Exhibit 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated as of _______ __, 2006, effective
as of the Commencement Date (as defined below), is entered into between IVIVI
TECHNOLOGIES, INC., a New Jersey corporation, having a place of business at
000-X Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Employer"), and XXXXXX
XXXXXX, an individual residing at [________________________________]
("Employee").
WHEREAS, Employer desires to continue to employ Employee; and
WHEREAS, Employee is willing to accept such continued employment on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, Employer and Employee hereby agree as follows:
ARTICLE I
EMPLOYMENT; POSITION, DUTIES AND RESPONSIBILITIES
1.01 Employment. Employer agrees to, and does hereby, continue to
employ Employee, and Employee agrees to, and does hereby, accept such continued
employment, upon the terms and subject to the conditions set forth in this
Agreement. Employee represents and warrants to Employer that (a) Employee has
the legal capacity to execute and perform this Agreement, (b) this Agreement is
a valid and binding agreement enforceable against Employee according to its
terms, and (c) the execution and performance of this Agreement by Employee does
not violate the terms of any existing agreement or understanding to which
Employee is a party or by which Employee may be bound.
1.02 Position, Duties and Authority. During the Term (as defined
below), Employee shall serve as Executive Vice President of Employer and shall
have such responsibilities, duties and authority as are consistent with such
position and as may, from time to time, be reasonably assigned by Employer's
Board of Directors (the "Board"). Any substantial changes to such
responsibilities, duties and authority shall be provided to Employee in writing
or otherwise agreed to between Employer and Employee. During the Term, Employee
shall serve Employer, faithfully and to the best of Employee's ability, and
shall devote all of Employee's business time, attention, skill and efforts
exclusively to the business and affairs of Employer (including its subsidiaries
and affiliates) and the promotion of its interests. Notwithstanding the
foregoing, Employee may engage in charitable, educational, religious, civic and
similar types of activities (all of which shall be deemed to benefit Employer)
to the extent that such activities do not inhibit or prohibit the performance of
Employee's duties hereunder or inhibit or conflict with the business of
Employer, its subsidiaries and affiliates. In no event may Employee serve on
boards of directors or advisory committees without the prior written consent of
the Board, which consent shall not be unreasonably withheld.
ARTICLE II
TERM
2.01 Term of Employment. Employee's continued employment under this
Agreement shall commence on the date on which the initial public offering of
Employer's common stock (the "IPO") is consummated (the "Commencement Date")
and, subject to earlier termination pursuant to Article IV hereof, shall
continue until the five (5) year anniversary of the Commencement Date (the
"Term"); provided, however, that unless either party gives written notice to the
other at least 120 days prior to the expiration of the then-current Term that
such party elects not to renew this Agreement, the then-current Term shall be
automatically extended for additional one-year periods. The election of Employer
not to extend the then-current Term as provided in this Section 2.01 shall not
be deemed a termination by Employer under Section 4.01(D) or constitute "Good
Reason" under Section 4.01(E), and, in such event, Employee only shall be
entitled to the compensation set forth in Section 4.02(B). The election of
Employee not to extend the then-current Term, as provided in this Section 2.01
shall not be deemed a termination for Good Reason and in such event Employee
only shall be entitled to the compensation set forth in Section 4.02(A). Nothing
in this Agreement shall constitute an assurance that Employer will consummate
the IPO and Employer and Employee agree that this Agreement shall be void and of
no force and effect if the IPO is not consummated on or before October 31, 2006.
ARTICLE III
COMPENSATION AND EXPENSES
3.01 Compensation and Benefits. For all services rendered by Employee
in any capacity during the Term, including, without limitation, services as an
officer, director or member of any committee of Employer, or any subsidiary,
affiliate or division thereof, Employee shall be compensated as follows
(subject, in each case, to the provisions of Article IV below):
(A) Base Salary. During the Term, Employer shall pay to Employee a base
salary the rate of $180,000 on an annualized basis. ("Base Salary"), which Base
Salary shall be payable in accordance with Employer's customary payroll
practices in place from time to time, but no less frequently than twice per
month. Employee's Base Salary shall be subject to annual review and increases
effective as of the first day of each fiscal year (April 1 - March 31)
commencing with the fiscal year 4/1/07-3/31/08, which increases (if any) shall
be in amounts as the Board (or committee thereof) shall deem appropriate;
provided, however, that such increases shall be in an amount at least equal to
the percentage increase during the previous twelve (12) months in the Consumer
Price Index for All Urban Consumers (New York-Northern New Jersey). In the event
that such percentage increase in the above-mentioned Consumer Price Index is not
available as of the date the increased Base Salary is required to be effective,
Employee shall continue to receive his then current Base Salary until such
percentage increase is available, at which time the Base Salary shall be
increased effective April 1 of the applicable fiscal year and paid in arrears to
April 1 of the applicable fiscal year. The term "Base Salary" as used in this
Agreement shall refer to Base Salary as may be increased from time to time.
