EMPLOYMENT AGREEMENT
Exhibit 10.18
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of February 1, 2000, between Synthetic Blood International, Inc., a New Jersey corporation, (hereinafter sometimes referred to as “SBI” or the “Corporation”) and Xxxxxxx Xxxxx (“Employee”).
1. | TERM OF EMPLOYMENT |
SBI HEREBY EMPLOYS Employee and Employee hereby accepts employment with SBI for the period beginning on February 1, 2000 and terminating on January 31, 2001; thereafter, this Agreement and Employee’s employment hereunder shall be automatically renewed on a one-year basis unless canceled or renegotiated. As used herein, the phrase “employment term” refers to the entire period of employment of Employee by SBI hereunder, whether for the period provided above, or whether terminated earlier as hereinafter provided, or extended by mutual ,agreement of SBI and Employee.
2. | DUTIES OF EMPLOYEE |
2.03 | Devotion of Time to SBI’s Business. Employee shall devote whatever time, ability and attention to the business of SBI during the term of this Agreement as is reasonably required to fulfill his responsibilities, provided however, he shall be required to devote his full-time. |
3. | COMPENSATION OF EMPLOYEE |
3.02 | Signing Bonus. Employee will be granted a stock option at the signing of this agreement. |
3.03 | Performance Bonus. In addition to the base compensation set forth above, Employee may be entitled to participate in an Executive Bonus Program to be negotiated in a separate agreement. |
3.05 | Paid Sick Leave. Employee shall be entitled to such sick leave time and pay in accordance with the then prevailing policies of Employer. |
3.06 | Additional Bonuses. Nothing herein shall imply any limitation on the ability of the Company to authorize any additional bonus(es) which in their discretion they deem reasonable. |
4. | EMPLOYEE BENEFITS |
4.02 | Employee shall be given medical insurance through the Company’s group medical plan, and $50 per month for dental coverage until a Company dental plan is available. |
4.04 | 401 (k) Plan. SBI shall continue to implement and Employee shall be entitled to participate, to the maximum extent allowed by law, in a retirement plan under Internal Revenue Code Section 401 (k) |
5. | BUSINESS EXPENSES |
(1) | Each such expenditure is of a nature qualifying it as an allowable deduction from gross income in the determination of taxable income on the federal and state income tax returns of SBI; and |
(2) | Employee furnishes to SBI adequate records and other documentary evidence required by federal and state statutes and regulations issued by the appropriate taxing authorities where the substantiation of each such expenditure as an income tax deduction is required; and |
(3) | No gift may exceed Five Hundred Dollars ($500.00) without the written approval of the Board of Directors of SBI. |
6. | TERMINATION OF EMPLOYMENT |
6.03 | Expiration. Employee’s employment hereunder shall be terminated upon expiration of the Employment Term as provided in Section 1. |
(1) | Without Employee’s express written consent, the assignment to Employee of any duties materially inconsistent with Employees prior position, duties, responsibilities and status with SBI, or any subsequent removal of Employee from or any failure to re-elect Employee to any such position; |
(2) | Without Employee’s express written consent, the termination and/or material reduction in Employee’s facilities (including office space and general location) and staff reporting and available to Employee; |
(3) | A material reduction by the Employer of Employee’s Base Salary and Performance Bonus. |
(4) | A failure by Employer to maintain any of the employee benefits to which Employee was entitled at a level substantially equal to or greater than the value of those employee benefits in effect prior to such reduction in benefits, through the continuation of the same or substantially similar plans, programs and policies; or the taking of any action by SBI or its affiliates which would materially affect Employee’s participation in or reduce, Employee’s benefits under any such plans, programs or policies, or deprive Employee of any material fringe benefits enjoyed by Employee; |
(5) | SBI or any affiliate requiring Employee to be based anywhere other than where Employee was based for the one year period prior to such relocation; except for required travel on SBI’s or affiliate’s business to an extent substantially consistent with Employee’s business travel obligations; |
(6) | Any purported termination of Employee’s employment by SBI or the Board which is not effected pursuant to the requirements of the Section 6 with respect to Death, Retirement, Disability or Termination for Cause; and |
