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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Letter Agreement dated June 1, 1995 is made, by and between Xx. Xxxxxxx X.
Xxxxx (hereinafter "Employee") whose principal residence is 0000 Xxx Xxxxxx
Xxxxxx, Xxxxx, Xxxxxxx, and UroQuest Corporation (hereinafter The "Company"), a
Florida Corporation with principal offices located at 00000 Xxxxxxx Xxxxxx,
Xxxxx, Xxxxxxx, for the expressed purpose of defining an Employment Agreement
(hereinafter the "Agreement") between the Parties.
RECITALS:
WHEREAS Employee desires to obtain employment under the terms and conditions
listed hereunder; and
WHEREAS the Company seeks to employ Employee under the terms and conditions
listed hereunder;
The Parties hereby agree to the following:
PRINCIPAL TERMS:
1. The POSITION of employment shall be as the Company's Treasurer, Assistant
Secretary and Vice President, Finance.
2. The DATE of this Agreement shall be effective as of June 1, 1995.
3. The TERM of this Agreement shall be for a period of Five (5) years from the
Date of this Agreement, subject to the provisions of Section 14 (Severance)
below.
4. Employee shall receive a salary of Seven Thousand Five Hundred Dollars
($7,500) per month or Ninety Thousand Dollars ($90,000) annually, payable
in bi-weekly installments and subject to deductions in taxes, FICA and
other usual and customary amounts.
5. Employee shall receive additional compensation in the form of STOCK OPTIONS
(hereinafter the "Options") granted from the Company's Non-Qualified Stock
Option Plan (hereinafter the "Plan"). The Employee has received a grant of
Two Hundred Fifty Thousand (250,000) shares of the Company's Options
effective as of June 29, 1994, and as set forth more fully in the Incentive
Stock Option Agreement entered into pursuant to the Plan. These Options
were granted at an exercise price of $0.20 Dollars per share, which is
consistent with the Plan as currently amended. Such shares vest over the
Term of this Agreement as outlined in the Vesting Schedule below:
VESTING SCHEDULE
----------------
ANNUAL NUMBER
OF SHARES TIMING AND/OR EVENTS TOTAL SHARES
--------------- --------------------------------- ------------
25,000 As of June 29, 1994 25,000
25,000 Upon the Anniversary of June 29, 1994
over the following four (4) years 100,000
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ANNUAL NUMBER
OF SHARES TIMING AND/OR EVENTS TOTAL SHARES
--------------- --------------------------------- ------------
50,000 Upon the first commercial sale of the Male
On-Command Catheter 50,000
15,000 Upon the first commercial sale of the Female
On-Command Catheter 15,000
10,000 Upon the first commercial sale of the
Snap Shot Device 10,000
12,500 At the time that the Company's valuation,
as determined by either the Board or
through an initial public offering exceeds
Ten Million ($10,000,000) Dollars 12,500
12,500 At the time that the Company's valuation,
as determined by either the Board or
through an initial public offering exceeds
Twenty Million ($20,000,000) Dollars 12,500
25,000 At the time that the Company's valuation,
as determined by either the Board or
through an initial public offering exceeds
Thirty Million ($30,000,000) Dollars 25,000
--------
TOTAL 250,000
=======
6. All issued Options shall IMMEDIATELY VEST upon the sale, in a single
transaction, of either 51% of the assets or 51% of the issued capital stock
of the company. The exercise in full or in part of the warrant held by
Warburg, Xxxxxx Investors, L.P. ("Warburg") as of June 9, 1995 (the
"Warrant") by Warburg or its assigns does not trigger this accelerated
vesting provision.
7. Employee shall receive the following paid HOLIDAYS:
- New Year's Day
- Good Friday
- Memorial Day
- Independence Day
- Labor Day
- Thanksgiving Day
- Christmas Day
8. Employee shall be eligible to take Two (2) weeks of paid VACATION annually
such eligibility to begin at the Funding Date.
9. Employee shall receive a BENEFITS PACKAGE consisting of health, life, and
disability insurances and other such perquisites as may be now or ever
generally made available to the Company's senior management. Such benefits
package to take effect simultaneously with the Funding Date.
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10. Employee shall at the request of the Company be required to pass a "KEY
MAN" LIFE INSURANCE physical whereupon the Company shall be named as
beneficiary.
11. Employee shall be reimbursed for all usual and customary OUT-OF-POCKET
EXPENSES incurred as the result of any and all business-related activities
as of the Date of this Agreement.
