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EXHIBIT 6.3
EMPLOYMENT AGREEMENT
AGREEMENT dated as of June 10, 1999 between XXXXX XXXXX residing at 00
Xxxxxx Xxxxx, Xxxxxxxx, XX, 00000, ("Employee") and ADVANCED PLANT
PHARMACEUTICALS, INC., a Delaware corporation, having its principal office at 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation").
RECITALS
WHEREAS, the Corporation wishes to employ and Employee wishes to accept
employment by the Corporation on the terms set forth herein.
IT IS AGREED:
1. Employment, Duties and Acceptance
1.1 Corporation hereby employs Employee as its Chief Operating
Officer, with primary responsibility for the Corporation's day to day general
business activities with the requisite authority to do so subject to the
direction of the Board of Directors of the Corporation.
1.2 Corporation may assign to Employee such other Employee and
administrative duties for Corporation or any affiliate (as defined in Section
6.1) as may be determined by the Board of Directors of Corporation provided such
duties are normal business duties and do not conflict with Employee's primary
responsibility.
1.3 Employee accepts such employment and agrees to devote such
time and attention as is necessary to the performance of his duties hereunder,
which may include overseas and domestic travel which travel will be only as is
reasonably required.
1.4 Employee's duties hereunder will be generally performed at
the Corporation's offices in the New York metropolitan area.
2. Compensation.
2.1 As full compensation during the term of this Agreement for
all Employee's services to be rendered hereunder, including, without limitation,
any services rendered for the Corporation or any affiliate, Corporation agrees
to pay, or cause to be paid, to Employee, in the manner hereinafter provided, an
amount equal to $75,000 per annum (hereinafter "Base Salary"), to be paid in
monthly installments.
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2.2 In its sole discretion, the Board of Directors of the
Corporation may consider and award employee a bonus at any time during the term
of this Agreement, such bonus to be additional consideration and apart-from the
Base Salary.
2.3 Employee shall be entitled to such medical and other
benefits as are customarily afforded to all Employees of the Corporation.
2.4 Employee shall be entitled to twenty-one business days
vacation per calendar year. Such vacation will be taken subject to the needs of
the Corporation.
2.5 For the purposes of this Article 2, any period less than a
full fiscal year shall be prorated for the portion thereof which shall be
applicable.
2.6 Corporation will pay or reimburse Employee for all
transportation, hotel or apartment rent and other living expenses reasonably
incurred by Employee on business trips required for the performance of his
duties hereunder.
2.7 As additional compensation, Employee will be granted under
separate agreement, an option to purchase 750,000 shares of common stock of the
Corporation at an exercise price of $.02 (two cents) per share (the "Option"),
such right to vest as follows:
Number of Shares Date After Which Shares Can Be Purchased
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750,000 June 10, 1999
This Option shall not be exercisable after 5:00 p.m. E.S.T. on June 10,
2004.
3. Term and Termination.
3.1 The term of this Agreement shall commence on June 10, 1999
and shall continue until June 10, 2002 ("Expiration Date"), unless sooner
terminated as herein provided.
3.2 If Employee shall die during the term of this Agreement,
this Agreement shall thereupon terminate, except that the Corporation shall pay
to the legal representative of Employee's estate all monies due hereunder up to
the date of his death.
3.3 Corporation, by notice to Employee, may terminate
Employee's employment services under this Agreement for proper cause. As used
herein, "proper cause" shall mean that Employee has:
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(a) willfully and materially refused or failed to
carry out specific directions of the Board of Directors that were lawful and/or
ethical, or willfully refused or failed to perform a material part of his duties
hereunder;
(b) committed a material breach of any of the
provisions of Article 4 of this Agreement;
(c) knowingly acted fraudulently or dishonestly in
his relations with Corporation or any of its affiliates;
(d) committed larceny, embezzlement, conversion or
any act involving the misappropriation of funds in the course of his employment;
or
(e) been convicted of any crime involving an act of
moral turpitude.
3.4 Corporation, by notice to Employee, may terminate
Employee's employment services under this Agreement if Employee shall become
disabled, or shall fail because of illness or incapacity, to render, for 6
successive months or for shorter periods aggregating 6 months or more in any one
year, services of the character contemplated by this Agreement. Notwithstanding
such termination, Corporation shall pay to Employee all monies due hereunder up
to the date of such notice.
3.5 Corporation, by notice to Employee, may terminate
Employee's employment services under this Agreement for any other reason,
effective at the time specified in the notice. Upon such termination,
Corporation will pay Employee, in single payment on such termination date, an
amount equivalent to the lesser of nine months Base Salary or the amount of Base
Salary to be paid during the remaining term of this Agreement.
4. Protection of Confidential Information: Non-Competition.
4.1 Employee acknowledges that:
(a) As a result of his employment by the Corporation,
Employee has obtained and will obtain secret and confidential information
concerning the business of Corporation and its affiliates, including, without
limitation, the identity of customers and sources of supply, their needs and
requirements, the nature and extent of contracts with them, and related cost,
price and sales information.
(b) Corporation and its affiliates will suffer
substantial damage which will be difficult to compute if, during the period of
his employment with Corporation or thereafter, Employee should enter a
competitive business or should divulge secret and confidential information
relating to the business of the Corporation heretofore or hereafter acquired by
him in the course of his employment with the Corporation or any affiliate.
