EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
this 12th day of November, 1996 between LASERMEDICS, INC., a Texas corporation
having its principal executive office at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx Xxxx,
Xxxxx 00000 (hereinafter referred to as the "Company"), and Xxxxxxx X. Xxxxxx
(hereinafter referred to as the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee and the Employee
desires to enter the Company's employ.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
have the meanings prescribed below:
AFFILIATE is used in this Agreement to define a relationship to a
person or entity and means a person or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such person or entity.
ANNUAL BONUS shall have the meaning assigned thereto in Section 4.3
hereof.
BASE SALARY shall have the meaning assigned thereto in Section 4.1
hereof.
BENEFICIAL OWNERSHIP shall have the meaning derived from the definition
of "beneficial owner" contained in Rule 13d-3 under the Exchange Act; PROVIDED,
HOWEVER, and without limitation, that any individual, corporation, partnership,
group, association or other person or entity that has the right to acquire any
Voting Stock at any time in the future, whether such right is (a) contingent or
absolute or (b) exercisable presently or at any time in the future, pursuant to
any agreement or understanding or upon the exercise or conversion of rights,
options or warrants, or otherwise, shall be the Beneficial Owner of such Voting
Stock.
BONUS BENCHMARK shall have the meaning assigned thereto in Section
4.2(b) hereof.
CAUSE shall have the meaning assigned thereto in Section 5.3 hereof.
COMMON STOCK means the Company's common stock, par value $.01 per
share.
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COMPANY means Lasermedics, Inc., a Texas corporation, the principal
executive office of which is located at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx Xxxx,
Xxxxx 00000.
CONFIDENTIAL INFORMATION shall have the meaning assigned thereto in
Section 8.2 hereof.
DATE OF TERMINATION means the earliest to occur of (i) the date of the
Employee's death, (ii) the date on which the Employee terminates this Agreement
for any reason other than Good Reason or (iii) the date of receipt of the Notice
of Termination, or such later date as may be prescribed in the Notice of
Termination in accordance with Section 5.6 hereof.
DEFICIENCY shall have the meaning assigned thereto in Section 4.2(b)
hereof.
DISABILITY means an illness or other disability which prevents the
Employee from discharging his responsibilities under this Agreement for a period
of 180 consecutive calendar days, or an aggregate of 180 calendar days in any
calendar year, during the Employment Period, all as determined in good faith by
the Board of Directors of the Company.
EFFECTIVE DATE means the date of execution hereof.
EMPLOYEE means Xxxxxxx X. Xxxxxx, an individual residing at 0000
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000.
EMPLOYMENT PERIOD shall have the meaning assigned thereto in Section 3
hereof.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Employment Period.
GOOD REASON shall have the meaning assigned thereto in Section 5.5
hereof.
HOMECARE GROSS PROFIT CONTRIBUTION shall have the meaning assigned
thereto in Section 4.2(b) hereof.
MONTHLY SALES COMMISSION shall have the meaning assigned thereto in
Section 4.2(a) hereof.
NEXT MONTH'S EXCESS shall have the meaning assigned thereto in Section
4.2(b) hereof.
NOTICE OF TERMINATION shall have the meaning assigned thereto in
Section 5.6 hereof.
VACATION TIME shall have the meaning assigned thereto in Section 4.4
hereof.
VACATION PAY shall have the meaning assigned thereto in Section 4.4
hereof.
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VOTING STOCK means all outstanding shares of capital stock of a
corporation entitled to vote generally in an election of directors; PROVIDED,
HOWEVER, that if such corporation has shares of Voting Stock entitled to more or
less than one vote per share, each reference to a proportion of the issued and
outstanding shares of Voting Stock shall be deemed to refer to the proportion of
the aggregate votes entitled to be cast by the issued and outstanding shares of
Voting Stock.
WITHOUT CAUSE shall have the meaning assigned thereto in Section 5.4
hereof.
2. GENERAL DUTIES OF COMPANY AND EMPLOYEE.
2.1 The Company agrees to employ the Employee, and the Employee agrees
to accept employment by the Company and to serve the Company as Vice
President-Sales. The authority, duties and responsibilities of the Employee
shall include those duties of Vice President as specified in the Bylaws of the
Company as in effect on the date hereof, and such other or additional duties as
may from time to time be assigned to the Employee by the Board of Directors.
