EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and shall be effective as of the 1st
day of April, 1997, by and between BIOXIDE CORPORATION, a Nevada corporation
(the "Company"), and XXXX X. XXXXXX, an individual (the "Executive"). Each of
the Company and the Executive are referred to herein individually as a "Party,"
and collectively as the "Parties."
RECITALS:
A. The Company is in the business of developing, manufacturing
and selling various medical products and devices and maintains its principal
office in Bountiful, Utah.
B. The Company wishes to engage the Executive to serve as the
Chief Executive Officer and President of the Company, and the Executive wishes
to accept employment in such capacities, upon the terms and conditions set forth
in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing Recitals and
the covenants and agreements set forth herein, together with other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Employment. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement.
2. Term. Subject to the provisions of paragraph 8 hereof, the initial
term of the Executive's employment under this Agreement will be two (2) years,
beginning on the date hereof and ending on the two year anniversary of the date
hereof (the "Initial Term").
3. Duties. While this Agreement remains in effect, the Executive will
serve as the Chief Executive Officer and President of the Company. The Executive
shall have such additional duties as may be assigned or delegated to the
Executive by the Board of Directors of the Company, from time to time, so long
as such additional duties are consistent with and do not detract from his
positions as the Chief Executive Officer and President of the Company. The
Executive will not devote his entire business time, attention, skill and energy
to the business of the Company, but will promote the success of the Company's
business, and will cooperate fully with the Board of Directors in the
advancement of the best interests of the Company and its shareholders. Nothing
in this paragraph 3 will prevent the Executive from engaging in additional
activities in connection with personal investments and community affairs that
are not inconsistent with his duties under this Agreement.
4. Compensation.
(a) The Executive will be paid an annual salary of $90,000
(the "Salary"), which will be payable in equal periodic installments according
to the Company's payroll practices, but no less frequently than monthly.
(b) In addition to the Salary, the Company may, in its
absolute discretion, pay the Executive bonus or incentive compensation, as
determined by the Board of Directors.
5. Stock Option. The Company shall, within two (2) months from the date
hereof, grant to Executive an option to purchase up to 70,000 shares of the
Company's capital stock at a purchase price of $1.50 per share. Such grant and
the procedures pertaining to the exercise of the option shall be in accordance
with the Company's standard procedures.
6. Facilities and Expenses. The Company will furnish the Executive with
office space, equipment, supplies, facilities and personnel sufficient to enable
the Executive to appropriately carry out his duties and obligations under this
Agreement. The Company will pay on behalf of the Executive (or reimburse the
Executive for) all reasonable expenses incurred by the Executive at the request
of, or on behalf of, the Company in the performance of the Executive's duties
pursuant to this Agreement, including expenses for business related
entertainment, travel and similar items. The Company shall reimburse the
Executive for all such expenses upon presentation by the Executive of itemized
accounts of such expenses, accompanied by such expense reports and receipts as
the Company may reasonably require in order to satisfy the requirements of the
Internal Revenue Code in regard to the deductibility of such expenses.
7. Death During Employment. If the Executive dies while this Agreement
remains in effect, the Company shall promptly pay to the estate of the Executive
all compensation and bonuses (on a pro rata basis) due Executive as of the date
of his death. 8. Termination. Prior to its expiration pursuant to paragraph 2
hereof, this Agreement may only be terminated in the manner set forth in this
paragraph 8.
(a) This Agreement shall terminate automatically and
immediately upon the death of the Executive.
(b) The Executive may terminate this Agreement, and his
employment with the Company hereunder, at any time upon thirty (30) days prior
written notice to the Company.
