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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 15th day of January, 1990 between
ESCALON OPHTHALMICS, INC., A Pennsylvania Corporation (The "Employer") AND XXXX
X. XXXX, 0 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Employee").
R E C I T A L :
The parties hereto desire to enter into this Agreement to provide for
the employment of the Employee by the Employer and for certain other matters in
connection with such employment, all as set forth more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises and convenants set
forth herein an intending to be legally bound hereby, the parties to this
Agreement hereby agree as follows:
1. DUTIES. The Employer agrees that the Employee shall be
employed by the Employer during the term of this Agreement (as defined in
Section 2 hereof) to serve as Director of Finance and Administration and/or the
other position(s) as determined by the Employer. The Employee agrees to be so
employed by the Employer and to devote his best efforts and substantially all
of his business time to advance the interests of the Employer and discharge
adequately his duties hereunder.
2. TERM. Subject to Sections 4 and 5 hereof, the initial term of
the Employee's employment hereunder shall commence on the Employment Date (as
hereinafter defined) and shall continue for a term of five (5) years. This
Agreement shall be renewed automatically upon the expiration of its initial
term and each renewal term for successive terms of one year unless either party
notifies the other party in writing at least 90 days prior to the expiration of
any term of such party's determination not to renew this Agreement beyond the
then existing term. For purposes of this Section 2, the term "Employment Date"
shall mean the date the Employee begins performing services for the Employer,
if ever, but not later than March 1, 1990. IF the Employer does not achieve
its goal of raising capital equal to at least $3,000,000 through an offering of
shares of its common stock, this Agreement shall automatically terminate.
3. COMPENSATION.
(a) Salary. During the term of his employment under this
Agreement, the Employee shall be paid an annual salary at the rate of $90,000
commencing on the Employment date. The Employee's salary shall be paid in
accordance with the Employer's regular payroll practices.
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Such salary shall be reviewed annually by the Employer's Compensation
Committee. In addition, the Employee may be paid an annual performance bonus
as determined by the Compensation Committee in its sole discretion.
(b) Stock. The Employee shall be given the option to purchase
from the Employer at a price equal to the lower of 33-1/3% of the most recent
selling price of the Employee's Common Stock by the Employer to a non-employee
or 100% of the most recent selling price of the Employer's Class A Convertible
Preferred Stock, determined on the Employment Date, at a price of
$________________ per share, up to 50,000 shares of the Employer's Common Stock
under the Employer's stock option plan, on or after the date hereof, subject to
the vesting schedule of Section 3(b) hereof. In addition, the Employee may be
offered additional equity securities of the Employer as determined by the Board
of Directors in its sole discretion.
(c) Vesting Schedule.
(i) The Employee shall be permitted to purchase shares of Common
Stock of the Employer pursuant to the Employer's stock option
plan according to the following schedule:
Vesting Schedule
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Section 3(b)
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1st Anniversary of Employment Date 10,000 shares
2nd Anniversary of Employment Date 10,000 shares
3rd Anniversary of Employment Date 10,000 shares
4th Anniversary of Employment Date 10,000 shares
5th Anniversary of Employment Date 10,000 shares
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TOTAL 50,000 shares
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(ii) In the event that (i) this Agreement shall automatically terminate
pursuant to Section 2 hereof, (ii) the Employer shall cause a termination of
the Employee's employment with cause or the Employee shall resign pursuant to
Section 5(a), or (iii) the Employee shall die or become totally disabled, in
any such event, the unvested options shall expire as of the date of such event.
(iii) In the event that (i) Employer shall cause a termination of the
Employee's employment without cause pursuant to Section 5(b), (ii)
substantially all of the assets of the Employer are sold or otherwise disposed
of by merger, consolidation or similar transaction, or (iii) voting control of
the Employer is acquired in a transaction
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other than a stock offering made by the Employer, then notwithstanding any of
the foregoing, all of the unvested options shall thereupon be treated as
vested.