While employed hereunder, the Employee shall devote his full time and attention
during normal business hours to the affairs of the Company and use his best
efforts to perform faithfully and efficiently his duties and responsibilities.
The Employee may (i) serve on corporate, civic or charitable boards or
committees provided that (A) such boards or committees do not control or advise
business entities that compete with the Company and (B) all such services are
promptly disclosed in writing to the Board of Directors, (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of the Employee's duties and responsibilities.
2.2 The Employee agrees and acknowledges that he owes a fiduciary duty
of loyalty, fidelity and allegiance to act at all times in the best interests of
the Company and to do no act and to make no statement, oral or written, which
would injure Company's business, its interests or its reputation.
2.3 The Employee agrees to comply at all times with all applicable
policies, rules and regulations of the Company, including, without limitation,
the Company's Code of Ethics and the Company's policy regarding trading in the
Common Stock, as each is in effect from time to time during the Employment
Period.
3. TERM. Unless sooner terminated pursuant to other provisions hereof, the
Employee's period of employment under this Agreement shall be a period of two
years beginning on the Effective Date. The two-year period beginning on the
Effective Date (notwithstanding termination of this Agreement prior to the end
of such period pursuant to other provisions hereof) is referred to elsewhere
herein as the "Employment Period."
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4. COMPENSATION AND BENEFITS.
4.1 BASE SALARY. As compensation for services to the Company, the
Company shall pay to the Employee until the Date of Termination an annual base
salary of $120,000 (the "Base Salary"). The Base Salary shall be payable in
equal semi-monthly installments or in accordance with the Company's established
policy, subject only to such payroll and withholding deductions as may be
required by law and other deductions applied generally to employees of the
Company for insurance and other employee benefit plans.
4.2 MONTHLY SALES COMMISSION.
(a) In addition to the Base Salary, the Company shall pay to the
Employee until the Date of Termination a monthly sales commission of $6,700 (the
"Monthly Sales Commission") for each month in which the Monthly Sales Commission
is earned in accordance with Section 4.2(b) hereof.
(b) The Monthly Sales Commission shall be considered earned for a given
month if the Homecare Gross Profit Contribution (defined below) for that month
meets or exceeds the "Monthly Benchmark" for that month as specified in SCHEDULE
4.2(B) attached hereto. The Monthly Sales Commission shall also be considered
earned for a given month, notwithstanding the fact that the Homecare Gross
Profit Contribution for that month did not meet or exceed the Monthly Benchmark
for that month, if, but ONLY if, the Next Month's Excess (defined below) for
that month equals or exceeds the Deficiency (defined below) for that month. As
used in this Section 4.2(b), the following terms have the meanings prescribed
below:
HOMECARE GROSS PROFIT CONTRIBUTION for a given month means the total
sales (including sales of clinical equipment) made by the Company's "Homecare
Sales Group" during that month less (A) the cost of goods sold by the Company's
"Homecare Sales Group" during that month, (B) the sales and marketing expenses
incurred by the Company's "Homecare Sales Group" during that month, and (C) the
distribution costs incurred by the Company's "Homecare Sales Group" during that
month.
NEXT MONTH'S EXCESS for a given month means the amount, if any, by
which the Homecare Gross Profit Contribution for the month IMMEDIATELY following
that month exceeds the Monthly Benchmark for the month IMMEDIATELY following
that month.
DEFICIENCY for a given month means the amount by which the Monthly
Benchmark for that month exceeds the Homecare Gross Profit Contribution for that
month.
(c) The Monthly Sales Commission shall be payable on or before the last
day of the month immediately following the month in which the Monthly Sales
Commission is earned.
4.3 ANNUAL BONUS. In addition to the Base Salary and the Monthly Sales
Commission, the Employee may be awarded, for each fiscal year until the Date of
Termination, an annual bonus
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(either pursuant to a bonus or incentive plan or program of the Company or
otherwise) in an amount to be determined by the Board of Directors in its sole
discretion payable at a time to be determined by the Board of Directors in its
sole discretion (the "Annual Bonus").