(c) The Company may terminate this Agreement, for cause, at
any time upon written notice to the Executive. For purposes of this paragraph
8(c), the phrase "for cause" means:
i. The Executive's material breach of any material
provision of this Agreement which remains unremedied thirty (30) days after the
Executive receives notice of such breach from the Company;
ii. The Executive's material failure to adhere to any
material written policy of the Company if the Executive has been given a
reasonable opportunity to comply with such policy or to cure his failure to
comply (which reasonable opportunity must, at least, be granted during the ten
(10) day period preceding termination of this Agreement);
iii. The misappropriation of any of the Company's
funds or property; or
iv. The final conviction of the Executive of a felony
or crime of moral turpitude which is related to the business of the Company and
which (in the good faith judgment of the board of directors) is injurious to the
business of the Company as determined in good faith by the board of directors of
the Company.
(d) The Company and the Executive may terminate this
Agreement, by mutual agreement in writing, subject to any terms and conditions
specified in such Agreement.
9. Effect of Termination.
(a) Upon the termination of this Agreement , the Company shall
pay to the Executive, in cash and upon the effective date of such termination,
that portion of the Executive Salary which has accrued and remains unpaid up to
and including the date upon which such termination becomes effective.
(b) The obligations set forth in paragraphs 10, 11, 13 and 14
hereof shall survive the expiration or termination of this Agreement.
10. Confidentiality.
(a) Executive agrees that, both during the term of this
Agreement and thereafter, Executive shall not use, disclose or permit any person
to obtain any "Confidential Information" (as defined in paragraph 10(b) hereof)
of the Company (whether or not the Confidential Information is in written or
tangible form), except as specifically authorized in writing by the Company or
as may be necessary, in the Executive's good faith judgment, to perform his
duties hereunder on behalf of the Company.
(b) The term "Confidential Information" shall mean any data,
documents or other information that is material to the Company and not generally
known by the public. Confidential Information shall include, without limitation,
any trade secrets, know-how, technical information, design, process, procedure,
product specifications formula, algorithm, improvement or computer program
source code. The term shall also include the sales records, profit and
performance reports, pricing procedures and financing methods of the Company;
the customer lists, special demands of particular customers, and current and
anticipated requirements of customers generally for products of the Company; the
sources of supply for integrated components and materials used for production,
assembly and packaging by the Company and the quality, prices and usage of those
components and materials; and the business and marketing plans and internal
financial statements and projections of the Company.
(c) Executive covenants and agrees that he will, upon
termination of this Agreement or, if later, upon termination of his employment
with the Company, deliver to the Company any and all Confidential Information in
his possession or under his control, regardless of the physical form of such
Confidential Information, and he shall not retain memoranda or copies of any
such Confidential Information.
(d) Executive will not use for or disclose to the Company any
proprietary information or trade secrets of any of his former employers in
violation of any obligation he may have to such former employers in regard to
confidentiality or non-use.
(e) None of the obligations and restrictions set forth in this
paragraph 10 shall apply to any part of the Confidential Information that the
Executive can demonstrate was or became generally available to the public other
than as a result of a disclosure by the Executive.
11. Competition. The Executive (i) at any time during the term hereof
or (ii) at any time during the 2 year period following the termination of this
Agreement, shall not in any manner, directly or indirectly engage in a business
which is competitive with the business in which the Company was actually engaged
(or which was demonstrably the subject of the Company's research or development
plans) on the effective date of the termination of the Executive's employment.
Executive acknowledges that in the event his employment with the Company
terminates for any reason, he will be able to earn a livelihood without
violating the foregoing restrictions and that his ability to earn a livelihood
without violating such restrictions is a material condition to his employment
with the Company. The Company and Executive agree that the covenant not to
compete contained in this paragraph 11 is fair and reasonable in light of all
the facts and circumstances of the relationship between Executive and the
Company. The Parties further agree that in the event a court should decline to
enforce any provision of this paragraph 11, it shall be deemed to be modified to
restrict Executive's competition with the Company to the maximum extent, in both
time and geography, which the court shall find enforceable; however, in no event
shall such modified provisions be deemed to be more restrictive to Executive
than those contained herein.
