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MEDICAL DEVICE ALLIANCE INC.
EXHIBIT 10.35
XXXXXX
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into at
Las Vegas, Nevada, on the date hereinafter set forth, by and between XXX X.
XXXXXX (hereinafter referred to as the "Employee"), and MEDICAL DEVICE ALLIANCE,
INC., a Nevada corporation (hereinafter referred to as the "Corporation").
The parties hereto, intending to be legally bound, do hereby agree as
follow:
1. EMPLOYMENT
1.1 POSITIONS AND DUTIES
The Corporation does hereby employ the Employee and the Employee
hereby accepts such employment as VICE PRESIDENT AND CHIEF OPERATING OFFICER of
Medical Device Alliance, Inc. upon the terms and provisions set forth in this
Agreement. The Employee shall perform all the duties assigned to him by the
Corporation, shall observe and comply with the Corporation's rules and
regulations regarding the performance of his duties, and shall carry out and
perform all orders, directions, and policies stated to him by the Corporation
periodically, either orally or in writing. The Employee shall at all times carry
out the duties assigned to him in a loyal, trustworthy and businesslike manner.
The Employee agrees that this Agreement may be terminated as provided in Section
7. hereof.
1.2 PLACE OF EMPLOYMENT
Unless the parties agree otherwise in writing, during the term of
this Agreement, the Employee shall perform the services required by this
Agreement at Medical Device Alliance, Inc. headquarters and at it's operating
subsidiaries. The Corporation will require Employee to travel from time to time
for various business purposes including those of the Corporation's subsidiaries.
2. TERM
This Agreement shall commence as of the Effective Date specified in
Exhibit A hereto and shall continue for a period of three (3) years from the
date of this Agreement. On the anniversary of this Agreement, the term of
Employee's employment shall automatically be extended by one year, unless either
party gives 60 (sixty) days prior written notice of its intention to discontinue
this automatic extension.
3. COMPENSATION
3.1 AMOUNT OF COMPENSATION
The Effective Date of this Agreement and the employee
compensation are set forth in Exhibit A hereto. The Corporation may, from time
to time, modify the employment conditions and compensation. These changes will
be recorded in subsequent exhibits.
3.2 REIMBURSEMENTS
The Employee shall be reimbursed by the Corporation only for
amounts actually expended by the Employee in the course of performing duties for
the Corporation where:
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3.2.1 AUTHORIZATION
The Employee has been authorized by the Corporation to
incur such expenses that are reasonably consistent with practices or policies of
the Corporation.
3.2.2 DOCUMENTATION
The Employee tenders receipts or other documentation
substantiating the amounts as required by the Corporation.
3.3 FRINGE BENEFITS
The Employee shall be entitled to receive, on the same basis as
the Corporation's other executive employees, all other benefits maintained by
the Corporation for its executive employees generally including, but not limited
to, a cellular phone, automobile allowance, paid leave, medical, dental, life
and disability insurance and any other health and welfare benefit plans and
perquisites, as in effect from time to time. The Employee will be granted paid
leave consistent with the Corporation's paid leave policy in effect from time to
time.
3.4 STOCK OPTIONS
The Employee may receive stock options to purchase the
Corporation's Stock under the Corporation's Stock Option Plans or Warrants, as
determined from time to time by the Corporation's Board of Directors. The
Employee will also execute any other documents reasonably required by the
Corporation in connection with said Warrants and/or options, and hereby agrees
to execute any lock-up or similar agreements required by the Corporation's
underwriters in connection with an offering or offerings of the Corporation's
securities.
