NEWCARDIO, INC. EMPLOYMENT AGREEMENT
EXHIBIT 10.7
THIS EMPLOYMENT AGREEMENT (the
"Agreement")
is made and entered into
as of October 31, 2007 by
and between NewCardio, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx Londoner (the
"Executive").
BACKGROUND
A. The
Company desires to retain the services of the Executive as Vice President of
Corporate
Business Development of the Company from the date of this Agreement (the "Effective
Date"). The Company also desires
to provide employment security to the Executive, thereby inducing the Executive
to continue employment with the Company and enhancing the Executive's ability to
perform effectively.
B. The
Executive is willing to be employed by the Company on the terms and subject
to the
conditions set forth in this Agreement.
THE
PARTIES AGREE AS FOLLOWS:
1. Title, Duties and
Responsibilities.
1.1 Title.
The Executive will be employed by the Company as its Executive
Vice
President of Corporate Business Development, at the pleasure of the Board of
Directors of the Company (the "Board").
For so long as Executive remains the Executive Vice President of
Corporate Business Development of the Company, the Company shall use
commercially reasonable efforts to nominate Executive for membership on the
Board at each annual meeting of the stockholders of the Company, or at any
meeting of the stockholders of the Company at which members of the Board are to
be elected, or whenever members of the Board are to be elected by written
consent, subject in each case to the approval of the Company's stockholders
and/or the Board, as applicable.
1.2 Duties.
The Executive will devote all of the Executive's business time,
energy,
and skill to the affairs of the Company; provided, however, that reasonable time
for the activities set forth on Exhibit
A, personal business, charitable or professional activities or such other
activities which shall be approved in advance by the Board will be permitted, in
any case so long as such activities do not materially interfere with the
Executive's performance of services under this Agreement.
1.3 Performance
of Duties. The Executive will discharge the duties described herein
and duties as set forth by the Chief Executive Officer from time to time, in a
diligent and professional manner. The Executive will report to the Chief
Executive Officer of the Company, and will further comply with the Company's
business policies, rules and regulations, as adopted from time to time by the
Board.
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2. Terms of
Employment.
2.1 Definitions.
For purposes of this Agreement, the following terms will have the
following meanings:
(a) "Accrued
Compensation" means any accrued Total Cash Compensation,
any benefits under any plan of the Company in which the Executive is a
participant to the full extent of the Executive's rights under such plans, any
accrued vacation pay, and any appropriate business expenses incurred by the
Executive in connection with the performance of the Executive's duties
hereunder, all to the extent unpaid on the date of termination.
(b) "Base Salary"
will have the meaning set forth in Section 3.1 hereof.
(c) "Change of
Control" means the occurrence of any one of the following:
(i) any "person", as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, a subsidiary, an affiliate, or a Company
employee benefit plan, including any trustee of such plan acting as trustee) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of Company representing 50% or more
of the combined voting power of the Company's then outstanding securities; or
(ii) a sale of all or substantially all of the assets of the Company; or (iii)
any merger, reorganization or other transaction of the Company whether or not
another entity is the survivor, pursuant to which holders of all the shares of
capital stock of the Company outstanding prior to the transaction hold, as a
group, less than 50% of the shares of capital stock of the Company outstanding
after the transaction; provided, however, that neither (A) a merger effected
exclusively for the purpose of changing the domicile of the Corporation in which
the holders of all the shares of capital stock of the Company immediately prior
to the merger hold the voting power of the surviving entity following the merger
in the same relative amounts with substantially the same rights, preferences and
privileges, nor (B) a transaction the primary purpose of which is to raise
capital for the Company, nor (C) a reverse merger involving a publicly traded
entity and the Company during such time the Company is a privately-held entity
(the "Reverse
Merger"), will constitute a Change of Control.
(d) "Death
Termination" means termination of the Executive's employment
due to the death of the Executive.
(e)"Disability
Termination" means termination of the Executive's employment
by the Company due to the Executive's incapacitation due to disability. The
Executive will be deemed to be incapacitated due to disability if at the end of
any month the Executive is unable to perform substantially all of the
Executive's duties under this Agreement in the normal and regular manner due to
illness, injury or mental or physical incapacity, and has been unable so to
perform for either (i) three consecutive full calendar months then ending, or
(ii) 90 or more of the normal working days during the 12 consecutive full
calendar months then ending. Nothing in this paragraph will alter the Company's
obligations under applicable law, which may, in certain circumstances, result in
the suspension or alteration of the foregoing time periods.
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(f) "PIPE Financing"
means the Company's first sale and issuance of restricted securities to a
third party investor following the closing of the Reverse Merger during the term
hereof.
(g) "Termination For
Cause" means termination of the Executive's employment
by the Company due to (i) the Executive's dishonesty or fraud, gross negligence
in the performance of the Executive's duties and responsibilities; (ii) the
Executive's conviction of a felony involving moral turpitude; (iii) the
Executive's incurable material breach of the terms of this Agreement or the
Confidentiality Agreement (as defined below); or (iv) the willful and continued
refusal by Executive to substantially perform Executive's duties or
responsibilities for the Company described herein and as set forth by the Chief
Executive Officer from time to time.
