EXHIBIT-10.1
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EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made and entered
into as of the 1st day of April, 1989, by and between OCULOKINETICS, INC., a
California corporation, (the "Company") and Xxxxxxx X. Xxxxxxxx, an
individual and an employee of the Company (the "Employee").
RECITALS
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A. The Company is a corporation organized and existing under the
laws of the State of California with its principal place of business at 0000
X. 000xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000.
B. The Employee has served the Company in an executive capacity for
a number of months. The Employee and the Company desire to enter into an
employment agreement to recognize fully the contributions of the Employee to
the Company. The parties desire that this Agreement supersede the prior
employment agreement between the Company and the Employee (the "Prior
Agreement").
C. The Employee desires to continue to be employed by the Company on
the terms and subject to the conditions of this Agreement.
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NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants, conditions and agreements hereinafter set forth, the parties
hereby agree as follows:
1. EMPLOYMENT. The Company hereby hires and employs the Employee, and
the Employee hereby agrees to serve the Company, under and subject to all of the
terms, conditions and provisions hereof, as President and Treasurer of the
Company and in such other executive capacity or capacities as the Board of
Directors of the Company may from time to time designate. The Employee's duties
shall be subject to such policies and directions as may be established or given
by the Board of Directors of the Company from time to time. The Employee further
agrees to serve the Company well and faithfully in the executive capacities to
which Employee is appointed.
2. TERM OF EMPLOYMENT. The term of employment of the Employee shall
commence on the date hereof and shall continue for a period of five (5) years
hereafter (the "Term of Employment") unless sooner terminated as provided
herein. This Agreement supersedes the Prior Agreement, and the Prior Agreement
is terminated effective as of the date hereof.
The term of this Agreement shall be automatically renewed on a year to
year basis unless one of the parties gives the other party notice, at least
sixty (60) days prior to any expiration date, that such party elects not to
renew this Agreement.
3. PLACE OF EMPLOYMENT. During the term of this Agreement, Employee
will not be required to undertake any duties or responsibilities that would make
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it necessary or desirable to Employee to move Employee's residence outside of
the Los Angeles area without Employee's prior written consent.
4. COMPENSATION.
(a) For all services rendered by the Employee under this
Agreement, the Employee shall be paid as compensation:
(i) A base salary at the initial rate of Ninety
Thousand Dollars ($90,000.00) per annum payable in equal semimonthly
installments, subject to any deductions or withholdings required by law (the
"Base Salary"). Within thirty (30) days after the close of each fiscal year of
the Company during the Term of Employment, commencing with the fiscal year
ending December 31, 1989, the Base Salary shall be increased by an amount
mutually agreed upon by the Board of Directors of the Company and the Employee
after an evaluation of the Employee's performance during such fiscal year.
(ii) In addition to the Base Salary provided above,
commencing with the fiscal year ending December 31, 1989, the Company shall pay
the Employee, within thirty (30) days after the publication of the audited
financial statements of each fiscal year of the Company, a discretionary cash
bonus in an amount mutually agreed upon by the Board of Directors of the Company
and the Employee after an evaluation of the Employee's performance during such
fiscal year.
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5. EMPLOYEE BENEFITS. The Employee shall also receive the following
benefits:
(a) The Employee shall be entitled to a minimum paid vacation
of three (3) weeks for each twelve (12) month period of employment. The employee
shall have the right to take such vacation days during the twelve (12) month
period immediately succeeding the year in which they accrued; provided, however,
that in the event the Employee is unable for any reason to take the total amount
of vacation time to which Employee is entitled during any year, Employee may
accrue such time and add it to the vacation time for any following year.
(b) BUSINESS EXPENSES. The Employee is authorized to incur
reasonable expenses for the Company's business purposes, including, but not
limited to, expenses for entertainment, travel, lodging, management seminars and
telephone use. The Company shall promptly reimburse the Employee for all
expenses incurred on behalf or for the benefit of the Company upon the
submission by the Employee of a request for reimbursement and adequate
supporting documentation.
(c) The Employee shall receive an automobile allowance in the
amount of Four Hundred Fifty Dollars ($450.00) per month for each month of
Employee's employment hereunder. Such allowance shall be paid on the first day
of each month during the Term of Employment.
