EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective on March 27, 2000, between
HYPERBARIC SYSTEMS, whose address is 1127 Harker Avenue, Palo Alto, CA
94301, incorporated under the laws of the State of California, hereinafter
called "EMPLOYER", or COMPANY and Luis Toledo, M.D., Ph.D., whose address
is 3598 Whistling Lane, Portage, MI, hereinafter called "EMPLOYEE".
WITNESSETH:
1. PURPOSE OF AGREEMENT. HYPERBARIC SYSTEMS is a duly established
California corporation engaged in the business of designing, manufacturing
and marketing products for the medical, food and semiconductor industries,
and EMPLOYEE represents that he has experience in the area of organ
transplantation, and preservation technology including the human heart,
kidney and liver. This agreement between EMPLOYER and EMPLOYEE is entered
into for the purpose of defining the relationship, responsibilities, and
agreement between EMPLOYER and EMPLOYEE.
2. EMPLOYMENT: EMPLOYER hereby employs Luis Toledo as the Company's
Chief Medical Officer, effective March 27, 2000.
3. EMPLOYEE DUTIES AND RESPONSIBILITIES. EMPLOYEE shall be employed as
Chief Medical Officer with the following duties and responsibilities:
a. Establish the HBS Scientific Advisory Board.
b. Establish and manage the Research and Development team for biologic
preservation.
c. Manage the development of the solutions necessary to preserve the kidney
and other organs for above and below zero temperatures.
d. Manage the platelet solution development and process for above and below
zero temperatures.
e. Perform tasks and become involved in projects as directed by the President.
4. EMPLOYEE'S PERFORMANCE. EMPLOYEE shall work as agreed upon by the
parties. Employee agrees to devote his best efforts to the Corporation's
business and devote his efforts to the Corporation for the performance of
his duties as Chief Medical Officer, and perform other duties and
responsibilities as directed by the President.
5. TERM. The term of this Agreement shall be effective for a minimum
term of one year from the date of this Agreement and continue until thirty
days' written notice of termination by either party. It is the intent of the
parties that this contract shall continue indefinitely until terminated by
either party.
6. COMPENSATION. For the services rendered by EMPLOYEE hereunder,
EMPLOYEE shall be compensated at an amount to be determined by the following
formula, but may be adjusted as agreed to by both parties.
a. $6,000 per month commencing March 24, 2000 until the Company raises
$1,000,000 in funding pursuant to the Private Placement Memorandum dated
September 1, 1999 or February 2, 2000 and later, through other equity or debt
investments.
b. $7,000 per month when the Company raises at least $1,000,000
pursuant to the Private Placement Memorandum dated September 1, 1999 or
February 2, 2000 and later, through other equity or debt investments.
c. $8,000 per month .when the Company raises at least $2,000,000
pursuant to the Private Placement Memorandum dated September 1, 1999 or
February 2, 2000 and later, through other equity or debt investments.
d. $12,000 per month .when the Company raises at least $3,000,000
pursuant to the Private Placement Memorandum dated September 1, 1999 or
February 2, 2000 and later, through other equity or debt investments.
e. Salary increases shall be reviewed when greater than $4,000,000
is raised by the Company.
f. Employee will be eligible to participate in any executive
compensation and bonus plans the Employer may establish.
7. STOCK OPTION. Stock options granted under the CONSULTANT
AGREEMENT dated May 28, 1998 shall remain in force and continue to vest
according to the agreed schedule. For the purpose of further motivating
EMPLOYEE, the following STATUTORY INCENTIVE STOCK OPTIONS are hereby
granted under the Statutory Incentive Stock Option Plan of the Company,
and issued under the Notice of Grant of Statutory Stock Option, and the
Statutory Stock Option Agreement, which are included as part of this
Agreement and listed as Exhibit A. The Stock Option Grant requires
approval by the Board of Directors.
a. 75,000 shares at a price equal to $1.50 per share vested over three
years, exercisable yearly at the rate of 30%, 30% and 40% respectively.
8. BONUS After the first year of employment and up to the
expiration of the options, Employer agrees to grant a bonus of up to $1,000
to EMPLOYEE for the sole purpose of exercising any vested stock options
under this agreement.