(h) "Termination
Other Than For Cause" means termination of the Executive's
employment by the Company due to any reason other than as specified in Sections
2.1(d), (e), (f) or (i) hereof.
(i)
"Total Cash
Compensation" means the Executive's Base Salary plus any cash bonuses,
commissions or similar payment accrued during the preceding calendar year, and
if there is no complete preceding calendar year, then the preceding 12 month
period, and if there is no complete preceding 12 month period, then the
preceding employment period annualized to a twelve (12) month
period.
(j)
"Voluntary
Termination" means termination of the Executive's employment by the
voluntary action of the Executive, other than by reason of a Disability
Termination or a Death Termination or as described in 2.1(g).
2.2
Employee at
Will. The Executive is an "at will" employee of the Company,
and the Executive's employment may be terminated by the Company at any time by
giving the Executive written notice thereof, subject to the terms and conditions
of this Agreement and the At-Will Employment, Confidential Information,
Invention Assignment and Arbitration Agreement attached as Exhibit B
hereto (the "Confidentiality
Agreement"), the terms of which are herein incorporated by
reference.
2.3 Termination For
Cause. Upon a Termination For Cause, the Company will pay
the Executive Accrued Compensation, if any.
2.4 Termination Other
Than For Cause. The Company shall give Executive not less than one (1)
month advance notice of a Termination Other Than For Cause. Upon a Termination
Other Than For Cause, and provided Executive executes and delivers to the
Company a release and waiver of claims in the form attached hereto as Exhibit C and such
release and waiver of claims is not revoked and has become effective pursuant to
its terms, the Company will pay the Executive (a) Accrued Compensation, if any,
and (b) a monthly cash severance payment equal to (x) the Total Cash
Compensation, divided by twelve (12), times (y) thirty five (35) months minus
(ii) the number of whole months elapsing during the period beginning with the
date of this Agreement and ending on the effective termination date of
Executive's employment, with any fractional month prorated based on the number
of days so elapsed divided by the total number of
days in such calendar month (the result of (y), the "Severance
Period"). For certainty, in no event shall the Severance Period exceed
thirty five (35) months.
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2.5 Disability
Termination. The Company will have the right to effect a Disability
Termination by giving written notice thereof to the Executive. Upon a Disability
Termination, the Company will pay the Executive all Accrued Compensation, if
any.
2.6 Death
Termination. Upon a Death Termination, the Executive's employment
will be deemed to have terminated as of the last day of the month during which
her death occurs, and the Company will promptly pay to the Executive's estate
Accrued Compensation, if any.
2.7 Voluntary
Termination. In the event the Executive wishes to consummate a
Voluntary Termination, the Executive shall give the Company at least thirty (30)
days advance written notice. During such period, the Executive will continue to
receive regularly scheduled Base Salary payments and benefits. Following the
effective date of a Voluntary Termination, the Company will pay the Executive
Accrued Compensation, if any.
2.8 Timing of
Termination Payments. Unless expressly provided otherwise, the
foregoing termination payments will be made at the usual and agreed times
provided for in Section 3.1 of this Agreement.
3. Compensation and
Benefits.
3.1 Base Salary.
As payment for the services to be rendered by the Executive as
provided in Section 1 and subject to the provisions of Section 2 of this
Agreement, the Company will pay the Executive a "Base Salary" at the rate of
$280,000 per year, payable on the Company's normal payroll schedule. The
Executive's "Base Salary" may be increased in accordance with the provisions
hereof or as otherwise determined from time to time, but reviewed at least
annually, by the Compensation Committee of the Board.
3.2 Additional
Benefits.
(a) Benefit Plans.
The Executive will be eligible to participate in such of the
Company's benefit plans as are now generally available or later made generally
available to senior officers of the Company, including, without limitation,
medical, dental, life, and disability insurance plans.
(b) Expense
Reimbursement. The Company agrees to reimburse the Executive for all
reasonable, ordinary and necessary travel and entertainment expenses incurred by
the Executive in conjunction with the Executive's services to the Company
consistent with the Company's standard reimbursement policies. The Company will
pay travel costs incurred by the Executive in conjunction with the Executive's
services to the Company consistent with the Company's standard travel
policies.
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(c) Vacation.
The Executive will be entitled, without loss of compensation,
to twenty (20) days of vacation per year. Unused vacation in any given year may
be accrued by the Executive pursuant to the Company's standard vacation
policies.
3.3 Bonus.
(a) Mandatory.
As soon as practicable following the closing of the PIPE
Financing, the Company shall pay Executive a one time, lump sum cash bonus in
the amount of (x) $23,333.33, times the number of whole months elapsing during
the period beginning April 1, 2007
and ending on the closing date of the PIPE Financing, with any fractional month
prorated based on the number of days so elapsed divided by the total number of
days in such calendar month, minus (y) the total amount of cash compensation
paid to Executive by the Company during the period beginning April 1, 2007 and
ending on the closing date of the PIPE Financing, which bonus shall be subject
to normal withholdings.
