EXHIBIT 10.39
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EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of January 1, 1999, by and
between EMBRYO DEVELOPMENT CORPORATION, INC., a Delaware
corporation, with its offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 (the "Company"), and Xxxxxxx Xxxxxxxx, an individual
residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Executive").
W I T N E S S E T H :
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WHEREAS, the Company desires to secure the services of the
Executive upon the terms and conditions hereinafter set forth;
and
WHEREAS, the Executive desires to render services to the
Company upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties mutually agree as follows:
Section 1. Employment. The Company hereby employs
Executive and the Executive hereby accepts such employment, as
Chief Executive Officer and Chief Financial Officer of the
Company, subject to the terms and conditions set forth in this
Agreement.
Section 2. Duties. The Executive shall serve as Chief
Executive Officer and Chief Financial Officer and shall properly
perform such duties as may be assigned to him from time to time
by the Board of Directors of the Company. If requested by the
Company, the Executive shall serve on the Board of Directors or
any committee thereof without additional compensation. During
the term of this Agreement, the Executive is not required to
devote all of his business time to the performance of his duties
and may pursue other activities which do not conflict with his
obligations to the Company under this Agreement.
Section 3. Term of Employment.
The term of the Executive's employment shall be for a
period of two (2) years commencing on the date hereof (the
"Term"), subject to earlier termination by the parties pursuant
to Section 6 hereof.
Section 4. Compensation of Executive.
4.1 Salary. The Company shall pay to the Executive an
annual salary equal to sixty thousand dollars ($60,000) per annum
(the "Base Salary")less such deductions as shall be required to
be withheld by applicable law and regulations. All salaries
payable to Executive shall be paid at such regular weekly,
biweekly or semi-monthly time or times as the Company makes
payment of its regular payroll in the regular course of business.
In addition, the Company shall pay to the Executive an annual
bonus on December 31, 1999 and December 31, 2000 if the Executive
is employed by the Company on those dates, at the discretion of
Directors which shall be at least ten (10%) of the previous years
Base Salary.
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4.2 Expenses. During the employment period, the
Company shall reimburse the Executive for all reasonable and
necessary travel expenses and other disbursements incurred by the
Executive on behalf of the Company, in performance of the
Executive's duties hereunder. The Executive shall also be
provided with the full use of an automobile (and cost of
insurance of such automobile) of the Executive's choosing at the
Company's expense, not to exceed $1,000.00 per month inclusive of
the cost of insurance.
4.3 Options. As additional consideration, the Company
hereby grants to Executive an option to purchase up to 200,000
shares of Common Stock of Hydrogel Design Systems, Inc., which
the Company owns, at a price at $1.00 per share (the "HDS Option
Shares"). This option shall be in effect for two (2) years
commencing on the date of this agreement, expiring on January 1,
2001. These purchases may be made at any time or from time to
time in parital increments over the term of the option. The
Company agrees that is shall not at any time during the term of
this option sell or encumber the HDS Option Shares.
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Section 5. Disability of the Executive. If the
Executive is incapacitated or disabled by accident, sickness or
otherwise so as to render the Executive mentally or physically
incapable of performing the services required to be performed
under this Agreement for a period of sixty (60) consecutive days
or longer or for any ninety (90) days in any period of one
hundred eighty (180) consecutive days (a "Disability"), the
Company may, at the time or any time thereafter, at its option,
terminate the employment of the Executive under this Agreement
immediately upon giving the Executive notice to that effect.
Section 6. Termination. The Company may terminate
the employment of the Employee and all of the Company's
obligations under this Agreement at any time for Cause (as
hereinafter defined) by giving the Employee notice of such
termination, with reasonable specificity of the details thereof.
"Cause" shall mean (i) the Employee's misconduct could reasonably
be expected to have a material adverse effect on the business and
affairs of the Company, (ii) the Employee's disregard of lawful
instructions of the Company's Board of Directors consistent with
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the Employee's position relating to the business of the Company
or neglect of duties or failure to act, which, in each case,
could reasonably be expected to have a material adverse effect on
the business and affairs of the Company, (iii) the commission by
the Employee of an act constituting common law fraud, or a
felony, or criminal act against the Company or any affiliate
thereof or any of the assets of any of them, (iv) the Employee's
abuse of alcohol or other drugs or controlled substances, or
conviction of a crime involving moral turpitude, (v) the
Employee's material breach of any of the agreements contained
herein or (vi) the Employee's resignation hereunder. A
termination pursuant to Section 6(i), (ii), (iv) (other than as a
result of a conviction of a crime involving moral turpitude) or
(v) shall take effect 30 days after the giving of the notice
contemplated hereby unless the Employee shall, during such 30-day
period, remedy to the satisfaction of the Board of Directors of
the Company the misconduct, disregard, abuse or breach specified
in such notice; provided, however, that such termination shall
take effect immediately upon the giving of such notice if the
Board of Directors of the Company shall have determined that such
misconduct, disregard, abuse or breach is not remediable (which
determination shall be stated in such notice). A termination
pursuant to Section 6(iii), (iv) (as a result of a conviction of
a crime involving moral turpitude) or (vi) shall take effect
immediately upon the giving of the notice contemplated hereby.
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Section 7. Effect of Termination of Employment.
Upon the termination of the Executive's employment for
a Disability neither the Executive nor the Executive's
beneficiaries or estate shall have any further rights under this
Agreement or any claims against the Company arising out of this
Agreement.
Section 8. Disclosure of Confidential Information.
