EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”)
is
made as of November
3, 2008
(the
“Effective
Date”),
by
and between Xxxxx
Xxxxx
(“Executive”)
and
Global Med Technologies, Inc. (the “Company”).
RECITALS
The
Company wishes to retain the services of Executive pursuant to this Agreement,
the terms and provisions of which are set forth below.
NOW,
THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
POSITION
AND DUTIES
During
the Term (as defined in Section 3), Executive will be employed by the Company
as
Chief Financial Officer and shall be responsible for the active day-to-day
management of the financial affairs of the Company, shall
have the duties and responsibilities consistent with and incumbent upon her
position as Chief Financial Officer of the Company, but at all times shall
act
in accordance with the directions given by the Chief Executive Officer of the
Company, and
shall perform such other duties as from time to time determined by the Company.
Irrespective of the above, Executive shall assume the title of Chief Financial
Officer on November 17, 2008.
Executive
shall serve the Company faithfully, loyally, honestly, and to the best of
Executive’s ability. Executive will devote substantially all of Executive’s
business time to the performance of Executive’s duties for, and in the business
and financial affairs of, the Company.
BASE
SALARY
Commencing
on the Effective Date and, unless terminated earlier pursuant to the terms
of
this Agreement, during the remaining Term of this Agreement, Executive’s annual
base salary will be Two Hundred Ten Thousand Dollars ($210,000), payable in
accordance with the Company’s customary payroll practices as are in effect from
time to time (“Base
Salary”).
Executive
shall be eligible to receive a Cash Bonus to begin January 1, 2009, provided
that (i) the Board of Directors (the “Board”)
approves a bonus for executives and (ii) the Executive meets her specific bonus
criteria:
(a) Cash
bonus at plan - 30% of base; or
(b)
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Cash
bonus above plan - 50% of base (above plan to be defined in writing
by the
Compensation Committee; and
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(c)
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Executive
shall receive a Signing Bonus of 5,000 shares of Restricted Stock,
to vest
on a pro-rata
basis over three (3) years, at signing, priced at the closing price
on
October 31, 2008; and
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(d)
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Executive
shall receive 200,000 stock options to purchase 200,000 shares of
Global
Med Common Stock, priced at the closing price on October 31, 2008;
40,000
shares to vest at the end of each calendar year for five (5) years
beginning December 31, 2009 as long as the Executive is employed
by the
Company. Upon a Change of Control of the Company, all 200,000 stock
options shall vest immediately. For purposes of this Agreement, a
“Change
of Control” means when: (i) there is any transaction or series of related
transactions (including but not limited to a merger or reorganization)
pursuant to which a person, other than the Employer, acquires directly
or
indirectly, the beneficial ownership of securities issued by the
Employer
having greater than fifty percent (50%) or more of the voting power
of all
of the voting securities issued by the Employer; or (ii) the Employer
consolidates with or merges with or into any person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially
all of its assets to any person; or (iii) individuals who on the
Effective
Date of the Change of Control of the Company constituted the Board
of
Directors of the Company cease for any reason to constitute a majority
of
such Board of Directors.
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TERM
The
“Initial
Term”
of
this
Agreement shall begin on the Effective Date and shall expire on the
first (1st)
anniversary of the date hereof, unless sooner terminated in accordance with
the
provisions of this Agreement. The Initial Term and each renewal term thereafter
shall be automatically renewed for successive one (1) year periods, unless
one
of the parties to this Agreement shall have provided written notice to the
other
party at least thirty (30) days prior to the expiration of the then current
term
of intent not to renew this Agreement (each extension period following the
Initial Term shall be referred to as a “Renewal
Term”).
The
Initial Term and all Renewal Term(s), if any, shall be referred to collectively
as the “Term”.
TERMINATION
OF EMPLOYMENT
Termination
without Good Reason or Termination for Cause.