(b) Other. The
Executive will be entitled to participate in any management
bonus plan adopted by the Company on terms comparable to other senior officers
of the Company, which may include the following:
(i)
2007 Program.
In the event the Reverse Merger is closed during calendar year 2007, then
Executive may be entitled to a one time, lump sum cash bonus payment, payable
upon the first payroll date following December 31, 2007 in accordance with the
Company's normal payroll procedures, in an amount equal to 0% to 37.5% of
Executive's Base Salary as of December 31, 2007, with such final percentage
determined by the Board based upon Executive's and/or the Company's achievement
by December 31, 2007 of the following milestones:
|
Milestone
|
Percentage
of then Base Salary
|
|
(1)
Closing of Reverse Merger
|
10%
|
|
(2)
Closing of a PIPE Financing at a pre-money Company valuation of at least
$25M
|
10%
|
|
(3)
Establishment of an office space for the Company in New Jersey
accommodating at least two (2) people
|
2%
|
|
(4)
Development of investor relations plan for calendar year
2008
|
8%
|
|
(5)
Development of a detailed financial plan for calendar year
2008
|
7.5%
|
|
TOTAL
|
37.5%
|
(ii)
2008
Program. Provided the PIPE Financing has closed prior to
or during calendar year 2007, then Executive may be entitled to a one time, lump
sum cash bonus payment, payable upon the first payroll date following December
31, 2008 in accordance with the Company's normal payroll procedures, in an
amount equal to 0% to 50.0% of Executive's Base Salary as of December 31, 2008,
with such final percentage determined by the Board based upon Executive's
achievement by December 31, 2008 of certain milestones to be determined
by the Board and Executive as soon as practicable following the later to occur
of the date of closing of the PIPE Financing and January 1, 2008.
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3.4 Option to
Purchase Common Stock. Promptly following the Effective Date, the
senior management of the Company will recommend that the Board grant the
Executive an option (the "Option")
to purchase 750,000 shares of the Company's Common Stock pursuant to the
Company's 2004 Equity Incentive Plan (the "Plan") at
an exercise price per share equal to the fair market value of a share of the
Company's Common Stock as of the date of such grant, as determined by the Board,
and subject to the following vesting schedule: 1/36 of the shares subject to the
Option shall vest on each monthly anniversary of the date of this Agreement,
subject to Executive's Continuous Service (as defined in the Plan) through each
such date. Notwithstanding the above, the Option will vest immediately with
respect to 100% of any then unvested or unreleased shares upon a Termination
Other Than For Cause.
3.5 Future Options.
Any other equity award made to Executive following the Effective
Date in addition to the Option which is subject to vesting or forfeiture (each
such equity award, a "Future Option")
shall also vest immediately with respect to 100% of any then unvested or
unreleased shares upon a Termination Other Than For Cause.
4. Miscellaneous.
4.1 Waiver.
The waiver of the breach of any provision of this Agreement will
not
operate or be construed as a waiver of any subsequent breach of the same or
other provision hereof.
4.2 Notices.
All notices and other communications under this Agreement will
be in
writing and will be given by personal or courier delivery, facsimile or first
class mail, certified or registered with return receipt requested, and will be
deemed to have been duly given upon receipt if personally delivered or delivered
by courier, on the date of transmission if transmitted by facsimile, or three
business days after mailing if mailed, to the addresses of the Company and the
Executive contained in the records of the Company at the time of such notice.
Any party may change such party's address for notices by notice duly given
pursuant to this Section 4.2.
4.3 Headings.
The section headings used in this Agreement are intended for convenience
of reference and will not by themselves determine the construction or
interpretation of any provision of this Agreement.
4.4 Governing Law.
This Agreement will be governed by and construed in accordance
with the laws of the State of California, excluding those laws that direct the
application of the laws of another jurisdiction.
4.5 Survival of
Obligations. This Agreement will be binding upon and inure to the
benefit of the executors, administrators, heirs, successors, and assigns of the
parties; provided, however, that except as herein expressly provided, this
Agreement will not be assignable
either by the Company (except to an affiliate or successor of the Company) or by
the Executive without the prior written consent of the other party.
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4.6 Counterparts and
Facsimile Signatures. This Agreement may be executed
in two or more counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument. This Agreement
may be executed by facsimile signature (including signatures in Adobe PDF or
similar format).
4.7 Withholding.
All sums payable to the Executive hereunder will be reduced by all
federal, state, local, and other withholdings and similar taxes and payments
required by applicable law.
4.8
Enforcement.
If any portion of this Agreement is determined to be invalid or
unenforceable, such portion will be adjusted, rather than voided, to achieve the
intent of the parties to the extent possible, and the remainder will be enforced
to the maximum extent possible.
