EMPLOYMENT AGREEMENT
Exhibit
10.49
This
employment agreement (“Agreement”) is made and entered into this 13 day of July
2007, by and between SPECIALIZED HEALTH PRODUCTS, INC., a Utah corporation
(“Corporation”), and Xxxxxxx X. Xxxxxxx (“Employee”).
WHEREAS,
Corporation and Employee desire that the term of this Agreement begin on July
12, 2007 (“Effective Date”).
WHEREAS,
Corporation desires to employ Employee as its Vice President of Sales &
Marketing and Employee is willing to accept such employment by Corporation,
on
the terms and subject to the conditions set forth in this
Agreement.
NOW
THEREFORE, IT IS AGREED AS FOLLOWS:
Section
1. Duties.
During
the term of this Agreement, Employee agrees to be employed by and to serve
Corporation on a full time basis as its Vice President of Sales & Marketing,
and Corporation agrees to employ and retain Employee in such capacities.
Employee shall report to the Corporation’s President and Chief Executive Officer
and at all times during the term of this Agreement shall have powers and duties
at least commensurate with her position as Vice President of Sales &
Marketing.
Section
2. Term
of Employment.
2.1. Definitions.
For the
purposes of this Agreement the following terms shall have the following
meanings:
2.1.1 “Termination
For Cause” shall mean termination by Corporation of Employee’s employment by
Corporation by reason of Employee’s willful dishonesty towards, fraud upon, or
deliberate injury or attempted injury to, Corporation or by reason of Employee’s
willful material breach of this Agreement which has resulted in material injury
to Corporation.
2.1.2 “Termination
Other Than For Cause” shall mean termination by Corporation of Employee’s
employment by Corporation (other than in a Termination for Cause) and shall
include constructive termination of Employee’s employment by reason of material
breach of this Agreement by Corporation, such constructive termination to be
effective upon notice from Employee to Corporation of such constructive
termination.
2.1.3 “Voluntary
Termination” shall mean termination by Employee of Employee’s employment by
Corporation other than (i) Termination Other Than For Cause, and (ii)
termination by reason of Employee’s death or disability as described in Sections
2.5 and 2.6.
2.2. Term.
The
employment of Employee by Corporation shall be “at will”.
2.3. Termination
For Cause.
Termination For Cause may be effected by Corporation at any time during the
term
of this Agreement and shall be effected by written notification to Employee.
Upon Termination For Cause, Employee shall promptly be paid all accrued salary,
bonus compensation to the extent earned, vested deferred compensation (other
than pension plan, profit sharing plan and stock option plan benefits which
will
be paid in accordance with the applicable plan), any benefits under any plans
of
the Corporation in which Employee is a participant to the full extent of
Employee’s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by Employee in connection with her duties hereunder,
all to the date of termination, but Employee shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.
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2.4. Termination
Other Than For Cause.
Notwithstanding anything else in this Agreement, Corporation may effect a
Termination Other Than For Cause at any time upon giving written notice to
Employee of such termination. Upon any Termination Other Than For Cause,
Employee shall promptly be paid all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than pension plan, profit
sharing plan and stock option plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of the Corporation
in
which Employee is a participant to the full extent of Employee’s rights under
such plans (other than pension plan, profit sharing plan and stock option plan
benefits which will be paid in accordance with the applicable plan), accrued
vacation pay and any appropriate business expenses incurred by Employee in
connection with her duties hereunder, all to the date of termination, with
the
exception of salary and medical benefits which shall continue for a period
of
twelve (12) months, so long as Employee complies with the provisions of Sections
5 through 8. In the event of a merger, acquisition, or substantial sale of
Corporation’s controlling shares wherein the Corporation is no longer the
controlling entity, if Employee is not offered an equivalent position, Employee
shall be entitled to severance pay and medical benefits for a period of twelve
(12) months, so long as Employee complies with the provisions of Sections 5
through 8.
2.5. Termination
by Reason of Disability.
