EXHIBIT 10.3
EMPLOYMENT AGREEMENT FOR XXXX XXXXXX
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of this 1st day
of December 2002, by and between CalbaTech, Inc., a Nevada corporation,
its subsidiaries, successors and assigns ("CTI" or "Employer") and Xxxx
X. Xxxxxx ("Employee").
WITNESSETH:
WHEREAS, the Employee has agreed to be employed by the Employer as
its Executive Vice President and Chief Technology Officer; and
WHEREAS, it is in the Employer's best interest to obtain the
services of the Employee; and
WHEREAS, the Employer and the Employee have previously engaged in
negotiations regarding the terms and conditions of their future
employment relationship; and
WHEREAS, the Employer and the Employee are desirous of now
committing to writing the agreed upon terms and conditions of their
future employment relationship by way of this Agreement.
NOW THEREFORE, in consideration of the mutual premises and
covenants contained herein and for other good and valuable
consideration by each of the parties, it is hereby agreed as follows:
1. Employment. The Employer, by authorization of a resolution
duly adopted by Employer's Board of Directors ("the Board"), a copy of
which is attached hereto as Exhibit A, hereby authorizes and agrees to
employ the Employee and confirms said authority of a member of The
Board executing this Agreement on behalf of the Employer, and the
Employee hereby accepts said employment upon the terms and conditions
hereinafter set forth.
2. Positions and Titles. The Employee shall have the title of
Executive Vice President and Chief Technology Officer of CTI, and shall
be appointed to such standing committees of the Employer that are or
may be formed during the period of this Agreement. The Employee shall
perform such duties as are normally associated with the position of
Executive Vice President and Chief Technology Officer of the Employer
and such additional duties as may, from time to time, be assigned by
the Board, and shall further have the usual authority associated with
said position and office as more fully described in the Bylaws of the
Employer in effect during the term of this Agreement.
3. Term. The term or period of this Agreement shall be for the
period beginning on the date of execution hereof and ending on the day
after the third year anniversary of the date hereof, provided, however,
that the term of this Agreement shall be automatically extended under
the same terms and conditions for additional terms of one (1) year each
unless at least ninety (90) days prior to expiration of the initial
term or any subsequent term, either party shall deliver to the other
written notice of their intent to terminate said employment or to
negotiate other terms and conditions thereof. In the event this
Agreement is not renewed or extended and Employee does not enter into a
new employment agreement with Employer, Employee shall be paid
compensation which would have been paid under this Agreement for Two
(2) months after expiration of the initial term or any subsequent
terms. The Employee agrees to remain in the employ of the Employer
during the period this Agreement is in effect unless terminated
pursuant to any of paragraphs 7, 8 or 12.
4. Performance of Duties. During the period of the Employee's
employment, the Employee shall perform faithfully the duties required
of him and agrees to devote that amount of time, attention, skill and
ability necessary to properly perform said duties. It is also
understood and agreed that the Employee may, from time to time, serve
on the boards of directors of other corporations as may be approved by
the Board, whose approval shall not be unduly withheld, provided that
such service neither interferes with the performance of his duties for
the Employer nor creates any actual or potential conflict of interest
with respect to the Employee's loyalties, obligations or duties to the
Employer.
5. Compensation. The employer shall pay to the Employee as
compensation for his services hereunder, the amounts set forth, subject
to the further provisions of this paragraph:
(A) Base Salary. The Employee shall be paid an annual
salary according to the following: The First Year shall have a base
salary of One Hundred, Eighty Thousand Dollars ($180,000), payable
pursuant to the Employer's salary payment practices; The Second Year
shall increase the First Year's base salary to Two Hundred, Five
Thousand Dollars ($205,000); and the Third Year shall again increase
the previous year's salary to a base salary of Two Hundred, Thirty
Thousand Dollars ($230,000). The Employee shall be paid according to
the current payment standards in place with the Employer.
It is also agreed that the Employer shall grant to the
Employee One Hundred Thousand (100,000) options to purchase shares of
the Company's Common Stock upon the date of this Agreement, and
additional options to purchase One Hundred Thousand (100,000) shares of
the Company's Common Stock on each anniversary of this Agreement.
During the term of this Agreement, Twenty-Five Thousand (25,000) shares
shall vest at the end of each three (3) month period. The exercise
price of these options shall be the average closing price on such
market as the Company's Common Stock is traded for the thirty (30) day
period preceding the grant of each option. These options shall have a
term of ten (10) years from the date of grant before they expire.