(7) | Receipt of notice by Employee that the Agreement will not be renewed pursuant to Section 1. |
6.05 | Effect of SBI’s Merger, Transfer of Assets, or dissolution. Upon the event of any of the following, these provisions of this Paragraph 6.05 shall apply: |
(1) | Merger or consolidation where SBI is not the consolidated or surviving corporation; |
(2) | Transfer of all or substantially all of the assets of SBI, or |
(3) | Voluntary or involuntary dissolution of SBI. |
In the event of any such merger or consolidation, transfer of assets, or dissolution of SBI, Employee at his sole option, and at any time may elect one of the following provisions:
(a) | Continued employment by SBI, and/or the surviving or resulting corporation, said successor to be bound by all the provisions of this Agreement; |
(b) | Voluntary termination of this Agreement and payment to Employee as severance pay or liquidated damages, or both, a lump sum payment (“Severance Payment”) equal to one hundred percent (100%) of the Employee’s average annual Base Salary and all bonuses received for the one (1) year period immediately preceding the Severance Payment, or such greater amount as the CEO and Board of Directors upon recommendation of the Compensation Committee, if any, shall provide from time to time pursuant to terms which may not be revoked or reduced thereafter. However, the total of any payment pursuant to this Section 6.05 shall be limited to the extent necessary, in the option of legal counsel acceptable to Employee and SBI, in the opinion of legal counsel acceptable to Employee and SBI, to avoid the payment of an “excess parachute” payment within the meaning of Internal Revenue Code Section 28C G or any similar successor provision. |
The Severance Payment shall be made not later than the fifth (5th) day following the effective date of the events specified in Section 6.05 (1-3) herein; provided, however, that if the amount of such payments cannot be finally determined on or before such date, SBI shall pay to Employee on such date a good faith estimate of the minimum amount of such payments, and shall pay the remainder of such payments (together with interest at the rate provided in Internal Revenue Code Section 1274 (b) (2) (B) of the Code,) as soon as the amount thereof can be determined, but in no event later than the thirtieth (30th) day after the applicable termination date. In the event the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by SBI payable on the fifth (5th) day after receipt by Employee of a written demand for payment from SBI (together with interest calculated as above).
7. | PAYMENTS TO EMPLOYEE UPON TERMINATION |
(a) | Pay to Employee, or in the event of Employee’s subsequent death, to Employee’s surviving spouse, or if none, to Employee’s estate, as severance pay or liquidated damages, or both, during each calendar month for a period extending over the number of months during which this Agreement would have remained in effect, without renewal or for nine (9) months, whichever period is longer, but for such termination, a sum equal to the monthly rate of Base Salary and Performance Bonus, if any, payable under this Agreement pursuant to Section 3 immediately prior to such termination. Such payments shall commence in the next regularly payroll following termination. |
(b) | To the extent permissible under applicable law, including Code antidiscrimination standards which must be met to retain favorable tax status of any employee benefit plan, contract or arrangement, continue to provide to Employee during the unexpired term of this Agreement, without renewal, those benefits to which the Employee is entitled to immediately prior to the termination. |
8. | COVENANT NOT TO COMPETE |
8.02 |
intent of the parties hereto that such provisions shall nevertheless be enforced to the maximum extent permitted by law and shall govern and apply to as much geographical area and/or time duration, not to exceed that which is set forth above, as possible. |
8.03 | Consideration Employee hereby acknowledges that the consideration set forth herein shall fully support this Covenant. |
9. | CONFIDENTIALITY PROVISION |
9.01 | Proprietary Information Defined. The following terms shall have the meanings respectively set forth for them below: |
(a) | “Proprietary Information” shall mean any and all inventions, research, designs, products, processes, formulae, know-how, customer lists, customer requirements information, trade secrets and/or other non-public information or data comprising or related to the business of Corporation as the same is carried on from time to time; |