If,
prior to the expiration of the Term, Executive’s employment is terminated
by
the Company
for “Cause”
(as defined below) or if Executive resigns from her employment
hereunder
without “Good Reason” (as defined below),
Executive shall be entitled to payment of (A) her Base Salary accrued up to
and
including the date of termination or resignation, including any accrued or
unused vacation time, and (B) any unreimbursed expenses. Executive shall also
be
entitled to all signing Bonus shares of Restricted Stock that have vested at
the
time of termination and stock options that have vested at the time of
termination. Except to the extent required by the terms of the benefits provided
in Section 5 or applicable law, Executive shall have no right under this
Agreement or otherwise to receive any other compensation or to participate
in
any other plan, program or arrangement after such termination or resignation
of
employment with respect to the year of such termination or resignation or
thereafter.
2
Termination
for “Good
Reason”
shall mean a termination by Executive of her employment if, without Executive’s
consent, any of the following events occurs; (a) a decision by the Employer
to
terminate its business and liquidate its assets; (b) the 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 the Employer, or other similar proceeding, in which an order
for
relief is entered or which remains undismissed for a period of sixty (60) days
or more, or the Employer seeks, consents to, or acquiesces in the appointment
of
a trustee, receiver, or liquidator of the Employer or any material party of
its
assets; (d) there are material reductions in the Executive’s duties and
responsibilities without her written consent or a demotion from the position
of
CFO; (e) the Company materially breaches this Agreement; (f) a five percent
(5%)
reduction in the Executive’s Base Salary (not including bonus or incentive
compensation), other than any such reduction which is part of, and generally
consistent with, a general reduction of officers’ salaries; (g) a material
reduction by the Employer in the kind or level of employee benefits (other
than
salary and incentive compensation bonus) to which the Executive is entitled
immediately prior to such reduction with the result that the Executive’s overall
benefits package (other than salary and incentive compensation/bonus) is
substantially reduced (other than any such reduction applicable to officers
of
the Employer generally); failure by the Employer to honor any of its material
obligations under this Agreement; or (h) the Executive is required to relocate
outside the Sacramento area.
Termination
for “Cause”
shall mean a termination of Executive’s employment with the Company because of
(A) a plea of not guilty or nolo
contendere,
or conviction for, the commission of a felony offense by Executive, (B) the
involvement by Executive as a party to any litigation or regulatory proceeding
or in any other circumstance known to the general public that, in the good
faith
determination of the Board of Directors of the Company, is reasonably certain
to
subject Executive, the Company or its affiliates to disrepute, ridicule,
contempt or scandal or that is reasonably certain to reflect unfavorably upon
the reputation of Executive, the Company or its affiliates or the Company’s
products or technologies, except that this subsection (iii)(B) does not apply
to
claims that Executive may bring against the Company that are protected by law;
(C) the willful failure to perform in any material respect Executive’s duties;
(D) an intentional act of fraud, embezzlement, theft or a dishonest act against
the Company or its affiliates; (E) a material breach by Executive of the terms
and provisions of the Agreement; or (F) a violation by Executive of a fiduciary
duty or duty of loyalty to the Company. The Executive’s employment shall in no
event be considered to have been terminated by the Employer for Cause if such
termination took place merely as a result of (i) bad judgment or negligence,
(ii) any act or omission without intent of gaining therefrom directly or
indirectly a profit to which the Executive was not legally entitled, (iii)
any
act or omission believed in good faith to have been in or not opposed to the
interest of the Employer or (iv) any act or omission in respect of which a
determination is made that the Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or payment of expenses under
the
Certificate of Incorporation of the Company, under this Agreement or the laws
of
the State of California, in each case as in effect at the time of such act
or
omission
Termination
by Executive of her employment for Good Reason shall be communicated by delivery
to the Company of a written notice from the Executive stating that Executive
is
terminating the employment for Good Reason, specifying the particulars thereof
and the effective date of such termination. In the event of a termination for
Good Reason under Section 4(a)(ii), the Company shall have thirty (30) days
from the date of receipt of such notice to effect a cure of the actions
constituting Good Reason. Upon a cure or correction thereof within such thirty
(30) day cure period by the Company to the reasonable satisfaction of Executive,
the action shall no longer constitute Good Reason for purposes of this
Agreement.