(B) Annual Cash Bonus. In addition to the compensation set
forth in subsection 5(A) above, during the term of this Agreement,
Employee may be entitled to a cash bonus (the "Annual Bonus") for the
fiscal years ending December 31 based on Employee's and Employer's
performance during such fiscal year. The standard for determining an
Annual Bonus shall be according to the following: In any year that the
Employer has a positive net profit for that particular fiscal year
("Net Profit"), for the first Two Hundred and Fifty Thousand Dollars
($250,000) Net Profit, the Employee shall receive an Annual Bonus
calculated at a percentage rate of Five Percent (5%) of the Net Profit,
and the Employee shall receive an Annual Bonus calculated at a
percentage rate of Seven Percent (7%) of the Net Profit if the Net
Profit is greater than Two Hundred and Fifty Thousand Dollars
($250,000). The Annual Bonus shall be paid no later than March 31 of
the year after the year in which said bonus is earned.
(C) Annual Stock Bonus. Beginning with the end of fiscal
year 2001, and continuing throughout the life of the Agreement, the
Employee shall be eligible for an annual stock bonus according to the
following schedule: a ten percent (10%) increase from the previous
year's gross sales shall entitle the Employee to One Hundred and
Twenty-Five Thousand (125,000) Shares of the Employer; a fifteen
percent (15%) increase from the previous year's gross sales shall
entitle the Employee to Two Hundred and Fifty Thousand (250,000) Shares
of the Employer; a twenty percent (20%) increase from the previous
year's gross sales shall entitle the Employee to Three Hundred and
Seventy-Five Thousand (375,000) Shares of the Employer and a twenty-
five percent increase from the previous year's gross sales shall
entitle the Employee to Five Hundred Thousand (500,000) Shares of the
Employer.
(D) Director's and Committee Attendance Fees. The Employee
shall be entitled to receive fees for service as a member of the Board
of Directors of the Company, payable at such times as shall be in
accordance with the Employer's practices and at the rates determined by
the Board and the Compensation Committee of CTI.
6. Additional Benefits. In addition to the salary specified in
Paragraph 5(A) and Annual Bonuses specified in Paragraph(s) 5(B,C)
above, Employer shall provide Employee comparable additional benefits
as are provided to other senior officers of Employer; provided,
however, the said additional benefits shall not be less favorable to
Employee than as more particularly described in subparagraphs (A)
through (F) of this paragraph 6.
(A) Vacations and Sick Leave. The Employee shall be
entitled to four (4) weeks of vacation leave and one (1) week of sick
leave for each year of employment. Time allotted for vacation and sick
leave that is not used shall accrue to the next year.
(B) Business Expenses. The Employer will reimburse the
Employee in full for all reasonable expenses incurred by the Employee
in pursuit of the Employer's business during the period of this
Agreement. The Employee shall be required to submit the appropriate
expense reports and vouchers in support of the expenses incurred on
behalf of the Employer as required by the general practices and
procedures of the Employer and in compliance with all reasonable
business expense requirements of the Internal Revenue Service.
(C) Hospital, Medical and Dental Reimbursement Plan. The
Employer shall provide, at its cost, health, major medical and dental
benefits for the Employee and his immediate family.
(D) Life Insurance. The Employer shall provide, at its cost,
term life insurance with a death benefit of not less than $1,500,000.
The Employer will be the owner of the policy and the Employee will be
the insured. The "Split Dollar" concept will be used. The Employee
will be responsible for taxes due in relation to the term cost or PS-52
table, whichever is less.
(E) Automobile. During the term hereof, the Employer shall
provide the Employee with an automobile or monthly car allowance at a
rate of Five Hundred Dollars ($500) per month.
(F) Disability. If the Employee becomes unable to perform
the services expected hereunder by reason of illness or incapacity, his
full compensation, including Annual Bonus and all benefits, shall be
continued for a period of 180 days from the last day of the month that
the Corporation determines that the Employee is first disabled. At the
end of such 180 days, his compensation by the Employer shall cease; but
said Employee shall be entitled to a leave of absence for the balance
of the term of the Agreement, during any continuance of such inability
to perform. The Employer, at its expense, will acquire disability
insurance on the Employee in an amount equal to sixty-percent (60%) of
the Employee's base salary (exclusive of additional Annual Bonus),
which will become effective after a 180-day waiting period. Proceeds
from such disability insurance will be paid directly to Employee by the
insurance carrier, as provided by the insurance policy.