(b) | “Proprietary Rights” shall mean all trademarks, patents, copyrights, rights of creators and/or similar rights and privileges, whether domestic or foreign, statutory or at common law, filed or not filed, perfected or unperfected, or otherwise, relating to any Proprietary Information; |
(c) | “Proprietary Proceeds” shall mean all proceeds and products of any Proprietary Information and/or Proprietary Rights; and |
(d) | “Proprietary Assets” shall mean Proprietary Information and/or Proprietary Rights and/or Proprietary Proceeds, considered collectively or separately. |
(a) | Immediately communicate and thoroughly describe to SBI in writing any and all such Proprietary Information as is described in Section 9.01 above; |
(b) | Promptly execute and deliver all such instruments or agreements of assignment and/or transfer as SBI may from time to time request to carry out the purposes and intent of Section 9.01 above; |
(c) | Assist SBI, at such times and in such manner as SBI may request, in connection with SBI’s efforts to secure, apply for, renew or otherwise perfect Proprietary Rights with respect to any and all Proprietary Information; and |
(d) | Upon termination of his employment with SBI, immediately deliver to SBI any and all written recorded or other physical evidence of any and all Proprietary Assets in his possession or under his control; |
PROVIDED, that in consideration of the foregoing, SBI agrees that all reasonable costs and expenses incurred by Employee, including reasonable compensation for his time (except if Employee is otherwise being compensated as a consultant) in complying with the provisions of this Section 9 shall be for SBI’s account.
10.03 | Applicable Law. This Agreement shall be construed under the laws of the State of California and may not be altered or modified except by an agreement in writing, signed by both parties. |
10.04 | Arbitration. Any dispute, controversy or claim arising out of or in respect to this Agreement (or its validity, interpretation or enforcement), the employment relationship or the subject matter hereof shall at the request of either party be submitted to and settled by arbitration conducted before a single arbitrator in Orange Count, California in accordance with the Expedited Labor Arbitration Rules of the American Arbitration Association. The arbitration shall be governed by the Federal Arbitration Act ( U.S.C. § § 1-16). The arbitrator shall be a retired judge designated by the Presiding Judge of the San Diego County Superior Court. The arbitrator in such action shall not be authorized to change or modify any provision of the Agreement. Judgment upon the award rendered by the arbitrator maybe entered by any court having jurisdiction thereof. Each party shall bear its own expenses and one-half the aggregate amount of arbitration costs Arbitration shall be the exclusive remedy of Employee and SBI and the award of the arbitrator shall be final and binding upon the parties. |
Executed at Newport Beach, California.
EMPLOYER:
SYNTHETIC BLOOD INTERNATIONAL, INC.
/s/
By: Xxxxxx Xxxxxx, President and CEO
EMPLOYEE:
/s/
Xxxxxxx Xxxxx
Synthetic Blood International, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxxxx X
Xxxxx Xxxx, XX 00000
To:
Xx. Xxxxxxx X. Xxxxx
c/o Synthetic Blood International, Inc.
Amendment of Employment Agreement
Dear Dick:
On March 25, 2008 the board of directors of Synthetic Blood International, Inc. decided to amend your engagement as follows:
The employment agreement of Feb 1, 2000, section 7, subsection 7.03 (a) is amended as follows: “a sum equal to an annual base salary and performance bonus”.
Additional to your unchanged role as director and member of the board of our company (SYBD), we have elected you to be President and Chief Operative Officer.
We agreed that additional an additional monetary compensation of $6,000 per month shall be paid for additional services and responsibilities.
Independent of the aforementioned consulting contract, we will pay you the following additional stock compensation for your services:
20,000 options per month, issuable every 1st of the month, beginning April 1, 2008. The options include the right of cashless conversion.
Additional benefit to serve on the Executive Committee: An additional (to any other already existing) severance package of $200,000 in cash and 100,000 shares of SYBD, payable at date/the day of termination, should the company terminate you as a board member, or employee for whatever reason, cause or no cause.
All other clauses unchanged.
Sincerely, Synthetic Blood International, Inc. (SYBD)
/s/ 03/26/08
By: Xxxxx X. Xxxxx Date: |
Accepted:
/s/ 03/26/08
Xxxxxxx X. Xxxxx Date: |