EMPLOYMENT AGREEMENT
Employment Agreement, dated as of the ____ day of June, 1999, by and
between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (US) Ltd., a Delaware corporation (the "Corporation"),
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual residing in the State of New Jersey (the
"Employee").
W I T N E S S E T H:
The parent corporation of the Corporation is a party to that certain
Merger Agreement and Plan of Reorganization, dated June __, 1999, among
Cyber-Tech, Inc., a New Jersey corporation ("Cyber-Tech"), its shareholders,
MCNS Merger Subsidiary II, Inc. (the "Subsidiary") and ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation ("Parent") (the "Merger Agreement"). As a condition to the
Closing of the Merger Agreement, the Corporation and Employee are to enter into
an agreement upon the terms outlined herein under which Employee will provide
employment services in connection with the operation of its business and that of
Subsidiary as the surviving corporation to Cyber-Tech. In consideration of the
mutual covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
1. Employment. The Corporation hereby agrees to employ the Employee in an
employee capacity, and the Employee hereby accepts and agrees to such
employment, commencing as of the date hereof, upon the terms and conditions
hereinafter set forth.
2. Term. The term of the Employee's employment under this Agreement shall
commence as of the date hereof and shall continue until the close of business on
June 30, 2002, unless sooner terminated pursuant to the terms hereof. This
Agreement shall be renewable by the mutual written consent of the parties, which
consent shall specify the renewal period and any additional or different terms
of employment.
3. Duties and Services.
(a) The Employee agrees to initially serve in the position of and
holding the title "Director, Cardiovascular", and shall also serve the
Subsidiary and such other of its subsidiaries and affiliated companies as may be
designated by the Corporation, faithfully, diligently and to the best of his
ability, subject to and under the direction and control of his appointed
manager, who shall initially be ▇▇▇▇▇ ▇▇▇▇▇▇, or any successor, devoting his
entire business time, energy and skill to such employment, and to perform from
time to time such employee services, advisory or otherwise, as shall be
requested, and to act in such capacities or other offices for the Corporation
and for any of its subsidiary or affiliated companies as the Board of Directors
shall request without further compensation other than that for which provision
is made in this Agreement. The Employee acknowledges that while there are no
strict guidelines pertaining to work hours, he shall be expected to work a
longer than average week, and spend the necessary time and effort to
consistently deliver high quality results in a time sensitive manner.
(b) The principal place of employment of the Employee shall be in
New Providence, New Jersey, or Parsippany, New Jersey, or such other offices of
the Corporation as shall
be determined by the Board of Directors, which shall be located within a
one-hour drive of New Providence, New Jersey. Employee shall not be required to
relocate from New Providence, New Jersey , nor to spend substantial periods of
time away from the principal place of employment as defined above.
4. Compensation.
(a) Salary. From the date hereof to June 30, 2000, the Corporation
agrees to pay to the Employee, and the Employee agrees to accept a basic salary
for all his services (the Salary") at the rate of $100,000 per annum, payable in
accordance with the Corporation's standard payroll policies and subject to
normal deductions and withholdings. Thereafter, the Employee's Salary shall be
subject to annual review by the Board of Directors, and may be adjusted upward
or downward at the Board's discretion, but will not be subject to downward
revision unless a substantially lesser workload or responsibility is mutually
agreed in writing by the parties.
(b) Bonus Plan. The Employee shall also be eligible to receive a
bonus equal to:
(i) 25% of Sales (as defined below) through July 31, 2000;
(ii) 15% of Sales from August 1, 2000, to July 31, 2001; and
(iii) 10% of Sales from August 1, 2001, to June 30, 2002.
Employee shall be entitled to receive a bonus of ten percent (10%) of Sales
occurring on or before June 30, 2002, but which close after such date or for
which payment is received after such date.
(c) Bonus Payment. Bonus amounts will be calculated at the rate
during the year in which the Sale was made, but will not be paid to the Employee
until the Corporation actually receives payment by the client with respect to
such Sale. Payment shall be made to Employee on the 15th day of the month
following the month in which the Corporation receives payment from the client.
The bonus will be paid 50% in cash and 50% in the dollar equivalent of common
shares of Parent ("Parent Shares"), calculated by dividing such dollar amount by
the average of the closing prices for the Parent Shares as reported in The Wall
Street Journal for each of the twenty (20) trading days ending on the trading
day prior to the date of receipt of payment by the client.
