EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this second day of June, 2003, by
CardioBioMedical Corporation ("Company" or "CBM"), a Delaware corporation and
James F. Mongiardo, an individual residing at 2 Briar Lane, Natick,
Massachusetts (hereinafter called "Executive").
W I T N E S S E T H:
Company wishes to employ Executive, Executive wishes to enter into
the employ of Company on the terms and conditions contained in this Agreement.
WHEREAS, Company desires to employ Executive as its Chief Executive
Officer ("CEO") and Executive desires to be employed by the Company, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Executive agree as follows:
1. Definitions. As used herein, the following terms shall have the
meanings set forth below unless the context otherwise requires.
(a) "Affiliate" shall mean a person or entity who (i) with
respect to any entity, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such entity; or (ii) with respect to Executive, is a parent, spouse or issue of
Executive, including persons in an adopted or step relationship.
(b) "Base Compensation" shall mean the annual rate of
compensation set forth in Section 5(a), as such amount shall be adjusted as
required by Section 5(a).
(c) "Board" shall mean the Board of Directors of Company.
(d) "Business" shall mean the business conducted by Company as
of the date of execution of this Agreement, including business activities in
developmental stages, business activities which may be developed by Company, or
any Subsidiary or corporate parent thereof or entity sharing a common corporate
parent with the Company, during the period of Executive's employment by Company,
and all other business activities which flow from a commercially reasonable
expansion of any of the foregoing.
(e) "Cause" shall include but not be limited to any one or
more of the following:
(i) Executive materially breaches or materially neglects
the material duties that Executive is required to perform under the terms of
this Agreement, including if Executive performs his duties in an incompetent
manner;
(ii) Executive is reasonably believed, by the majority
of the Board of Directors of the Company, to have committed a felony or a crime
involving moral turpitude or has entered a plea of nolo contendere (or similar
plea) to a charge of such an offense if the majority of the Company's Board of
Directors believes the commission has a material or significant impact on the
Company;
(iii) Executive is reasonably believed by the majority
of the Board of Directors of the Company to have used alcohol or any unlawful
controlled substance while performing his duties under this Agreement if such
use interferes with the performance of Executive's material duties under this
Agreement;
(iv) Executive commits any act of fraud or personal
dishonesty which the Company reasonably believes could damage or has damaged the
Company or misappropriation relating to or involving Company;
(v) Executive intentionally or negligently engages in
the unauthorized disclosure of material Confidential Information; and
(vi) With regard to 1(e)(i), Company will give Executive
written notice of the breach or neglect (hereinafter collectively, "Problematic
Conduct"). In addition, Executive will be given 30 days to attempt to cure the
Problematic Conduct, but the successful result of Executive's attempt to cure
will be determined by Company, in Company's reasonable discretion.
(f) "Commencement Date" shall have the meaning specified in
Section 4 hereof.
(g) "Confidential Information" shall have the meaning
specified in Section 14(a) hereof.
(h) "Disability" shall mean Executive's inability, for a
period of twelve (12) consecutive weeks, or a cumulative period of 120 business
days (i.e., Mondays through Fridays, exclusive of days on which Company is
generally closed for a holiday) out of a consecutive period of twelve (12)
months, to perform the essential duties of Executive's position, with any
reasonable accommodation required by law, due to a mental or physical impairment
which substantially limits one or more major life activities.
(i) "Restricted Area" shall have the meaning specified in
Section 14(a) hereof.
(j) "Restricted Period" and "Extended Restricted Period" shall
have the meaning specified in Section 14(a) and 14(b) respectively.
(k) "Subsidiary" shall mean any company in which Company owns
directly or indirectly 50% or more of the Voting Stock or 50% or more of the
equity; or any other venture in which it owns either 50% or more of the voting
rights or 50% or more of the equity.
(l) "Term of Employment" shall mean the period specified in
Section 4 hereof as the same may be terminated in accordance with this
Agreement.
(m) "Voting Stock" shall mean capital stock for any class or
classes having general voting power under ordinary circumstances in the absence
of contingencies, to elect the Directors of the Company.
2. Employment. Company hereby employs Executive as Chief Executive
Officer and Executive hereby accepts employment by Company for the period and
upon the terms and conditions specified in this Agreement.