4.9 Entire Agreement;
Modifications. Except as otherwise provided herein or in the exhibits
hereto, this Agreement and all exhibits hereto represents the entire
understanding among the parties with respect to the subject matter of this
Agreement, and supersedes any and all prior and contemporaneous understandings,
agreements, plans, and negotiations, whether written or oral, with respect to
the subject matter hereof, including, without limitation, any understandings,
agreements, or obligations respecting any past or future compensation, bonuses,
reimbursements, or other payments to the Executive from the Company. All
modifications to the Agreement must be in writing and signed by each of the
parties hereto. The Company and Executive acknowledge that upon the execution of
this Agreement, the Consulting Agreement dated March 1, 2007, as amended,
between the parties is hereby terminated, save for any surviving obligations of
the parties set forth therein, and Executive hereby waives any notice
requirements in connection therewith; provided, however, that to the extent any
provision of this Agreement or the Confidentiality Agreement conflicts with a
surviving obligation of the Consulting Agreement, the provision set forth in
this Agreement and/or the Confidentiality Agreement shall control.
4.10
Section
409A.
(a)
Notwithstanding anything to the contrary in this Agreement, if Executive
is a "specified employee" within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended (the "Code")
and the final regulations and any guidance promulgated thereunder ("Section 409A")
at the time of Executive's termination, and the severance payable to
Executive, if any, pursuant to this Agreement, when considered together with any
other severance payments or separation benefits which may be considered deferred
compensation under Section 409A (together, the "Deferred
Compensation Separation Benefits") will not and could not under any
circumstances, regardless of when such termination occurs, be paid in full by
March 15 of the year following Executive's termination, then only that portion
of the Deferred Compensation Separation Benefits which do not exceed the Section
409A Limit (as defined below) may be made within the first six (6) months
following Executive's termination of employment in accordance with the payment
schedule applicable to each payment or benefit. For
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these
purposes, each severance payment is hereby designated as a separate payment and
will not collectively be treated as a single payment. Any portion of the
Deferred Compensation Separation Benefits in excess of the Section 409A Limit
shall accrue and, to the extent such portion of the Deferred Compensation
Separation Benefits would otherwise have been payable within the first six (6)
months following Executive's termination of employment, will become payable on
the first payroll date that occurs on or after the date six (6) months and one
(1) day following the date of Executive's termination of employment. All
subsequent Deferred Compensation Separation Benefits, if any, will be payable in
accordance with the payment schedule applicable to each payment or
benefit.
(b) The
foregoing provision is intended to comply with the requirements
of Section 409A so that none of the severance payments and benefits to be
provided hereunder will be subject to the additional tax imposed under Section
409A, and any ambiguities herein will be interpreted to so comply. The Company
and Executive agree to work together in good faith to consider amendments to
this Agreement and to take such reasonable actions which are necessary,
appropriate or desirable to avoid imposition of any additional tax or income
recognition prior to actual payment to Executive under Section
409A.
(c) For
purposes of this Agreement, "Section 409A
Limit" means the lesser of
two (2) times: (i) Executive's annualized compensation based upon the annual
rate of pay paid to Executive during the Company's taxable year preceding the
Company's taxable year of Executive's termination of employment as determined
under Treasury Regulation 1.409A1(b)(9)(iii)(A)(1) and any Internal Revenue
Service guidance issued with respect thereto; or (ii) the
maximum amount that may be taken into account under a qualified plan pursuant to
Section 401(a)(17) of the Code for the year in which Executive's employment is
terminated.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the Effective Date.
|
By: /s/ Xxxxxx Xxxxx
|
||
|
Name:
Xxxxxx Xxxxx
|
||
|
Title: Chairman
of the Board
|
||
|
/s/ Xxxxxxx
Londoner
|
||
|
Xxxxxxx
Londoner
|
||
|
Address:
00 Xxx Xxxx Xx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Telephone:
000-000-0000
|
||
|
Facsimile:
N/A
|
||
|
Email:
xxxxxxxxxxx@xxx.xxx
|
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EXHIBIT
A
OTHER
ACTIVITIES
Managing
Director, Xxxxxxxx Management Company (a Connecticut GP)
· investment
management and consulting since 2005
Director,
Safe Ports Holdings, LLC (a Delaware Limited Liability Company)
· Charleston-based
holding company for Safe Ports, Inc. and Carolina Linkages, Inc., both Delaware
c corporations
10
EXHIBIT
B
AT-WILL
EMPLOYMENT, CONFIDENTIAL INFORMATION, INVENTION
ASSIGNMENT
AND ARBITRATION AGREEMENT
11
EXHIBIT
C
RELEASE
AND WAIVER OF CLAIMS
In
consideration of the payments and other benefits set forth in the Employment
Agreement dated [_], 200[_], to which this form is attached (the "Employment
Agreement"), I, Xxxxxxx
Londoner, hereby furnish NewCardio, Inc. (the "Company")
with the following release and waiver ("Release and
Waiver").