If,
during the term of this Agreement, Employee, in the reasonable judgment of
the
Board of Directors of Corporation, has failed to perform her duties under this
Agreement on account of illness or physical or mental incapacity, and such
illness or incapacity continues for a period of more than twelve (12)
consecutive months, Corporation shall have the right to terminate Employee’s
employment hereunder by written notification to Employee and payment to Employee
of all accrued salary, bonus compensation to the extent earned, vested deferred
compensation (other than pension plan, profit sharing plan and stock option
plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Corporation in which Employee is a participant
to the full extent of Employee’s rights under such plans, accrued vacation pay
and any appropriate business expenses incurred by Employee in connection with
her duties hereunder, all to the date of termination.
2.6. Death.
In the
event of Employee’s death during the term of this Agreement, Employee’s
employment shall be deemed to have terminated as of the last day of the month
during which her death occurs and Corporation shall promptly pay to her estate
or such beneficiaries as Employee may from time to time designate all accrued
salary, bonus compensation to the extent earned, vested deferred compensation
(other than pension plan, profit sharing plan and stock option plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Corporation in which Employee is a participant to the full
extent of Employee’s rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by Employee in connection with her duties
hereunder, all to the date of termination, but Employee’s estate shall not be
paid any other compensation or reimbursement of any kind, including without
limitation, severance compensation.
2.7. Notice
of Termination.
Corporation may effect a termination of this Agreement pursuant to the
provisions of this Section upon giving thirty (30) days’ written notice to
Employee of such termination.
Section
3. Salary,
Benefits and Bonus Compensation.
3.1. Base
Salary. As payment for the services to be rendered by Employee as provided
in
Section 1 and subject to the terms and conditions of Section 2, Corporation
agrees to pay to Employee a “Base Salary” for the twelve (12) calendar months
beginning the Effective Date at the rate of $120,000 per annum payable in no
fewer than 12 equal monthly installments of $10,000.00. Employee’s Base Salary
shall be reviewed annually by the Compensation Committee of the Board of
Directors (“Compensation Committee”), and the Base Salary for each year (or
portion thereof) shall be determined by the Compensation Committee which shall
authorize an increase in Employee’s Base Salary for such year in an amount
which, at a minimum, shall be equal to the cumulative cost of living as
determined by the Corporation’s board of directors.
3.2. Bonuses.
Employee shall be eligible to participate in the Corporation’s executive bonus
plan and receive a discretionary bonus for each year (or portion thereof) during
the term of this Agreement and any extensions thereof, with the actual amount
of
any such bonus to be determined in the sole discretion of the Board of Directors
based upon its evaluation of Employee’s performance during such
year.
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3.3. Additional
Benefits.
During
the term of this Agreement, Employee shall be entitled to the following fringe
benefits:
3.3.1 Employee
Benefits.
Employee shall be eligible to participate in such of Corporation’s benefits and
deferred compensation plans as are now generally available or later made
generally available to the officers of the Corporation.
3.3.2 Vacation.
Employee shall be entitled to four (4) weeks of paid vacation during each year
during the term of this Agreement and any extensions thereof, prorated for
partial years.
3.3.3 Life
Insurance.
For the
term of this Agreement and any extensions thereof, Corporation shall at its
expense procure and keep in effect term life insurance on the life of Employee
payable to the Employee’s designee in the aggregate amount of twice Employee’s
base annual salary.
3.3.4 Reimbursement
for Expenses.
During
the term of this Agreement, Corporation shall reimburse Employee for reasonable
and properly documented out-of-pocket business and/or entertainment expenses
incurred by Employee in connection withher duties under this
Agreement.
Section
4. Ownership
of Work Product.
