EMPLOYMENT AGREEMENT
This
Employment Agreement is made and entered into by and between Alynx, Co. (the
"Company") and Xxxxx X. Xxxxx ("Executive") as of February 20, 2008 (the
“Effective Date”).
1.
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Position and
Duties. Executive shall be employed by the Company as
its President, reporting to the Company's Chief
Executive. Executive agrees to devote his full-time business
time, energy and skill to his duties at the Company. These
duties shall include all those duties customarily performed by the
President and the Executive's services shall be performed out of the
Company’s Tampa offices.
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2.
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Term of
Employment: Executive’s employment as an employee of the
Company will be for a two-year term, renewable for consecutive one-year
terms upon mutual agreement of the parties. However,
subject to the terms and conditions hereof, such employment may be
terminated by Executive or the Company at any time, with or without good
reason. Upon the termination of Executive’s employment as an
employee of the Company, for any reason, neither Executive nor the Company
shall have any further obligation or liability under this Agreement to the
other, except for the accrued rights of the Executive hereunder and as set
forth in this paragraph and paragraphs 6 and 7
below.
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3.
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Compensation: Executive
shall be compensated by the Company for his services as
follows:
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(a)
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Signing
Bonus: Executive shall receive a signing bonus equal to
$11,250, payable upon the first regularly scheduled payroll subsequent to
his commencing work at the Company.
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(b)
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Base
Salary: Executive shall be paid a monthly Base Salary of
$14,583.33 per month ($175,000 on an annualized basis), subject to
applicable withholding, in accordance with the Company's normal payroll
procedures. Executive's salary shall be reviewed on at least an
annual basis. In the event of such an increase, that increased
amount shall become Executive's Base Salary. The parties
acknowledge that Executive will be eligible as additional compensation of
up to 20% of the Base Salary if certain Alynx objectives are achieved as
approved of Directors.
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(c)
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Relocation
Costs: Executive shall be paid actual costs incurred to
relocate to Tampa up to a total of $10,000, in addition to the costs for
three months of travel and temporary living expenses in the Tampa
area. In the event the Executive voluntarily leaves the
employment of the Company within the first twelve months of employment,
the amount advanced to the Executive for such relocation expenses
incurred, up to the $10,000, shall be prorated on a monthly basis over a
twelve month basis and an amount will be repaid to the Company for the
number of months the Executive ceased to be employed by the Company during
the twelve months following the Effective date of Executive’s employment
with the Company.
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4.
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Benefits: Executive
shall have the right to participate in and to receive benefits under any
of the Company's employee benefit plans, as such plans may be modified
from time to time. In addition, Executive shall be entitled to the
benefits afforded to other members of senior
management.
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5.
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Stock: Management
will recommend to the Board of Directors at the next Board Meeting that
the Executive will be granted a stock option to acquire 1,854,852 shares
of the Company’s Common Stock with an exercise price determined to be the
fair market value as of the date of grant. Such options shall
vest 25% immediately and 25% on each anniversary of the option
grant. Such options shall fully vest on a Change of Control, as
subsequently defined.
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6.
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Benefits Upon
Termination: In the event of Executive's voluntary
termination from employment with the Company, or in the event that
Executive's employment terminates as a result of his death, Executive
shall be entitled to no compensation or benefits from the Company other
than those earned under paragraph 3 above through the date of his
termination or in the case of any stock, vested through the date of his
termination.
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7.
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Benefits Upon Other
Termination. Executive agrees that his employment may be
terminated by the Company at any time, with or without good
reason. In the event of the termination of Executive's
employment by the Company for the reasons set forth below, he shall be
entitled to the following:
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(a) Termination for Good
Reason: If Executive's employment is terminated by the Company
for good reason as defined below, Executive shall be entitled to no compensation
or benefits from the Company other than those earned under paragraph 3, or in
the case of any restricted stock, vested through the date of his
termination.
For
purposes of this Agreement, a termination "for good reason" occurs if Executive
is terminated for any of the following reasons:
(i) theft,
dishonesty, or falsification of any employment or Company
records;
(ii) conviction
of a felony or any act involving moral turpitude;
(iii) improper
disclosure of the Company's confidential or proprietary
information;
(iv) any
intentional act by Executive that has a material detrimental effect on the
Company's reputation or business; or
(v) any
material breach of this Agreement, which breach, if curable, is not cured within
thirty (30) days following written notice of such breach from the
Company.
(b) Termination Without Good
Reason: The following shall be deemed to be termination
without good reason:
(i) If
the Company requires the Executive to be based at any office or location other
than that which the Executive initially is employed at within thirty days of
this Employment Agreement, except for travel reasonably required in the
performance of the Executive's responsibilities consistent with practices in
effect prior to the Effective Date,
(ii) The
assignment to Executive by the Company of duties inconsistent with Executive’s
duties as defined in Section 1 of this Employment Agreement, or any material
change in his duties or responsibilities without his prior written consent,
or:
(iii) A
reduction by the Company in Executive’s Base Salary as is defined by this
Agreement or as the same may be increased from time to time during the term of
this Agreement.
