Exhibit 10.28
PARADIGM MEDICAL INDUSTRIES, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 14th day of September, 1998, by and between PARADIGM MEDICAL INDUSTRIES,
INC., a Delaware corporation (the "Company") and XXXXXX X. XXXXXX (the
"Employee") , effective as of January 1, 1998 (the "Effective Date").
NOW THEREFORE, In consideration of Employee's employment by the Company,
and the mutual promises and covenants contained in, and the mutual benefits to
be derived from this Agreement, and to set forth and establish the terms and
conditions upon which Employee shall be employed by the Company, the parties
hereto agree as follows:
1. Employment.
The Company hereby employs Employee and Employee hereby accepts such
employment, upon the terms and conditions set forth herein.
2. Terms and Conditions of Employment.
(a) Employee shall be employed in the position of Vice
President of Engineering and Manufacturing and shall supervise, control
and be responsible for all aspects of the business activities of the
Company and its subsidiaries, including direct supervision of the
day-to-day operations of the Company and its subsidiaries. Employee
shall also serve as a member of the Executive Committee. Employee shall
also perform such related services and duties for the Company as are
from time to time assigned or delegated to him from time to time by the
Board of Directors.
(b) Throughout his employment hereunder, Employee shall devote
his full time, energy and skill to perform the duties of his employment
(reasonable vacations in accordance with this Agreement and reasonable
absences due to illness excepted) , shall faithfully and industriously
perform such duties, and shall use his best efforts to follow, and
implement all management policies and decisions of the Board of
Directors.
3. Compensation and Benefits.
As the entire consideration for the services to be performed and the
obligations incurred by the Employee hereunder, and subject to the
terms and conditions hereof, during the term of this Agreement Employee
shall be entitled to the following:
(a) Salary. Commencing from the effective date of this
Agreement, the Company shall pay Employee an annual salary ("Annual
Salary") of $125,000. Such Annual Salary, which shall be pro-rated for
any partial employment period, will be payable in equal bi-weekly
installments or at such other intervals as may be established for the
Company's customary pay schedule. The Annual Salary is subject to such
incremental increases as the Board of Directors may determine from time
to time in its sole discretion.
(b) Bonus. As further compensation to Employee for his
entering into this Agreement for services to be rendered by Employee,
the Company may pay Employee annually following the end of each fiscal
year, a cash bonus. Such bonus shall be paid to Employee upon the
satisfaction by the Company of the performance objectives that shall be
determined by the Board of Directors of the Company on an annual basis.
Employee shall have the right to direct any portion of the bonus to be
paid into a deferred compensation fund.
(c) Additional Benefits. Employee shall be entitled to
participate, to the extent of Employee's eligibility, in any employee
benefit plans made available by the Company to its employees during the
term of this Agreement, including, without limitation, such profit
sharing plans, 401K and cafeteria plans, and health, life,
hospitalization, dental, disability or other insurance plans as may be
in effect from time to time. Such participation shall be in accordance
with the terms established from time to time by the Company for
individual participation in any such plans.
(d) Life Insurance. The Company shall provide the Employee
with a life insurance policy in an amount equal to twice his Annual
Salary.
(e) Vacation, Sick Leave, and Holidays. Employee shall be
entitled to four (4) weeks of vacation, and also sick leave and
holidays at full pay in accordance with the Company's policies
established and in effect from time to time.
(f) Car Allowance. Employee shall be entitled to an automobile
allowance of $500 per month payable on the first day of each month. The
Company shall also be responsible for the payment of insurance and
property taxes relating to such automobile.
(g) Deductions. The Company shall have the right to deduct and
withhold from the compensation due to Employee hereunder, including
Employee's Annual Salary and Compensation Bonus, if any, such taxes and
other amounts as may be customary or required by law.
4. Business Expenses.
The Company shall promptly reimburse Employee for all reasonable
out-of-pocket business expenses incurred in performing Employee's duties
hereunder, in accordance with the Company's policies with respect thereto in
effect from time to time (including without limitation policies regarding prior
consent for significant expenditures), provided that Employee promptly furnishes
to the Company adequate records and other documentary evidence required by all
federal and state statutes and regulations issued by the appropriate taxing
authorities for the substantiation of each such business expense as a deduction
on the federal and state income tax returns of the Company.
5. Term and Termination.
(a) Term. The term of this Agreement shall commence on the
Effective Date of this Agreement, and subject to earlier termination as
provided below, and except for the provisions of this Agreement and the
Exhibits hereto which, by their terms, continue in force beyond the
termination hereof, the term of this Agreement shall end on the fifth
anniversary of the Effective Date (January 1, 2003).
