May 31, 2007 Martin R. Gould
EXHIBIT
10.28
May
31,
2007
Xxxxxx
X.
Xxxxx
000
Xxxx
Xxxxxx
Xxxxxxx
Xxxx, XX 00000
Dear
Xxxxxx,
It
is our
pleasure to formally continue your position of Chief Science Officer for
American Bio Medica Corporation (“ABMC” or the “Company”), reporting directly to
the ABMC Chief Executive Officer. This agreement supersedes all other agreements
whether written or verbal and may not be amended except by a writing signed
by
you and the Chief Executive Officer, and approved by the Board of Directors.
Your position will be primarily located at our New Jersey laboratory facility
although overnight travel may be required from time to time. You will perform
all duties as are generally associated with the position of Chief Science
Officer as directed by the Chief Executive Officer. Below, we have outlined
the
major terms and conditions applicable to your position.
Term
Your
employment with ABMC will be for a term of one year unless sooner terminated
for
cause, beginning on the date set forth above and automatically renewed for
successive one-year terms unless either side gives written notice of intent
not
to renew at least 60 days prior to the end of any one-year term. If AMBC
terminates your employment for cause, this agreement shall be terminated and
you
will be entitled to no severance and no further compensation or benefits from
ABMC, other than payment of salary and benefits up to and including the date
of
termination.
Compensation
Effective
with the signing of this Employment letter, your base salary will be $12,416
per
month, which is equivalent to $149,000 on an annualized basis, to be paid
retroactive to January 1, 2007. You will be eligible for your first performance
review by the Board of Directors in January 2008.
If
you so
desire, the cost of your health insurance (including family coverage if you
so
require) shall be borne 100% by the Company. Please notify Human Resources
if
you wish to receive this benefit.
You
shall
receive a car allowance of $10,000 per year, to be paid on a monthly basis
and
subject to tax on your part, and reimbursement for any approved company related
expenses.
You
shall
participate in the Management Bonus Program as approved by the Board of
Directors on January 19, 2005, and as amended by the Board of Directors on
November 9, 2005.
Benefits
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20
vacation days
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Usual
corporate holidays
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2
personal days
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401
(k)
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Severance
In
the
unlikely event that ABMC elects to terminate your employment for anything other
than cause, you will receive severance pay equal to twelve (12) months of your
current base salary at the time of separation, with continuation of all medical
benefits during the twelve-month period at ABMC’s expense. Cause shall be
defined as (1) death, (2) commission of a felony (3) acts of dishonesty, fraud
or malfeasance in connection with your service on behalf of the Company, (4)
gross dereliction of duty willful failure to carry out any lawful directive
of
the Chief Executive Officer or the Board of Directors, or material violations
of
Company policies which continue after Company has provided Employee with written
notice thereof and a period of thirty (30) days to cure such action or
misconduct or (5) disability of a period of more than 6 months). The severance
payment will be made under the current pay cycle, each pay period, during the
12
months, subject to all customary withholdings.
Additionally,
you may resign your position and elect to exercise this severance provision
at
your option under the following circumstances:
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If
you are required to relocate by the Company or its Board of Directors
more
than 50 miles from the Company’s New Jersey laboratory facility as a
condition of continued employment
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A
substantial change in responsibilities normally assumed by a Chief
Science
Officer at the direction of the Company or its Board of Directors
(i.e.
demotion)
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You
are asked to commit or conceal the commitment of any illegal act
by any
officer or member of the board of directors of the
Company
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Change
in Control
If
there
is a Change in Control (defined below) of ABMC, you may elect to resign your
position and to receive a lump sum severance payment equal to two times your
annual base salary (“CIC Payment”). If you elect to resign, ABMC will pay you
the CIC Payment within thirty days after you make your election, which election
must be in writing and received by ABMC’s Board of Directors within ten days
after a Change in Control. In the event you continue employment with ABMC or
any
successor to ABMC following a Change in Control or fail to make an election
within ten days after a Change in Control, you will not be entitled to receive
the CIC Payment.
Change
in
Control is defined as follows:
(i) the
approval by shareholders of ABMC of a merger or consolidation of ABMC with
any
other corporation, other than a merger or consolidation which would result
in
the voting securities of ABMC outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the total
voting power represented by the voting securities of ABMC or such surviving
entity outstanding immediately after such merger or consolidation;
or
(ii) the
approval by the shareholders of ABMC of a plan of complete liquidation of ABMC
or an agreement for the sale or disposition by ABMC of all or substantially
all
of ABMC’s assets.
Restrictive
Covenants
Company
Handbook/Compliance Certification
You
are
aware that it is your responsibility to read the ABMC Employee Handbook
thoroughly and comply with the policies contained in the Handbook. You
understand that the policies, benefits and information contained in the Handbook
are subject to change and that revisions to the Handbook may be made. Any such
changes will be communicated through official written notices and you hereby
acknowledge that any such revisions may supercede, modify or eliminate existing
policies. Only a majority of the Executive Officers, or a majority of the Board
of Directors may adopt revisions to the policies contained in the Handbook.
In
no circumstance may a change to the employee handbook reduce the salary,
benefits or other conditions outlined in this employment agreement.
You
agree
that in addition to any covenants included in this Employment Letter, you will
sign a Compliance Certification simultaneously with the signing of this
Employment Letter. If a conflicting covenant exists between the Employment
Letter and the Compliance Certification and/or the Company Handbook, the
Employment Letter shall be the ruling document.