If
Executive's employment is terminated by the Company following the Effective Date
for any reason other than for good reason, Executive shall be entitled to the
following separation benefits:
(x) all
accrued compensation and benefits through the date of termination including any
option grants that have been vested through that date; and
(y)
continued payment of Executive’s salary at his Base Salary rate together with
applicable fringe benefits (including any COBRA expense) as provided to other
executive employees, less applicable withholding, until the greater of either
(i) the end of the Term of Employment as set forth in this Employment Agreement
or (ii) twelve months.
(c) Change of
Control: In the event the Executive’s employment is
terminated during the term hereof by either the Executive or the Company (not
for good reason) after the occurrence of a “Change of Control,” such termination
shall be deemed to be a termination without good reason For the
purposes of this Agreement a “Change of Control” shall be deemed to occur upon
any of the following: (x) the acquisition, directly or indirectly, following the
Effective Date by any person (as such term is defined in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended), in one transaction
or a series of related transactions, of securities of the Company representing
in excess of fifty percent (50%) or more of the combined voting power of the
Company’s then outstanding securities if such person or his or its affiliate(s)
do not own in excess of 50% of such voting power on the Effective Date, or (y)
the date of the closing of a disposition by the Company (whether
direct or indirect, by sale of assets or stock, merger, consolidation or
otherwise) of all or substantially all of its business and/or assets in one
transaction or series of related transactions, where the Company an affiliate of
the Company or a control person of the Company immediately prior to the
transaction(s) in question is not the controlling entity or person after such
transaction(s).
Notwithstanding the foregoing, a Change in Control shall not be deemed to have
occurred in the event the Company forms a holding company as a result of which
the holders of the Company’s voting securities immediately prior to the
transaction hold, in approximately the same relative proportions as they hold
prior to the transaction, substantially all of the voting securities of a
holding company owning all of the Company’s voting securities after the
completion of the transaction.
A
Change in Control shall not be deemed to have occurred as a result of an initial
public offering of the common stock of the Company, or the creation or
development of a public market for the shares of common stock of the Company
through a “reverse merger” into a public company or other similar
transaction.
8.
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Employee Inventions
and Proprietary Rights Assignment Agreement: Executive
agrees to execute and abide by the terms and conditions of the Company's
standard Employee Inventions and Proprietary Rights Assignment Agreement,
which shall not be materially different from the form attached as Exhibit
A hereto.
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9.
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Agreement Not To
Compete Unfairly: Employee agrees that in the event of
his termination at any time and for any reason, he shall not compete with
the Company in any unfair manner, including, without limitation, using any
confidential or proprietary information of the Company to compete with the
Company in any way.
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10.
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Dispute
Resolution: In the event of any dispute or claim
relating to or arising out of this Agreement (including, but not limited
to, any claims of breach of contract, wrongful termination or age, sex,
race or other discrimination), Employee and the Company agree that all
such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in Atlanta, Georgia in
accordance with its National Employment Dispute Resolution rules, as those
rules are currently in effect (and not as they may be modified in the
future). Both parties acknowledge that by accepting this
arbitration provision each is waiving any right to a jury trial in the
event of such dispute. This agreement to arbitrate shall be
without prejudice to the right of the parties to seek preliminary
injunctive, interim, or other form of provisional equitable relief in any
court or any judicial authority which has jurisdiction over the parties
and/or the subject matter of the
controversy.
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11.
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Interpretation: Executive
and the Company agree that this Agreement shall be interpreted in
accordance with and governed by the laws of the State of
Florida.
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12.
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Successors and
Assigns: This Agreement shall inure to the benefit of
and be binding upon each party and its successors and
assigns. This Agreement is personal to Executive and may not be
assigned in any way by Executive without the prior written consent of the
Company. The Company may assign its rights and obligations
under this Agreement only to an “affiliate,” as such term is defined in
Rule 501 of Regulation D as promulgated under the Securities Act of 1933,
as amended.
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13.
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Entire
Agreement: This Agreement constitutes the entire
employment agreement between Executive and the Company regarding the terms
and conditions of his employment, with the exception of (i) the agreement
described in paragraph 8 and (ii) any stock or option agreements between
Executive and the Company. This Agreement (including the
documents described in (i) and (ii) herein) supersedes all prior
negotiations, representations or agreements between Executive and the
Company, whether written or oral, concerning Executive's employment by the
Company.
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14.
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Validity: If
any one or more of the provisions (or any part thereof) of this Agreement
shall be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions (or any
part thereof) shall not in any way be affected or impaired
thereby.
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15.
