Exhibit 10.10 Employment Agreement with Xxxxx Xxxxxxxxx
EMPLOYMENT AGREEMENT
Agreement made as of 10 August, 2001 by and between Monopath, LLC, a
Delaware corporation (the "Company"), having its principal place of business at
0000 Xxxxxxx Xxx. Xx. Xxxxx, Xxxxxxxx 00000, and Xxxxx Xxxxxxxxx (the
"Executive") currently residing at 000 Xxxxxxxx Xxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000.
BACKGROUND INFORMATION
The Company wishes to secure the employment services of the Executive for a
definite period of time and upon the particular terms and conditions hereinafter
set forth. The Executive is willing to be so employed. Accordingly, the parties
agree as follows:
1. Employment and Term.
The Company hereby employs Executive and the latter hereby accepts employment by
the Company for the five (5) year period commencing on 15 August, 2001 (the
"Commencement Date") and expiring 15 August, 2003, which employment shall be
automatically extended for unlimited successive one (1) year periods unless it
is terminated during the pendency of any such period, whether initial or
extended, by the occurrence of one of the events described in Section 8. hereof,
or at the end of any such period (subject to extension by operation of the
disability provisions contained in Section 8.) by one party furnishing the other
with written notice, at least sixty' (60) days prior to the expiration of such
period, of any intent to tem1inate this Agreement upon the expiration or such
period.
2. Duties
During the term of this Agreement, whether initial or extended, the Executive
shall render to the Company services as President, Chief Executive Officer,
Chief Scientific Officer, and Chairman of the Board of Directors/Managers and
shall perform such duties as may be designated by and subject to the supervision
of the Company's Board of Directors/Managers, and shall serve in such additional
capacities appropriate to his responsibilities and skills as shall be designated
by the Company, through action of its Board of Directors/Managers. During such
period, the Executive shall devote his full attention, time and energies to the
business affairs of the Company (subject to the terms of Section 4. below), and
will use his best efforts to promote the Interests and reputation of the
Company; provided that he may pursue such non-competitive activities during
weekdays and on weekends, such as teaching, entertaining, consulting or other
remunerative or non-remunerative affairs, as do not interfere, to any degree,
with the complete performance of his obligations hereunder. Any question of
interpretation which may arise under the preceding provision shall be resolved
by majority decision of the Company's Board of Directors/Managers. Hours of
service to the Company during the term of this Agreement shall be a minimum of
forty (40) per week and otherwise as determined by the Company's Board of
Directors/Managers. During the pendency of this Agreement, without his written
consent, the Company shall not remove the Executive's permanent place of
business from St. Louis, Missouri.
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3. Compensation
For the services to be rendered by the Executive under this Agreement, the
Company shall pay him, while he is rendering such services and performing his
duties hereunder, and the Executive shall accept as full payment for such
service, a base compensation of one hundred and thirty-five thousand dollars
($135,000.00) per year, (inclusive of any amounts subject to federal or state
employment related withholding requirements), payable in arrears in equal
installments on the last business day of each week occurring during the period
of employment or otherwise as the parties may agree. Such base compensation may
be periodically increased on any anniversary of the Commencement Date to take
into account superior performance or increases, if any, in the annual cost of
living, and may at such time be supplemented by discretionary bonuses or other
benefits payable from time to time, all as determined by action of the Company's
Board of Directors/Managers. Executive shall also be entitled to a Benefits
Package, as more fully described in Exhibit A attached hereto.
4. Vacation: Fringe Benefits: Reimbursement of Expenses.
In addition to normal business holidays, the Executive shall be entitled to two
(2) weeks annually of fully paid vacation during the initial and each extended
term of this Agreement. He shall not be entitled to receive monetary or other
valuable consideration for vacation time to which he is entitled but does not
take. The timing of vacation periods shall be within the discretion of the
Company, reasonably exercised so as not to unnecessarily inconvenience the
Executive.
During his period of employment hereunder, the Executive shall further be
entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in medical and life insurance, pension
benefits, disability and other fringe benefit plan as the Company may make
generally available to all of its executive employees from time to time:
subject, however, as to such plans, to such budgetary constraints or other
limitations as many be imposed by the Board of Directors/Managers of the Company
from time to time; and (b)reimbursement for all normal and reasonable expenses
necessarily incurred by him in the performance of his obligations hereunder,
subject to such reasonable substantiation requirements as may be imposed by the
Company.
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5. Proprietary Interests.
During or after the expiration of his term of employment with the Company, the
Executive shall not communicate or divulge to, or use for the benefit of. any
individual, association, partnership, trust, corporation or other entity except
the Company, any proprietary information of the Company received by the
Executive by virtue of such employment, without first being in receipt of the
Company's written consent to do so. Executives employment shall be subject to
the stipulations and conditions outlined in Exhibit C, attached hereto.
