EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit (e)(8)
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of November 1, 2008
(the “Effective Date”), by and between Xxxxxx X.
Xxxxxxxx (“Executive”) and Global Med
Technologies, Inc. (the “Company”).
RECITALS
The Company wishes to retain the services of Executive pursuant to this Agreement, the terms
and provisions of which are set forth below.
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
| 1. | POSITION AND DUTIES |
| (a) | During the Term (as defined in Section 3), Executive will be employed by the Company as President and Chief Operating Officer and shall be responsible for the active day-to-day management of the business and affairs of the Company, shall have the duties and responsibilities consistent with and incumbent upon his position as President and Chief Operating Officer of the Company, but at all times shall act in accordance with the directions given by the Chief Executive Officer of the Company, and shall perform such other duties as from time to time determined by the Company. | ||
| (b) | Executive shall serve the Company faithfully, loyally, honestly, and to the best of Executive’s ability. Executive will devote substantially all of Executive’s business time to the performance of Executive’s duties for, and in the business and affairs of, the Company. |
| 2. | BASE SALARY INCENTIVE COMPENSATION |
Commencing on the Effective Date and, unless terminated earlier pursuant to the terms of this
Agreement, during the Term of this Agreement, Executive’s annual base salary will be Two Hundred
Eighty-Five Thousand Five Hundred Dollars ($285,500), payable in accordance with the Company’s
customary payroll practices as are in effect from time to time (“Base Salary”).
Annually, within thirty (30) days of filing the Company’s annual financial statements with the
Securities and Exchange Commission (“SEC”) while this Agreement is in effect, solely at the option
of the Company, Executive may be entitled to receive incentive compensation as determined by the
Company’s Board of Directors (the “Board”). This incentive compensation shall be based on
objectives which shall be established by the Board by December 31st of each year of
employment which shall govern the incentives for the following year. The terms and conditions of
the incentive compensation are to be determined solely by the Board. Executive shall give input
into the objectives.
| 3. | TERM |
The “Initial Term” of this Agreement shall begin on the Effective Date and shall expire on the
first (1st) anniversary of the date hereof, unless sooner terminated in accordance with
the provisions of this Agreement. The Initial Term and each renewal term thereafter shall be
automatically renewed for successive one (1) year periods, unless the Company shall have
provided
written notice to Executive at least ninety (90) days prior to the expiration of the then current
term of its intent not to renew this Agreement (each extension period following the Initial Term
shall be referred to as a “Renewal Term”). The Initial Term and all Renewal Term(s), if any, shall
be referred to collectively as the “Term”.
| 4. | TERMINATION OF EMPLOYMENT |
| (a) | Termination without Good Reason or Termination for Cause. |
| (i) | If, prior to the expiration of the Term, Executive’s employment is terminated by the Company for “Cause” (as defined below) or if Executive resigns from his employment hereunder without “Good Reason” (as defined below), Executive shall be entitled to payment of (A) his Base Salary accrued up to and including the date of termination or resignation, including any accrued or unused vacation time, and (B) any unreimbursed expenses. Executive shall also be entitled to all stock options that have vested at the time of termination. Except to the extent required by the terms of the benefits provided in Section 5 or applicable law, Executive shall have no right under this Agreement or otherwise to receive any other compensation or to participate in any other plan, program or arrangement after such termination or resignation of employment with respect to the year of such termination or resignation or thereafter. | ||
| (ii) | Termination for “Good Reason” shall mean a termination by Executive of his employment if, without Executive’s consent, any of the following events occur; (a) a decision by the Company to terminate its business and liquidate its assets; (b) the Company makes a general assignment for the benefit of creditors, files a voluntary bankruptcy petition, files a petition or answer seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any law, there shall have been filed any petition or application for the involuntary bankruptcy of the Company, or other similar proceeding, in which an order for relief is entered or which remains undismissed for a period of sixty (60) days or more, or the Company seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Company or any material party of its assets; (c) there are material reductions in the Executive’s duties and responsibilities without his written consent or a demotion from the position of President and Chief Operating Officer; (d) the Company materially breaches this Agreement; (e) a reduction in the Executive’s Base Salary (not including bonus or incentive compensation) other than any such reduction which is part of, and generally consistent with, a general reduction of officers’ salaries; (f) a material reduction by the Company in the kind or level of employee benefits (other than salary and incentive compensation bonus) to which the Executive is entitled immediately prior to such reduction with the result that the Executive’s overall benefits package (other than salary and incentive compensation/bonus) is substantially reduced; (g) the Executive is required to relocate outside the Sacramento area, or (h) there is a Change in Control in the Company, which shall mean the consummation of any of the following transactions effecting a change in ownership or control of the Company. |