4. COMPETITION
The Employee agrees that during the term of this Agreement he shall
diligently devote his time and efforts to the duties and responsibilities
assigned to him by the Corporation, and without prior express written
authorization of the Corporation's Board of Directors, the Employee shall not,
directly or indirectly, either alone or in concert with others, during the term
of this Agreement:
4.1 OTHER SERVICES
Perform or render any services of a business, professional or
commercial nature, relating to service or products in direct competition with
the Corporation, to or for the benefit of any other person or firm, whether for
compensation or otherwise, except for personal investments, and for other
activities approved by the Corporation;
4.2 COMPETITION
Engage in any activity directly in competition with or adverse to
the Corporation;
4.3 SOLICITATION
Engage in any activity for purposes of influence or attempting to
influence the Corporation's customers or to conduct business with any business
enterprise in competition with the Corporation;
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4.4 COMPETING ENTERPRISE
Undertake or participate in any planning for or organization of
any business activity that is or will be in direct competition with the
Corporation for products in which the Employee has worked or with which the
Employee has come into contact, or of which the Employee has gained knowledge
during the term of his employment under this Agreement; or
4.5 OTHER ACTIVITIES
Engage in any other business activity that would materially
interfere with the performance of any of the Employee's obligations and duties
under this Agreement.
5. PROHIBITION AGAINST COMPETITION
5.1 AGREEMENT NOT TO COMPETE
As a result of the Employee's employment, the Employee will have
access to trade secrets and confidential information about the Corporation, its
products, its services, its customers and its methods of doing business. In
consideration for access to this information, the Employee agrees that for a
period of one (1) year after termination of employment, the Employee will not
compete with the Corporation without the Corporation's prior express written
approval.
5.2 COMPETITION DEFINED
"Competition" shall mean any participation in, assistance of,
employment by, ownership of any interest in, acceptance of business from or
assistance, promotion or organization of any person partnership, corporation,
firm, association or other business organization, entity or enterprise which, is
engaged in, or hereinafter engages in, research on, or development, production,
marketing, leasing or selling of, any product, process or service which is the
same as or in competition with, any products or research in which the
Corporation, its parent, subsidiary or affiliated company, is now engaged or
hereinafter engages, whether as an agent, consultant, employee, officer,
director, investor, partner, shareholder, proprietor or in any other individual
or representative capacity, but excluding the holding for investment of less
that 5% of the outstanding securities of any Corporation which are regularly
traded on Nasdaq or a recognized stock exchange.
5.3 FURTHER EMPLOYEE AGREEMENTS
For a period of one (1) year after the termination of the
Employee's employment, the Employee will not undertake any employment or
activity competitive with the Corporation wherein the loyal and complete
fulfillment of the duties of the competitive employment or activity would call
upon the Employee to make judgements on or otherwise to use any confidential
business information concerning the Corporation. The Employee will not, either
for himself or for any other person, firm or corporation, divert or take away
(or attempt to divert or take away), any of the Corporation's present, former or
prospective customers, including, but not limited to, those upon whom he called,
met with or became acquainted with while engaged as an employee of the
Corporation. The Employee will not interfere with the contractual or business
relationships of the Corporation, will not solicit or attempt to solicit any
employees or clients of the Corporation, nor slander or disparage the
Corporation, or undertake any activity which adversely impacts the goodwill of
the Corporation and its business opportunities.
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5.4 SEPARATE COVENANTS
Each of the convenants of Section 5. shall be construed as
separate convenants covering their subject matter in each of the separate
counties, countries and states in the United States and governmental
subdivisions outside of the United States (collectively, the "Governmental
Subdivisions"); to the extent that any covenant shall be judicially
unenforceable in any one or more of said counties, states or countries, said
covenant shall not be affected with respect to each other Governmental
Subdivision, each covenant with respect to each Governmental Subdivision being
construed as severable and independent.
6. INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT
The Employee has executed or will concurrently execute the
Corporation's Intellectual Property and Confidentiality Agreement, the terms of
which are incorporated herein by reference. The terms of this Employment
Agreement shall prevail in the case of any discrepancy between the Corporation's
Intellectual Property and Confidentiality Agreement and this Agreement.
