OXBORO MEDICAL INTERNATIONAL, INC.
TEMPORARY SERVICES AGREEMENT
This Agreement is made and entered into as of the 8th day of September,
1998 by and between OXBORO MEDICAL INTERNATIONAL, INC., a Minnesota corporation,
("OXBORO") and CRITICAL CARE ANESTHETISTS, P.A. ("CRITICAL CARE") and
XXXXXXXXXXX X. XXXXXXXX ("XXXXXXXX").
WHEREAS, OXBORO is engaged in the business of developing, manufacturing,
marketing and selling disposable medical devices and supplies;
WHEREAS, OXBORO OUTDOORS, INC. ("OUTDOORS"), a wholly owned subsidiary of
OXBORO, is engaged in the business of developing manufacturing, marketing and
selling outdoor recreational products consisting primarily of hunting and
fishing related products;
WHEREAS, CRITICAL CARE has agreed to provide OXBORO with XXXXXXXX'x
services as a temporary President to perform such duties as may from time to
time be directed by the Board of Directors of OXBORO;
WHEREAS, OXBORO and CRITICAL CARE wish to describe certain terms and
conditions of that agreement, intending to be legally bound by them;
WHEREAS, CRITICAL CARE and XXXXXXXX have entered into this Agreement in
consideration of OXBORO's offer of temporary employment, and of being given
access to confidential business information, and;
WHEREAS, certain terms of this Agreement are designed, in large part, to
prevent XXXXXXXX'x or CRITICAL CARE's disclosure or use of such confidential
business information to or on behalf of anyone else other than OXBORO and
OUTDOORS and to protect OXBORO's and OUTDOORS' ability to maintain its exclusive
method of operation and good will without unduly impairing XXXXXXXX'x right to
work elsewhere.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants, terms and
conditions herein contained, it is hereby agreed by and between the parties
hereto as follows:
1. DEFINITIONS. The parties agree to the following definitions:
a. "Products" means any product, product line or device (including
any component thereof or research to develop information useful
in connection with OXBORO's and OUTDOORS' products or service)
that are being designed, developed, manufactured, assembled,
marketed, sold, or serviced by XXXXXXXX or under XXXXXXXX'x
supervision, during the course of XXXXXXXX'x employment with
OXBORO.
b. "Competitive Products" means any products or services that are
being designed, developed, manufactured, assembled, marketed,
sold or serviced by anyone other than OXBORO and/or OUTDOORS and
are used for the same or similar purposes as the Products.
c. "Solicit sales" means to encourage the purchase or use of
products or services or to provide advice or assistance in
connection with such purchase or use.
d. "OXBORO" means OXBORO MEDICAL INTERNATIONAL, INC. and all of its
subsidiaries, affiliate corporations or operating divisions.
e. "OUTDOORS" means OXBORO OUTDOORS, INC, a wholly owned subsidiary
of OXBORO, and all of its subsidiaries, affiliate corporations or
operating divisions.
f. "CRITICAL CARE" means Critical Care Anesthetists, P.A., a
profession association, located at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000.
g. "Confidential Information" means any information or compilation
of information having to do with OXBORO and OUTDOORS that
CRITICAL CARE or XXXXXXXX learn of or develop during the course
of XXXXXXXX'x employment with OXBORO that derives independent
economic value from not being generally known, or readily
ascertainable by proper means, by other persons who can obtain
economic value from its disclosure or use. Confidential
Information includes, but is not limited to, trade secrets and
such matters as sales and marketing plans and information,
research and development of products and services, manufacturing
processes, customer names, contacts and lists, supplier lists,
products and pricing, and management systems and techniques.
2. CONSIDERATION. The consideration being provided by OXBORO to CRITICAL
CARE for these undertakings includes anything of value provided in connection
with the signing of the Agreement, including but not limited to, the offer of
temporary engagement of XXXXXXXX as President of Oxboro, the compensation paid
and to be paid for such temporary engagement, access to confidential
information, or the obligations of OXBORO described in this Agreement.
3. COMPENSATION. Compensation for the engagement period will be a base
fee of $8,000 per month paid on receipt at the end of each month. This fee
covers at least three (3) full-time days each week. XXXXXXXX will continue to
provide medical practice services through and for CRITICAL CARE the remaining
two (2) workdays each week and will, to the extent possible, provide partial
days of service for Oxboro on such days. No benefits, such as medical, dental,
life or disability insurance, vacation pay or sick leave pay will be provided
during the employment period.