3
Termination
of Executive’s employment for Cause shall be communicated by delivery to
Executive of a written notice from the Company stating that Executive will
be
terminated for Cause, specifying the particulars thereof and the effective
date
of such termination. In the event of a termination for Cause under Section
4(a)(iii)(E) or (F), Executive shall have thirty (30) days from the date of
receipt of such notice to effect a cure of the actions constituting Cause.
Upon
a cure or correction thereof within such thirty (30) day cure period by
Executive to the reasonable satisfaction of the Company, the action shall no
longer constitute Cause for purposes of this Agreement. Executive shall not
be
entitled to a cure period for a repeated breach of the same Section of this
Agreement.
The
date of a resignation by Executive shall be the date specified in a written
notice of resignation from Executive to the Company, provided
that,
Executive shall provide at least thirty (30) days’ advance written notice of her
termination for Good Reason under Section 4(a)(ii).
Payments
Upon a Termination Without Cause or Termination with Good Reason. If,
prior to the expiration of the Term, the Company terminates Executive’s
employment for any reason other than Disability, Death or Cause (such
termination or resignation being hereinafter referred to as
“Termination
Without Cause”)
or after the first Renewal Term, the Company allows this Agreement to expire
and
thereafter terminates Executive without Cause or Employee terminates her
employment for “Good Reason”, Executive shall be entitled to (A)
continuation of benefits for the remainder of the Initial Term or the then
current Renewal Term, if any, (B) payment of any unreimbursed expenses, and
(C)
subject to Executive’s execution and delivery of a release in the form then
deemed appropriate by the Company, severance consisting of continuation of
her
Base Salary, at the rate in effect on the date of Termination Without Cause,
for
six (6) months following the date of the Termination Without Cause.
Notwithstanding the above, if the Executive’s contract is renewed after the
first anniversary date of the date hereof, the Executive’s severance consisting
of the continuation of her Base Salary, shall increase from six (6) months
to
twelve (12) months, with the same terms and conditions provided for herein.
The
date of termination of employment for Termination Without Cause shall be the
date specified in the written notice of termination provided by the Company
to
Executive. Executive shall also be entitled to all of the Signing Bonus shares
of Restricted Stock as if employed for over three (3) years as provided in
Section 2(c), her pro-rata share of her cash bonus and if such Termination
Without Cause occurs after May 1, 2011, vesting of all stock options as if
Executive had been employed for over five (5) years as provided in Section
2(d).
Except as specifically set forth above, Executive covenants and agrees that
she
shall not be entitled to any other form of severance benefits from the Company,
including, without limitation, benefits otherwise payable under the Company’s
regular severance policies, if any, in the event her employment ends for any
reason and, except with respect to obligations of the Company expressly provided
for herein, Executive unconditionally releases the Company and its subsidiaries
and affiliates, and their respective directors, officers, employees and
stockholders, or any of them, from any and all claims, liabilities, or
obligations under any severance arrangements of the Company or any of its
subsidiaries or affiliates.
4
Termination
due to Disability. In
the event of Executive’s Disability, the Company shall be entitled to terminate
her employment. In the case that the Company terminates Executive’s employment
due to Disability, Executive shall be entitled to her Base Salary, including
any
accrued but unused vacation time, up to and including the date of termination
as
well as any unpaid expense reimbursements. In addition, Executive shall also
be
entitled to all Signing Bonus shares of Restricted Stock that have vested at
the
time of termination, stock options that have vested at the time of termination
and a pro-rata share of her cash bonus. As used in this Section 4(c), the term
“Disability”
shall mean the Company’s determination that due to physical or mental illness or
incapacity, whether total or partial, Executive is substantially unable (with
or
without a reasonable accommodation) to perform her duties hereunder for a period
of thirty (30) consecutive days or shorter periods aggregating sixty (60) days
during any period of one hundred eighty (180) consecutive days.
Death.