3. Office and Duties.
(a) Executive shall be employed as Chief Executive Officer. In
such capacity, Executive shall render such services as are necessary and
desirable to protect and advance the best interests of Company, acting, in all
instances, under the supervision of and in accordance with the policies set by
the Board.
(b) Executive during the term of this Agreement, unless
prevented by ill health, shall devote at least forty (40) hours per week of his
working time, energy, skill and commercially reasonable efforts to the
performance of Executive's duties hereunder in a manner which will faithfully
and diligently further the business and interests of the Company. The Company
recognizes that the Executive also is and may continue to serve as President and
Managing Director of the Homewood Capital Group, LLC ("HCG") and also may
continue to represent the HCG and its predecessor business LBC Capital with
other companies and business activities.
4. Term. Executive shall be employed by Company for an initial term
of employment (the "Initial Term"), commencing June 2, 2003 (the "Commencement
Date"), and ending on June 30, 2008, unless sooner terminated as hereinafter
provided. Unless either party elects to terminate this Agreement at the end of
the Initial Term by giving the other party written notice of such election at
least one hundred and twenty (120) days before the expiration of the Initial
Term, the term of employment shall be deemed to have been extended for an
additional term of one (1) year (the "Additional Term") commencing on the day
after the expiration of the Initial Term. At any time during the Additional
Term, either party may terminate this Agreement by giving the other party
written notice of such election at least one hundred and twenty (120) days prior
to such termination.
5. Compensation and Bonus.
(a) Base Compensation. For all of the services rendered by
Executive to Company, Executive shall receive Base Compensation at the gross
annual rate of two hundred and fifty thousand dollars ($250,000) payable in
installments in accordance with Company's regular payroll practices in effect
from time to time with the first installment due after the Company has raised a
minimum of $ 500,000 for its operations. The Base Compensation will be increased
on July 1, 2004 and each subsequent July 1 by 10% respectively, if Executive is
actively employed by the Company on the preceding June 30.
(b) Bonus. Executive shall be entitled to an annual bonus
pursuant to terms, conditions and eligibility requirements of the plan, if any,
adopted by the Board of Directors, in the Board's sole discretion.
(c) Stock Option Awards. The Executive shall be eligible for
stock options pursuant to and in accordance with the terms, conditions,
restrictions and eligibility requirements of a stock option plan, if any,
adopted by the Board of Directors.
(d) Travel and Housing. The Company shall reimburse Executive
for all reasonable out-of-pocket expenses incurred for travel and housing
including any out of pocket expenses incurred prior to this Employment Agreement
related to the formation of CBM and/or the negotiation of an Agreement and
License Agreement with Dan Qun Fang concerning the Bio-Cybernetic
Cardio-Diagnostic System. Reimbursement shall be made on a monthly basis.
6. Fringe Benefits. As an additional inducement to Executive to
commence employment hereunder, and in consideration of Executive's covenants
under this Agreement, Executive shall be entitled to the benefits set forth
below (the "Fringe Benefits") during the Term of Employment:
(a) Executive shall be eligible to participate in any health,
life, accident or disability insurance or other benefit plans or programs made
available to other similarly situated Executives of Company as long as the plans
and programs are kept in force by Company and provided that Executive meets the
eligibility requirements and other terms, conditions and restrictions of the
respective plans and programs.
(b) Executive shall be entitled to four (4) weeks paid
vacation during each year, as well as the usual Company holidays and sick time
days, subject to Company's generally applicable policies relating to paid time
off. Unused time will not be paid upon separation but, up to a maximum of ten
days of paid time off (holiday, sick and vacation time) can be carried over to
the next contract year.
(c) Company will reimburse Executive for all reasonable and
necessary expenses incurred by Executive in connection with the performance of
Executive's duties hereunder upon receipt of documentation therefor in
accordance with Company's regular reimbursement procedures and practices in
effect from time to time.
(d) The Company agrees to allow Executive to maintain one seat
on the Board of the Company throughout Executive's active employment with the
Company and appoint one additional member when the number of directors is
increased from one (1) to three (3). If the number of directors is further
increased to five (5), Executive shall appoint a second director not including
himself or the first appointed director by Executive.
7. Stock. Executive shall be the sole shareholder of CBM upon its
formation. When additional shareholders are added, Executive will receive
proportionally a total of two million three hundred and seventy-five thousand
(2,375,000) common shares of the Company's stock.