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(B) Discretionary Bonus. During the Term, Employee shall be eligible to
receive an annual cash bonus, in such amount, if any, as may be determined by
the Board (or committee thereof) in its sole discretion ("Discretionary Bonus").
The Discretionary Bonus, if any, shall be determined as of the end of each
fiscal year of employment, and payable within sixty (60) days after the last day
of each such year. To be eligible to receive any Discretionary Bonus (or any
portion thereof), Employee must be employed by Employer both at the time the
amount of the Discretionary Bonus, if any, is determined, and at the time any
such bonus is to be paid. Employee shall receive any Discretionary Bonus awarded
to Employee as of the end of a fiscal year by the Board (or committee thereof)
and not yet paid at the time this Agreement is terminated for any reason by
Employer other than for Cause (as defined below) prior the payment of the
Discretionary Bonus.
(C) Incentive Stock Option Grants. During the Term, Employee shall be
eligible to receive from time to time stock option grants in amounts, if any, to
be approved by the Board (or committee thereof) in its sole discretion. Such
stock option grants will be subject the terms and conditions established within
the Employer's 2004 Amended and Restated Stock Option Plan or any successor
stock option plan as may be in place from time to time (the "Plan") and a
separate stock option grant agreement between Employer and Employee that sets
forth, among other things, the exercise price, expiration date and vesting
schedule of such options. Upon a Change in Control (as defined below), all
outstanding and unvested options to purchase shares of Employer's common stock
granted to Employee shall be deemed fully vested and exercisable. Further, if,
during the Term, Employer shall terminate this Agreement and Employee's
employment hereunder without Cause (as defined below) and other than as a result
of Employee's death or Disability (as defined below) or Employee shall terminate
this Agreement and Employee's employment hereunder for Good Reason (as defined
below), then all outstanding and unvested options to purchase shares of
Employer's common stock granted to Employee shall be deemed fully vested and
exercisable. Employer shall use commercially reasonable efforts to register the
shares of common stock issuable upon exercise of such Options on a registration
statement on Form S-8 to be filed with the Securities and Exchange Commission
and to maintain the effectiveness of such registration during the period in
which such Options remain outstanding.
(D) Benefits. During the Term, Employee shall be entitled to
participate in all Employer's employee benefit plans and programs (excluding
severance plans, if any) as Employer generally maintains from time to time
during the Term for the benefit of its employees, in each case subject to the
eligibility requirements, enrollment criteria and other terms and provisions of
such plans or programs. Employer may amend, modify or rescind any employee
benefit plan or program and/or change employee contribution amounts to benefit
costs without notice in its discretion.
(E) Vacation Days. During the Term, Employee shall be entitled to paid
vacation days in accordance with Employer's policies with respect to such
vacation days in place from time to time; provided, however, that Employee shall
accrue or earn no less than 20 paid vacation days per calendar year. Employee
will not forfeit vacation if they are not taken by calendar year end; provided,
however, once Employee has accrued or earned the maximum number of vacation days
provided for in any one year as provided in the preceding sentence, no
additional vacation days will accrue or be earned by Employee until Employee has
taken accrued or earned vacation days and reduced the balance of accrued or
earned vacation days below that level. Thereafter, vacation days will accrue or
be earned on a prospective basis only until and if, the maximum is again
reached.
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3.02 Expenses. Employee shall be entitled to receive reimbursement from
Employer for all reasonable out-of-pocket expenses incurred by Employee during
the Term in connection with the performance of Employee's duties and obligations
under this Agreement, according to Employer's expense account and reimbursement
policies in place from time to time and provided that Employee shall submit
reasonable documentation with respect to such expenses.
ARTICLE IV
TERMINATION
4.01 Events of Termination. This Agreement and Employee's employment
hereunder shall terminate upon the occurrence of any one or more of the
following events:
(A) Death. In the event of Employee's death, this Agreement and
Employee's employment hereunder shall automatically terminate on the date of
death.
(B) Disability. To the extent permitted by law, in the event of
Employee's physical or mental disability that prevents Employee from performing
Employee's duties under this Agreement for a period of at least 120 consecutive
days in any 12-month period or 150 non-consecutive days in any 12-month period,
Employer may terminate this Agreement and Employee's employment hereunder upon
written notice to Employee.
