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MEDICAL DEVICE ALLIANCE INC.
EXHIBIT 10.33
EMPLOYMENT AGREEMENT
BETWEEN
PARALLAX MEDICAL, INC.
AND
XXXXXX X. XXXXXXXXX
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EXECUTION ORIGINAL
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of August 10,
1998, between PARALLAX MEDICAL, INC., a Delaware corporation (the "Company"),
and XXXXXX XXXXXXXXX ("employee").
WHEREAS:
1. The Company desires to employ Employee as its President, and
2. Employee wishes to accept such employment on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein set forth, the parties, intending to be legally bound, do
hereby agree and promise as follows:
1. EMPLOYMENT
1.1 The Company hereby employs Employee and Employee hereby
accepts employment under the terms and conditions set forth below. Employee's
initial title shall be President.
1.2 Unless the parties agree otherwise in writing, during the
term of this Agreement, Employee shall perform the services required by this
Agreement at the Company's administrative offices, provided, however, that the
Company may, from time to time, require Employee to travel in carrying out
Employee's duties.
2. DUTIES. During the term of this Agreement:
2.1 Employee shall (a) perform such managerial, supervisory,
development or executive duties in connection with the business of the Company
as the board of directors (the "Board of Directors") or Chief Executive Officer
of the Company may from time to time assign consistent with Employee's title of
President, (b) observe and comply with the Company's rules and regulations
regarding the performance of Employee's duties and (c) carry out and perform all
orders, directions and policies stated to Employee by the Company periodically,
either orally or in writing. Employee shall carry out the duties assigned to
Employee in a trustworthy, businesslike and loyal manner.
2.2 Employee will report and be responsible to the Company's
Chief Executive Officer.
2.3 Employee agrees to devote Employee's full business time,
energy and skills to such employment subject to absences and customary vacations
and for temporary illnesses.
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2.4 Without the Company's prior written consent in each
instance:
2.4.1 Employee will not engage in other gainful occupation
or perform or render any services of a business, professional or commercial
nature during the term of this Agreement without prior written consent of the
Company.
2.4.2 Employee will not engage in any activity directly or
indirectly in competition with or adverse to the Company.
2.4.3 Employee will not engage in any activity for
purposes of influencing or attempting to influence the Company's customers,
either directly or indirectly, to conduct business with any business enterprise
in competition with the Company.
2.4.4 Employee will not undertake or participate in any
planning for or organization of any business activity that is or will be in
competition with the Company in any field(s) or area(s) in which Employee has
worked or with which Employee has come into contact, or of which Employee has
gained knowledge during the term of Employee's employment under this Agreement.
2.4.5 Employee will not engage in any other business
activity that would materially interfere with the performance of any of
Employee's obligations and duties under this Agreement.
2.4.6 Employee will not engage in any activities which
could result in a conflict of interest between the Company and Employee.
3. TERM
The term of this Agreement shall begin on the date the merger
between the Company and PX Acquisition Corp., a Delaware corporation, is
consummated by the filing of a Certificate of Merger with the Delaware Secretary
of State, and shall continue for a term of two (2) years, unless earlier
terminated pursuant to the provisions hereof. The Company, at its option and
upon terms agreeable to Employee, exercisable by delivering a written notice to
Employee at least thirty (30) days prior to the end of the initial term hereof,
may extend the term for an additional two (2) years, unless earlier terminated
pursuant to the provisions hereof. Notwithstanding the foregoing, if this
Agreement is not terminated in accordance with the provisions hereof on or
before the expiration of such option term, the Agreement shall continue in force
for successive one-year terms unless, at least ninety (90) days prior to the
expiration of such option initial term, or ninety (90) days prior to the
expiration of any subsequent one-year term, either Employee or the Company gives
the other party written notice of its intent to terminate the Agreement at the
end of such term.
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4. COMPENSATION
4.1 Employee shall receive a salary of $144,000.00 per year
payable in equal installments on the Company's regular payroll dates ("Salary").
Employee's compensation shall be reviewed by the Board of Directors at least
annually and adjusted in the discretion of the Board of Directors.