(d) Sales. For the purposes of this Section 4, "Sales" shall mean
the dollar value of gross sales under contracts or grants with respect to client
services introduced and sold by the Employee either on his own or jointly with
support staff which relate to cardiology or co-morbid conditions. Support staff
shall mean any other person or persons provided to Employee by the Corporation
to work with Employee on any account. The parties acknowledge that from time to
time the parties may agree on additional bonus payments with respect to sales
regarding other medical conditions.
The Corporation shall have the right to review and approve all Sales in
order to establish commercial viability of such Sale, but will not unreasonably
withhold such approval. The Corporation agrees to maintain during the period any
bonus may be earned hereunder, reasonable
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financial records to permit tracking and determination of Sales. In addition,
the Corporation may, in its discretion, credit Employee for sales in which he
materially participated other than Sales. One-half of all Parent Shares received
by Employee under this Agreement shall be subject to the Management Voluntary
Pooling Agreement entered into between the Corporation and Employee as of the
date of this Agreement. All Parent Shares shall be subject to the limitations
and restrictions placed generally on Corporation employees under policies
adopted by the Corporation from time to time, such as restrictions with respect
to trading windows and material non-public information. If Employee's employment
by the Corporation is terminated (other than by the Corporation for "cause," as
defined herein) prior to the last day of the relevant bonus period, Employee
shall be entitled to receive any bonus payment earned as of the date of
termination.
5. Employee Benefits.
(a) Business. The Corporation shall reimburse the Employee for the
reasonable business expenses incurred by him for or on behalf of the Corporation
in furtherance of the performance of his duties hereunder. Such reimbursement
shall be subject to receipt by the Corporation from the Employee of such an
expense statements and such vouchers and other reasonable verifications as the
Corporation shall require to satisfactorily evidence such expenses, and shall
also be subject to such policies as the Corporation shall establish from time to
time. Reasonable business expenses include, but are not limited to, telephone
charges, business travel and entertainment, home office expenses, internet
connectivity charges and costs for computer hardware and software used in
connection with the Corporation's business, in each case consistent with Company
policy generally applied.
(b) Benefit Programs. The Employee shall be entitled to participate,
in accordance with the terms thereof, in employee benefit plans and programs
maintained for the Employees of the Corporation, including, without limitation,
any health, hospitalization and medical insurance programs and in any pension or
retirement or other similar plans or programs. Benefits available to Employee
shall not be less than those provided generally to other employees of the
Corporation holding the title of "Director". The foregoing shall not be
construed to require the Corporation to establish any such plans or programs, or
to prevent the Corporation from modifying or terminating any such plans or
programs once established, except that in no case shall the Corporation
terminate any plan or program providing health, hospitalization and medical
benefits to Employee unless such termination is part of a general termination of
such benefits.
(c) Vacation. The Employee shall be entitled to four (4) weeks of
vacation each employment year during the term of this Agreement, taken
consecutively or in segments. Vacation not taken during any such year cannot be
rolled over to the following or any subsequent year.
6. Termination of Benefits.
(a) Termination. Notwithstanding anything to the contrary contained
herein, the Employee's employment with the Corporation, as well as the
Employee's right to any compensation which thereafter otherwise would accrue to
him hereunder or in connection therewith, shall terminate upon the earliest to
occur of the following events:
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(i) the death or disability (as defined below) of the
Employee,
(ii) the expiration of the term of this Agreement,
(iii) the Employee's voluntary termination of such employment,
or
(iv) upon delivery of written notice, with or without "cause"
(as defined below), to the Employee from the Corporation of such
termination. Notice of termination without cause may not be
delivered during the initial six-month period of this Agreement.
(b) Certain Definitions. For the purpose of this Section 6, (i) the
term "cause" is defined as (A) the commission by the Employee of a felony or an
offense involving moral turpitude, the Employee's engaging in theft,
embezzlement, fraud, obtaining funds or property under false pretenses, or
similar acts of misconduct with respect to the property of the Corporation or
its employees, stockholders, affiliates, customers, licensees, licensers or
suppliers, (B) the repeated failure by the Employee to (i) perform his material
duties hereunder, or (ii) to comply with the reasonable written policies or
directives of the Board of Directors of the Corporation, (C) material
misfeasance or malfeasance, or (D) the breach of this Agreement by the Employee
in any material respect, which breach is not cured within thirty (30) days after
Employee's receipt of written notice of the breach (or if a breach is a
repetition of a previous breach occurring within the previous twelve (12)
months, no cure right shall be given), and (ii) the Employee shall be deemed
"disabled" if, at the Corporation's option, it gives notice to the Employee or
his representative that due to a disabling mental or physical condition, he has
been prevented, for a continuous period of 90 days during the term hereof or for
an aggregate of 120 days during any six month period during the term hereof,
from substantially performing those duties which he was required to perform
pursuant to the provisions of this Agreement prior to incurring such disability.
