Exhibit 10.23
EMPLOYMENT AGREEMENT
BETWEEN: ATHENA MEDICAL CORPORATION, a Nevada corporation ("Company");
AND: XXXXX X. XXXXXXX ("Employee")
DATED: May 28, 1996.
RECITAL:
The Company (dba A-FEM Medical Corporation) is engaged in the business of
developing and marketing feminine hygiene products and diagnostics world-wide.
The Company desires to employ and retain the unique experience, abilities and
services of Employee as its Director of International Sales and Marketing.
AGREEMENT:
In consideration of the foregoing Recital and the terms, conditions and
covenants set forth below, the parties agree as follows:
1. EMPLOYMENT
1 Term. The Company agrees to employ Employee as its Director of
International Sales and Marketing for a term commencing on May 28, 1996, and
continuing until termination in accordance with Section 5.
2 Duties. Employee accepts employment with the Company on the terms and
conditions set forth in this Agreement, and agrees to devote Employee's full
time and attention to the performance of Employee's duties under this
Agreement. Employee's general duties shall consist of developing and
implementing product export strategies and structures and supervision of the
Company's international sales and distribution efforts. Employee shall
perform such specific duties and shall exercise such specific authority as
may be assigned to Employee from time to time by the president of the
Company. In performing such duties, Employee shall be subject to the
direction and control of the president of the Company. Employee further
agrees that in all aspects of such employment, Employee shall comply with the
policies, standards, rules and regulations of the Company from time to time
established, and shall perform Employee's duties faithfully, intelligently,
to the best of Employee's ability and in the best interest of the Company.
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The devotion of reasonable periods of time by Employee for personal
purposes, outside non-competitive business activities or charitable activities
shall not be deemed a breach of this Agreement, provided that such purposes or
activities do not materially interfere with the services required to be rendered
to or on behalf of the Company.
2. COVENANT NOT TO COMPETE; CONFIDENTIALITY
1 Noncompetition. During the term of this Agreement and for a period of one
year after termination of employment for any reason with the Company, Employee
shall not, anywhere in the world, directly or indirectly: (1) own (as a
proprietor, partner, member, stockholder, trustee or otherwise) an interest in;
(2) participate (as an officer, director, manager, or in any other capacity) in
the management, operation or control of; or (3) perform services as or act in
the capacity of an employee, independent contractor, consultant or agent of any
person engaged, directly or indirectly, in the business of the sale or
distribution of interlabial pads (i.e., the Company's Fresh 'N
Fit-Registered Trademark- Padette or any competing product of any other person
or entity) except with the prior written consent of the Company in each
instance.
2 Confidentiality. Employee acknowledges and agrees that all product
and equipment specifications, manufacturing methods, lists of the Company's
customers and suppliers, product planning information, and other Company
data related to its business ("Confidential Information") are valuable assets of
the Company. Except for disclosures reasonably made to advance the business of
the Company and information which is a matter of public record, Employee shall
not, during the term of this Agreement or after termination of employment with
the Company for any reason, disclose any Confidential Information to any person
or use any Confidential Information (regardless of whether same is considered
proprietary or a trade secret) for the benefit of Employee or any other person,
except with the prior written consent of the Company in each instance.
3 Return of Documents and Property. Employee acknowledges and agrees that
all originals and all copies of records, reports, files, correspondence,
lists, plans, drawings, memoranda, notes, sketches, summaries, schedules,
codes, tapes and other documentation and property related to the business of
the Company or containing any Confidential Information are and shall be the
sole and exclusive property of the Company, and shall be returned to the
Company upon termination of Employee's employment with the Company or upon
the written request of the Company at any time.
4 Related Company Policies. Employee further agrees to comply with all
policies, rules and regulations adopted by the Company from time to time with
respect to xxxxxxx xxxxxxx and other duties applicable to the employees of a
publicly-traded corporation. Employee also agrees to sign a separate
confidentiality agreement applicable to all employees. The terms of such
separate agreement will control over any conflicting term in this Agreement.
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5 Injunction. Employee agrees that it would be difficult to measure damage to
the Company from any breach by Employee of Section 2.1, 2.2, 2.3 or 2.4 and
that monetary damages would be an inadequate remedy for any such breach.
Accordingly, Employee agrees that if Employee shall breach Section 2.1, 2.2,
2.3 or 2.4, the Company shall be entitled, in addition to any and all other
remedies it may have at law or in equity, to an injunction or other
appropriate order to restrain any such breach, without showing or proving any
actual damage sustained by the Company, and without posting bond or other
undertaking.