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| (1) | a merger, consolidation or reorganization, unless securities representing more than fifty percent (50%) of the total combined voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly and in substantially the same proportion, by the persons who beneficially owned the Company’s outstanding voting securities immediately prior to such transaction; or | ||
| (2) | any transfer, sale or other disposition of all or substantially all of the Company’s assets; or | ||
| (3) | the acquisition, directly or indirectly by any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s beneficial holders. |
| (iii) | Termination for “Cause” shall mean a termination of Executive’s employment with the Company because of (A) a plea of guilty or nolo contendem, or conviction for, the commission of a felony offense by Executive, (B) except with respect to matters before the Food & Drug Administration, the involvement by Executive as a party to any litigation or regulatory proceeding or in any other circumstance known to the general public that, in the good faith determination of the Board of Directors of the Company, is reasonably certain to subject Executive, the Company or its affiliates to disrepute, ridicule, contempt or scandal or that is reasonably certain to reflect unfavorably upon the reputation of Executive, the Company or its affiliates or the Company’s products or technologies, except that this subsection (iii)(B) does not apply to claims that Executive may bring against the Company that are protected by law; (C) the willful failure to perform in any material respect Executive’s duties; (D) an intentional act of fraud, embezzlement, theft or a dishonest act against the Company or its affiliates; (E) a material breach by Executive of the terms and provisions of the Agreement; or (F) a violation by Executive of a fiduciary duty or duty of loyalty to the Company. The Executive’s employment shall in no event be considered to have been terminated by the Company for Cause if such termination took place merely as a result of (i) bad judgment or negligence, (ii) any act or omission without intent of gaining therefrom directly or indirectly a profit to which the Executive was not legally entitled, (iii) any act or omission believed in good faith to have been in or not opposed to the interest of the Company or (iv) any act or omission in respect of which a determination is made that the Executive met the applicable standard of conduct prescribed for indemnification or reimbursement or payment of expenses under the Certificate of Incorporation of the Company, under this Agreement or the laws of the State of California, in each case as in effect at the time of such act or omission. |
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| (iv) | Termination by Executive of his employment for Good Reason shall be communicated by delivery to the Company of a written notice from the Executive stating that Executive is terminating the employment for Good Reason, specifying the particulars thereof and the effective date of such termination. In the event of a termination for Good Reason under Section 4(a)(ii), (c), (d), (e), (f) or (g), the Company shall have thirty (30) days from the date of receipt of such notice to effect a cure of the actions constituting Good Reason. Upon a cure or correction thereof within such thirty (30) day cure period by the Company to the reasonable satisfaction of Executive, the action shall no longer constitute Good Reason for purposes of this Agreement. | ||
| (v) | Termination of Executive’s employment for Cause shall be communicated by delivery to Executive of a written notice from the Company stating that Executive will be terminated for Cause, specifying the particulars thereof and the effective date of such termination. In the event of a termination for Cause under Section 4 (a)(iii)(C)(E) or (F), Executive shall have thirty (30) days from the date of receipt of such notice to effect a cure of the actions constituting Cause. Upon a cure or correction thereof within such thirty (30) day cure period by Executive to the reasonable satisfaction of the Company, the action shall no longer constitute Cause for purposes of this Agreement. Executive shall not be entitled to a cure period for a repeated breach of the same Section of this Agreement. | ||