(d) The Company shall furnish the Employee with office space,
stenographic assistance, secretarial and word processing assistance, telephone,
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postage and such other supplies, equipment, facilities and services as shall be
suitable and customary to the Employee's position and adequate for the
performance of Employer's duties pursuant to this Agreement.
(e) The Company shall maintain in full force and effect during
the term of the Employee's employment hereunder a comprehensive policy of
medical and dental insurance covering the Employee and Employee's spouse.
(f) In the event of the termination of the Employee's
employment by reason of Employee's Disability (as defined in Section 8(a)
hereof), the Company shall continue to pay the Employee (1) Employee's full Base
Salary for each of the first six (6) months after termination, and (2) one-half
(1/2) of Employee's full Base Salary for each of the seventh through twelfth
months after such termination. In addition the Company shall pay to Employee all
amounts of Deferred Salary and or Management Fees, if any, and Promissory Notes
payable to Employee plus accrued interest on such notes, if any, and other
benefits earned or accrued through the date of termination.
(g) In addition to the foregoing benefits, the Employee shall
be entitled to participate in or receive insurance coverage, sick leave and
other fringe benefits under any employee benefit plans or arrangements made
available by the Company in the future to its executives and key management
employees, subject to, and on a basis consistent with, the terms, conditions
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and overall administration of such plans presently in effect or made available
in the future.
6. LIFE INSURANCE. Company may, subject to its discretion, at any time
apply for and procure, at its own expense as owner and for its own benefit,
insurance on the life of Employee in such amounts and in such form as Company
deems appropriate. At the request of Company, Employee shall submit to such
medical examinations(s), supply such information and execute such documents as
may be required by the insurer. Employee shall have no interest in any such
policy.
7. TERMINATION BY THE COMPANY. The Employee's employment hereunder may
be terminated by the Company without any breach of this Agreement only under the
circumstances described below:
(a) DEATH. The Employee's employment hereunder shall terminate
upon Employee's death. In event of the death of the Employee during the Term of
Employment, the date of termination shall be on the date of death.
(b) DISABILITY. If, as a result of the Employee's incapacity
due to physical or mental illness, the Employee shall have been absent from its
duties hereunder for a period of one hundred fifty (150) consecutive days, and,
within thirty (30) days after written notice of the Company's intention to
exercise its rights under this Section 7 is given (which may not be given prior
to the expiration of such one hundred fifty (150) day period) shall not have
returned to the performance of its duties hereunder on a full time basis
("Employee's Disability"), the Company may terminate the Employee's employment
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employment hereunder by giving written notice to such effect to the Employee. In
the event of the termination of the Employee's employment hereunder pursuant to
this Section 7, the date of termination shall be the date on which notice of
termination is received by the Employee or Employee's personal representative.
(c) FOR CAUSE. The Company may terminate the Employee's
employment under this Agreement at any time for cause. For purposes of this
Agreement, the term "cause" shall be limited to the following: (i) acts by
Employee involving moral turpitude which reflect materially and adversely on the
Company, its reputation, or its assets; (ii) gross and continued neglect by the
Employee of Employee's duties as Vice President of the Company, which neglect
continues for more than thirty (30) days after written notice specifying the
nature thereof is received by the Employee; (iii) conviction of a crime
involving moral turpitude, including, without limitation, theft or embezzlement;
(iv) continuing alcohol or drug abuse; or (v) a material breach of this
Agreement which breach remains uncured for a period of thirty (30) days after
written notice specifying the nature of such breach to the Employee; provided,
however, that if the nature of such breach is such that more than thirty (30)
days are reasonably required for its cure, then the Company shall not have the
right to terminate this Agreement if the Employee commences such cure within
such thirty (30) day period and thereafter diligently prosecutes such cure to
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completion. Termination pursuant to this Section 7 shall be written notice to
the Employee which notice shall specify the cause for termination.
