suit, investigation, or proceeding arising out of or relating
to the performance by the Employee of services for, or the acting by Employee as
an officer or employee of, the Company, or any other person or enterprise at the
Company's request provided that he acted in good faith, for a purpose which he
reasonably believed to be in the best interests of the Company and, in criminal
actions or proceedings, in addition, had no reasonable cause to believe that his
conduct was unlawful. The Employee's expenses incurred in any such action, suit,
investigation or proceeding shall be advanced as incurred upon an undertaking by
the Employee to repay such expenses if they are subsequently finally adjudicated
and not indemnifiable.
(b) No indemnification may be made to or on behalf of the Employee if a judgment
or final adjudication adverse to the Employee establishes that his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he personally
gained in fact a financial profit or other advantage to which he was not legally
entitled.
(c) The Company shall use its best efforts to obtain appropriate levels of D&O
insurance as soon as possible as well as other insurance for general business
and product liability insurances.
5. Compensation and Benefits
A. Base Salary
As compensation for the Employee's services hereunder during the Employment
Period, the Company shall pay the Employee a temporary base salary at the annual
rate of one hundred twenty thousand dollars ($120,000). Said base salary shall
increase to the annual rate of One Hundred Eighty Thousand and 00/100 Dollars
($180,000.00) upon the closing of a financing for the Company with gross
proceeds of at least three million dollars ($3,000,000). Any base salary payable
hereunder shall be paid in regular intervals in accordance with the Company's
payroll practices, but no less frequently than once each month. The Board of
Directors may determine, from time to time, in its sole discretion, to pay the
Employee bonuses or additional compensation. The Employee shall be entitled to
participate in all fringe benefits the Company provides for its employees
generally, and such other benefits as the Company provides generally for its
senior executives. Until such benefit programs are adopted, the Company shall
reimburse the Employee for 75% of Health Insurance and for up to $2,000/yr of
Life Insurance premiums.
B. Stock Options
The Company shall grant 550,000 options to Employee to purchase the common stock
of the Company (the OCommon StockO) upon execution of this Agreement, as
follows:
(1) Stock options, vested as of the date hereof, exercisable from June 1, 2005
until June 1, 2015, entitling the Employee to purchase 100,000 shares of the
Company's common stock ("Common Stock") at an exercise price of $ 0.10-per
share.
(2) Stock options (the "Options") to acquire 450,000 shares of Common Stock.
Only if the Employee remains employed as of a vesting date, the Options shall
vest in three equal amounts annually, commencing on October 1, 2005 at which
time one-third, (150,000) of the Options shall vest, and on each of the two
anniversaries thereafter, an additional one-third of the Options shall vest,
provided that, if Employee is terminated without Cause within six months of a
vesting date, all Options due to vest as of such date shall vest as of the date
of termination. All vested Options shall terminate ten years from issuance. The
exercise price shall be equal to the lessor of (i) 66-2/3% of the price per
share of Common Stock as established in any Company offering and sale of Common
Stock occurring prior to April 30, 2006, and (ii) $1.00 per share. In the event
of a termination of Employee's employment for any reason other than for Cause,
Employee shall have until their expiration to exercise any vested portion of an
Option. In the event of an acquisition or change in control of the Company, all
unvested options shall immediately vest.
C. Bonus
The Employee's performance shall be reviewed by the Board no less frequently
than annually and the Board shall have, at its discretion, the right to grant
additional stock options, increase base salary, or provide a cash bonus. The
Employee shall not vote on matters specifically and solely related to his
compensation. The Board is expected to provided performance guidelines and
strategic goals consistent with the Company's mission, objectives, and
resources. A Compensation Committee of the Board will compare the overall
Executive Compensation Program of the Company versus its competition and similar
businesses.
D. Expense Reimbursement
The Company shall promptly pay the reasonable expenses incurred by the Employee
in the performance of his duties hereunder, including, without limitation, those
incurred in connection with business-related travel, telecommunications, and
entertainment, or, if such expenses are paid directly by the Employee, shall
promptly reimburse the Employee for such payment, provided that Employee has
properly accounted therefore in accordance with the Company's written policy of
which the Employee has had reasonable prior notice.
E. Portable or Cellular Telephone
The Company shall reimburse the Employee for business-related expenses incurred
in the use of a portable or cellular telephone.
6. Termination
Notwithstanding any other provisions of this Agreement, the Employee's
employment may be terminated:
A. Constructive Termination. If the Company moves its office more than fifty
(50) miles, reduces the Employee's title, duties or compensation, the Employee
may treat such action as a termination of his employment without cause and shall
be entitled to all rights set forth in paragraph E of this Section.