(C) Termination by Employer for Cause. Employer may, at its option,
terminate this Agreement and Employee's employment hereunder for Cause (as
defined herein) upon giving notice of termination to Employee. As used in this
Agreement, the term "Cause" shall mean Employee's (i) conviction of, plea of
guilty or nolo contendre to, or confession of guilt of, a felony or criminal act
involving moral turpitude, (ii) commission of a fraudulent, illegal or dishonest
act (which dishonest act results in material damage to Employer) in respect of
Employer or any of its affiliates or subsidiaries, (iii) willful misconduct or
gross negligence that reasonably could be expected to be injurious in the
reasonable discretion of Employer to the business, operations or reputation of
Employer or any of its affiliates or subsidiaries (monetarily or otherwise),
(iv) material violation of Employer's policies or procedures in effect from time
to time; provided, however, to the extent such violation is subject to cure,
Employee will have a reasonable opportunity to cure such violation after written
notice thereof, (v) after a written warning and a reasonable opportunity to cure
non-performance, continued failure to perform Employee's duties as assigned to
Employee from time to time, or (vi) other material breach of this Agreement
(including, without limitation, any breach of Employee's obligations under
Article V hereof).
(D) Without Cause by Employer. Subject to Section 4.02, Employer may,
at its option, at any time terminate this Agreement and Employee's employment
hereunder for no reason or for any reason whatsoever (other than for Cause or as
a result of Employee's death or Disability) by giving 30 days prior written
notice of termination to Employee.
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(E) Termination By Employee. Employee may terminate this Agreement and
Employee's employment hereunder with or without Good Reason (as defined below)
by giving (30) days prior written notice of termination to Employer; provided,
however, that Employer reserves the right to accept Employee's notice of
termination and to accelerate such notice and make Employee's termination
effective immediately, or on any other date prior to Employee's intended last
day of work as Employer deems appropriate. For purposes of this Agreement, "Good
Reason" shall mean, in the absence of the consent of Employee:
(i) the failure of Employer or its successor to pay any
amounts due to Employee or to fulfill any other material obligations to Employee
under this Agreement, other than failures that are remedied by Employer or its
successor within 30 days after receipt of written notice thereof given by
Employee; or
(ii) action by Employer or its successor that results in a
material diminution in Employee's title, position, authority or duties from
those contemplated in Section 1.02;
(iii) any move of the offices of Employer or its successor
without Employee's consent, such that Employee would be required to commute more
than 10 miles more each way than Employee commutes immediately prior to such
move; or
(iv) any material reduction in the amount of D&O liability
coverage in effect as of the IPO closing date.
Notwithstanding the foregoing, placing Employee on a paid leave for up
to 90 days, pending a determination of whether there is a basis to terminate
Employee for "Cause," shall not constitute a "Good Reason." Employee shall be
deemed to have consented to any act or event that would otherwise give rise to
"Good Reason," unless Employee provides written notice of termination for Good
Reason to Employer within ninety (90) days following the action or event
constituting Good Reason.
(F) Mutual Agreement. This Agreement and Employee's employment
hereunder may be terminated at any time by the mutual agreement of Employer and
Employee.
(G) Expiration of Term. This Agreement and Employee's employment
hereunder shall automatically terminate upon the expiration of the Term in
accordance with the 120 day notice provision herein.
4.02 Employer's Obligations Upon Termination.
(A) For Cause; Other than For Good Reason. If, during the Term,
Employer shall terminate this Agreement and Employee's employment hereunder for
Cause or Employee shall terminate this Agreement and Employee's employment
hereunder other than for Good Reason, Employer's sole obligation to Employee
under this Agreement or otherwise shall be to, on the next regular paydate
following the date of termination, (i) pay to Employee any Base Salary earned,
but not yet paid to Employee, prior to the date of such termination, (ii) pay to
Employee any accrued, but unused, vacation days through the date of termination,
and (iii) reimburse Employee for any expenses incurred by Employee through the
date of termination in accordance with Section 3.02 (collectively, the "Accrued
Obligations"). All vested stock options shall remain in effect pursuant to the
terms of the Plan.
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(B) Expiration of Term. Upon the expiration of the Term, Employer's
sole obligation to Employee under this Agreement or otherwise shall be to pay to
Employee the Accrued Obligations, which Accrued Obligations shall be paid or
provided in the manner described in Section 4.02(A) above.
(C) Death; Disability. If, during the Term, this Agreement and
Employee's employment hereunder shall terminate as a result of Employee's death
or Disability, Employer's sole obligation to Employee or Employee's heirs,
beneficiaries, assigns or estate, as applicable, under this Agreement or
otherwise shall be to pay to Employee or Employee's estate, as applicable, the
Accrued Obligations, which Accrued Obligations shall be paid or provided in the
manner described in Section 4.02(A) above. All incentive stock options vested at
the time of death shall be transferred to Employee's estate, subject to the
terms of the Plan.