8. Disability. If Executive suffers a Disability, Company may
terminate Executive's employment relationship with Company at any time
thereafter by giving Executive ten (10) days written notice of termination.
Thereafter, Company shall have no obligation to Executive for Base Compensation,
Bonus, Fringe Benefits or any other form of compensation or benefit to
Executive, except as otherwise required by law or by benefit plans provided at
Company expense, other than (a) amounts of Base Compensation accrued through the
date of termination, (b) a prorated portion of the Bonus, if any, and (c)
reimbursement of appropriately documented expenses incurred by Executive before
the termination of employment, to the extent that Executive would have been
entitled to such reimbursement but for the termination of employment. Any
compensation Executive receives from any Company sponsored or Company paid for
insurance, benefit plan or policy under which the Executive was covered at the
time of his inability, due to his disability, including but not limited to
workers' compensation payments and payments from a Company disability plan will
be deducted from the Company's prorated Bonus payment, if any, to Executive.
9. Death. If Executive dies during the Term of Employment, the Term
of Employment and Executive's employment with Company shall terminate as of the
date of Executive's death. Company shall have no obligation to Executive or
Executive's estate for Base Compensation, Bonus, Fringe Benefits or any other
form of compensation or benefit, except as otherwise required by law or by
benefit plans provided at Company expense, other than (a) amounts of Base
Compensation that have accrued through the date of Executive's death, (b) a
prorated portion of the Bonus (if any) and (c) reimbursement of appropriately
documented expenses incurred by Executive before the termination of employment,
to the extent that Executive would have been entitled to such reimbursement but
for the termination of employment.
10. Termination for Cause.
(a) Company may terminate Executive's employment relationship
with Company at any time for Cause. Upon termination of Executive under this
Section 10, Company shall have no obligation to Executive for Base Compensation,
Bonus, Fringe Benefits, or any other form of compensation or benefits other than
(a) amounts of Base Compensation accrued through the date of termination, and
(b) reimbursement of appropriately documented expenses incurred by Executive
before the termination of employment, to the extent that Executive would have
been entitled to such reimbursement but for the termination of employment.
(b) Any and all disputes regarding whether an Executive's
discharge is with or without Cause, as defined by this Agreement, will be
resolved by arbitration to be held in Boston, Massachusetts, in accordance with
the Employment Dispute Resolution Rules of the American Arbitration Association
then in effect.
(c) Executive will be bound by the confidentiality,
non-competition and trade secret provisions stated in Sections 13 and 14 below.
11. Termination without Cause.
(a) Company may terminate Executive's employment relationship
with Company at any time without Cause. Notwithstanding termination of Executive
under this Section 11, Company shall continue to pay Executive's Base
Compensation, as such amounts would have accrued through the five year Initial
Term of the Agreement and any Additional Term so long as Executive (i) executes
and does not revoke a Separation Agreement and General Release, (ii) the
termination is without Cause and (iii) Executive complies with Section 14 of
this Agreement which deals with confidentiality, non-competition and trade
secrets and which extends the non-competition provision to the period of time
Company pays Executive his Base Compensation following Executive's actual
termination date. However, the maximum time of the non-compete is thirty-six
(36) months from separation and the minimum is twelve (12) months. The Base
Compensation, if payable, will be paid out in installments in accordance with
the Company's regular payroll practices. Executive also will be paid a prorated
portion of his Bonus, if any, for the portion of the last year he worked
(b) Executive may terminate his employment with Company for
any or no reason, upon ninety (90) days written notice. If such notice is
provided by Executive, Company, in its sole discretion, may waive the notice
period or any portion thereof, without pay (Base Compensation, Bonuses, etc.) or
Fringe Benefits to Executive for the remaining notice period. The Company shall
then consider the Executive's employment terminated on the date on which
Executive last receives Base Compensation as an Executive. Upon termination by
Executive of his employment under the provisions of this Subsection 11(b), the
Company shall have no obligation to Executive for Base Compensation, Bonus,
Fringe Benefits or any other form of compensation or benefits other than (a)
amounts of Base Compensation accrued through the date of his termination, and
(b) reimbursement of appropriately documented expenses incurred by Executive
before the termination of employment, to the extent that Executive would have
been entitled to such reimbursement but for his termination of his employment.