Any notice of termination shall outline the reasons for such termination.
(c) Severance; Release. In the event of and upon the termination by
the Corporation of the employment of the Employee under this Agreement without
"cause", in addition to the Salary and other compensation (including accrued
vacation, cash bonuses, incentive and performance compensation) earned hereunder
and unpaid or not delivered through the date of termination and any benefits
referred to in Section 5(b) hereof in which the Employee has a vested right
under the terms and conditions of the plan or program pursuant to which such
benefits were granted (without regard to such termination), the Corporation
shall pay the Employee a cash payment (the "Severance Payment") equal in the
aggregate to the sum of twelve months salary and bonus (which shall be
determined based on the previous twelve months or portion thereof) preceding
such termination. In the event of termination of this Agreement by the
Corporation by reason of the death or disability of the Employee or for "cause",
or in the event of voluntary termination of this Agreement by Employee, the
Corporation shall not be obligated to make the Severance Payment to the
Employee. The Severance Payment shall be paid to the Employee in consecutive,
equal monthly installments, on the fifteenth day of each calendar month
commencing during the month next following the first to occur of (1) the month
in which the Employee is no longer employed by the Corporation and (2) the
effective date of a general release from the Employee in customary form for
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such circumstances. The Severance Payment shall be in lieu of any other claim
for compensation under this Agreement, any wage continuation law or at common
law, or any claim to severance or similar payments or benefits which the
Employee may otherwise have or make. Without limiting any other rights or
remedies which the Corporation may have, it is understood that the Corporation
shall be under no further obligation to make any such severance payments and
shall be entitled to be reimbursed therefor by the Employee or his estate if the
Employee violates any of the covenants set forth in this Agreement. In the event
that the Severance Payment shall become payable to the Employee, the Employee
shall not be required, either in mitigation of damages or by the terms of any
provisions of this Agreement or otherwise, to seek or accept other employment,
and if the Employee does accept other employment, any benefits or payments under
this Agreement shall not be reduced by any compensation earned or other benefits
received as a result of such employment. Further, in the event that the
Severance Payment shall become payable to the Employee, the Corporation shall
continue to provide during such period coverage to Employee under the
Corporation's health, hospitalization and medical programs, to the same extent
and at the same cost to the Employee as provided during the term of Employee's
employment with the Corporation so long as its programs permit such coverage
and, in addition, shall use its best efforts to maximize the length of time that
COBRA benefits otherwise available to Employee shall remain available to the
maximum extent permitted under applicable laws.
7. Confidentiality.
(a) The Employee agrees to the following to and for the benefit of
the Corporation:
(i) Confidential Information. As used in this Agreement,
"Confidential Information" means information belonging to the
Corporation which is of value to the Corporation in the course of
conducting its business and the disclosure of which is reasonably
likely to result in a competitive or other disadvantage to the
Corporation. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions,
improvements and other intellectual property; trade secrets;
know-how; designs, processes or formulae, software; market or sales
information or plans; customer lists; and business plans, prospects
and opportunities (such as possible acquisitions or dispositions of
businesses or facilities) which have been discussed or considered by
the management of the Corporation. Confidential Information includes
information developed by the Employee in the course of the
Employee's employment by the Corporation or Cyber-Tech in the three
(3) previous years, as well as other information to which the
Employee may have access in connection with the Employee's
employment pertaining to the same or similar lines of business as
may be engaged in, or proposed to be engaged in, by the Corporation
during the term of this Agreement. Confidential Information also
includes the confidential information of others with which the
Corporation has a business relationship. Notwithstanding the
foregoing, Confidential Information does not include information in
the public domain, unless due to breach of the Employee's duties
under Section 7(a)(vi) or information known to the Employee prior to
his employment by the Corporation or Cyber-Tech in the three (3)
previous years.