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CRITICAL CARE will receive an option to purchase 1,000 shares of stock for
each month of temporary engagement XXXXXXXX provides OXBORO. Regardless of the
number of months of this Agreement, a minimum of 5,000 shares are available to
exercise. This option may be assigned by CRITICAL CARE to XXXXXXXX and may not
otherwise be assigned. This option is exercisable from the date the option is
granted and expires three (3) years thereafter at an exercise price of $1.50 per
share.
CRITICAL CARE and XXXXXXXX will also be reimbursed for reasonable business
expenses that they may incur in fulfilling their obligations under this
Agreement subject to review and approval by the Chief Financial Officer and/or
the Board of Directors. Reasonable business expense will include necessary
travel and automobile and telephone expenses.
4. ENGAGEMENT. OXBORO agrees to contract with CRITICAL CARE for
XXXXXXXX'x services as the President pursuant to the terms and conditions of
this Agreement. CRITICAL CARE agrees to provide XXXXXXXX to be engaged by
OXBORO pursuant to the terms and conditions of this Agreement and XXXXXXXX
agrees to faithfully and diligently exert his best efforts to perform the duties
and responsibilities as President, promote the interest and welfare of OXBORO
and its business, be familiar with and abide by OXBORO policies that relate to
XXXXXXXX'x duties and to abide by these policies, and do nothing which may cause
loss or damage to OXBORO, OUTDOORS, its business, or its business reputation and
good will. CRITICAL CARE and XXXXXXXX further agree to comply with all
reasonable rules, regulations, orders and directions of OXBORO and to abide by
all federal, state and local statutes, ordinances, rules and regulations.
5. CONFIDENTIAL INFORMATION AND CONFIDENTIALITY AGREEMENT. CRITICAL CARE
and XXXXXXXX acknowledge that XXXXXXXX shall have access to and be furnished
certain materials and property essential to the performance of XXXXXXXX'x and
CRITICAL CARE's duties, including but not limited to products and pricing, sales
analysis reports, sales aids, brochures, financial statements, customer names
and contacts, vendor names and other related materials and properties, some of
which is defined and deemed to be Confidential Information and all of which are
herein agreed to be the property of OXBORO. Upon termination of this Agreement,
all materials and properties, including all copies thereof, shall be immediately
returned to OXBORO.
It is understood and agreed by and between the parties hereto that the
nature of the engagement is such that CRITICAL CARE and XXXXXXXX will acquire
Confidential Information about OXBORO. CRITICAL CARE and XXXXXXXX agree not to
use or disclose such Confidential Information directly or indirectly, for any
purpose whatsoever other than in the performance of XXXXXXXX'x and CRITICAL
CARE's duties and responsibilities in XXXXXXXX'x engagement with, and on behalf
of, OXBORO during the term of this Agreement or at any time after the
termination thereof. It is further understood that disclosure of such
Confidential Information would result in irreparable harm to OXBORO for which it
may have no other adequate remedy at law by way of damages or otherwise.
Further, the engaging by XXXXXXXX or CRITICAL CARE in the same or similar
businesses in competition with OXBORO during the term of this Agreement or
within a one year period after termination
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thereof, as provided in greater detail by Section 8 of this Agreement, by virtue
of the knowledge, information and experience required by CRITICAL CARE or
XXXXXXXX during this Agreement will result in irreparable harm to OXBORO for
which it may have no adequate remedy at law by way of damages or otherwise.
Because of the foregoing, it is hereby agreed that a breach by XXXXXXXX or
CRITICAL CARE of any of the covenants contained in this Agreement shall entitle
OXBORO to:
a. Seek and obtain an injunction against CRITICAL CARE and/or XXXXXXXX;
b. Recover from CRITICAL CARE and/or XXXXXXXX reasonable attorney's fees
and cost incidental to the enforcement of the Agreement; and
c. Pursue damages and any other remedy or relief to which OXBORO may be
entitled to recover from CRITICAL CARE and/or XXXXXXXX under this
Agreement and/or under law.