4.2 Employee shall be reimbursed by the Company only for amounts
actually expended by Employee in the course of performing duties for the Company
where:
4.2.1 Employee has been authorized by the Company to incur
such expenses that are reasonably consistent with current established
practices or policies as applied to Employee, and those consistent with
and available to senior management of companies with similar growth and
size to the Company's growth and size; or
4.2.2 Employee tenders receipts or other documentation
substantiating the amounts as required by the Company.
4.3 The Company agrees that Employee shall also be entitled to
participate in such benefits plans and programs which are generally made
available by the Company to senior executives of the Company and which shall be
substantially equivalent to benefit plans and programs which are generally made
available to the officers of the Company's corporate parent, Medical Device
Alliance, Inc. and its operating subsidiaries.
4.4 Employee shall be entitled to three weeks vacation time, sick
leave and personal days in accordance with the Company's standard policies and
procedures from time to time.
5. TERMINATION
5.1 The Company may terminate this Agreement for cause by giving
Employee written notice. "Cause" shall mean gross negligence or willful
misconduct in the performance of Employee's duties hereunder, willful breach or
habitual neglect of duties, defalcation, fraud, conviction of a felony, or
incarceration for not less than 30 consecutive days, all as determined by the
Board of Directors. If Employee disputes the Company's right to terminate this
Agreement for cause, the dispute shall be resolved in accordance with Section 10
hereof.
5.2 This Agreement shall terminate upon the death of Employee.
5.3 The Company may terminate this Agreement if Employee is
mentally or physically disabled and such disability renders Employee unable to
perform Employee's duties under this Agreement for 90 consecutive days in any
12-month period.
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5.4 This Agreement may be terminated voluntary by Employee by
providing the Company with written notice specifying the date of such
termination not less than 30 days prior to the effective date of termination.
5.5 This Agreement shall terminate upon expiration of the term
specified in Section 3 above.
5.6 Subject to the provisions of Section 6 hereof, this Agreement
may be terminated by the Company without cause by providing Employee with
written notice specifying the date of such termination not less than 30 days
prior to the effective date of termination.
6. EFFECT OF TERMINATION
If Employee's employment hereunder is terminated without Cause
pursuant to Section 5.6, the Company shall continue to pay to Employee the
Salary for one year from the date of any such termination, plus the value of any
accrued or unused vacation. If Employee's employment hereunder is terminated
pursuant to Sections 5.1 through 5.5, the Company shall have no further
obligation, including the payment of Salary, to Employee, except for any payment
for accrued and unused vacation. The provisions of this Section 6 shall survive
termination of this Agreement.
7. WITHHOLDING TAXES AND OTHER DEDUCTIONS
To the extent required by law, the Company shall withhold from
any payments due Employee under this Agreement any applicable federal, state or
local taxes and such other deductions as are prescribed by law or Company
policy.
8. PROPRIETARY INFORMATION
8.1 Employee understands that the Company possesses and will
continue to possess information that has been created, discovered, developed or
otherwise become known to the Company (including, without limitation,
information created, discovered, developed or made known by Employee during the
period of or arising out of Employee's employment by the Company, whether prior
to or after the date hereof) or in which property rights have been assigned or
otherwise conveyed to the Company, which information has commercial value in the
business in which the Company is engaged. All such information is hereinafter
called "Proprietary Information." By way of illustration, but not limitation,
Proprietary Information includes processes, formulas, codes, data, programs,
know-how, improvements, discoveries, developments, designs, inventions,
techniques, marketing plans, strategies, forecasts, new products, unpublished
financial statements, budgets, projections, licenses, prices, costs, contracts
and customer and supplier lists.
8.2 In consideration of the compensation received by Employee
from the Company and the covenants contained in this Agreement, Employee agrees
as follows:
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8.2.1 All Proprietary Information shall be the sole
property of the Company and its assigns, and the Company and its assigns
shall be the sole owner of all patents, copyrights, and other rights in
connection therewith. Employee hereby assigns to the Company all rights
he may have or acquire in such Proprietary Information. At all times,
both during Employee's employment by the Company and after its
termination, Employee will keep in strictest confidence and trust all
Proprietary Information and will not use or disclose any Proprietary
Information without the written consent of the Company, except as may be
necessary in the ordinary course of performing Employee's duties under
this Agreement.