4.4 VACATION. Until the Date of Termination, the Employee shall be
entitled to two weeks paid vacation during each one-year period commencing on
the Effective Date (the "Vacation Time") and each anniversary thereof. Any
Vacation Time not taken during the applicable one-year period will be forfeited.
All unused Vacation Time accrued through the Date of Termination and not taken
or previously forfeited at the Date of Termination shall be paid to the Employee
in accordance with Article 6 hereof, with such payment being referred to
elsewhere herein as the "Vacation Pay."
4.5 INCENTIVE, SAVINGS AND RETIREMENT PLANS. Until the Date of
Termination, the Employee shall be eligible to participate in and shall receive
all benefits under all incentive, savings and retirement plans (including 401(k)
plans) and programs currently maintained or hereinafter established by the
Company for the benefit of its employees.
4.6 WELFARE BENEFIT PLAN. Until the Date of Termination, the Employee
and/or the Employee's family, as the case may be, shall be eligible to
participate in and shall receive all benefits under each welfare benefit plan of
the Company currently maintained or hereinafter established by the Company for
the benefit of its employees. Such welfare benefit plans may include, without
limitation, medical, dental, disability, group life, accidental death and travel
accident insurance plans and programs.
4.7 REIMBURSEMENT OF EXPENSES. The Employee may from time to time until
the Date of Termination incur various business expenses customarily incurred by
persons holding positions of like responsibility, including, without limitation,
travel, entertainment and similar expenses incurred for the benefit of the
Company. Subject to the Company's policy regarding the reimbursement of such
expenses as in effect from time to time during the Employment Period, which does
not necessarily allow reimbursement of all such expenses, the Company shall
reimburse the Employee for such expenses from time to time, at the Employee's
request, and the Employee shall account to the Company for all such expenses.
5. TERMINATION.
5.1 DEATH. This Agreement shall terminate automatically upon the death
of the Employee.
5.2 DISABILITY. The Company may terminate this Agreement, upon written
notice to the Employee delivered in accordance with Sections 5.6 and 12.1
hereof, upon the Disability of the Employee.
5.3 CAUSE. The Company may terminate this Agreement, upon written
notice to the Employee delivered in accordance with Sections 5.6 and 12.1
hereof, for Cause. For purposes of this Agreement, "Cause" means (i) the
conviction of the Employee of a felony (which, through
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lapse of time or otherwise, is not subject to appeal), (ii) the Employee's
refusal, without proper legal cause, to perform his duties and responsibilities
as contemplated in this Agreement or otherwise follow the direction of the Board
of Directors or (iii) the Employee's engaging in activities which would (A)
constitute a breach of any term of this Agreement, the Company's Code of Ethics,
or the Company's policies regarding trading in the Common Stock or reimbursement
of business expenses, or (B) result in a material injury to the business,
condition (financial or otherwise), results of operations or prospects of the
Company or its Affiliates (as determined in good faith by the Board of Directors
of the Company).
5.4 WITHOUT CAUSE. The Company may terminate this Agreement Without
Cause, upon written notice to the Employee delivered in accordance with Sections
5.6 and 12.1 hereof. For purposes of this Agreement, the Employee will be deemed
to have been terminated "Without Cause" if the Employee is terminated by the
Company for any reason other than Cause, Disability of the Employee or death of
the Employee.
5.5 GOOD REASON. The Employee may terminate this Agreement for Good
Reason, upon written notice to the Company delivered in accordance with Sections
5.6 and 12.1 hereof. For purposes of this Agreement, "Good Reason" means (i) the
assignment to the Employee of any duties inconsistent in any material respect
with the Employee's duties or responsibilities as contemplated in this
Agreement, (ii) any other action by the Company which results in a material
diminishment in the Employee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities, (iii) any
material breach by the Company of any of the provisions of this Agreement, (iv)
requiring the Employee to relocate permanently to any office or location other
than Akron, Ohio and its surrounding metropolitan area without his consent or
(v) any reduction, or attempted reduction, at any time during the Employment
Period, of the Base Salary.