12. Default. Neither party to this Agreement shall be in breach of, and
no act or failure to act shall constitute a default under, any provision of this
Agreement until notice is given and the cure period lapses as described in this
paragraph 12. Upon an alleged default or breach of any provision of this
Agreement, the non-defaulting party shall give the defaulting party written
notice specifying in reasonable detail the alleged default or breach. The
defaulting party shall have thirty (30) days from receipt of such notice of
default to cure the alleged default. If the nature of the alleged default or
breach is such that it is incapable of being cured within such thirty (30) days,
then the defaulting party shall be deemed to have cured such breach or default
if, within such thirty (30) days, the defaulting party begins to cure such
default or breach and, thereafter, diligently continues to take such actions as
are reasonably necessary to cure such breach or default until the same is cured.
13. Injunctive Relief. Upon a breach or threatened breach by Executive
of any of the provisions of paragraph 10 or 11 of this Agreement, the Company
shall be entitled to an injunction restraining Executive from such breach.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies for such breach or threatened breach, including recovery of
damages from Executive.
14. Arbitration. All controversies and claims of any nature arising
directly or indirectly out of this Agreement or the employment relationship
between the Parties shall be submitted to binding arbitration under the
Commercial Rules of the American Arbitration Association. The arbitration shall
occur in Salt Lake City, Utah before three arbitrators chosen in accordance with
such rules. The decision of the arbitrators shall be final, binding and
nonappealable, and judgment upon an award rendered in the arbitration proceeding
may be entered in any court having jurisdiction. The prevailing Party shall be
entitled to recover from the other Party his or its reasonable attorneys' fees
and costs if the arbitrators so determine.
15. Notices. Any notice which is required or permitted to be given to a
Party to this Agreement shall be deemed to have been given only if such notice
is reduced to writing and delivered personally, or by United States mail with
postage prepaid and return receipt requested, or by telecopier (fax)
transmission, or by overnight courier to the appropriate party as set forth
below:
The Company: Bioxide Corporation
Attn: Xxxxxxx Xxxxxxxxxx, Secretary
000 Xxxxx 000 Xxxx, #000
Xxxxxxxxx, XX 00000
The Executive: Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Either Party may change his or its address by giving notice of such change in
the manner set forth herein. Any notice given to a Party by mail or by overnight
courier shall be deemed delivered two days following the date upon which it is
deposited in the United States mail, with postage prepaid and return receipt
requested, or delivered to the courier, as the case may be, addressed to the
Party in question as set forth herein. Any notice given to a party by FAX shall
be deemed effective on the date it is actually transmitted to the Party in
question at the FAX number specified herein, by confirmed transmission.
16. Assignment. This Agreement may not be assigned by either Party
hereto without the express written consent of the other Party.
17. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto, their respective heirs,
beneficiaries, successors and permitted assigns.
18. Entire Agreement. This Agreement supersedes any prior
understandings or agreements, whether written or oral, between the Parties in
regard to the subject matter hereof, and contains the entire agreement between
the Parties in regard to the subject matter hereof. This Agreement may not be
changed or modified orally, but only by an agreement, in writing, signed by both
of the Parties.
19. Savings Clause. Should any part or provision of this Agreement be
rendered or declared invalid by reason of any state or federal law, or by decree
of a court of competent jurisdiction, the invalidation of such part or provision
of this Agreement shall not invalidate the remaining parts or provisions hereof,
and such remaining parts and provisions of this Agreement shall remain in full
force and effect.
20. Waiver. Neither the failure nor delay on the part of any Party to
exercise any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or privilege
preclude any other or further exercise thereof or of any other right or
privilege.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah, without giving effect to the
choice of law rules thereof.
22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be a binding agreement, but all of which
together shall constitute but one document.
IN WITNESS WHEREOF, the Parties have executed this Employment Agreement
as of the date first herein written.
THE COMPANY:
BIOXIDE CORPORATION
By /s/ Xxxx X. Xxxxxxxxxx
Its Chairman
THE EXECUTIVE:
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX
