EMPLOYEE AGREEMENT
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To: XXXXXXX XXXXXXXXX, Esquire
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Effective May 18, 1999, The undersigned, Hemagen Diagnostics, Inc., a
Delaware corporation (the "Company"), hereby agrees with you as follows:
1. Position and Responsibilities.
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1.1 You shall serve as Chief Financial Officer and General Counsel
for the Company, (or in such other executive capacity as shall be designated
by the Board of Directors and acceptable to you in your sole discretion) and
shall perform the duties customarily associated with such capacity from time
to time as the Company shall designate are appropriate and necessary in
connection with such employment.
1.2 You will, to the best of your ability, devote no less than forty
(40) hours per week to the performance of your duties hereunder and to the
business and affairs of the Company. You agree to perform such executive
duties as may be assigned to you by or on authority of the Company's Chief
Executive Officer from time to time.
1.3 You will perform and observe any and all reasonable rules and
regulations which the Company may now or shall hereafter establish governing
the conduct of its business.
1.4 If, for any reason, the Company materially or substantially
changes or modifies your duties and/or the responsibilities of your position
with the Company or if the Company relocates your primary place of
employment to a place that is greater than 50 miles from your present
location in Waltham, Massachusetts, then, at your option, your employment
with the Company may be terminated and, for purposes of this Agreement,
such termination will be considered a termination without cause by the
Company and the provisions of Section 2.2(b) shall apply.
2. Term of Employment.
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2.1 The initial term of this Agreement shall be for the period of
years set forth on Exhibit A annexed hereto commencing May 18, 1999.
Thereafter, this Agreement shall be automatically renewed for successive
periods of two years, unless you or the Company shall give the other party
not less than six (6) months written notice of non-renewal. Your employment
with the Company may be terminated at any time as provided in section 2.2.
2.2 The Company shall have the right, on written notice to you, to
terminate your employment:
(a) immediately at any time for cause; or
(b) at any time without cause, provided the Company shall be
obligated to pay to you as severance pay an amount equal to twelve
(12) months Base Salary (as set forth on Exhibit A hereto regardless
of the remaining term hereunder) , less applicable taxes and other
required withholdings and any amounts you may owe to the Company; or
(c) at any time without cause or notice in the event of any
involuntary liquidation of the Company.
2.3 For purposes of Section 2.2, the term "cause" shall mean the
willful breach or habitual neglect of your obligations under this Agreement
or your duties as an employee of the Company provided that, if time allows,
the Company provides you with thirty (30) days prior notice with the right
to cure such breach or neglect.
2.4 For purposes of Section 2.2(b), you shall have no duty to
mitigate such payments by seeking other employment nor shall any payments be
reduced by any other employment which you may obtain after termination of
your employment with the Company. However, if you accept any payments under
Section 2.2(b), you shall hereby agree (and you hereby agree to sign any
reasonable general release form) to release and hold the Company harmless
from and against any claim or action you may have against the Company
related solely to your employment by the Company.
3. Compensation. You shall receive the compensation and benefits set
forth on Exhibit A hereto ("Compensation") for all services to be rendered
by you hereunder and for your transfer of property rights pursuant to an
agreement relating to proprietary information and inventions of even date
herewith attached hereto as Exhibit B between you and the Company (the
"Proprietary Information and Inventions Agreement").
4. Other Activities During Employment. You hereby agree that during your
employment hereunder, you will not, directly or indirectly, engage (a)
individually, (b) as an officer, (c) as a director, (d) as an employee, (e)
as a consultant, (f) as an advisor, (g) as an agent (whether a salesperson
or otherwise) , (h) as a broker, or (i) as a partner, co-venturer,
stockholder or other proprietor owning directly or indirectly more than five
percent (5%) interest in any firm, corporation, partnership, trust,
association, or other organization which is engaged in the manufacture and
sale of medical diagnostics or any other line of business engaged in or
under demonstrable development by the Company (such firm, corporation,
partnership, trust, association, or other organization being hereinafter
referred to as a "Prohibited Enterprise").
5. Former Employers.
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5.1 You represent and warrant that your employment by the Company
will not conflict with and will not be constrained by any prior or current
employment, consulting agreement or relationship whether oral or written.
You represent and warrant that you do not possess confidential information
arising out of any such employment, consulting agreement or relationship
which, in your best judgment, would be utilized in connection with your
employment by the Company in the absence of Section 5.2.
5.2 If, in spite of the second sentence of Section 5.1, you should
find that confidential information belonging to any other person or entity
might be usable in connection with the Company's business, you will not
intentionally disclose to the Company or use on behalf of the Company any
confidential information belonging to any of your former employers; but
during your employment by the Company you will use in the performance of
your duties all information which is generally known and used by persons
with training and experience comparable to your own all information which is
common knowledge in the industry or otherwise legally in the public domain.