(d) Fringe Benefits. The Employee shall be entitled to the following
fringe benefits:
(i) Medical and Dental Insurance coverage for the Employee and his
family, at no cost to the Employee and in accordance with company policy;
(ii) Long-term disability insurance based upon the Employee's salary,
commencing when compensation ceases under Section 4(b);
(iii) Group Term life insurance coverage equal to two times the
Employee's salary; and
(iv) Participation in such other fringe benefit, retirement or profit
sharing programs of the Employer, to the extent and on the same terms and
conditions as are accorded to other officers and key employees of the Employer.
(e) Reimbursement of Expenses. The Employee shall be reimbursed for
all normal items of travel and entertainment and miscellaneous expenses
reasonably incurred by him on behalf of the Employer upon presentation of
appropriate vouchers and substantiation therefor, including the use of a
personal car on business of the Employer.
(f) Moving Expenses. If, during the term of this Agreement, the
Employer decides to locate the Employer's principal place of business in a
location, greater than forty (40) miles from the Employee's principal
residence, that requires the Employee to move the location of his principal
residence, the Employer shall pay the reasonable and necessary selling expenses
associated with the sale of his present principal residence and the reasonable
purchase expenses associated with the purchase of his new residence. Expenses
may include, but are not limited to, broker commissions, legal fees and
mortgage related expenses.
(g) Entire Compensation. The compensation provided for in this
Agreement shall constitute full payment for the services to be rendered by the
Employee to the Employer hereunder.
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4. DEATH OR TOTAL DISABILITY OF THE EMPLOYEE
(a) Death. In the event of the death of the Employee during
the term of this Agreement, this Agreement shall terminate effective as of the
date of the Employee's death, and the Employer shall not have any further
obligation or liability under this Agreement except that the Employer shall pay
to the Employee's estate any portion of the Employee's salary for the period up
to the Employee's date of death that remains unpaid.
(b) Total Disability. In the event of the Total Disability
)as that term is hereinafter defined) of the Employee for a period of 90
consecutive days at any time during the term of this Agreement, the Employer
shall have the right to terminate the Employee's employment hereunder by giving
the Employee 30 days' written notice thereof, and upon expiration of such
30-day period, the Employer shall not have any further obligation or liability
under this Agreement except that the Employer shall pay to the Employee any
portion of the Employee's salary for the period up to the date of termination
that remains unpaid.
The term "Total Disability" when used herein, shall mean a mental or
physical condition which in the reasonable opinion of the Board of Directors of
the Employer, including the advice of an outside licensed physician, renders
the Employee unable or incompetent to carry out the job responsibilities
required by his position as Director of Finance and Administration and/or such
other positions to which he is assigned by the Employer's Board of Directors.
5. Termination of Employee.
(a) For Cause; Resignation. The Employer may discharge the
Employee and thereby terminate his employment hereunder for cause which shall
be deemed to include the following:
(i) Habitual intoxication;
(ii) Drug addiction;
(iii) Conviction of a felony;
(iv) Material failure to execute such duties as are within
the scope of this Agreement and are reasonably required of an employee holding
his position(s);
(v) a breach by the Employee of any material term of this
Agreement;
(vi) engaging in conduct that, in the reasonable opinion
of the Board of Directors of the Employer and as supported by an unrelated
third party assessment, has injured or would injure the business or reputation
of the Employer or would otherwise adversely affect its interests; or
(vii) misappropriation of any corporate funds or property of the
Employer, theft, embezzlement or fraud.
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In the event that the Employer shall discharge the Employee or cause
pursuant to this Section 5(a), within thirty (30) days written notice, or in
the event the Employee shall resign his employment with the Employer, the
Employer shall not have any further obligation or liability to the Employee
under this Agreement, except that the Employer shall pay to the Employee any
portion of the Employee's salary, and continue to provide fringe and retirement
benefits, for the period up to the date of termination that remains unpaid.
(b) Without Cause. If the Employee discharges the Employee without
cause hereunder (i.e., for a reason other than as set forth in Section 5(a),
the Employer shall not have any further obligation or liability to the Employee
under this Agreement, except that:
(i) The Employer shall pay to the Employee any portion of the
Employee's salary and fringe benefits and retirement benefits, if
applicable, for the period up to the date of termination that remains
unpaid; and
(ii) The Employer shall continue the Employee's salary and fringe
benefits benefits and retirement benefits, if applicable, for a period of
one year after termination.