12. Employee shall have the right to VOLUNTARILY TERMINATE his employment at
any time with Sixty (60) days written notice to the Company. However, any
such voluntary termination of employment shall cause Employee to forfeit
any and all rights to receive any further Options, Warrants, or other of
the Company's securities or any and all other benefits awarded either
herein or in the future, to include severance, insurances, allowances, and
perquisites received or receivable by Employee at the effective date of
said voluntary termination. Employee shall be entitled to receive any
accrued salary and bonuses due at and upon the effective date of said
voluntary termination, which shall not be earlier than Sixty (60) days
subsequent to the Company's receipt of Employee's notice of voluntary
termination.
13. Should Employee ever be TERMINATED FOR CAUSE, found guilty of any felony,
breach any confidentiality agreements or other agreements made with the
Company, or commit any acts of moral turpitude, or any other acts which
would dishonor the good name of the Company, its employees, affiliates,
associates, or other related parties; Employee shall forfeit any and all
rights to any of the above compensations, benefits, and perquisites. In
addition, should Employee be terminated for cause, the Company shall have
the right to repurchase any and all Options then beneficially owned by
Employee at the same price paid by Employee. Furthermore, any and all
Options vested but as yet not purchased shall be forfeited by Employee upon
the effective date of such termination.
14. The Company shall have the right to terminate this Agreement prior to the
expiration of the Term herein, without cause. In the event the Company
terminates the Employee without cause at any time, the Employee shall be
entitled to receive Severance Pay equal to six months Total Annual
Compensation (as defined below) payable in equal monthly installments,
provided, however, that the Employee shall not be entitled to such
Severance Pay in the event he is offered a position (which position is
comparable in responsibility and compensation) with a new entity.
Notwithstanding the foregoing, in the event the Employee is terminated
immediately subsequent to a sale of 51% of the assets or 51% of the issued
capital stock of the Company (other than through the exercise of the
Warrant in full or in part by Warburg or its assigns), then the Employee
shall be entitled to immediate payment of Severance Pay equal to nine
months Total Annual Compensation. The term "Total Annual Compensation"
means the Employee's annual cash compensation and benefits, including
salary.
15. Employee agrees to abide by and to EXECUTE the Company's Invention,
Confidential Information, and Non-Competition Agreement incorporated herein
by reference and attached hereto as Addendum A, at the execution of the
Agreement.
16. This Agreement shall be INTERPRETED under the laws of the State of Florida,
and shall be binding upon the heirs, successors, assigns, Executors, and
Administrators of both Parties.
17. This Agreement represents the ENTIRE AGREEMENT and no modifications may be
made hereto without the execution of additional written amendments to this
Agreement.
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IN WITNESS OF THE above understanding, the Parties hereunder affix their seals:
COMPANY EMPLOYEE
By: /s/ Xxxx X. Xxxx /s/ X.X. Xxxxx
-------------------------- -------------------------
Xxxx X. Xxxx Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer,
UroQuest Corporation
Date: __________________________ ________________________
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EXHIBIT A (10.12)
UROQUEST CORPORATION
INVENTION, CONFIDENTIAL INFORMATION
AND NON-COMPETITION AGREEMENT
AGREEMENT (this "Agreement") dated as of the date set out on the
signature page hereof, between UroQuest Corporation, a Florida corporation (the
"Corporation") the person referred to on the signature page contained herein
(the "Employee") to be effective as of the commencement of Employee's employment
with the Corporation.
WHEREAS, the Employee is currently or has agreed to be engaged by the
Corporation as an employee;
WHEREAS, the Employee has been or will be, given access by the
Corporation to confidential and proprietary information of the Corporation;
WHEREAS, the Employee has been or will be given the opportunity to meet
with customers of the Corporation, to be introduced to employees of such
customers and to learn the technical and other requirements of such customers;
WHEREAS, the Employee will receive certain valuable benefits from the
Corporation including, but not limited to, his/her salary;
NOW, THEREFORE, in consideration of the foregoing, the Employee and the
Corporation agree as follows:
1. Nondisclosure of Proprietary Information. Recognizing that the
Corporation is presently engaged, and may hereafter continue to be engaged in
the research and development of processes, manufacture of products or
performance of services, which involve experimental and inventive work and that
the success of its business depends upon the protection of the processes,
products and services by patent, copyright or by secrecy and that the Employee
has had, or during the course of his/her engagement may have, access to
Proprietary Information, as hereafter defined, of the Corporation or other
information and data of a secret or proprietary nature of the Corporation which
the Corporation wishes to keep confidential, and that the Employee has
furnished, or during the course of his/her engagement may furnish, such
information to the Corporation, the Employee agrees that:
(a) "Proprietary Information" shall mean any and all methods,
inventions, identification of suppliers, supplier lists and supplier's products,
improvements or discoveries, whether or not patentable or copyrightable, and any
other information of a similar nature disclosed to the Employee or otherwise
made known to him/her as a consequence of or through his/her engagement by the
Corporation (including information originated by the Employee) in any
technological area previously developed by the Corporation or a customer of the
Corporation, or developed, engaged in, or researched, by the Corporation during
the term of the Employee's engagement, including, but not limited to, trade
secrets, processes, products, formulae, apparatus, techniques, know-how,
marketing plans, data, improvements, strategies, forecasts, customer lists,
financial data, and technical requirements of customers, unless such information
is in the public domain to such an extent as to be readily available to
competitors.
