Exhibit 10(iii)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the Effective Date (as defined
below) between Computerized Thermal Imaging, Inc., a Nevada corporation (the
"Company"), and Xxxx Xxxxxxxxxxxxx an individual residing in North Ogden, Utah
(the "Employee") (hereinafter collectively, the "Parties").
W I T N E S S E T H:
1. EMPLOYMENT. The Company hereby employs the Employee, and Employee
accepts such employment by the Company, upon all the terms and conditions
hereinafter stated, and as subject to termination as provided in Section 4
hereof. Employee is employed as Vice President of the Company and in such
capacity will report to the President of the Company in the performance of his
duties hereunder.
2. EXTENT OF SERVICE. The Employee shall devote his full time,
attention and energy to the business of the Company, and, except as may be
specifically permitted by the Board, shall not be engaged in any other
business activity during the term of this Agreement. The foregoing shall not
be construed as preventing the Employee from making passive investments in
other businesses or enterprises, if (i) such investments will not require
services on the part of the Employee which would in any way impair the
performance of his duties under this Agreement, (ii) such other businesses or
enterprises are not engaged in any business competitive with the business of
the Company, and (iii) the Employee has complied with Section 8 of this
Agreement with respect to such passive investment.
3. COMPENSATION.
(a) SALARY. (1) As payment for the services to be rendered during
the term of this Agreement, Employee shall be entitled to receive a salary of
$110,000.00 per year, payable in accordance with the payroll policies of the
Company in effect from time to time. During the term of this Agreement, the
Employee shall be entitled to participate in all employee benefit and
insurance plans maintained from time to time by the Company for the benefit of
its employees, in accordance with the policies of the Company in effect from
time to time. The employee benefit and insurance plan in effect a the time of
signing this agreement is contained in EXHIBIT C. The Employee shall be
entitled a minimum of Three weeks annual vacation time and to any additional
annual vacation time as determined in accordance with the vacation policies of
the Company in effect from time to time. All such benefit plans are subject
to change or termination from time to time by Company in its sole and absolute
discretion.
(b) OPTIONS. Employee shall receive, in addition to the salary,
employee benefits, and bonus specified in Section 3(a) above, an option to
purchase common stock of the Company, as more fully described and subject to:
(i) the conditions set forth in EXHIBIT A attached hereto and incorporated by
reference herein and (ii) that certain 1997 Incentive Stock Plan (the "Plan")
of the Company attached hereto as EXHIBIT B.
(c) REGISTRATION RIGHTS. All stock in the Company which Employee
obtains from the exercise of options granted to Employee in paragraph (b) of
this Section 3 will be subject to the following "piggy-back" registration
rights:
If the Company at any time proposes to file, or does file, any registration
statement covering the class of securities of the Company which you then hold,
whether that registration is for securities to be issued by the Company or
then held by another party, you will have the right to have any part or all of
the securities of the Company you then hold to be registered under such
proposed registration statement. If you wish to have any securities you then
hold to be so registered, you will notify the Company in writing of your
desire within thirty (30) days after the date you receive your notice of
proposed registration from the Company. Upon receipt of your timely request
for registration under this paragraph, the Company will add the securities you
requested be registered to the proposed registration statement; provided, that
if after you make a request for registration the Company decides not to
register or delay such registration, for any reason, the Company will give you
written notice of its decision. However, no such determination will prejudice
your rights to other and further registrations made by the Company or with
respect to Company securities from time to time. The Company will bear all
costs and expenses of each and all such registrations incurred in connection
with the exercise of rights by you under this paragraph.
4. TERM; TERMINATION.
(a) The term of this Employment Agreement shall commence on the
first date when Employee reports for work for the Company after the date
hereof (the "Effective Date") and shall continue thereafter for a period of
three (3) years, subject to the terms and conditions herein stated; provided
that Employee may terminate this Agreement at any time hereafter by giving the
Company at least fourteen (14) days' prior written notice. If Employee
voluntarily terminates this Agreement, Company shall have no further financial
liability to Employee beyond the effective date of such termination.
(b) If during the term of this Agreement Employee is prevented for
a continuous period of thirty (30) days from performing his duties hereunder
by reason of physical or mental disability ("Disability"), then the Company,
on seven days' prior written notice to the Employee, may terminate this
Agreement. In the event of a termination pursuant to this paragraph 4(b), the
Company shall be relieved of all of its obligations under this Agreement,
except that: (i) the Company shall pay to the Employee that portion of the
Employee's wages earned and accrued by Employee prior to Employee's
termination, and (ii) to the extent provided in the Plan, to exercise the
Options described in Paragraph 3(c) hereof.
