EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made this 24th day of February 2004
by and between Immersion Medical ("Employer"), a Gaithersburg, MD company with
offices at 00 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, XX 00000, and Xxxxxxx Xxxxx,
("Employee").
WHEREAS Employer is engaged in the business of medical simulation and
visualization; and,
WHEREAS Employer and Employee mutually desire the employment of Employee;
therefore,
The Parties agree as follows:
ARTICLE I - SCOPE
A. Employee will serve employer as "Senior Vice President-General Manager,
Immersion Medical". Employee accepts and agrees to such employment and to
perform all of the duties that may be required by the express and implicit
terms of this Agreement, to the reasonable satisfaction of Employer.
Employee will also perform such other and unrelated service and Employer
may assign duties as to Employee from time to time.
B. Employee agrees to perform faithfully, industriously, and to the best of
Employee's ability, experience, and talents to further the growth and
development of Immersion Medical. Such duties shall be provided at
Gaithersburg, MD and at such other places(s) as the needs, business or
opportunities of the Employer may require from time to time.
C. Employee will have an adequate working knowledge of the services and
products offered by Immersion Medical.
ARTICLE II - TERM
This Agreement shall be effective for a minimum period of six (6) months,
beginning on March 1, 2004, unless and until terminated by one or both
parties in accordance with ARTICLE X herein.
ARTICLE III - COMPENSATION
Financial compensation will be provided via A. Base Salary and Incentive B.
Benefits C. Stock Options D. Relocation E. Termination for Cause F.
Termination Without Cause
A. BASE SALARY AND INCENTIVE
Your initial base salary will be $200,000 annually, payable in accordance
with the Company's customary payroll practice. In addition to your base
salary, the company agrees to compensate you up to an additional 50% of
your base salary, contingent upon successfully achieving mutually agreeable
objectives during 2004.
B. BENEFITS
As of the date-of-hire, Employee will be eligible for all employee benefits
offered to full-time employees. Employee will also accrue vacation at a
rate of 4 weeks per year.
C. STOCK OPTIONS
Effective upon board approval, the Company will grant you an option to
purchase 200,000 shares of the Company's Common Stock pursuant to the
Company's stock option plan and standard stock option agreement. All
options will have an exercise price that will be equal to the fair market
value of the Company's Common Stock at the date of grant. The options will
become exercisable over a four-year exercise schedule with 25% of the
shares vesting at the end of your first twelve months of service, and with
an additional 2.083% vesting per month thereafter, at the close of each
month during which you remain employed with the Company. All Options, to
the extent unexercised and exercisable by the Employee on the date on which
the Employee's employment is terminated without Cause, may be exercised by
Employee within six (6) months after the Employee's employment is
terminated but in any event no later than the option expiration date as set
forth in the Company's Plan.
D. RELOCATION
In addition to the above-mentioned salary and benefits, Immersion Medical
agrees to subsidize your relocation to Maryland in the amount of up to
$50,000 (subject to appropriate state and federal taxes). A copy of the
Relocation Policy will be forwarded to you for your review and signature.
Funds will be released upon Immersion obtaining a signed copy of the
Relocation Policy and as approved expenses are incurred.
E. TERMINATION FOR CAUSE:
If the Company terminates your employment for Cause, as defined below, you
shall be entitled to no compensation or benefits from the Company other
than those earned. For purposes of this letter agreement, a termination
"for Cause" occurs if the Company for any of the following reasons
terminates your employment: theft, dishonesty, or falsification of any
employment or Company records; your conviction of a felony or of any
criminal act which impairs your ability to perform your duties with the
Company; your improper use or disclosure of the Company's confidential or
proprietary information; any intentional act by you that has a material
detrimental effect on the Company's reputation or business; or any material
breach of the terms of this letter agreement by you, which breach, if
curable, is not cured within thirty (30) days following written notice of
such breach from the Company.
F. TERMINATION WITHOUT CAUSE
The termination of Employee's employment by the Company within the
twenty-four (24) month period beginning on your start date for any reason
other than
(i) for Cause, or (ii) for Employee's death or permanent disability shall
constitute a "Termination Without Cause." In the event of a Termination
Without Cause, Employee shall be entitled to the following separation
benefits provided that Employee executes a general release of all known and
unknown claims against the Company in a form acceptable to the Company:
1. Continued payment of Employee's salary at his final Base Salary rate,
less applicable withholding, for six (6) months following his
termination; As of Employee's termination of employment, he will be
entitled to elect to purchase group health insurance coverage in
accordance with federal law (COBRA). If Employee timely elects COBRA
coverage, the Company shall pay the premiums for Employee's COBRA
coverage for the following six (6) month period. Thereafter, Employee
may elect to continue COBRA coverage at his own expense.