6. Restrictive Covenant.
During the term of his employment hereunder and for the two (2) year period
following the termination thereof for any reason other than (a) the Company's
discontinuance of activities; (b) an adjudication of the Company's material
breach of any of its obligations set forth in Sections 1-4, inclusive; or (c) a
termination of the Executive by the Company under the provisions of subparagraph
(d) (2) of Section 8. below, the Executive shall not, directly or indirectly,
engage in or become an owner of, render any service to, enter the employment of,
or represent or solicit for any business which competes with any activity of the
Company conducted at any time during the Executive's period of employment and
which is located in any county of the State of Missouri in which the Company
shall maintain any activity. This covenant specifically excludes the clinical
practice of medicine (general internal medicine and nephrology). The parties
expressly agree that the duration and geographical area of this restrictive
covenant are reasonable.
This covenant shall be construed as an agreement independent of any other
provision herein, and the existence of any claim or cause of action of the
Executive against the Company regardless of how arising, shall not constitute a
defense to the enforcement by the Company of its terms. If any portion of the
covenant is held by a court of law to be unenforceable with respect either to
its duration or geographical area, for whatever reason, it shall be considered
divisible both as to time and geographical area, so that each month of a
specified period shall be deemed a separate period of time and each county
within the State of Missouri a separate geographical area, resulting In an
intended requirement that the longest lesser period of time or largest lesser
geographical area found by such court to be a reasonable restriction shall
remain an effective restrictive covenant, specifically enforceable against the
Executive.
Notwithstanding any statement contained in this Section 6. to the contrary.
Legal or beneficial ownership by the Executive of a less than 'five percent (5%)
interest in a competitive corporation at least one {1) class of capital stock of
which is publicly traded on a national or regional stock exchange Dr by means of
an electronic interdealer quotation system, shall not be deemed to constitute a
breach by the Executive of the terms hereof.
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7. Remedies for Breach of Executive's Obligations.
The parties agree that the services of the Executive are of a personal,
specific, unique and extraordinary character and cannot be readily replaced by
the Company. They further agree that in the course of performing his services,
the Executive will have access to v8nous types of proprietary information of the
Company, which, if released to others or used by the Executive other than for
the benefit of the Company. In either case without the Company's consent, could
cause the Company to suffer irreparable injury. Therefore, the obligations of
the Executive established underss.ss.5. and 6. hereof shall be enforceable both
at law and in equity, by injunction, specific performance, damages or other
remedy; and the right of the Company to obtain any such remedy shall be
cumulative and not alternative and shall not be exhausted by anyone or more uses
thereof.
8. Modification and Termination.
a. Modification. This Agreement may be amended or n1odified only with the mutual
written consent of the parties, and in its present form consists of the
entire Agreement between the parties.
b. Termination - General. This Agreement is subject to termination prior to
the expiration of its initial or any extended term, if by the Executive upon
delivery to the Company of written notice of such intention, which notice
shall be deemed to result in termination thirty (30) days after its receipt
by the Company (the Company having the right following such receipt to
accelerate the effective date of termination but retaining the obligation to
pay Executive his compensation due for the full thirty (30) day period) and
if the Company upon the occurrence of any one of the following events: (a)
the death of the Executive; (b) the occurrence to Executive of a physical or
mental disability which, in the judgment, reasonably exercised, of the Board
of Directors/Managers, renders him unable to perform his normal duties on
behalf of the Company for a continuous period of six (8) months (measured
from the first day of the month immediately following the occurrence of such
disability); or (c) a determination by the Board of Directors/Managers that
there is cause (as described in subsection d. below) to terminate Executive's
employment. If the Company discontinues all Company activities during the
first six (6) months of this Agreement, the Executive shall be paid ninety
(90) days of his compensation.
c. By Death or Disability. In the event of the Executive's death, his base
compensation otherwise due for the succeeding three (3) full calendar months
following his death shall be paid to his Beneficiary. In the event of his
disability, for the period ending on the last business day of the third
calendar month following the occurrence of such disability, the Executive
shall be paid his base compensation (reduced by any amount received by the
Executive under the terms of any disability insurance policy maintained by
the Company at its sole expense); thereafter, for the succeeding three (3)
months shall be treated as being on an authorized but unpaid leave of
absence.
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d. For Cause. In the event of a decision by the Board of Directors/Managers
to terminate Executive's employment for cause:
1. If, In the judgment of the Company's Board of Directors/Managers,
reasonably exercised, such termination is due to (i) the Executive's
willful misconduct or gross negligence: (ii) his conscious disregard
of his obligations hereunder or of any other duties reasonably
assigned him by the Company; (iii) his repeated conscious violation
of any provision of the Company's By-Laws or of its other stated
policies, standards or regulations; (iv) his commission of any act
involving moral turpitude; or (v) a determination that he has
demonstrated a dependence upon any addictive substance, including
alcohol, controlled substances, narcotics or barbiturates; then, upon
1ermination, he shall be entitled to receive severance pay in an
amount equal to ten percent (101:/0) of his annual base compensation.
