EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of December _____, 1996, is made and entered
into by and between CELL ROBOTICS, INC., a New Mexico corporation ("Company")
and H. XXXXXX XXX ("Employee"). For the definition of certain terms used in
this Agreement, see Section 6 below.
The Company and Employee agree as follows:
SECTION 1. EMPLOYMENT.
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1.1. ENGAGEMENT. The Company will employ Employee, and Employee
will accept employment, as an Employee of Company for the Term, subject to and
in accordance with the provisions of this Agreement.
1.2. DUTIES. During the Term, Employee will serve Company in the
capacity of Vice President for Sales and Marketing or such other capacity as
may be designated by the President. Employee's duties as an Employee of
Company include all of the duties normally associated with such capacity.
Employee's duties will also include such other activities, responsibilities
and duties as may reasonably be assigned from time to time by the President.
If Employee is elected or appointed by the Board as an officer or other
position with Company, Employee will perform the duties of such position as
described in the Company's bylaws or as determined from time to time by the
Board.
1.3. ATTENTION AND EFFORT. During normal business hours, for such
periods of time as the Company has specific projects assigned to Employee,
Employee will devote Employee's best efforts, entire productive time, ability
and attention to the business of Company. For such periods of time as there
are no specific projects assigned to Employee, Employee shall only be required
to devote such time, effort and attention to the affairs of the Company as may
from time to time be requested by the President or Board, subject to the
agreement of Employee. Further, during the Term, Employee will not, without
Company's prior written consent, directly or indirectly engage in any
employment, consulting or other activity which would interfere or conflict
with the performance of Employee's duties or obligations to Company or which
would directly or indirectly compete with Company.
SECTION 2. COMPENSATION.
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2.1. MOVING EXPENSE PAYMENT. In order to reimburse Employee for
expenses reasonably incurred by Employee to change his primary residence and
domicile to the State of New Mexico, the Company agrees to pay to Employee the
sum of Twenty Thousand Dollars ($20,000.00) on a non-accountable basis upon
execution of this Agreement. Such payment shall be deemed a loan from the
Company to Employee and shall be evidenced by a Promissory Note to be executed
and delivered by Employee in favor of the Company in the principal amount of
Twenty Thousand Dollars ($20,000.00). Notwithstanding the execution and
delivery of such Promissory Note, the Company agrees that the Promissory Note
shall be cancelled and be null, void and unenforceable, and Employee released
from any liability thereunder, in the event Employee remains in the continuous
employ of the Company for a period of twelve (12) months from the date of this
Agreement or such employment is terminated prior to the expiration of such
twelve (12) month period pursuant to paragraphs 3.4, 3.6 or 3.7 hereof.
2.2. BASE SALARY. During the Term, Company will pay Employee a base
salary equal to Nine Thousand One Hundred Sixty-Seven Dollars ($9,167.00) per
month, payable bi-weekly.
2.3. INCENTIVE COMPENSATION. In addition to base salary described
in paragraph 2.2, Employee may be entitled to receive such bonuses and other
compensation as may be determined by the Board or the President (e.g.,
pursuant to such bonus, stock and other incentive compensation plans as may be
adopted and maintained by Company during the Term).
2.4. BENEFITS. During the Term, Employee will be entitled to
participate in such fringe benefit programs (e.g., medical, dental,
disability, life insurance and vacation programs) as may be provided from time
to time by the Board or any person or committee appointed by the Board to
determine fringe benefit programs, all subject to and in accordance with the
eligibility and other requirements of such programs.
2.5. STOCK INCENTIVE PLAN. Employee shall be eligible to
participate in the Stock Incentive Plan of the Company and shall be entitled
to receive a grant of incentive stock options exercisable to purchase, in the
aggregate, _________ shares of the Company's Common Stock at an exercise price
equal to the fair market value of the Company's Common Stock on the date of
grant. Such incentive stock options shall vest ratably over a period of three
(3) years, with an equal number of options vesting on each successive
anniversary of the commencement date hereof during the vesting period.
2.6. EXPENSES. During the Term, Company will reimburse Employee for
reasonable out-of-pocket expenses incurred by Employee in performance of
service for Company under this Agreement (e.g., transportation, lodging and
food expenses incurred while traveling on Company business), all subject to
such policies and other requirements as Company may from time to time
establish for its Employees generally.
2.7. WITHHOLDING AND OFFSET. Payment of the base salary and any
other amounts to Employee will be subject to such withholding and offset as
may be provided by applicable law (e.g., for income tax purposes) or consented
to by Employee.
2.8. INDEMNIFICATION. Subject to applicable law, the Company shall
indemnify and hold Employee harmless from any and all loss, judgments or
claims Employee may suffer in the proper discharge of Employee's duties
hereunder, including, but not limited to attorney's fees and court costs.