7. TERMINATION OF AGREEMENT
7.1 GROUNDS
This Agreement shall terminate upon the occurrence of any of the
following events:
7.1.1 EXPIRATION OF TERM
At any time upon expiration of the terms specified in
Section 2. hereof.
7.1.2 FOURTEEN (14) DAY TERMINATION BY EMPLOYEE
By the Employee, upon fourteen (14) days' prior written
notice to the Corporation.
7.1.3 TERMINATION BY EMPLOYER (FOR CAUSE)
This Agreement may be immediately terminated by the
Corporation for the following causes: The Employee's personal dishonesty, lack
of trustworthiness, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than minor misdemeanors such as
minor traffic violation) or a material breach of any provision of this
Agreement, or any other agreement between the Employee and the Corporation.
7.2 DISABILITY
7.2.1 TERMINATION
In the event that the Employee is unable to perform his
assigned duties and responsibilities due to illness, physical or mental
disability or any other reason, and such disability continues for a period of
six (6) consecutive months after all available sick leave has been utilized, the
Corporation may terminate this Agreement upon ten (10) days' written notice.
7.2.2 DEATH
Upon the death of the Employee.
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8. SEVERANCE COMPENSATION
If the Corporation should terminate the Employee's employment
hereunder during the Term (as defined in Section 2) for reasons other than cause
(as defined in Section 7.1.3) or Employee's death or disability (as defined in
Section 7.2), or if Employee should resign his employment for Good Reason, as
defined below, the Employee shall be entitled to the following Severance
compensation:
(a) Payment of his base salary at the greater of the rate in effect
at the time of termination from the date of termination or at the rate in effect
immediately prior to the occurrence (as defined in Section 8.1(c)) until the
expiration date of this Agreement under Section 2.
(b) Continuation of all benefits including, without limitation,
medical, dental and life insurance, during the Post-Termination Period or until
the date on which the Employee first becomes eligible for insurance coverage of
a similar nature provided by a firm that employs him following termination of
employment by the Corporation, whichever occurs first.
Notwithstanding the foregoing, nothing in this Employment Agreement shall
require the Corporation to make any payment or to provide any benefit to the
Employee that the Corporation is otherwise required to provide under any other
contract, agreement or arrangement, including, without limitation, the Employee
Severance Agreement between the Corporation and the Employee, attached hereto as
Exhibit C, and the Employee Retention Agreement between the Corporation and the
Employee, attached hereto as Exhibit D, both incorporated by reference herein.
8.1 TERMINATION BY EMPLOYEE FOR GOOD REASON
The Employee shall have a Good Reason for terminating his
employment with the Corporation under this Employment Agreement if one or more
of the following occurs:
(a) an involuntary change in the Employee's status or position with
the Corporation which represents a demotion from the Employee's then current
status or position;
(b) layoff or involuntary termination of the Employee's employment,
except in connection with the termination of the Employee's employment for Cause
(as defined is Section 7.1.3) or as a result of the non-renewal of this
Agreement (as defined in Section 2.) or of the Employee's disability, death or
retirement (as defined in Section 7.2);
(c) a reduction by the Corporation in the Employee's base salary,
excluding bonuses, other than in the case of reductions in salary with respect
to the Corporation's other executive officers generally;
(d) any action or inaction by the Corporation that would adversely
affect the Employee's continued participation in any Benefit Plan on at least as
favorable basis as was the case at the time of such action or inaction, or that
would materially reduce the Employee's benefits in the future under the Benefit
Plan or deprive him of any material benefits that he then enjoyed, except to the
extent that such action or inaction by the Corporation (i) is also taken or not
taken, as the case may be, in respect of all employees generally, (ii) is
required by the terms of any Benefit Plan as in effect immediately before such
action or inaction; or (iii) is necessary to
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comply with applicable law or to preserve the qualification of any Benefit Plan
under section 401(a) of the Internal Revenue Code;
(e) the Corporation's failure to obtain express assumption of this
Employment Agreement by any successor to the Corporation; and
(f) any material violation by the Corporation of any agreement,
including this Employment Agreement, between the Corporation and the Employee.
