EXHIBIT 10.13
EMPLOYMENT AGREEMENT
Agreement made as of May 22, 1998, between CORGENIX MEDICAL CORPORATION,
a Nevada corporation ("Corgenix" or the "Company") and XXX X. XXXXXXXXXXX
("XX. XXXXXXXXXXX").
RECITALS
A. XX. XXXXXXXXXXX currently serves as Vice President, Sales and
Marketing of REAADS Medical Products, Inc. ("REAADS"), a wholly owned
subsidiary of the Company.
B. XX. XXXXXXXXXXX possesses intimate and valuable knowledge of the
business and affairs of REAADS and its policies, procedures, methods and
personnel.
C. The Company desires to assure XX. XXXXXXXXXXX'x continued services not
only to REAADS but also to the Company and the Company's other
affiliates (as defined in paragraph 1(a) below).
D. XX. XXXXXXXXXXX is willing to commit herself to serve the Company and
its affiliates on the terms provided herein.
TERMS AND CONDITIONS
In consideration of the preceding premises and of the respective
covenants and agreements of the parties contained herein, and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. EMPLOYMENT. The Company agrees to employ XX. XXXXXXXXXXX, and XX.
XXXXXXXXXXX agrees to be employed by the Company, for the period beginning as of
the date of this Agreement, and ending upon termination pursuant to paragraph
1(c) hereof (the "employment period").
(a) SERVICES. During the employment period, XX. XXXXXXXXXXX will
serve as Vice President, Sales and Marketing of the Company and will have
general supervision over, and responsibility for the sales and marketing, and
shall perform such duties relative thereto and discharge such other
responsibilities as the Company or the Board of Directors shall assign to her,
from time to time. XX. XXXXXXXXXXX shall report directly to, be accountable to,
and be subject to the authority of, the Board. XX. XXXXXXXXXXX will devote her
best efforts and her full and exclusive business time and attention (except for
vacation periods and reasonable periods of illness or other incapacity) to the
business of the Company and its affiliates. The Board of Directors of the
Company reserves to itself the right from time to time to designate the officers
of the Company and to assign the duties and responsibilities of the employees
and officers of the Company, including without limitation, the office, if any,
held by XX. XXXXXXXXXXX. In this regard, the Board of Directors may from time to
time assign additional duties to XX. XXXXXXXXXXX, and may from time to time
assign to other employees or
officers of the Company duties to be discharged by XX. XXXXXXXXXXX. For purposes
of this Agreement, the term "affiliates" means any corporation, partnership,
joint venture, trust or unincorporated association controlled by or under common
control with the Company.
(b) SALARY, BONUS AND BENEFITS. During the employment period, the
Company will pay XX. XXXXXXXXXXX a base salary at the rate of at least $100,000
per annum or at such higher rate as the Board designates from time to time.
Following the end of each fiscal year, the Board, in its sole discretion, may
award a bonus to XX. XXXXXXXXXXX, as determined by the Board if in its judgment
XX. XXXXXXXXXXX has met the goals and objectives approved by the Board for such
year. At the end of each fiscal year of the Company, the Board shall review XX.
XXXXXXXXXXX'x salary and make such adjustments as it deems appropriate, taking
into account XX. XXXXXXXXXXX'x performance and the performance of the Company.
XX. XXXXXXXXXXX'x base salary and bonus, if any, for any partial year will be
prorated based upon the number of days elapsed in such year. In addition to the
salary and bonus, if any, payable to XX. XXXXXXXXXXX pursuant to this paragraph,
XX. XXXXXXXXXXX will be entitled to the following benefits during the employment
period, unless otherwise altered by the Board:
(i) health insurance and disability insurance of such
coverage as may be reasonably determined by the Board
and term life insurance in an amount equal to three
times XX. XXXXXXXXXXX'x base salary (excluding
bonuses);
(ii) a maximum of three weeks vacation each year with
salary;
(iii) reimbursement for reasonable business expenses
incurred by XX. XXXXXXXXXXX upon submission of
documentation in form reasonably satisfactory to the
Company; and
(iv) reasonable moving and relocation expenses if XX.