ARTICLE IV - PERFORMANCE APPRAISALS
Employee performance appraisals will be given after the first six (6)
months of employment and every January thereafter. January performance
appraisals may be accompanied by a salary review beginning January, 2005.
ARTICLE V - REIMBURSEMENT FOR EXPENSES
Immersion Medical will reimburse expenses incurred by Employee in
fulfilling responsibilities to Immersion Medical in full, so long as the
company's CEO deems expenses reasonable and necessary.
1. Receipt must accompany request for reimbursement.
2. The CEO must approve all expenditures entailed for work pursuant to
this agreement before reimbursement will be made.
ARTICLE VI - INTELLECTUAL PROPERTY
All writings, without limitation, including software program codes, graphic
designs, technical data, and documentation related thereto, produced by the
Employee in the course of work for Employer, shall be considered works made
for hire and the property of Employer. Employee hereby assigns and
transfers to Employer the ownership of copyright on any and all such works,
whether published or unpublished.
Employee agrees to immediately disclose to Immersion Medical and to assign
to Immersion Medical all computer software and displays and inventions; (1)
made or (2) first reduced to practice during the course of the Employee's
employment at Immersion Medical, and to grant the right to Immersion
Medical (entirely at its own expense) any and all patents for those
inventions, displays and software in any and all countries.
In order to perfect Immersion Medical's right, title and interest in and to
said
inventions, displays, software, and patents, and to convey to Immersion
Medical rights under the International Conventions for the Protection of
Industrial Property and the Patent Cooperation Treaty, Employee will,
without further compensation:
1. Execute and deliver all papers and instruments, and
2. Perform such further acts, including giving testimony or
furnishing evidence in the prosecution or defense of appeals,
interferences, suits and controversies relating to any aforesaid
invention as may be deemed necessary by Immersion Medical.
ARTICLE VII - LIMITATION OF CONTRACTUAL AUTHORITY
A. Employee shall enter no contractual agreement representing Immersion
Medical without the specific prior approval of the CEO. The CEO must
approve production Proposals and/or quotes before being presented to the
Client.
B. Employee shall not have the right to obligate any funds without the
prior consent of Employer. If such powers of contractual commitment shall
be bestowed upon Employee, the limitations of said responsibility shall be
clearly stated in Employer policy statement or incorporated herein as an
attachment.
ARTICLE VIII - CONFIDENTIALITY
Employee agrees not at any time or in any manner, either directly or
indirectly, to divulge, disclose, or communicate in any manner, any
Immersion Medical proprietary and/or confidential information to any third
party without the prior written consent of the Employer. Employee will
protect the information and treat it as strictly confidential. Information
included in this provision includes but is not limited to:
A. Technical Information
B. Development time-line information for products or projects under
development
C. Pricing information
B. Bidding information
C. Subcontractor/vendor information
D. Company financial data
ARTICLE IX - NON-COMPETE
Employee agrees NOT TO COMPETE with Immersion Medical during the period of
this Agreement and for a period of 12 months upon termination of this
Agreement, independent of the reason for termination.
The term NOT COMPETE as used in this Agreement shall mean that Employee
shall not directly or indirectly, or in any capacity, on his own behalf or
on behalf of any other organization work for, with, or on behalf of, or be
employed by any organization that produces similar products and services as
Immersion Medical. Employee will not undertake or assist in the:
1. Solicitation of any customer, account, or actively pursued lead
of Immersion Medical.
2. Solicitation for the employment of current or former employees of
Immersion Medical without the written consent of the management
of Immersion Medical.
3. Interfere with the relationships between Immersion Medical and
its vendors, clients, employees or partners.
4. Damage to the reputation and good name of Immersion Medical.
Employee agrees that any breach of this Agreement by the Employee would
cause irreparable harm to Immersion Medical for which Immersion Medical
would have no adequate remedy at law and that, in such event, Immersion
Medical shall have the right to an injunction, specific performance or
other equitable relief in addition to any remedies available at law.