In
exchange for the consideration provided to me by the Employment Agreement that I
am not otherwise entitled to receive, I hereby generally and completely release
the Company and its directors, officers, employees, stockholders, partners,
agents, attorneys, predecessors, successors, parent and subsidiary entities,
insurers, affiliates, and assigns from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any way related
to events, acts, conduct, or omissions occurring prior to my signing this
Release and Waiver. This general release includes, but is not limited to: (1)
all claims arising out of or in any way related to my employment with the
Company or the termination of that employment; (2) all claims related to my
compensation or benefits from the Company, including, but not limited to,
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (3) all claims for breach of contract, wrongful termination, and
breach of the implied covenant of good faith and fair dealing; (4) all tort
claims, including, but not limited to, claims for fraud, defamation, emotional
distress, and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including, but not limited to, claims for
discrimination, harassment, retaliation, attorneys' fees, or other
claims arising under the federal Civil Rights Act of 1964 (as amended), the
federal Americans with Disabilities Act of 1990, the federal Age Discrimination
in Employment Act of 1967 (as amended) ("ADEA"),
and the California Fair Employment and Housing Act (as
amended).
I also
acknowledge that I have
read and understand Section 1542 of the California Civil Code which reads as
follows: "A general release
does not extend to claims which the creditor does not know or suspect to exist
in his favor at the time of executing the release, which if known by him must have materially
affected his settlement with the debtor." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction
of similar effect with respect to any claims I may have against the
Company.
I
acknowledge that, among other rights, I am waiving and releasing any rights I
may have under ADEA, that this Release and Waiver is knowing and voluntary, and
that the consideration given for
this Release and Waiver is in addition to anything of value to which I was
already entitled as an executive of the Company. I further acknowledge that I
have been advised, as required by the Older Workers Benefit Protection Act,
that: (a) the release and waiver granted herein does not relate to claims under
the ADEA which may arise after this Release and Waiver is executed; (b) I should
consult with an attorney prior to executing this Release and Waiver; (c)
am over
the age of forty (40) on the date I am signing this Release and Waiver, I have
21 days in which to consider this Release and Waiver (although I may choose
voluntarily to execute this Release
and Waiver earlier); (d) if I am over the age of forty (40) on the date I am
signing this Release and Waiver, I have seven days following the execution of
this Release and Waiver to revoke my consent to this Release and Waiver; and (e)
if I am over the age of forty (40) on the date I am signing this Release and
Waiver, this Release and Waiver shall not be effective until the eighth day
after I execute this Release and Waiver and the revocation period has expired;
otherwise it shall be effective upon the date of my signature
below.
12
I
acknowledge my continuing obligations under the At-Will Employment, Confidential
Information, Invention Assignment and Arbitration Agreement a copy of which is
attached hereto (the "Confidentiality Agreement").
Pursuant to the Confidentiality Agreement, I understand that among other
things, I must not use or disclose any confidential or proprietary information
of the Company and I must immediately return all Company property and documents
(including all embodiments of proprietary information) and all copies thereof in
my possession or control. I understand and agree that my right to the severance
pay I am receiving is in exchange for my agreement to the terms of this Release
and Waiver and is contingent upon my continued compliance with my
Confidentiality Agreement.
This
Release and Waiver, including the Confidentiality Agreement, constitutes the
complete, final and exclusive embodiment of the entire agreement between the
Company and me with regard to the subject matter hereof. I am not relying on any
promise or representation by the Company that is not expressly stated herein.
This Release and Waiver may only be modified by a writing signed by both me and
a duly authorized officer of the Company.
Date:
10/31/07
By: /s/ Xxxxxxx Londoner
Xxxxxxx
Londoner
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AT
WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,
INVENTION
ASSIGNMENT,
AND
ARBITRATION AGREEMENT
As a
condition of my employment with NewCardio, Inc., its subsidiaries, affiliates,
successors or assigns (together the "Company"), and in
consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company, I agree to the
following:
1. At-Will
Employment.
I
UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN
UNSPECIFIED DURATION AND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND
THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS
OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I ACKNOWLEDGE
THAT MS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT
GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR
MYSELF, WITH OR WITHOUT NOTICE.
2. Confidential
Information.
A. Company Information. I agree
at all times during the term of my employment and
thereafter, to hold in strictest confidence, and not to use, except for the
benefit of the Company, or to disclose to any person, firm or corporation
without written authorization of the Board of Directors of the Company, any
Confidential Information of the Company, except under a nondisclosure
agreement duly authorized and executed by the Company. I understand that "Confidential Information"
means any non-public information that relates to the actual or
anticipated business or research and development of the Company, technical data,
trade secrets or know-how, including, but not limited to, research, product
plans or other information regarding Company's products or services and markets
therefor, customer lists and customers (including, but not limited to, customers
of the Company on whom I called or with whom I became acquainted during the term
of my employment), software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information. I further understand that
Confidential Information does not include any of the foregoing items which have
become publicly known and made generally available through no wrongful act of
mine or of others who were under confidentiality obligations as to the item or
items involved or improvements or new versions thereof.
B. Former Employer Information.
I agree that I will not, during my employment with the
Company, improperly use or disclose any proprietary information or trade secrets
of any former or concurrent employer or other person or entity and that I will
not bring onto the premises of the Company any unpublished document or
proprietary information belonging to any such employer, person or entity unless
consented to in writing by such employer, person or entity.