B. For Cause. By the Company for Cause upon notice to the Employee. "Cause"
shall mean the Employee's having engaged in fraud, embezzlement, theft,
commission of a felony or, except as may be required by law or upon advice of
counsel, his having been proven to have made an intentional unauthorized
disclosure with the knowledge that such disclosure would materially harm the
Company of trade secrets or other proprietary information of the Company or a
subsidiary in violation of written policies regarding disclosure of trade
secrets and such information, and in each case such disclosure shall have
damaged the Company or s subsidiary in a material manner.
C. Disability By the Company upon thirty (30) days notice to the Employee, if he
should be prevented by illness, accident or other disability (mental or
physical) from discharging his duties hereunder for a period of time which would
entitle him to disability payments under any long-term disability policy held by
or paid for by the Company or, if no such policy is then in effect, for one or
more periods totaling 90 work days during any consecutive twelve (12) month
period. In the event of such termination the Company shall pay the Employee an
amount each month for twenty-four (24) months, commencing with the month of his
termination, equal to (i) his highest salary during the twelve (12) month period
ending with the month of his termination, minus (ii) the amount actually
received by the Employee for such month under any long-term disability policy
held by or paid for by the Company.
D. Death. In the event of Employee's death during the term of his employment,
the Company's obligation to pay further compensation hereunder shall cease
forthwith, except that Employee's legal representative shall be entitled to (a)
receive his monthly compensation for the period up to the last day of the month
in which such death shall have occurred and (b) receive on behalf of the
Employee's estate such benefits as to which the Employee may be entitled under
then existing; benefit policies and programs.
E. Not for Cause/Severance. By the Company other than for Cause in which event
the Company shall pay to the Employee an amount equal to six (6) months salary
as severance compensation (without regard to compensation or benefits the
Employee receives from any other source). The Employee shall be eligible for all
benefits during this 6 month period including bonuses, vesting of stock options,
health care insurance and other fringe benefits that have been ongoing prior to
the written notice(without regard to compensation or benefits the Employee
receives from any other source). The Company may elect to pay such severance
compensation in a lump sum or in equal payments over a period of not more than
six (6) months. If the Employee leaves the employ of the Company voluntarily as
a result of a breach of this Agreement by the Company, there having been as of
the date of the Company's breach no breach of this Agreement by the Employee
which has not been cured or waived, then the Employee's termination of
employment shall be deemed to have been a termination by the Company other than
for Cause. The Employee may treat reduction in rank or responsibilities as
termination of him without cause.
Notwithstanding any of the foregoing provisions of this Section 6, if the
Employee is indebted to the Company, the severance pay or other compensation
obligations of the Company shall be applied first to such indebtedness, but only
in the amount and to the extent that the Employee does not dispute, the excess,
if any, will be paid to said Employee and, in any event, the Employee shall
remain liable for any excess of his indebtedness to the Company over any amounts
owed by the Company. In addition, upon termination of the Employee's employment
(other than a voluntary termination by the Employee) all loans, expense
reimbursements and other amounts owed by the Company to the Employee (other than
severance compensation) shall become immediately due and payable.
7. Compensation Upon Termination
Upon termination of this Agreement for any reason, the Company shall promptly
compensate the Employee (or, in the event of the Employee's death, his surviving
spouse, if any, or his estate) for all unreimbursed business expenses in
accordance with the Company's expense reimbursement policy in effect at the time
the expenses were incurred.
8. Nondisclosure of Proprietary/Confidential Information
The Employee acknowledges that he will have access to information about the
Company and his employment with the Company shall, throughout the Employment
Period, bring him into close contact with many confidential affairs of the
Company, its subsidiaries and affiliates, and their respective customers,
including, without limitation, information proprietary to the Company, trade
secrets, and other confidential material, which information is not readily
available to the public and all of which is highly confidential and proprietary
and was developed at great effort and expense (such material, "Confidential
Information"). In recognition of the foregoing, during the Employment Period and
for a period of one (1) year thereafter, regardless of the reason for any
termination of employment (whether voluntary or involuntary and whether for
Cause or otherwise), the Employee shall not, without the written consent of the
Shareholders of the Company or its delegate, disclose, or use or make available
for anyone to use (except in the course of his employment hereunder and in
furtherance of the business of the Company, its subsidiaries, or its affiliates)
any Confidential Information and the Employee shall during the continuance of
his employment by the Company use his best efforts to prevent the unauthorized
publication or misuse of any Confidential Information; provided, however, that
Confidential Information shall not include any information (i) known generally
to the public (other than as a result of unauthorized disclosure by the
Employee) or (ii) developed by the Employee without violating any of the
provisions of this Agreement.