SECTION 3. TERM AND TERMINATION.
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3.1. COMMENCEMENT. The Term will commence on the date of this
Agreement.
3.2. TERMINATION. The Term will terminate upon the first of the
following to occur: (a) Company's termination of Employee's Employment for
Cause pursuant to paragraph 3.3; (b) Company's termination of Employee's
employment without Cause pursuant to paragraph 3.4; (c) Employee resigns from
employment as an Employee of Company pursuant to paragraph 3.5; (d) Employee
terminates his employment for Cause pursuant to paragraph 3.8; (e) the death
of Employee; or (f) the disability of Employee resulting from injury, illness
or disease, whether of a mental or physical nature, which substantially
impairs or prevents the ability of Employee to satisfactorily perform
Employee's duties and obligations under this Agreement for a period of
90 days; (g) the Change in Control of the Company or (h) upon thirty (30) days
prior written notice by either party. If the Employee is terminated pursuant
to subparagraphs 3.2(a), (c), (e), (f) or (h), the Employee shall be entitled
to no additional compensation under Section 2 herein. However, if an Employee
is terminated pursuant to subparagraph 3.2(g), Employee shall be entitled to
receive the Termination Payments provided for in Section 3.9 below.
3.3. TERMINATION FOR CAUSE. Company may at any time terminate
Employee's employment for Cause without prior notice.
3.4. TERMINATION WITHOUT CAUSE. Company may at any time terminate
Employee's employment without Cause by giving Employee notice of the same at
least thirty (30) days prior to the effective date of such termination.
3.5. RESIGNATION. Employee may at any time resign from employment
with Company by giving Company notice of thirty (30) days prior to the
effective date of such termination.
3.6. TERMINATION FOR CAUSE BY EMPLOYEE. Employee may at any time
terminate Employee's employment for Cause without prior notice.
3.7. TERMINATION DUE TO CHANGE IN CONTROL. Employee may terminate
Employee's employment due to a Change in Control without prior notice.
3.8. DISABILITY. If in the event of a disability described in
paragraph 3.2(e) Company decides not to terminate Employee's employment and
Employee is entitled to receive payments (i.e., in lieu of wages or other
compensation for employment) on account of such disability under any fringe
benefit program provided by Company, then the base salary described in
paragraph 2.2 will be reduced to the extent of such entitlement.
3.9. TERMINATION PAYMENTS. In the event the Employee's employment
is terminated pursuant to paragraph 3.7, the Company shall be obligated to pay
to Employee Termination Payments equal to, in the aggregate, the Employee's
then prevailing annual total compensation under this Agreement, including base
salary, incentive compensation, commissions, bonuses, fringe benefits and
other forms of compensation. Such Termination Payments shall be due and
payable in twelve (12) equal monthly installments commencing one month after
the Termination Date.
3.10. RETURN OF COMPANY PROPERTY. Upon termination of the Term,
Employee will deliver to Company any and all property of Company which is in
Employee's possession or control (including, but not limited to, any and all
Materials).
3.11. SURVIVAL. Sections 4 and 5, together with all other
provisions of this Agreement that may reasonably be interpreted or construed
to survive any termination of the Term, will survive any termination of the
Term.
SECTION 4. CONFIDENTIALITY.
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4.1. CONFIDENTIAL INFORMATION. In the course of Employee's
employment with Company, Employee will have access to certain Confidential
Information. Employee will use and disclose Confidential Information solely
for the purposes for which it is provided and will take reasonable precautions
to prevent any unauthorized use or disclosure of the same. Employee will not
use or disclose any Confidential Information (a) other than as required in the
course of Employee's employment with Company, (b) for Employee's own personal
gain, or (c) in any manner contrary to the best interests of Company.
4.2. PROPRIETARY INFORMATION OF OTHERS. Employee will not use in
the course of Employee's employment with Company, or disclose or otherwise
make available to Company any information, documents or other items which
Employee may have received from any other person (e.g., a prior employer) and
which Employee is prohibited from so using, disclosing or making available
(e.g., by reason of any contract, court order, law or obligation by which
Employee is bound).
4.3. WORK PRODUCT. All Work Product which Employee conceives,
develops or first reduces to practice, either alone or with others, during the
Term will be the sole and exclusive property of Company, together with any and
all related Intellectual Property Rights. The foregoing applies to all Work
Product which relates to Employee's performance of services under this
Agreement, Company's Field of Business or Company's actual or demonstrably
anticipated research or development and whether or not such Work Products are
conceived, developed or first reduced to practice during normal business hours
or with the use of any equipment, supplies, facilities, personnel,
Confidential Information or other resource of Company.