5.6 NOTICE OF TERMINATION. Any termination of this Agreement by the
Company for Cause, Without Cause or as a result of the Disability of the
Employee, or by the Employee for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated and (iii) specifies the termination date, if such date is
other than the date of receipt of such notice (which termination date shall not
be more than 15 days after the giving of such notice).
6. OBLIGATIONS OF COMPANY UPON TERMINATION.
6.1 CAUSE; OTHER THAN GOOD REASON. If this Agreement shall be
terminated (i) by the Company for Cause or (ii) by the Employee for any reason
other than Good Reason:
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(a) the Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the aggregate of the
following amounts:
(1) the Vacation Pay, if any, owed to the Employee;
(2) if not theretofore paid, the Base Salary through
the Date of Termination; and
(3) in the case of compensation previously deferred
by the Employee, all amounts of such compensation previously
deferred and not yet paid by the Company; and
(b) the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the
Date of Termination which would have been payable under Section 4.7
hereof if the Employee's employment had not terminated.
All other obligations of the Company and rights of the Employee hereunder shall
terminate effective as of the Effective Date.
6.2 DEATH.Subject to the provisions of this Section 6.2, if this
Agreement is terminated as a result of the Employee's death, the Company shall
pay to the Employee or his estate, in a lump sum in cash within 30 days of the
Date of Termination, that portion of the Base Salary owing in respect of the
balance of the Employment Period. The Company may purchase insurance to cover
all or any part of the obligation contemplated in the foregoing sentence, and
the Employee agrees to submit to a physical examination to facilitate the
procurement of such insurance. If the physical examination reveals that the
Employee is uninsurable, such death benefit referred to in this Section 6.2
shall not be provided, and the Employee's estate shall be entitled to receive
only (i) those payments to which the Employee would have been entitled had this
Agreement been terminated pursuant to Section 6.1 hereof and (ii) those death
benefits to which it is entitled under the Company's benefit plans.
6.3 GOOD REASON; WITHOUT CAUSE; DISABILITY. If this Agreement shall be
terminated (i) by the Company as a result of the Disability of the Employee or
Without Cause or (ii) by the Employee for Good Reason:
(a) the Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the aggregate of the
following amounts:
(1) the Vacation Pay, if any, owed to the Employee;
(2) if not theretofore paid, the Base Salary through
the Date of Termination; and
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(3) in the case of compensation previously deferred
by the Employee, all amounts of such compensation previously
deferred and not yet paid by the Company;
(b) the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the
Date of Termination which would have been payable under Section 4.7
hereof if the Employee's employment had not terminated;
(c) for the remainder of the Employment Period, the Company
shall continue benefits to the Employee and/or the Employee's family at
least equal to those which would have been provided to them under
Section 4.6 hereof if the Employee's employment had not been
terminated; and
(d) the Company shall pay to the Employee, in equal
semi-monthly installments, the Base Salary for the remainder of the
Employment Period.
Whenever compensation is payable to the Employee hereunder during a period in
which he is partially or totally disabled, and such Disability would (except for
the provisions hereof) entitle the Employee to Disability income or salary
continuation payments from the Company according to the terms of any plan or
program presently maintained or hereafter established by the Company, the
Disability income or salary continuation paid to the Employee pursuant to any
such plan or program shall be considered a portion of the payment to be made to
the Employee pursuant to this Section 6.3 and shall not be in addition hereto.
If Disability income is payable directly to the Employee by an insurance company
under the terms of an insurance policy paid for by the Company, the amounts paid
to the Employee by such insurance company shall be considered a portion of the
payment to be made to the Employee pursuant to this Section 6.3 and shall not be
in addition hereto.
7. EMPLOYEE'S OBLIGATION TO AVOID CONFLICTS OF INTEREST.
7.1 Consistent with the Employee's fiduciary duties to the Company, the
Employee agrees that he shall not knowingly become involved in a conflict of
interest with the Company, or upon discovery thereof, allow such a conflict to
continue. The Employee further agrees to disclose to the Company, promptly after
discovery, any facts or circumstances which might involve a conflict of interest
with the Company.