Notwithstanding the foregoing, no action by the Corporation shall give rise to a
Good Reason if it results from the Employee's termination for Cause, death or
retirement, and no action by the Corporation specified in paragraphs (a) through
(c) of this section shall give rise to a Good Reason if it results from the
Employee's disability.
For purposes of this Section 8, "Benefit Plan" shall mean any compensation plan,
such as an incentive or stock option plan, or any employee benefit plan, such as
a thrift, pension, profit-sharing, stock bonus, long-term performance award,
medical disability, accident or life insurance plan, or any other plan, program
or policy of the Corporation that is intended to benefit employees.
9. MISCELLANEOUS
9.1 NOTICES
Any notice required to be given pursuant to this Agreement shall
be effective only if in writing and delivered personally or by mail. If given by
mail, such notice must be sent by registered or certified mail, postage prepaid,
mailed to the parties at the addresses set forth on the signature page hereof,
or at such other addresses as the parties may designate, from time to time, by
written notice. Mailed notices shall be deemed received two (2) business days
after the date of deposit in the mail.
9.2 REMEDIES
9.2.1 EQUITABLE REMEDIES
The Employee acknowledges and agrees that in the event of
any material breach, violation or evasion of the terms, conditions and
provisions of Sections 4, 5, 6, and 7 above, or this Section 9, such breach,
violation or evasion shall result in immediate and irreparable injury and harm
to the Corporation and shall entitle the Corporation to injunctive relief, as
well as to all other legal or equitable remedies to which the Corporation may be
entitled.
9.2.2 TERMINATION OF AGREEMENT
It is further agreed that in the event of such breach, the
Corporation may forthwith terminate this Agreement, notwithstanding anything
herein to the contrary.
9.3 PARTIAL INVALIDITY
If any term or provision of this Agreement or the application
thereof to any person or circumstance shall be held to be invalid or
unenforceable to any extent, the remainder of this Agreement or application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable shall not be affected thereby, and
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each term and provision of the Agreement shall be valid and be enforced to the
fullest extent permitted by law.
9.4 WAIVER
No waiver of any right hereunder shall be effective for any
purpose unless in writing, signed by the party hereto possessing said right, nor
shall any waiver be construed to be a waiver of any subsequent right, term or
provision of this Agreement.
9.5 ASSIGNMENT; EFFECT ON AGREEMENT
It is hereby acknowledged and agreed that the Employee's rights
and obligations under this Agreement are personal in nature and shall not be
assigned or delegated. This agreement shall be binding on and inure to the
benefit of the heirs, personal representatives, successors and assigns of the
parties, subject, however, to the restrictions on assignment and delegation
contained herein.
9.6 DISPUTES AND ARBITRATION
Any dispute arising in connection with the interpretation or
enforcement of the provisions of this Agreement, or its application or validity,
will be submitted to arbitration. Such arbitration proceedings will be held in
Las Vegas, Nevada, in accordance with the rules then existing of the American
Arbitration Association. This agreement to arbitrate is specifically
enforceable.
Any award rendered in any such arbitration proceeding will be
final and binding on each of the parties, and judgment may be entered thereon in
any court of competent jurisdiction. The costs and fees of any such arbitration
proceeding will be borne by the respective parties. The arbitrators may in their
discretion award costs and reasonable attorneys' fees to the prevailing party.
9.7 GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada.
9.8 ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings, oral
or written. No modification, termination or attempted waiver shall be valid,
unless in writing and signed by both parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
24th day of October, 1998.
"CORPORATION"
MEDICAL DEVICE ALLIANCE, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx
Title: Chairman of the Board
President
Address:
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
"EMPLOYEE"
/s/ XXX X. XXXXXX
----------------------------------------
Xxx X. XxXxxx
Address:
0000 Xxxxxxx Xxxx
Xxxx, XX 00000
Social Security Number: ###-##-####