(c) Termination of Executive's employment pursuant to Sections
8 through 11 shall release the Company of all its liabilities and obligations
under this Agreement, except as expressly provided in Sections 8 through 11 and
except for federal and state law requirements. Termination of Executive's
employment pursuant to this Section shall not, however, release Executive from
Executive's obligations and restrictions as stated in Sections 13 and 14 of this
Agreement.
(d) Executive shall not be entitled to any payment or benefit
under any Company severance plan, practice or policy, if any, in effect at or
after the time of Executive's termination, pursuant to Sections 8 through 11,
since this Agreement supersedes all such plans, practices and policies.
(e) Executive will not be required to offset or mitigate
compensation lost due to the termination of his employment by Company without
Cause.
12. Indemnification.
(a) The Company agrees that if Executive is or becomes a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether brought by or in the right of the Company or otherwise
("Proceeding"), by reason of the fact that (whether before or after the
Effective Date) he is or was a director, officer, or employee of the Company or
is or was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including (without limitation) service with respect to
employee benefit plans, so long as the basis of such Proceeding is Executive's
alleged action in an official capacity while serving as a director, officer,
member, employee or agent, Executive shall be indemnified and held harmless by
the Company to the fullest extent legally permitted or authorized by the Company
or, if greater, by laws of the State of Delaware or any other applicable state
or organization or formation, against all cost, expense, liability or loss
(including, without limitation, attorneys' fees, judgments, costs of appearance,
fines, excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by Executive in connection therewith, and such
indemnification shall continue as to Executive even if he has ceased to be a
director, member, employee or agent of the Company or other entity and shall
inure to the benefit of Executive's heirs, executors and administrators. In this
Section 12, (i) each reference to "the Company") (other than for the purpose of
any notice) shall include, without limitation, all entities that are
subsidiaries and affiliates of the Company, and (ii) all obligations of the
Company shall be joint and several as to entities included in such definition of
"the Company". Executive agrees to repay any and all monies paid by Company
under this provision if it shall ultimately be determined by Company that
Executive is not entitled to be indemnified against such costs and expenses.
(b) Neither the failure of the Company (including, without
limitation), its board of directors, independent legal counsel or stockholders)
to have made any determination that indemnification of Executive is proper
because he has met the applicable standard of conduct, nor a determination by
the Company (including, without limitation, its board of directors, independent
legal counsel or stockholders) that Executive has not met such applicable
standard of conduct, shall create a presumption that Executive has not met the
applicable standard of conduct or shall be a defense to any action or proceeding
to enforce the Company's indemnification or expense-defense to any action or
proceeding to enforce the Company's indemnification or expense-advancement
obligations. The Company shall have the burden of proof in establishing that
Executive has not met the applicable standard of conduct. Where Executive is
entitled to indemnification under this Section 12 for a portion of the
indemnifiable liabilities described in Section 12(a), but not for the total
amount of liabilities of that kind, the Company shall nevertheless indemnify
Executive for such portion of the indemnifiable liabilities to which Executive
is entitled.
(c) Executive's rights provided in this Section 12 shall not
be exclusive of any other rights of indemnification or advancement of expenses
(or any similar rights) that Executive may have against the Company or under any
liability insurance covering Executive.
(d) The Company agrees to continue and maintain one or more
directors' and officers' liability insurance policies that cover Executive (with
reputable and financially sound insurers) at a level that is commercially
reasonable (in light of the Company's business and the risks of litigation or
claims), and otherwise to the fullest extent the Company provides such coverage
for any of its other executive officers.
(e) Without limiting the generality of Section 12 hereof, the
right of indemnity in favor of Executive in this Section 12 shall continue and
survive any expiration or termination of this Agreement or Executive's ceasing
to be a director, officer or employee of the Company.
13. Company Property. All sales, accounting, pricing, marketing,
manufacturers' and other materials or articles or information, including without
limitation data processing reports, computer programs, software, customer
information and records, business records, price lists or information, samples,
or any other materials or data of any kind furnished to Executive by Company or
developed by Executive on behalf of Company or at Company's direction or for
Company's use or otherwise in connection with Executive's employment hereunder,
are and shall remain the sole property of Company, including in each case all
copies thereof in any medium, including computer tapes and other forms of
information storage. If Company requests the return of such materials at any
time during or at or after the termination of Executive's employment, Executive
shall deliver all copies of the same to Company immediately.