The Employee agrees that upon termination of his employment with the Company for
any reason, voluntary or involuntary, with or without Cause, he will immediately
return to the Company all Confidential Information within his possession (or
under his control), and shall not at any time thereafter copy or reproduce the
same.
9. Restrictive Covenant
(a) Employee recognizes and acknowledges that during employment the Employee
will have access to, learn, be provided with, and, in some cases, will prepare
and create certain confidential proprietary business information, including, but
not limited to, client and customer information and customer lists, all of which
are of substantial value to the Company's business. The Employee agrees that in
addition to any other limitation, for a period of twelve (12) months after the
termination of employment hereunder by him or for Cause, the Employee will not,
on his behalf or on behalf of any other person, firm, or corporation, call on
any of the Employer's customers, or any of its affiliates or subsidiaries for
the purpose of soliciting and/or providing to any of these customers any
non-public customer information relating to the Company's services, nor will the
Employee in any way, directly or indirectly, for himself, or on behalf of any
other person, firm, or corporation competing with the Company, solicit, divert,
or take away any customers of the Employer, its affiliates, or its subsidiaries.
In the event of an actual or threatened breach by the Employee of the provisions
of this paragraph, the Company shall be entitled to injunctive relief
restraining the Employee from the breach or threatened breach. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
available to the Company for such breach or threatened breach, including the
recovery of damages from the Employee.
(b) During the course of employment and for a period of six (6) months from the
date of termination of this Agreement by him or for Cause, Employee shall not,
directly or indirectly, individually or on behalf of persons not now parties to
this agreement, or as a partner, stockholder, director, officer, principal,
agent, employee, or in any other capacity or relationship, engage in any
business or employment, or aid or endeavor to assist any business or legal
entity to engage in the business of rapid diagnostic testing for infectious
disease or other products that directly compete with the Company's then current
customer sales (as of termination) within the United States. Employee
acknowledges the reasonableness of this restrictive covenant and the
reasonableness of the geographic area and duration which are a part of this
covenant.
(c) The Company recognizes that the Employee has had 35 years of experience in
the diagnostic and health care industry, and that concomitant with such
experience is a network of personal and business relationships already
established prior to employment with the Company, and nothing in this Section 9
will limit the business or activities of Employee except for the restriction on
information and customers set forth above.
10. Independence and Severability
Each of the rights enumerated in Sections 8 and 9 (the Restrictive Covenant,
Nondisclosure, and No-Solicitation clauses) shall be independent of the others
and shall be in addition to and not in lieu of any other rights and remedies
available to the Company at law or in equity. If any of the covenants contained
in Sections 8 or 9, or any part of any of them is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be
given full effect without regard to the invalid portions. If any of the
covenants contained in Sections 8 and 9, is held to be invalid or unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power to
reduce the duration and/or area of such provision and in its reduced form said
provision shall then be enforceable.
11. Solicitation of Former Employees
Employee agrees that during his employment with Employer and for twelve (12)
months, after termination of employment by him or for cause, the Employee will
not, on behalf of himself or on behalf of any, other person, firm, or
corporation, solicit for hire, nor for six months after such termination, hire
any of the professional or scientific employees of the Company employed as of
such termination.
12. Specific Remedies
(a) The Employee acknowledges that the Company shall suffer irreparable injury
if he breaches his obligations under Sections 8, 9 and 11. Accordingly, in the
event of such breach, the Employee acknowledges that the Company will be
entitled to injunctive relief in any state or federal court of competent
jurisdiction within the Commonwealth of Massachusetts. The Employee further
submits to the personal jurisdiction of such courts for the purposes of any such
action.
(b) Employee hereby acknowledges that his services are unique and extraordinary,
and are not readily replaceable, and hereby expressly agrees that the Company,
in enforcing the covenants contained herein, in addition to any other remedies
provided for herein or otherwise available at law, shall be entitled in any
court of equity having jurisdiction to an injunction restraining him in the
event of a breach, actual or threatened, of the agreements and covenants
contained in these paragraphs.
13. Employee's Duty to Mitigate
In the event Employee's employment is actually or constructively terminated by
the Company prior to the end of the Employment Period, whether or not such
termination is for Cause, Employee agrees to exert reasonable efforts to seek
alternative employment in the same or substantially similar position as that
held with the Company and at the same or substantially similar remuneration.