(b) The Employee acknowledges that the Corporation has exclusive
property rights to all Proprietary Information and the Employee hereby assigns
all rights he/she might otherwise possess in any Proprietary Information to the
Corporation. Except as required in the performance of his/her duties to the
Corporation, the
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and Non-Competitive Agreement
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Employee will not at any time during or after the term of his/her engagement,
which term shall include any time in which the Employee may be retained by the
Corporation as a consultant, directly or indirectly use, communicate, disclose
or disseminate any Proprietary Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to the
Corporation, its products, customers, processes and services, including
information relating to testing, research, development, manufacturing, marketing
and selling.
(c) All documents, records, notebooks, memoranda and similar
repositories of, or containing, Proprietary Information or any other information
of a secret, proprietary, confidential or generally undisclosed nature relating
to the Corporation or its operations and activities made or compiled by the
Employee, or by others, at any time or made available to him/her prior to or
during the term of his/her engagement by the Corporation, including any and all
copies thereof, shall be the property of the Corporation, shall be held by
him/her in trust solely for the benefit of the Corporation, and shall be
delivered to the Corporation by him/her on the termination of his/her engagement
or at any other time on the request of the Corporation.
(d) The Employee will not assert any rights under any inventions,
copyrights, discoveries, concepts or ideas, or improvements thereof, or know-how
related thereto, as having been made or acquired by him/her prior to his/her
being engaged by the Corporation or during the term of his/her engagement if
based on or otherwise related to Proprietary Information.
2. Assignment of Inventions.
(a) For purposes of this Paragraph 2, the term "Inventions" shall mean
discoveries, concepts and ideas, whether patentable or copyrightable or not,
made or conceived by the Employee, solely or jointly, including but not limited
to improvements, know-how, data, processes, methods, formulae and techniques, as
well as improvements thereof or know-how related thereto, concerning, related
to, based upon or arising from any past, present or prospective activities of
the Corporation or activities of the Employee at the Corporation.
(i) During his/her engagement by the Corporation, all
Inventions the Employee makes shall be the sole property of the Corporation and
Employee agrees to perform the provisions of this Paragraph 2 with respect
thereto without the payment by the Corporation of any royalty or any
consideration therefor other than the regular compensation paid to the Employee
in the capacity of an employee.
(ii) During the period prior to the expiration of one year
after termination of his/her engagement with the Corporation, all Inventions
based on Proprietary Information which Employee makes, discovers or conceives
shall be the sole property of the Corporation and Employee agrees to perform the
provisions of this Paragraph 2 with respect thereto without the payment by the
Corporation of any royalty or any further consideration therefor.
(b) The Employee shall maintain written notebooks in which he/she shall
set forth on a current basis information as to all Inventions describing in
detail the procedures employed and the results achieved as well as information
as to any studies or research projects undertaken on the Corporation's behalf,
whether or not in the Employee's opinion a given project has resulted in an
Invention. The written notebooks shall at all times be the property of the
Corporation and shall be surrendered to the Corporation upon termination of
his/her engagement or, upon request of the Corporation, at any time prior
thereto.
(c) The Employee shall apply, at the Corporation's request and expense,
for United States and foreign letters patent or copyrights either in the
Employee's name or otherwise as the Corporation shall desire.
(d) The Employee hereby assigns to the Corporation or to any person or
entity designated by the Corporation all of his/her rights to such Inventions,
and to applications for United States and/or foreign letters patent or
copyrights and to United States and/or foreign letters patent or copyrights
granted upon such Inventions.
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and Non-Competitive Agreement
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The employee also agrees to promptly execute written assignments of his/her
rights in future such Inventions to the Corporation, or its designee, and
further agrees to sign and properly execute such necessary and lawful papers as
the Corporation requires, at the corporation's expense, to carry out such
assignments and for filing and prosecuting U.S. and foreign patent applications.