4.4. DISCLOSURE AND PROTECTION OF WORK PRODUCTS. Employee will
disclose all Work Products described in paragraph 4.3 to Company, promptly and
in writing. At Company's request and at Company's expense, Employee will
assist Company or its designee in efforts to protect such Work Products. Such
assistance may include, but is not necessarily limited to, the following:
(a) making application in the United States and in foreign countries for a
patent or copyright on any Work Products specified by Company; (b) executing
documents of assignment to Company or its designed of all Employee's right,
title and interest in and to any Work Product and related Intellectual
Property Rights; and (c) taking such additional action (including, but not
limited to, the execution and delivery of documents) to perfect, evidence or
vest in Company or its designed all rights, title and interest in and to any
Work Product and any related Intellectual Property Right.
4.5. MATERIALS. All Materials and related Intellectual Property
Rights will be the sole and exclusive property of Company, whether or not such
Materials are marked with any Intellectual Property Right notice of Company or
Employee. All such Materials authored, made, conceived or developed by
Employee or made available to Employee (or any copies or extracts thereof)
will be held by Employee in trust solely for the benefit of Company. Employee
will use such Materials only as required in the course of Employee's
employment with Company or as otherwise authorized in writing by Company.
4.6. NOTICE. This Agreement does not apply to any invention for
which no equipment, supplies, facility or trade secret information of Company
was used, and which was developed entirely on Employee's own time, unless:
(a) the invention relates (i) directly to the Company or (ii) to Company's
actual or demonstrable anticipated research or development; or (b) the
invention results from any work performed by Employee for Company.
SECTION 5. NONCOMPETITION AND NONSOLICITATION.
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5.1. NONCOMPETITION. During the Term and for a period of two (2)
years after the end of the Term, Employee will not directly or indirectly be
employed by, own, manage, operate, join, control or participate in the
ownership, management, operation or control of or be connected with any
business activity which is within Company's Field of Business within a radius
of 100 miles from any geographical territory or location where the Company
transacts business. For purposes of the foregoing, Employee will be deemed to
be connected with such business if the business is carried on by: (a) a
partnership in which the Employee is general or limited partner; (b) a
corporation of which Employee is a shareholder(other than a shareholder owning
less than 5% of the total outstanding shares of the corporation), officer, or
director; or is an employee, consultant, agent, member or other
representative.
5.2. NONSOLICITATION. During the Term and for a period of two (2)
years after the end of the Term, Employee will not directly or indirectly
solicit or entice any of the following to cease, terminate or reduce any
relationship with Company or to divert any business from Company; (a) any
employee, consultant or representative of Company; (b) any contractor or
supplier of Company; (c) any customer or client of Company; or (d) any
prospective customer or client from which Employee solicited business within
the last year of the Term. Further, Employee will not directly or indirectly
disclose the names, dresses, telephone numbers, compensation, or arrangements
between Company and any person or entity described in (a), (b) or (c) above to
any competitor of Company.
SECTION 6. DEFINITIONS.
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Whenever used in this Agreement with initial letters capitalized, the
following terms will have the following specified meanings:
6.1. "Board" means Company's Board of Directors.
6.2. "Cause" for purposes of paragraph 3.3, shall include the
occurrence of any of the following:
a. The Employee commits a material breach of the terms of
this Agreement, which shall remain uncured for a period of thirty (30) days
after written notice by the Company of such breach.
b. The Employee is shown to have engaged in any act of
dishonesty detrimental to the Company, or fraud upon the Corporation, any of
its affiliated companies, or any of its customers or clients;
c. The Employee fails to devote his full time, attention and
efforts to the business and affairs of the Corporation or its affiliated
companies which condition remains uncured for a period of thirty (30) days
after written notice by the Company; or
d. The Employee has been grossly negligent in the performance
of his employment duties or responsibilities which condition remains uncured
for a period of thirty (30) days after written notice by the Company.
6.3. "Cause," for purposes of paragraph 3.6, shall include the
occurrence of any of the following:
a. The breach or violation by the Company of the any of the
material terms of this Agreement, which shall remain uncured for a period of
thirty (30) days of written notice by Employee of such breach;
b. Any significant change in position, duties and
responsibilities of Employee to which the Employee does not consent;
c. Any move of the Company or its principal officers
resulting in or any other requirement that the Employee, without his consent,
change his principal residence.
d. The Company has shown to have engaged in any active
material dishonesty or fraud upon the Employee.
e. There shall occur a Change of Control of the Company.
