EXHIBIT 10.45
Employment Agreement dated February 1, 1999 between
the Registrant and Xxxxx Xxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of February 1999 between Global Med
Technologies, Inc., a Colorado corporation (the "Employer") and Xxxxx Xxxxx (the
"Employee").
WHEREAS, Employee is presently employed by Employer;
WHEREAS, Employer desires to continue the employment of Employee and
has negotiated with Employee with respect to the terms of such employment;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the Employer and Employee hereby agree as follows:
ARTICLE I
TERM OF EMPLOYMENT
1.1 Employment. The Employer agrees to continue to employ the Employee
and the Employee agrees to continue to be employed by the Employer upon the
terms and conditions hereinafter set forth.
1.2 Term. The employment of the Employee by the Employer as provided
herein shall commence February 1, 1999 and shall end January 31, 2002, unless
otherwise superseded by section 4.1 or 4.4.3, provided, however, that at the
close of the second year of this agreement the initial term hereof shall be
automatically extended for an additional two years beyond the initial term (for
a new initial term of five years from the Closing Date) unless Employer or
Employee provides notice of the contrary at least 90 days prior to the close of
the second year.
1.3 Office and Support. Employee shall be provided an office and
support staff, as appropriate, at Employer's Wyndgate division in Sacramento,
California.
ARTICLE II
DUTIES OF THE EMPLOYEE
2.1 Duties. The Employee shall be employed with the title of Vice
President Operations, Wyndgate Technologies, with responsibilities and authority
as are customarily performed by such an employee, as defined in schedule 2.1,
and as may from time to time be assigned to Employee by Employer's President and
Chief Operating Officer or Board of Directors. Employee shall report directly to
the President and COO of Wyndgate Technologies.
2.2 Extent of Duties. Employee shall devote substantially his full
business time, attention and energies to the business of the Employer.
2.3 Disclosure of Information.
2.3.1 The Employee recognizes and acknowledges that the
information, processes, developments, experimental work,
work in progress, business, list of the Employer's customers
and any other trade secret or other secret or confidential
information relating to Employer's business as they may
exist from time to time are valuable, special and unique
assets of Employer's business. Therefore, Employee agrees
that:
(i) Employee will hold in strictest confidence and not
disclose, reproduce, publish or use in any manner,
whether during or subsequent to his employment, without
the express authorization of the Board of Directors of
the Employer, any information, process, development or
experimental work, work in process, business, customer
lists, trade secret or any other secret or confidential
matter relating to any aspect of the Employer's
business, except 1) as such disclosure or use may be
required in connection with Employee's work for the
Employer and 2) where such information or items have
become publicly known and made generally available
through no wrongful act of employee.
(ii) Upon request or at the time of leaving the employ of
the Employer, the Employee will deliver to the
Employer, and not keep or deliver to anyone else, any
and all notes, memoranda, documents and, in general,
any and all material relating to the Employer's
business.
2.3.2 In the event of a breach or threatened breach by the
Employee of the provisions of this section 2.3, the Employer
shall be entitled to an injunction (i) restraining the
Employee from disclosing, in whole or in part, any
information as described above or from rendering any
services to any person, firm, corporation, association or
other entity to whom such information, in whole or in part,
has been disclosed or is threatened to be disclosed; and/or
(ii) requiring that Employee deliver to Employer all
information, documents, notes, memoranda and any and all
discoveries or other material as described above upon
Employee's leave of the employ of the Employer. Nothing
herein shall be construed as prohibiting the Employer from
pursuing other remedies available to the Employer for such
breach or threatened breach, including the recovery of
damages from the Employee.
2.4 Non-Solicitation.
2.4.1 Non-Solicitation of Employees: During the period of
employment and for a period of 12 months after the cessation
of employment for any reason, whether with or without cause,
it is agreed that the Employee shall not directly or
indirectly, either alone or in concert with others, solicit
or entice any employee of or consultant to the company to
leave the company or work for anyone or entity in
competition with the Employer. It is understood and agreed
between the parties that this non-solicitation provision is
necessary for the protection of trade secrets and other
confidential information of the Employer.
