EMPLOYMENT AGREEMENT
Exhibit 10.1(a)
This Agreement (the "Agreement") is effective as
of August 1, 2021 (“Effective Date”) by and
between, XXXXXXXX XXX (the "EMPLOYEE"), and AINOS, INC., a Texas Corporation (the
"EMPLOYER"), subject to EMPLOYER board of directors
approval.
RECITALS
WHEREAS,
the EMPLOYER seeks assistance in the areas of corporate
administration and overall strategic business development and
administration, particularly for its business operations in the
United States and as it pertains to preparations for EMPLOYER plans
for a major public stock exchange up listing; and
WHEREAS,
EMPLOYEE has agreed to perform work for the EMPLOYER as Executive
Vice President of Operations;
NOW,
THEREFORE, the parties hereby agree as follows:
1.
EMPLOYEE's
Services. EMPLOYEE and
will work from the EMPLOYER’s office in San Diego,
California, remotely from San Diego, California, and/or at other
locations as reasonably agreed to between the Parties. EMPLOYEE
shall be responsible for complying and implementing the
EMPLOYER’s programs, policies, and projects as summarized
in Exhibit
“A” of this
Agreement ("Scope of Work") and as may be otherwise needed and as
reasonably requested by EMPLOYER. This contract is for the personal
services of the EMPLOYEE and shall not be assigned by the EMPLOYEE
to any other person or entity.
2.
Consideration.
A. Salary:
In consideration of the Services performed by EMPLOYEE under this
Agreement, the EMPLOYER will pay EMPLOYEE the
following:
(i) Monthly
Salary: A monthly salary
payable to EMPLOYEE in the amount of $12,000, payable bi-monthly
(“Salary”).
B. Employee
Benefits:
(i) Health
and Dental Insurance:
Each month, EMPLOYER will reimburse EMPLOYEE for health insurance
premiums for PPO Health and Dental Insurance coverage
(“Health Benefit”) upon submission of paid premium
invoices paid by EMPLOYEE. EMPLOYEE shall have the option to
include members of his household in any such plan provided that
EMPLOYEE shall be responsible for any additional costs therefor.
Alternatively, if EMPLOYER obtains Health Benefits for its
employees then EMPLOYEE shall be included in such benefit plans. If
EMPLOYER adopts employee benefit plans for its employees then
EMPLOYEE shall be included in such plans on terms at least as
favorable as those accorded to other employees of EMPLOYER, subject
to insurability and the execution of any agreement required
therefor.
(ii) Non-Qualified
Stock Options: In recognition for EMPLOYEE’s services
facilitating the transition from Amarillo Biosciences, Inc. to
EMPLOYER’s current Company management, EMPLOYEE shall be
granted non-qualified stock options in 500,000 shares in the
EMPLOYERS’s common stock under EMPLOYER’S 2018
Officers, Directors, Employees and Consultants Non-Qualified Stock
Option Plan, adopted September 26, 2018, and as may be amended
(“NQSO Plan”). The Stock Option Agreement attached
hereto as Exhibit
“B” (“NQSO Agreement”) is
incorporated by this reference and shall be deemed approved by the
Parties upon execution of this Agreement. Additionally, if
EMPLOYEE, at his sole cost and expense, is assigned option rights
under NQSO Plan from third parties, the EMPLOYER agrees that
EMPLOYEE shall succeed to the vesting and stock option exercise
price of the assignor and such options will be otherwise included
in and governed by the attached NQSO Agreement. The assignment(s),
if any, effectuating the foregoing shall be deemed approved by
EMPLOYER by this reference and the EMPLOYEE is solely responsible
for obtaining any such assignment without obligation by EMPLOYER to
facilitate any such transaction. In the event that the NQSO Plan is
amended or superseded by another Incentive Stock Option Plan, the
stock options granted to EMPLOYEE shall be comparable and no less
favorable than provided for under the NQSO Plan.
(iii) Performance
Bonus upon listing on Major National Exchange: Upon the
EMPLOYER’S successful listing on a Major National Exchange
(e.g., Nasdaq or other national trading exchange), EMPLOYER shall
grant to, and EMPLOYEE shall receive 10,000 shares in
EMPLOYER’s voting common stock
(“Bonus Stock Grant”).