14. Non-competition, Trade Secrets, Etc. Executive hereby
acknowledges that, during and solely as a result of his employment by Company,
Executive will have access to confidential information and business and
professional contacts. In consideration of such special and unique opportunities
afforded by Company to Executive as a result of Executive's employment and the
other benefits referred to within this Agreement;
(a) Executive agrees that if Executive terminates his own
employment or if Executive's employment is terminated by the Company for Cause,
from the date hereof until five (5) years following the termination of
Executive's employment with Company. ("Restricted Period") Executive shall not,
for his own benefit or the benefit of any third party; (i) directly or
indirectly engage in (as a principal, shareholder, partner, director, officer,
agent, Executive, consultant or otherwise) or be financially interested in any
business operating within a country to which the Company is exclusively licensed
to use or sell the Bio- Cybernetic Cardio-Diagnostic System (the "Restricted
Area"), which is the same as, similar to or in competition with the Business, or
with any business activities being definitely planned by Company at the time of
the termination of Executive's employment (provided however nothing contained in
this Section 14 shall prevent Executive from holding for investment less than
five percent (5%) of any class of equity securities of a company whose
securities are publicly traded on a national securities exchange or in a
national market system) or (ii) directly or indirectly, induce or attempt to
influence any employee, customer, client, independent contractor or supplier of
Company to terminate employment or any other relationship with Company.
(b) Executive agrees that if Executive is terminated by
Company without Cause and executes a General Release, Executive will be bound by
the non-competition provision in 14(a) for the greater of one (1) year from
Executive's termination date or the remaining time under the Initial Term of
this Agreement during which Executive is being paid by the Company ("Extended
Restricted Period"). However, in no event will Executive be bound by Section 14
(a) above for more than three (3) years from Executive's termination date.
(c) Executive agrees that from the date hereof and forever,
regardless of the cause or lack of cause of his separation of employment from
the Company:
(i) Executive shall not use for Executive's personal
benefit, or disclose, communicate or divulge to, or use for the direct or
indirect benefit of any person, firm, association or company other than Company,
any "Confidential Information" which term shall mean any information regarding
the business methods, business policies, policies, procedures, techniques,
research or development projects or results, historical or projected financial
information, budgets, trade secrets, or other knowledge or processes of or
developed by Company or any names and addresses of customers or clients or any
data on or relating to past, present or prospective Company customers or clients
or any other confidential information relating to or dealing with the business
operations or activities of Company, made known to Executive or learned or
acquired by Executive while in the employ of Company. Confidential Information
shall not include information otherwise lawfully known generally by or readily
accessible to the trade or the general public. All memoranda, notes, lists,
records, files, documents and other papers and other like items (and all copies,
extracts and summaries thereof) made or compiled by Executive or made available
to Executive concerning the business of Company shall be Company's property and
shall be delivered to Company promptly upon the termination of Executive's
employment with Company or at any other time on request. The foregoing
provisions of this Subsection (c) shall apply during and after the period when
Executive is an Executive of Company and shall be in addition to (and not a
limitation of) any legally applicable protections of Company's interest in
confidential information, trade secrets and the like. At the termination of
Executive's employment with Company, Executive shall return to Company all
copies in his possession of the Company's Confidential Information in any
medium, including computer tapes and other forms of data storage.
(ii) Any and all writings, inventions, improvements,
processes, procedures and/or techniques which Executive may make, conceive,
discover or develop, either solely or jointly with any other person or persons,
at any time when Executive is an Executive of Company, whether or not during
working hours and whether or not at the request or upon the suggestion of
Company, which relate to or are useful in connection with the Business or with
any business now or hereafter carried on by Company during the Executive's
employment, including developments or expansions of its present fields of
operations, shall be the sole and exclusive property of Company. Executive shall
make full disclosure to Company of all such writings, inventions, improvements,
processes, procedures and techniques, and shall do everything necessary or
desirable to vest the absolute title thereto in Company.
(d) Executive acknowledges that the restrictions contained in
the foregoing Subsections (a), (b), and (c), in view of the nature of the
business in which Company is engaged, are reasonable and necessary in order to
protect the legitimate interests of Company, that their enforcement will not
impose a hardship on Executive or significantly impair Executive's ability to
earn a livelihood, and that any violation thereof would result in irreparable
injuries to Company. Executive therefore acknowledges that, in the event of
Executive's violation of any of these restrictions, Company shall be entitled to
obtain from any court of competent jurisdiction preliminary and permanent
injunctive relief as well as damages and an equitable accounting of all
earnings, profits and other benefits arising from such violation, which rights
shall be cumulative and in addition to any other rights or remedies to which
Company may be entitled.
