EXHIBIT 10.32
EMPLOYMENT AGREEMENT
This Employment Agreement is effective as of October 1, 1993, between
Intraop, Inc. ("Employer") and Xxxxxx X. Goer ("Employee").
RECITALS:
A. Employer desires to obtain the association and services of Employee in
order to utilize the skills and abilities of Employee and is therefore willing
to engage Employee's services on the terms and conditions set forth below.
B. Employee desires to become associated with Employer and obtain the
benefits of such association and is willing to do so on the following terms and
conditions.
AGREEMENT:
In consideration of the above recitals and of the mutual promises and
conditions in the Agreement, it is agreed as follows:
1. Term. Employer agrees to employ Employee and Employee hereby accepts
such employment, in accordance with the terms of. this Agreement, commencing
October 1, 1993 and ending October 1, 1995, unless this Agreement is earlier
terminated as provided herein. Provided, however, that unless Employer or
Employee gives notice to the other party to the contrary at least sixty (60)
days prior to the anniversary date hereof, the term of this Agreement shall
automatically be extended for an additional term of one (1) year on such
anniversary date. The term of this Agreement shall include any automatic
extensions to the preceding sentence.
2. Compensation and Benefits.
a. Employer shall pay Employee an initial salary at the rate of
$120,000.00 per year, payable semi-monthly. The Board of Directors shall review
Employee's salary and benefits then being paid to Employee not less frequently
than every twelve (12) months. Following such review, Employer may, in its
discretion increase (but shall not be required to increase) the salary or any
other benefits of Employee. In addition, Employer may provide additional
incentive bonuses to Employee at certain levels of productivity or
profitability, to be determined at the sole discretion of Employer's Board of
Directors.
b. During the term of employment, Employee shall be entitled to receive
all benefits of employment generally available to Employer's other executive and
managerial employees when and as he becomes eligible for them, such as sick
leave, participation in the Company's 401(k) retirement program or executive
retirement program, when established, and stock options and executive
performance bonus programs when they are established by the Board of Directors.
In regard to group health insurance benefits, Employee will be eligible to
receive health and dental benefits for both the Employee and his family.
Employer will purchase a life insurance/annuity policy covering Employee and
payable to an Employee designated beneficiary in the amount of $750,000.00. In
the event of employee's termination, Employee will receive the cash value of
said policy as of the date of termination.
c. Employee will receive a car allowance of $500.00/month effective as
of the date of this Agreement.
d. During the term of this Agreement, to the extent that such
expenditures satisfy the criteria under the Internal Revenue Code for
deductibility by Employer (whether or not fully deductible by Employer) for
federal income tax purposes as ordinary and necessary business expenses.
Employer shall reimburse Employee for reasonable out-of-pocket expenses incurred
in connection with Employer's business during the employment term, including
travel expenses, food and lodging while away from home, subject to such policies
as Employer may from time to time reasonably establish. Such expenses shall be
reimbursed only if Employee furnishes to Employer adequate records and other
documentary evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of each such
expenditure as an income tax deduction.
e. Employer reserves the right to modify, suspend or discontinue any
and all of the above referenced benefit plans, practices, policies and programs
at any time, whether before or after termination of employment, without notice
to or recourse by Employee, so long as such action is taken generally with
respect to other similarly situated employees and does not single out Employee.
3. Employee's Responsibilities. Employee shall serve as Chairman of the
Board of Directors, Chief Executive Officer and President of Employer for the
duration of this Agreement. Additionally, Employee shall serve as Marketing and
Sales Manager and Controller for such period of time as the Board of Directors,
in its discretion shall determine. Employee shall also perform such other
comparable duties as the Board of Directors, in its discretion, shall determine.
Employer shall report directly to the Board of Directors and shall be subject to
the Board and to such limits on Employee's authority as the Board of Directors
may from time to time impose. Employee agrees to observe and comply with the
rules and regulations of Employer as adopted by the Board of Directors
respecting the performance of Employee's duties and agrees to carry out and
perform orders, directions and policies of Employer and its Board of Directors
as they may be, from time to time, stated either orally or in writing.
4. Prohibited Activities. Notwithstanding any other provisions of this
Agreement, Employee shall not take any of the following actions on behalf of
Employer without the express written approval of the Board of Directors:
a. Sell, pledge, transfer or otherwise encumber assets of Employer.
b. Borrow money in the name of Employer.
c. Buy or lease extraordinary capital equipment in excess of the
amounts budgeted and approved for such expenditures.