(iv) Cost
of Living Increase: The Salary
will be increased five percent (5%) on the one year anniversary of
each Term Year, as defined hereunder and depending upon the
EMPLOYER’s operating conditions, during the Term and any
extensions thereof.
C. Expenses:
Each year, and from time to time, the EMPLOYER will establish a
budget for operating its programs and EMPLOYEE shall be bound by
the purposes and amounts for any such budget decision. In the event
that EMPLOYEE expends his own funds for pre-approved and
reimbursable expenses, EMPLOYEE will submit for EMPLOYER’s
review and pre-approval original receipts and a written
reimbursement request detailing reimbursable expenses. If the
EMPLOYER provides a credit or debit card any use of the same shall
be limited to the EMPLOYER’s pre-approved budget and for
EMPLOYER business only. EMPLOYEE shall submit a monthly written
expense report including original receipts.
D.
Directors
and Officers Insurance:
EMPLOYER’s Directors and Officers Insurance shall cover the
EMPLOYEE.
3.
Relationship of the
Parties. Nothing contained
herein or any document executed in connection herewith, shall be
construed to create a partnership or joint venture relationship
between the Parties.
4.
Term.
A. Term
of Agreement: This
Agreement shall be effective for three (3) years commencing from
the Effective Date
through July 31, 2024, and may be extended for additional two (2)
years on the same terms and conditions upon mutual agreement of the
Parties.
B. Termination
of Agreement:
(i) Termination Without Cause:
Either party may terminate this Agreement with six (6) months prior
written notice for termination without cause and for the
convenience of either Party;
(ii) EMPLOYEE
Termination With Cause: EMPLOYEE may terminate this
Agreement with five (5) days written notice for cause which
includes, but is not limited to, the EMPLOYER’s breach of any
of the agreements and covenants in this Agreement, acts of
dishonesty, malfeasance, misfeasance, negligence, or material
misrepresentation; and
(iii) EMPLOYER
Termination With Cause: EMPLOYER may terminate this
Agreement with five (5) days written notice for cause which
includes, but is not limited to, the EMPLOYEE’s breach of any
of the agreements and covenants in this Agreement, acts of
dishonesty, malfeasance, misfeasance, negligence, or material
misrepresentation.
C.
Effects of
Termination:
(i) Severance
Payment: Liquidated Damages; Settlement, Release and Discharge of
EMPLOYER. If this Agreement is terminated without cause by
EMPLOYER pursuant to paragraph 4B(i) or with cause by EMPLOYEE
pursuant to paragraph 4B(ii), then the Parties agree that the
extent and cost for injury, damage, or other adverse impacts to
EMPLOYEE under this Agreement is difficult to determine and
speculative. In the interest of settling any claims against
EMPLOYER expeditiously, the EMPLOYER shall pay EMPLOYEE a severance
payment in the amount of six (6) months salary, employee benefits,
and any stock options under the NQSO Plan and NQSO Agreement shall
be fully accelerated and vested notwithstanding any other vesting
schedule thereunder, and any Stock Grants earned shall be issued
upon the date of termination (“Severance Payment”). The
Severance Payment shall constitute liquidated damages and any such
payment shall not be construed as admission of fault, guilt, or an
assumption of liability. EMPLOYEE hereby agrees to this liquidated
damages clause and shall settle, release and discharge EMPLOYER
from any and all liabilities, causes of action, or claims upon
EMPLOYER’s severance payment.
(ii) Termination
by EMPLOYER for cause: If this
Agreement is terminated with cause by EMPLOYER, pursuant to
paragraph 4(iii) of this Agreement, then EMPLOYEE shall not have
any claim and expressly waives his claim for a Severance
Payment.
(iii) Full
and Complete Waiver and Release: These provisions and waiver shall apply to any
claims, whether known by EMPLOYEE, and do include an express waiver
of any reservation of rights under Section 1542 of the California
Civil Code which reads as follows: “A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM WOULD HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
5.
Competent
Work. All work will be
done in a competent fashion and all services are subject to final
approval by an authorized representative of the EMPLOYER. In the
event that the work-product or reports of EMPLOYEE do not meet the
standards and requirements of the EMPLOYER, the EMPLOYER may issue
a “Stop Work Order” and EMPLOYEE shall cease any and
all activity specified in such notice until such time that the
Parties agree to continue or terminate the EMPLOYEE’s work on
such activity.
6.