Work
Product shall include all copyrights, patents, trade secrets, or other
intellectual property rights associated with any ideas, concepts, techniques,
inventions, processes, or works of authorship developed or created by Employee
during the course of performing work for SHP, whether or not during normal
hours
of employment, which relate to the actual or anticipated business of SHP at
the
time of such development or creation, or related to actual or anticipated
research and development (collectively, the “Work Product”). Work Product
excludes ideas, concepts, techniques, inventions, processes, or works of
authorship developed or created by Employee (collectively, “New Product Idea”)
reduced to writing and witnessed before SHP is in a business related to the
New
Product Idea and any previous contracts or licensing arrangements and personal
property of Employee at the time of employment listed on the attached statement,
affixed hereto, if any. Any exceptions must be reviewed and found to be not
related to any business that SHP anticipates or is already engaged and
subsequently approved by the Executive Committee. Work Product shall belong
exclusively to SHP. Employee automatically assigns, at the time of creation
of
the Work Product, without any requirement of further consideration, any title,
or interest it or they may have in such Work Product, including any copyrights
or other intellectual property rights pertaining thereto, all such Work Product.
Upon request of SHP, Employee shall take such further actions including
execution and delivery of instruments of conveyance, as may be appropriate
to
give full and proper effect to such assignment.
Section
5. Non
Compete.
In
recognition and consideration of Employee’s employment, compensation and
benefits, the training in and information regarding SHP’s business which SHP
will give Employee, Employee’s introduction to SHP’s customers, and the
carefully guarded methods of doing business which SHP utilizes and deems crucial
to the success of its business, Employee shall not during the term of this
Agreement, and during the period for which Employee receives severance payments
following the termination of Employee’s employment with SHP, regardless of the
reason for termination, either directly or indirectly, engage in the business
of
developing, marketing, distributing, licensing, and/or selling products or
services having any function similar to, competitive with, or substitutable
for,
SHP’s products or services which are in the research and/or development stage
and/or for which development has been completed (collectively and individually,
the “Products”), anywhere in the United States, except with SHP’s consent (which
may be withheld in SHP’s sole discretion). In addition, Employee shall not
engage in any such activity, directly or indirectly, on Employee’s own behalf or
in the service of or on behalf of others. Employee acknowledges and agrees
that
the current market for the Products extends throughout the entire United States,
and it is therefore reasonable to prohibit Employee from competing with SHP
anywhere in the United States.
Section
6. Confidentiality.
Employee will hold in a fiduciary capacity for the benefit of Corporation,
its
affiliates, subsidiaries, related entities, and designees, and shall not
disclose to any person or entity other than Corporation or persons or entities
designated by Corporation, any secret, confidential or proprietary information,
knowledge, data and/or information, patents, trade secrets, customer identities,
marketing and other business methods, techniques, processes, practices,
procedures, plans and strategies regarding Corporation, its subsidiaries and
affiliated corporations or business enterprises, and their customers obtained
by
Employee in the course of Employee’s employment with Corporation, and any other
secret, confidential or proprietary information pertaining to Corporation,
its
parent, subsidiaries and affiliated corporations or business enterprises, and
their customers, during the term of this Agreement and five (5) years after
Employee’s termination of employment with Corporation, unless Corporation in
writing consents to the contrary. Notwithstanding the foregoing, Employee shall
have no confidentiality obligation with respect to information that: (a) was
legally in the public domain prior to the time of disclosure to the Employee,
(b) is now or subsequently becomes generally available to the public through
no
fault of Employee; or (c) is required by law, regulation, rule, act, or order
of
any governmental authority or agency to be disclosed by the
Employee.
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Section
7. Return
of Materials.
Immediately upon notice of termination of employment, Employee shall give to
Corporation the originals and all copies of all documents, correspondence,
memoranda, records, notes, manuals, materials, customer and prospective customer
lists and information, including without limitation computer data, and other
things relating to Corporation’s business, including, but not limited to,
secret, confidential or proprietary information, in Employee’s possession,
custody or control, unless otherwise agreed to by Corporation.
Section
8. Non-Solicitation.
Employee shall not during the term of this Agreement, and for a period of twelve
(12) months following termination of employment with Corporation, employ,
solicit for employment, or advise or recommend to any other person that they
employ or solicit for employment or retention as a consultant, any person who
is, or was at any time within one (1) year prior to the Employee’s date of
termination of employment with Corporation, an employee of, or exclusive
consultant to, Corporation.
Section
9.
Avoidance
of Conflict of Interest.