8.2.2 All documents, records, equipment and other physical
property, whether or not pertaining to Proprietary Information,
furnished to Employee by the Company or produced by Employee or others
in connection with Employee's employment with the Company shall be and
remain the sole property of the Company. In the event of the termination
of Employment's employment by Employee or Employee for any reason,
Employee will deliver to the Company all documents, notes, drawings,
specifications, programs, data, customer lists and other materials of
any nature pertaining to Employee's work with the Company and Employee
will not take with Employee or use any of the foregoing, any
reproduction of any of the foregoing, or any Proprietary Information
that is embodied in a tangible medium of expression.
8.3 Employee recognizes that the Company is engaged in a
continuous program of development and marketing respecting its present and
future business. Employee understands that as part of Employee's employment by
the Company he has been and is expected to make new contributions of value to
the Company and that Employee's employment has created a relationship of
confidence and trust between Employee and the Company with respect to certain
information applicable to the business of the Company or applicable to the
business of any customer of the Company, which has been or may be made known to
Employee by the Company or by any customer of the Company or which may have been
or may be learned by Employee during the period of Employee's employment by the
Company.
9. COVENANT NOT TO COMPETE
9.1 In consideration for the payments to be made under this
Agreement and for other consideration, Employee shall refrain from, for a period
covering the later of (i) two (2) years after the date hereof or (ii) one (1)
year after termination of Employee's employment with the Company, either alone
or in conjunction with any other person, or directly or indirectly through its
present or future affiliates:
(i) directly or indirectly engage in the business of developing
and marketing medical devices for the percutaneous delivery of bone
cement for the stabilization of vertebro body fractures or any
substantially similar business (the "Prohibited Business");
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(ii) induce or solicit any person who had been an officer or
employee of the Company at the time of Employee's termination:
(a) to terminate such employment or
(b) accept employment with anyone other than the Company
or its affiliates;
(iii) causing or attempting to cause (A) any client, customer or
supplier of the Company to terminate or materially reduce its business
with the Company or (B) any officer, employee or consultant of the
Company at the time of Employee's termination to resign or sever a
relationship with the Company; or
(iv) participating or engaging in (other than through the
ownership of five percent (5%) or less of any class of securities
registered under the Securities Exchange Act of 1934, as amended), or
otherwise lending assistance (financial or otherwise) to any person
participating or engaged in the Prohibited Business, in any jurisdiction
in which the Company participates or engages in the Prohibited Business.
9.2 The parties hereto recognize that the laws and public
policies of the various states of the United States may differ as to the
validity and enforceability of covenants similar to those set forth in this
Section. It is the intention of the parties that the provisions of this Section
be enforced to the fullest extent permissible under the laws and policies of
each jurisdiction in which enforcement may be sought, and that the
unenforceability (or the modification to conform to such laws or policies) of
any provisions of this Section shall not render unenforceable, or impair, the
remainder of the provisions of this Section. Accordingly, if any provision of
this Section shall be determined to be invalid or unenforceable, such invalidity
or unenforceability shall be deemed to apply only with respect to the operation
of such provision in the particular jurisdiction in which such determination is
made and not with respect to any other provision or jurisdiction.
9.3 The Company and Employee acknowledge that the foregoing
restrictive covenants in this Section 9 are essential elements of this Agreement
and that, but for the agreement of Employee to comply with those covenants, the
Company would not have agreed to enter into this Agreement. The covenants by
Employee shall be construed as agreements independent of any other provision in
this Agreement.
9.4 The Company and Employee intend that the covenants contained
in this Section 9 shall be construed as a series of separate covenants, one for
each county of the State of California and one for each State of the United
States other than California.
9.5 The Company and Employee understand and agree that, if any
portion of the restrictive covenants set forth in this Section 9 is held to be
unreasonable, arbitrary, or against public policy, then that portion of those
covenants shall be considered divisible as to time and geographical area. The
Company and Employee agree that, if any court of competent jurisdiction
determines that
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the specified time period or the specified geographical area of application in
any covenant is unreasonable, arbitrary, or against public policy, then a lesser
time period, geographical area, or both, that is determined to be reasonable,
nonarbitrary, and not against public policy may be enforced against Employee.