(d) WITHOUT CAUSE. The Company may, at any time upon the vote
of a majority of the Directors of the Company then in office, terminate the
Employee without cause upon ninety (90) days' prior written notice to the
Employee setting forth the reasons, if any, for the termination. For the
purposes of this Agreement, the term "without cause" shall mean termination for
grounds other than those specified in Subsections (a), (b) or (c) of this
Section 7. In the event that the Employee is terminated without cause, the
Employee shall be entitled to the payments provided in Section 9 of this
Agreement.
8. TERMINATION BY THE EMPLOYEE. The Employee may terminate its
employment hereunder by written notice to the Company upon the occurrence of
either of the following events:
(a) Substantial physical or mental disability which renders or
will render the day-to-day performance of Employee's duties impossible or
hazardous to perform for a period of at least one hundred fifty (150)
consecutive days, provided that the Employee shall have furnished the Company
with a written statement from a qualified doctor to such effect; or
(b) The Company's failure to comply with any of the terms and
conditions of this Agreement, which failure is not cured within thirty (30) days
after the Company's receipt of written notice specifying the nature of such
noncompliance.
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9. COMPENSATION UPON TERMINATION OR DISABILITY.
(a) DEATH. If the Employee's employment is terminated by
Employee's death, the Company shall pay the Employee's full Base Salary, all
Deferred Salary and or Management Fees, if any, and Promissory Notes payable to
Employee with accrued interest on such notes, if any, and any other accrued
benefits through the date of Employee's death. In addition, the Company shall
reimburse the Estate of the Employee for any expenses incurred by the Employee
in performing its duties under this Agreement. Such payments shall be made to
the Employee's surviving spouse, or if there is no spouse surviving, to the
Employee's estate.
(b) DISABILITY. During any period that the Employee fails to
perform its duties hereunder as a result of incapacity due to physical or mental
illness (the "Disability Period") the Employee shall continue to receive
Employee's full Base Salary, bonuses and other benefits at the rate in effect
for such period until Employee's employment is terminated by the Company for
Employee's Disability pursuant to Section 7(b) hereof, provided that payments so
made to the Employee during the Disability Period shall be reduced by the sum of
the amounts, if any, which were paid to the Employee at or prior to the time of
any such payment under disability benefit plans of the Company and which were
not previously applied to reduce any such payment. If the Employee's employment
is terminated by the Company pursuant to Employee's Disability as defined in
Section 7(b) hereof, the Company shall pay to the Employee the amounts set forth
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in Section 5(f) hereof. If the Employee shall terminate its employment under
Section 8(a) hereof, the Company shall pay the Employee its full Base Salary,
all Deferred Salary and or Management Fees, if any, and Promissory Notes payable
to Employee plus accrued interest on such notes, if any, and other benefits
earned or accrued through the date of termination at the rate in effect on the
date on which the notice of termination is received.
(c) FOR CAUSE BY THE COMPANY. If the Employee's employment
shall be terminated for cause by the Company pursuant to Section 7(c) hereof,
the Company shall pay the Employee its full Base Salary, all Deferred Salary and
or Management Fees, if any, and Promissory Notes payable to Employee plus
accrued interest on such notes, if any, and other benefits earned or accrued
through the date of termination at the rate in effect on the date on which
notice of termination is received, whereby the Company shall have no further
obligations to the Employee under this Agreement.
(d) WITHOUT CAUSE. If the Employee's employment is terminated
by the Company without cause pursuant to Section 7(d) hereof or the Employee
terminates its employment hereunder pursuant to Section 8 hereof, then the
Company shall pay to the Employee, on or before the effective date of
termination, an amount equal to the sum of (i) that portion of the Employee's
Base Salary and benefits earned or accrued through the effective date of
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termination and (ii), the greater of (1) the full Base Salary which would have
otherwise been paid to the Employee for the remainder of the Term of Employment
in the event that such termination occurs at least one (1) year prior to the
expiration of the Term of Employment; or (2) an amount equal to one year's Base
Salary at the rate in effect on the effective date of termination in the event
that such termination occurs within one (1) year prior to the expiration of the
Term of Employment. In addition, Employer shall pay all Deferred Salary and or
Management Fees, if any, Notes Payable to Employee with accrued interest, if
any, and any other benefits earned or accrued through the date of termination.