(D) Without Cause; for Good Reason
(i) If, during the Term, Employer shall terminate this
Agreement and Employee's employment hereunder without Cause and other than as a
result of Employee's death or Disability or Employee shall terminate this
Agreement and Employee's employment hereunder for Good Reason, Employer's sole
obligation to Employee under this Agreement or otherwise shall be to: (a) pay to
Employee the Accrued Obligations, which Accrued Obligations shall be paid or
provided in the manner described in Section 4.02(A) above, and (b) subject to
Employee's execution, delivery and non-revocation of a general release in a form
satisfactory to Employer (the "Release") (which Release, among other things,
will include a general release of Employer, its affiliates and subsidiaries and
their respective officers, directors, managers, members, shareholders, partners,
employees and agents from all liability ), continue to pay to Employee
Employee's Base Salary for a period equal to twelve (12) months following the
date of termination.
(ii) Notwithstanding the provisions of Section 4.02(D)(i)
above, in the event that Employer shall terminate this Agreement and Employee's
employment hereunder without Cause and other than as a result of Employee's
death or Disability within twelve (12) months following a Change in Control (as
defined below) or Employee shall terminate this Agreement and Employee's
employment hereunder for Good Reason within twelve (12) months following a
Change in Control, then, in lieu of the amounts to be paid by Employer pursuant
to Section 4.02(D)(i) above, Employer shall have no further obligations under
this Agreement or otherwise to Employee other than the obligation to (a) pay to
Employee the Accrued Obligations, which Accrued Obligations shall be paid or
provided in the manner described in Section 4.02(A) above, and (b) subject to
Employee's execution, delivery and non-revocation of the Release, continue to
pay to Employee Employee's Base Salary for a period equal to eighteen (18)
months following the date of termination.
The Base Salary continuation payments contemplated by this Section 4.02(D) shall
commence to be paid on the next regular paydate following the 8th day after
Employee's execution and delivery of the Release; provided, however, if
necessary to comply with the restriction in Section 409(A)(a)(2)(B) of the
Internal Revenue Code of 1986, as amended (the "Code") concerning payments to
"specified employees," the salary continuation payments shall commence on the
first regular paydate in the seventh (7th) month following the date of
Employee's termination and the first such payment shall include the cumulative
amount of any payments that would have been paid prior to such date if not for
such restriction.
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As used in this Agreement, "Change in Control" means:
(A) Any "person" (as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becomes the "beneficial
owner"(as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of Employer representing more than 50% of the total voting power
represented by Employer's then outstanding voting securities; provided, however,
the consummation of the IPO and/or the exercise or conversion of any instruments
as of the closing date of the IPO shall not be deemed a Change of Control;
(B) The consummation of a merger or consolidation of Employer with any
other corporation, other than a merger or consolidation which would result in
the voting securities of Employer outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty percent (50%) of
the total voting power represented by the voting securities of Employer or such
surviving entity outstanding immediately after such merger or consolidation; or
(C) The consummation of the sale or disposition by Company of all or
substantially all of Company's assets.
In addition to the payments and benefits set forth in this Section 4.02, amounts
that are vested benefits or that Employee is otherwise entitled to receive under
any plan, program, policy or practice (with the exception of those relating to
severance) on the date of termination, shall be payable in accordance with such
plan, policy, practice or agreement.
ARTICLE V
CONFIDENTIALITY, ASSIGNMENT OF DEVELOPMENTS, NON-COMPETITION,
NON-SOLICITATION AND OTHER COVENANTS
5.01 Confidentiality. While working or performing services for Employer
or otherwise, Employee may previously have developed or acquired, or may in the
future develop or acquire, knowledge in Employee's work or from directors,
officers, employees, agents or consultants of Employer and its affiliates and
subsidiaries (collectively, the "Company") or otherwise of Confidential
Information relating to the Company, its business, potential business or that of
its customers and vendors. "Confidential Information" includes all trade
secrets, know-how, show-how, theories, technical, operating, financial, and
other business information, whether or not reduced to writing or other medium
and whether or not marked or labeled confidential, proprietary or the like,
specifically including, but not limited to, information regarding source codes,
software programs, computer systems, algorithms, formulae, schematics, concepts,
creations, costs (including, without limitation, manufacturing costs), plans,
materials, enhancements, research, specifications, works of authorship,
techniques, documentation, models and systems, sales and pricing techniques,
designs, inventions, discoveries, products, improvements, modifications,
methodology, processes, concepts, records, files, memoranda, reports, plans,
proposals, price lists, client, customer, and supplier lists and information,
product development and project procedures. Confidential Information does not
include general skills, experience or information that is generally available to
the public, other than information which has become generally available as a
result of Employee's direct or indirect act or omission.