While
employed by Corporation and during the period for which Employee receives
severance payments following termination of employment with Corporation,
Employee shall not engage in any other business activity that conflicts with
Employee’s duties to Corporation. Under no circumstances may Employee work for
any competitor or have any financial interest in any competitor of Corporation;
provided, however, that this Agreement does not prohibit investment of a
reasonable part of Employee’s assets in the stock or securities of any
competitor whose stock or securities are traded on a national
exchange.
Section
10.
Withholdings.
All
compensation and benefits to Employee hereunder shall be reduced by all federal,
state, local and other withholdings and similar taxes and payments required
by
applicable law.
Section
11.
Indemnification.
In
addition to any rights to indemnification to which Employee is entitled to
under
the Corporation’s Articles of Incorporation and Bylaws, Corporation shall
indemnify Employee at all times during and after the term of this Agreement
to
the maximum extent permitted under Utah Revised Business Corporation Act or
any
successor provision thereof and any other applicable state law, and shall pay
Employee’s expenses in defending any civil or criminal action, suit, or
proceeding in advance of the final disposition of such action, suit or
proceeding, to the maximum extent permitted under such applicable state
laws.
Section
12.
Notices.
Any
notices permitted or required under this Agreement shall be deemed given upon
the date of personal delivery or forty eight (48) hours after deposit in the
United States mail, postage fully prepaid, return receipt requested, addressed
to the Corporation at:
000
Xxxx
000 Xxxxx
Xxxxxxxxx,
Xxxx 00000
addressed
to the Employee at:
000
Xxxx
000 Xxxxx
Xxxxxxxxx,
Xxxx 00000
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or
at any
other address as any party may, from time to time, designate by notice given
in
compliance with this Section.
Section
13.
Law
Governing.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Utah.
Section
14.
Titles
and Captions.
All
section titles or captions contained in this Agreement are for convenience
only
and shall not be deemed part of the context nor effect the interpretation of
this Agreement.
Section
15.
Entire
Agreement.
This
Agreement contains the entire understanding between and among the parties and
supersedes any prior understandings and agreements among them respecting the
subject matter of this Agreement.
Section
16.
Agreement
Binding.
This
Agreement shall be binding upon the heirs, executors, administrators, successors
and assigns of the parties hereto.
Section
17.
Attorney
Fees.
In the
event an arbitration, suit or action is brought by any party under this
Agreement to enforce any of its terms, or in any appeal therefrom, it is agreed
that the prevailing party shall be entitled to reasonable attorneys fees to
be
fixed by the arbitrator, trial court, and/or appellate court.
Section
18.
Computation
of Time.
In
computing any period of time pursuant to this Agreement, the day of the act,
event or default from which the designated period of time begins to run shall
be
included, unless it is a Saturday, Sunday, or a legal holiday, in which event
the period shall begin to run on the next day which is not a Saturday, Sunday,
or legal holiday, in which event the period shall run until the end of the
next
day thereafter which is not a Saturday, Sunday, or legal holiday.
Section
19.
Pronouns
and Plurals.
All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular, or plural as the identity of the person or persons
may require.
Section
20.
Presumption.
This
Agreement or any section thereof shall not be construed against any party due
to
the fact that said Agreement or any section thereof was drafted by said
party.
Section
21.
Further
Action.
The
parties hereto shall execute and deliver all documents, provide all information
and take or forbear from all such action as may be necessary or appropriate
to
achieve the purposes of the Agreement.
Section
22.
Parties
in Interest.
Nothing
herein shall be construed to be to the benefit of any third party, nor is it
intended that any provision shall be for the benefit of any third
party.
Section
23.
Savings
Clause.
If any
provision of this Agreement, or the application of such provision to any person
or circumstance, shall be held invalid, the remainder of this Agreement, or
the
application of such provision to persons or circumstances other than those
as to
which it is held invalid, shall not be affected thereby.
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed.
SPECIALIZED
HEALTH PRODUCTS, INC. EMPLOYEE
| By: Xxxx Xxxxxxx | /s/ Xxxxxxx X. Xxxxxxx | ||
|
Its:
President
|
Xxxxxxx X. Xxxxxxx |
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