(c) The Company may at any time discharge the Employee for Cause
(as hereinafter defined) and terminate this Agreement without any further
liability hereunder to the Employee or his spouse or estate, except for the
obligation of the Company to pay the Employee's wages earned to the date of
discharge. For purposes of this Agreement, the Company shall have "Cause" to
terminate the Employee's employment upon (i) the gross negligence of the
Employee in performing his duties hereunder (other than any such failure
resulting from the Employee's incapacity due to physical or mental illness),
(ii) the willful engaging by the Employee in conduct amounting to fraud or
embezzlement or any other act by Employee which is negligently or willfully
performed which has the effect of damaging the reputation of the Company or
its business, (iii) breach of fiduciary duty as an officer and/or director of
the Company, (iv) the violation by the Employee of any material provision of
this Agreement, including but not limited to the provisions of Sections 5, 6,
7, 8 or 10 hereof.
5. BUSINESS OPPORTUNITIES. Subject to the provisions of Paragraph 2(b),
for as long as the Employee shall be employed by the Company, the Employee
agrees that with respect to any new and future business opportunity or other
new and future business proposal which is offered to, or comes to the
attention of, the Employee during employment and which is in any way related
to, or connected with, the business of the Company or its affiliates, the
Company shall have the right to take advantage of such business opportunity or
other business proposal for its own benefit. The Employee agrees to promptly
deliver notice to the board of directors of the Company in writing (the
"Notice of Opportunity") of the existence of such opportunity or proposal and
the Employee may take advantage of such opportunity only if the Company does
not elect to exercise its right to take advantage of such opportunity within
thirty (30) days after receipt of the Notice of Opportunity. Thereafter, the
Company shall be deemed to have waived its rights to such opportunity and the
Employee shall have the right to pursue such opportunity upon the terms and
conditions set forth in this Agreement, specifically subject to the terms of
Section 2 of this Agreement.
6. INTELLECTUAL PROPERTY. Employee hereby assigns to the Company all
inventions, processes, discoveries and improvements (whether or not
patentable) which are conceived, made or learned by Employee alone or jointly
with others in the course of his employment with the Company that pertain to
the business interests of the Company or relating to areas which may be
reasonably anticipated to be encompassed by such business interests of the
Company at the time of conception. Employee at any time during or after his
employment will promptly disclose to the Company all such processes,
inventions, discoveries or improvements assigned hereby. Employee will also
at the Company's expense cooperate in all lawful acts which may be necessary
or desirable in the judgment of the Company to protect or vest title to such
inventions, processes, discoveries or improvements in the Company or its
nominee including, without limitation, applying for, obtaining, maintaining,
and enforcing patents thereon in all countries of the world, and including
execution of papers appropriate thereto.
7. CONFIDENTIAL INFORMATION. The Employee acknowledges that he will
receive or come in contact with, among other things, trade secrets (both
technical and non-technical), know-how, lists of customers, suppliers,
contractors, customers, employee records and other confidential and
proprietary information about the business of the Company (hereinafter
collectively referred to as "information"), all of which the Company considers
highly confidential, giving the Company significant advantage over
competitors, and which the Company desires to protect. The Employee
understands that such information is the sole property of the Company, and
that the information is confidential, and he agrees that both during and after
his employment with the Company he will not at any time use or reveal such
information to anyone except as permitted by the Company or required by
Employee's employment duties with the Company. Upon termination of employment
hereunder, the Employee agrees to surrender to the Company all papers,
documents, writings and other property produced by him or coming into his
possession by or through his employment hereunder, and the Employee agrees
that all such materials and information will at all times remain the property
of the Company.
8. RESTRICTIVE COVENANT. In consideration of $10.00 and other good and
valuable separate consideration given by Company to Employee, Employee agrees
that during the period of time that the Employee is employed by the Company
and for a period of two (2) year(s) following the termination of this
Agreement for any reason, the Employee shall not, except as expressly approved
in writing by the Board of Directors of the Company, directly or indirectly:
(a) (i) cause or be instrumental in the formation of, or
(ii) within any state in which the Company then conducts business
engage in, whether as principal, agent, trustee, member or
employee or through the agency of any corporation, partnership,
association, agent or agency, any business competitive with the
business then conducted by the Company or its subsidiaries or
affiliates (a "Competing Business");
(b) be the owner of more than one percent (1%) of the equity (whether
capital stock, membership or partnership interests) of any entity
(except for stock publicly traded on any recognized stock exchange)
which is engaged, directly or indirectly, in a Competing Business; or
(c) through any person, firm, association or corporation with which he
is now or may hereafter become associated, cause or induce any
present or future employee of the Company to leave the employ of the
Company or to accept employment with the Employee or with any
Competing Business.
The foregoing agreement not to compete shall not be held invalid or
unenforceable because of the scope of the territory or actions subject thereto
or restricted thereby, or the period of time within which such agreement is
operative, but any judgment of a court of competent jurisdiction may define
the maximum territory and actions subject to and restricted by this Section 8
and the period of time during which such agreement is enforceable. In the
event the Company shall cease to do business, this Section 8 shall not apply.