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With respect to Confidential Information of the Company and its
customers and vendors:
(A) Employee has used, and will use, Confidential Information only in
the performance of Employee's duties for Employer. Employee has not used, and
will not use, Confidential Information at any time (during or after Employee's
employment with Employer) for Employee's personal benefit, for the benefit of
any other individual or entity, or in any manner adverse to the interests of the
Company and its customers and vendors;
(B) Employee has not, and will not disclose, Confidential Information
at any time (during or after Employee's employment with Employer) except to
authorized Employer personnel, unless Employer consents in advance in writing,
the Confidential Information indisputably becomes of public knowledge or enters
the public domain (other than through Employee's direct or indirect act or
omission), or the disclosure of which is required by law and reasonable written
notice has been provided to Employer sufficient to enable Employer to contest
the disclosure;
(C) Employee has safeguarded, and will safeguard, the Confidential
Information by all reasonable steps and abide by all policies and procedures of
Employer in effect from time to time regarding storage, copying, destroying,
publication or posting, or handling of Confidential Information, in whatever
medium or format the Confidential Information takes;
(D) Employee acknowledges that Employer may be required to sign
non-disclosure or confidentiality agreements with customers or vendors,
prospective customers or vendors, and other third parties in which Employer
agrees that its employees and agents will not disclose Confidential Information
of such customers or vendors, prospective customers or vendors, or other third
parties. By executing this Agreement, Employee acknowledges and agrees that
Employer may rely, and will rely, on this Agreement for purposes of entering
into such other agreements. Further, Employee will execute and abide by all
confidentiality agreements reasonably requested by Employer's customers or
vendors, prospective customers or vendors, and other third parties; and
(E) Employee will return all materials, substances, models, software,
prototypes and the like containing and/or relating to Confidential Information,
together with all other property of the Company (all of which shall remain the
exclusive property of the Company) and its clients and customers, to Employer
when Employee's employment relationship with Employer terminates or otherwise on
demand. Employee shall not retain any copies or reproductions of correspondence,
memoranda, reports, notebooks, drawings, photographs, databases, diskettes, or
other documents or electronically stored information of any kind relating in any
way to the business, potential business or affairs of the Company and its
clients and customers.
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5.02 Assignment of Developments. Employee has disclosed, and will
disclose, promptly and fully to Employer and to no one else: (i) all inventions,
ideas, improvements, discoveries, works modifications, processes, software
programs, works of authorship, documentation, formulae, techniques, designs,
methods, trade secrets, technical specifications and technical data, know-how
and show-how, concepts, expressions or other developments whatsoever or any
interest therein (whether or not patentable or registrable under copyright,
trademark or similar statutes or subject to analogous protection) made,
authored, devised, developed, discovered, reduced to practice, conceived or
otherwise obtained by Employee (collectively, together with all patent rights,
copyrights, trade secret rights and other intellectual property rights,
worldwide, and the right to xxx for present, past and future infringements
thereof, the "Developments"), solely or jointly with others, during the course
of Employee's employment with Employer (whether prior to or after the date of
this Agreement) that (a) are related to the business of the Company or any of
the products or services being researched, developed, distributed, manufactured
or sold by the Company or which may be used in relation therewith or (b) result
from tasks assigned to Employee by the Company; (ii) any Development that is
related to the business of the Company and in which Employee had an assignable
interest at the time of Employee's first employment by Employer; or (iii) any
Development made using the time, materials or facilities of the Company, even if
such Development does not relate to the business of the Company. The
determination as to whether a Development is related to the business of the
Company shall be made solely by an authorized representative of Employer. Any
Development relating to the business of the Company and disclosed to the Company
within one year following the termination of Employee's employment with Employer
shall be deemed to fall within the provisions of this Section 5.02. The
"business of the Company" as used in this Section 5.02 includes the actual
business currently conducted by the Company, as well as any business conducted
by the Company during the course of Employee's employment prior to the
Commencement Date and any business in which the Company is actively engaged in
the development of at any time during the period of Employee's employment.
Employee agrees that, to the maximum extent possible, all such Developments
listed above and the benefits thereof are and shall immediately become the sole
and absolute property of Employer from conception, as "works made for hire" (as
that term is used under the U.S. Copyright Act of 1976, as amended) or
otherwise. Employee shall have no interest in any Developments. To the extent
that title to any Developments or any materials comprising or including any
Developments does not, by operation of law, vest in Employer, Employee hereby
irrevocably assigns to Employer all of Employee's right, title and interest
(including, without limitation, tangible and intangible rights such as patent
rights, trademarks, copyrights and all other intellectual property rights,
worldwide, and the right to xxx for present, past and future infringements
thereof) that Employee may have or may acquire in and to all such Developments,
benefits and/or rights resulting therefrom, and agrees promptly to execute any
further specific assignments related to such Developments, benefits and/or
rights at the request of Employer. Employee also hereby assigns to Employer, or
waives if not assignable, all of Employee's "moral rights" in and to all such
Developments, and agrees promptly to execute any further specific assignments or
waivers related to moral rights at the request of Employer. Employee represents
and warrants to Company that Employee has at no time assigned or otherwise
transferred any interest in any Development (including, but not limited to, any
Developments arising in connection with Employee's employment prior to the
Commencement Date), to any third party, or granted any third party any license,
permission, or other right with respect to any such Development, or permitted
any lien, security interest or other encumbrance to be imposed on any such
Development, or entered into any contract or other arrangement pursuant to which
Employee has agreed to do any of the foregoing.