Executive recognizes that he has had and will continue to have
access to secret and confidential information regarding the
Company, including but not limited to its customer list,
products, know-how, and business plans. Executive acknowledges
that such information is of great value to the Company, is the
sole property of the Company, and has been and will be acquired
by him in confidence. In consideration of the obligations
undertaken by the Company herein, Executive will not, at any
time, during or after his employment hereunder, reveal, divulge
or make known to any person, any information acquired by
Executive during the course of his employment, which is treated
as confidential by the Company, including but not limited to its
customer list, and not otherwise in the public domain. The
provisions of this Section 8 shall survive Executive's employment
hereunder.
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Section 9. Covenant Not To Compete.
(a) Executive recognizes that the services to be performed
by him hereunder are special, unique and extraordinary. The
parties confirm that it is reasonably necessary for the
protection of Company that Executive agree, and accordingly,
Executive does hereby agree, that he shall not, directly or
indirectly, at any time during the term of the Agreement and the
Restricted Period (as hereinafter defined):
(i) except as provided in Subsection (c) below, engage
in the sale, distribution or manufacture of any
products or provide technical assistance, advice
or counseling any products competitive to the
Company's products in any state in the United
States in which the Company or any affiliate
thereof is engaged in business, either on his own
behalf or as an officer, director, stockholder,
partner, consultant, associate, Executive, owner,
agent, creditor, independent contractor, or co-venturer of
any third party; or
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(ii) employ or engage, or cause or authorize, directly
or indirectly, to be employed or engaged, for or
on behalf of himself or any third party, any
Executive or agent of Company or any affiliate
thereof.
(b) Executive hereby agrees that he will not, directly or
indirectly, for or on behalf of himself or any third party, at
any time during the term of the Agreement and during the
Restricted Period solicit any customers of the Company or any
affiliate thereof.
(c) If any of the restrictions contained in this Section 9
shall be deemed to be unenforceable by reason of the extent,
duration or geographical scope thereof, or otherwise, then the
court making such determination shall have the right to reduce
such extent, duration, geographical scope, or other provisions
hereof, and in its reduced form this Section shall then be
enforceable in the manner contemplated hereby.
(d) The term "Restricted Period," as used in this Section
9, shall mean the period of Executive's actual employment
hereunder plus half of the time period the Executive is actually
employed by the Company not to exceed twelve (12) months.
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Section 10. Miscellaneous.
10.1 Injunctive Relief. Executive acknowledges that
the services to be rendered under the provisions of this
Agreement are of a special, unique and extraordinary character
and that it would be difficult or impossible to replace such
services. Accordingly, Executive agrees that any breach or
threatened breach by him of Sections 8 or 9 of this Agreement
shall entitle Company, in addition to all other legal remedies
available to it, to apply to any court of competent jurisdiction
to seek to enjoin such breach or threatened breach. The parties
understand and intend that each restriction agreed to by
Executive hereinabove shall be construed as separable and
divisible from every other restriction, that the unenforceability
of any restriction shall not limit the enforceability, in whole
or in part, of any other restriction, and that one or more or all
of such restrictions may be enforced in whole or in part as the
circumstances warrant. In the event that any restriction in this
Agreement is more restrictive than permitted by law in the
jurisdiction in which Company seeks enforcement thereof, such
restriction shall be limited to the extent permitted by law.
10.2 Assignments. Neither Executive nor the Company
may assign or delegate any of their rights or duties under this
Agreement without the express written consent of the other.
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10.3 Entire Agreement. This Agreement constitutes and
embodies the full and complete understanding and agreement of the
parties with respect to Executive's employment by Company,
supersedes all prior understandings and agreements, whether oral
or written, between Executive and Company, and shall not be
amended, modified or changed except by an instrument in writing
executed by the party to be charged. The invalidity or partial
invalidity of one or more provisions of this Agreement shall not
invalidate any other provision of this Agreement. No waiver by
either party of any provision or condition to be performed shall
be deemed a waiver of similar or dissimilar provisions or
conditions at the same time or any prior or subsequent time.
10.4 Binding Effect. This Agreement shall inure to the
benefit of, be binding upon and enforceable against, the parties
hereto and their respective successors, heirs, beneficiaries and
permitted assigns.
10.5 Headings. The headings contained in this
Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this
Agreement.
10.6 Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall
be in writing and shall be deemed to have been duly given when
personally delivered, sent by registered or certified mail,
return receipt requested, postage prepaid, or by private
overnight mail service (e.g. Federal Express) to the party at the
address set forth above or to such other address as either party
may hereafter give notice of in accordance with the provisions
hereof. Notices shall be deemed given on the sooner of the date
actually received or the third business day after sending.
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10.7 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York without giving effect to such State's conflicts of laws
provisions and each of the parties hereto irrevocably consents to
the jurisdiction and venue of the federal and state courts
located in the State of New York, County of New York.
10.8 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one of the same instrument.
10.9 Arbitration. Any dispute which the parties hereto
are unable amicably to resolve shall be submitted to binding
arbitration in New York in accordance with the Rules and
Constitution of the American Arbitration Association. Either
party hereto may request that any decision of the arbitrators set
forth the findings of fact and conclusions of law upon which
their award is based. Judgment upon any such arbitration award
may be entered in any court of competent jurisdiction, and
Executive submits to the jurisdiction of any such court.
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In the event any suit or other action is commenced with
respect to the interpretation or enforcement of any provision of
this agreement, the prevailing party shall be entitled, in
addition to any other sums to which such party may be entitled,
to recover from the other party the reasonable fees and
disbursements of counsel retained to investigate and pursue such
matter.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
EMBRYO DEVELOPMENT
CORPORATION, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Director
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