The Employee also agrees to perform such further acts which may be required to
carry out the intent of this Agreement as the Assignee thereof shall hereafter
require and prepare at the Assignee's expense.
(e) The Employee shall acknowledge and deliver promptly to the
Corporation or to any person or entity designated by the Corporation without
charge to the Corporation or such person or entity but at its expense such
written instruments (including applications and assignments) and do such other
acts, such as giving testimony in support of the Employee's inventorship, as may
be necessary in the opinion of the Corporation to obtain, maintain, extend,
reissue and enforce United States and/or foreign letters patent and copyrights
relating to the Inventions and to vest the entire right and title thereto in the
Corporation or its nominee. The Employee acknowledges and agrees that any
copyright developed or conceived of by the Employee during the term of
Employee's engagement which is related to the business of the Corporation shall
be a "work for hire" under the patent and copyright laws of the United States
and other applicable jurisdictions.
(f) As a matter of record the Employee has identified on Exhibit A
attached hereto all inventions or improvements which have been made or conceived
or first reduced to practice by the Employee alone or jointly with others prior
to his/her engagement by the Corporation, which he/she desires to remove from
the operation of this Paragraph 2; and the Employee convenants that such list is
complete. If there is not such list on Exhibit A, the Employee represents that
he/she has made no inventions and improvements at the time of signing this
Agreement.
(g) The Employee represents that his/her performance of all the terms
of this Agreement and as an employee of or consultant to the Corporation does
not and will not breach any agreement or duty to keep in confidence proprietary
information acquired by him/her in confidence or in trust prior to his/her
engagement by the Corporation. The Employee agrees not to enter into any
agreement either written or oral in conflict herewith and represents and agrees
that he/she has not brought and will not bring with him/her to the Corporation
or use in the performance of his/her responsibilities at the Corporation any
materials or documents of a former employer which are not generally available to
the public, unless he/she has obtained written authorization from the former
employer for their possession and use, a copy of which has been provided to the
Corporation.
(h) The provisions of this Paragraph 2 shall not limit in any respect
the restrictions applicable to the Employee under Paragraph 1.
3. Shop Rights. The Corporation shall also have the royalty-free right
to use in its business, and to make, use and sell products, processes and/or
services derived from any inventions, discoveries, concepts and ideas, whether
or not patentable, including but not limited to processes, methods, formulas,
and techniques, as well as improvements thereof or know-how related thereto,
which are not within the scope of Inventions as defined in Paragraph 2 but which
are conceived or made by the Employee during the period he/she is engaged by the
Corporation or with the use or assistance of the Corporation's facilities,
materials or personnel.
4. No Interference. The Employee agrees that he/she will not for three
years after the termination of his/her engagement with the Corporation
(regardless of the circumstances of such termination), whether for his/her own
account or for the account of any other individual, partnership, firm,
corporation or other business organization (other than the Corporation),
directly or indirectly solicit, endeavor to entice away from the Corporation,
its affiliates or subsidiaries, or otherwise directly interfere with the
relationship of the Corporation, its affiliates or subsidiaries with any person
who, to the knowledge of the Employee, is employed by or otherwise engaged to
perform services for the Corporation, its affiliates or subsidiaries (including,
but not limited to, any independent sales representatives or organizations) or
who is, or was within the then most recent two-year period
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Invention, Confidential Information
and Non-Competitive Agreement
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a customer or client, of the Corporation, its predecessors or any of its
subsidiaries or affiliates. The placement of any general classified or "help
wanted" advertisements and/or general solicitations to the public at large shall
not constitute a violation of this Paragraph 4 unless the Employee's name is
contained in such advertisements or solicitations.
5. Exclusive Engagement. During the period of his/her engagement by the
Corporation, the Employee shall not, without the Corporation's express written
consent, engage in any employment, consulting activity or business for
compensation of any kind, other than for the Corporation.