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C. Third Party Information. I
recognize that the Company has received and in the future
will receive from third parties their confidential or proprietary information
subject to a duty on the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. I agree to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out my work for the Company consistent with the Company's
agreement with such third party.
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3.
Inventions.
A. Inventions Retained and Licensed.
I have attached hereto, as Exhibit A, a list
describing
all inventions, original works of authorship, developments, improvements, and
trade secrets which were made by me prior to my employment with the Company
(collectively referred to as "Prior Inventions"), which
belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or service a Prior Invention owned by me or in
which I have an interest, I hereby grant to the Company a nonexclusive,
royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or service, and to practice any method related
thereto.
B. Assignment of Inventions. I
agree that I will promptly make full written disclosure
to the Company, will hold in trust for the sole right and benefit of the
Company, and hereby assign to the Company, or its designee, all my right, title,
and interest in and to any and all inventions, original works of authorship,
developments, concepts, improvements, designs, discoveries, ideas, trademarks or
trade secrets, whether or not patentable or registrable under copyright or
similar laws, which I may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived or developed or reduced to practice, during
the period of time I am in the employ of the Company (collectively referred to
as "Inventions"), except
as provided in Section 3.F
below. I further acknowledge that all original works of authorship which
are made by me (solely or jointly with others) within the scope of and during
the period of my employment with the Company and which are protectible by
copyright are "works made for hire," as that term is defined in the United
States Copyright Act. I understand and agree that the decision whether or not to
commercialize or market any invention developed by me solely or jointly with
others is within the Company's sole discretion and for the Company's sole
benefit and that no royalty will be due to me as a result of the Company's
efforts to commercialize or market any such invention.
C. Inventions Assigned to the United
States. I agree to assign to the United States government
all my right, title, and interest in and to any and all Inventions whenever such
full title is required to be in the United States by a contract between the
Company and the United States or any of its agencies.
D. Maintenance of Records. I
agree to keep and maintain adequate and current written
records of all Inventions made by me (solely or jointly with others) during the
term of my employment with the Company. The records will be in the form of
notes, sketches, drawings, and any other
format that may be specified by the Company. The records will be available to
and remain the sole property of the Company at all times.
16
E. Patent and Copyright Registrations.
I agree to assist the Company, or its designee,
at the Company's expense, in every proper way to secure the Company's rights in
the Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns, and nominees the sole and exclusive
rights, title and interest in and to such Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto. I further agree that my obligation to execute or cause to be executed,
when it is in my power to do so, any such instrument or papers shall continue
after the termination of this Agreement. If the Company is unable because
of my
mental or physical incapacity or for any other reason to secure my signature to
apply for or to pursue any application for any United States or foreign patents
or copyright registrations covering Inventions or original works of authorship
assigned to the Company as above, then I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, to act for and in my behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
F. Exception to Assignments. I
understand that the provisions of this Agreement requiring
assignment of Inventions to the Company do not apply to any invention which
qualifies fully under the provisions of California Labor Code Section 2870
(attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Exhibit
A.
4. Conflicting
Employment.
I agree
that, during the term of my employment with the Company, I will not engage in
any other employment, occupation or consulting directly related to the business
in which the Company is now involved or becomes involved during the term of my
employment, nor will I engage in any other activities that conflict with my
obligations to the Company.
5. Returning Company Documents.
I agree that, at the time of leaving the employ of the Company,
I will deliver to the Company (and will not keep in my possession, recreate or
deliver to anyone else) any and all devices, records, data, notes, reports,
proposals, lists, correspondence, specifications, drawings blueprints, sketches,
materials, equipment, other documents or property, or reproductions of any
aforementioned items developed by me pursuant to my employment with the Company
or otherwise belonging to the Company, its successors or assigns, including,
without limitation, those records maintained pursuant to paragraph 3.D. In the event of
the termination of my employment, I agree to sign and deliver the "Termination
Certification" attached hereto as Exhibit
C.
17
6. Notification of New Employer.
In the event that I leave the employ of the Company, I hereby
grant consent to notification by the Company to my new employer about my rights
and obligations under this Agreement.
7. Solicitation of Employees. I
agree that for a period of twelve (12) months immediately following
the termination of my relationship with the Company for any reason, whether with
or without cause, I shall not either directly or indirectly solicit, induce,
recruit or encourage any of the Company's employees to leave their employment,
or take away such employees, or attempt to solicit, induce, recruit, encourage
or take away employees of the Company, either for myself or for any other person
or entity.
8. Conflict of Interest Guidelines.
I agree to diligently adhere to the Conflict of Interest Guidelines
attached as Exhibit
D hereto.
9. Representations. I agree to
execute any proper oath or verify any proper document required
to carry out the terms of this Agreement. I represent that my performance of all
the terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by me in confidence or in trust prior to my
employment by the Company. I hereby represent and warrant that I have not
entered into, and I will not enter into, any oral or written agreement in
conflict herewith.
10. Arbitration
and Equitable Relief.