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Modification: This
Agreement may only be modified or amended by a supplemental written
agreement signed by Executive and the
Company.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year written below.
ALYNXALYNX,
CO.
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By:
/s/ Xxxxxxx X.
Xxxxxx
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Its: President
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/s/ Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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EXHIBIT
A
EMPLOYEE INVENTION
ASSIGNMENT
CONFIDENTIALITY
AGREEMENT
In
consideration of, and as a condition of my employment with AlynxAlynx, Co., a
Florida corporation (the “Company”), I hereby represent to, and agree with the
Company as follows:
1.
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Purpose of
Agreement. I understand that the company is engaged in a
continuous program of research, development, production and marketing in
connection with its business and that it is critical for the company to
preserve and protect its “proprietary information” (as defined in Section
7 below), its rights in “inventions” (as defined in Section 2 below) and
in all related intellectual property rights. Accordingly, I am
entering into this employee invention Assignment and Confidentiality
Agreement (this “Agreement”) as a condition of my employment with the
Company, whether or not I am expected to create inventions of value for
the Company
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2.
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Disclosure of
Inventions. I will promptly disclose in confidence to
the Company all inventions, improvements, designs, original works of
authorship, formulas, processes, compositions of matter, computer software
programs, databases, mask works and trade secrets related to the field of
Orthopaedic medical devices that I make or conceive or first reduce to
practice or create, either alone or jointly with others, during the period
of my employment (“Inventions”), and whether or not such Inventions are
patentable, copyrightable or protectible as trade
secrets.
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3.
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Work for Hire;
Assignment of Inventions. I acknowledge and agree that
any copyrightable works prepared by me within the scope of my employment
are “works for hire” under the Copyright Act and that the Company will be
considered the author and owner of such copyrightable works. I
agree that all Inventions that (i) are developed using equipment,
supplies, facilities or trade secrets of the Company, (ii) result from
work performed by me for the Company, or (iii) relate to the Company’s
business or current research and development, will be the sole and
exclusive property of the Company and are hereby irrevocably assigned by
me to the Company.
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4.
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Assignment of Other
Rights. In addition to the foregoing assignment of
Inventions to the Company, I hereby irrevocably transfer and assign to the
Company: (i) all worldwide patents, patent applications, copyrights, mask
works, trade secrets and other intellectual property rights in any
Invention; and (ii) any and all “Moral Rights” (as defined below) that I
may have in or with respect to any Invention. I also hereby
forever waive and agree never to assert any and all Moral Rights I may
have in or with respect to any Invention, even after termination of my
work on behalf of the Company. “Moral Rights” mean any rights to claim
authorship of an Invention, to object to or prevent the modification of
any Invention, or to withdraw from circulation or control the publication
or distribution of any Invention, and any similar right, existing under
judicial or statutory law of any country in the world, or under any
treaty, regardless of whether or not such right is denominated or
generally referred to as a “moral
right.”
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5.
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Assistance. I
agree to assist the Company in every proper way to obtain for the Company
and enforce patents, copyrights, mask work rights, trade secret rights and
other legal protections for the Company’s Inventions in any and all
countries. I will execute any documents that the Company may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal
protections. My obligations under this paragraph will continue
beyond the termination of my employment with the Company for any reason or
no reason, provided that the Company will compensate me at a reasonable
rate after such termination for time or expenses actually spent by me at
the Company’s request on such assistance. I hereby
constitute and appoint the Company as my agent and attorney in fact to
execute and deliver any such assignments or documents, including
applications for patent or copyright protection that I fail or refuse to
execute and deliver, this power and agency being coupled with an interest
and being irrevocable.
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6.
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Proprietary
Information. I understand that my employment by the
Company creates a relationship of confidence and trust with respect to any
information of a confidential or secret nature that may be disclosed to me
by the Company that relates to the business of the Company or to the
business of any parent, subsidiary, affiliate, customer or supplier of the
Company or any other party with whom the Company agrees to hold
information of such party in confidence (the “Proprietary Information”).
Such Proprietary Information includes, but is not limited to, Inventions,
marketing plans, product plans, business strategies, financial
information, forecasts, personnel information, customer lists and domain
names. Provided, however, that Proprietary Information does not
include information: (a) I can demonstrate I knew at the time
of receipt from Company; (b) is or becomes a part of the public domain
without breach of this Agreement by me; or (c) is disclosed pursuant to
judicial action or government regulations, provided I notify the Company
prior to such disclosure and cooperates with the Company in the event the
Company elects to legally contest and avoid such
disclosure.
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7.
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Confidentiality. At
all times, both during my employment and after its termination, I will
keep and hold all such Proprietary Information in strict confidence and
trust. I will not use or disclose any Proprietary Information
without the prior written consent of the Company, except as may be
necessary to perform my duties as an employee of the Company for the
benefit of the Company. Upon termination of my employment with
the Company, I will promptly deliver to the Company all documents and
materials of any nature pertaining to my work with the
Company. I will not take with me any documents or materials or
copies thereof containing any Proprietary
Information.