| (vi) | The date of a resignation by Executive without Good Reason shall be the date specified in a written notice of resignation from Executive to the Company; provided that, Executive shall provide at least thirty (30) days’ advance written notice of his resignation without Good Reason. |
| (b) | Payments Upon a Termination Without Cause, Termination with Good Reason or Non-Renewal of Agreement. If the Company terminates Executive’s employment for any reason other than Disability, Death or Cause (such termination being hereinafter referred to as “Termination Without Cause”) or the Company fails to renew this Agreement after the expiration of the Initial Term or any Renewal Term thereafter or Executive terminates his employment for “Good Reason”, Executive shall be entitled to (A) continuation of benefits for the remainder of the Initial Term or the then current Renewal Term, if any, (B) payment of any unreimbursed expenses, and (C) Executive’s vested options. In addition, subject to Executive’s execution and delivery of a release in the form then deemed appropriate by the Company, Executive shall be entitled to (i) severance consisting of continuation of his Base Salary and benefits at the rate in effect on the date of Termination Without Cause, termination for Good Reason, or date of non-renewal for twenty-four (24) months following the date of the Termination Without Cause, termination for Good Reason, or non-renewal, (ii) a lump sum payment equal to any accrued but unpaid incentive compensation prorated through the date of termination, which sum shall be payable upon the Executive’s termination date. To the extent the Company grants to Executive any options or shares of restricted stock during the Term of this Agreement, then the Company shall in such grant documentation provide that in the event that Executive is terminated without cause, terminates for Good Reason, or the Term |
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| is not renewed, then all of Executive’s unvested options or unvested shares shall vest in full. The date of termination of employment for Termination Without Cause shall be the date specified in the written notice of termination provided by the Company to Executive. The date of termination for Good Reason shall be the date of expiration of the cure period set forth in Section 4(a)(iv) hereof. Except as specifically set forth above, Executive covenants and agrees that he shall not be entitled to any other form of severance benefits from the Company, including, without limitation, benefits otherwise payable under the Company’s regular severance policies, if any, in the event his employment ends for any reason and, except with respect to obligations of the Company expressly provided for herein, Executive unconditionally releases the Company and its subsidiaries and affiliates, and their respective directors, officers, employees and stockholders, or any of them, from any and all claims, liabilities, or obligations under any severance arrangements of the Company or any of its subsidiaries or affiliates. If after a Termination without Cause, a termination for Good Reason, or nonrenewal Executive secures employment with Haemonetics Corporation or Mediware Information Systems, Inc. or any other person, company, partnership, corporation or government entity engaged in the donor center software business or the hospital transfusion software business (“Competing Businesses”), the salary continuation provided for in this Section shall cease effective Executive’s hire date with either of these Competing Businesses. | |||
| (c) | Termination due to Disability. In the event of Executive’s Disability, the Company shall be entitled to terminate his employment. In the case that the Company terminates Executive’s employment due to Disability, Executive shall be entitled to his Base Salary and cash bonus on a pro-rata basis, including any accrued but unused vacation time, up to and including the date of termination as well as any unpaid expense reimbursements. In addition, Executive shall also be entitled to all stock options that have vested at the time of termination. As used in this Section 4(c), the term “Disability” shall mean the Company’s determination that due to physical or mental illness or incapacity, whether total or partial, Executive is substantially unable (with or without a reasonable accommodation) to perform his duties hereunder for a period of sixty (60) consecutive days or shorter periods aggregating ninety (90) days during any period of one hundred eighty (180) consecutive days. | ||
| (d) | Death. This Agreement shall terminate automatically on Executive’s death. Any Base Salary, including any accrued but unused vacation time, earned by Executive for services rendered prior to Executive’s death and any unpaid expense reimbursements shall be paid. In addition, Executive shall be entitled to all stock options that have vested at the time of death and a pro-rata share of Executive’s cash bonus. Such payments will be paid to and such stock and options tendered to Executive’s surviving spouse, or if Executive does not leave a surviving spouse, to Executive’s estate. No other benefits shall be payable to Executive’s estate or heirs pursuant to this Agreement, but amounts may be payable pursuant to any life insurance or other benefit plans maintained in whole or in part by the Company for the benefit of Executive, his estate or heirs. | ||