6. Proprietary Information and Inventions. You agree to execute, deliver
and be bound by the provisions of the Proprietary Information and Inventions
Agreement.
7. Post-Employment Activities.
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7.1 For a period of six (6) months after the termination or
expiration, for any reason, of your employment with the Company hereunder,
absent the Company's prior written approval, you will not directly or
indirectly engage in activities similar or reasonably related to those in
which you shall have engaged hereunder during the one year immediately
preceding termination or expiration for, nor render services similar or
reasonably related to those which you shall have rendered hereunder during
such year to, any person or entity whether now existing or hereafter
established which directly competes with (or proposes or plans to directly
compete with) the Company ("Direct Competitor") in any line of business
engaged in or under development by the Company. Nor shall you entice, induce
or encourage any of the Company's other employees to engage in any activity
which, were it done by you, would violate any provision of the Proprietary
Information and Inventions Agreement or this Section 7. As used in this
Section 7.1, the term "any line of business engaged in or under development
by the Company" shall be applied as at the date of termination of your
employment, or, if later, as at the date of termination of any post-
employment consultation.
7.2 No provision of this Agreement shall be construed to preclude you
from performing the same services which the Company hereby retains you to
perform for any person or entity which is not a Direct Competitor of the
Company upon the expiration or termination of your employment (or any
post-employment consultation) so long as you do not thereby violate any term
of the Proprietary Information and Inventions Agreement.
8. Remedies. Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 6,7,8 and 9 of this
Agreement (as modified by Section 10, if applicable) shall survive the
expiration or termination of your employment (whether through your
resignation or otherwise) with the Company. You acknowledge that a remedy at
law for any breach or threatened breach by you of the provisions of the
Proprietary Information and Inventions Agreement or Section 7 would be
inadequate and you therefore agree that the Company shall be entitled to
such injunctive relief in case of any such breach or threatened breach.
9. Assignment. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation and any
assignee of all or substantially all of its business and properties, but,
except as to any such successor or assignee of the Company, neither this
Agreement nor any rights or benefits hereunder may be assigned by the
Company or by you, except by operation of law. Any such assignment or
attempt to assign any rights hereunder in violation of this Section 9 shall
be void.
10. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any one
or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other
provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. MOREOVER, IT IS THE INTENT OF THE PARTIES THAT in case any one or
more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, geographical scope, activity or
subject, such provision shall be construed by limiting and reducing it as
determined by a court of competent jurisdiction, so as to be enforceable to
the extent compatible with applicable law.
11. Notices. Any notice which the Company is required to or may desire to
give you shall be given by personal delivery or registered or certified
mail, return receipt requested, addressed to you at your address of record
with the Company, or at such other place as you may from time to time
designate in writing. Any notice which you are required or may desire to
give to the Company hereunder shall be given by personal delivery or by
registered or certified mail, return receipt requested, addressed to the
Company at its principal office, or at such other office as the Company may
from time to time designate in writing. The date of personal delivery or the
date of mailing any notice under this Section 11 shall be deemed to be the
date of delivery thereof.
12. Waivers. If either party should waive any breach of any provision of
this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
13. Complete Agreement; Amendments. Except for any stock options issued
to you under the Company's stock option plan(s), the foregoing including
Exhibits A, B and C hereto, is the entire agreement of the parties with
respect to the subject matter hereof, superseding any previous oral or
written communications, representations, understandings, or agreements with
the Company or any officer or representative thereof. Any amendment to this
Agreement or waiver by the Company of any right hereunder shall be effective
only if evidenced by a written instrument executed by the parties hereto,
upon authorization of the Company's Board of Directors. This Agreement
shall in no event modify, restrict or replace any employee stock options
previously issued to you.
14. Headings. The headings of the Sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning of this Agreement.
15. Counterparts. This Agreement may be signed in multiple counterparts,
each of which shall be deemed an original and both of which shall together
constitute one agreement.
16. Governing Law. This Agreement shall be governed by and construed
under Massachusetts law.
If you are in agreement with the foregoing, please sign your name
below and also at the bottom of the Proprietary Information and Inventions
Agreement, whereupon this Agreement shall become binding in accordance with
its terms. Please then return this
Agreement to the Company. (You may retain for your records the accompanying
counterpart of this Agreement enclosed herewith).
Very truly yours,
HEMAGEN DIAGNOSTICS INC.
