Exhibit 10.27
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 19th day of
September, 1994 by and between UroMed Corporation, a Massachusetts
corporation with a principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("UroMed") and Xxxx X. Xxxxxx an individual
residing at 0 Xxxxx Xxxx Xxxx, Xxxxx, XX 00000 ("Employee").
1. AT WILL EMPLOYMENT. Commencing on October 10, 1994, Employee shall
become a full time "at-will-employee" of UroMed with the title of Director of
Manufacturing. In addition to complying with the terms and conditions hereof
and the performance of the Employee job responsibilities set forth on Exhibit
A annexed hereto and made a part hereof, Employee shall conduct him or
herself in accordance with such policies, rules and regulations as may be
adopted by UroMed from time to time.
2. COMPENSATION. Employee's gross semi-monthly compensation shall be
$3,541.67. Employee shall be paid on the 15th day and the last day of each
calendar month for the current month's employment. Pay shall be adjusted pro
rata for any partial week of employment and standard employer deductions
shall be made from each payment. Employee's gross semi-monthly compensation
shall be subjected to annual review and adjustment.
3. BONUSES, EQUITY PARTICIPATION, AND BENEFITS. Employee shall be
eligible for (i) annual bonuses under such applicable bonus program(s) as
UroMed's Board of Directors may adopt from time to time, if any; (ii)
participation in such applicable employee stock option plans as may be
adopted by UroMed's Board of Directors from time to time, if any, (provided
that Employee shall exercise his/her shareholder voting rights by executing
and delivering a proxy entitling Xxxx Xxxxx to vote such shares); and (iii)
participation in such applicable employee benefit plans as UroMed's Board of
Directors may adopt from time to time, if any. Employee will be eligible for
20,000 shares (options) with 40% vested after two years of service; the
balance monthly.
4. TERM. As an at-will employee, Employee understands that this Agreement
and the employment hereunder may be terminated by either party hereto at any
time with or without cause. If not terminated, this Agreement shall govern
the terms of Employee's employment for a period of five (5) years at which
time the parties may enter into a written renewal hereof. Said five (5) year
limitation shall not affect the covenants herein that are intended to survive
the Employee's employment hereunder. Annual salary adjustments pursuant to
Section 2 above shall not affect the other terms and conditions hereof, nor
shall it necessitate any written modifications hereof.
5. ASSIGNMENT OF RIGHTS TO PROPRIETARY INFORMATION AND INVENTIONS.
Employee recognizes that UroMed possesses or will possess information which
has commercial value in UroMed's business ("Proprietary Information")
including without limitation, information created, discovered or developed
directly or indirectly by Employee in connection with Employee's services
hereunder or made known to Employee during his or her employment. Employee
acknowledges that such Proprietary Information shall include, without
limitation, inventions, product improvements, financial, technical or sales
strategies, forecasts, product ideas, formulas, processes, copyrightable
and/or patentable materials and/or concepts, schematics, techniques,
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market research and /or customer lists which Employee may create or be
exposed to from time to time. Employee expressly agrees that all Proprietary
Information and rights thereto shall be and remain the sole and exclusive
property of UroMed, and Employee hereby without further consideration,
unconditionally, exclusively and irrevocably assigns to UroMed, royalty free,
all of his or her right, title and interest in such Proprietary Information.
Notwithstanding the foregoing, Employee shall execute and deliver such
confirmatory instruments of this assignment as UroMed may request including,
without limitation, applications for patent and/or copyright registration.
Employee agrees that the foregoing assignments are a material term of
employment by UroMed and that his or her compensation includes sufficient
consideration therefor. Upon the termination or expiration of Employee's
employment with UroMed. Employee shall immediately deliver to the President
of UroMed all files, notes, lists, rolodex cards, credit cards, computer
disks, recordings, print-outs, and drawings (including, without limitation,
any materials reflecting or containing Proprietary Information) which are
under the control or in the possession of Employee and relate to the
operation and business of UroMed. Employee shall not be entitled to retain
any duplicates of the foregoing, and acknowledges that failure to comply with
these requirements will constitute criminal theft.
6. CONFIDENTIALITY. At all time during the operative term of this
Agreement and thereafter (including periods after the termination or
expiration of Employee's employment with UroMed) Employee shall keep in
strictest confidence and trust all Proprietary Information and will not use,
discuss or disclose any Proprietary Information without the prior written
consent of UroMed except when done in the course of employment, exclusively
with other UroMed employees. Further excepted from the foregoing shall be
Proprietary Information that (i) can be clearly demonstrated to have been in
the public domain prior to the date hereof or which comes into the public
domain during the operation hereof through no fault of Employee; and (ii) can
be demonstrated to have been developed independently by Employee prior to any
involvement with UroMed. Employee agrees that his or her compensation
hereunder includes sufficient consideration for the foregoing covenants.
7. NON-COMPETITION.
A. Employee agrees that throughout his or her employment with UroMed and
for a period of three (3) years after the expiration or termination of such
employment, Employee will not directly (as owner, partner, principal in any
entity or otherwise) or indirectly (as an employee, agent, contractor,
advisor, beneficiary or otherwise) encase in, or participate in any entity
that engages in any activity involving the development, manufacturing or
marketing of any product or service which might (i) compete with a UroMed
product, product concept, service or service concept; or (ii) utilize any
proprietary technology being developed by UroMed unless approved in writing
by UroMed. Employee acknowledges that UroMed's business is global in nature
and therefore agrees that the foregoing restrictions apply world-wide.
B. For a period of three (3) years after the expiration or termination of
Employee's employment with UroMed, Employee shall provide UroMed with written
notice (i); of any change of Employee's residential address; and (ii) stating
the name, address and nature of each subsequent employment activity. Any such
notice of subsequent employment or business activity shall include Employee's
certification that such employment or activity does not violate the
provisions of this Agreement.