A. Arbitration. IN CONSIDERATION
OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL
EMPLOYMENT-RELATED DISPUTES AND MY RECEIPT OF THE COMPENSATION, PAY RAISES AND
OTHER BENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE
THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE
COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER OR BENEFIT PLAN OF THE
COMPANY IN THEIR CAPACITY AS SUCH OR OTHERWISE) ARISING OUT OF, RELATING TO, OR
RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY
EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE
SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1280 THROUGH 1294.2, INCLUDING
SECTION 1283.05 (THE "RULES") AND PURSUANT TO CALIFORNIA LAW. DISPUTES WHICH I
AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY,
INCLUDE ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, INCLUDING, BUT NOT
LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE
AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE
FAMILY AND MEDICAL LEAVE ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA
LABOR CODE, CLAIMS OF HARASSMENT, DISCRIMINATION OR WRONGFUL TERMINATION AND ANY
STATUTORY CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE
ALSO APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.
18
B. Procedure. I AGREE THAT ANY
ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") AND THAT THE NEUTRAL
ARBITRATOR WILL BE SELECTED IN A MANNER CONSISTENT WITH ITS NATIONAL RULES FOR
THE RESOLUTION OF EMPLOYMENT DISPUTES. I AGREE THAT THE ARBITRATOR SHALL HAVE
THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION,
INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION AND MOTIONS TO
DISMISS AND DEMURRERS, PRIOR TO ANY ARBITRATION HEARING. I ALSO AGREE THAT THE
ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES, INCLUDING ATTORNEYS' FEES
AND COSTS, AVAILABLE UNDER APPLICABLE LAW. I UNDERSTAND THAT THE COMPANY WILL
PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR AAA
EXCEPT THAT I SHALL PAY THE FIRST $125.00 OF ANY FILING FEES ASSOCIATED WITH ANY
ARBITRATION I INITIATE. I AGREE THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT
ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES AND THAT TO THE EXTENT
THAT THE AAA'S NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES CONFLICT
WITH THE RULES, THE RULES SHALL TAKE PRECEDENCE. I AGREE THAT THE DECISION OF
THE ARBITRATOR SHALL BE IN WRITING.
C. Remedy. EXCEPT AS PROVIDED BY
THE RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL
REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT AS
PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE
PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO
ARBITRATION. NOTWITHSTANDING, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO
DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL COMPANY POLICY, AND THE ARBITRATOR
SHALL NOT ORDER OR REQUIRE THE COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED
BY LAW WHICH THE COMPANY HAS NOT ADOPTED.
D. Availability of Injunctive Relief.
BOTH PARTIES AGREE THAT ANY PARTY MAY PETITION A COURT FOR INJUNCTIVE
RELIEF AS PERMITTED BY THE RULES INCLUDING, BUT NOT LIMITED TO, WHERE EITHER
PARTY ALLEGES OR CLAIMS A VIOLATION OF THE AT-WILL EMPLOYMENT, CONFIDENTIAL
INFORMATION, INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT BETWEEN ME AND THE
COMPANY OR ANY OTHER AGREEMENT REGARDING TRADE SECRETS, CONFIDENTIAL
INFORMATION, NONSOLICITATION OR LABOR CODE §2870. BOTH PARTIES UNDERSTAND THAT
ANY BREACH OR THREATENED BREACH OF SUCH AN AGREEMENT WILL CAUSE IRREPARABLE
INJURY AND THAT MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY THEREFOR AND
BOTH PARTIES HEREBY CONSENT TO THE ISSUANCE OF AN INJUNCTION. IN THE EVENT
EITHER
PARTY SEEKS INJUNCTIVE RELIEF, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER
REASONABLE COSTS AND ATTORNEYS' FEES.
19
E. Administrative Relief .
I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING AN
ADMINISTRATIVE CLAIM WITH A LOCAL, STATE OR FEDERAL ADMINISTRATIVE BODY SUCH AS
THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION OR THE WORKERS' COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER,
PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM.
F. Voluntary Nature of Agreement.
I ACKNOWLEDGE AND AGREE THAT I AM
EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE
BY THE COMPANY OR ANYONE ELSE. I FURTHER ACKNOWLEDGE AND AGREE THAT I HAVE
CAREFULLY READ THIS AGREEMENT AND THAT I HAVE ASKED ANY QUESTIONS NEEDED FOR ME
TO UNDERSTAND THE TERMS, CONSEQUENCES AND BINDING EFFECT OF THIS AGREEMENT AND
FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY
RIGHT TO A JURY TRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN
OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF MY CHOICE BEFORE SIGNING THIS
AGREEMENT.
11. General
Provisions.
A. Governing Law; Consent to Personal
Jurisdiction. This Agreement will be governed
by the laws of the State of California. I hereby expressly consent to the
personal jurisdiction of the state and federal courts located in California for
any lawsuit filed there against me by the Company arising from or relating to
this Agreement.