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2.4.2 Solicitation of Customers: During the period of employment
and for a period of 12 months after the cessation of
employment for any reason, whether with or without cause, it
is understood that Employee shall not directly or
indirectly, either alone or in concert with others, solicit,
entice, or in any way divert any of the company's customers
(or potential customers with whom Employee has come in
contact while employed by Employer) or suppliers to do
business with any business entity in competition with the
company. It is understood and agreed between the parties
that this non-solicitation provision is necessary for the
protection of trade secrets and other confidential
information of the Employer.
ARTICLE III
COMPENSATION OF THE EMPLOYEE
3.1 Compensation. As compensation for services rendered under this
Agreement, the Employee shall receive a salary at the rate of $100,000 per annum
to be paid in accordance with Employer's normal practices. The salary provided
in this subsection shall in no way be deemed exclusive and shall not prevent
Employee from participating in any other compensation or benefit plan of
Employer. Employee's salary shall be reviewed on an annual basis (from start
date of July 6, 1998) and if Employee's performance is deemed satisfactory, his
salary shall be increased at least in an amount equal to the cost of living
increase for the prior year, providing that at least one other senior
management's salary (CEO or CFO) is increased by a similar cost of living raise.
In addition, Employee shall be eligible for a performance increase.
3.2 Incentive Compensation. Annually, on July 6 of each year while this
employment agreement is in effect, solely at the option of the Employer, the
Employee may be entitled to receive incentive compensation of up to 50% of
Employee's base salary of $100,000 per year. This incentive compensation shall
be based on objectives which shall be established by the parties by December 31
of each year for as long as the Employee continues his employment with the
Company. The terms and conditions of the incentive compensation are to be
determined solely by the COO, CEO and/or the Board of Directors. The Employee
shall give input into the objectives.
3.3 Benefits. Employee shall be entitled to participate in all of
Employer's employee benefit plans and employee benefits, including any
retirement, pension, profit-sharing, stock option, insurance, hospital or other
plans and benefits which now may be in effect or which may hereafter be adopted,
it being understood that Employee shall have the same rights and privileges to
participate in such plans and benefits as any other executive employee during
the term of this Agreement. Participation in any benefit plans shall be in
addition to the compensation provided for in Section 3.1. Employer shall pay
premiums for health insurance as defined in Schedule 3.3.
3.4 Stock Options. Upon execution of this agreement and in addition to
the 100,000 nonqualified stock options granted, Employee will receive 50,000
nonqualified stock options to purchase an aggregate of 50,000 shares of
Employer's common stock. Twenty percent (20%) of the total options granted shall
vest and become exercisable upon the anniversary date of the initial stock
options grant.
If Employer: (i) sells substantially all of its assets, or (ii)
merges or consolidates with another entity or otherwise reorganizes whereby the
total market value of Employer's common stock exceeds $100,000,000 as a result
of such transaction (iii) terminates employee for any reason other than
malfeasance prior to employees contract expiration; then the total in options
granted to Employee shall become immediately 100% vested and immediately
exercisable on the date preceding the effective date of such sale, merger,
consolidation or other reorganization; provided, however, that Employer and
Employee acknowledge that a secondary public offering or private placement or
other such financing of Employer's securities is specifically excluded from this
accelerated vesting provision.
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Notwithstanding any other provision in this Agreement, regardless of
the vesting Employee must be employed by Employer at the time of exercise in
order to exercise such options. However, all of the stock options that are
fully vested at the time the Employee or the Employer terminates the
Employee's employment, for any reason, shall be able to be exercised by the
employee within the exercisable period, provided, however, that the Employee's
termination is not for cause. Employee shall also be entitled to receive
additional stock options as additional compensation on Employee's annual
reviews based solely on the discretion of the Board of Directors.
3.5 Expenses. Employee shall be entitled to prompt reimbursement,
upon production of original receipts, for all reasonable expenses incurred by
Employee in the performance of his duties hereunder. Employer shall advance
reasonable estimates of such expenses upon request of the Employee.