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(ii) Confidentiality. The Employee understands and agrees that
the Employee's employment creates a relationship of confidence and
trust between the Employee and the Corporation with respect to all
Confidential Information. At all times, both during the Employee's
employment with the Corporation and after his termination, the
Employee will keep in confidence and trust all such Confidential
Information, and will not use or disclose any such Confidential
Information without the written consent of the Corporation, except
as may be necessary in the ordinary course of performing the
Employee's duties to the Corporation.
(iii) Inventions. The Employee recognizes that the Corporation
possesses a proprietary interest in all of the Confidential
Information and has the exclusive right and privilege to use,
protect by copyright, patent or trademark, or otherwise exploit the
processes, ideas and concepts described therein to the exclusion of
the Employee, except as otherwise agreed between the Corporation and
the Employee in writing. The Employee expressly agrees that any
products, inventions, discoveries or improvements made by the
Employee or his agents in the course of the Employee's employment or
during any period that the Employee has heretofore been a consultant
to the Corporation or Cyber-Tech, including any of the foregoing
which is based on or arises out of the Confidential Information,
shall be the property of and inure to the exclusive benefit of the
Corporation. The Employee further agrees that any and all products,
inventions, discoveries or improvements developed by the Employee
(whether or not able to be protected by copyright, patent or
trademark) during the course of his employment or during any period
that the Employee has heretofore been a consultant to the
Corporation or Cyber-Tech, or involving the use of the time,
materials or other resources of the Corporation or any of its
subsidiaries or affiliates or Cyber-Tech, shall be promptly
disclosed to the Corporation and shall become the exclusive property
of the Corporation and the Employee shall execute and deliver any
and all documents necessary or appropriate to implement the
foregoing.
(iv) Business Opportunities. The Employee agrees, while he is
employed by the Corporation, to offer or otherwise make known or
available to it, as directed by the Board of Directors of the
Corporation and without additional compensation or consideration,
any business prospects, contracts or other business opportunities
that he may discover, find, develop or otherwise have available to
him in the same or substantially similar lines of business as may be
engaged in by the Corporation during the term of this Agreement, and
further agrees that any such prospects, contacts or other business
opportunities shall be the property of the Corporation.
(v) Documents, Records, etc. All documents, records, data,
apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the
Employee by the Corporation or Cyber-Tech or are produced by the
Employee in connection with the Employee's employment will be and
remain the sole property of the Corporation. The Employee will
return to the Corporation all such materials and property as and
when requested by the
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Corporation. In any event, the Employee will return all such
materials and property immediately upon termination of the
Employee's employment for any reason. The Employee will not retain
with the Employee any such material property or any copies thereof
after such termination.
(vi) Third-Party Agreements and Rights. The Employee hereby
confirms that the Employee is not bound by the terms of any
agreement with any previous employer (other than Cyber-Tech) or
other party which restricts in any way the Employee's use or
disclosure of information reasonably likely to be useful or
necessary to the performance by the Employee of his services
hereunder, or the Employee's engagement in any business. The
Employee represents to the Corporation that the Employee's execution
of this Agreement, the Employee's employment with the Corporation
and the performance of the Employee's proposed duties for the
Corporation will not violate any obligations the Employee may have
to any such previous employer or other party. In the Employee's work
for the Corporation, the Employee will not disclose or make use of
any information in violation of any agreements with or right of any
such previous employer or other party, and the Employee will not
bring to the premises of the Corporation any copies or other
tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
(vii) Litigation and Regulatory Cooperation. During and after
the Employee's employment, the Employee shall cooperate fully with
the Corporation in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future
against or on behalf of the Corporation or its subsidiaries or
affiliates which relate to events or occurrences that transpired
while the Employee was employed by the Corporation or Cyber-Tech.
The Employee's full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to
meet with counsel to prepare for discovery or trial and to act as a
witness on behalf of the Corporation at mutually convenient times.
During and after the Employee's employment, the Employee also shall
cooperate fully with the Corporation in connection with any such
investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or
occurrences that transpired while the Employee was employed by the
Corporation or Cyber-Tech. The Corporation shall reimburse the
Employee for any reasonable out-of-pocket expenses incurred in
connection with the Employee's performance of obligations pursuant
to this subsection (vii). The performance by the Employee under this
subsection (vii) after the termination of the Employee's employment
with the Corporation shall be subject to his other confidentiality
obligations hereunder.