This Agreement shall terminate automatically on Executive’s death. Any Base
Salary, including any accrued but unused vacation time, earned by Executive
for
services rendered prior to Executive’s death and any unpaid expense
reimbursements shall be paid. In addition, all Signing Bonus shares of
Restricted Stock that have vested at the time of death, stock options that
have
vested at the time of death and a pro-rata share of Executive’s cash bonus. Such
payments will be paid to and such stock and options tendered to Executive’s
surviving spouse, of if Executive does not leave a surviving spouse, to
Executive’s estate. No other benefits shall be payable to Executive’s estate or
heirs pursuant to this Agreement, but amounts may be payable pursuant to any
life insurance or other benefit plans maintained in whole or in part by the
Company for the benefit of Executive, her estate or heirs.
Timing
of
Payments.
Notwithstanding any other provision with respect to the timing of payments
under
this Section 4, if, at the time of Executive’s termination, Executive is deemed
to be a “specified employee” (within the meaning of Section 409A of the Internal
Revenue Code (the “Code”),
and any successor statute, regulation and guidance thereto) of the Company,
then
only to the extent necessary to comply with the requirements of Section 409A
of
the Code, any payments to which Executive may become entitled under this Section
4 which are subject to Section 409A of the Code (and not otherwise exempt from
its application) will be withheld until the first (1st)
business day of the seventh (7th)
month following the termination of Executive’s employment with the Company, at
which time Executive shall be paid an aggregate amount equal to six (6) months
of payments otherwise due to Executive under the terms of this Section 4. After
the first business day of the seventh (7th)
month following the termination of Executive’s employment and continuing each
month thereafter, Executive shall be paid the regular payments otherwise due
to
Executive in accordance with the terms of the applicable provision of Section
4.
BENEFITS
Executive
will be entitled to participate in all employee benefit plans which may be
instituted by the Company in its sole discretion, subject to restrictions.
The
foregoing shall not be construed to limit the ability of the Company to amend,
modify or terminate any such benefit plans, policies or programs at any time
and
from time to time.
5
Executive’s
vacation is to accrue on a pro-rata basis as required by California law and
to
be taken in accordance with Company’s standard vacation policies. Unused
vacation shall accrue in accordance with then-current Company policies. The
Company’s paid holidays are in addition to the above-referenced vacation
time.
In
addition to the compensation and benefits provided above, the Company shall,
upon receipt of appropriate documentation, reimburse Executive for her
reasonable and pre-approved travel, lodging, entertainment, promotion, and
other
ordinary and necessary business expenses consistent with the Company’s policies.
No expense or reimbursement under this Section 5 shall be “grossed up” or
increased to take into account any tax liability incurred by Executive as a
result of such payment or reimbursement.
CONFIDENTIALITY
AND NON-DISCLOSURE
Inventions.
The Company shall own all right, title and interest (including patient rights,
copyrights, trade secret rights, mask work rights, trademark rights, and all
other intellectual and industrial property rights of any sort throughout the
world) relating to any and all proprietary software and inventions (whether
or
not patentable), works of authorship, mask works, designations, designs,
know-how, ideas and information made or conceived or reduced to practice, in
whole or in part, by Company or Executive prior to and during the Term of this
Agreement in connection with or relating to the Company’s business
(collectively, “Inventions”)
and Executive will promptly disclose and provide all Inventions to the Company.
All Inventions are work made for hire to the extent allowed by law and, in
addition, Executive hereby makes all assignments necessary to accomplish the
foregoing ownership. Executive shall further assist the Company, and execute
any
documents requested by the Company, at the Company’s expense, to further
evidence, record and perfect such assignments, and to perfect, obtain, maintain,
enforce, and defend any rights assigned. By signing this Agreement, Executive
acknowledges that she has been informed and advised of California Labor Code
section 2870 relating to the assignment of inventions as set forth in the
“Notice” attached as Exhibit “A” to this Agreement.
Proprietary
Information.