(G) Retirement. The Employee shall be entitled to
participate in, and receive benefits under and in accordance with, any
pension plan (including, but not limited to, a 401(k) plan) or any
other retirement plan or program of Employer either in existence as of
the date hereof or hereafter adopted for the benefit of any of its
executive employees.
7. Termination. This Agreement may be terminated pursuant to
the following:
(A) Voluntary Termination by either the Employee or the
Employer. The Employee may voluntarily terminate this Agreement by
providing ninety (90) days written notice to Employer in the event of a
termination pursuant to this subparagraph. All compensation hereunder
shall terminate as of the effective date of such termination. The
Employer may voluntarily terminate this Agreement by providing ninety
(90) days written notice to the Employee "Written Notice". For the
right to voluntarily terminate the Employee, the Employer must pay to
the Employee Two Hundred and Fifty Thousand Dollars ($250,000), payable
on the last day of the Written Notice. All options earned will remain
in force, and all Annual Bonus Cash and Annual Bonus Shares earned will
be determined at the end of the year in which the Written Notice is
effective and pursuant to a pro-rata formula based upon the time that
had expired in that year prior to the effective date of the Written Notice.
(B) Involuntary Termination. This Agreement may be
terminated by the Employer for "Just Cause", or as provided for in
paragraph 12. For purposes of this Agreement, "Just Cause" shall mean:
Unappealable conviction by a trial court of a felony or crime involving
moral turpitude; declaration of unsound mind by court order; or the
failure to diligently apply himself to the duties required by Employer.
In the event the Employee is judged by Employer as failing to
diligently apply himself to the duties hereunder, Employer will provide
written notice to Employee specifying with particularity the conduct
constituting such failure and such steps as are necessary to warrant
the deficiency of performance. Employee will be allowed thirty (30)
days from the date of such notice to attempt to correct the
deficiencies. Upon the expiration of this cure period, Employer will
provide written notice to Employee of the adequacy or failure of
efforts made by Employee to correct the deficiencies. The Employer
agrees to provide the Employee at least sixty (60) days written notice
of termination pursuant to this subparagraph. In the event of a
termination under this subparagraph (B), Employee shall be paid the
same compensation at the same times that would be paid under this
Agreement through the effective date of Employee's termination. In the
event of a termination pursuant to this subparagraph, the Annual Bonus
payable to Employee pursuant to paragraph 5(B) hereof, for the fiscal
year within which said termination occurs, shall be pro-rated and paid
to Employee through the date of termination of Employee's daily
managerial responsibilities.
(C) Severance Pay. Upon any termination pursuant to
paragraph 6(F) or 7(A) hereof, in addition to any compensation due
Employee pursuant to those paragraphs, Employee shall be paid the
compensation that he would have been paid under this Agreement for Two
(2) months after the date of termination. Such compensation shall
include any Annual Bonus payable to Employee pursuant to paragraph 5(B)
hereof, for the fiscal year within which said termination occurs, which
Annual Bonus shall be pro-rated through the date of termination of
Employee's daily managerial responsibilities. Employer shall also
provide Employee, at the Employer's expense, for a period of twelve
(12) month's beginning with the date of termination, with life
insurance, medical insurance, dental insurance and long-term disability
insurance that, taken as a whole, are substantially similar to the
benefits provided to Employee immediately prior to the date of termination.
8. Change of Ownership. This Agreement shall terminate in the
event that the Employer or all or substantially all of Employer's
assets, and/or goodwill, or its stock are purchased in conjunction with
a corporate (stock or assets) sale, or merger. In such event, Employee
shall be entitled to his annual salary and Annual Bonus from the
effective date of such transaction, as well as the buyout provision
provided in Section 7(a), above, through the end of the term of this
Agreement or for a period of one (1) year, whichever such period is
longer, provided Employee is not offered a comparable position under
the same terms and conditions of this agreement with the acquiring
company or operation. All such compensation and severance pay will be
paid within ninety (90) days of the effective date of the transaction.
In the event of such payment, Employer and Employee shall have no
further obligations under this Agreement except that Employer will pay
all premiums for health insurance policies then in effect for Employee,
through the end of such compensation period.
9. Obligations on Termination. In addition to the obligations
on the Employee set forth in paragraph 7 herein, upon termination of
employment for any reason, the Employee shall deliver to the Employer
all correspondence, letters, records, computer programs, data bases and
any and all other material pertaining to or containing information
relative to the business of the Employer or its affiliates which the
Employee has acquired during his association with Employer.