7.2 The Company and the Employee recognize that it is impossible to
provide an exhaustive list of actions or interests which constitute a "conflict
of interest." Moreover, the Company and the Employee recognize that there are
many borderline situations. In some instances, full disclosure of facts by the
Employee to the Company is all that is necessary to enable the Company to
protect its interests. In others, if no improper motivation appears to exist and
the Company's interests have not suffered, prompt elimination of the outside
interest will
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suffice. In still others, it may be necessary for the Company to terminate the
employment relationship. The Company and the Employee agree that the Company's
determination as to whether or not a conflict of interest exists shall be
conclusive. The Company reserves the right to take such action as, in its
judgment, will end the conflict of interest.
7.3 In this connection, it is agreed that any direct or indirect
interest in, connection with or benefit from any outside activities,
particularly commercial activities, which interest might in any way adversely
affect the Company or its Affiliates, involves a possible conflict of interest.
Circumstances in which a conflict of interest on the part of the Employee would
or might arise, and which should be reported immediately to the Company,
include, but are not limited to, the following:
(a) Ownership of a material interest in any lender, supplier,
contractor, subcontractor, customer or other entity with which the
Company does business.
(b) Acting in any capacity, including director, officer,
partner, consultant, employee, distributor, agent or the like, for any
lender, supplier, contractor, subcontractor, customer or other entity
with which the Company does business.
(c) Acceptance, directly or indirectly, of payments, services
or loans from a lender, supplier, contractor, subcontractor, customer
or other entity with which the Company does business, including,
without limitation, gifts, trips, entertainment or other favors of more
than a nominal value, but excluding loans from publicly held insurance
companies and commercial or savings banks at market rates of interest.
(d) Use of information or facilities to which the Employee has
access in a manner which will be detrimental to the Company's
interests, such as use for the Employee's own benefit of know-how or
information developed through the Company's business activities.
(e) Disclosure or other misuse of information of any kind
obtained through the Employee's connection with the Company.
(f) Acquiring or trading in, directly or indirectly, other
properties or interests connected with the design or marketing of
products or services designed or marketed by the Company.
8. EMPLOYEE'S CONFIDENTIALITY OBLIGATION.
8.1 The Employee hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated and
protected as such in accordance with this Section 8. The Employee acknowledges
that all such Confidential Information is in the nature of a trade secret.
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8.2 For purposes of this Agreement, "Confidential Information" means
information which is used in the business of the Company or its Affiliates and
(i) is proprietary to, about or created by the Company or its Affiliates, (ii)
gives the Company or its Affiliates some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (iii) is
designated as Confidential Information by the Company or its Affiliates, is
known by the Employee to be considered confidential by the Company or its
Affiliates, or from all the relevant circumstances should reasonably be assumed
by the Employee to be confidential and proprietary to the Company or its
Affiliates, or (iv) is not generally known by non-Company personnel. Such
Confidential Information includes, without limitation, the following types of
information and other information of a similar nature (whether or not reduced to
writing or designated as confidential):
(a) Internal personnel and financial information of the
Company or its Affiliates, vendor information (including vendor
characteristics, services, prices, lists and agreements), purchasing
and internal cost information, internal service and operational
manuals, and the manner and methods of conducting the business of the
Company or its Affiliates;
(b) Marketing and development plans, price and cost data,
price and fee amounts, pricing and billing policies, quoting
procedures, marketing techniques, forecasts and forecast assumptions
and volumes, and future plans and potential strategies (including,
without limitation, all information relating to any acquisition
prospect and the identity of any key contact within the organization of
any acquisition prospect) of the Company or its Affiliates which have
been or are being discussed;
(c) Names of customers and their representatives, contracts
(including their contents and parties), customer services, and the
type, quantity, specifications and content of products and services
purchased, leased, licensed or received by customers of the Company or
its Affiliates; and
(d) Confidential and proprietary information provided to the
Company or its Affiliates by any actual or potential customer,
government agency or other third party (including businesses,
consultants and other entities and individuals).