Executive agrees that all Inventions, and all other business, technical and
financial information (including, without limitation, the identity of and
information relating to customers or employees), the Company or Executive
develops, learns or obtains prior to and during the term hereof that relate
to
the Company or the business or anticipated business of Company or that are
received by or for the Company in confidence, which is not information in the
public domain, constitute “Proprietary
Information.”
Executive will hold in confidence and not disclose or, except in performing
hereunder, use any Proprietary Information. Upon termination and as otherwise
requested by the Company, Executive will promptly return to the Company all
items and copies containing or embodying Proprietary Information, including,
but
not limited to, any copies of documents, computer print-outs, computer tapes,
floppy disks, CD ROMS, etc., in any form, format or manner whatsoever. Executive
also recognizes and agrees that Executive has no expectation of privacy with
respect to the Company’s telecommunications, networking or information
processing systems (including, without limitation, stored computer files, e-mail
messages and voice messages) and that Executive’s activity, and any files or
messages, on or using any of those systems may be monitored at any time without
notice.
6
Confidential
Information. The
parties acknowledge that during the Term, Executive will perform essential
services for the Company, its employees and shareholders, and for customers
of
the Company. Therefore, Executive will be given an opportunity to meet, work
with and develop close working relationships with the Company’s clients and
customers on a first-hand basis and will gain valuable insight as to the
clients’ operations, personnel and need for services. In addition, Executive
will have access to, and be required to work with, a considerable amount of
the
Company’s Proprietary Information. All business practices, techniques or
processes that (i) derive independent economic value, actual or potential from
not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use; and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy, are confidential ( the
“Confidential
Information”)
and/or Proprietary. This includes, but is not limited to information concerning
the Company’s intellectual property (including proprietary software), methods of
operation, financial information, strategic planning, operational budgets and
strategies, payroll data, management systems programs, computer systems,
marketing plans and strategies, merger and acquisition strategies, customer
lists, customer contracts, files, letters, memoranda, reports, records, data,
employee lists, salary information, training manuals, and other materials and
business information of a similar nature, including information about the
Company itself, which Executive acknowledges and agrees has been compiled by
the
Company’s expenditure of a great amount of time, money and effort, and that
contains detailed information that could not be created independently from
public sources. Further, all data, spreadsheets, reports, records, know-how,
verbal communication, proprietary and technical information and/or other
confidential materials of a similar kind transmitted by the Company to Executive
are also Confidential and/or Proprietary Information.
All
Confidential and Proprietary Information is considered highly sensitive and
strictly confidential. Executive agrees that at all times during the term of
this Agreement and after the termination of employment with the Company for
as
long as such information remains non-public information, Executive shall (i)
hold in confidence and refrain from disclosing to any other party all
Confidential and Proprietary Information, whether written or oral, tangible
or
intangible, concerning the Company and its business and operations unless such
disclosure is accompanied by a non-disclosure agreement executed by the Company
with the party to whom such Confidential Information is provided, (ii) use
the
Confidential Information solely in connection with her employment with the
Company and for no other purpose, (iii) take all precautions necessary to ensure
that the Confidential and Proprietary Information shall not be, or be permitted
to be, shown, copied or disclosed to third parties, without the prior written
consent of the Company, (iv) observe all security policies implemented by the
Company from time to time with respect to the Confidential and Proprietary
Information, and (v) not use or disclose, directly or indirectly, as an
individual or as a partner, joint venturer, employee, agent, salesman,
contractor, officer, director or otherwise, for the benefit of himself or
herself or any other person, partnership, firm, corporation, association or
other legal entity, any Confidential or Proprietary Information, unless
expressly permitted by this Agreement. Executive agrees that protection of
the
Company’s Confidential and Proprietary Information constitutes a legitimate
business interest justifying the restrictive covenants contained herein.
Executive further agrees that the restrictive covenants contained herein are
reasonably necessary to protect the Company’s legitimate business interest in
preserving its Confidential and Proprietary
Information.
7
In
the event that Executive is ordered to disclose any Confidential or Proprietary
Information, whether in a legal or regulatory proceeding or otherwise, Executive
shall provide the Company with prompt notice of such request or order so that
the Company may seek to prevent disclosure prior to the required disclosure.