Representations and
Warranties. The EMPLOYEE
will make no representations, warranties, or commitments that bind
the EMPLOYER without the consent of the Board of Directors and/or
executive officers of the EMPLOYER. Furthermore,
U.S. law
requires companies to employ only individuals who may legally work
in the United States – either U.S. citizens, or foreign
citizens who have the necessary authorization. EMPLOYEE represents
that his employment with the EMPLOYER is in compliance with U.S.
law. EMPLOYEE represents that all communications during the course
of hiring, including EMPLOYEE’s resume / curriculum vitae and
references, are true and correct. The EMPLOYER is hereby authorized
to verify, at any time, any representation made by EMPLOYEE to
induce the EMPLOYER to enter into this
Agreement.
7.
No Waiver. Failure to invoke any right, condition, or
covenant in this Agreement by either Party shall not be deemed to
imply or constitute a waiver of any rights, condition, or covenant
and neither Party may rely on such failure.
8.
Notices. For Notices required under this Agreement
(other than written reports and routine business communications)
shall be deemed effective when (a) personally delivered or
deposited, postage prepaid, in the first class mail of the United
States properly, (b) delivered by facsimile or electronic mail and
addressed to the appropriate party at the address set forth
below:
Notices as to EMPLOYEE:
Xxxxxxxx
X. Xxx
0000
Xxxxxx Xxxxx Xxxxx
Xxxxx
Xxxxx, XX 00000
Tel:
000-000-0000
Email: xxxxxxxxxxxx@xxxxx.xxx
Notices to the EMPLOYER:
Attn:
Chief Executive Officer
0000
Xxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Phone:
000-000-0000
Email: xx@xxxx.xx
9.
EMPLOYER Supervisor.
Supervision will be provided to the
EMPLOYEE on an as-needed basis. The EMPLOYEE’s primary
supervisor for contract compliance shall be designated by the
EMPLOYER.
10.
Enforceability. If
any provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable, the reminder of the Agreement
shall remain in full force and effect and shall in no way be
impaired
11.
Entire Agreement and
Amendments. This Agreement
constitutes the entire agreement of the Parties with regard to the
subject matter hereof, and replaces and supersedes all other
agreements or understandings, whether written or oral. No amendment
or extension of this Agreement shall be binding unless in writing
and signed by both Parties. The attached Exhibit “A”
(Scope of Work), Exhibit “B”
(NQSO Agreement), and
Exhibit
“C” (Standard Terms
and Conditions) are incorporated herein by this reference. EMPLOYEE
shall strictly comply with any and all policies, procedures,
standards and other requirements determined by
EMPLOYER.
13.
Binding Effect,
Assignment. This Agreement
shall be binding upon and shall inure to the benefit of EMPLOYEE
and the EMPLOYER and to the extent applicable each Party’s
heirs, successors and assigns. Assignment of any right or
obligation under this Agreement is expressly prohibited without the
prior written consent of both Parties.
14.
Governing Law,
Severability. This
Agreement shall be governed by the laws of the State of California,
irrespective of its Choice of Law rules. The invalidity or
unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other
provision.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date:
|
|
|
EMPLOYEE:
|
|
|
|
|
|
|
|
|
|
/s/Chun-Xxxxx Xxxx
|
|
|
/s/ Xxxxxxxx
Xxx
|
|
|
Chun-Xxxxx Xxxx
|
|
|
Xxxxxxxx
Xxx
|
|
|
Chief
Executive Officer
|
|
|
|
EXHIBIT “A”
SCOPE OF WORK
1.
Assist
executive management team with oversight of North America business
operations and administration
2.
Anticipate
future executive management needs and offering solutions and
support
3.
Collaboration
with executive management on strategic goals, planning and budget
forecasting
4.
Coordinating
short- and long-term business development plans including, but not
limited to, managing a planned public market uplisting to a major
U.S. stock exchange
5.
Sourcing,
directing and evaluating new opportunities, acquisitions, mergers,
etc. that are within the EMPLOYER’s strategic growth and
development plans
EXHIBIT “B”
STOCK OPTION AGREEMENT
Under
the Ainos, Inc.
2018
Nonqualified Stock Option Plan
THIS STOCK OPTION AGREEMENT ("Agreement") is made
by and between AINOS, INC., a Texas corporation
("AINOS" or the "Company"), and the Optionee ("Optionee")
and shall be effective upon the execution of that certain
Employment Agreement between the Parties to which this agreement is
attached (“Effective Date”).