6. Covenant of Non-Competition; Survival of Provisions. Employee
acknowledges that (i) he/she is an executive or management employee or an
officer of the Corporation, he/she is a member of the professional staff to an
executive or management employee of the Corporation or, he/she is a consultant
to the Corporation, (ii) he/she is one of the principal persons involved in the
development of the Corporation's products and services, (iii) it is intended
that such products and services will be sold nationally and internationally,
(iv) a company producing products and services similar to those of the
Corporation regardless of its geographic location is likely to jeopardize the
Corporation's business and (v) the ability of the Corporation to attain its
goals is likely to be materially jeopardized and its value reduced if Employee
competes with the Corporation or assists other persons in competing with the
Corporation. Employee agrees that during the term of his/her engagement with the
Corporation and for a period of three years after termination of his/her
engagement with the Corporation (regardless of the circumstances of termination)
he/she will not, directly or indirectly (through one or more intermediaries),
whether individually, or as an officer, director, agent, shareholder, partner,
joint venturer, investor, employee, consultant or otherwise, compete in whole or
in part with, or assist any corporation or business enterprise in competing in
whole or in part with, the business then engaged in by the Corporation, or
expressly contemplated to be undertaken by the Corporation, nor will Employee
directly or indirectly interfere with employees of the Corporation or suppliers,
manufacturers, distributors, wholesalers or other such companies with which the
Corporation transacts business for any purpose having an adverse effect upon the
Corporation's business activities. The provisions of this Paragraph 6 are in
addition to and do not modify the provisions of Paragraphs 1, 2, 3 and 4. The
provisions of Paragraphs 1, 2, 3 and 4 shall remain in full force and effect
after any expiration of the provisions of this Paragraph 6.
7. Relief. Without intending to limit the remedies available to the
Corporation, the Employee acknowledges that a breach of any of the covenants
contained in this Agreement may result in material irreparable injury to the
Corporation or its subsidiaries or affiliates for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the
Corporation shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction, without the necessity of proving
irreparable harm or injury as a result of such breach or threatened breach of
the covenants contained in this Agreement, restraining the Employee from
engaging in activities prohibited by this Agreement or such other relief as may
be required specifically to enforce any of the covenants contained in this
Agreement.
8. Successors and Assigns. This Agreement shall be binding upon the
Employee, his/her heirs, executors, assigns and administrators and shall inure
to the benefit of the Corporation, its successors and assigns.
9. Prior Agreements: Severability. If Employee currently has a written
employment agreement or consulting agreement with the Corporation, such
employment agreement or consulting agreement will supersede those provisions of
this Agreement which cover the same subject matter as this Agreement. Wherever
there is any conflict between any provision of this Agreement and any statue,
law, regulation or judicial precedent, the latter shall prevail, but in such
event the provisions of this Agreement thus affected shall be curtailed and
limited only to the extent necessary to bring it within the requirement of the
law. In the event that any part, section, paragraph or clause of this Agreement
shall be held by a court of proper jurisdiction or be indefinite, invalid or
otherwise unenforceable, the entire Agreement shall not fail on account thereof,
but the balance of the Agreement
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Invention, Confidential Information
and Non-Competitive Agreement
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shall continue in full force and effect unless such construction would clearly
be contrary to the intention of the parties or would result in an
unconscionable injustice.
10. Applicable Law. The substantive laws of the State of Florida,
excluding any law, rule or principle which might refer to the substantive law of
another jurisdiction, will govern the interpretation, validity and effect of
this Agreement without regard to the place of execution or in the place for
performance thereof. This Agreement is to be at least partially performed in
Hillsborough County, Florida, and, as such, the Corporation and Employee agree
that personal jurisdiction venue shall be proper with the state or federal
courts situated in Hillsborough County, Florida, to hear such disputes arising
under this Agreement.
11. Construction. This Agreement, being a condition to employment, is
ancillary to, and does not purport to set forth the terms of, the Employee's
employment with the Corporation. Nothing herein contained shall construed as a
contract of continuing employment of the Employee or as an obligation of the
Corporation to continue such employment.
12. Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire understanding of the parties hereto relating to the subject matter
hereof and supersede all prior agreements or understandings with respect to the
subject matter hereof among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of each of the parties hereto.
13. Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the last date on which this has been signed by the
Corporation and the Employee.
"Corporation"
UROQUEST CORPORATION
Dated: __________________ By: _________________________________________
Xxxx X. Xxxx
President and Chief Executive Officer
Dated: __________________ "Employee"
_____________________________________________
Name
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Invention, Confidential Information
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Exhibit A
Dear UroQuest Corporation:
The following is a complete list of all inventions or
improvements relevant to the subject matter of my engagement by UroQuest
Corporation ("Corporation") which have been made or conceived or first reduced
to practice by me alone or jointly with others prior to my engagement by the
Corporation:
_______ No inventions or improvements
_______ See below
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_______ Additional sheets attached
________________________________________
Employee
Date: ____________________________, 1995
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Invention, Confidential Information
and Non-Competitive Agreement