Executive
acknowledges that the Confidential and Proprietary Information is of value
to
the Company by providing it with a competitive advantage over its competitors,
is not generally known to competitors of the Company, and is not intended by
the
Company for general dissemination. Executive acknowledges that the Confidential
and Proprietary Information derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and is the subject of reasonable efforts to maintain
its secrecy. Therefore, the Parties agree that all confidential and Proprietary
Information under this Agreement constitutes trade secrets of the
Company.
NON-SOLICITATION
Executive
agrees and acknowledges that, during her employment and for a period of one
year
following the termination of this Agreement (the “Non-Solicitation
Restrictive Period”),
she will not, directly or indirectly, in one or a series of transactions, as
an
individual or as a partner, joint venturer, employee, agent, salesperson,
contractor, officer, director or otherwise, for the benefit of herself or any
other person, partnership, firm, corporation, association or other legal entity,
use any confidential trade secret information of the Company to
unlawfully:
solicit
or induce any customer, or any prospective customer, of the Company to patronize
or do business with any business directly or indirectly in competition with
the
businesses conducted by the Company in any market in which the Company does
business; or
canvass,
or solicit from any customer, or any prospective customer, of the Company any
such business relationship that is in competition with the Company;
or
request
or advise any customer or vendor, or any prospective customer or vendor, of
the
Company to withdraw, curtail or cancel any such customer’s or vendor’s business
with the Company; or
recruit,
solicit or otherwise induce or influence any proprietor, partner, stockholder,
lender, director, officer, employee, sales agent, joint venturer, investor,
lessor, supplier, customer, agent, representative or any other person which
has
a business relationship with the Company to discontinue, reduce or modify such
employment, agency or business relationship with the Company;
or
solicit
or seek to employ or retain any person or agent who is then (or was at any
time
within twelve (12) months prior to the date Executive or such entity employs
or
seeks to employ such person) employed or retained by the Company.
Notwithstanding
the foregoing restricted unlawful conduct the parties agree that Executive
may
issue a general notification to customers upon the termination of the Agreement
advising them of such termination and providing them with Executive’s contact
information.
8
If
Executive violates Executive’s obligations under this Section 7(a), then the
time periods hereunder shall be extended by the period of time equal to that
period beginning when the activities constituting such violation commenced
and
ending when the activities constituting such violation
terminated.
9
Devotion
to Employment.
Executive shall devote substantially all of Executive’s business time and best
efforts to the performance of Executive’s duties on behalf of the Company.
During the Term, Executive shall not at any time or place or to any extent
whatsoever, either directly or indirectly, without the express written consent
of the Company (which consent can be withheld in the sole and absolute
discretion of the Company), engage in any outside employment, or in any activity
competitive with or adverse to Company’s business, practice or affairs, whether
alone or as partner, member, officer, director, employee, shareholder of any
corporation or as a trustee, fiduciary, consultant or other representative.
This
is not intended to prohibit Executive from engaging in nonprofessional
activities such as personal investments or conducting to a reasonable extent
private business affairs, as long as they do not conflict the with the Company
as determined by the Company. Participation to a reasonable extent in civic,
social or community activities is encouraged.
Competing
Business.
During the Term, Executive shall not, directly or indirectly, (including,
without limitation, as a partner, member, director, officer or employee of,
or
lender or consultant to, any other personal entity, or shareholder (other than
as the holder of less than five percent (5%) of the stock of a corporation
the
securities of which are traded on a national securities exchange or in the
over-the-counter market)), for Executive, or on behalf of, or in conjunction
with, any other person(s), company, partnership, corporation, or governmental
entity, in any manner whatsoever, or in any other capacity, within, into or
from
the Restricted Territory (as defined below) engage or cause others to engage
in
the same or similar business as the Company and its subsidiaries affiliates
or
parent corporation or any aspect thereof, unless first authorized in writing
by
the Company, which authorization may be withheld in the sole and absolute
discretion of Company. For purposes of this Section 7(c), the term
“Restricted
Territory”
shall mean any geographical service area where the Company or any of its
subsidiaries, affiliates or parent corporation is engaged in business sells
products or performs services or has devoted resources to attempt to engage
in
business at any time, prior to the termination or at the time of termination
or
expiration. If Executive violates Executive’s obligations under this Section 7,
then the time periods hereunder shall be extended by the period of time equal
to
that period beginning when the activities constituting such violation commenced
and ending when the activities constituting such violation
terminated.