WHEREAS, the Company adopted, effective September
26, 2018, the 2018 Officers, Directors, Employees and
Consultants Nonqualified Stock Option Plan (the “NQSO
Plan”), pursuant to which certain officers, directors,
employees and consultants of the Company were granted Options (the
"Options") to purchase voting Common Stock of the Company (the
"Common Stock"); and
WHEREAS, AINOS and Optionee desire to enter into
this Agreement to evidence a grant under the NQSO Plan and to set
forth their mutual understanding with regard to Optionee's
participation in the plan and the terms of the Options granted
thereunder to Optionee;
THEREFORE,
in consideration of the mutual covenants and agreements herein
expressed, and for other good and adequate consideration the
receipt and sufficiency of which are evidenced by the execution
hereof, AINOS and Optionee hereby agree as follows:
1.0
Definitions.
"NQSO Plan" shall mean that certain Amarillo Biosciences,
Inc., 2018 Officers, Directors, Employees and Consultants
Nonqualified Stock Option Plan adopted by the Board of Directors of
the Company on September 26, 2018.
2.0
Options
Grant. This Agreement shall
evidence the grant and award to Optionee under the NQSO Plan of
Options to purchase 500,000 shares of the voting Common Stock of
the Company. The Option Price is $0.38 per share which was the
closing price of the Common Stock on September 25, 2018. Unless
otherwise agreed to in the attached Employment Agreement or in
writing under a separate written agreement executed by the Parties,
the Options are exercisable during a period of ten (10) years from
the Effective Date and shall vest 33.33% annually, commencing one
(1) year from the Effective Date. The Options are exercisable, in
whole or in part or from time to time during the aforesaid term.
Additionally, any option rights acquired by Optionee from third
parties shall be in addition to the aforementioned Options Grants
(“Assigned Options”). The Assigned Options: (a) shall
be governed by a separate assignment agreement between Optionee and
the assignor; (b) that are vested at the time of assignment shall
likewise be vested in favor of Optionee; (c) that are not vested at
the time of assignment shall shall be subject to the vesting
schedule under this section; and (d) notwithstanding the exercise
dates and terms applicable to assignor, the Optionee (as assignee
of the options) shall exercise any such assigned options in
accordance with this section.
3.0
Terms and
Conditions. The Options and
Limited Rights (if Limited Rights have been granted under Article
IV of the NQSO Plan) are granted and received subject to all of the
terms and conditions of the plan, as well as any further terms and
conditions set forth under any written agreement executed by the
Parties relating to the Options. A copy of the NQSO Plan is hereby
incorporated by reference and as modified by this Agreement or
Optionee’s employment or consulting agreement with the
Company.
4.0
Shares Not
Registered. Upon exercise of
any of the Options by Optionee, shares of the Company shall be
issued to Optionee subject to any applicable restrictions under
federal or state securities laws, and regulations promulgated
thereunder, and Optionee agrees to accept such shares subject to
such restrictions, and bearing any required or appropriate legends.
Rule 144 promulgated under the U.S. Securities Act of 1933 is
currently available for qualifying resales of restricted shares;
however, there is no assurance that the Common Stock will continue
to qualify for resale pursuant to Rule 144, and Optionee is
responsible for determining the availability of Rule 144, before
relying thereon.
5.0
Tax
Considerations. The Company
does not and will not render tax advice to Optionee. Optionee
represents that he will consult his own tax advisor with respect to
the tax aspects of both the exercise of an Option and the
disposition of shares acquired pursuant to exercise of an Option.
The Options are not qualified stock options within the meaning of
the Internal Revenue Code of 1986, and therefore the exercise of
the Options may be expected to be a taxable
event.
6.0
No Continued Right of
Employment. Optionee's
participation in the NQSO Plan does not confer upon Optionee the
right to continue in the employment of AINOS, nor does it affect
any right that AINOS may have to terminate the employment of
Optionee. If Optionee does not presently have an employment
contract with the Company, this Agreement shall not be construed as
a contract of employment. Notwithstanding the foregoing, the Optionee shall
be qualified to participate in the NQSO Plan as long as he/she
serves as an officer, director, employee and/or consultant to the
Company.
7.0
No Shareholder Rights.
