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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and effective as of the sixth
day of May, 1996, by and between JALATE, LTD., a California corporation (the
"Company"), and XXXXXXXXX X. XXXXXXX (the "Employee"), with respect to the
following facts:
A. The Company desires to be assured of the continued association
and services of the Employee in order to take advantage of his experience,
knowledge and abilities in the Company's business, and is willing to employ the
Employee, and the Employee desires to be so employed, on the terms and
conditions set forth in this Agreement.
B. The Employee from time to time in the course of his employment
may learn trade secrets and other confidential information concerning the
Company, and the Company desires to safeguard such trade secrets and
confidential information against unauthorized use and disclosure.
ACCORDINGLY, on the basis of the representations, warranties and
covenants contained herein, the parties hereto agree as follows:
1. EMPLOYMENT
1.1 EMPLOYMENT. The Company hereby employs the
Employee as Vice President-Finance and Chief Financial Officer, and the Employee
hereby accepts such employment, on the terms and conditions set forth below, to
perform during the term of this Agreement such services as are required
hereunder.
1.2 DUTIES. The Employee shall render such
services to the Company, and shall perform such duties and acts, as reasonably
may be required by the Company's Board of Directors in connection with the
Company's business and as may be consistent with his position.
1.3 SERVICE TO OTHERS. The Employee shall devote
substantially all his productive time, ability and attention to, and shall
diligently and conscientiously use his best efforts to further, the Company's
business, and shall not, without prior written consent of the Company's Board
of Directors in each instance, perform services of any kind, whether or not for
compensation, for any person other than the Company, which services, in the sole
opinion of the Company's Board of Directors, might materially interfere with
the performance of his duties hereunder.
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2. COMPENSATION
2.1 COMPENSATION. As the total consideration for
the services which the Employee renders hereunder, the Employee shall be
entitled to the following:
(a) an annual base salary of $140,000,
subject to such periodic increases, if any, as the Board of Directors may deem
to be appropriate in its sole discretion, less income taxes and other
applicable withholdings, payable in weekly installments;
(b) an annual bonus in such amount and
subject to such performance criteria as the Board of Directors may deem to be
appropriate in its sole discretion, less income taxes and other applicable
withholding;
(c) participation in all plans or programs
sponsored by the Company for executive officers in general, including, without
limitation, participation in any group health plan, medical reimbursement plan,
life insurance plan, incentive plan or pension and profit sharing plan;
(d) reimbursement of any and all reasonable
and documented expenses incurred by the Employee from time to time in the
performance of his duties hereunder, which reimbursement shall be made in
accordance of the Company's policies and procedures adopted by the Board of
Directors as the same may be amended from time to time;
(e) four (4) weeks paid vacation per year
at such time or times as the Company's Board of Directors may authorize;
provided, however, that such vacation shall be taken annually and shall not
cumulate from year to year;
(f) an automobile allowance in the amount
of $750.00 per month; and
(g) an option to purchase from the Company
up to 60,000 shares of the Common Stock of the Company on the terms set forth
in EXHIBIT A attached hereto.
2.2 ILLNESS. Subject to the limitations contained
in Section 3.3, if the Employee shall be unable to render the services required
hereunder on account of personal injuries or physical or mental illness, he
shall continue to receive all payments provided in this Agreement; provided,
however, that any such payments may, at the sole option of the Company, be
reduced by any amount that the Employee receives for the period covered by such
payments as disability compensation under insurance policies, if any,
maintained by the Company or under government programs.
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3. TERM OF EMPLOYMENT AND TERMINATION
3.1 TERM. Unless sooner terminated pursuant to
Section 3.2 hereof, the term of employment under this Agreement shall be for a
period commencing on the date hereof and ending on December 31, 1997; PROVIDED,
however, that such term of employment automatically shall be renewed for
successive one (1) year terms unless written notice of termination is given by
either the Company or the Employee not less than ninety (90) days prior to the
end of the initial term or any subsequent one (1) year term.
3.2 AT WILL EMPLOYMENT. Each party hereby
acknowledges and agrees that, except as expressly set forth in Section 3.3, (i)
the Employee's employment under this Agreement is AT WILL and can be terminated
at the option of either the Company of the Employee in their sole and absolute
discretion, for any or no reason whatsoever, with or without cause, (ii) no
representations, warranties or assurances have been made concerning the length
of such employment by the Company or the aggregate amount of compensation to be
received by the Employee and (iii) after the termination of his employment, the
Employee shall have no right, title or interest in or claim to any revenues
received by the Company from any person for any goods sold or services rendered
by the Company to such person, whether or not the Employee was the cause, in
whole or in part, for such person to purchase goods from the Company or to
retain the Company to perform such services.