10. Indemnification. The Employer agrees to indemnify and defend
Employee (and his heirs, executor, and administrators) from all claims,
liabilities, judgments, settlements, costs and expenses, including all
attorneys' fees, imposed upon or reasonably incurred by him in
connection with or resulting from any action, suit, proceeding, or
claim to which he is or may be made a party by reason of his being or
having been an employee of the Employer (whether or not an employee at
the time such costs or expenses are incurred by or imposed upon him) to
the full extent provided for in the Employer's Articles of
Incorporation or the laws of the State of Nevada, whichever is broader,
as in effect on the date of execution hereof. Such right of
indemnification shall not be deemed exclusive of any rights to which he
may be entitled otherwise.
11. Death of Employee. In the event of the Employee's death
during the term of this Agreement, the Agreement shall stand terminated
and all payments hereunder shall ceases as of the date of death, except
as to the following:
(A) The base salary being paid to the Employee by the
Employer as of the date of death shall continue to be paid to
Employee's estate for a period of one hundred eighty (180) days after
the date of death.
(B) The Annual Bonus payable to the Employee by the
Employer for the fiscal year within which the date of death occurs
shall be prorated through the date of death.
(C) The Employer shall cooperate and take all necessary
steps to effectuate the payment of the life insurance proceeds
established in paragraph 6(D) of this Agreement.
(D) All accrued and unpaid benefits under this Agreement,
whatsoever in nature, shall be payable to the Employee's estate.
12. Assignment of Agreement. The obligations of the Employer
under this Agreement shall be binding upon the successors and assigns
of the Employer. In the event this contract is assigned, Employee
shall be entitled to enforce the provisions of this Agreement or, in
his sole discretion, terminate this Agreement upon the terms provided
in paragraph 8 hereof. For purposes of this Agreement, the term
"successors" and "assigns" shall include any person, firm, corporation,
or other entity which at the time, whether by merger, reorganization,
purchase, or otherwise, shall acquire all or substantially all the
assets, stock, or business of the Company.
13. Amendments. This Agreement cannot be changed or terminated
orally and no waiver of compliance with any provision or condition
hereof shall be effective unless evidenced by an instrument in writing
duly executed by the parties hereto and sought to be changes by such waiver.
14. Writing. This Agreement sets forth the entire understanding
of the parties with respect to the employment of the Employee by the
Employer and supersedes any and all prior agreements, arrangements and
understanding relating to the subject matter hereof. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
15. Waiver. The waiver by the Employer or the Employee of any
breach of any provisions of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of this Agreement.
16. General Provisions.
(A) This agreement shall be deemed to be made, governed by,
interpreted under and construed in all respects in accordance with the
commercial rules of Judicial Arbitration and Mediation Service
("JAMS"). This chosen jurisdiction is irrespective of the country or
place of domicile or residence of either party. In the event of
controversy arising out of the interpretation, construction,
performance or breach of this agreement, the parties hereby consent to
adjudication under the commercial rules of JAMS. Said venue of the
arbitration shall be in Orange County, California. Judgment on the
award rendered by the arbitrator may be entered in any federal or
state court in Orange County, California.
(B) In the event that any term, provisions, or paragraph of
this Agreement is declared illegal, void or unenforceable, the same
shall not effect or impair the other terms, provisions or paragraphs of
this Agreement. Covenants contained in this Agreement shall be
independent. The doctrine of severability shall be applied. The
parties do not intend by this statement to imply the illegality,
voidness or unenforceability of any of the terms, provisions or
paragraphs of this Agreement.
17. Captions. The captions for each paragraph are not part of
this Agreement, but are for identification purposes.
18. Governing Law. This Agreement is made under and shall be
construed pursuant to the laws of Nevada.
19. Notices. Any notice, writing, report or other document
required or permitted hereunder shall be in writing and shall be given
by prepaid registered or certified mail, with return receipt requested,
addressed as follows:
IF TO THE EMPLOYER:
CalbaTech, Inc.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
IF TO THE EMPLOYEE:
Xxxx X. Xxxxxx
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
The date of any such notice and of service thereof shall be seemed to
be the date of dispatch. Either party may change its address for
purposes of notice by giving notice in accordance with the provisions
of this paragraph.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the date and year first above written.
FOR THE EMPLOYER:
Signature Date
Name and Title
(CORPORATE SEAL)
THE EMPLOYEE:
Date