ARTICLE IV
TERMINATION OF EMPLOYMENT
4.1 Termination. The Employee's employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
4.1.1. By Employee. Upon the occurrence of any of the following
events this Agreement may be terminated by the Employee by
written notice to Employer:
(i) the sale by Employer of substantially all of its
assets;
(ii) a decision by Employer to terminate its business and
liquidate its assets;
(iii)the merger or consolidation of Employer with another
entity or an agreement to such a merger or
consolidation or any other type of reorganization;
(iv) employer makes a general assignment for the benefit of
creditors, files a voluntary bankruptcy petition, files
a petition or answer seeking a reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law, there
shall have been filed any petition or application for
the involuntary bankruptcy of Employer, or other
similar proceeding, in which an order for relief is
entered or which remains undismissed for a period of
thirty days or more, or Employer seeks, consents to, or
acquiesces in the appointment of a trustee, receiver,
or liquidator of Employer or any material party of its
assets;
(v) there are material reductions in Employee's duties and
responsibilities without his written consent or a
demotion from his current position.
(vi) termination by the Company of Employee's employment
with the Company for any reason other than cause (as
defined in Section 4.14 below);
(vii)a five percent reduction in Employee's base
compensation (not including bonus), other than any such
reduction which is part of, and generally consistent
with, a general reduction of salaries; or
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(viii) a material reduction by the Company in the kind or
level of employee benefits (other than salary and
bonus) to which Employee is entitled immediately prior
to such reduction with the result that Employee's
overall benefits package (other than salary and bonus)
is substantially reduced (other than any such reduction
applicable to others in the Company generally).
(ix) Employer does not provide Employee with commercially
reasonable staffing, tools, or other necessary support
resources to implement and support Employer developed
products in manner consistent with industry standards
resulting in a mutually defined level of customer
satisfaction.
4.1.2 Death. This Agreement shall terminate upon the death of
Employee.
4.1.3 Disability. The Employer may terminate this Agreement upon
the permanent or temporary disability of the Employee.
Employee shall be considered disabled (whether permanent or
temporary) if: (1) he is disabled as defined in a disability
insurance policy purchased by or for the benefit of the
Employee; or (2) if no such policy is in effect, he is
incapacitated to such an extent that he is unable to perform
substantially all of his duties for 30 consecutive days for
Employer that he performed prior to such incapacitation.
4.1.4 Cause. The Employer may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, the
Employer shall have "Cause" to terminate the Employee's
employment hereunder upon the following: (1) habitual
neglect of duties or (2) willful breach of duties. The
Employer will provide notice of these and allow Employee 30
days time to cure.
4.2 Notice of Termination. Any termination of the Employee's employment
by the Employer or by the Employee (other than termination pursuant to
subsection 4.1.2 above) shall be communicated by written Notice of Termination
to the other party. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of employment under
the provision so indicated.
4.3 Date of Termination. "Date of Termination" shall mean (i) if the
Employee's employment is terminated by his death, the date of his death; and
(ii) if the Employee's employment is terminated for any other reason, the date
on which a Notice of Termination is received by Employer or Employee.
4.4 Payment of Salary/Severance Pay Following Termination.
4.4.1 In the event of temporary or permanent disability of the
Employee as described in subsection 4.1.3 hereof, Employee
shall be entitled to receive all compensation and benefits
payable up to the Date of Termination notwithstanding his
temporary or permanent disability during the 30 day period
preceding the Date of Termination; any such payment,
however, shall be reduced by disability insurance benefits,
if any, paid to Employee under policies (other than group
policies) for which Employer pays all premiums and Employee
is the beneficiary.
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4.4.2 Following the termination of this Agreement by the Employer
for Cause as provided in subsection 3.3.3 4.1.4 hereof, the
Employee shall be entitled only to compensation through the
Date of Termination.
4.4.3 nollowing the termination of this Agreement by the Employer
for any reason other than Cause, Death, or the temporary or
permanent disability of Employee, the Employee shall be
entitled to compensation and benefits for Eight months
following the date of termination.
4.5 Remedies. Any termination of this Agreement shall not prejudice any
other remedy to which the Employer or Employee may be entitled, either at law,
equity, or under this Agreement.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification. To the fullest extent permitted by applicable law,
Employer agrees to indemnify, defend and hold Employee harmless from any and all
claims, actions, costs, expenses, damages and liabilities, including, without
limitation, reasonable attorneys' fees, hereafter or heretofore arising out of
or in connection with activities of Employer or its employees, including
Employee, or other agents in connection with and within the scope of this
Agreement to the fullest extent permitted by applicable law, Employer shall
advance to Employee expenses of defending any such action, claim or proceeding.