XXXXXXXXXXX is required to relocate by the Board upon
submission of documentation in form reasonably
satisfactory to the Company.
(c) TERMINATION. The employment period will continue until the
first to occur of (i) the third anniversary of the date of this Agreement, (ii)
XX. XXXXXXXXXXX'x resignation, death or Disability (as defined below), (iii) a
determination by the Board in its good faith judgment that termination of XX.
XXXXXXXXXXX'x employment is in the best interests of the Company under
circumstances which would not constitute termination for Cause (in which XX.
XXXXXXXXXXX will be entitled to severance pay as described at paragraph 1(d)
below and such severance benefits shall be XX. XXXXXXXXXXX'x only remedy with
respect to such termination), or (iv) the date on which XX. XXXXXXXXXXX is
terminated by the Board for Cause (as defined below). For purposes of this
Agreement, the term "Cause" means (i) the commission of an act by XX.
XXXXXXXXXXX involving fraud, embezzlement or a felony, (ii) the commission of
any
act by XX. XXXXXXXXXXX constituting financial dishonesty against the Company or
any of its affiliates, (iii) the commission by XX. XXXXXXXXXXX of any other
criminal act involving moral turpitude which (a) brings the Company or any of
its affiliates into public disrepute or disgrace or (b) causes, or in the good
faith determination of the Board of Directors of the Company, could cause
material harm to the customer relations, operations or business prospects of the
Company or any of its affiliates, (iv) the violation by XX. XXXXXXXXXXX of any
material provision of this Agreement, (v) the commission by XX. XXXXXXXXXXX of
any other act which is contrary to the Company's interests for her personal
benefit (and the failure to remedy such act within 15 days following
notification by the Company to XX. XXXXXXXXXXX of the occurrence of such act),
(vi) willful disobedience to the lawful directives of the Company and/or the
Board of Directors of the Company, or (vii) failure to adequately perform, in
the good faith judgment of the Board of Directors, the services, duties and
responsibilities assigned to XX. XXXXXXXXXXX by the Company and/or the Board of
Directors of the Company, whether or not such failure is intentional.
"Disability" shall mean the inability of XX. XXXXXXXXXXX to perform her normal
duties and functions under this Agreement for a continuous period of at least
three months or a recurring illness that is likely to prevent XX. XXXXXXXXXXX
from performing her normal duties and functions under this Agreement for more
than four months during any 12-month period as determined in the good faith
opinion by a physician selected by the Board.
(d) SEVERANCE PAY. In the event that XX. XXXXXXXXXXX'x employment
is terminated without Cause pursuant to paragraph 1 (c) (iii) above, the Company
will pay to XX. XXXXXXXXXXX all amounts due to XX. XXXXXXXXXXX as salary
pursuant to paragraph 1 (b), and maintain for XX. XXXXXXXXXXX the health and
disability insurance pursuant to paragraph 1 (b) (i), through the first to occur
of (i) the second anniversary of the employment termination date or (ii) the
third anniversary of the date of this Agreement (such salary to be paid in
monthly installments through such third anniversary date) provided that XX.
XXXXXXXXXXX should at all time honor and comply with the provisions of
paragraphs 2,3 and 5 of this Agreement.
2. CONFIDENTIAL INFORMATION. XX. XXXXXXXXXXX acknowledges that the
information, observations, data, customer and supplier lists, processes,
formulae, product compositions, manufacturing techniques, standards, protocols,
drawings, research and related data, specifications, know-how and trade secrets
(collectively, "Confidential Information") obtained by her during the course of
her performance under this Agreement concerning the business or affairs of the
Company and its affiliates are the property of the Company and its affiliates.
Therefore, XX. XXXXXXXXXXX agrees that she will not disclose to any unauthorized
person or entity (other than in the ordinary course of business) or use for her
own account or the account of a third party any of such Confidential Information
without the prior written consent of the Board, unless and to the extent that
the aforementioned matters (i) become generally known to and available for use
by the public other than as a result of XX. XXXXXXXXXXX'x acts or omissions to
act or the wrongful acts or omissions to act of another or (ii) such disclosure
is
required by court order or force of law. XX. XXXXXXXXXXX agrees to deliver to
the Company at the termination of her employment, or at any other time the
Company may request, all memoranda, notes, plans, records, reports and other
documents (and copies thereof) containing any Confidential Information or
relating to the business of the Company and its affiliates which she may then
possess or have under her control.
3. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
(a) XX. XXXXXXXXXXX agrees that any Intellectual Property (as
hereinafter defined) that she, alone or with others, may conceive, develop, make
or perfect, in whole or in part, during the term of the employment period and
for a period of twelve (12) months after any termination of the employment
period, whichever shall occur later, which relate to the Company's business, or
that she alone or with others, may conceive, develop, make or perfect, in whole
or in part, in the performance of the duties of her employment by the Company,
shall be promptly and fully disclosed in writing by XX. XXXXXXXXXXX to the
Company. All of the right, title and interest in and to any Intellectual
Property shall be and hereby is assigned exclusively to the Company or its
nominee regardless of whether or not the conception, development, marketing or
perfection of such Intellectual Property involved the use of the Company's time,
facilities or materials and regardless of where such Intellectual Property may
be conceived, made or perfected, and shall become the sole property of the
Company or its nominee. For purposes hereof, the term "Intellectual Property"
shall mean inventions, discoveries, ideas, concepts, systems, works, trade
secrets, know-how, intellectual property, pharmacological research,
pharmacological protocols, pharmacological documentation, products, processes or
improvements or modifications of current products, processes or designs, or
methods of product development, manufacture, distribution, management or
otherwise (whether or not covered by or able to be covered by a patent or
copyright) which relate to the business of the Company and/or its affiliates.
(b) XX. XXXXXXXXXXX agrees to execute and deliver all documents and do
all acts which the Company shall deem necessary or desirable to secure to the
Company or its nominee the entire right, title and interest in and to
applications for any United States and/or Foreign Letters Patent or Certificates
of Copyright registration in the name of or for the benefit of the Company or,
in the discretion of the Company, in XX. XXXXXXXXXXX'x name, which patents and
copyrights shall then be assigned by XX. XXXXXXXXXXX to the Company. Any
document described above which is prepared and filed pursuant to this paragraph,
shall be so prepared and filed at the Company's expense. XX. XXXXXXXXXXX and the
Company agree that wherever and whenever possible, any such document shall be in
the name of and executed by the Company, but if it is necessary for such
document to be in the name of and executed by XX. XXXXXXXXXXX and XX.
XXXXXXXXXXX is unwilling or unable to execute such document, XX. XXXXXXXXXXX
hereby irrevocably appoints the President of the Company, or his successor, as
her attorney-in-fact, with authority to execute for her and on her behalf, any
and all assignments, patent or copyright applications, or other instruments an
documents pursuant to this paragraph 3(b).
(c) Company shall have no obligation to use, attempt to protect by
application for Letters Patent or Certificates of Copyright Registration or
promote any of said Intellectual Property; provided, however, that the Company,
in its sole discretion, may reward XX. XXXXXXXXXXX for any especially
meritorious contributions in any manner it deems appropriate or may provide XX.
XXXXXXXXXXX with full or partial releases as to any subject matter contributed
by XX. XXXXXXXXXXX in which the Company is not interested.
(d) XX. XXXXXXXXXXX agrees that the covenants made in this paragraph 3
shall be construed as an agreement independent of any other provision of this
Agreement, and shall survive the termination of this Agreement. Moreover, the
existence of any claim or cause of action of XX. XXXXXXXXXXX against the
Company, or an affiliate of the Company, whether or not predicated upon the
terms of this Agreement, shall not constitute a defense to the enforcement of
this covenant.
4. OTHER BUSINESSES. During the employment period, XX. XXXXXXXXXXX
agrees that she will not, except with the prior written consent of the Board,
become engaged in, render services for, or permit her name to be used in
connection with, any business other than the business of the Company and its
affiliates.