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8.
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No Breach of Prior
Agreement. I represent that my performance of all the
terms of this Agreement and my duties as an employee of the Company will
not breach any invention assignment, proprietary information,
confidentiality or similar agreement with any former employer or other
party. I represent that I will not bring with me to the Company
or use in the performance of my duties for the Company any documents or
materials or intangibles of a former employer or third party that are not
generally available to the public or have not been legally transferred to
the Company.
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9.
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Efforts; Duty Not to
Compete. I understand that my employment with the
Company requires my attention and effort during normal business
hours. While I am employed by the Company, I will not, without
the Company’s express prior written consent, provide services to, or
assist in any manner, any business or third party which competes with the
current or planned business of the
Company.
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10.
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Notification. I
hereby authorize the Company to notify my actual or future employers of
the terms of this Agreement and my responsibilities
hereunder.
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11.
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Non-Solicitation of
Employees/Consultants. During my employment with the Company and
for a period of twelve months thereafter, I will not directly or
indirectly solicit away employees or consultants of the Company for my own
benefit or for the benefit of any other person or
entity.
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12.
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Non-Solicitation of
Suppliers/Customers. During my employment with the
Company and for a period of twelve months after termination of my
employment, I will not directly or indirectly solicit or take away
suppliers or customers of the Company if the identity of the supplier or
customer or information about the supplier or customer relationship is a
trade secret or is otherwise deemed confidential information under
applicable law.
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13.
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Injunctive
Relief. I understand that in the event of a breach or
threatened breach of this Agreement by me the Company may suffer
irreparable harm and will therefore be entitled to injunctive relief to
enforce this Agreement.
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14.
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Governing Law;
Severability. This Agreement will be governed by and
construed in accordance with the laws of the State of Florida, without
giving effect to that body of laws pertaining to conflict of
laws. If any provision of this Agreement is determined by any
court or arbitrator of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such provision will be enforced to the
maximum extent possible given the intent of the parties
hereto. If such clause or provision cannot be so enforced, such
provision shall be stricken from this Agreement and the remainder of this
Agreement shall be enforced as if such invalid, illegal or unenforceable
clause or provision had (to the extent not enforceable) never been
contained in this Agreement. Notwithstanding the forgoing, if
the value of this Agreement based upon the substantial benefit of the
bargain for any party is materially impaired, which determination as made
by the presiding court or arbitrator of competent jurisdiction shall be
binding, then this Agreement will not be enforceable against such affected
party and both parties agree to renegotiate such provision(s) in good
faith.
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15.
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Counterparts. This
Agreement may be executed in any number of counterparts, each of which
when so executed and delivered will be deemed an original, and all of
which together shall constitute one and the same
agreement.
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16.
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Titles and
Headings. The titles, captions and headings of this
Agreement are included for ease of reference only and will be disregarded
in interpreting or construing this Agreement. Unless otherwise
specifically stated, all references herein to “sections” and “exhibits”
will mean “sections” and “exhibits” to this
Agreement.
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17.
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Entire
Agreement. This Agreement and the documents referred to
herein constitute the entire agreement and understanding of the parties
with respect to the subject matter of this Agreement, and supersede all
prior understandings and agreements, whether oral or written, between or
among the parties hereto with respect to the specific subject matter
hereof.
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18.
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Amendment and
Waiver. This Agreement may be amended only by a written
agreement executed by each of the parties hereto. No amendment
of or waiver of, or modification of any obligation under this Agreement
will be enforceable unless set forth in a writing signed by the party
against which enforcement is sought. Any amendment effected in
accordance with this section will be binding upon all parties hereto and
each of their respective successors and assigns. No delay or
failure to require performance of any provision of this Agreement shall
constitute a waiver of that provision as to that or any other
instance. No waiver granted under this Agreement as to any one
provision herein shall constitute a subsequent waiver of such provision or
of any other provision herein, nor shall it constitute the waiver of any
performance other than the actual performance specifically
waived.
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19.
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Successors and
Assigns; Assignment. This Agreement shall inure to the
benefit of and be binding upon each party and its successors and
assigns. This Agreement is personal to Executive and may not be
assigned in any way by Executive without the prior written consent of the
Company. The Company may assign its rights and obligations
under this Agreement only to an “affiliate,” as such term is defined in
Rule 501 of Regulation D as promulgated under the Securities Act of 1933,
as amended.
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20.
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Further
Assurances. The parties agree to execute such further
documents and instruments and to take such further actions as may be
reasonably necessary to carry out the purposes and intent of this
Agreement.
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Employee:
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By:
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Signature
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Name:
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Name
(Please print)
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