3.3 DUTIES UPON TERMINATION. In the event that
employment under this Agreement is terminated, whether at the expiration of the
initial term or any subsequent one (1) year term or prior thereto pursuant to
Section 3.2, neither the Company nor the Employee shall have any remaining dues
or obligations hereunder, except that (i) the Company shall pay to the
Employee, or his estate, such compensation as is due pursuant to Section 2.1,
prorated through the date of termination, (ii) the Employee shall continue to
be bound by Section 4 hereof and (iii) in the event the Company shall terminate
such employment "without cause" (as defined below) or there shall occur a
"change in control" of the Company (as defined below), the Company shall
continue to pay to the Employee, or his estate, for a period of six months
after the effective date of such termination of employment or change in control
such compensation as otherwise would be due pursuant to Section 2.1 during such
six month period.
3.4 "WITHOUT CAUSE." The employment of the
Employee shall be deemed to have been terminated by the Company without cause
if, but only if, it is terminated by the Company other than upon the happening
of any of the following events:
(ii) the death of the Employee, or
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(iii) if in the reasonable judgment of the Company's
Board of Directors the Employees has become so physically or mentally disabled
as to be incapable of substantially performing his duties hereunder for a
period of three (3) consecutive months or an aggregate of 90 days in any six
(6) month period; or
(iv) in the event of (A) a material breach of this
Agreement by reason of the Employee's continued and willful failure or refusal
to substantially perform his duties in accordance with this Agreement or (B)
the conviction of the Employee of a felony or of a misdemeanor involving
financial impropriety or (C) the material breach of the Employee's fiduciary
duty to the Company; provided, however, that no termination shall occur under
clause (A) unless the Employee first shall have received written notice
specifying the acts or omissions alleged to constitute such breach and, if such
breach can be corrected, it continues after the Employee shall have had
reasonable opportunity (but in no event less than thirty (30) days) to correct
the same.
4. "Change in Control." The term "Change of Control" shall mean
the first to occur of the following events:
(i) any date upon which the directors of the Company who
were last nominated by the Board of Directors (the "Board") for election as
directors cease to constitute a majority of the directors of the Company:
(ii) the date of the first public announcement that any
person or entity, together with all Affiliated and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of such person or
entity, shall have become the Beneficial Owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of voting securities of the Company
representing 25% or more of the voting power of the Company (a "25%
Stockholder"): provided, however, that the terms "person" and "entity," as used
in this clause (ii), shall not include (1) the Company or any of its
subsidiaries, (2) any employee benefit plan of the Company or any of its
subsidiaries, (3) any entity holding voting securities of the Company for or
pursuant to the terms of any such plan (4) any person or entity if the
transaction that resulted in such person or entity becoming a 25% Stockholder
was approved in advance by the Board or (5) any person or entity who was a 25%
Stockholder on the date hereof; or
(iii) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United States)
the consummation of which results in the outstanding shares of Common Stock of
the Company being exchanged for or converted into cash, property or a different
kind of securities.
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5. TRADE SECRETS
5.1 TRADE SECRETS. The Employee shall not, without
the prior written consent of the Company's Board of Directors in each instance,
disclose or use in any way, either during his employment by the Company or
thereafter, except as required in the course of such employment, any
confidential business or technical information or trade secret of the Company
acquired in the course of such employment, whether or not patentable,
copyrightable or otherwise protected by law, and whether or not conceived of or
prepared by him (collectively, the "Trade Secrets"), including, without
limitation, any information concerning customer lists, products, procedures,
operations, investments, financing, costs, employees, purchasing, accounting,
marketing, merchandising, sales, salaries, pricing, profits and plans for
future development, the identity, requirements, preferences, practices and
methods of doing business of specific parties with whom the Company transacts
business, and all other information which is related to any product, service or
business of the Company, other than information which is generally known in the
industry in which the Company transacts business or is acquired from public
sources, all of which Trade Secrets are the exclusive and valuable property of
the Company.
5.2 TANGIBLE ITEMS. All files, accounts, records,
documents, books, forms, notes, reports, memoranda, studies, compilations of
information, correspondence and all copies, abstracts and summaries of the
foregoing, and all other physical items related to the Company, other than a
merely personal item, whether of a public nature or not, and whether prepared
by the Employee or not, are and shall remain the exclusive property of the
Company and shall not be removed from the premises of the Company, except as
required in the course of employment by the Company, without the prior written
consent of the Company's Board of Directors in each instance, and the same
shall be promptly returned to the Company by the Employee upon the expiration or
termination of his employment by the Company or at any time prior thereto upon
the request of the Company.
