EXHIBIT 10.26
EMPLOYMENT AGREEMENT
BETWEEN: ATHENA MEDICAL CORPORATION, a Nevada corporation (the "Company");
AND: J. XXXXX XXXXX ("Employee").
DATED: Effective April 28, 1997.
RECITAL:
The Company (dba A FEM Medical Corporation) is engaged in the business of
developing and marketing feminine hygiene products and diagnostics
world-wide. The parties desire to set forth their agreement as to Employee's
services as Executive Vice President and Chief Financial Officer of the
Company.
AGREEMENT:
In consideration of the foregoing Recital and the terms, conditions and
covenants set forth below, the parties agree as follows:
SECTION 1. EMPLOYMENT
The Company agrees to employ Employee as Executive Vice President and
Chief Financial Officer for a term commencing on April 28, 1997, and
continuing until termination in accordance with Section 5. Employee accepts
employment with the Company on the terms and conditions set forth in this
Agreement, and agrees to devote Employee's full time and attention to the
performance of Employee's duties under this Agreement. Employee agrees to
serve as the Company's Executive Vice President and Chief Financial Officer
commencing upon election as such by the Company's Board of Directors and
completion of a standard officer questionnaire. Employee's general duties
shall consist of responsibility for general administration, finance, sales
and marketing, personnel, SEC and state securities law compliance, financial
planning and reporting, and all other operations oversight not otherwise
delegated by the Company's Board of Directors to the President. On all
matters of Company policy, Employee shall consult with the President and/or
the Chairman of the Company. Employee shall perform such specific duties and
shall exercise such specific authority as may be assigned to Employee by the
Company's Board of Directors.
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Employee agrees that in all aspects of his employment, Employee shall
comply with the policies, standards, rules and regulations of the Company
from time to time established, and shall perform Employee's duties
faithfully, intelligently, to the best of Employee's ability and in the best
interest of the Company. The devotion of reasonable periods of time by
Employee for personal purposes, outside non-competitive business activities
or charitable activities shall not be deemed a breach of this Agreement,
provided that such purposes or activities do not materially interfere with
the services required to be rendered to or on behalf of the Company.
SECTION 2. CONFIDENTIALITY
2.1 Confidential Information
Employee acknowledges and agrees that all research, product and equipment
specifications, manufacturing methods, lists of the Company's customers and
suppliers, marketing and product planning information, and other Company data
related to its business, as well as information of third parties that the
Company is required to keep confidential (collectively, the "Confidential
Information"), are valuable assets of the Company. Except for disclosures
reasonably made to advance the business of the Company and information which
is a matter of public record, Employee shall not, during the term of this
Agreement or after termination of employment with the Company for any reason,
disclose any Confidential Information to any person or use any Confidential
Information (regardless of whether same is considered proprietary or a trade
secret) for the benefit of Employee or any other person, except with the
prior written consent of the Company in each instance.
2.2 Return of Documents and Property
Employee acknowledges and agrees that all originals and all copies of
records, reports, files, correspondence, lists, plans, drawings, memoranda,
notes, sketches, summaries, schedules, codes, tapes and other documentation
and property related to the business of the Company or containing any
Confidential Information are and shall be the sole and exclusive property of
the Company, and shall be returned to the Company upon termination of
Employee's employment with the Company or upon the written request of an
authorized representative of the Company at any time.
2.3 Related Company Policies
Employee further agrees to comply with all policies, rules and
regulations adopted by the Company's Board of Directors or shareholders from
time to time with respect to xxxxxxx xxxxxxx and other duties applicable to
the employees of a publicly-traded corporation. Employee also agrees, if
requested, to sign a separate
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confidentiality agreement applicable to all employees. The terms of such
separate agreement will control over any conflicting term in this Agreement.
2.4 Injunction
Employee agrees that it would be difficult to measure damage to the
Company from any breach by Employee of Section 2.1, 2.2 or 2.3 and that
monetary damages would be an inadequate remedy for any such breach.
