EXHIBIT 10.12
EMPLOYMENT AGREEMENT
Agreement made as of May 22, 1998, between CORGENIX MEDICAL CORPORATION,
a Nevada corporation ("Corgenix" or the "Company") and XXXXXXXX X. XXXXXXX
("XX. XXXXXXX").
RECITALS
A. XX. XXXXXXX currently serves as President ("President") of REAADS
Medical Products, Inc. ("REAADS"), a wholly owned subsidiary of the
Company.
B. XX. XXXXXXX 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. XXXXXXX'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. XXXXXXX is willing to commit himself 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. XXXXXXX, and
XX. XXXXXXX 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. XXXXXXX will
serve as President of the Company and will have general supervision over, and
responsibility for the business of the Company, and shall perform such duties
relative thereto and discharge such other responsibilities as the Company or the
Board of Directors shall assign to him, from time to time. XX. XXXXXXX shall
report directly to, be accountable to, and be subject to the authority of, the
Board. XX. XXXXXXX will devote his best efforts and his 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. XXXXXXX. In this
regard, the Board of Directors may from time to time assign additional duties to
XX. XXXXXXX, and may from time to time assign to other employees or officers of
the Company duties to be
discharged by XX. XXXXXXX. 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. XXXXXXX a base salary at the rate of at least $140,000 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. XXXXXXX, as determined by the Board if in its judgment XX.
XXXXXXX 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. XXXXXXX'x
salary and make such adjustments as it deems appropriate, taking into account
XX. XXXXXXX'x performance and the performance of the Company. XX. XXXXXXX'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. XXXXXXX pursuant to this paragraph, XX. XXXXXXX 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. XXXXXXX'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. XXXXXXX upon submission of documentation in form
reasonably satisfactory to the Company; and
(iv) reasonable moving and relocation expenses if
XX. XXXXXXX 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. XXXXXXX'x resignation, death or Disability (as defined below), (iii) a
determination by the Board in its good faith judgment that termination of XX.
XXXXXXX'x employment is in the best interests of the Company under circumstances
which would not constitute termination for Cause (in which XX. XXXXXXX will be
entitled to severance pay as described at paragraph 1(d) below and such
severance benefits shall be XX. XXXXXXX'x only remedy with respect to such
termination), or (iv) the date on which XX. XXXXXXX 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. XXXXXXX involving fraud, embezzlement
or a felony, (ii) the commission of any act by XX. XXXXXXX constituting
financial dishonesty against the Company or any of
its affiliates, (iii) the commission by XX. XXXXXXX 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. XXXXXXX of any material
provision of this Agreement, (v) the commission by XX. XXXXXXX of any other act
which is contrary to the Company's interests for his personal benefit (and the
failure to remedy such act within 15 days following notification by the Company
to XX. XXXXXXX 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. XXXXXXX
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. XXXXXXX to
perform his 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. XXXXXXX from performing his 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. XXXXXXX'x employment is
terminated without Cause pursuant to paragraph 1 (c) (iii) above, the Company
will pay to XX. XXXXXXX all amounts due to XX. XXXXXXX as salary pursuant to
paragraph 1 (b), and maintain for XX. XXXXXXX 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. XXXXXXX
should at all time honor and comply with the provisions of paragraphs 2,3 and 5
of this Agreement.
2. CONFIDENTIAL INFORMATION. XX. XXXXXXX 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 him during the course of
his 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. XXXXXXX agrees that he will not disclose to any unauthorized
person or entity (other than in the ordinary course of business) or use for his
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. XXXXXXX'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. XXXXXXX agrees to deliver to the
Company at the termination of his 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 he may then possess or have
under his control.
3. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
(a) XX. XXXXXXX agrees that any Intellectual Property (as hereinafter
defined) that he, 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 he alone or
with others, may conceive, develop, make or perfect, in whole or in part, in the
performance of the duties of his employment by the Company, shall be promptly
and fully disclosed in writing by XX. XXXXXXX 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. XXXXXXX 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. XXXXXXX'x name, which patents and
copyrights shall then be assigned by XX. XXXXXXX 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. XXXXXXX 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. XXXXXXX and XX. XXXXXXX is unwilling or
unable to execute such document, XX. XXXXXXX hereby irrevocably appoints the
President of the Company, or his successor, as his attorney-in-fact, with
authority to execute for him and on his 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. XXXXXXX for any especially
meritorious contributions in any manner it deems appropriate or may provide XX.
XXXXXXX with full or partial releases as to any subject matter contributed by
XX. XXXXXXX in which the Company is not interested.
(d) XX. XXXXXXX 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. XXXXXXX 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. XXXXXXX
agrees that he will not, except with the prior written consent of the Board,
become engaged in, render services for, or permit his 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. XXXXXXX 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, he will not,
except with the prior written consent of the Board, directly or indirectly,
either for himself 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. XXXXXXX'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. XXXXXXX 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. XXXXXXX:
XXXXXXXX X. XXXXXXX
000 Xxxxxxx Xxxxxx
Xxxxxxx 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. COMPLETE 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. XXXXXXX and the Company and
their respective successors and assigns, except that XX. XXXXXXX may not assign
any of his 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.
XXXXXXX.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
CORGENIX MEDICAL CORPORATION
By: /S/ XXXX X. XXXXX
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Its: CEO
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/S/ XXXXXXXX X. XXXXXXX
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XXXXXXXX X. XXXXXXX