9. SPECIFIC PERFORMANCE; SURVIVAL. The Employee acknowledges that a
remedy at law for any breach or attempted breach of Sections 5, 6, 7 or 8 of
this Agreement will be inadequate, agrees that the Company shall be entitled
to specific performance and injunctive and other equitable relief in case of
any such breach of attempted breach, and further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or any other equitable relief. The Parties
hereto acknowledge that the covenants contained in Sections 5, 6, 7, 8 and 9
shall survive the termination of this Agreement, by either party, for any
reason.
10. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such provision or invalidity only, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
11. BINDING EFFECT. This Agreement shall be binding on the parties
hereto when executed by Employee and the Chief Executive Officer of Company.
Employee acknowledges and agrees that no representative of Company other than
the Chief Executive Officer has any authority to enter into any employment
contract or bind Company unless authorized in writing by the Chief Executive
Officer of Company to do so.
12. UTAH LAW TO APPLY; ARBITRATION. This Agreement shall be governed by
and construed pursuant to the laws of the State of Utah, notwithstanding
conflicts of law principles thereof. Company and Employee hereby submit to
the jurisdiction of the courts, mediations and arbitral panels located in, and
agree that venue shall lie for all purposes in, Utah. EXCEPT FOR ACTIONS
INVOLVING REQUESTS BY COMPANY FOR RELIEF UNDER PARAGRAPH 9 HEREOF, EMPLOYEE
AND COMPANY HEREBY KNOWINGLY AND VOLUNTARILY AGREE THAT ANY DISPUTES OR
CONFLICTS IN ANY WAY ARISING OUT OF OR RELATING TO THE EMPLOYMENT RELATION
BETWEEN EMPLOYEE AND COMPANY CREATED BY THIS AGREEMENT SHALL BE MEDIATED OR
ARBITRATED, AT THE WRITTEN ELECTION OF EITHER PARTY HERETO. IF EITHER
EMPLOYEE OR COMPANY MAKE A PROPER ELECTION TO MEDIATE UNDER THIS PARAGRAPH 12,
BUT SUCH MEDIATION EFFORTS FAIL TO RESOLVE THE SUBJECT DISPUTE(S) BETWEEN THE
PARTIES, THE PARTIES SHALL BE BOUND TO RESOLVE THE SUBJECT DISPUTE(S) BY
BINDING ARBITRATION. WHERE THE SUBJECT DISPUTE(S) ARE ULTIMATELY RESOLVED BY
ARBITRATION, THE PARTIES HERETO IRREVOCABLY AGREE TO BE BOUND BY ALL FINDINGS
OF FACT AND CONCLUSIONS OF LAW OF THE ARBITRATOR(S) SELECTED. Either party
may elect under this paragraph 12 to proceed either to mediation or
arbitration by delivery of written notice to the opposing Party and to the
Judicial Arbitration and Mediation Services office where such proceeding is to
be held. Each mediation or arbitration proceeding hereunder will be conducted
in accordance with the rules of the Judicial Arbitration and Mediation
Services (the "JAMS Rules"), including selection of mediator(s) or
arbitrator(s). The mediation or arbitration will be held in Layton, Utah,
unless both parties agree to another location. All federal and state laws
applicable to this agreement relating to arbitration or mediation of conflicts
shall be fully complied with by the parties.
13. NOTICES. Any notices required by this Agreement shall be
effectively given if given in writing by personal delivery or by depositing
same in the United States mail, registered or certified, postage prepaid,
return receipt requested. For purposes of this provision, Company's address
shall be 000 Xxxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxx Xxxx 00000, or at such
other place as may be designated by Company from time to time. Employee's
address shall be that set forth below or at such other place as may be
designated by Employee from time to time.
14. ASSIGNMENT. This Agreement may not be assigned by the Employee.
Neither the Employee, his spouse nor their estates shall have any right to
commute, encumber or dispose of any right to receive payments hereunder, it
being that such payments and the right thereto are nonassignable and
nontransferable.
15. ENTIRE AGREEMENT. This Agreement, together with all exhibits and
attachments hereto and all documents and instruments executed and delivered in
connection herewith, constitutes the entire agreement of the parties hereto,
and supersedes all prior understandings with respect to the subject matter
hereof.
16. ACKNOWLEDGMENT. Employee acknowledges that he has read and
understands this Agreement, and that he has received a fully executed copy of
same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the Effective Date.
THE COMPANY:
Computerized Thermal Imaging, Inc.
/s/ Xxxxx X. Xxxxxx
By: ____________________________________
Xxxxx X. Xxxxxx, President
THE EMPLOYEE:
5/24/99 /s/ Xxxx Xxxxxxxxxxxxx
Dated: ______________ ________________________________
Xxxx Xxxxxxxxxxxxx
0000 X. 0000 Xxxxx
Xxxxx Xxxxx, Xxxx 00000
000-000-0000
EXHIBITS
A - Stock Option ( 100,000 shares)
B - 1997 Incentive Stock Plan
C Employee Benefits and Insurance Plan