| (e) | Timing of Payments. Notwithstanding any other provision with respect to the timing of payments under this Section 4, if, at the time of Executive’s termination, Executive is deemed to be a “specified employee” (within the meaning of Section |
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| 409A of the Internal Revenue Code (the “Code”), and any successor statute, regulation and guidance thereto) of the Company, then only to the extent necessary to comply with the requirements of Section 409A of the Code, any payments to which Executive may become entitled under this Section 4 which are subject to Section 409A of the Code (and not otherwise exempt from its application) will be withheld until the first (1st) business day of the seventh (7th) month following the termination of Executive’s employment with the Company, at which time Executive shall be paid an aggregate amount equal to six (6) months of payments otherwise due to Executive under the terms of this Section 4. After the first business day of the seventh (7th) month following the termination of Executive’s employment and continuing each month thereafter, Executive shall be paid the regular payments otherwise due to Executive in accordance with the terms of the applicable provision of Section 4. |
| 5. | BENEFITS |
| (a) | Executive will be entitled to participate in all employee benefit plans which may be instituted by the Company in its sole discretion, subject to any restrictions outlined in the applicable plan. The foregoing shall not be construed to limit the ability of the Company to amend, modify or terminate any such benefit plans, policies or programs at any time and from time to time. | ||
| (b) | Executive’s vacation is to accrue on a pro-rata basis throughout the year and is to be taken in accordance with Company’s standard vacation policies. Vacation shall accrue in accordance with then-current Company policies. The Company’s paid holidays are in addition to the above-referenced vacation time. | ||
| (c) | In addition to the compensation and benefits provided above, the Company shall, upon receipt of appropriate documentation, reimburse Executive for his reasonable and pre-approved travel, lodging, entertainment, promotion, and other ordinary and necessary business expenses consistent with the Company’s policies. No expense or reimbursement under this Section 5 shall be “grossed up” or increased to take into account any tax liability incurred by Executive as a result of such payment or reimbursement. |
| 6. | CONFIDENTIALITY AND NON-DISCLOSURE |
| (a) | Inventions. The Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all proprietary software and inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by Company or Executive during the Term of this Agreement in connection with or relating to the Company’s business (collectively, “Inventions”) and Executive will promptly disclose and provide all Inventions to the Company. All Inventions are work made for hire to the extent allowed by law and, in addition, Executive hereby makes all assignments necessary to accomplish the foregoing ownership. Executive shall further assist the Company, and execute any documents requested by the Company, at the Company’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. By signing this Agreement, Executive acknowledges that he has been informed and advised of California Labor Code |
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| section 2870 relating to the assignment of inventions as set forth in the “Notice” attached as Exhibit “A” to this Agreement. |
| (b) | Proprietary Information. Executive agrees that all Inventions, and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees), the Company or Executive develops, learns or obtains during the term hereof that relate to the Company or the business or anticipated business of Company or that are received by or for the Company in confidence, which is not information in the public domain, constitute “Proprietary Information.” Executive will hold in confidence and not disclose or, except in performing hereunder, use any Proprietary Information. Upon termination and as otherwise requested by the Company, Executive will promptly return to the Company all items and copies containing or embodying Proprietary Information, including, but not limited to, any copies of documents, computer print-outs, computer tapes, floppy disks, CD ROMS, etc., in any form, format or manner whatsoever. Executive also recognizes and agrees that Executive has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, e-mail messages and voice messages) and that Executive’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice. | ||