Optionee shall have no rights as a
shareholder with respect to Option shares unless and until the
Optionee exercises in whole or in part his options and certificates
evidencing such shares shall have been issued to
Optionee.
8.0
Tax Withholding. Upon the exercise of any of the Options, AINOS
shall have the right to require Optionee to pay to AINOS the amount
of any taxes that are required by law to be withheld with respect
to such exercise.
9.0
Assignability. Although limited
transferability is allowed under Article VI of the
Plan, Optionee acknowledges that he is responsible for
consulting with competent tax and securities counsel before
transferring Options, and that it may be necessary to make
appropriate disclosures to his transferee, regarding
lack of marketability.
In addition,
transfers of Options for value may
cause Optionee to recognize taxable
income.
EXHIBIT “C”
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions are made and incorporated by
this reference in the EMPLOYEE AGREEMENT (“Agreement”)
attached hereto.
1.0
PROTECTION OF EMPLOYER INFORMATION AND PROPERTY
1.1
Trade
Secrets. EMPLOYEE hereby agrees
and covenants not to disclose to third-parties or otherwise use to
the detriment of EMPLOYER any of the EMPLOYER’s data, forms,
processes, procedures, business plans or information, and methods
of operation whether or not marked “confidential” or
“trade secret”, and all of the foregoing is agreed to
treated as confidential and trade secrets of EMPLOYER by
EMPLOYEE.
1.2
Intellectual
Property. EMPLOYEE shall
immediately cease and desist using any of EMPLOYER’s trade
name, trade and service marks, and any other intellectual or
intangible property (whether or not registered) upon termination of
this Agreement. Any original works, as that term is defined under
the U.S. Copyright laws, that are created by EMPLOYEE in the
performance of this Agreement is agreed to be a “work made
for hire” and shall vest ownership to EMPLOYER upon creation.
Any other intellectual property created by EMPLOYEE that is not
subject to the copyright laws, are made by EMPLOYEE for the
exclusive benefit of EMPLOYER and EMPLOYEE hereby grants to the
EMPLOYER an irrevocable, exclusive, unlimited, and royalty-free
license to EMPLOYER for such works.
1.3
Use of Trade
Equipment. EMPLOYEE agrees and
covenants that its use of EMPLOYER’s trade equipment,
inclusive of EMPLOYER’s information technology, computer, and
communications systems, is for the exclusive benefit and purpose of
further EMPLOYER’s business. EMPLOYEE further agrees that any
personal use of EMPLOYER’s trade equipment is not
permitted.
1.4
Confidentiality and
Non-Disclosure. EMPLOYEE
acknowledges that the EMPLOYER, and its agents, consultants,
advisors and vendors possess and have developed certain subject
matter which valuable trade secrets and intellectual property
(hereinafter referred to as “Confidential
Information”). EMPLOYEE shall maintain as fully confidential
from third parties all the EMPLOYER’s Confidential
Information and not to disclose, divulge or use same, directly or
indirectly, save exclusively for the purposes for which it was
disclosed to the EMPLOYEE. In order to secure the confidentiality
of the Confidential Information the EMPLOYEE shall safeguard the
Confidential Information of the EMPLOYER in accordance with this
Agreement and with at least the same degree of care as it uses for
other confidential information it receives.
AINOS
INC Employment Agreement – Effective August 1
2021
XXXXXXXX
XXX
8
1.4.1
Confidential Information
Defined. For purposes of this Agreement, “Confidential
Information” shall mean, any and all information, without
limitation, that directly or indirectly pertains to patents,
trademarks, trade names and service marks, and original creative
works and copyrighted works created, owned, produced or used by the
EMPLOYER. Without limitation, With regard to the foregoing,
Confidential Information shall also include information, data,
know-how, formulas, market research, business, sales and marketing
plans, concepts, tests, drawings, specifications, applications,
designs, trade secrets, information and data relating to the
EMPLOYER’s products, design methodology, processes,
operations and plans, financial situation, and any notes,
memoranda, summaries, analyses, compilations or any other writings
relating thereto prepared by the EMPLOYER or the EMPLOYEE or on
either Party’s behalf.
1.4.2
Non-Confidential Information.