(e) If the Restricted Period or the Restricted Area specified
in Section 14(a) or the Extended Restricted Period in Section 14(b) above should
be adjudged unreasonable in any proceeding, then the period of time shall be
reduced by such amount or the area shall be reduced by the elimination of such
portion or both such reductions shall be made so that such restrictions may be
enforced for such time and in such area as is adjudged to be reasonable. If
Executive violates any of the restrictions contained in the foregoing Subsection
(a), (b) or (c), the relevant Restricted Period or Extended Restricted Period,
respectively, shall be extended by a period equal to the length of time from the
commencement of any such violation until such time as such violation shall be
cured by Executive to the commercially reasonable satisfaction of Company. The
Company shall have the right and remedy to require Executive to account for and
pay over to either Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result of
any transactions constituting a breach of this Section 14, and Executive shall
account for and pay over such amounts upon request therefor. Executive hereby
expressly consents to the jurisdiction of any court within Massachusetts to
enforce the provisions of this Section 14, and agrees to accept service of
process by mail relating to any such proceeding. The Company may supply a copy
of Section 14 of this Agreement to any future or prospective employer of
Executive or to any person to whom Executive has supplied information if the
Company determines in good faith that there is a reasonable likelihood that
Executive has violated or will violate such Section.
15. Prior Agreements. Executive represents to the Company that there
are no restrictions, agreements or understandings, oral or written, to which
Executive is a party or by which Executive is bound that prevent or make
unlawful Executive's execution or performance of this Agreement.
16. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of Delaware.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
personally delivered, on the day specified for delivery when deposited with a
recognized national or regional courier service for delivery to the intended
addressee or two (2) days following the day when deposited in the United States
mails, first class postage prepaid, addressed as set forth below:
(i) If to Executive:
James F. Mongiardo
2 Briar Lane
Natick, Massachusetts 01760
(ii) If to CardioBioMedical Corporation:
CardioBioMedical Corporation
15 East North Street
Dover, Delaware 19901
Attention: W/K Incorporating Services, Inc.
In addition, notice by mail shall be by air mail if
posted outside of the continental United States. Any party may alter the address
to which communications or copies are to be sent by giving notice of such change
of address in conformity with the provisions of this Section for the giving of
notice.
(d) Binding Nature of Agreement. This Agreement shall be
binding upon Company and shall inure to the benefit of Company, its present and
future Subsidiaries, Affiliates, successors and assigns including any transferee
of the business operation, as a going concern, in which Executive is employed
and shall be binding upon Executive, Executive's heirs and personal
representatives. None of the rights or obligations of Executive hereunder may be
assigned or delegated, except that in the event of Executive's death or
Disability, any rights of Executive hereunder shall be transferred to
Executive's estate or personal representative, as the case may be. Company may
assign its rights and obligations under this Agreement in whole or in part to
any one or more Affiliates or successors, but no such assignment shall relieve
Company of its obligations to Executive if any such assignee fails to perform
such obligations.
(e) Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the employment of
Executive by Company and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing. Notwithstanding the foregoing, nothing herein shall limit
the application of any generally applicable policy, practice, plan or the terms
of any manual or handbook applicable to the executives generally of Company, if
provided to Executive prior to being applicable, except to the extent the
foregoing directly conflict with this Agreement, in which case the terms of this
Agreement shall prevail.
(h) Section Headings. The Section headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(i) Number of Days. Except as otherwise provided herein, in
computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday or such holiday.
(j) Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(k) Survival. All provisions of this agreement which by their
terms survive the termination of Executive's employment with Company including
without limitation the covenants of Executive set forth in Sections 13 and 14
and the obligations of Company to make any post-termination payments under this
Agreement, shall survive termination of Executive's employment by Company and
shall remain in full force and effect thereafter in accordance with their terms.
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Agreement on this 2 nd day of June, 2003.
CARDIOBIOMEDICAL CORPORATION
By:
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JAMES F. MONGIARDO Name:
Title:
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