14. Cooperation Following Termination
Provided that he is fairly compensated for his time and reimbursed for his
out-of-pocket expenses, the Employee agrees that, following notice of
termination of his employment, (i) he will cooperate fully with the Company in
all matters relating to the completion of his pending work on behalf of the
Company and the orderly transition of such work to such other employees as the
Company may designate; and (ii) he will cooperate with the Company as to any and
all claims, controversies, disputes, or complaints over which he has any
knowledge or that may relate to him or his employment relationship with the
Company. Such cooperation includes, but is not limited to, providing the Company
with all information known to him related to such claims, controversies,
disputes, or complaints and appearing and giving testimony in any forum.
15. Arbitration
To ensure rapid and economical resolution of any and all disputes directly or
indirectly arising out of, or in any way connected or related to the Executive's
employment with the Company or the termination of that employment, the Company
and the Executive each agree that any and all such dispute, whether of law or
fact of any nature whatsoever, shall, if dispute cannot be resolved within
thirty days despite good faith negotiation, be resolved by final and binding
arbitration by Judicial Arbitration and Mediation Services, Inc. ("JAMS") in
Boston, Massachusetts. The Employee agrees to submit to binding arbitration for
the resolution of any employment related controversy, dispute or claim
("Employment Related Claim"). The term "Employment Related Claim" means any
dispute, claim, or controversy against the Company, including claims related to
salary, bonuses, stock, options, vacation pay, fringe benefits, expense
reimbursement, severance benefits, wrongful discharge, defamation, fraud, and
breach of good faith and fair dealing, whether arising out of Employee's
employment, the cessation of Employee's employment or any terms or conditions of
Employee's employment, or arising out of this Agreement (including the
restrictive covenant hereunder), which could have been brought before an
appropriate government administrative agency or in an appropriate court.
Arbitration pursuant to this Agreement shall be the exclusive means for
resolution of such claims and the Company and the Employee understand that by
signing this Agreement, they are waiving his right to obtain any legal or
equitable relief from any government agency or court, or to commence any court
action or to have a jury trial. Notwithstanding the foregoing, Employee does not
waive his right to file a complaint with the Equal Employment Opportunity
Commission pursuant to Title VII, the ADEA, and/or the OWBPA.
The arbitrator's decision shall be final and binding. The arbitrator shall have
the power to award all legal or equitable relief that would have been available
in a court of law, including the costs of arbitration, to the extent such
damages are allowed under law.
Employee further acknowledges that he has been advised of his right to consult
legal counsel with regard to this Agreement.
The arbitration shall be governed by the laws of the Commonwealth of
Massachusetts.
16. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts (without giving effect to conflicts of law).
Only the state and federal courts of Massachusetts shall have jurisdiction over
any controversies regarding this Agreement; any action may be brought only in
those courts in the Commonwealth of Massachusetts and the United States District
Court for the District of Massachusetts having jurisdiction of the subject
matter. Any process in any such action may be served upon either party by
delivering it or mailing it, certified mail, directed to the addresses listed in
Section 20.
17. Integration
This Agreement constitutes the entire understanding between the parties hereto
relating to the subject matter hereof, superseding all negotiations, prior
discussions, preliminary agreements, and agreements related to the subject
matter hereof made prior to the date hereof.
18. Modifications and Amendments
This Agreement may be modified or amended only by an instrument in writing
executed by the parties hereto and approved in writing by a majority of the
Board of Directors. Such modification or amendment will not become effective
until such approval has been given.
19. Severability
If any of the terms or conditions of this Agreement shall be declared void or
unenforceable by any court or administrative body of competent jurisdiction,
such term or condition shall be deemed severable from the remainder of this
Agreement, and the other terms and conditions of this Agreement shall continue
to be valid and enforceable.
20. Notice
For the purpose of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given as of the date delivered if delivered in person or by telecopy or if
mailed, by express courier, postage prepaid, addressed as follows:
If to Employee: XXXXXX X. XXXXXXXX
00 Xxxxxxxx Xxxx Xx.
Xxxxx Xxxxxx, XX 00000
Phone: 000 000 0000
If to the Company: SALIVA DIAGNOSTIC SYSTEMS, INC.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000)000-0000
ATTENTION: Mo Xxxxxx
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of changes of address shall be
effective upon receipt.
21. Waiver
The observation or performance of any condition or obligation imposed upon the
Employee hereunder may be waived only upon the written consent of the
Shareholders of the Company. Such waiver shall be limited to the terms thereof
and shall not constitute a waiver of any other condition or obligation of the
Employee under this Agreement.
22. Assignment
Neither party shall have the right to assign any rights or obligations under
this Agreement without the prior written approval of the other party.
23. Headings
The headings have been inserted for convenience only and are not to be
considered when construing the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first written upon.
SALIVA DIAGNOSTIC SYSTEMS, INC.
By
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Name:
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Title:
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XXXXXX XXXXXXXX
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