6 No Release. Employee agrees that termination of employment
with the Company or expiration of the term of this Agreement shall not
release Employee from any of Employee's obligations under Section 2.1, 2.2,
2.3 or 2.4.
3. COMPENSATION
1 Base Compensation; Bonus Compensation. In consideration of all services to
be rendered by Employee to the Company, the Company shall pay to Employee base
compensation of $95,000.00 per year, payable in equal monthly installments of
$7,916.66 each on the same dates as other management personnel are paid. As
further compensation, the Company may pay to Employee such bonus or bonuses as
may from time to time be awarded to Employee by the board of directors of the
Company, payable at such times and in such amounts as the board of directors may
determine in its sole discretion. However, this Agreement shall not be construed
to require the board of directors of the Company to award or pay any bonus to
Employee.
2 Withholding. Base compensation and any bonus compensation shall be
subject to the customary withholding of income taxes and to other employment
taxes required with respect to compensation paid by an employer to an employee.
3 Other Benefits. Base compensation and bonus compensation paid to Employee
shall be in addition to any contribution made by the Company for the benefit of
Employee to any qualified profit-sharing or retirement plan maintained by the
Company for the exclusive benefit of its employees. The Company shall provide to
Employee and Employee's spouse and dependents the same coverage and
participation that the Company may provide to other management personnel with
respect to accident and health insurance, life insurance and other employment
benefits, upon Employee meeting the respective eligibility conditions of each
such benefit.
4 Incentive Stock Option. Subject to approval by the Company's
Board of Directors, Employee may be awarded an option to purchase up to
100,000 shares of the Company's common stock, exercisable at the approximate
publicly-traded price of such stock on the date of award. The option will not be
exercisable until after at least 90 days' continuous employment, and thereafter
according to a vesting schedule and performance standards agreed upon by the
parties. Termination of employment for any reason or no reason will
automatically terminate the right to exercise the option as to any shares not
then
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vested. The option will also be subject to other terms and conditions,
including restrictions on transfer of the option and the shares, required by the
Company on all employee options.
5 Income From Employee's Efforts. All income generated by Employee for
Employee's services to the Company, and all activities related to such
services, shall belong to the Company, whether paid directly to the Company
or to Employee. Employee agrees to, upon request by the Company from time to
time, render a detailed accounting of all transactions during the course of
Employee's employment.
4. EXPENSES
Employee shall be entitled to reimbursement from the Company for reasonable
expenses necessarily incurred by Employee in the performance of Employee's
duties under this Agreement, upon presentation of vouchers detailing the amount,
date and business purpose of each such expense. All expenses in excess of
$100.00 must be approved in advance by an officer of the Company, and all travel
and related expenses and reimbursements will be governed by the travel policies
and procedures adopted by the Company.
5. TERMINATION
1 Termination by Prior Notice or Agreement. The employment of Employee by
the Company may be terminated by either the Company or Employee upon the giving
of 20 days' prior written notice to the other party. This Agreement may be
terminated at any earlier time upon the mutual written agreement of the Company
and Employee.
2 Immediate Termination. The employment of Employee by the Company
may be terminated immediately in the sole discretion of the board of directors
or the president of the Company upon the occurrence of any one of the following
events:
1. If Employee shall willfully and continuously fail or refuse
to comply with any of the policies, standards, rules and regulations of the
Company from time to time established.
2. If Employee shall be guilty of fraud, dishonesty or any
other act of misconduct in the performance of Employee's duties on behalf of
the Company.
3. If Employee shall fail or refuse to perform any provision
of this Agreement to be performed by Employee.
4. Upon the sale, transfer or other disposition of all or
substantially all the assets of the Company, the distribution of the
Company's assets to its stockholders in liquidation, or the discontinuance of
the Company's conduct of the business described in the Recital.
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5. If Employee shall suffer a permanent disability. For
purposes of this Agreement, "permanent disability" shall be defined in
accordance with the terms of any disability income policy insuring Employee
which may be purchased by the Company, as determined by the company issuing
such policy. But if such a policy is not in force, "permanent disability"
shall be defined as Employee's inability due to physical or mental illness,
or other cause, to perform the majority of Employee's usual duties for a
period of three months or more, as determined by a physician licensed to
practice medicine in Oregon and chosen by the Company.