However, Employer shall not indemnify Employee or defend Employee against, or
hold him harmless from any claims, damages, expenses or liabilities, including
attorneys' fees, resulting from the gross negligence or willful misconduct of
Employee to include punitive damage claims against the Employee. The duty to
indemnify shall survive the expiration or early termination of this Agreement as
to any claims based on facts or conditions which occurred or are alleged to have
occurred prior to expiration or termination.
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ARTICLE VI
GENERAL PROVISIONS
6.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
6.2 Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof shall be settled by arbitration in the City
and County of Sacramento, California, in accordance with the rules then existing
of the American Arbitration Association. Judgment upon the award may be entered
in any court having jurisdiction thereof. There shall be three arbitrators, one
to be chosen directly by each party at will, and the third arbitrator to be
selected by the two arbitrators so chosen. Each party shall be responsible to
pay the fees of the arbitrator he or she selects, and the fees of the third
arbitrator shall be borne equally by the parties. It is agreed and understood
that this arbitration clause means that each party waives their right to a jury
or bench trial over the controversies or claims mentioned in this paragraph. It
is further understood and agreed that the term "controversy or claim" as used in
this paragraph means any controversy or claim, including breach of contract,
breach of the covenant of good faith and fair dealing, discrimination claims,
harassment claims, claims of fraud, retaliation, whistleblowing, claims of
violations of the Americans With Disabilities Act, Older Workers Protection Act,
and any and all other state and federal laws under which a claim can be brought
by the employee or employer. This provision shall not restrict the right of
either the employee or the employer to seek injunctive relief from a court of
competent jurisdiction.
6.3 Entire Agreement. This Agreement supersedes any and all other
agreements, whether oral or in writing, between the parties with respect to the
employment of the Employee by the Employer.
6.4 Successors and Assigns. This Agreement, all terms and conditions
hereunder, and all remedies arising herefrom, shall inure to the benefit of and
be binding upon Employer, any successor in interest to all or substantially all
of the business and/or assets of Employer, and the heirs, administrators,
successors and assigns of Employee. Except as provided in the preceding
sentence, the rights and obligations of the parties hereto may not be assigned
or transferred by either party without the prior written consent of the other
party.
6.5 Notices. For purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee: Xxxxx Xxxxx
0000 Xxxxxx Xxxxxxx Xx.
Xxx. 00
Xxxxxx, Xxxxxxxxxx 00000
If to Employer: Global Med Technologies, Inc.
00000 X. Xxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxx, Chairman and CEO
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
6.6 Severability. If any provision of this Agreement is prohibited by
or is unlawful or unenforceable under any applicable law of any jurisdiction as
to such jurisdiction, such provision shall be ineffective to the extent of such
prohibition without invalidating the remaining provisions hereof.
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6.7 Section Headings. The section headings used in this Agreement are
for convenience only and shall not affect the construction of any terms of this
Agreement.
6.8 Survival of Obligations. Termination of this Agreement for any
reason shall not relieve Employer or Employee of any obligation accruing or
arising prior to such termination.
6.9 Amendments. This Agreement may be amended only by written agreement
of both Employer and Employee.
6.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute only one legal instrument. This Agreement shall
become effective when copies hereof, when taken together, shall bear the
signatures of both parties hereto. It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
6.11 Fees and Costs. If any action at law or in equity (in civil court
or in arbitration) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys fees,
costs and necessary disbursements in addition to any other relief to which that
party may be entitled.
6.12 Legal Review. The parties agree that the employee was provided
the opportunity to review this agreement with legal counsel.
"EMPLOYER"
GLOBAL MED TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx, Chairman and CEO
"EMPLOYEE"
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
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Schedule 2.1
Duties of Employee
Employee shall be responsible for the operations and other projects and
responsibilities at Wyndgate Technologies under the direction of the COO.
Employee will report to the President and COO of Global Med Technologies, Inc.
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Schedule 3.3
Benefits
1. Employee will accrue vacation time at the rate of 13.33 hours per month.
Employee will also be entitled to all company paid holidays as are
customarily extended to company employees.
2. Employer shall pay 100% of the cost of health and dental insurance under
Employer's health plan for Employee and Employee's immediate family.
Employee shall have the right to select the desired health plan coverage
from the Employer's available health plan options.
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