5. RESTRICTIONS ON RIGHT TO COMPETE. XX. XXXXXXXXXXX agrees that
during the term of the employment period (as defined in paragraph 1 (c)) and
until the first anniversary of the termination of the employment period, she
will not, except with the prior written consent of the Board, directly or
indirectly, either for herself or for any other person, partnership,
corporation, joint venture, business trust, cooperative, limited partnership or
other entity, participate in any enterprise involving the same or similar
business or research and development in which the Company is engaged at any time
during XX. XXXXXXXXXXX'x employment or upon termination. For purposes of this
Agreement, the term "participate" includes any direct or indirect interest in
any enterprise, whether as an officer, director, employee, partner, sole
proprietor, agent, representative, independent contractor, consultant, creditor,
owner (other than by ownership of less than one percent of the stock of a
publicly-held corporation whose stock is traded on a national securities
exchange or in the over-the-counter market) or otherwise. The geographical area
covered by this covenant is North America. XX. XXXXXXXXXXX agrees that this
covenant is reasonable with respect to its duration, geographical area and
scope.
6. NOTICES. Any notice provided for in this Agreement must be in
writing and will be deemed to have been given (i) when personally delivered,
(ii) one business day after being sent by Federal Express or other similar
overnight delivery service or (iii) three business days after being mailed by
first class mail, to the recipient at the address below indicated:
To the Company:
CORGENIX MEDICAL CORPORATION
00000 Xxxxx Xxxxxx
Xxxxxxxxxxx XX 00000
Attention: President
To XX. XXXXXXXXXXX:
XXX X. XXXXXXXXXXX
00000 X. Xxxxxxx Xxxxx
Xxxxxxxxx XX 00000
or such other address or to the attention of such person as the recipient party
shall have specified by prior written notice to the sending party.
7. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
8. BLUE LINING. If any court of competent jurisdiction determines
that any of the restrictive covenants in this Agreement, or any part thereof, is
invalid or unenforceable because of the geographic or temporal scope of such
provision, it is the intention and agreement of the parties that such court
shall have the power to reduce the geographic or temporal scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable.
9. OMPLETE AGREEMENT. This Agreement embodies the complete agreement
and understanding among the parties with respect to the subject matter of this
Agreement and supersedes and preempts any prior negotiations, understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
10. COUNTERPARTS. This Agreement may be executed on separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
11. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and by enforceable by XX. XXXXXXXXXXX and the Company
and their respective successors and assigns, except that XX. XXXXXXXXXXX may not
assign any of her rights or obligations under paragraphs 1,2,3,4 and 5.
12. CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the internal
law, and not the law of conflicts, of the State of Colorado.
13. REMEDIES. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages by
reason of breach of any provision of this Agreement and to exercise all other
rights existing in its favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may in its sole discretion apply to any court
of law or equity of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
14. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Company and XX.
XXXXXXXXXXX.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
CORGENIX MEDICAL CORPORATION
By: /S/ XXXXXXXX X. XXXXXXX
--------------------------------
Its: PRESIDENT
-------------------------------
/S/ XXX X. XXXXXXXXXXX MAY 20, 1998
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XXX X. XXXXXXXXXXX
REAADS MEDICAL PRODUCTS, INC. LETTERHEAD
May 20, 1998
Ms. Xxx Steinbargar
00000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx XX 00000
Dear Ms. Steinbargar:
This letter is to acknowledge that the Company is aware that you have an
existing relationship with A.R. Medical Supply ("ARM"), a Littleton based
supplier of durable medical goods, and that such relationship predated your
joining the Company in 1996.
Based on previous discussions regarding AMR, we understand that you are a
partial owner of ARM, but have no involvement in day-to-day operations, and in
any case, ARM and REAADS do not compete either directly or indirectly.
You are hereby authorized to allow your name to continue being used as an
officer of record of ARM. However, should you determine that your involvement
with ARM will increase beyond what you have previously disclosed to the
Company, you must disclose this fact in writing to the REAADS Board of
Directors for their prior written approval.
This letter will serve as an amendment to your Employment Agreement dated
May 20, 1998.
Sincerely,
/S/ XXXXXXXX X. XXXXXXX
Xxxxxxxx X. Xxxxxxx
President
Acknowledged:
/S/ XXX X. XXXXXXXXXXX MAY 20, 1998
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Xxx X. Steinbargar date