As a condition precedent to the Company's right to terminate this
Agreement for one of the causes specified in the preceding sentence
which requires a repeated action or omission by the Executive
clauses (i), (ii) and (iii), there shall have been created by the
Company and furnished to the Executive, within the sixty (60) day
period immediately following commission of the proscribed act or
omission, a written description thereof and a statement advising him
that the Company views such conduct as being of the type which could
lead to a termination of this Agreement under the provisions of
Section 8d. Further, if the company seeks to terminate this
Agreement on the basis of clause (iii), it must be able to
demonstrate that the Executive has been furnished with a copy of the
By-Law provision, or of the policy, standard or regulation, which he
is being accused of having violated, at a time prior to the alleged
commission of the violation.
2. If certain performances are not met during this Agreement, those
being fifty percent (50%) of the performance requirements in Exhibit
A, the Agreement may be terminated, and Executive shall be entitled
to receive an amount equal to twenty-five percent (25%) of his annual
base compensation.
e. Payment of Termination Compensation; Continued Effectiveness of Certain
Obligations. Any compensation due the Executive as a result of the premature
termination of his employment status shall be paid to him after termination as
one lump sum. No termination or expiration of this Agreement, whether
consummated by action of either party or by operation of the terms hereof, shall
relieve the Executive from his continued performance of the obligations
established under Sections 5. and 6. hereof.
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9. Indebtedness of Executive.
If, during the course of his employment, Executive becomes Indebted to the
Company for any reason, the Company shall, if it so elects, have the right 10
set-off and to collect any sums due it from the Executive out of any amounts
which it may owe to the Executive for unpaid compensation. In the event that
this Agreement terminates for any reason, all sums owed by the Executive to the
Company shall become immediately due and payable.
10. Miscellaneous Provisions.
a. Nonassignability: Neither this Agreement nor any right or interest hereunder
shall be assignable by the Executive, his Beneficiary of his legal
representatives except as otherwise expressly provided herein.
b. Enforceability: If any term or condition or this Agreement shall be invalid
or unenforceable to any extent or in any application, then the remainder of this
Agreement, and such term or condition except to such extent or in such
application, shall not be affected thereby and each and every term and condition
of this Agreement shall be valid and enforced to the fullest extent and in the
broadest application permitted by law.
c. Notice: All notices or other communication are required or permitted to be
furnished pursuant to this Agreement shall be in writing and shall be considered
as properly furnished if hand delivered, mailed from within the United
States by certified or registered mail, or sent by prepaid telegram to the
recipient party at the address appearing in the preamble to this Agreement or to
such other address as any such party may have designated by like notice
forwarded to the other party hereto. Change of address notices shall be deemed
furnished when received. Ail other notices shall be deemed furnished when
mailed, telegraphed or hand delivered.
d. Application of Missouri Law: This Agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Missouri. Venue shall be deemed located in St. Louis
County. Missouri.
e. Counterparts: This Agreement may be executed by any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
f. Binding Effect: Each of the provisions and agreements herein contained shall
be binding upon and ensure to the benefit of the personal representatives,
devisees. heirs, successors, transferees and assigns of the respective parties
hereto.
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g. Beneficiary: As used herein, the term "Beneficiary" shall mean the person or
persons (who may be designated contingently or successively and who may be an
entity other than an individual, including an estate or trust) designated on a
written form prescribed by the Board of Directors/Managers to receive the
expiration of Agreement or death benefits described in Section 8. above. Each
Beneficiary designation shall be effective only when filed with the Secretary of
the Company during the Executive's lifetime. Each Beneficiary designation filed
with the Secretary will cancel all designations previously so filed.
If the Executive fails to properly designate a Beneficiary or if the Beneficiary
predeceases the Executive or dies before complete distribution of the benefit
has been made, the Company shall distribute the benefit (or balance thereof) to
the surviving spouse of the Executive or if he be then deceased to the
Executive's estate.
h. Legal Fees and Costs: If a legal action is initiated by any party to this
Agreement against another, arising out of or relating to the alleged performance
or non-performance of any right or obligation established hereunder, or any
dispute concerning the same, any and ail fees, costs and expenses reasonably
incurred by each successful party or him or its legal counsel in investigating,
preparing for, prosecuting, defending against, or providing evidence, producing
documents or taking any other action in respect of, such action shall be the
joint and several obligation of and shall be paid or reimbursed by the
unsuccessful party.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement.
Xxxxx Xxxxxxxxx Monopath, LLC
Xxxxx Xxxxxxxxx Monopath, LLC
By:/s/Xxxxx Xxxxxxxxx By:/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Personally Xxxxx Xxxxxxxxx-Managing Director
Attest:
Witnesses
Sign /s/Xxxx Xxxxx, III Name /s/R. Xxxxx Xxxx
Print Xxxx Xxxxx, III Print R. Xxxxx Xxxx