The Company and Employee agree and acknowledge that they are familiar with the
present and proposed operations of the Company and believe that the restrictive
covenants set forth in this Section 9 are reasonable with respect to their
subject matter, duration, and geographical application.
9.6 The parties acknowledge that the status of Employee in this
business and industry is unique and the success of the Company in said business
is materially and substantially dependent upon the continued employment of
Employee, and in the event the employment of Employee is terminated for any
reason, such business of the Company will be substantially and irrevocably
damaged. In view thereof, the parties acknowledge that monetary damages alone
will not fully compensate the Company in the event Employee fails or refuses to
comply with the terms of this Section 9 above when applicable, and agree that
the Company, in addition to all other remedies provided in law and in equity,
shall have the remedy of injunctive relief and specific performance to enforce
the terms of said Section.
9.7 The business of the Company is materially and substantially
dependent upon the continued employment of Employee, and in the event the
employment of Employee is terminated for any reason, such business will be
substantially and irrevocably damaged. In view thereof, the parties acknowledge
that monetary damages alone will not fully compensate the Company in the event
Employee fails or refuses to comply with the terms of this Section 9, and agree
that the Company, in addition to all other remedies provided in law and in
equity, shall have the remedy of injunctive relief and specific performance to
enforce the terms of said Section. Employee hereby consents to the granting by
any court of an injunction or other equitable relief, without the necessity of
actual monetary loss being proved, in order that the breach or threatened breach
of such provisions may be effectively restrained.
10. ARBITRATION
Except as otherwise provided herein, any controversies or claims
arising out of, or relating to this Agreement or the breach thereof, shall be
settled by arbitration in Xxxxx County, Nevada in accordance with the rules of
the American Arbitration Association, which decision shall be final and binding
on the parties, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof. For these purposes the arbitrator shall be an
individual who has demonstrated that such individual is familiar with and has
experience in the legal issues involving employer-employee relationships and has
had no prior prejudicial contacts with either party. In addition to all other
remedies provided in law or in equity, the arbitrator is hereby authorized to
assess costs and attorney's fees against either party if the arbitrator finds,
based on all the facts and circumstances, that the conduct of or the claims made
by such party were unreasonable or substantially without merit.
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11. NOTICE
All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Employee, to:
Xxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company, to:
Parallax Medical, Inc.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Board of Directors
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
12. INVALID PROVISION
The invalidity or unenforceability of any particular provision of
this Agreement in any jurisdiction shall not affect the other provisions hereof
or the validity of that particular provision in any other jurisdiction, and the
Agreement shall be construed in all respects as though such invalid or
unenforceable provisions were omitted only in the jurisdiction in which the same
is held to be invalid or unenforceable.
13. INTERPRETATION
This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without regard to the conflict of laws
provisions thereof.
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14. SUCCESSORS
The rights and duties of Employee hereunder shall not be
assignable by Employee. This Agreement shall be binding upon and shall inure to
the benefit of any successor of the Company and Employee, and any such successor
shall be deemed substituted for the Company or Employee under the terms of this
Agreement. The term successor as used herein shall include any person, firm,
corporation or other business entity which at any time, by merger, purchase or
otherwise, acquires substantially all of the assets or business of the Company.
15. MODIFICATION
This instrument constitutes the entire agreement between the
parties, and may be changed only by an agreement in writing signed by the
parties.
16. HEADINGS
Sections and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretations of this Agreement.
17. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument. Signatures may be exchanged by telecopy, with
original signatures to follow. Each of the parties hereto agrees that it will be
bound by its own telecopied signature and that it accepts the telecopied
signatures of the other parties to this Agreement. The original signature pages
shall be forwarded to the Company or its counsel and the Company or its counsel
will provide all of the parties hereto with a copy of the entire Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
THE COMPANY: PARALLAX MEDICAL, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: President
EMPLOYEE: /s/ XXXXXX XXXXXXXXX
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XXXXXX XXXXXXXXX, in his individual
capacity
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