| (c) | Confidential Information. The parties acknowledge that during the Term, Executive will perform essential services for the Company, its employees and shareholders, and for customers of the Company. Therefore, Executive will be given an opportunity to meet, work with and develop close working relationships with the Company’s clients and customers on a first-hand basis and will gain valuable insight as to the clients’ operations, personnel and need for services. In addition, Executive will have access to, and be required to work with, a considerable amount of the Company’s Proprietary Information. All business practices, techniques or processes that (i) derive independent economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, are confidential (the “Confidential Information”) and/or Proprietary. This includes, but is not limited to information concerning the Company’s intellectual property (including proprietary software), methods of operation, financial information, strategic planning, operational budgets and strategies, payroll data, management systems programs, computer systems, marketing plans and strategies, merger and acquisition strategies, customer lists, customer contracts, files, letters, memoranda, reports, records, data, employee lists, salary information, training manuals, and other materials and business information of a similar nature, including information about the Company itself, which Executive acknowledges and agrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of a similar kind transmitted by the Company to Executive are also Confidential and/or Proprietary Information. |
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| (d) | All Confidential and Proprietary Information is considered highly sensitive and strictly confidential. Executive agrees that at all times during the Term and after the termination of employment with the Company for as long as such information remains non-public information, Executive shall (i) hold in confidence and refrain from disclosing to any other party all Confidential and Proprietary Information, whether written or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a nondisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with his employment with the Company and for no other purpose, (iii) take all precautions necessary to ensure that the Confidential and Proprietary Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the Confidential and Proprietary Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential or Proprietary Information, unless expressly permitted by this Agreement. Executive agrees that protection of the Company’s Confidential and Proprietary Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Executive further agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential and Proprietary Information. | ||
| (e) | In the event that Executive is ordered to disclose any Confidential or Proprietary Information, whether in a legal or regulatory proceeding or otherwise, Executive shall provide the Company with prompt notice of such request or order so that the Company may seek to prevent disclosure prior to the required disclosure. | ||
| (f) | Executive acknowledges that the Confidential and Proprietary Information is of value to the Company by providing it with a competitive advantage over its competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination. Executive acknowledges that the Confidential and Proprietary Information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all confidential and Proprietary Information under this Agreement constitutes trade secrets of the Company. |
| 7. | NON-SOLICITATION |
| (a) | Non-Solicitation. Executive agrees and acknowledges that, during his employment and for a period of one year following the termination or expiration of this Agreement (the “Non-Solicitation Restrictive Period”), he will not, directly or indirectly, in one or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or otherwise, for the benefit of himself or any other person, partnership, firm, |
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| corporation, association or other legal entity, use any confidential trade secret information of the Company to unlawfully: |
| (i) | solicit or induce any customer, or any prospective customer, of the Company to patronize or do business with any business directly or indirectly in competition with the businesses conducted by the Company in any market in which the Company does business; or | ||
| (ii) | canvass, or solicit from any customer, or any prospective customer, of the Company any such business relationship that is in competition with the Company; or | ||
| (iii) | request or advise any customer or vendor, or any prospective customer or vendor, of the Company to withdraw, curtail or cancel any such customer’s or vendor’s business with the Company; or | ||
| (iv) | recruit, solicit or otherwise induce or influence any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint venturer, investor, lessor, supplier, customer, agent, representative or any other person which has a business relationship with the Company to discontinue, reduce or modify such employment, agency or business relationship with the Company; or | ||
| (v) | solicit or seek to employ, directly or indirectly, any person or agent who is then (or was at any time within twelve (12) months prior to the date Executive or such entity employs or seeks to employ such person) employed or retained by the Company. |
Notwithstanding the foregoing restricted unlawful conduct, the parties agree that Executive
may issue a general notification to customers upon the termination of the Agreement advising them
of such termination and providing them with Executive’s contact information.