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d. Sell any single capital asset of Employer having a market value in
excess of $5,000.00 or a total of capital assets during anyone fiscal year
having a market value in excess of $25,000.00.
e. Permit any customer of Employer to become indebted to Employer in an
amount in excess of $25,000.00, except as may be allowed under the Company's
standard Terms and Conditions of Sale.
f. Terminate the services of any other officer of Employer or hire any
replacement of any officer whose services have been terminated.
g. Shall not conduct himself (whether on Employer's business or not) in
a manner in which would bring substantial embarrassment, shame or ridicule to
Employer under circumstances having a direct and adverse financial impact on
Employer, or business as a result of the actions of Employee. This subparagraph
does not apply to any actions undertaken by Employee based on his good faith
exercise of reasonable sound business discretion or judgment.
5. Executive Service.
a. During his employment, Employee shall devote his full energies,
interests, abilities and productive time to the business, affairs and interests
of Employer and matters related thereto and shall use Employee's best efforts to
promote Employer's interests and perform this Agreement in accordance with
policies established by and under Employer's Board of Directors. Employee shall
not, without the prior written consent of Employer's Board of Directors, render
to others services of any kind for present or future compensations, or engage in
any other activity that would materially interfere with the performance of his
duties under this Agreement, including but not limited to acting as a partner,
officer, director or employee or significant investor of any other entity (an
investment of 5% or more of the outstanding capital or equity securities of an
entity shall be deemed significant for these purposes) except those identified
in Appendix 1. Notwithstanding this prohibition, it is understood by both
parties that Employee will take part in activities relating to Zapit
Technologies, Inc. until January 31, 1994. During this time period, as long as
the milestones set forth in the Business Plan are met, the Employee will be
allowed to exercise his own judgment as to the appropriate allocation of time
between his duties at the Company and his work for Zapit. It is anticipated that
approximately 50% of the Employee's time will be allocated to Intraop, Inc.
during this period. During this time period (October 1, 1993 through January 31,
1994) the Employee's base salary from Intraop will be 50% of the rate set forth
in Section 2 of this Agreement. As of February 1, 1994, the Employee will spend
his full efforts and energy on the business activities of Intraop, Inc. The
Employee shall not serve as Director on other company boards of directors
without the written consent of Intraop's Board of Directors. Those companies
identified in Appendix 1 are deemed approved through the signing of this
Agreement.
b. Employee represents to Employer that he has no other outstanding
commitments inconsistent with any of the terms of this Agreement or the services
to be rendered hereby.
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c. The effective date of employment is April 1, 1993. The rate of pay
between April 1 and September 30, 1993 shall be 50% of the compensation
enumerated in Section 2 ($5,000.00 per month). This salary is deferred and
accrued and all other benefits commence as of October 1, 1993. This compensation
will be paid employee only as the Company finances permit.
d. The position held by Employee assumes a "nominal" forty (40) hour
work week, but both Employee and Employer recognize that the Company is a
start-up and, in addition, that the capital medical equipment business is very
dynamic and that to continue to be successful in this position requires spending
many additional hours each week in the capacity of Chief Executive Officer and
President. Employee must use his own judgment in managing his time in order to
operate and develop the company in Employer's best interests. This extra
activity is considered part of the job responsibilities for which there is no
additional compensation.
e. It is recognized and agreed by both Employer and Employee that the
specific nature of this job involves the exercise of considerable initiative,
discretion, independent judgment and management by Employee. Employee
acknowledges and agrees that the nature of his responsibilities make his
position exempt from any local, federal or state overtime requirements; Employee
further agrees not, either during of after employment with Employer, to seek
additional compensation beyond the terms of this Agreement for overtime claims,
except where legal grounds exist for doing so.
f. Travel is sometimes required on weekends or at night and is to be
considered part of the job for which there is no additional compensation.
6. Occasional Consultation to Outside Companies. Employer acknowledges that
Employee is a recognized expert in cancer therapy and medical capital equipment.
From time to time, Employee may be asked and is free to consult on a limited
basis without Board consent, providing such consultation is limited to no more
than one day per month.
7. Termination.
a. Upon termination of Employee's employment pursuant to the terms of
this Agreement, the obligations of the parties under this Agreement shall
terminate, except those obligations which survive termination of employment,
including, without limitation, the obligations set forth in this Section 7 and
in Section 8 Post-Employment Covenants.
b. If Employee's employment is terminated on the basis of sixty (60)
day notice from Employer or upon any other basis except for just cause or
voluntary resignation by Employee, Employee shall receive a severance payment as
follows: (i) If termination occurs within six (6) months of the effective date
of this Agreement, Employee will receive a lump sum severance payment
immediately upon termination equivalent to six (6) months of his current salary.