8.3 As a consequence of the Employee's acquisition or anticipated
acquisition of Confidential Information, the Employee shall occupy a position of
trust and confidence with respect to the affairs and business of the Company and
its Affiliates. In view of the foregoing and of the consideration to be provided
to the Employee, the Employee agrees that it is reasonable and necessary that
the Employee make each of the following covenants:
(a) Until the Date of Termination and at all times thereafter,
the Employee shall not disclose Confidential Information to any person
or entity, either inside or outside of the Company, other than as
necessary in carrying out his duties and responsibilities as set
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forth in Section 2 hereof, without first obtaining the Company's prior
written consent (unless such disclosure is compelled pursuant to court
orders or subpoena, and at which time the Employee shall give notice of
such proceedings to the Company).
(b) Until the Date of Termination and at all times thereafter,
the Employee shall not use, copy or transfer Confidential Information
other than as necessary in carrying out his duties and responsibilities
as set forth in Section 2 hereof, without first obtaining the Company's
prior written consent.
(c) On the Date of Termination, the Employee shall promptly
deliver to the Company (or its designee) all written materials, records
and documents made by the Employee or which came into his possession on
or before the Date of Termination (even if prior to the date hereof)
concerning the business or affairs of the Company or its Affiliates,
including, without limitation, all materials containing Confidential
Information.
9. DISCLOSURE OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES
AND INVENTIONS.
As part of the Employee's fiduciary duties to the Company, the Employee
agrees that during his employment by the Company and for a period of three years
following the Date of Termination, the Employee shall promptly disclose in
writing to the Company all information, ideas, concepts, improvements,
discoveries and inventions, whether patentable or not, and whether or not
reduced to practice, which are conceived, developed, made or acquired by the
Employee, either individually or jointly with others, and which relate to the
business, products or services of the Company or its Affiliates, irrespective of
whether the Employee used the Company's time or facilities and irrespective of
whether such information, idea, concept, improvement, discovery or invention was
conceived, developed, discovered or acquired by the Employee on the job, at
home, or elsewhere. This obligation extends to all types of information, ideas
and concepts, including information, ideas and concepts relating to new types of
services, corporate opportunities, acquisition prospects, the identity of key
representatives within acquisition prospect organizations, prospective names or
service marks for the Company's business activities, and the like.
10. OWNERSHIP OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES
AND INVENTIONS, AND ALL ORIGINAL WORKS OF AUTHORSHIP.
10.1 All information, ideas, concepts, improvements, discoveries and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by the Employee or which are disclosed or made known to the Employee,
individually or in conjunction with others, during the Employee's employment by
the Company and which relate to the business, products or services of the
Company or its Affiliates (including, without limitation, all such information
relating to corporate opportunities, research, financial and sales data, pricing
and trading terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity of key
contacts within the customers' organizations or within the
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organization of acquisition prospects, marketing and merchandising techniques,
and prospective names and service marks) are and shall be the sole and exclusive
property of the Company. Furthermore, all drawings, memoranda, notes, records,
files, correspondence, manuals, models, specifications, computer programs, maps
and all other writings or materials of any type embodying any of such
information, ideas, concepts, improvements, discoveries and inventions are and
shall be the sole and exclusive property of the Company.
10.2 In particular, the Employee hereby specifically sells, assigns,
transfers and conveys to the Company all of his worldwide right, title and
interest in and to all such information, ideas, concepts, improvements,
discoveries or inventions, and any United States or foreign applications for
patents, inventor's certificates or other industrial rights which may be filed
in respect thereof, including divisions, continuations, continuations-in-part,
reissues and/or extensions thereof, and applications for registration of such
names and service marks. The Employee shall assist the Company and its nominee
at all times, until the Date of Termination and at all times thereafter, in the
protection of such information, ideas, concepts, improvements, discoveries or
inventions, both in the United States and all foreign countries, which
assistance shall include, but shall not be limited to, the execution of all
lawful oaths and all assignment documents requested by the Company or its
nominee in connection with the preparation, prosecution, issuance or enforcement
of any applications for United States or foreign letters patent, including
divisions, continuations, continuations-in-part, reissues and/or extensions
thereof, and any application for the registration of such names and service
marks.