(b) The provisions of this Section 7 shall survive the termination
or expiration of this Agreement, irrespective of the reason therefor, including
under circumstances in which the Employee continues thereafter in the employ of
the Corporation.
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8. Insurance. The Employee agrees that the Corporation may from time to
time and for the Corporation's own benefit apply for and take out life insurance
covering the Employee, either independently or together with others, in any
amount and form which the Corporation may deem to be in its best interests. The
Corporation shall own all rights in such insurance and in the cash values and
proceeds thereof and the Employee shall not have any right, title or interest
therein. The Employee agrees to assist the Corporation, at the Corporation's
expense, in obtaining any such insurance by, among things, submitting to
customary examinations and correctly preparing, signing and delivering such
applications and other documents as reasonably may be required. Nothing
contained in this Section 8 shall be construed as a limitation on the Employee's
right to procure any life insurance for his own personal needs.
9. Notices. All notices shall be in writing and shall be deemed to have
been duly given to a party hereto on the date of such delivery, if delivered
personally, or on the third day after being deposited in the mail if mailed via
registered or certified mail, return receipt requested, postage prepaid, or on
the next business day after being sent by recognized national overnight courier
service, in the case of the Employee at his current address as set forth in the
Corporation's records, and in the case of the Corporation, at it address set
forth above.
10. Assignability and Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the heirs, executors, administrators,
successors and legal representatives of the Employee, and shall inure to the
benefit of and be binding upon the Corporation and its successors and assigns.
This Agreement may be assigned by the Corporation to any subsidiary, affiliate
or successor to its business, provided such entity has the financial capability
to carry out the Corporation's obligations to Employee hereunder. The Employee
may not assign, transfer, pledge, encumber, hypothecate or otherwise dispose of
this Agreement, or any of his rights or obligations hereunder, and any such
attempted delegation or disposition shall be null and void and without effect.
11. Severability. In the event that any provisions of this Agreement would
be held to be invalid, prohibited or unenforceable in any jurisdiction for any
reason (including, but not limited to, any provisions which would be held to be
unenforceable because of the scope, duration or area of its applicability),
unless narrowed by construction, this Agreement shall, as to such jurisdiction
only, be construed as if such invalid, prohibited or unenforceable provision had
been more narrowly drawn so as not to be invalid, prohibited or unenforceable
(or if such language cannot be drawn narrowly enough, the court making any such
determination shall have the power to modify such scope, duration or area or all
of them, but only to the extent necessary to make such provision or provisions
enforceable in such jurisdiction, and such provision shall then be applicable in
such modified form). If, notwithstanding the foregoing, any provision of this
Agreement would be held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective to the extent of such
invalidity, prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey, without regard to
principles of conflict of laws and regardless of where actually executed,
delivered or performed.
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13. Complete Understanding; Counterparts. This Agreement constitutes the
complete understanding and supersedes any and all prior agreements and
understandings between the parties with respect to its subject matter, and no
statement, representation, warranty or covenant has been made by either party
with respect thereto except as expressly set forth herein. This Agreement shall
not be altered, modified, amended or terminated except by written instrument
signed by each of the parties hereto. The Section and paragraph headings
contained herein are for convenience only, and are not part of and are not
intended to define or limit the contents of said Sections and paragraphs. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, when taken together, shall constitute one and the
same agreement.
14. Arbitration. All disputes under Agreement shall be settled by
arbitration in the metropolitan New York/New Jersey area before a single
arbitrator pursuant to the rules of the American Arbitration Association (the
"AAA"). Arbitration may be commenced at any time by any party hereto by giving
written notice to each other party to a dispute that such dispute has been
referred to arbitration under this Section 14. The arbitrator shall be selected
by the joint agreement of the parties, but if they do not so agree within twenty
(20) days after the date of the notice referred to in the preceding sentence,
the selection shall be made pursuant to the rules of the AAA from the panels of
arbitrators maintained by the AAA. Any award rendered by the arbitrator shall be
conclusive and binding upon the parties hereto; provided, however, that any such
award shall be accompanied by a written opinion of the arbitrator giving the
reasons for the award. This provision for arbitration shall be specifically
enforceable by the parties, and the decision of the arbitrator in accordance
herewith shall be final and binding and there shall be no right of appeal
therefrom. Each party shall pay its own expenses of arbitration and the expenses
of the arbitrator shall be equally shared.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (US) LTD.
By:_________________________________
Name:_______________________________
Title:______________________________
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