By: /s/ Xxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxxx, Director
Accepted and Agreed: /s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX
Exhibit A
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EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF XXXXXXX XXXXXXXXX
2. Term. The term of the Agreement to which this Exhibit A is
annexed and incorporated shall be until May 17, 2001.
2. Compensation.
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(a) Base Salary. Your Base Salary shall be:
130,000 per annum from the date of this Agreement through the
remainder of Fiscal 1999 and thereafter as may be determined by the
Company's Chief Executive Officer or the compensation committee of the
Board of Directors, but in no event less than $130,000 per annum,
payable in accordance with the Company's payroll policies.
(b) Bonus. Any future bonuses shall be determined by the Chief
Executive Officer of the Company, taking into account the current
economic condition of the Company.
3. Vacation. You shall be entitled to all legal and religious holidays,
and four (4) weeks paid vacation per annum.
4. Insurance and Benefits. You shall be eligible for participation in any
health or other group insurance plan or general benefit plans which may be
established by the Company or which the Company is required to maintain by
law. The Company shall provide health insurance for you and your family.
Exhibit B
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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To: Hemagen Diagnostics, Inc.
00 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
As of May 17, 1999
The undersigned, in consideration of and as a condition of my
employment or continued employment by you and/or by companies which you own,
control, or are affiliated with or their successors in business
(collectively, the "Company"), hereby agrees as follows:
1. Confidentiality. I agree to keep confidential, except as the Company
may otherwise consent in writing, and, except for the Company's benefit, not
to disclose or make any use of at any time either during or subsequent to my
employment, any Inventions (as hereinafter defined), trade secrets,
confidential information, knowledge, data or other information of the
Company relating to products, processes, know-how, designs, formulas, test
data, customer lists, business plans, marketing plans and strategies,
pricing strategies, or other subject matter pertaining to any business of
the Company or any of its affiliates, which I may produce, obtain, or
otherwise acquire during the course of my employment, except as herein
provided. I further agree not to deliver, reproduce or in any way allow any
such trade secrets, confidential information, knowledge, data or other
information, or any documentation relating thereto, to be delivered to or
used by any third parties without specific direction or consent of a duly
authorized representative of the Company.
2. Conflicting Employment: Return of Confidential Material.
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2.1 I agree that during my employment with the Company I will not
engage in any other employment, occupation, consulting or other activity
relating to the business in which the Company is now or may hereafter become
engaged, or which would otherwise conflict with my obligations to the
Company. In the event my employment with the Company terminates for any
reason whatsoever, I agree to promptly surrender and deliver to the Company
all records, materials, equipment, drawings, documents and data of which I
may obtain or produce during the course of my employment, and I will not
take with me any description containing or pertaining to any confidential
information, knowledge or data of the Company which I may produce or obtain
during the course of my employment.
2.2 I represent that I am not a party to any existing Agreement which
would prevent my entering into this Agreement.
2.3 I warrant that I am not obligated under any other consultant,
employment, or other agreement which would affect the Company's rights or my
duties under this Agreement. I agree that for the term of this Agreement,
and for a period of eighteen (18) months thereafter, I will not, without the
prior written consent of the Company, enter into any agreement with anyone
other than the Company to consult or otherwise render services with regard
to the subject matter of this Agreement or any subject directly relevant
thereto.
2.4 Except as hereinafter provided, any and all improvements,
developments, or discoveries or inventions that are made by me on Company
time or using Company resources or as a direct result of my employment by
the Company, whether or not patentable, shall be the sole and exclusive
property of the Company. I agree to disclose promptly to the Company any
such improvements, developments, or discoveries made by me, and, where
applicable, to assign to the Company any inventions disclosed and to give
the Company reasonable assistance in preparing or prosecuting, in the
Company's name and at the Company's expense, any patent applications
covering such inventions.
3. Assignment of Inventions.
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3.1 I hereby acknowledge and agree that the Company is the owner of
all Inventions made by me on Company time or using Company resources. In
order to protect the Company's rights to such Inventions, by executing this
Agreement I hereby irrevocably assign to the Company all my right, title and
interest in and to all such Inventions.
3.2 For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or improvements in
any of the foregoing or other ideas, whether or not patentable and whether
or not reduced to practice, made or conceived by me (whether solely or
jointly with others) during the period of my employment with the Company
which relate in any manner to the actual or demonstrably anticipated
business, work, or research and development of the Company, or result from
or are suggested by any task assigned to me or any work performed by me for
or on behalf of the Company.