The restrictions on use and disclosure set forth in this Agreement
shall not apply to any Confidential Information which:
1.4.2.1
Was already known
to the EMPLOYEE at the time such information was received from the
EMPLOYER or is independently developed by the EMPLOYEE without
reference to any Confidential Information disclosed by the
EMPLOYER;
1.4.2.2
Was or becomes
available to the general public, other than as a result of a breach
of this Agreement;
1.4.2.3
Is subsequently
obtained by the EMPLOYEE from a source other than the EMPLOYER or
its agents, provided that such source is not known by the EMPLOYEE
to be prohibited from transmitting the information by a
confidentiality agreement with, or other legal or fiduciary
obligation to, EMPLOYER;
1.4.2.4
The EMPLOYER has
released to a third Party on a non-confidential basis or for which
it authorizes release
1.4.2.5
Is required by law
to be disclosed under order of any court or other public authority
in judicial or administrative proceedings whether in discovery
proceedings or otherwise and wherein privilege or similar legal
protection form disclosure is not available.
1.4.3
Compulsory Disclosure to Third
Parties. If the EMPLOYEE is requested or required by oral
questions, interrogatories, subpoena, civil investigative demand,
applicable law, regulation, court order or other legal process or
by any governmental or regulatory authority to disclose
Confidential Information, or if such disclosure is needed in
connection with the defense or any action, suit or investigation
brought against the EMPLOYEE, the EMPLOYEE will provide the
EMPLOYER with notice of such request or requirement (unless such
notice is not possible under the circumstances) so that the
EMPLOYER may seek an appropriate protective order and/or waive
compliance with the terms of this Agreement.
AINOS
INC Employment Agreement – Effective August 1
2021
XXXXXXXX
XXX
9
1.4.4
Purpose of Disclosure. EMPLOYEE
shall not, without the prior written consent of EMPLOYER, use
Confidential Information and EMPLOYEE shall not use, directly or
indirectly, for their own benefit or for the benefit of third
parties, publish or otherwise disclose Confidential Information to
any other person, or permit the use of Confidential Information.
EMPLOYEE agree that no copies (partial or complete) shall be made
of any of the Confidential Information, including, without
limitation, any writings, drawings, or products regarding the
Confidential Information generated by EMPLOYEE or their agents,
without the express written consent of the EMPLOYER. Any such
copies created with the consent of the EMPLOYER shall be returned
to the EMPLOYER upon demand.
1.4.5
Return or Destruction of Confidential
Information. At the EMPLOYER’s written request, the
EMPLOYEE shall forthwith return to the EMPLOYER or destroy, at the
EMPLOYER’s option, all Confidential Information in tangible
form and any copies of such Confidential Information, including
copies in electronic format, provided that one copy may be retained
for compliance purposes.
1.4.6
No Conveyance of Right or License
Intended. The disclosure of Confidential Information or its
use hereunder shall not be construed in any way as granting to the
EMPLOYEE any right or license with respect to the Confidential
Information other than the right to use Confidential Information
for the limited items defined under the Purpose of Disclosure
above. Any works created by EMPLOYEE shall be made on a “WORK
FOR HIRE” and an exclusive, worldwide, royalty-free license
basis with all right, title, and interest vesting in
EMPLOYER.
1.4.7
Covenant Not to Compete;
Non-Solicitation. EMPLOYEE covenants and agrees not to
compete with EMPLOYER with respect to the design, production,
manufacture, sales and marketing of products covered by the above
definition of Confidential Information. EMPLOYEE further covenants
and agrees not to solicit and engage in business transactions with
any third parties with respect to the Confidential Information. The
foregoing limitations on the use of Confidential Information is
expressly intended by the Parties to constitute a separate ground
of relief and damages in the event EMPLOYEE breaches this
subsection.
1.4.8
Equitable Relief. It is agreed
that the unauthorized disclosure or use of any Confidential
Information may cause immediate or irreparable injury to the
EMPLOYER, and that the Disclosers may not be adequately compensated
for such injury in monetary damages. In such event the EMPLOYER
shall be entitled to seek any temporary or permanent injunctive
relief necessary to prevent such unauthorized disclosure or use, or
threat of unauthorized disclosure or use. Notwithstanding the
foregoing, Disclosers reserves the right to seek any and all
damages to which it is entitled in equity or in law.
1.4.9
Severability. If any condition,
term or covenant of this Agreement shall at any time be held to be
void, invalid or unenforceable, such condition, covenant or term
shall be construed as severable and such holding shall attach only
to such condition, covenant or term and shall not in any way affect
or render void, invalid or unenforceable any other condition,
covenant or term of this Agreement, and this Agreement shall be
carried out as if such void, invalid or unenforceable term were not
embodied herein.