If Executive violates Executive’s obligations under this Section 7(a), then the time periods
hereunder shall be extended by the period of time equal to that period beginning when the
activities constituting such violation commenced and ending when the activities constituting such
violation terminated.
| (b) | Devotion to Employment. Executive shall devote substantially all of Executive’s business time and best efforts to the performance of Executive’s duties on behalf of the Company. During the Term, Executive shall not at any time or place or to any extent whatsoever, either directly or indirectly, without the express written consent of the Company (which consent can be withheld in the sole and absolute discretion of the Company), engage in any outside employment, or in any activity competitive with or adverse to Company’s business, practice or affairs, whether alone or as partner, member, officer, director, employee, shareholder of any corporation or as a trustee, fiduciary, consultant or other representative. This is not intended to prohibit Executive from engaging in nonprofessional activities such as personal investments or conducting to a reasonable extent private business affairs, as long as they do not conflict with the Company as determined by the Company. Participation to a reasonable extent in civic, social or community activities is encouraged. |
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| (c) | Competing Business. During the Term, Executive shall not, directly or indirectly, (including, without limitation, as a partner, member, director, officer or employee of, or lender or consultant to, any other personal entity, or shareholder (other than as the holder of less than five percent (5%) of the stock of a corporation the securities of which are traded on a national securities exchange or in the over-the-counter market), for Executive, or on behalf of, or in conjunction with, any other person(s), company, partnership, corporation, or governmental entity, in any manner whatsoever, or in any other capacity, within, into or from the Restricted Territory (as defined below) engage or cause others to engage in the same or similar business as the Company and its subsidiaries, affiliates, or parent corporation or any aspect thereof, unless first authorized in writing by the Company, which authorization may be withheld in the sole and absolute discretion of Company. For purposes of this Section 7(c), the term “Restricted Territory” shall mean any geographical service area where the Company or any of its subsidiaries, affiliates or parent corporation is engaged in business, sells products, or performs services or has devoted resources to attempt to engage in business at any time, prior to the termination or at the time of termination or expiration. If Executive violates Executive’s obligations under this Section 7, then the time periods hereunder shall be extended by the period of time equal to that period beginning when the activities constituting such violation commenced and ending when the activities constituting such violation terminated. | ||
| (d) | Judicial Amendment. If the scope of any provision of this Section 7 is found by a court of competent jurisdiction to be too broad to permit enforcement to its full extent, then such provision shall be enforced to the maximum extent permitted by law. The parties agree that the scope of any provision of this Agreement may be modified by a judge in any proceeding to enforce this Agreement, so that such provision can be enforced to the maximum extent permitted by law. If any provision of this Agreement is found to be invalid or unenforceable for any reason, it shall not affect the validity of the remaining provisions of this Agreement. |
| 8. | INJUNCTIVE RELIEF AND DAMAGES |
| (a) | Injunction. Executive acknowledges and agrees that a breach of Section 6 or 7 will cause immediate and irreparable injury and damage to the Company and that, upon a breach of Section 6 or 7, the Company cannot be made whole or have its interests completely protected solely by a monetary award of damages. Accordingly, Executive agrees that, if he breaches or threatens to breach any of the terms of Section 6 or 7, the Company, shall be entitled to the issuance of a temporary and/or permanent injunction by any court of competent jurisdiction without the posting of any bond enjoining him from such unauthorized disclosure. The terms of Section 6 and 7 will survive the termination or expiration of this Agreement. | ||
| (b) | Additional Remedies. The foregoing remedies are in addition to any other rights or remedies available to the Company. | ||
| (c) | Attorney’s Fees. In the event the Company brings an action for breach or threat of a breach of any of the terms of Section 6 or 7 of this Agreement, the prevailing |
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| party shall be entitled to recover the actual attorneys’ fees, costs and expenses incurred by the prevailing party in connection therewith. |
9. INDEMNIFICATION
To the fullest extent permitted by applicable law, the Company agrees to indemnify, defend and
hold the Executive harmless from any and all claims, actions, costs, expenses, damages and
liabilities, including, without limitation, reasonable attorneys’ fees, hereafter or heretofore
arising out of or in connection with activities of the Company or its employees, including the
Executive, or other agents in connection with and within the scope of this Agreement or by reason
of the fact that he is or was a director or officer of the Company or any affiliate of the Company.