ARTICLE X - TERMINATION
This Agreement may be terminated upon:
A. Breach of Agreement by either Employee or Employer.
Or
B. Two weeks (10 business days) notice by either party.
In the event of termination, Employer shall be liable to pay Employee
consideration due and owing up to the date of termination.
Upon termination of this Agreement for any reason, Employee shall return to
Employer all copies of any company data, records, or materials, and
Employer's confidential and proprietary materials provided to Employee by
Employer. Employee shall also submit to Employer all copies of work in
progress, or portions thereof, under the direction of Employer by this
Agreement.
ARTICLE XI - MODIFICATIONS
No modification of this Agreement shall be binding upon the parties hereto,
unless such is in writing and duly signed by the respective parties hereto.
ARTICLE XII - GOVERNING LAW
This Agreement shall be governed by the law of the State of Maryland. Any
disputes arising under this Agreement solely between Employer and Employee
shall be governed by the law of the State of Maryland. However, if the
issue in dispute is not covered by Maryland law, or if there is a conflict
between Maryland law and the Federal law, e.g., decision of Federal courts,
regulations and statutes, the Maryland court shall apply the Federal law.
Any litigation under this Agreement, if commenced by the Employee, shall be
brought in a court of competent jurisdiction in the State of Maryland.
ARTICLE XIII - PROCUREMENT INTEGRITY CERTIFICATION
Employee certified that he has reviewed the Procurement Integrity
provisions of the OFPP Act as amended (41 U.S.C. 423), and is familiar
with, and will comply with, the requirements and prohibitions it imposes on
employees, contractors, and procurement officials. Employee has no
knowledge of any offer of employment or future business, money, or other
thing of value made to any procurement official of any federal agency with
whom this Agreement is likely to require contact.
Further, Employee has not obtained or solicited from any agency official
any proprietary or sensitive, source selection information regarding any
procurement which will also be the subject of this Agreement. Employee will
immediately report in writing to the President, any information about
potential violations of the Act.
ARTICLE XIV - XXXX AMENDMENT CERTIFICATIONS DISCLOSURE
Employee is familiar with the prohibition on the use of appropriated funds
to influence an officer or employee of any Government agency, member of
Congress, or an officer or employee of Congress in connection with any
Federal grant, the making of any Federal loan, the entering of any Federal
contract, grant, loan, or cooperative agreement. Employee agrees to comply
with any certification or disclosure requirement required on any covered
Federal action on which Employee participates.
ARTICLE XV - ENTIRE AGREEMENT
This instrument and attachments contain the entire agreement and
understanding of the parties hereto. It may not be changed orally, but only
by agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought. There
is no other contemporaneous understanding or agreement, oral or written,
between the parties on said subject matter.
ARTICLE XVI - START DATE
It would be my understanding that you would start employment with Immersion
on or about March 1, 2004. For purposes of this letter, the term "start
date" shall mean the day on which you commence employment with the Company.
ARTICLE XVII - EXECUTION OF AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused these articles to be
executed.
IMMERSION MEDICAL EMPLOYEE
BY: BY:
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TITLE: SOCIAL SECURITY #
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DATE: ADDRESS:
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DATE:
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ATTACHMENT 1
INDIVIDUAL CERTIFICATE OF PROCUREMENT INTEGRITY
I hereby certify that I am familiar with and will comply with the
requirements of subsection 27(a) of the Procurement Integrity section
of the Office of Federal Procurement Policy Act Amendments of 1988 (41
U.S.C. 423) as implemented in the Federal Acquisition Regulations (FAR
3.104).
I understand that during the conduct of any Federal agency procurement
of property or services in which the Employer competed, neither the
Employer nor any officer, employee, representative, agent or
consultant may knowingly:
(1) make, directly or indirectly, any offer or promise of future
employment or business opportunity to, or engage, directly or
indirectly, in any discussion of future employment or business
opportunity with, any procurement official of such agency; or
(2) offer, give, or promise to offer or give, directly or
indirectly, any money, gratuity, or other thing of value to any
procurement official of such agency; or
(3) solicit or obtain, directly or indirectly, from any officer
or employee of such agency, prior to the award of a contract any
proprietary or source selection information regarding such
procurement.
On any Federal procurement on which I participate personally and
substantially, I will immediately report to the President any
violation or possible violation of such Procurement Integrity
provision occurring on that procurement.
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SIGNATURE
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Typed or Printed Name
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Date