AINOS
INC Employment Agreement – Effective August 1
2021
XXXXXXXX
XXX
10
2.0
EMPLOYEE’S DUTIES UPON TERMINATION.
2.1
Return of EMPLOYER
Property. Upon termination,
EMPLOYEE shall immediately return to EMPLOYER any and all data,
information, computer records and data, business records and files,
and any other document, record, trade equipment, supplies, keys,
modes of access, or any other material that was furnished by or
work products (including digital photographs, data, worksheets,
draft and final work product versions) created for the EMPLOYER
during the term of the Agreement. All of the foregoing shall at all
times by conclusively owned by the EMPLOYER and shall be returned
and submitted to the EMPLOYER at the conclusion of each task or
sub-task assigned under the Agreement. No files, documents, or
other materials will be removed from the EMPLOYER office to perform
the scope of work under this Agreement.
2.2
Termination of Right
of Access. Upon termination,
EMPLOYEE’s right of access to EMPLOYER’s information
technology, computer and communications systems, trade equipment,
business premises, records, files and any other property of
EMPLOYER shall be automatically terminated without further
notice.
2.3
Transfer of Business
Assignments. EMPLOYEE agrees
that upon termination, EMPLOYER has the unlimited right to assign
any of EMPLOYEE’s projects, assignments, or other matters (in
whole, or in part) to another person or entity as solely determined
by EMPLOYER. EMPLOYEE hereby understands and agrees that EMPLOYEE
does not have any property interest whatsoever in any of the
projects, assignment, business relationships, intangible and
tangible property, and any other matter made, created, or performed
during the term of this Agreement.
3.0
MISCELLANEOUS PROVISIONS.
3.1
Exclusive and Binding
Arbitration.
THE PARTIES AGREE
TO BINDING ARBITRATION AS THE EXCLUSIVE DISPUTE RESOLUTION FORUM TO
SETTLE AND RESOLVE ANY AND ALL DISPUTES ARISING FROM THE AGREEMENT
AND THE EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE PARTIES. IT IS
FURTHER AGREED THAT CALIFORNIA LAW SHALL GOVERN THIS AGREEMENT
(IRRESPECTIVE OF ITS CONFLICT OF LAW RULES), AND THAT THE
JURISDICTION AND VENUE FOR BINDING ARBITRATION SHALL BE THE CITY OF
SAN DIEGO, STATE OF CALIFORNIA. THE PARTIES AGREE TO UTILIZE JAMS
MEDIATION AND ARBITRATION SERVICES TO SETTLE ALL DISPUTES. THE
PARTIES EXPRESSLY AGREE TO WAIVE THEIR RIGHTS TO A JURY
TRIAL.
3.2
Injunctive and
Equitable Relief.
Notwithstanding Section 3.1, EMPLOYEE also agrees that any breach
by EMPLOYEE of Sections 1.0 and 2.0 of this Agreement, including
such sub-parts, would create irreparable and immediate harm to
EMPLOYER and as such EMPLOYEE consents to any injunctive or
equitable relief that may be available to
EMPLOYER.
3.3
Attorney’s Fees
and Costs. The prevailing party
under any dispute shall be entitled to its reasonable
attorney’s fees and costs, including costs of investigation
of such dispute.
AINOS
INC Employment Agreement – Effective August 1
2021
XXXXXXXX
XXX
11
3.4
Collection of
Claims. In the event that
EMPLOYEE adjudged the prevailing party in any action, EMPLOYEE
hereby agrees that his sole source to satisfy any judgment shall be
the operating checking account of the EMPLOYER. EMPLOYEE expressly
waives any rights to seek collection of any judgment against
EMPLOYER’s intellectual property rights or
interests.
3.5
Survival.
This Agreement shall survive and inure to the benefit of the
successors, assigns, heirs, and/or estates of the
parties.
3.6
Statute of
Limitations. Notwithstanding
any statutory or common-law rule to the contrary, and to the extent
permissible by law, the Parties agree that any right of action must
be commenced within one (1) year of the act, omission, event, or
circumstance that gave rise to such cause of
action.
AINOS
INC Employment Agreement – Effective August 1
2021
XXXXXXXX
XXX
12