To the fullest extent permitted by applicable law, the Company shall advance to the Executive
expenses of defending any such action, claim or proceeding. However, the Company shall not
indemnify the Executive or defend the Executive against, or hold him harmless from any claims,
damages, expenses or liabilities, including attorneys’ fees, resulting from unlawful conduct on the
part of Executive if, at the time of the unlawful conduct, the Executive believed the conduct to be
unlawful. The duty to indemnify shall survive the expiration or early termination of this Agreement
as to any claims based on facts or conditions which occurred or are alleged to have occurred prior
to expiration or termination.
10. TAX WITHHOLDING
All amounts paid to Executive hereunder shall be subject to all applicable federal, state and
local wage withholding.
11. INSURANCE
Executive acknowledges and agrees that the Company shall be entitled to obtain insurance on
the life of Executive in the amount of one million dollars ($1,000,000). Such policy or policies
shall be for the benefit, and name as loss payee thereon, the Company.
12. REPRESENTATION BY EMPLOYEE
Executive represents and warrants that his entering into this Agreement does not, and that his
performance under this Agreement and consummation of the transactions hereby will not, violate the
provisions of any agreement or instrument to which Executive is a party or any decree, judgment or
order to which Executive is subject, and that this Agreement constitutes a valid and binding
obligation of Executive in accordance with its terms. A breach of this representation will render
all of the Company’s obligations under this Agreement ab initio.
13. NOTICES
Any notice required or permitted to be given by either party under or in connection with this
Agreement shall be in writing and shall be deemed duly given (i) if personally delivered, (ii) if
sent by registered or certified mail, return receipt requested, or (iii) if sent via facsimile
transmission upon electronic confirmation of receipt thereof during normal business hours; to the
applicable party at the address indicated below:
If to the Company:
Global Med Technologies, Inc.
00000 Xxxx Xxxxxx Xxxxxx
Xxxxx X-000
Xxxxxxxx XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, M.D.
Global Med Technologies, Inc.
00000 Xxxx Xxxxxx Xxxxxx
Xxxxx X-000
Xxxxxxxx XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, M.D.
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Chairman and CEO
Fax: (000) 000-0000
With a copy to: K&L Gates LLP
000 X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Executive: Xxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxx Xx.
Xx Xxxxxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax:
With a copy to: Xxxxxxx X. Xxxxxxxx
Xxxxx & Xxxxxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Fax: (000) 000-0000
With a copy to: K&L Gates LLP
000 X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Executive: Xxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxx Xx.
Xx Xxxxxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax:
With a copy to: Xxxxxxx X. Xxxxxxxx
Xxxxx & Xxxxxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
or, to such other address as shall be designated by such party in a written notice to the other
party pursuant to the provisions of this Section 13. All such notices, requests, demands and other
communications shall be effective when sent.
14. WAIVER
This Agreement constitutes the entire agreement between the parties as to the subject matter
hereof. Accordingly, there are no side agreements or verbal agreements other than those that are
stated in this document. Any amendment, modification or change in said Agreements must be done so
in writing and signed by both parties.
15. ASSIGNMENT AND BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the Executive and the
Executive’s heirs, executors, personal representatives, assigns, administrators and legal
representatives. Because of the unique and personal nature of the Executive’s duties under this
Agreement, neither this Agreement nor any rights or obligations under this Agreement shall be
assignable by the Executive. This Agreement shall be binding upon and inure to the benefit of the
Company and its successors, assigns and legal representatives. Any successor of the Company will
be deemed substituted for the Company under the terms of this Agreement for all purposes. For this
purpose, “successor” means any person, firm, corporation or other business entity which at any
time, whether by purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company.