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C. For a period of three (3) years after the expiration or termination of
Employee's employment with UroMed, Employee agrees not to seek to persuade
any UroMed employee. consultant, director, officer or advisory board member
to discontinue association with UroMed or become involved directly or
indirectly in any endeavor that might compete with UroMed's business.
D. Employee represents and warrants for UroMed's reliance that the
foregoing covenants in Paragraphs A-C shall not unduly impair Employee's
ability to obtain gainful employment in Employee's field subsequent to
Employee's employment by UroMed. Employee further agrees that his or her
compensation hereunder includes sufficient consideration for the restrictions
imposed by the foregoing covenants.
8. INVENTIONS AFTER EMPLOYMENT. Employee agrees that he or she shall
notify in writing of any technology, invention, discovery, concept, and/or
idea whether patentable, copyrightable or neither developed by Employee
within three (3) years after the expiration or termination of his or her
employment by UroMed which relates to UroMed's fields of interest or business
operations ("Inventions"). UroMed is hereby irrevocably granted the option to
take an unconditional, exclusive, irrevocable, royalty-free assignment of
such Invention(s) upon written notice mailed to Employee within thirty (30)
days after UroMed's receipt of Employee's initial notice. If UroMed duly
exercises such option, Employee shall execute and deliver such instruments of
assignment therefor as UroMed may deem necessary or advisable including,
without limitations, applications for patent and/or copyright registration.
Although Employee agrees that the compensation provided herein shall be
sufficient consideration for the foregoing covenants to assign,
Employee and UroMed agree that in consideration for Employee's execution of
assignment instruments subsequent to employment by UroMed, Employee shall be
paid $1,000.00 upon delivery to UroMed thereof.
9. EMPLOYEE REPRESENTATIONS. Employee represents and warrants for
UroMed's reliance that (i) this Agreement does not conflict with any other
agreement, promise and/or commitment undertaken by Employee which could
prohibit or impair the performance of Employee's obligations hereunder; (ii)
Employee has not and shall not disclose to UroMed, its officers, directors,
employees or agents any proprietary information of another individual or
company prohibiting such disclosure-, (iii) Employee's compliance with the
confidentiality, non-competition and other provisions of this Agreement will
not materially impair Employee's ability to earn a living outside of UroMed's
employment in his field; and (iv) all information on Employee's education,
past work experience and other qualifications presented to UroMed are
accurate, complete and not misleading.
10. MISCELLANEOUS.
A. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
B. Employee hereby consents to submit to the jurisdiction of the courts
in the place where UroMed's principal place of business is located at the
time any action is brought and agrees to accept service of process by
registered mail or the equivalent delivered to his or her last known address.
C. Employee agrees that any breach of Section 3, 5, 6, 7, or 8 will
result in irreparable damage to Employer and therefore consents that in
addition to recovery
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of provable damages and attorney's fees UroMed will be entitled to enjoin any
such breach in any competent court.
D. If any provision in this Agreement is found unenforceable, it shall
not affect any other provisions hereof. If any provisions in this Agreement
is determined to be excessively broad or overreaching, it shall be construed
by limiting it so as to be enforceable to the extent compatible with
applicable law.
E. This Agreement shall bind and inure to the benefit of UroMed and any
successor of UroMed by reorganization, merger, consolidation, liquidation,
sale or other assignee of UroMed's business or assets but shall otherwise be
and remain unenforceable.
F. The waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach.
G. Employee acknowledges that this Agreement constitutes the complete
agreement between the parties and all offer letters, negotiations and other
agreements are subsumed and extinguished hereby. Except for salary adjustment
and UroMed's promulgation of employee rules and regulations from time to
time, no modification or amendment hereof shall be valid or enforceable
unless it is in writing and executed and delivered by the parties.
H. Employee agrees to indemnify and hold UroMed's officers, directors,
shareholders, agents and employees personally harmless from and against any
and all suits or causes of action Employee may ever have against UroMed.
I. Any cause of action or matter in dispute hereunder or otherwise
relating to Employee's relationship with UroMed, whether or not arising
during there term of this Agreement, is hereby waived unless judicial
proceedings are initiated by the complaining party within one (1) year from
the later of the accrual of the cause of action or the date on which the
cause of action should reasonably have been discovered. EACH PARTY EXPRESSLY
WAIVES ANY AND ALL RIGHTS THAT HE OR IT MAY HAVE TO HAVE ANY DISPUTE (WHETHER
OR NOT ARISING DURING THE TERM OF THIS AGREEMENT) HEREUNDER OR OTHERWISE
RELATING TO EMPLOYEE'S RELATIONSHIP WITH UROMED TRIED BEFORE OR DETERMINED BY
A JURY.
J. In the event of any suit relating to this Agreement or Employee's
employment hereunder as to which the Employee is the losing party, the
Employee shall pay all costs (including court costs and attorneys' fees)
incurred by the UroMed and its employees, directors, and shareholders with
respect to such suit. If the suit is settled or otherwise determined for a
fixed dollar payment and the suit involves a fixed dollar amount of damages
sought, then the Employee shall be deemed to be the losing party if the
amount paid in settlement or otherwise is 50% or less of the amount sought.
If the Employee does recover fifty percent (50%) or more of the amount sought
or no specific dollar amount is sought, the determination of who prevailed
shall be made, in the absence of agreement, by applicable court proceedings.
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IN WITNESS WHEREOF the parties hereto have affixed their hands and seals
upon three (3) counterpart originals hereof as of the date and year first
written above.
EMPLOYEE UROMED CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxxx its President, hereunto
duly authorized, acting
in such capacity, and not
individually
