AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.2
AMENDMENT
TO EMPLOYMENT AGREEMENT
This Amendment (“Amendment”) is
made among Zynex Medical, Inc., a Colorado corporation and Zynex, Inc., a Nevada
corporation (collectively, “Employer”), and Xxxxxx Xxxxxxxxx (the “Employee”),
to amend certain provisions of the Employment Agreement (the “Agreement”), dated
February 1, 2004, between Employee and Zynex Medical, Inc., as such Agreement
was amended by the amendment dated January 1, 2005.
1. The
Agreement is hereby amended to add Zynex, Inc. as a party. All
references to “Employer” contained in the Agreement shall refer to Zynex
Medical, Inc. and Zynex, Inc. collectively.
2. Section (1)
of the Agreement is hereby amended and restated in its entirety as
follows:
1. Term. Subject
to the terms of this Section 1 and Sections 7, 8 and 9, this Agreement shall
commence on February 1, 2004 and expire on the earlier of the Employee’s death,
resignation, or December 31, 2009 (the date on which this Agreement shall
expire, as such date may be extended in accordance with the terms of this
Section 1 is hereinafter referred to as the "Expiration
Date"). Subject to the terms of Sections 7, 8 and 9, unless either
party gives written notice to the other of its desire to terminate this
Agreement at least thirty days prior to the then current Expiration Date or
Extended Period (the "Termination Notification Date"), this Agreement will be
automatically extended for further period(s) of one year from the then current
Expiration Date (the "Extended Period") on the same terms and conditions as
herein set forth. Except when the contrary is indicated, the phrase
"the term of this Agreement" shall henceforth be deemed to include the Extended
Period.
3. Section
(4) of the Agreement is hereby amended and restated in its entirety as
follows:
4.
Compensation.
a. Commencing
July 1, 2009, the Employer shall pay to the Employee for the loyal and
consistent services provided to it hereunder a fee at the rate of $24,000 per
month. The Employee’s compensation shall be reviewed at least
annually for appropriate adjustments at the end of each year as determined by
the Board of Directors of Zynex, Inc. (the “Board”).
b. Employee
shall also receive after the end of each quarter during the term of this
Agreement, bonus compensation based on exceeding cash collections and EBITDA
amounts as shown in the budget of Zynex, Inc. that has been accepted by the
Board for the applicable period as follows:
|
Cash
Collections
Meeting
Budgeted
Amounts
for Quarter
|
Bonus
|
|
Less
than 100%
|
$0
|
|
at or >100%
|
$20,000
|
|
EBITDA
Meeting
Budgeted
Amounts
for Quarter
|
Bonus
|
|
Less
than 100%
|
$0
|
|
at or >100%
|
$20,000
|
c. The
Board may include or exclude amounts from cash collections or EBITDA for
purposes of calculating the bonus if the Board deems such amounts to be unusual
or infrequent.
d. If
the Employee has been disabled for a period of at least three months during
which period he was disabled for 30 consecutive days, the Employer may elect,
upon notice to the Employee, to pay the Employee one-third of the base
compensation the Employee would otherwise be entitled to pursuant to Section
4(a) for the relevant quarter and shall thereupon have no further compensation
obligations under this Section 4 or under any provisions for reimbursement of
expenses. Disability shall mean the Employee's inability, due to
sickness or injury, to perform effectively his duties hereunder.
e. If
Employee is terminated or the Employer notifies the Employee in respect of his
disability, incentive compensation in respect of the fiscal quarter of such
termination or in which such notice is given shall be paid an amount equal to
the product of the incentive compensation to which he would otherwise be
entitled, multiplied by a fraction having a numerator equal to the number of
days in such quarter preceding the date of termination and a denominator equal
to 90; provided that the Employee shall not be entitled to any unpaid incentive
compensation amounts if Employee is terminated pursuant to Section 6
below.
4. The
paragraph below is hereby added as new Section 10 and the existing Section 10
and subsequent Sections are hereby re-numbered accordingly:
10. Inventions. The
Employee hereby sells, transfers and assigns to the Employer or to any person,
or entity designated by the Employer, all of the entire right, title and
interest of the Employee in and to all inventions, ideas, disclosures and
improvements, whether patented or unpatented, and copyrightable material, made
or conceived by the Employee, solely or jointly, or in whole or in part, during
or before the term hereof which (i) relate to methods, apparatus, designs,
products, processes or devices sold, leased, used or under construction or
development by the Employer or any subsidiary or (ii) otherwise relate to or
pertain to the business, functions or operations of the Employer or any
subsidiary. The Employee shall communicate promptly and disclose to
the Employer, in such form as the Employer requests, all information, details
and data pertaining to the aforementioned inventions, ideas, disclosures and
improvements; and, whether during the term hereof or thereafter, the Employee
shall execute and deliver to the Employer such formal transfers and assignments
and such other papers and documents as may be required of the Employee to permit
the Employer or any person or entity designated by the Employer to file and
prosecute the patent applications and, as to copyrightable material, to obtain
copyright thereon. Any invention by the Employee within one year
following the termination of this Agreement shall be deemed to fall within the
provisions of this paragraph unless proved by the Employee to have been first
conceived and made following such termination.
Except as
expressly modified by this Amendment, all other terms and conditions of the
Agreement shall remain in full force and effect and shall not be altered by this
Amendment.
The
undersigned have executed this Amendment effective as of July 1,
2009.
|
Zynex,
Inc.
|
||
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
|
By: Xxxxxx
Xxxxxxxxx
|
||
|
Its: CEO
|
||
|
Zynex
Medical, Inc.
|
||
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
|
By: Xxxxxx
Xxxxxxxxx
|
||
|
Its: CEO
|
||
|
Xxxxxx
Xxxxxxxxx
|
||
|
/s/ Xxxxxx
Xxxxxxxxx
|
||