3.3 Any discovery, process, design, technology, device, or
improvement in any of the foregoing or other ideas, whether or not
patentable and whether or not reduced to practice, made or conceived by me
(whether solely or jointly with others) which I develop entirely on my own
time not using any of the Company's equipment, supplies, facilities, or
trade secret information ("Personal Invention") is excluded from this
Agreement provided such Personal Invention (a) does not relate to the actual
or demonstrably anticipated business' research and development of the
Company, and (b) does not result, directly or indirectly, from any work
performed by me for the Company.
4. Disclosure of Inventions. I agree that in connection with any
Invention, I will promptly disclose such Invention to my immediate superior
at the Company in order to permit the Company to enforce its property rights
to such Invention in accordance with this Agreement. My disclosure shall be
received in confidence by the Company.
5. Patents and Copyrights; Execution of Documents.
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5.1 Upon request, I agree to assist the Company or its nominee (at
its expense) during and at any time subsequent to my employment in every
reasonable way to obtain for its own benefit patents and copyrights for
Inventions in any and all countries. Such patents and copyrights shall be
and remain the sole and exclusive property of the Company or its nominee. I
agree to perform such lawful acts as the Company deems to be necessary to
allow it to exercise all right, title and interest in and to such patents
and copyrights.
5.2 In connection with this Agreement, I agree to execute,
acknowledge and deliver to the Company or its nominee upon request and at
its expense all documents, including assignments of title, patent or
copyright applications, assignments of such applications, assignments of
patents or copyrights upon issuance, as the Company may determine necessary
or desirable to protect the Company's or its nominee's interest in
Inventions, and/or to use in obtaining patents or copyrights in any and all
countries and to vest title thereto in the Company or its nominee to any of
the foregoing.
6. Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Inventions made by me (in the form of notes,
sketches, drawings and other records as may be specified by the Company),
which records shall be available to and remain the sole property of the
Company at all times.
7. Prior Inventions. It is understood that all Personal Inventions, if
any, whether patented or unpatented, which I made prior to my employment by
the Company, are excluded from this Agreement except as set forth on
Schedule A attached hereto. I agree to notify the Company in writing before
I make any disclosure or perform any work on behalf of the Company which
appears to threaten or conflict with proprietary rights I claim in any
Personal Invention. In the event of my failure to give such notice, I agree
that I will make no claim against the Company with respect to any such
Personal Invention.
8. Other Obligations. I acknowledge that the Company from time to time
may have agreements with other persons or with the U.S. Government or
agencies thereof, which impose obligations or restrictions on the Company
regarding Inventions made during the course of work thereunder or regarding
the confidential nature of such work. I agree to be bound by all such
obligations and restrictions and to take all action necessary to discharge
the Company's obligations.
9. Trade Secrets of Others. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep confidential proprietary information,
knowledge or data acquired by me in confidence or in trust prior to my
employment with the Company, and I will not disclose to the Company, or
induce the Company to use, any confidential or proprietary information or
material belonging to any previous employer or others. I agree not to enter
into any agreement either written or oral in conflict herewith.
10. Modification. I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in any
Employment Agreement between the Company and me, shall not affect the
validity or scope of this Agreement.
11. Successors and Assigns. This Agreement shall be binding upon my heirs,
executors, administrators or other legal representatives and is for the
benefit of the Company, its successors and assigns.
12. Interpretation. IT IS THE INTENT OF THE PARTIES THAT in case any one
or more of the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other
provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. MOREOVER, IT IS THE INTENT OF THE PARTIES THAT in case any one or
more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, geographical scope, activity or
subject, such provision shall be construed by limiting and reducing it in
accordance with a judgment of a court of competent jurisdiction, so as to be
enforceable to the extent compatible with applicable law.
13. Waivers. If either party should waive any breach of any provision of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
14. Complete Agreement, Amendments. I acknowledge receipt of this
Agreement, and agree that with respect to the subject matter thereof it is
my entire agreement with the Company, superseding any previous oral or
written communications, representations, understandings, or agreements with
the Company or any officer or representative thereof. Any amendment to this
Agreement or waiver by either party of any right hereunder shall be
effective only if evidenced by a written instrument executed by the parties
hereto, and, in the case of the Company, upon written authorization of the
Company's Board of Directors.
15. Headings. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
16. Counterparts. This Agreement may be signed in two counterparts, each
of which shall be deemed an original and both of which shall together
constitute one agreement.
17. Governing Law. This Agreement shall be governed and construed under
Massachusetts law.
/s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX
Accepted and Agreed:
HEMAGEN DIAGNOSTICS, INC.
By: /s/ Xxxx Xxxxxxxxx
Title: President
Date: May 18, 1999
/s/ Xxxxxxxx Xxxxxxx, Director
SCHEDULE A
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LIST OF PRIOR INVENTIONS
Identifying Number and/or Brief Description:
NONE