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Employee agrees to assist Employer without charge for so long as
Employee is an employee of Employer and for as long thereafter as may be
necessary (but at Employer's expense including reasonable compensation to
Employee if Employee is no longer an employee of Employer): (1) to apply,
obtain, register and renew for, and vest in, Employer's benefit alone (unless
Employer otherwise directs), patents, trademarks, copyrights, mask works, and
other protection for such Developments in all countries, and (2) in any
controversy or legal proceeding relating to Developments. In the event that
Employer is unable to secure Employee's signature after reasonable effort in
connection with any patent, trademark, copyright, mask work or other similar
protection relating to a Development, Employee hereby irrevocably designates and
appoints Employer and its duly authorized officers and agents as Employee's
agent and attorney-in-fact, to act for and on Employee's behalf and stead to
execute and file any such application and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, trademarks, copyrights,
mask works or other similar protection thereon with the same legal force and
effect as if executed by Employee.
5.03 Obligations to Other Persons. Employee hereby represents and
warrants that Employee does not have any non-disclosure, non-compete,
non-solicitation or other obligations to any previous employer or other
individual or entity that would prohibit, limit, conflict or interfere with the
performance of Employee's duties for Employer or Employee's other obligations
under this Agreement. Employee will not disclose to the Company or its customers
and clients or induce the Company or its customers and clients to use any secret
confidential information or material belonging to others, including Employee's
former employer.
5.04 Covenant Against Competition and Solicitation.
(A) Employee acknowledges and understands that, in view of the position
that Employee holds or will hold as an employee of Employer, Employee's
relationship with Employer will afford Employee extensive access to Confidential
Information of the Company. Employee therefore agrees that during the course of
Employee's employment with Employer and for a period of 18 months after
termination of Employee's employment with Employer (for any reason or no reason)
(collectively, "Restricted Period"), Employee shall not, anywhere in the world,
either directly or indirectly, as an owner, stockholder, member, partner, joint
venturer, officer, director, consultant, independent contractor, agent or
employee, with or without remuneration, engage in any business or other
commercial activity that is engaged in the business of (i) designing, developing
and/or commercializing electrotherapeutic technologies or (ii) designing,
developing, marketing, selling, distributing and/or providing any products or
services that are of the same nature as a product or service provided by the
Company or a product or service that the Company is developing or seeking to
provide and of which Employee has knowledge. Notwithstanding the foregoing,
nothing herein shall be deemed to prohibit Employee's ownership of less than 2%
of the outstanding shares of any publicly traded corporation that conducts a
business competitive with that of Employer.
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(B) Employee further agrees that, during the Restricted Period,
Employee shall not, directly or indirectly, either on Employee's own behalf or
on behalf of any other individual or commercial enterprise: (i) contact,
communicate, solicit or transact any business with or assist any third party in
contacting, communicating, soliciting or transacting any business with (x) any
of the customers or vendors of the Company, (y) any prospective customers or
vendors of the Company being solicited at the time of Employee's termination, or
(z) any individual or entity who or which was within the most recent twelve (12)
month period a customer or vendor of the Company, for the purpose of inducing
such customer or vendor or potential customer or vendor to be connected to or
benefit from any competitive business or to terminate its or their business
relationship with the Company; (ii) solicit, induce or assist any third party in
soliciting or inducing any individual or entity who is then (or was at any time
within the preceding 12 months) an employee, consultant, independent contractor
or agent of Company) to leave the employment of the Company or cease performing
services for the Company; (iii) hire or engage or assist any third party in
hiring or engaging, any individual or entity that is or was (at any time within
the preceding 12 months) an employee, consultant, independent contractor or
agent of the Company, or (iv) solicit, induce or assist any third party in
soliciting or inducing any other person or entity (including, without
limitation, any third-party service provider or distributor) to terminate its
relationship with the Company or otherwise interfere with such relationship.
5.05 Non-Disparagement. Employee will not at any time (during or after
Employee's employment with Employer) disparage the reputation of Employer, its
affiliates and their respective clients, customers and its or their respective
officers, directors, agents or employees.
5.06 Cooperation. Employee agrees to cooperate both during and after
Employee's employment with Employer, at Employer's sole cost and expense, with
the investigation by the Company involving the Company or any employee or agent
of the Company.