6. TERM AND NOTICE OF TERMINATION. This Agreement shall continue on a
month to month basis. OXBORO and CRITICAL CARE may terminate the Agreement with
or without reason or cause, provided that:
This Agreement may be terminated by either party without cause, for any
reason or for no reason, at any time upon thirty (30) days written notice to the
other party. OXBORO may terminate this Agreement immediately for Cause without
prior notice to CRITICAL CARE. "Cause" shall mean the following:
(i) Conviction or judicial determination of a violation of a
standard of conduct of an officer as set forth in MSA Section 302A.361 or
of a conviction of a violation of securities laws or regulations, which
violations have a material adverse effect on OXBORO, or a conviction of a
felony for an act or failure to act outside of the scope of XXXXXXXX'x
duties and/or for an act or failure to act within the scope of XXXXXXXX'x
duties which act or failure to act has not been disclosed to the Board of
Directors of OXBORO as of the date of this Agreement;
(ii) Failure or refusal by XXXXXXXX to perform a material requirement
of a specific duty or duties which specific duty or duties have been
determined by a unanimous resolution of the Board of Directors, after
receipt by CRITICAL CARE or XXXXXXXX of written notice thereof specifying
in detail the failure or refusal, and a reasonable time in which to
perform;
(iii) XXXXXXXX'x (a) death or (b) disability (by reason of physical or
mental disease, defect, accident or illness) such that XXXXXXXX is or, in
the unanimous opinion of two independent physicians, one selected by OXBORO
and one by CRITICAL CARE or their representative, for purposes of making
this determination, will be unable for an aggregate of 30 or more days
during any continuous 2-month period to render the services required of him
in his then current position(s) with OXBORO.
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With respect to subparagraph (ii) above, OXBORO shall give CRITICAL CARE
written notice of such failure, refusal or breach, and CRITICAL CARE shall have
thirty (30) days to cure such failure, refusal or breach. If such failure,
refusal or breach is not cured within said thirty (30) day period, "Cause" shall
be deemed to exist.
7. NOTICE. Whenever written notice is required hereunder, it may be
given by certified mail to respective parties or by personal service on the
respective parties at the following addresses:
Employer: OXBORO MEDICAL INTERNATIONAL, INC.
00000 Xxxxxxx Xxxxxx X.X.
Xxx Xxxx, XX 00000
Critical Care: CRITICAL CARE ANESTHETISTS, P.A.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Notice shall be effective as of the date of receipt.
8. POST TERMINATION RESTRICTIONS. Recognizing that an important element
of business success is the information, training and exclusive method of
cooperation entrusted to its employees, it is agreed that during the period of
this Agreement and for a period of one year thereafter, CRITICAL CARE and
XXXXXXXX shall not directly or indirectly, under any circumstances whatsoever,
for itself or himself, or for or with any person, firm, corporation or party,
either in the capacity of an individual, partner, shareholder, director,
officer, employee, agent, trustee, consultant, investor, professional
association or in any other capacity, engage in, participate in, or assist in
the conduct of any business like that of OXBORO or in the distribution of
Competitive Products, nor solicit sales or attempt to take away customers of
OXBORO.
9. EFFECTIVE BREACHES OF OTHER OBLIGATIONS. The obligation of the
parties to perform the terms of this Agreement is unconditional and does not
depend on the performance or nonperformance of any terms, duties or obligations
not specifically recited in this Agreement. The waiver of or acquiescence to
the terms and conditions of this Agreement by OXBORO or CRITICAL CARE or
XXXXXXXX shall not be a waiver of or acquiescence to additional or subsequent
defaults.
10. GOVERNING LAW. The validity and enforceability, construction and
interpretation of this Agreement shall be governed by the laws of Minnesota.
11. SEVERABILITY. In the event that any provision of this Agreement is
unenforceable under applicable law, that finding shall not effect the validity
or enforceability of the remaining provisions. To the extent that any provision
of this Agreement is unenforceable because it is overbroad, such provision shall
be amended to the extent required by applicable law and enforced as so amended.
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12. TRANSFERABILITY. The right and obligations of OXBORO hereunder may be
transferred to its successors and assigns. CRITICAL CARE or XXXXXXXX may not,
however, transfer or assign their rights or obligations under this Agreement.
13. WRITING. This Agreement supersedes all prior Agreements and
understandings between the parties and may not be changed or terminated orally,
and no change, termination or attempted waiver of any of the provisions hereof
shall be binding unless in writing and signed by the party against whom the same
is sought to be enforced.
IN WITNESS WHEREOF, OXBORO has caused this Agreement to be executed in its
corporate name of the corporation, and CRITICAL CARE has hereunto executed this
Agreement by an authorized officer, and XXXXXXXX has executed this Agreement the
day and year first above written.
CRITICAL CARE ANESTHETIST, P.A. OXBORO MEDICAL INTERNATIONAL, INC.
By /s/ Xxxxxxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
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Its: President Its:Director
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/s/ Xxxxxxxxxxx X. Xxxxxxxx
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XXXXXXXX
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