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16. SEVERABILITY
In the event a court or judge declares that any provision of this Agreement is invalid or
unenforceable, it shall not affect or invalidate any of the remaining provisions. Further, the
court shall have the authority to re-write that portion of the Agreement it deems unenforceable, to
make it enforceable.
17. GOVERNING LAW
The laws of the State of California shall govern the interpretation and application of all of
the provisions of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
effective on the date set forth above.
| THE COMPANY: | EXECUTIVE: | |||||
| GLOBAL MED TECHNOLOGIES, INC. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxx, M.D. | /s/ Xxxxxx X. Xxxxxxxx | ||||
Name:
|
Xxxxxxx X Xxxxx, M.D. | Xxxxxx X. Xxxxxxxx, Individually | ||||
Title:
|
Chief Executive Officer | |||||
- 14 -
EXHIBIT A
THIS IS TO NOTIFY you in accordance with Sections 2870 and 2872 of the California Labor Code
that the invention assignment agreement between you and the Company does not require you to assign
or offer to assign to the Company any invention that you developed entirely on your own time
without using the Company’s equipment, supplies, facilities or trade secret information, except for
those inventions that either:
1. Relate at the time of conception or reduction to practice of the invention to the Company’s
business, or actual or demonstrably anticipated research or development of the Company; or
2. Result from any work performed by you for the Company.
To the extent a provision in your employment agreement purports to require you to assign an
invention otherwise excluded from being required to be assigned pursuant to the preceding
paragraph, the provision is against the public policy of the State of California and is
unenforceable.
This limited exclusion does not apply to any patent or invention covered by a contract between
the Company and the United States or any of its agencies requiring full title to such patent or
invention to be in the United States.
The employee bears the burden of proving that an invention created by the employee should be
excluded from the invention assignment agreement.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
|||
Date: |
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Amendment to Employment Agreement
This
Amendment (the “Amendment”) is effective as of
November 1, 2008 (the
“Effective Date”), to amend that certain Executive Employment Agreement effective as of
November 1, 2008 (the “Employment Agreement”), by and between Xxxxxx X. Xxxxxxxx
(“Executive”) and Global Med Technologies, Inc. (the “Company”). Except as
otherwise provided herein, capitalized terms used in this Amendment shall have the meanings given
to them in the Employment Agreement.
WITNESSETH:
WHEREAS, Executive and the Company entered into that certain Employment Agreement effective as
of November 1, 2008; and
WHEREAS, the parties hereto desire to amend the Employment Agreement to reflect certain
clarifications with respect to the severance provisions.
NOW, THEREFORE, in for good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
A. The following language shall be inserted at the end of the last sentence of Section 4(b) of
the Employment Agreement:
“unless the Competing Business employs Executive as a result of such Competing
Business (i) becoming the successor corporation in connection with a merger,
consolidation or reorganization of the Company, (ii) acquiring all or substantially
all of the Company’s assets, or (iii) acquiring beneficial ownership of securities
possessing more than fifty percent (50%) of the total combined voting power of the
Company’s outstanding securities.”
B. Other than as expressly modified by this Amendment, all the other provisions of the
Employment Agreement shall remain unchanged and shall continue in full force and effect in
accordance with the terms and provisions thereof.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the Company and Executive have executed this Amendment to Employment
Agreement as of the Effective Date.
| THE COMPANY: | EXECUTIVE: | |||||
| GLOBAL MED TECHNOLOGIES, INC. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxx, M.D. | /s/ Xxxxxx X. Xxxxxxxx | ||||
Name:
|
Xxxxxxx X. Xxxxx, M.D. | Xxxxxx X. Xxxxxxxx, Individually | ||||
Title:
|
Chief Executive Officer | |||||