(ii) If termination occurs thereafter, Employee will receive a severance payment
equivalent to one year of his salary based on the rate Employee was receiving at
the time of termination. Employee will receive a lump sum payment immediately at
the time of termination equivalent to the value of three (3) months of salary.
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The remaining payments will be made monthly beginning on the first day of the
fourth month following the date of termination. This one year severance payment
shall be reduced by the amount of any salary or self-employment income received
by Employee in the year after termination, except that in no event shall this
severance payment be less than the equivalent of ninety (90) days of Employee's
salary at the time of termination. (iii) Any severance payment under this
Agreement will be due to Employee in addition to any and all other sums or
benefits due by virtue of any other provision of this Agreement or by operation
of law. In addition to the severance payment, Employee shall be entitled to any
stock options which have accrued or vested as of the date of termination,
regardless of whether said options have been actually exercised by Employee as
of the date of termination. As used herein, the term "any other basis" includes
sale or merger of the Employer or its assets, or cessation of business by the
Employer.
c. "Just cause" is defined as (i) breach of the Agreement, (ii)
conviction for any felony or misdemeanor (except for minor traffic violations or
similar offenses), any act of fraud, personal dishonesty, incompetence,
negligence or willful or negligent conduct, material violation of any duty of
loyalty or fiduciary loyalty to the Company or willful failure or refusal to
perform duties or responsibilities under this Agreement. It also includes breach
of the separate proprietary rights agreement signed by Employee. Employee
acknowledges and agrees that he will have no claim or right to the severance
payment set forth in paragraph b.
d. Employer may terminate Employee's employment at any time without
cause upon thirty (30) days written notice to Employee. Upon such notice of
termination Employer retains the right to reassign the duties of Employee for
the remaining days of the notice period. Employee agrees that, as a condition of
receiving the remaining compensation due under this Agreement, he will sign an
appropriate Employer's Settlement Agreement and General Release form provided by
Employer which relieves Employer from all claims of liabilities by Employee not
due under this Agreement.
e. Employer may terminate Employee's employment at any time without
notice if there is just cause for termination, but the terms of subparagraphs b
shall apply unless Employee has engaged in gross misconduct.
f. To the extent that Employee is substantially unable to perform his
duties as Chief Executive Officer and President by reason of physical or mental
disability not arising out of or in the course of his employment, and if said
disability has a substantial adverse affect on Employer's ability to conduct its
business, Employer may elect to terminate this Agreement if such termination
conforms with all applicable federal and state laws and regulations. Any such
termination under this subparagraph shall not be deemed a termination on the
basis of gross misconduct or voluntary resignation within the meaning of this
Agreement. Any workers' compensation or other disability benefits received due
to the condition causing Employee's disability will be deducted from any
severance payment due from Employer. However, any disability benefits paid for
by the Employee, independent of Intraop, Inc., shall not be deducted from any
severance payment due the Employee from the Employer.
g. After the initial contract period of two years, Employee may
voluntarily resign his employment at any time by giving thirty (30) days written
advance notice to Employer. Employer retains the option to assign Employee to
other duties during the final thirty (30) days.
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h. Upon a merger or a sale of all or substantially all of Employer's
assets, Employer may, with Employee's mutual consent (i) assign this Agreement
and all rights and obligations under it to any business entity that succeeds to
all or substantially all of Employer's business through that merger or sale of
assets; or (ii) on at least thirty (30) days prior written notice to Employee,
terminate Employee's employment effective on the date of the merger or sale of
assets, in which case the terms of subparagraphs b and c shall apply.
8. Post-Employment Covenants.
a. If Employee accepts an alternative position of employment within
eighteen (18) months of termination of this Agreement with Employer, and if said
employment is with any entity directly competitive with Employer at the time of
said re-employment, Employee agrees to notify Employer of the name and location
of said new employer.
b. Employee agrees not to maintain or attempt to maintain any business
contact for a period of six (6) months after termination of Agreement with
Employer's customers and clients existing at the time of termination. In
addition, during and for twelve (12) months after termination of his employment,
Employee shall not induce or attempt to induce any employee of Employer to
discontinue representing Employer or leave Employer's employ for the purpose of
representing any entity directly competitive with Employer.
c. Employee agrees that for a period of eighteen (18) months, he will
not accept employment from any entity which is directly competitive with
Employer, if Employee's duties for said entity are or will be within the area of
direct competition. In order to protect Employer's confidential Information as
defined in that certain proprietary Rights Agreement dated ___________________,
1993 by and between Employer and Employee, Employee agrees that for a period of
eighteen (18) months after termination of this Agreement, Employee shall not,
directly or indirectly, whether as an owner, partner, shareholder, agent,
employee, creditor or otherwise, promote, participate or engage in any activity
or other business competitive with Employer's business in California if such
activity or other business involves any use by Employee of any of the
Confidential Information.