(b) Termination on Death and for Cause. This Agreement, and
Employee's employment hereunder, shall terminate upon Employee's death
and is otherwise immediately terminable for cause (as defined below)
upon written notice from the Company to Employee. As used in this
Agreement, "cause" shall include: (i) habitual neglect of or deliberate
or intentional refusal to perform any of Employee's duties or
obligations under this Agreement or to follow Company policies or
procedures; (ii) fraudulent or criminal activities; (iii) any grossly
negligent or dishonest or unethical activity; (iv) breach of fiduciary
duty, deliberate breach of Company rules resulting in loss or damage to
the Company, or unauthorized disclosure of Company trade secrets or
confidential information; or (v) if Employee fails to fulfill for two
(2) consecutive years the annual performance goals and objectives,
which shall be mutually determined by the Employee and the Board of
Directors. A determination of whether Employee's actions justify
termination for cause and the date such termination is effective shall
be made by the Board of Directors in its sole discretion.
(c) Termination for Disability. The Company's Board of
Directors may terminate this Agreement, upon written notice to
Employee, for the "disability" (as defined below) of Employee at the
expiration of a consecutive twenty-six (26) week period of disability
if the Board of Directors determines in its sole discretion that
Employee's disability will prevent Employee from substantially
performing Employee's duties hereunder. As used in this Agreement,
"disability" shall be defined as (i) Employee's inability, by reason of
physical or mental illness or other cause, to perform substantially
Employee's duties hereunder; or (ii) , in the discretion of the Board
of Directors, as it is defined in any disability insurance policy in
effect at the Company during the time in question. Employee shall
receive full compensation, benefits, and reimbursement of expenses
pursuant to the terms of this Agreement from the date disability begins
until the date Employee receives notice of termination under this
paragraph or until Employee begins to receive disability benefits
pursuant to a Company disability insurance policy, whichever occurs
first.
(d) Effect of Termination. In the event Employee's employment
is terminated hereunder, all obligations of the Company and all
obligations of Employee shall cease except as otherwise provided herein
or in the Exhibits hereto. Upon such termination, Employee or
Employee's representative or estate shall be entitled to receive only
the compensation, benefits, and reimbursement earned or accrued by
Employee under the terms of this Agreement prior to the date of
termination computed pro rata up to and including the date of
termination, but shall not be entitled to any further compensation,
benefits, or reimbursement from such date.
6. Covenant Not to Compete
(a) Covenant. Employee hereby covenants and agrees that during
the term of this Agreement and for a period of two (2) years
thereafter, he will not, except as a director, officer, employee or
consultant of the Company, or any subsidiary or affiliate of the
Company, directly or indirectly own, manage, operate, join, control, or
participate in the ownership, management, operation or control of, or
be connected with (as director, officer, employee, consultant, agent,
independent contractor of otherwise) in any other manner with any
business engaged in the Defined Business (as described below) which is
the same or substantially similar in nature to the business engaged in
by the Company in the State of Utah, and each of the other states in
the United States, and each foreign country, in which the Company may
engage (whether directly or indirectly through subsidiaries,
affiliates, franchisees, licensees, representatives, agents or
otherwise) during the term of this Agreement and Employee's employment
with the Company.
(b) Definition of Defined Business. As used herein, the term
"Defined Business" shall any business currently engaged in by the
Company or contemplated by the Company.
(c) Non-Solicitation Agreement. Employee shall not, directly
or indirectly, employ, solicit for employment, or advise or recommend
to any other person that they employ or solicit for employment, any
employee of the Company (or any subsidiary or affiliate), during the
term of this Agreement and Employee's employment with the Company and
for a term of two years thereafter; provided however, that this
paragraph shall not preclude Employee from giving an employment
reference at the request of any employee of the Company or at the
request of a prospective employer of such employee.
(d) Conflicting Employment. Employee shall not, during the
term of his employment with the Company, engage in any other
employment, occupation, consulting or other business activity directly
related to the business in which the Company is now involved or becomes
involved during the term of his employment, nor will Employee engage in
any other activities that conflict with his obligations to the Company.
(e) Unique and Essential Nature of Services of Employee.
Employee understands and acknowledges that the Company is entering into
this Agreement in reliance upon the unique and essential nature of the
personal services the Employee is to perform as an employee of the
Company and that irreparable injury would befall the Company or its
subsidiaries or affiliates should Employee serve a competitor of, or
compete, with the Company or any of its subsidiaries or affiliates.
(f) Injunctive and Equitable Relief. Employee covenants and
agrees that the Company's remedy at law for any breach or violation of
the provisions of this Section 6 are inadequate and that, in the event
of any such breach or violation, the Company shall be entitled to
injunctive relief in addition to any other remedy, at law or in equity,
to which it may be entitled.
(g) Acknowledgment of Reasonableness of Restrictions. Employee
specifically acknowledges and agrees that the two year post-employment
limitation upon his activities as specified above, together with the
geographical limitations set forth above, are reasonable limitations as
to time and place upon Employee's post-employment activities and that
the restrictions are necessary to preserve, promote and protect the
business, accounts and good-will of the Company and impose no greater
restraint than is reasonably necessary to secure such protection.
h) Limitation on Scope or Duration. In the event that any
provision of this Section 6 shall be held invalid or unenforceable by a
court of competent jurisdiction by reason of the geographic or business
scope or the duration thereof, such invalidity or unenforceability
shall attach only to the scope or duration of such provision and shall
not affect or render invalid or unenforceable any other provision of
this Section 6 and, to the fullest extent permitted by law, this
Section shall be construed as if the geographic or business scope or
the duration of such provision had been more narrowly drafted so as not
to be invalid or unenforceable but rather to provide the broadest
protection to the Company permitted by law.