6.4. "Change of Control" means any transaction of the Company
involving (i) the merger or consolidation of the Company into or with another
entity where the Company's shareholders receive less than 50% of the
outstanding voting securities of the new or continuing entity, (ii) the sale
of all or substantially all of the Company's assets, (iii) any person not
already a stockholder of the Company becoming a beneficial owner, directly or
indirectly, of the securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities, (iv) a
change in the majority of the Board of Directors of the Company, or (v) the
Company terminating its business or liquidating its assets.
6.5. "C.E.O." means Company's Chief Executive Officer.
6.6. "Company's Field of Business" means any of the fields of the
Company's business. On the date of the Agreement, Company's Field of Business
includes, but is not necessarily limited to, the following: the development,
manufacture and sale of scientific instruments for medical, biological and
genetic applications in the life sciences.
6.7. "Confidential Information" means any information that is
confidential, proprietary or trade secret information of Company or any of its
customer or clients or any other information the use of disclosure of which by
Company is prohibited or restricted (e.g., by reason of any contract, court
order, law or other obligation by which Company is bound). "Confidential
Information" may include, but is not necessarily limited to, technology,
computer programs, business plans, marketing plans, information as to existing
or future products or services of Company, financial projections, unpublished
works of original authorship, customer lists, financial information, and trade
secrets.
Notwithstanding the foregoing, the restrictions on disclosure
and use of information and materials as set forth in Section 4 shall not apply
to the following, and the following is not confidential or proprietary
information: (1) any information or materials which were generally available
to the public at the time made available to Employee by the Company; (2) any
information or materials which become, without breach of Section 4 and through
no fault of Employee, generally available to the public; (3) any information
or materials which Employee has received from other sources prior to the date
of this Agreement, subject to no restrictions on disclosure applicable to
Employee; and (4) any information or materials which Employee at any time
lawfully obtains from a third party who is not under any obligation of secrecy
or confidentiality to the Company, under circumstances permitting disclosure
by Employee to others without restriction.
6.8. "Intellectual Property Right" means any patent, copyright,
trade secret, trade name, trademark or other intellectual property right.
6.9. "Materials" means hardware, software, programs, manuals,
drawings, designs, articles, writings, data, notes, memorandum, manuscripts,
notebooks, proposals, work plans, interim and final reports, project files,
client contract records and other tangible manifestations of any Confidential
Information or Work Products.
6.10. "President" means Company's President.
6.11. "Term" means the term of Employee's employment as an Employee
of Company pursuant to this Agreement.
6.12. "Work Product" means any invention, discovery, concept or
idea (including, but not necessarily limited to, hardware, software programs,
or processes, techniques, know-how, methods, systems, improvements, analytical
reports, and other developments).
Section 7. Miscellaneous.
7.1. Compliance with Laws. In the performance of this Agreement,
each party will comply with all applicable laws, regulations, rules, orders
and other requirements of governmental authorities having jurisdiction.
7.2. Equitable Relief. Employee acknowledges that: the
provisions of Sections 4 and 5 are essential to Company; Company would not
enter into this Agreement if it did not include such provisions; the damages
sustained by Company as a result of any breach of such provisions cannot be
adequately remedied by damages; and, in addition to any other right or remedy
that Company may have (e.g., under this Agreement, by law or otherwise),
Company will be entitled to injunctive and other equitable relief to prevent
or curtail any breach of any such provisions.
7.3. Nonwaiver. The failure of either party to insist upon or
enforce strict performance by the other of any provision of this Agreement or
to exercise any right, remedy or provision of this Agreement will not be
interpreted or construed as a waiver or relinquishment to any extent of such
party's right to consent or rely upon the same in that or any other instance;
rather, the same will be and remain in full force and effect.
7.4. Entire Agreement. This Agreement constitutes the Entire
Agreement, and supersedes any and all prior Agreements, between Company and
Employee. No amendment, modification or waiver of any of the provisions of
this Agreement will be valid unless set forth in a written instrument signed
by the party to be bound thereby.
7.5. Applicable Law. This Agreement will be interpreted,
construed and enforced in all respects in accordance with the local laws of
the State of New Mexico, without reference to its choice of law rules.
7.6. Attorneys Fees. In the event that either party consults or
retains an attorney to enforce the terms of this Agreement, the prevailing
party in any such dispute or litigation shall be entitled to recover from the
other party its reasonable attorneys fees and costs incurred.
7.7. Severability. If any of the provisions of this Agreement are
held to be invalid or unenforceable, the remaining provisions shall
nevertheless continue to be valid and enforceable to the extent permitted by
law.
Company: CELL ROBOTICS, INC.,
a New Mexico corporation
By: ----------------------------------
Its: President
Employee: ---------------------------------------
H. Xxxxxx Xxx