Accordingly, Employee agrees that if Employee shall breach Section 2.1, 2.2
or 2.3, the Company shall be entitled, in addition to any and all other
remedies it may have at law or in equity, to an injunction or other
appropriate order to restrain any such breach, without showing or proving any
actual damage sustained by the Company, and without posting bond or other
undertaking.
2.5 No Release
Employee agrees that termination of employment with the Company shall not
release Employee from any of Employee's obligations under Section 2.1, 2.2 or
2.3.
SECTION 3. COMPENSATION
3.1 Amount
In consideration of all services to be rendered by Employee to the
Company under this Agreement, the Company shall pay to Employee monthly
compensation of $10,416.67 (an annualized salary of $125,000.00), payable
monthly in arrears or on the same dates as other management personnel are
paid, and prorated for any short calendar month. Compensation shall be
subject to the customary withholding of income taxes and to other employment
taxes required with respect to compensation paid by an employer to an
employee.
3.2 Other Benefits
Compensation paid to Employee shall be in addition to any contribution
made by the Company for the benefit of Employee to any qualified
profit-sharing or retirement plan maintained by the Company for the exclusive
benefit of its employees. The Company shall provide to Employee and
Employee's spouse and dependents the same coverage and participation that the
Company may provide to other management personnel with respect to accident
and health insurance, life insurance and other employment benefits, upon
Employee meeting the respective eligibility conditions of each such benefit.
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3.3 Incentive and Non-Qualified Stock Options
Subject to approval by the Company's Board of Directors (or a committee
thereof), Employee may be awarded one or more options to purchase shares of
the Company's common stock, exercisable at the approximate publicly-traded
price of such stock on the date of award. The options will be exercisable
according to a vesting schedule and performance standards agreed upon by the
parties. Termination of employment for any reason or no reason will
automatically terminate the right to exercise the incentive (qualified)
option as to any shares not then vested. The options will also be subject to
other terms and conditions, including restrictions on transfer of the options
and the shares, required by the Company on all similar options.
3.4 Income From Employee's Efforts
All income generated by Employee for Employee's services to the Company,
and all activities related to such services, shall belong to the Company,
whether paid directly to the Company or to Employee. Employee agrees to,
upon request by the Company from time to time, render a detailed accounting
of all transactions during the course of Employee's employment.
3.5 Work Made for Hire
All techniques, processes, products, manuals, documents, materials, ideas
and Confidential Information developed by Employee while employed by the
Company shall be considered work made for hire and shall, unless specifically
otherwise agreed in writing by the Company prior to such development, become
the sole and exclusive property of the Company.
SECTION 4. EXPENSES
Employee shall be entitled to reimbursement from the Company for
reasonable expenses necessarily incurred by Employee in the performance of
Employee's duties under this Agreement, upon presentation of vouchers
detailing the amount, date and business purpose of each such expense. All
expenses in excess of $200.00 must be approved in advance by another officer
of the Company, and all travel and related expenses and reimbursements will
be governed by the travel policies and procedures adopted by the Company.
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SECTION 5. TERMINATION
5.1 Termination by Prior Notice or Agreement
The employment of Employee by the Company may be terminated by either the
Company or Employee upon the giving of 30 days' prior written notice to the
other party. This Agreement may be terminated at any earlier time upon the
mutual written agreement of the Company and Employee.
5.2 Immediate Termination
The employment of Employee by the Company may be terminated immediately
in the sole discretion of the Board of Directors of the Company upon the
occurrence of any one of the following events:
5.2.1 If Employee shall willfully and continuously fail or refuse
to comply with any of the policies, standards, rules and regulations
established by the Company's Board of Directors or shareholders from time to
time.
5.2.2 If Employee shall be guilty of fraud, dishonesty or any other
act of misconduct in the performance of Employee's duties on behalf of the
Company.
5.2.3 If Employee shall fail or refuse to perform any provision of
this Agreement to be performed by Employee.
5.2.4 Upon the sale, transfer or other disposition of all or
substantially all the assets of the Company, the distribution of the
Company's assets to its shareholders in liquidation, or the discontinuance of
the Company's conduct of the business described in the Recital.