Judicial
Amendment.
If the scope of any provision of this Section 7 is found by a court of competent
jurisdiction to be too broad to permit enforcement to its full extent, then
such
provision shall be enforced to the maximum extent permitted by law. The parties
agree that the scope of any provision of this Agreement may be modified by
a
judge in any proceeding to enforce this Agreement, so that such provision can
be
enforced to the maximum extent permitted by law. If any provision of this
Agreement is found to be invalid or unenforceable for any reason, it shall
not
affect the validity of the remaining provisions of this
Agreement.
INJUNCTIVE
RELIEF AND DAMAGES
Injunction.
Executive acknowledges and agrees that a breach of Section 6 or 7 will cause
immediate and irreparable injury and damage to the Company and that, upon a
breach of Section 6 or 7, the Company cannot be made whole or have its interests
completely protected solely by a monetary award of damages. Accordingly,
Executive agrees that, if she breaches or threatens to breach any of the terms
of Section 6 or 7, the Company shall be entitled to the issuance of a temporary
and/or permanent injunction by any court of competent jurisdiction without
the
posting of any bond enjoining him from such unauthorized disclosure. The terms
of Section 6 and 7 will survive the termination or expiration of this
Agreement.
10
Termination
of Options.
In addition to the foregoing and any other remedies that the Company may have,
Executive acknowledges and agrees that, if Executive breaches Section 6 or
7 of
this Agreement, the Company shall have the right in its sole discretion to
terminate any and all of Executive’s granted and vested Company stock
options.
Additional
Remedies.
The foregoing remedies are in addition to any other rights or remedies available
to the Company.
Attorney’s
Fees.
In the event Executive breaches or threatens to breach any of the terms of
Section 6 or 7 of this Agreement, the Company shall be entitled to recover
the
actual attorneys' fees, costs and expenses incurred by the Company in connection
therewith.
INDEMNIFICATION
To
the
fullest extent permitted by applicable law, the Employer agrees to indemnify,
defend and hold the Executive 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 the Employer or its employees, including the Executive, or other
agents in connection with and within the scope of this Agreement or by reason
of
the fact that she is or was a director or officer of the Employer or any
affiliate of the Employer. To the fullest extent permitted by applicable law,
the Employer shall advance to the Executive expenses of defending any such
action, claim or proceeding. However, the Employer shall not indemnify the
Executive or defend the Executive against, or hold her harmless from any claims,
damages, expenses or liabilities, including attorneys’ fees, resulting from
unlawful conduct on the part of Executive if, at the time of the unlawful
conduct, the Executive believed the conduct to be unlawful. 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.
TAX
WITHHOLDING
All
amounts paid to Executive hereunder shall be subject to all applicable federal,
state and local wage withholding.
REPRESENTATION
BY EMPLOYEE
Executive
represents and warrants that her entering into this Agreement does not, and
that
her performance under this Agreement and consummation of the transactions hereby
will not, violate the provisions of any agreement or instrument to which
Executive is a party or any decree, judgment or order to which Executive is
subject, and that this Agreement constitutes a valid and binding obligation
of
Executive in accordance with its terms. A breach of this representation will
render all of the Company’s obligations under this Agreement ab
initio.
NOTICES
Any
notice required or permitted to be given by either party under or in connection
with this Agreement shall be in writing and shall be deemed duly given (i)
if
personally delivered, (ii) if sent by registered or certified mail, return
receipt requested, or (iii) if
sent
via facsimile transmission upon electronic confirmation of receipt thereof
during normal business hours; to the applicable party at the address indicated
below:
11
If
to the Company:
|
Global
Med Technologies, Inc.