10.3 In the event the Employee creates, during the Employee's
employment by the Company, any original work of authorship fixed in any tangible
medium of expression which is the subject matter of copyright (such as,
videotapes, written presentations on acquisitions, computer programs, drawings,
maps, architectural renditions, models, manuals, brochures or the like) relating
to the Company's business, products or services, whether such work is created
solely by the Employee or jointly with others, the Company shall be deemed the
author of such work if the work is prepared by the Employee within the scope of
his employment; or, if the work is not prepared by the Employee within the scope
of his employment but is specially ordered by the Company as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as a
translation, as a supplementary work, as a compilation or as an instructional
text, then the work shall be considered to be a work made for hire, and the
Company shall be the author of such work. If such work is neither prepared by
the Employee within the scope of his employment nor a work specially ordered and
deemed to be a work made for hire, then the Employee hereby agrees to sell,
transfer, assign and convey, and by these presents, does sell, transfer, assign
and convey, to the Company all of the Employee's worldwide right, title and
interest in and to such work and all rights of copyright therein. The Employee
agrees to assist the Company and its Affiliates, at all times, until the Date of
Termination and at all times thereafter, in the protection of the Company's
worldwide right, title and interest in and to such work and all rights of
copyright therein, which assistance shall include, but shall not be limited to,
the execution of all documents requested by the Company or its nominee and the
execution of all lawful oaths and applications for registration of copyright in
the United States and foreign countries.
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11. EMPLOYEE'S NON-COMPETITION OBLIGATION.
11.1 (a) Until the Date of Termination, the Employee shall not, acting
alone or in conjunction with others, directly or indirectly, in any of the
business territories in which the Company or any of its Affiliates is presently
or from time to time conducting business, invest or engage, directly or
indirectly, in any business which is competitive with that of the Company or
accept employment with or render services to such a competitor as a director,
officer, agent, employee or consultant, or take any action inconsistent with the
fiduciary relationship of an employee to his employer; provided, however, that
the beneficial ownership by the Employee of up to three percent of the Voting
Stock of any corporation subject to the periodic reporting requirements of the
Exchange Act shall not violate this Section 11.1(a).
(b) In addition to the other obligations agreed to by the
Employee in this Agreement, the Employee agrees that until the Date of
Termination, he shall not at any time, directly or indirectly, (i) induce,
entice or solicit any employee of the Company to leave his employment, (ii)
contact, communicate or solicit any customer or acquisition prospect of the
Company derived from any customer list, customer lead, mail, printed matter or
other information secured from the Company or its present or past employees or
(iii) in any other manner use any customer lists or customer leads, mail,
telephone numbers, printed material or other information of the Company relating
thereto.
11.2 (a) If this Agreement is terminated by the Employee for any reason
or by the Company for Cause or Disability of the Employee, then for the
remainder of the Employment Period, the Employee shall not, acting alone or in
conjunction with others, directly or indirectly, in any of the business
territories in which the Company or any of its Affiliates is presently or at the
Date of Termination conducting business, invest or engage, directly or
indirectly, in any business which is competitive with that of the Company as of
the Date of Termination or accept employment with or render services to such a
competitor as a director, officer, agent, employee or consultant, or take any
action inconsistent with the fiduciary relationship of an employee to his
employer; provided, however, that the beneficial ownership by the Employee of up
to three percent of the Voting Stock of any corporation subject to the periodic
reporting requirements of the Exchange Act shall not violate this Section
11.2(a).
(b) In addition to the other obligations agreed to by the
Employee in this Agreement, the Employee agrees that if this Agreement is
terminated by the Employee for any reason or by the Company for Cause or
Disability of the Employee, then for the remainder of the Employment Period, he
shall not at any time, directly or indirectly, (i) induce, entice or solicit any
employee of the Company to leave his employment, (ii) contact, communicate or
solicit any customer or acquisition prospect of the Company derived from any
customer list, customer lead, mail, printed matter or other information secured
from the Company or its present or past employees or (iii) in any other manner
use any customer lists or customer leads, mail, telephone numbers, printed
material or other information of the Company relating thereto.
13
11.3 If this Agreement is terminated by the Company Without Cause, then
the Employee shall not be subject to any non-competition obligations hereunder.