Non-Solicitation
During
the twelve (12) months immediately following your termination from employment
with ABMC for any reason, you agree that:
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You
will not, directly or indirectly, solicit in any manner or capacity
whatsoever, including by way of illustration, but not limitation,
call
upon, mail or e-mail notices to, or make telephone calls to, any
Customer
(defined below) or Customer Prospect (defined below) of ABMC, for
the
purpose of selling any Covered Services (defined below) or engaging
in any
business which directly or indirectly competes with
ABMC.
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You
will not solicit, endeavor to entice away from ABMC, or otherwise
interfere with the relationship of ABMC with any person who is employed
(or, but for any violation of this agreement, would have been employed)
by
or otherwise engaged to perform services for ABMC, whether for your
own
account or for the account of any other person or
entity.
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You
will not, directly or indirectly, solicit in any manner or capacity
whatsoever, including by way of illustration, but not limitation,
call
upon, mail, or e-mail notices to, or make telephone call to, any
supplier
or vendor of ABMC for the purpose of engaging in any business which
directly or indirectly competes with
ABMC.
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Confidentiality
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You
agree
not to disclose any Confidential Information (defined below) and you promise
to
take all reasonable precautions to prevent its unauthorized dissemination,
both
at all times during your employment with ABMC and after termination of your
employment for any reason. You agree to limit the disclosure of any Confidential
Information to only those employees and agents of ABMC who have a need to know
the information and who have similarly agreed to keep such information
confidential. Upon termination of your employment or upon request, you will
deliver to ABMC all documents and electronic files containing Confidential
Information and any personal property owned by ABMC.
You
further agree not to use any Confidential Information for your own benefit
or
for the benefit of anyone other than ABMC. You acknowledge that all Confidential
Information is and remains the property of ABMC and that no license or rights
in
the Confidential Information has been or is granted to you.
“Confidential
Information" means and includes all information not previously known by you
prior to your employment with ABMC relating to marketing, advertising, public
relations, development, services, trade secrets, trade "know-how," business
plans, Customer (as defined below) and Customer Prospect (as defined below)
lists, distributor lists, Customers and Customer Prospects information,
distributor information, financial data, personnel data, employee compensation
and benefits information, new personnel acquisition plans, details of contracts,
pricing policies, operational methods, marketing plans or strategies, service
development techniques or plans, business acquisition or investment plans,
or
other confidential and proprietary information related to the business or
affairs of ABMC and/or its Customers or Customer Prospects.
The
term
"Customer" means any person or entity for which ABMC performed any Covered
Services during the one (1) year period immediately preceding the termination
of
your employment with ABMC for any reason whatsoever.
"Customer
Prospect" means any person or entity to which ABMC made a new business
presentation or proposal, whether formal or informal related to Covered Services
during the one (1) year period immediately preceding the termination of your
employment with ABMC for any reason whatsoever.
“Covered
Services” means any services or products of whatever kind or character offered
or provided by ABMC to any person or entity.
Enforcement
If
any
provision of the covenants in this agreement shall be held invalid or
unenforceable, the remainder nevertheless shall remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it nevertheless shall remain in full force and effect in all
other circumstances.
If,
in
connection with any action taken by ABMC to enforce the provisions of the
covenants of this agreement, a court shall hold that all or any portion of
the
restrictions contained therein are unreasonable under the circumstances then
existing so as to render such covenants invalid or unenforceable, the parties
agree that any court of competent jurisdiction may reform such unreasonable
restrictions to the extent necessary to make such restrictions reasonable under
the circumstances then existing so as to render such restrictions both valid
and
enforceable.
You
acknowledge and agree that all of the covenants contained in this agreement
are
necessary for the protection of ABMC's valuable and legitimate business
interests and are reasonable in scope and content. Accordingly, you acknowledge
and agree that if you violate any of the provisions of this agreement ABMC
shall
sustain irreparable harm and, therefore, in addition to the other remedies
which
ABMC may have under this agreement or otherwise, ABMC will be entitled to
specific performance, injunctive, and other equitable relief.
You
agree
to indemnify, save and hold harmless ABMC
from and
against any and all claims, damages, losses, costs and expenses (including
reasonable attorneys' fees) incurred by ABMC in any action in which a court
enforces the terms of the covenants of this agreement.
Other
Employment Information
In
making
this offer ofcontinued employment, ABMC has relied on your representations
that:
(a) you are not currently a party to any contract of employment that might
impede your ability to accept this offer or to perform the services completed
thereby; and (b) that you are not subject to any non-competition arrangement
or
other restrictive covenants that might restrict your employment at ABMC as
contemplated by this offer.
Exclusive
Service
You
will
perform services exclusively for ABMC and you will not perform services for
any
other persons or entities related to or conducting business with the Company
for
personal profit during the term of this agreement without the written agreement
of the Board of Directors.
Miscellaneous
This
writing represents the entire agreement with respect to your employment and
any
prior agreements or understandings, written or oral, are merged herein. This
agreement shall be governed by the laws of the State of New York. ABMC will
not
be deemed to have waived any provision of this agreement except by a signed
writing. This agreement may not be amended, except by a signed writing. Notices
given pursuant to this Agreement shall be in writing and delivered personally
or
by nationally recognized overnight courier in the case of ABMC to its Kinderhook
facility to the attention of the Chief Executive Officer and in your case to
your home address as set forth in ABMC’s personnel file.
Xxxxxx,
we are enthusiastic about your appointment as Chief Science Officer and our
expectation is that you will continue to make a tremendous contribution to
the
long-term success of ABMC.
Sincerely,
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/s/
Xxxxxx Xxxxxxxxxx
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Xxxxxx
Xxxxxxxxxx
Chairman
of the Board of Directors & President
By
order of the American Bio Medica Corporation Board of
Directors
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Accepted
this 31 Day of May, 2007:
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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