6. Non-Disclosure and Non-Competition
(a) Non-Disclosure. The Employee recognizes and acknowledges that he
will have access to certain confidential information of the Employer and that
such information constitutes valuable, special and unique property of the
Employer. The Employee agrees that he will not, for any reason or purpose
whatsoever, during or after the term of his employment, disclose any such
confidential information to any person without express authorization of the
Employer, except (i) as necessary in the ordinary course of performing his
duties hereunder or (ii) with regard to information that is in the public
domain or that the Employee learns outside of the scope of his employment. The
Employee also agrees to abide by the terms of any non-disclosure agreements
entered into by the Employer with any third parties.
(b) Non-Competition. The Employee agrees that:
(i) during his employment by the Employer hereunder; and
(ii) for an additional period of two years after the termination of
the Employee's employment hereunder,
neither the Employee nor any firm or corporation in which he may be
interested as a partner, trustee, director, officer, employee, agent,
shareholder, lender of money or guarantor, or for which he performs
services in any capacity (including as a consultant or independent
contractor) shall at any time during such period be engaged, directly
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or indirectly, in any competitive business (as that term is hereinafter
defined); provided, however, that the business activities of the Employee
on behalf of any other entity that is in control of, controlled by or under
common control with the Employer shall not be deemed to violate the
Employee's undertakings as set forth in this Section 6(b). Nothing herein
contained shall be deemed to prevent the Employee from investing in or
acquiring one percent or less of any class of securities of any company if
such class of securities if listed on a national securities exchange or is
quoted on the NASDAQ system. For purposes of this Section 6(b), the term
"Competitive Business" shall mean any business that develops, produces or
markets ophthalmic products, devices or equipment including, but not
limited to, liposomal and other lipid-based topical, intravitreal and
periocular injectable ophthalmic pharmaceutical products, whether of a
diagnostic or therapeutic nature, which are competitive with and marketed
within the same geographic regions as the Employer's products at the time
of termination. Notwithstanding the foregoing, this Section 6(b) shall not
apply if the Employee is terminated by the Employer without cause under
Section 5(b) or if this Agreement is terminated pursuant to Section 2.
(c) Injunctive Relief. The Employee acknowledges that his compliance
with the agreements in Sections 6(a) and 6(b) hereof is necessary to protect
the good will and other proprietary interests of the Employer and that he is a
Director of Finance and Administration of the Employer and conversant with its
affairs, its trade secrets, its customers and other proprietary information.
The Employee acknowledges that a breach of his agreements in Sections 6(a) and
6(b) hereof will result in irreparable and continuing damage to the Employer
for which there will be no adequate remedy at law; and the Employee agrees that
in the event of any breach of the aforesaid agreements, the Employer and its
successors and assigns shall be entitled to injunctive relief and to such other
and further relief as may be proper.
(d) Survival of Covenants. The provisions of this Section 6 shall
survive the termination of this Agreement, except as what otherwise is
determined herein.
7. Supersedes Other Agreements. This agreement supersedes and is
in lieu of any and all other employment arrangements between the Employee and
the Employer, but shall not supersede any existing confidentiality or
nondisclosure agreements between the Employee and the Employer.
8. Amendments. Any amendment to this Agreement shall be made in
writing and signed by the parties hereto.
9. Enforceability. If any provision of this Agreement shall be
invalid or unenforceable, in whole or in part, then such provision shall be
deemed to be modified or restricted to the extent and in the manner necessary
to render the same valid and enforceable, or shall be deemed excised from this
Agreement, as the case may require,
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and this Agreement shall be construed and enforced to the maximum extent
permitted by law as if such provision had been originally incorporated herein
as so modified or restricted or as if such provision had not been originally
incorporated herein, as the case may be.