In the event that, other than by mutual agreement of the Company and the
Employee (which agreement shall be in writing signed by the Company and the
Employee), the Company fails or refuses to extend the Term of Employment upon
the expiration thereof pursuant to this Agreement, or upon the expiration of any
subsequent extension thereof, the Company shall pay to the Employee, on or
before the expiration date of the Term of Employment, or any extension thereof,
as the case may be, a sum equal to the Base Salary payable to the Employee
during the year preceding the expiration date of the Term of Employment or any
extension thereof, as the case may be. In no event shall any payments owing to
the Employee by the Company pursuant to this Section be reduced by any amounts
earned by the Employee subsequent to the termination of its employment by the
Company.
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(f) TERMINATION BY THE EMPLOYEE. If Employee's employment is
terminated by the Employee pursuant to Section 8 hereof, the Company shall pay
to the Employee, on or before the effective date of termination, Employee's full
Base Salary earned through date of termination, and all Deferred Salary and or
Management Fees, if any, and Promissory Notes payable to Employee, with accrued
interest on such notes, if any, and other benefits earned or accrued through the
date of termination.
(f) PRORATION OF BONUSES. Any bonuses payable under this
Section 9 shall be prorated for any period of employment not covering an entire
fiscal year.
10. INDEMNIFICATION OF THE EMPLOYEE. The Company will obtain and
maintain in full force and effect during the Term of Employment, a directors'
and officers' liability insurance policy with coverage limits in United States
Dollars in an amount convertible into not less than One Million Dollars
($l,000,000.00) to indemnify and defend the Employee from and against any
losses, liabilities, suits, claims, demands, damages, fees, costs and expenses,
including without limitation, interest, penalties, reasonable attorneys' and
accountants' fees and expenses, and court costs arising out of or relating to
the office held by the Employee pursuant to this Agreement or the performance by
the Employee of its duties under this Agreement so long as the Employee acted in
good faith and in a manner Employee reasonably believed to be in the best
interests of the Company.
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11. CONFIDENTIAL INFORMATION. Employee agrees that, at all times, both
during Employee's employment and after its termination, Employee will keep in
confidence and trust any information of a confidential or secret nature (a)
applicable to the business of Company, or (b) applicable to the business of any
customer of Company, which may be made known to Employee by Company or by any
customer of Company or learned by Employee during the period and in the course
of Employee's employment by Company ("Proprietary Information"). Employee
further agrees not, without Company's prior express written consent, to use,
disclose, lecture on or publish articles concerning any of such Proprietary
Information except as may be necessary in the ordinary course of performing its
duties as an employee of Company.
12. SURRENDER OF BOOKS AND REPORTS. The Employee agrees that upon
termination of its employment for any reason, Employee will immediately
surrender to the Company all lists, books and records in Employee's possession
relating to the business of the Company or any of its affiliates, and all other
properties belonging to the Company or any of its affiliates, it being
distinctly understood that all such lists, books, records and other documents or
properties are and shall remain the property of the Company or such affiliates.
13. GENERAL RELATIONSHIP. The Employee shall be considered an employee
of the Company within the meaning of all federal, state and local laws and
regulations, including, but not limited to, laws and regulations governing
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unemployment insurance, worker's compensation, industrial accident, labor and
taxes.
14. CERTIFICATION OF EMPLOYABILITY. Employee certifies that its
performance (a) of all the terms of this Agreement, and (b) as an employee of
Company, does not and will not breach any agreement to keep in confidence
proprietary information acquired by Employee in confidence or in trust prior to
Employee's employment with Company. Employee represents further that such
performance does not and will not breach any agreement with others to assign
patents, inventions or research and development products, whether or not
patentable, made or conceived or first reduced to practice or learned by
Employee either alone or jointly with others. Employee will not disclose to
Company, or induce Company to use, any proprietary information belonging to
others. Employee agrees not to enter into any agreement, either written or oral,
in conflict with this Section.
15. MISCELLANEOUS.
(a) All notices which are required or permitted to be given
pursuant to this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and delivered personally or by telegraph or by
registered or certified airmail, postage prepaid, addressed as follows:
If to the Company:
OculoKinetics, Inc.
