THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of November 30, 2006, by and between Xcorporeal, Inc., a Delaware corporation (“Company”), and Victor Gura, M.D. (“Executive”).
A. WHEREAS, Executive has experience and expertise applicable to employment with Company to perform as the Chief Medical and Scientific Officer of Company, Company has agreed to employ Executive and Executive has agreed to enter into such employment, on the terms set forth in this Agreement.
B. WHEREAS, Executive acknowledges that this Agreement is necessary for the protection of Company’s investment in its business, good will, products, patents, inventions, intellectual property, methods of operation, information, and relationships with its customers and other employees.
C. WHEREAS, Company acknowledges that Executive desires definition of his compensation and benefits, and other terms of his employment.
NOW, THEREFORE, in consideration thereof and of the covenants and conditions contained herein, the parties agree as follows:
1. TERM OF EMPLOYMENT
1.1 Initial Term. The initial term of employment will begin on December 1, 2006 (the “Commencement Date”) and will continue until four (4) years following the Commencement Date (“Initial Term”). After the expiration of the Initial Term, Executive will be employed on an at-will basis, with either party able to terminate the employment, with or without cause and with or without notice. For purposes of this Agreement, the “Term” shall mean the period during which Executive is an employee of the Company.
2.1 Employment of Executive. Company agrees to employ Executive to render services on the terms set forth herein. Executive hereby accepts such employment on the terms and conditions of this Agreement.
2.2 Position and Duties. Executive will serve as Chief Medical and Scientific Officer of Company, reporting to the Chief Executive Officer or Chairman (“Chairman”) of the Company’s Board of Directors (“Board”), and will have the general powers, duties and responsibilities of management usually vested in that office in a corporation and such other powers and duties as may be prescribed from time to time by the Chairman or the Board.
2.3 Standard of Performance. Executive agrees that he will at all times faithfully and industriously and to the best of his ability, experience and talents perform all of the duties that may be required of and from him pursuant to the terms of this Agreement. Such duties will be performed at such place or places as the interests, needs, business and opportunities of Company will require or render advisable.
2.4 Exclusive Service.
(a) Subject to Section 2.4(b), Executive will (i) devote substantially all of his business energies and abilities and all of his productive time to the performance of his duties under this Agreement (reasonable absences during holidays and vacations excepted), and will not, without the prior written consent of Company, render to others any service of any kind (whether or not for compensation) that, in the opinion of Company, would materially interfere with the performance of his duties under this Agreement, and (ii) not, without the prior written consent of Company, maintain any affiliation with, whether as an agent, consultant, employee, officer, director, trustee or otherwise, nor will he directly or indirectly render any services of an advisory nature or otherwise to, or participate or engage in, any other company or business activity.
(b) Provided that doing so does not interfere with Executive’s obligations under the other provisions of this Section 2, Executive may spend up to ten hours per week (on a non-cumulative basis) attending and presenting at medical conferences, meetings and symposiums, lecturing and teaching at UCLA The Geffen School of Medicine, or treating private patients, all in a manner that does not compete with the business of the Company.
3.1 Compensation. During the Term, Company will pay the amounts and provide the benefits described in this Section 3, and Executive agrees to accept such amounts and benefits in full payment for Executive’s services under this Agreement.