B. Entire Agreement. This
Agreement sets forth the entire agreement and understanding
between the Company and me relating to the subject matter herein and supersedes
all prior discussions or representations between us including, but not limited
to, any representations made during my interview(s) or relocation negotiations,
whether written or oral. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing signed by the President of the Company and me. Any subsequent change or
changes in my duties, salary or compensation will not affect the validity or
scope of this Agreement.
C. Severability. If one or more
of the provisions in this Agreement are deemed void by
law, then the remaining provisions will continue in full force and
effect.
D. Successors and Assigns. This
Agreement will be binding upon my heirs, executors,
administrators and other legal representatives and will be for the benefit of
the Company, its successors, and its assigns.
(signature
page follows)
20
|
Date:
11/1/07
|
/s/
Xxxxxxx Londoner
|
|
|
Signature
|
||
|
Xxxxxxx
Londoner
|
||
|
Name
of Employee (typed or printed)
|
Witness:
/s/ Xxxxxxx
Xxxxxxx
Signature
Xxxxxxx
Xxxxxxx
Name
(typed or printed)
21
Exhibit
A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
|
Title
|
Date
|
Identifying
Number or Brief Description
|
_X_ No inventions or
improvements
___
Additional Sheets Attached
Signature
of Employee: /s/ Xxxxxxx
Londoner
Print
Name of Employee: Xxxxxxx Londoner
Date:
11/1/07
22
Exhibit
B
CALIFORNIA
LABOR CODE SECTION 2870
INVENTION
ON OWN TIME-EXEMPTION FROM AGREEMENT
"(a) Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate at
the time of conception or reduction to practice of the invention to the
employer's
business, or actual or demonstrably anticipated research or development of the
employer; or
(2) Result
from any work performed by the employee for the employer.
(b)To the
extent a provision in an employment agreement purports to require an
employee
to assign an invention otherwise excluded from being required to be assigned
under subdivision (a), the provision is against the public policy of this state
and is unenforceable."
23
Exhibit
C
TERMINATION
CERTIFICATION
This is
to certify that I do not have in my possession, nor have I failed to return, any
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items belonging to
NewCardio, Inc., its subsidiaries, affiliates, successors or assigns (together,
the "Company").
I further
certify that I have complied with all the terms of the Company's At Will
Employment, Confidential Information, Invention Assignment and Arbitration
Agreement signed by me, including the reporting of any inventions and original
works of authorship (as defined therein), conceived or made by me (solely or
jointly with others) covered by that agreement.
I further
agree that, in compliance with the At Will Employment, Confidential Information,
Invention Assignment, and Arbitration Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know- how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further
agree that for twelve (12) months from this date, I will not solicit, induce,
recruit or encourage an o the Company's employees to leave their
employment.
Date:
11/1/07
|
/s/
Xxxxxxx Londoner
|
|
|
(Employee's
Signature
|
|
|
Xxxxxxx
Londoner
|
|
|
(Type/Print
Employee's Name)
|
24
Exhibit
D
CONFLICT
OF INTEREST GUIDELINES
It is the
policy of NewCardio, Inc. to conduct its affairs in strict compliance with the
letter and spirit of the law and to adhere to the highest principles of business
ethics. Accordingly, all officers, employees and independent contractors must
avoid activities which are in conflict, or give the appearance of being in
conflict, with these principles and with the interests of the Company. The
following are potentially compromising situations which must be avoided. Any
exceptions must be reported to the President and written approval for
continuation must be obtained.
1. Revealing
confidential information to outsiders or misusing confidential information.
Unauthorized
divulging of information is a violation of this policy whether or not for
personal gain and whether or not harm to the Company is intended. (The At Will
Employment, Confidential Information, Invention Assignment and Arbitration
Agreement elaborates on this principle and is a binding agreement.)
2. Accepting
or offering substantial gifts, excessive entertainment, favors or payments
which may
be deemed to constitute undue influence or otherwise be improper or embarrassing
to the Company.
3. Participating
in civic or professional organizations that might involve divulging confidential
information of the Company.
4. Initiating
or appfoving personnel actions affecting reward or punishment of employees
or applicants where there is a family relationship or is or appears to be a
personal or social involvement.
5. Initiating
or approving any form of personal or social harassment of
employees.
6. Investing
or holding outside directorship in suppliers, customers, or competing
companies,
including financial speculations, where such investment or directorship might
influence in any manner a decision or course of action of the
Company.
7. Borrowing
from or lending to employees, customers or suppliers.
8. Acquiring
real estate of interest to the Company.
9. Improperly
using or disclosing to the Company any proprietary information or trade
secrets
of any former or concurrent employer or other person or entity with whom
obligations of confidentiality exist.
10. Unlawfully
discussing prices, costs, customers, sales or markets with competing
companies
or their employees.
25
11.
Making any unlawful agreement with distributors with respect to
prices.
12. Improperly
using or authorizing the use of any inventions which are the subject of
patent
claims of any other person or entity.
13. Engaging
in any conduct which is not in the best interest of the Company.
Each
officer, employee and independent contractor must take every necessary action to
ensure compliance with these guidelines and to bring problem areas to the
attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
26