0000 X. 000xx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Vice President
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With Copy to:
Xxxxxx X. Xxxxx, Esq.
Anker, Xxxxxx & Xxxxx
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000--0000
If to the Employee:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Notice shall be deemed to have been given upon receipt thereof as to
communications which are personally delivered or telegraphed and five (5) days
after deposit of the same in any United States mail post office box in the state
of which the notice is addressed, or seven (7) days after deposit of same in any
such post office box other than in the state to which the notice is addressed,
postage prepaid, addressed as set forth above. Notice shall not be deemed given
under the preceding sentence unless and until notice shall be given to all
addresses above other than the sender. The addresses and addressees for the
purpose of this Section 15 may be changed by giving written notice of such
change in the manner provided herein for giving notice. Unless and until such
written notice is given, the addresses and addressees as stated by prior written
notice, or as provided herein if no written notice of change has been given,
shall be deemed to continue in effect for all purposes hereunder.
(b) SEVERABILITY. In case any one or more of the provisions
contained in the Agreement shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
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shall not affect any other provisions of this Agreement, which shall be
construed as if such provisions had never been part of this Agreement.
(c) ENTIRE AGREEMENT. This Agreement and any Exhibits hereto
constitute the entire agreement of the parties relating to its subject matter,
and the parties agree that this Agreement supersedes all prior written or oral
agreements, representations and warranties relating to its subject matter. No
modification of this Agreement shall be valid unless made in writing and signed
by the parties.
(d) LITIGATION AND ATTORNEY'S FEES. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, default or breach in connection
with any of the provisions of this Agreement, the successful or prevailing party
or parties shall be entitled to recover reasonable attorney's fees, expenses and
other costs incurred in that action or proceeding in addition to any other
relief to which prevailing party may be entitled. The right to such attorney's
fees, expenses, and costs shall be deemed to have accrued upon commencement of
such action and shall be enforceable whether or not such action is prosecuted to
judgment.
(e) APPLICABLE LAW. This Agreement is being delivered and is
intended to be performed in the State of California and shall be construed and
enforced in accordance with and governed by the laws of the State of California
other than and without giving effect to the laws of the State of California
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relating to choice of law.
(f) JURISDICTION. The parties hereto agree that any action, at
law or in equity, arising under this Agreement shall be filed and conducted in
and only in the Superior Court of the State of California for the County of Los
Angeles or the United States District Court for the Central District of
California. The parties hereby submit to the IN PERSONAM jurisdiction and venue
of such courts in the State of California for the purposes of litigating any
such action.
(g) ASSIGNMENT. Except as expressly provided herein, neither
the Agreement nor any of the rights or obligations of the Employee hereunder
shall be assignable or delegable by the Employee. Neither this Agreement nor any
other rights or obligations of the Company hereunder shall be assignable by the
Company; provided, however, that this Agreement shall be assignable to and shall
be binding upon and inure to the benefit of any successor of the Company,
including, without limitation, any corporation or corporations acquiring,
directly or indirectly, all or substantially all of the assets of the Company
whether by merger, consolidation, sale or otherwise (and such successor shall
thereafter be deemed "the Company" for the purposes of this Agreement), but
shall not otherwise be assignable by the Company. Except as otherwise provided
herein, Employee's right to receive payments pursuant to this Agreement shall be
nonassignable.
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(h) MODIFICATION. This Agreement shall not be modified or
amended except by another written instrument executed by the parties hereto.
(i) PARAGRAPH HEADING. The headings of the several paragraphs
of this Agreement are inserted solely for the convenience of reference and are
not a party of and are not intended to govern, limit or aid in the construction
of any term or provision hereof.
(j) WAIVER. Failure of either party at any time to require
performance by the other of any provision of this Agreement shall in no way
affect such non-requiring party's rights thereafter to enforce the same, nor
shall the waiver by either party of any breach of any provision hereof be held
to be a waiver of any succeeding breach of any provision or a waiver of the
provision itself.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
"Company"
OCULOKINETICS, INC.
By: /s/ R Waldorf
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Xxxxxx X. Xxxxxxx
Vice President
"Employee"
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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