11.4 The parties hereto acknowledge and agree that (i) the agreements
and covenants set forth in this Section 11 are being made for good and valuable
consideration, the receipt and sufficiency of which is acknowledged; (ii) the
covenants contained in this Section 11 are an important aspect of this
Agreement, and the Company would not have entered into this Agreement absent the
inclusion of this Section 11; and (iii) the restrictions imposed in this Section
11, including the geographic area and duration of the covenants made herein, are
reasonable and necessary to protect the Company. If the Employee breaches or
indicates an intention to breach any term or provision of this Section 11, the
parties hereto agree that the Company shall be entitled to the right of both
temporary and permanent injunctive relief and/or specific performance. The right
of the Company to such relief shall not be construed to prevent the Company from
pursuing, either consecutively or concurrently, any and all other legal or
equitable remedies available to it for such breach or threatened breach,
specifically including, without limitation, the recovery of monetary damages. If
any court determines that any provision of this Section 11, or any part thereof,
is unenforceable because of the duration or geographic scope of such provision,
the parties hereto agree that such court shall have the power to reduce the
duration or geographic scope of such provision, as the case may be, and the
parties hereto agree to request the court to exercise such power, and, in its
amended form, such provision shall then be enforceable and shall be enforced.
12. MISCELLANEOUS.
12.1 NOTICES. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when delivered by hand or
mailed by registered or certified mail, return receipt requested, as follows
(provided that notice of change of address shall be deemed given only when
received):
If to the Company to:
Lasermedics, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxx 00000
If to the Employee to:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section 12.1.
14
12.2 WAIVER OF BREACH. The waiver by any party hereto of a breach of
any provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach by any party.
12.3 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors, legal representatives and assigns, and
upon the Employee, his heirs, executors, administrators, representatives and
assigns; provided, however, the Employee agrees that his rights and obligations
hereunder are personal to him and may not be assigned without the express
written consent of the Company.
12.4 ENTIRE AGREEMENT; NO ORAL AMENDMENTS. This Agreement, together
with any exhibit attached hereto and any document, policy, rule or regulation
referred to herein, replaces and merges all previous agreements and discussions
relating to the same or similar subject matter between the Employee and the
Company and constitutes the entire agreement between the Employee and the
Company with respect to the subject matter of this Agreement. This Agreement may
not be modified in any respect by any verbal statement, representation or
agreement made by any employee, officer, or representative of the Company or by
any written agreement unless signed by an officer of the Company who is
expressly authorized by the Company to execute such document.
12.5 ENFORCEABILITY. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
12.6 JURISDICTION; ARBITRATION. The laws of the State of Texas shall
govern the interpretation, validity and effect of this Agreement without regard
to the place of execution or the place for performance thereof. Any controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration located in Houston, Texas administered by the
American Arbitration Association in accordance with its applicable arbitration
rules, and the judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof, which judgment shall be
binding upon the parties hereto.
12.7 INJUNCTIVE RELIEF. The Company and the Employee agree that a
breach of any term of this Agreement by the Employee would cause irreparable
damage to the Company and that, in the event of such breach, the Company shall
have, in addition to any and all remedies of law, the right to any injunction,
specific performance and other equitable relief to prevent or to redress the
violation of the Employee's duties or responsibilities hereunder.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first written above.
LASERMEDICS, INC.
By: /S/ XXXXXXX X. XXXXXXX
President and Chief Executive Officer
EMPLOYEE:
/S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
16
SCHEDULE 4.2(B)
MONTH MONTHLY BENCHMARK
----- -----------------
OCTOBER 1996 $120,000
NOVEMBER 1996 $120,000
DECEMBER 1996 $120,000
JANUARY 1997 $120,000
FEBRUARY 1997 $120,000
MARCH 1997 $130,000
APRIL 1997 $130,000
MAY 1997 $130,000
JUNE 1997 $130,000
JULY 1997 $130,000
AUGUST 1997 $130,000
SEPTEMBER 1997 $135,000
OCTOBER 1997 $135,000
NOVEMBER 1997 $135,000
DECEMBER 1997 $130,000
JANUARY 1998 $135,000
FEBRUARY 1998 $130,000
MARCH 1998 $140,000
APRIL 1998 $140,000
MAY 1998 $140,000
JUNE 1998 $150,000
JULY 1998 $150,000
AUGUST 1998 $150,000
SEPTEMBER 1998 $160,000
17