5.2.5 If Employee shall suffer a permanent disability. For
purposes of this Agreement, "permanent disability" shall be defined in
accordance with the terms of any disability income policy insuring Employee
which may be purchased by the Company, as determined by the company issuing
such policy. But if such a policy is not in force, "permanent disability"
shall be defined as Employee's inability due to physical or mental illness,
or other cause, to perform the majority of Employee's usual duties for a
period of three months or more, as determined by a physician licensed to
practice medicine in Oregon and chosen by the Company.
5.3 Death
In the event Employee dies during the term of this Agreement, this
Agreement shall automatically terminate, and the Company shall pay to
Employee's estate the
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compensation which would be otherwise payable to Employee through the last
day of the month in which Employee's death occurs.
5.4 Compensation Upon Certain Termination
In the event that the Company terminates Employee's employment without
his consent and not by reason of an event described in Section 5.2 or 5.3
above, the Company agrees to pay to Employee on the effective date of
termination an amount (net of customary withholdings) equal to 50% of
Employee's then annualized base salary.
5.5 At-Will Employment
The employment of Employee by the Company is "at-will". Employee may
terminate employment at any time, for any reason or for no reason.
Correspondingly, the Company may terminate Employee's employment at any time,
for any reason or for no reason.
SECTION 6. VACATION; SICK LEAVE
Subject to the prior coordination of time with other officers and senior
management of the Company, Employee shall be entitled to 30 working days per
calendar year (prorated for a short year) of combined vacation/sick days.
Accrual of same and permitted leaves shall be as provided in the Company's
employee manual.
SECTION 7. MISCELLANEOUS
7.1 Representation by Employee
Employee represents and warrants to the Company that there is no
employment contract or any other contractual obligation to which Employee is
subject which prevents Employee from entering into this Agreement or from
performing fully Employee's duties under this Agreement.
7.2 Notices
Any notice or consent required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
personally delivered to a party or 24 hours after deposit in the United
States Mail, first class postage prepaid by both first class and certified
mail, return receipt requested, or 24 hours after delivery to a recognized
national overnight carrier, with overnight shipping charges paid, and
addressed to such party as follows:
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If to Employee: J. Xxxxx Xxxxx
0000 XX Xxxxxx Xxxx.
Xxxxxxxx, XX 00000
If to the Company: Athena Medical Corporation
00000 XX Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
Attn: President
or such other address as a party may specify by a notice in writing, given in
the same manner.
7.3 Attorneys' Fees
If any action or other proceeding shall be instituted relating to any
term or condition of this Agreement or relating to any of the rights, duties
or obligations arising under it (including without limitation a proceeding
for injunction as provided by Section 2.4), the prevailing party shall be
entitled to recover from the other party, and the other party agrees to pay
to the prevailing party, whether or not the matter proceeds to final judgment
or decree, in addition to costs and disbursements allowed by law, such sum as
the trial and each appellate court may adjudge reasonable as attorneys' fees
in such action or other proceeding, and in any appeal of it.
7.4 Interpretation
The waiver by either party of a breach of any term or provision of this
Agreement shall not be construed as a waiver of any subsequent breach of the
same or any other term or provision by either party. Time is of the essence
of this Agreement in all particulars. The term "days" means calendar days.
This Agreement may not be amended or modified except by written agreement
executed by the parties. The captions heading the sections and subsections
of this Agreement are inserted for convenience of reference only, and are not
to be used to define, limit, construe or describe the scope or intent of any
term, provision or section of this Agreement. This Agreement may be executed
in several counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument.
7.5 Integration
THIS AGREEMENT CONTAINS THE FINAL AND CONCLUSIVE AGREEMENT AND
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF IT, AND
SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN,
INCLUDING
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WITHOUT LIMITATION THE PARTIES' LETTER AGREEMENT OF DECEMBER 16, 1996.
EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO PROMISES,
REPRESENTATIONS, AGREEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN, BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
EXECUTED as of the date first set forth above.
_______________________________________
J. Xxxxx Xxxxx
EMPLOYEE
ATHENA MEDICAL CORPORATION
By_____________________________________
Its President
COMPANY
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