9. CONSULTANT AGREEMENT The CONSULTANT AGREEMENT between the
COMPANY and EMPLOYEE (then CONSULTANT) dated May 28, 1998 shall remain in
effect as to paragraph 6. COMPENSATION, paragraph 7. STOCK OPTION, and
paragraph 8. BONUS, and are added to those respective paragraphs of this
Employment Agreement dated March 27, 2000. All other paragraphs will be
superceded by this Agreement.
9. VACATION, HOLIDAYS AND ABSENCE. EMPLOYEE shall be entitled to
annual paid vacations of fifteen days per year plus such holidays as adopted
by the Company as paid holidays.
10. EMPLOYEE BENEFITS. Employee shall be entitled to participate
in all benefits offered to the COMPANY'S employees. Such benefits may
include by not limited to group medical, dental and vision insurance, life
insurance or other insurance or benefits adopted by the Company.
11. TERMINATION UPON BREACH. This Agreement shall be terminated
upon material breach of any of the provisions herein, or breach of the
material provisions of any and all supplemental agreements which the EMPLOYEE
and EMPLOYER may mutually execute.
12. CONFIDENTIALITY AGREEMENT. EMPLOYEE agrees that all information made
available to EMPLOYEE regarding the products, clients and software systems of
EMPLOYER are confidential and require a high degree of confidentiality so as
not to violate the rights of others and to prevent the use thereof for
purposes detrimental to the interests of EMPLOYER and its clients. Such
information in any form shall be hereinafter referred to as "INFORMATION."
For purposes of this Agreement:
a. CONFIDENTIAL INFORMATION means INFORMATION disclosed to or
acquired by EMPLOYEE while employed by EMPLOYER, and includes but is not
limited to, INVENTIONS, Patent Applications, TRADE SECRETS, any other
information of value relating to the business and/or field of interest of
EMPLOYER including information with respect to which EMPLOYER is under an
obligation of confidentiality with any third party. CONFIDENTIAL INFORMATION
does not include information that is generally known in the relevant trade or
industry or any information known to and freely usable by EMPLOYEE before
EMPLOYEE's association with EMPLOYER, provided, however, information for
purposes of this Agreement shall be considered CONFIDENTIAL INFORMATION if
not known by the trade generally, even though such information has been
disclosed to one or more third parties pursuant to distribution agreements,
joint research agreements, or other agreements entered into by EMPLOYER;
b. TRADE SECRET(S) means all information, know-how, concepts, data,
knowledge, ideas and materials however embodied, relating to the business of
EMPLOYER?s customers which have not been released publicly by an authorized
representative of EMPLOYER or have not otherwise lawfully entered the public
domain. TRADE SECRETS shall include but are not limited to information,
know-how, concepts, data, knowledge, computer programs, ideas and materials
relating to EMPLOYER's existing and future products, processes, research and
development, technology, production costs, contract forms, drawings, designs,
plans, proposals, marketing and sales plans and strategies, cost or pricing
information, financial information, promotional methods, volume of sales,
names or classes of customers and vendors, management procedures, organization
charts, and employee directories.
13. PROPRIETARY INFORMATION OF OTHERS. EMPLOYEE shall not use or
disclose to EMPLOYER, or induce EMPLOYER to use, any information, know-how,
concepts, data, knowledge, computer programs, ideas or materials, however
embodied, with respect to which EMPLOYEE is under an obligation of
confidentiality to any third party imposed, by law or agreement prior to
the date hereof. EMPLOYER represents and covenants that it will not require
EMPLOYEE to violate any obligation to, or confidence with, another.
14. SECRECY AGREEMENT. EMPLOYEE acknowledges that he understands
the requirement for CONFIDENTIAL INFORMATION to be kept secret and used only
as authorized herein. EMPLOYEE shall at all times during the period of his
association with EMPLOYER under this agreement and thereafter keep in
confidence and trust all CONFIDENTIAL INFORMATION. EMPLOYEE shall use
CONFIDENTIAL INFORMATION only in the course of performing duties as Chief
Financial Officer and Secertary for the Company and other duties as assigned
by the Company President, and not for unrelated personal gain. EMPLOYEE
shall not, directly or indirectly, disclose any CONFIDENTIAL INFORMATION to
any person, organization or entity, except in the course of performing duties
as a EMPLOYEE of EMPLOYER and only in the manner prescribed by EMPLOYER.