5.07 Reasonable Restrictions/Damages Inadequate Remedy; Breaches.
(A) Employee acknowledges that the restrictions contained in this
Article V are reasonable and necessary to protect the legitimate business
interests of the Company and that any breach or threatened breach by Employee of
any provision contained in this Article V will result in immediate irreparable
injury to the Company for which a remedy at law would be inadequate. Employee
understands that the Employer's business is global and, accordingly, the
restrictions can not be limited to any particular geographic area. Employee
further acknowledges that the restrictions contained in this Article V will not
prevent Employee from earning a livelihood during the applicable period of
restriction. Accordingly, Employee acknowledges that Company shall be entitled
to temporary, preliminary and permanent injunctive or other equitable relief in
any court of competent jurisdiction (without being obligated to post a bond or
other collateral) and to an equitable accounting of all earnings, profits and
other benefits arising, directly or indirectly, from such violation, which
rights shall be cumulative and in addition to (rather than instead of) any other
rights or remedies to which the Company may be entitled at law or in equity. In
addition (and not instead of those rights), Employee further covenants that
Employee shall be responsible for payment of the fees and expenses of the
Company's attorneys and experts, as well as the Company's court or other forum
costs, pertaining to any suit, arbitration, mediation, action or other
proceeding (including the costs of any investigation related thereto) arising
directly or indirectly out of Employee's violation or threatened violation of
any of the provisions of this Article V.
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(B) Notwithstanding the foregoing, in the event Employee breaches or
threatens to breach any term or condition of this Agreement, including the
provisions of Section 5.04 or other sections of this Article V, whether or not
any court of competent jurisdiction shall determine that any one or more of the
provisions contained in this Article V, including Section 5.04, is
unenforceable, it shall constitute a material breach of this Agreement and in
addition to and not instead of the Company's other remedies hereunder or
otherwise at law or in equity, Employee shall be required to, upon written
notice from the Company, return the payments paid by the Company pursuant to
Section 4.02 of this Agreement, less the greater of: (a) $500, or (b) 5% of the
payments paid by Employer hereunder. However, the Company will not demand
repayment if such breach is (in the good faith discretion of the Company)
subject to cure and is cured to the Company's satisfaction by Employee within
five (5) calendar days following such notice of such breach. Without limitation,
in no event shall any breach of the provisions of Section 5.04 be subject to
cure. Employee agrees that if Employee is required to return the payments, this
Agreement shall continue to be binding on Employee and the Company shall be
entitled to enforce the provisions of this Agreement as if the payments had not
been repaid to the Company. In the event the Company provides written notice to
Employee of a breach or threatened breach, the Company, at the direction of its
Board of Directors, shall have the right to suspend all further payment
obligations to Employee hereunder and shall have no further payment obligations
unless a court of competent jurisdiction finds that Employee has not breached
his obligations under this Agreement. In the event of a threatened breach that
has been cured to the Company's satisfaction within five (5) days of notice to
Employee, the Company shall resume making payments pursuant to this Agreement.
In addition to the foregoing and any other rights to which the Company may be
entitled, at law or in equity (and not instead of such rights), the Company
shall have the right to collect from Employee payment of the reasonable fees and
expenses of the Company's attorneys and experts, as well as the Company's court
or forum costs, pertaining to any suit, arbitration, mediation, action or other
proceeding (including the costs of any investigation related thereto) arising
directly or indirectly out of Employee's breach of any of the provisions of this
Agreement. In the event of a breach or threatened breach, the Company reserves
to itself all remedies available to it under this Agreement or otherwise at law
or in equity.
5.08 Separate Covenants. In the event that any court of competent
jurisdiction shall determine that any one or more of the provisions contained in
this Article V shall be unenforceable in any respect, then such provision shall
be deemed limited and restricted to the extent that the court shall deem the
provision to be enforceable. It is the intention of the parties to this
Agreement that the covenants and restrictions in this Article V be given the
broadest interpretation permitted by law. The invalidity or unenforceability of
any provision of this Article V shall not affect the validity or enforceability
of any other provision hereof. The covenants and restrictions contained in this
Article V shall be deemed a series of separate covenants and restrictions one
for each of the fifty states of the United States of America. If, in any
judicial or arbitration proceedings, a court of competent jurisdiction or
arbitration panel should refuse to enforce all of the separate covenants and
restrictions in this Article V, then such unenforceable covenants and
restrictions shall be eliminated from the provisions of this Agreement for the
purpose of such proceeding to the extent necessary to permit the remaining
separate covenants and restrictions to be enforced in such proceeding.
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ARTICLE VI.
MISCELLANEOUS
6.01 Benefit of Agreement and Assignment. This Agreement shall inure to
the benefit of Employer, its affiliates and subsidiaries, and its and their
respective successors and assigns (including, without limitation, the purchaser
of all or substantially all of any of its or their respective assets) and shall
be binding upon Employer and its successors and assigns. This Agreement shall
also inure to the benefit of and be binding upon Employee and Employee's heirs,
administrators, executors and assigns. Employee may not assign or delegate
Employee's duties under this Agreement, without the prior written consent of
Employer.