10. Construction. This Agreement shall be construed and
interpreted in accordance with the internal laws of the State of New Jersey.
11. Assignment
(a) By the Employer. The rights and obligations of the
Employer under this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the Employer.
(b) By the Employee. This Agreement and the obligations
created hereunder may not be assigned by the Employee.
13. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given when
mailed by certified mail, return receipt requested, or delivered by a national
overnight delivery service addressed to the intended recipient as follows:
IF TO THE EMPLOYEE:
Xxxx X. Xxxx
0 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
IF TO THE EMPLOYER:
Escalon Ophthalmics, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xx. 19103
WITH A COPY TO:
Xxxxxxx X. Xxxxxxxx, Esquire
Duane, Morris & Heckscher
0000 Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xx. 00000
Any party may from time to time change its address for the purpose of notices
to that party by a similar notice specifying a new address, but no such change
shall be deemed to have been given until it is actually received by the party
sought to be charged with its contents.
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14. Waivers. No claim or right arising out of a breach or default
under this Agreement shall be discharged in whole or in part by a waiver of
that claim or right unless the waiver is supported by consideration and is in
writing and executed by the aggrieved party hereto or his or its dully
authorized agent. A waiver by any party hereto of a breach or default by the
other party hereto of any provision of this Agreement shall not be deemed a
waiver of future compliance therewith, and such provisions shall remain in full
force and effect.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first above written.
ESCALON OPHTHALMICS, INC.
BY:
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President
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XXXX X. XXXX
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT made as of this 15th day of
January, 1990 between ESCALON OPHTHALMIC, INC., A Pennsylvania corporation (the
"Employer") and XXXX X. XXXX (the "Employee").
R E C I T A L
WHEREAS, the parties entered into an Employment Agreement of even date
and desire to amend said Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and covenants set
forth herein and in the Employment Agreement, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Paragraph 2 is hereby amended to delete the last
sentence thereof.
2. Paragraph 3(b) is hereby amended to provide that the
purchase price for the 50, 000 shares of the Employer's Common Stock referred
to therein shall be $.25 per share.
3. Paragraph 3(c)(ii) is hereby amended to delete clause
(i) thereof.
4. Paragraph 6(b) is hereby amended to delete the words
"or if this Agreement is terminated pursuant to Section 2" at the end thereof.
5. In all other aspects, the Employment Agreement is
ratified and affirmed by the parties.
IN WITNESS WHEREOF, this First Amendment has been executed by the
parties as of the date first above written.
ESCALON OPHTHALMICS, INC.
By:
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President
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XXXX X. XXXX
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EXTENSION TO EMPLOYMENT AGREEMENT
This EXTENSION TO EMPLOYMENT AGREEMENT ("Extension") dated September
12, 1995 is executed between Escalon Ophthalmics, Inc. ("Employer") and Xxxx
X. Xxxx, 0 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Employee").
Whereas on January 15, 1990 the Employer and the Employee entered into
an Employment Agreement ("Agreement") under which the parties agreed that the
Employee would serve as the Director of Finance and Administration for the
Employer, or such other positions as the Employer determined, for a period of
five (5) years, and;
Whereas, the Agreement provides that the Agreement will automatically
extend for periods of one (1) year unless either party notifies the other of
its intention to terminate the Agreement, and;
Whereas, the Agreement automatically extended for the period of
January 15, 1995 to January 14, 1996 because neither party notified the other
of its intention to terminate, and during the ensuing period the Employee was
promoted to the position of Vice President of Finance and Administration, and
the parties now mutually desire that the term of the Agreement be extended for
an additional one (1) year period.
NOW, THEREFORE, the Employer and Employee mutually agree that this
Extension be executed, and the term of the Agreement is extended for an
additional one (1) year period, from January 15, 1996 until January 14, 1997,
and that all other terms and conditions of the Agreement remain the same.
Escalon Ophthalmics, Inc. Xxxx X. Xxxx
000 Xxxxxxxx Xxxxxx 0 Xxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
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Xxxxxxxx X. Xxxxxxx
President and CEO
Date: September 12, 1995 September 12, 1995