7. Confidential Information Agreement.
Employee agrees that Employee will keep confidential and will not,
during or after this Agreement, disclose, divulge, furnish or make accessible to
any person, firm, corporation or other business entity, any information, trade
secrets, customer information, marketing information, sales information, cost
information, technical data, know-how, secret processes, discoveries, methods,
patentable or unpatentable ideas, formulae, processing techniques or technical
operations relating to the business, business practices, methods, products,
processes, equipment or any confidential or secret aspect of the business of the
Company (collectively, the "Confidential Information") without the prior written
consent of the Company. Upon the termination of this Agreement for any reason,
and at any time prior thereto upon request by the Company, Employee shall return
to the Company all written records of any Confidential Information, together
with any and all copies of such records, in Employee's possession. Any
Confidential Information which Employee may conceive of or make during the term
of this Agreement shall be and remain the property of the Company. Employee
agrees promptly to communicate and disclose all such Confidential Information to
the Company and to execute and deliver to the Company any instruments deemed
necessary by the Company to effect disclosure and assignment thereof to it.
8. Assignment.
This Agreement is for the unique personal services of Employee and is
not assignable or delegable in whole or in part by Employee without the consent
of the Board of Directors of the Company. This Agreement may be assigned or
delegated in whole or in part by the Company and, in such case, the terms of
this Agreement shall inure to the benefit of, be assumed by, and be binding upon
the entity to which this Agreement is assigned.
9. Inventions
(a) Disclosure of Inventions. The Employee hereby agrees that
if he conceives, learns, makes, or first reduces to practice, either alone or
jointly with others, any inventions, improvements, original works of authorship,
formulas, processes, computer programs, techniques, know-how, or data relating
to the Defined Business (hereinafter referred to collectively as "Inventions")
while he is employed by the Company, he will promptly disclose such Inventions
to the Company or to any person designated by it. Notwithstanding the fact that
the Employee may determine that the Company has no right to such Invention, he
shall nevertheless promptly disclose any such Invention to the Company or to any
person designated by it upon reasonable request.
(b) Ownership, Assignment, Assistance, and Power of
Attorney. All Inventions related to ophthalmic instrumentation shall be the sole
and exclusive property of the Company, and the Company shall have the right to
use and to apply for patents, copyrights, or other statutory or common law
protection for such Inventions in any country. The Employee hereby assigns to he
Company any rights which he may acquire in such Inventions. Furthermore, the
Employee agrees to assist the Company in every proper way at the Company's
expense to obtain patents, copyrights, and other statutory common law
protections for such Inventions in any country and to enforce such rights from
time to time. Specifically, the Employee agrees to execute all documents as the
Company may desire for use in applying for and in obtaining or enforcing such
patents, copyrights, and other statutory or common law protections together with
any assignments thereof to the Company or to any person designated by the
Company. In the event the Company is unable for any reason whatsoever to secure
the Employee's signature to any lawful document required to apply for or to
enforce any patent, copyright, or other statutory or common law protections for
such Inventions, the Employee hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as his agents and
attorneys-in-fact to act in his stead to execute such documents and to do such
other lawful and necessary acts to further the issuance and protection of such
patents, copyrights, or other statutory or common law protection, such documents
or such acts to have the same legal force and effect as if such documents were
executed by or such acts were done by the Employee.
10. Waiver or Modification.
Any waiver, modification or amendment of any provision of this
Agreement shall be effective only if in writing in a document that specifically
refers to this Agreement and such document is signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any other provision hereof or any subsequent breach of the same provision
hereof.
11. Severability.
If any provision of this Agreement is found to be unenforceable by a
court of competent jurisdiction, the remaining provisions shall nevertheless
remain in full force and effect.
12. Notices.
Any notice required or permitted hereunder to be given by either party
shall be in writing and shall be delivered personally or sent by certified or
registered mail, postage prepaid, or by private courier, or by telex or telegram
to the party to the address set forth below or to such other address as either
party may designate from time to time according to the terms of this paragraph:
To Employee at: Xxxxxx X. Xxxxxx
0000 X. Xxxxx Xxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
To the Company at: Paradigm Medical Industries, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to:
A notice delivered personally shall be effective upon receipt. A notice
sent by facsimile or telegram shall be effective 24 hours after the dispatch
thereof. A notice delivered by mail or by private courier shall be effective on
the 3rd day after the day of mailing.
13. Attorney's Fees.
In the event of any action at law or equity to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees and court costs in addition to any other relief to which such
party may be entitled.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Utah applicable to contracts entered into and to be
performed within such State.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first set forth above.
EMPLOYEE:
Xxxxxx X. Xxxxxx
__________________________
Xxxxxx X. Xxxxxx
THE COMPANY:
PARADIGM MEDICAL INDUSTRIES, INC., a
Delaware corporation
Xxxxxx X. Xxxxxx
__________________________
By: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer & President