3 Death. In the event Employee dies during the term of this
Agreement, this Agreement shall automatically terminate, and the Company
shall pay to Employee's estate the compensation which would be otherwise
payable to Employee through the last day of the month in which Employee's
death occurs.
4 Proration of Base Compensation. Except as otherwise
provided in Section 5.3, upon termination of employment, the base
compensation payable to Employee pursuant to Section 3.1 shall be prorated to
the date of such termination and shall be payable on the first day of the
month following such termination date.
5 At-Will Employment. The employment by Employee by the
Company is "at-will". Employee may terminate employment at any time, for any
reason or for no reason. Correspondingly, the Company may terminate
Employee's employment at any time, for any reason or for no reason. In
addition, the existence of any fund or commitment by or for the benefit of
the Company (represented by an escrowed account or otherwise) respecting
Employee's salary shall not be construed as creating an express or implied
agreement to employ Employee for any specific period of time. The Company's
obligation to pay Employee for her services under this Agreement is an
unfunded one payable out of the Company's general funds, and expires upon
termination of this Agreement as set forth in this Section 5.
6. VACATION; SICK LEAVE
Subject to the approval of time by the president of the Company, Employee
shall be entitled to 30 working days per calendar year (prorated for a short
year) of combined vacation/sick days. Accrual of same and other permitted leaves
shall be as provided in the Company's employee manual.
7. REPRESENTATIONS OF EMPLOYEE
Employee represents and warrants to the Company that there is no employment
contract or any other contractual obligation to which Employee is subject which
prevents Employee from entering into this Agreement or from performing fully
Employee's duties under this Agreement.
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8. RELATIONSHIP OF PARTIES
The relationship between Employee and the Company is that of employee and
employer. Employee shall have no authority to enter into any contracts or
agreements binding upon the Company, except as shall be specifically authorized
by the board of directors or the president of the Company. Employee shall have
no interest in the Company's tangible or intangible assets or in the stock of
the Company except as may be provided by other written documents executed by the
Company.
9. WORK MADE FOR HIRE
All techniques, processes, products, manuals, documents, materials, ideas
and Confidential Information developed by Employee while employed by the Company
shall be considered work made for hire and shall, unless specifically otherwise
agreed upon in writing by the Company prior to such development, become the sole
and exclusive property of the Company.
10. MISCELLANEOUS
1 Notices. Any notice or consent required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given when
personally delivered to a party or 24 hours after deposit in the United States
Mail, first class postage prepaid by both first class and certified mail, return
receipt requested, or 24 hours after delivery to a recognized national overnight
carrier, with overnight shipping charges paid, and addressed to such party as
follows:
If to Employee: Xxxxx X. Xxx Xxxx
000 XX Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
If to the Company: Athena Medical Corporation
00000 XX Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
Attn: President
or such other address as a party may specify by a notice in writing, given in
the same manner.
2 Attorneys' Fees. If any action or other proceeding shall be
instituted relating to any term or condition of this Agreement or relating to
any of the rights, duties or obligations arising under it (including without
limitation a proceeding for injunction as provided by Section 2.4), the
prevailing party shall be entitled to recover from the other party, and the
other party agrees to pay to the prevailing party, whether or not the matter
proceeds to final judgment or decree, in addition to costs and disbursements
allowed by law, such sum as the trial and each appellate court may adjudge
reasonable as attorneys' fees in such action or other proceeding, and in any
appeal of it.
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3 Waiver of Breach. The waiver by either party of a breach of any
term or provision of this Agreement shall not be construed as a waiver of any
subsequent breach of the same or any other term or provision by either party.
4 Time of the Essence; Days. Time is of the essence of this Agreement
in all particulars. The term "days" means calendar days.
5 Modification. This Agreement may not be amended or modified except by
written agreement executed by the parties.
6 Captions. The captions heading the sections and subsections of this
Agreement are inserted for convenience of reference only, and are not to be
used to define, limit, construe or describe the scope or intent of any term,
provision or section of this Agreement.
7 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which taken together
shall constitute one and the same instrument.
8 Integration. THIS AGREEMENT CONTAINS THE FINAL AND CONCLUSIVE
AGREEMENT AND UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
OF IT, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, ORAL OR
WRITTEN. EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO PROMISES,
REPRESENTATIONS, AGREEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN, BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
EXECUTED as of the date first set forth above.
Athena Medical Corporation
_________________________ By __________________________
Xxxxx X. Xxx Xxxx Its President
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