Employee shall abide by those EMPLOYER policies and regulations established
from time to time for the protection of CONFIDENTIAL INFORMATION. During
EMPLOYEE's association with EMPLOYER under this Agreement, and after
termination thereof, EMPLOYEE shall not directly, or indirectly, either as
an employee, employer, agent, principal, partner, stockholder, corporate
officer, director, or in any other individual or representative capacity,
engage or participate in any activity of any nature whatsoever, the
performance of which would have a reasonable likelihood of placing EMPLOYEE
in conflict with the obligations of confidence and trust regarding
CONFIDENTIAL INFORMATION imposed herein.
15. RETURN OF DOCUMENTS AND MATERIALS. EMPLOYEE agrees that all
documents, reports, drawings, materials, designs, plans, computer programs,
proposals, marketing and sales plans, reproductions, and other documents or
things made by EMPLOYEE or that come into EMPLOYEE's possession in the course
of employment with EMPLOYER are the property of EMPLOYER and will not be used
by EMPLOYEE for any purpose other than the business of EMPLOYER. EMPLOYEE
will not deliver, reproduce or in any way allow such documents or things to
be delivered or be used by any third parties without specific direction or
consent of EMPLOYER. Upon termination of this Agreement, EMPLOYEE will
promptly deliver to EMPLOYER the above documents and materials together with
any copies thereof., at EMPLOYER expense.
16. NO DISCLOSURE. EMPLOYEE agrees not to divulge, disclose,
convey or make known to others or any other entity, any such information
without the express written consent of the President of HyperBaric Systems
first obtained. EMPLOYEE further agrees to take all necessary steps to
safeguard such information to prevent the unauthorized disclosure thereof.
17. INJUNCTION. Recognizing that irreparable damage
will result to the business of EMPLOYER in the event of the breach of any of
these covenants and assurances by EMPLOYEE, the parties hereto agree that if
EMPLOYEE shall violate the terms of this Agreement, EMPLOYER shall be
entitled to an injunction to be issued by any court of competent jurisdiction
enjoining and restraining EMPLOYEE and each and every person, firm,
association, partnership, company, or corporation concerned therewith, from
the continuance of such violation of the terms of this Agreement, and in
addition thereto, EMPLOYEE shall pay to EMPLOYER all damages, including
reasonable attorneys' fees sustained by EMPLOYER by reason of the violation
of this Agreement.
18. NO ASSIGNMENT. Neither the EMPLOYEE nor EMPLOYER may
transfer or assign this Agreement, or any right or obligation hereunder,
without the prior written consent of the other party. No right or obligation
under this Agreement may be waived, modified, or in any respect altered except
by written agreement of the parties executed in writing by both parties.
19. SUCCESSORS AND ASSIGNS. This agreement shall be binding on the
heirs, executors, successors and assigns of the parties.
20. ATTORNEYS FEES. If any action is brought to enforce any
obligation created under this Agreement, the Court shall award to the
prevailing party, such reasonable fees, costs, and expenses as may have been
incurred by such party in enforcing its rights under this Agreement,
including without limitation, the fees, costs, and expenses of its attorney
for services both before or after litigation is instituted.
21. ENTIRE AGREEMENT. This Agreement may not be changed except in
writing signed by the President of the Company and the EMPLOYEE. The
validity, performance, construction, and effect of this Agreement shall be
governed by the laws of the State of California IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first
above written.
"EMPLOYER" "EMPLOYEE"
HYPERBARIC SYSTEMS. LUIS TOLEDO
1127 Harker Avenue 3598 Whistling Lane
Palo Alto, California 94301 Portage, MI 49024
By:
HARRY MASUDA, PRESIDENT LUIS TOLEDO, M.D., Ph.D.