5.3 SOLICITATION OF EMPLOYEES. During his
employment by the Company and for one (1) year thereafter (such period not to
include any period of violation hereof by the Employee or period which is
required for litigation to enforce this paragraph and during which the Employee
is in violation hereof), the Employee shall not, directly or indirectly, either
for his own benefit or purposes or the benefit or purposes of any other person
employ or offer to employ, call on, solicit, interfere with or attempt to
divert or entice away any employee or independent contractor of the Company (or
any person whose employment or status as an independent contractor has
terminated within the twelve (12) months preceding the date of such
solicitation) in any capacity if that person possesses or has knowledge of any
Trade Secrets or the Company.
5.4 INJUNCTIVE RELIEF. The Employee hereby
acknowledges and agrees that it would be difficult to fully compensate the
Company for damages resulting from the breach or threatened breach of the
foregoing provisions and, accordingly, that the Company shall be
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entitled to temporary and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, to enforce such
provisions without the necessity of proving actual damages and without the
necessity of posting any bond or other undertaking in connection therewith.
This provision with respect to injunctive relief shall not, however, diminish
the Company's right to claim and recover damages.
5.5 "COMPANY". For the purposes of this Section 4 only,
the term "Company" shall mean collectively Jalate, Ltd., a California
corporation, and its successors, assigns and nominees, and all individuals,
corporations and other entities that directly, or indirectly through one or more
intermediaries, control or are controlled by or are under common control with
any of the foregoing.
6. MISCELLANEOUS
6.1 SEVERABLE PROVISIONS. The provisions of this Agreement
are severable, and if any one or more provisions may be determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining
provisions, and any partially unenforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
6.2 SUCCESSORS AND ASSIGNS. All of the terms, provisions
and obligations of this Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective heirs, representatives,
successors and assigns. Notwithstanding the foregoing, neither this Agreement
nor any rights hereunder shall be assigned, pledged, hypothecated or otherwise
transferred by the Employee without the prior written consent of the Company in
each instance.
6.3 GOVERNING LAW. The validity construction and
interpretation of this Agreement shall be governed in all respects by the laws
of the State of California applicable to contracts made and to be performed
wholly within that State.
6.4 CONSENT TO JURISDICTION. Each party hereto, to the
fullest extent it may effectively do so under applicable law, irrevocably (i)
submits to the exclusive jurisdiction of any court of the State of California
or the United States of America sitting in the City of Los Angeles over any
suit, action or proceeding arising out of or relating to this Agreement, (ii)
waives and agrees not to assert, by way of motion, as a defense or otherwise,
any claim that it is not subject to the jurisdiction of any such court, any
objection that it may now or hereafter have to the establishment of the venue
of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum, (iv) consents to process being served in any
such suit, action or proceeding by mailing a
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copy thereof by registered or certified air mail, postage prepaid, return
receipt requested, to the address of such party specified in or designated
pursuant to Section 5.7. Each party agrees that such service (i) shall be
deemed in every respect effective service of process upon such party in any
such suit, action or proceeding and (ii) shall, to the fullest extent permitted
by law, be taken and held to be valid personal service upon and personal
delivery to such party.
6.5 HEADINGS. Section and subsection headings are
not to be considered part of this Agreement and are included solely for
convenience and reference and in no way define, limit or describe the scope of
this Agreement or the intent of any provisions hereof.
6.6 ENTIRE AGREEMENT. This Agreement constitutes
the entire agreement between the parties hereto pertaining to the subject
matter hereof, and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, relating to the subject
matter of this Agreement. No supplement, modification, waiver or termination
of the Agreement shall be valid unless executed by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
6.7 NOTICE. Any notice or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given (i) if personally delivered, when so delivered, (ii) if mailed, one
(1) week after having been placed in the United States mail, registered or
certified, postage prepaid, addressed to the party to whom it is directed at
the address set forth below or (iii) if given by telex or telecopier, when such
notice or other communication is transmitted to the telex or telecopier number
specified below and the appropriate answerback or telephonic confirmation is
received. Either party may change the address to which such notices are to be
addressed by giving the other party notice in the manner herein set forth.
6.8 ATTORNEYS' FEES. In the event any party takes
legal action to enforce any of the terms of this Agreement, the unsuccessful
party to such action shall pay the successful party's expenses, including
attorneys' fees, incurred in such action.
6.9 THIRD PARTIES. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person other than the
Company or Employee any rights or remedies under or by reason of this Agreement.
6.10 LEGAL COUNSEL. EACH PARTY HEREBY ACKNOWLEDGES
THAT IN CONNECTION WITH THIS AGREEMENT IT HAS SOUGHT THE ADVICE OF SUCH
INDEPENDENT LEGAL COUNSEL AS IT SHALL HAVE DETERMINED TO BE NECESSARY OR
ADVISABLE IN ITS SOLE AND ABSOLUTE DISCRETION.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first set forth above.
JALATE, LTD.
BY___________________________
Authorized Representative
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
/s/ XXXXXXXXX X. XXXXXXX
_____________________________
XXXXXXXXX X. XXXXXXX
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxxxx 00000
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