6.02 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed to
have been duly given (i) on the date delivered if personally delivered, (ii)
upon receipt by the receiving party of any notice sent by registered or
certified mail (first-class mail, postage pre-paid, return receipt requested) or
(iii) on the date targeted for delivery if delivered by nationally recognized
overnight courier or similar courier service, in each case addressed to the
Employer or Employee, as the case may be, at the respective addresses indicated
in the caption of this Agreement or such other address as either party may in
the future specify in writing to the other. In addition, a copy (which shall not
itself constitute notice) of any notice sent to Employer hereunder shall be sent
to: Xxxxxxxxxx Xxxxxxx PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Esq.
6.03 Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the terms and conditions of Employee's
employment during the Term and activities following termination of this
Agreement and supersedes any and all prior agreements and understandings,
whether written or oral, between the parties with respect to the subject matter
of this Agreement This Agreement may not be changed or modified except by an
instrument in writing, signed by both Employee and a Co-Chief Executive Officer
of Employer.
6.04 Indemnification. Employer shall indemnify Employee against all
claims arising out of Employee's actions or omissions occurring during
Employee's employment with Employer to the fullest extent provided (A) by
Employer's Certificate of Incorporation and/or Bylaws, and (B) under the New
Jersey General Corporation Law, as each may be amended from time to time.
Employer shall maintain a Directors & Officers liability insurance policy ("D&O
Coverage") covering Employee to the extent Employer provides such coverage for
its other executive officers.
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6.05 280G Cut-Back. Notwithstanding anything set forth in this
Agreement to the contrary, in the event that any payment, coverage or benefit
provided under this Agreement would, in the opinion of the independent certified
accountants for Employer, not be deemed to be deductible in whole or in part in
the calculation of the Federal income tax of Employer or any other person making
such payment or providing such coverage or benefit, by reason of Section 280G of
the Code, the aggregate payments, coverages or benefits provided under this
Agreement shall be reduced to the "safe harbor" level under Section 280G so that
the entire amount which is paid or provided to Employee shall be deductible
notwithstanding the provisions of Section 280G of the Code.
6.06 No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that nothing in this Section
6.06 shall preclude the assumption of such rights by executors, administrators
or other legal representatives of Employer or his estate and their assigning any
rights hereunder to the person or persons entitled thereto.
6.07 Source of Payment. All payments provided for under this Agreement
shall be paid in cash from the general funds of Employer. Employer shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if Employer shall make any investments to aid it
in meeting its obligations hereunder, Employee shall have no right, title or
interest whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship, between Employer and Employee or any other person.
To the extent that any person acquires a right to receive payments from Employer
hereunder, such right, without prejudice to rights which employees may have,
shall be no greater than the right of an unsecured creditor of Employer.
6.08 No Waiver. The waiver by either party of a breach of any provision
of this Agreement shall not operate or be construed as a continuing waiver or as
a consent to or waiver of any subsequent breach hereof.
6.09 Headings. The Article and Section headings in this Agreement are
for the convenience of reference only and do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
6.10 Governing Law; Jurisdiction; Jury Trial Waiver. Any and all
actions or controversies arising out of this Agreement or Employee's employment,
including, without limitation, tort claims, shall be construed and enforced in
accordance with the internal laws of the State of New Jersey, without regard to
the choice of law principles thereof. With respect to any such actions or
controversies, Employer and Employee hereby (a) irrevocably consent and submit
to the sole exclusive jurisdiction of the United States District Court for the
District of New Jersey or the Superior Courts of New Jersey (and of the
appropriate appellate courts therefrom), (b) irrevocably waive, to the fullest
extent permitted by law, any objection that any of them may now or hereafter
have to the laying of the venue of any such actions or controversies in any such
court or that any such any such actions or controversies which is brought in any
such court has been brought in an inconvenient forum, and (c) irrevocably waive
any right to request a trial by jury in any such actions or controversies and
represents that such party has consulted with counsel specifically with respect
to this waiver.
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6.11 Validity. The invalidity or enforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision or provisions of this Agreement, which shall remain in full
force and effect.
6.12 Employee Withholdings and Deductions. All payments to Employee
hereunder shall be subject to such withholding and other employee deductions as
may be required by law.
6.13 Counterparts. This Agreement may be executed in one more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
6.14 Agreement to Take Actions. Each party to this Agreement shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take all other actions, as may be reasonably necessary or
desirable in order to perform his/her or its obligations under this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement as of the date first written above.
EMPLOYER:
IVIVI TECHNOLOGIES, INC.
BY: ____________________________
___________________, _________
EMPLOYEE:
________________________________
Xxxxxx Xxxxxx, individually
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