d. Nothing contained in this section shall be deemed a waiver of the
separate confidentiality Agreement, and if there is any conflict or
inconsistency between the provisions of this section and those other provisions,
the terms of those other provisions shall control. The covenants of this section
shall be construed as separate covenants covering their subject matter in each
of the separate counties and states in the United States in which Employer
transacts business. To the extent that any covenant shall be judicially
unenforceable in anyone or more of said counties or states, that covenant shall
not be affected with respect to each other county and state; each covenant with
respect to each county and state being construed as severable and independent.
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9. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or breach of this Agreement, may be submitted. by the parties to
arbitration in accordance with the commercial Arbitration Rules of the American
Arbitration Association, and judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction. There shall be three
arbitrators, one to be chosen directly by each party, and the third arbitrator
to be selected by the two arbitrators so chosen. Each party shall pay the fees
of the arbitrators that party selects and of that party's own attorneys, and the
expenses of witnesses and all other expenses connected with presenting that
party's case. Other costs of the arbitration, including the cost of any record
or transcripts of the arbitration, administrative fees, and the fee of the third
arbitrator and all other fees and costs, shall be borne equally by the parties.
10. Injunctive Relief. Employee is obligated under this Agreement to render
services of a special, unique, unusual, extraordinary and intellectual
character, which give the Agreement peculiar value. The loss of these services
cannot be reasonably or adequately compensated in damages in any action at law.
Accordingly, in addition to other remedies provided by law or this Agreement,
Employer shall have the right to obtain injunctive relief to prevent or remedy
any breach of the Agreement.
11. Remedies Cumulative. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or now or hereafter existing at law or
in equity, or by statute or otherwise. The election of anyone or more remedy by
Employer shall not constitute a waiver of the right to pursue other available
remedies. However, to the extent any controversy concerning this Agreement is
submitted to arbitration, the resulting decision shall be treated as final and
binding within the meaning of the California Arbitration Act. In the event any
action is brought in any court of law to enforce or interpret this Agreement,
the prevailing party shall recover all attorneys' fees and expenses incurred.
12. Effect of Waiver. The failure of either party to insist on strict
compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power at
anyone time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
13. Employee's Representations. Employee represents and warrants that he is
free to enter into this Agreement and to perform each to the terms and covenants
of it. Employee represents and warrants that he is not restricted or prohibited,
contractually or. otherwise, from entering into and performing this Agreement,
and that his execution of this Agreement is not a violation or breach of any
other agreement between Employee and any other person or entity.
14. Entire Agreement. This Agreement and any documents to which this
Agreement expressly refers, or which it incorporates by reference, contains the
entire agreement between the parties and supersedes all prior oral and written
agreements, understandings, commitments and practices between the parties
relating to the subject matter hereof. All amendments to this Agreement must be
made in writing and signed by both parties thereto.
15. Construction and Headings. The formation, construction and performance
of this Agreement shall be construed in accordance with the laws of California,
without reference to conflicts of law provisions. The subject headings of the
sections and subsections of this Agreement are included for purposes of
convenience only and shall not affect the interpretation or construction of any
of its provisions.
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16. Notice. Any notice to Employer required or permitted under this
Agreement shall be given in writing to Employer, either by personal services or
by registered or certified mail, postage prepaid, addressed to the Board of
Directors of Employer at its then principal place of business. Any such notice
to Employee shall be given in a like manner and, if mailed, shall be addressed
to Employee at his home address then shown in Employee's files. For the purpose
of determining compliance with any time limit in this Agreement, a notice shall
be deemed to have been duly given: (a) on the date of service, if served
personally on the party to whom notice is to be given, or (b) on the second
business day after mailing, if mailed to the party to whom the notice is to be
given in the manner provided in this section.
17. Invalidity. If any provisions of this Agreement is held invalid or
unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall nevertheless remain in full force and effect. If any provision
is held invalid or unenforceable with respect to particular circumstances, it
shall nevertheless remain in full force and effect in all other circumstances to
the extent permissible.
Dated this ___________ day of _________________________.
EMPLOYEE: EMPLOYER:
INTRAOP, INC.
/s/ Xxxxxx X. Goer
Xxxxxx X. Goer /s/ Xxxx Xxxxxx Xxxxx
---------------------
Xxxx Xxxxxx Xxxxx
Secretary
/s/ Xxxxx X. XxXxxxxx
Xxxxx X. XxXxxxxx
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