00000
Xxxx Xxxxxx Xxxxxx
Xxxxx
X-000
Xxxxxxxx
XX 00000-0000
|
|
Attention:
|
Xxxxxxx
X. Xxxxx, M.D.,
|
|
Chairman
and CEO
|
||
Fax:
|
(000)
000-0000
|
|
With
a copy to:
|
K&L
Gates LLP
000
X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx,
XX 00000
|
|
Attention:
|
Xxxxxxx
X. Xxxxxx, Esq.
|
|
Fax:
|
(000)
000-0000
|
|
If
to Executive:
|
00000
Xxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxxx, XX 00000
|
|
Attention:
|
Xxxxx
Xxxxx
|
|
Fax:
|
(000)
000-0000
|
|
With
a copy to:
|
XXXXXX
XXXXXX XXXXX XXXXXXXXXX LLP
000
“X” Xxxxxx
Xxxxxxxxxx,
XX 00000
|
|
Attention:
|
Xxxxxx
X. Xxxxxx
|
|
Fax:
|
(000)
000-0000
|
or,
to
such other address as shall be designated by such party in a written notice
to
the other party pursuant to the provisions of this Section 12. All such notices,
requests, demands and other communications shall be effective when
sent.
WAIVER
This
Agreement constitutes the entire agreement between the parties as to the subject
matter hereof. Accordingly, there are no side agreements or verbal agreements
other than those that are stated in this document. Any amendment, modification
or change in said Agreements must be done so in writing and signed by both
parties.
ASSIGNMENT
Neither
party shall assign or transfer its rights, or delegate its obligations under
this Agreement to a third party without prior written approval of the other
party.
SEVERABILITY
In
the
event a court or judge declares that any provision of this Agreement is invalid
or unenforceable, it shall not affect or invalidate any of the remaining
provisions. Further, the court shall have the authority to re-write that portion
of the Agreement it deems unenforceable, to make it
enforceable.
12
GOVERNING
LAW
The
laws
of the State of California shall govern the interpretation and application
of
all of the provisions of this Agreement.
13
IN
WITNESS WHEREOF,
the
Company and Executive have executed this Agreement effective on the date set
forth above.
THE
COMPANY:
|
EXECUTIVE:
|
||
GLOBAL
MED TECHNOLOGIES, INC.
|
|||
By:
|
/s/Xxxxxxx
X. Xxxxx, M.D.
|
/S/
Xxxxx Xxxxx
|
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Xxxxx
Xxxxx, Individually
|
|
Title:
|
CEO
|
14
EXHIBIT
A
NOTIFICATION
REGARDING CERTAIN
EXCLUSIONS
FROM INVENTION ASSIGNMENTS
(California
Employees)
THIS
IS TO NOTIFY
you in
accordance with Sections 2870 and 2872 of the California Labor Code that the
invention assignment agreement between you and the Company does not require
you
to assign or offer to assign to the Company any invention that you developed
entirely on your own time without using the Company’s equipment, supplies,
facilities or trade secret information, except for those inventions that
either:
1. Relate
at
the time of conception or reduction to practice of the invention to the
Company’s business, or actual or demonstrably anticipated research or
development of the Company; or
2. Result
from any work performed by you for the Company.
To
the
extent a provision in your employment agreement purports to require you to
assign an invention otherwise excluded from being required to be assigned
pursuant to the preceding paragraph, the provision is against the public policy
of the State of California and is unenforceable.
This
limited exclusion does not apply to any patent or invention covered by a
contract between the Company and the United States or any of its agencies
requiring full title to such patent or invention to be in the United
States.
The
employee bears the burden of proving that an invention created by the employee
should be excluded from the invention assignment agreement.
I
ACKNOWLEDGE RECEIPT
of a
copy of this notification.
By:
|
/S/Xxxxx
Xxxxx
|
Xxxxx
Xxxxx
|
|
Date:
|
November
3, 2008
|