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The provisions of this Agreement are reasonable and
necessary for the protection of the business of Corporation and its affiliates.
4.2 Employee agrees that he will not at any time, either
during the term of this Agreement or thereafter, divulge to any person, firm or
corporation any information obtained or learned by him during the course of his
employment with Corporation or any of its affiliates, or prior to the
commencement thereof in the course of his employment with the Corporation, with
regard to the operational, financial, business or other affairs of the
Corporation or its affiliates, their officers and directors, including, without
limitation, trade "know how," secrets, customer lists, sources of supply,
pricing policies, operational methods or technical processes, except (i) in the
course of performing his duties hereunder, (ii) with Corporation's express
written consent; (iii) to the extent that any such information is in the public
domain other than as a result of Employee's breach of any of his obligations
hereunder; or (iv) where required to be disclosed by court order, subpoena or
other government process. In the event that Employee shall be required to make
disclosure pursuant to the provisions of clause (iv) of the preceding sentence,
Employee promptly, but in no event more than 48 hours after learning of such
subpoena, court order, or other government process, shall notify, by personal
delivery or by cablegram, confirmed by mail, Corporation and, at Corporation's
expense, Employee shall: (a) take all reasonably necessary steps requested by
Corporation to defend against the enforcement of such subpoena, court order or
other government process, and (b) permit Corporation to intervene and
participate with counsel of its choice in any proceeding relating to the
enforcement thereof.
4.3 Upon termination of his employment with Corporation, or at
any time the Corporation may so request, Employee will promptly deliver to
Corporation all memoranda, notes, records, reports, manuals, drawings,
blueprints and other documents (and all copies thereof relating to the business
of Corporation and its affiliates and all property associated therewith, which
he may then possess or have under his control.
4.4 During the term of his employment with the Corporation or
any of its affiliates and for a period of two years thereafter, Employee shall
not, without the prior written permission of Corporation, in the United States,
its territories and possessions, directly or indirectly, (i) enter into the
employ of or render any services to any person, firm or corporation engaged in
any Competitive Business (as defined in Section 6.2); (ii) engage in any
Competitive Business for his own account; (iii) become associated with or
interested in any Competitive Business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee, consultant,
advisor or in any other relationship or capacity; (iv) employ or retain, or have
or cause any other person or entity to employ or retain, any person who was
employed or retained by Corporation or any of its affiliates while the Employee
was employed by Corporation; or (v) solicit, interfere with, or endeavor to
entice away from Corporation or any of its affiliates any of its or their
customers or sources of supply. However, nothing in this Agreement shall
preclude Employee from investing his personal assets in the securities of any
corporation or other business entity which is engaged in a Competitive Business
if such securities are traded on a national stock exchange or in the
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over-the-counter market and if such investment does not result in his
beneficially owning, at any time, more than 1% of the publicly traded equity
securities of such competitor.
4.5 If Employee commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 4.2 or 4.4, Corporation shall have
the right and remedy:
(a) to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed by Employee that the services being rendered hereunder
to Corporation are of a special, unique and extraordinary character and that any
such breach or threatened breach will cause irreparable injury to Corporation
and that money damages will not provide an adequate remedy to Corporation; and
(b) to require Employee to account for and pay over
to Corporation all compensation, profits, monies, accruals, increments or other
benefits (collectively "Benefits") derived or received by Employee as the result
of any transactions constituting a breach of any of the provisions of Sections
4.2 or 4.4, and Employee hereby agrees to account for and pay over such Benefits
to Corporation.
Each of the rights and remedies enumerated in this Section 4.5
shall be independent of the other, and shall be severally enforceable, and such
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Corporation under law or equity.
4.6 If Employee shall violate any covenant contained in
Section 4.4, the duration of such covenant so violated shall be automatically
extended for a period of 2 years from the date on which Employee permanently
ceases such violation or for a period of 2 years from the date of the entry by a
court of competent jurisdiction of a final order or judgment enforcing such
covenant, whichever period is later.
4.7 If any provision of Sections 4.2 or 4.4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope,
duration, or area, or all of them, and such provision or provisions shall then
be applicable in such modified form.
5. Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement, the making, interpretation or the breach thereof,
other than a claim solely for injunctive relief for any alleged breach of the
provisions of Section 4.2 or 4.4, as to which the parties shall have the right
to apply for specific performance to any court having equity jurisdiction, shall
be submitted to arbitration in New York City before a panel of three arbitrators
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof and any party to the
arbitration may, if he or it so elects, institute proceedings in any court
having jurisdiction for the specific performance of any such
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award. The powers of the arbitrators shall include, but not be limited to, the
awarding of injunctive relief. The arbitrators shall include in any award in the
prevailing party's favor the amount of his or its reasonable attorneys' fees and
expenses and all other reasonable costs and expenses of the arbitration. In the
event that the arbitrators do not rule in favor of the prevailing party in
respect of all the claims alleged by such party, the arbitrators shall include
in any award in favor of the prevailing party the amount of his or its
reasonable attorneys' fees and other expenses and such other reasonable costs
and expenses of the arbitration as they deem just and equitable under the
circumstances. Except as provided above, each party shall bear his or its own
attorneys' fees and expenses and the parties shall bear equally all other costs
and expenses of the arbitration.
6. Definitions. As used in this Agreement:
6.1 "Affiliate" shall mean a corporation and any other entity
that, directly or indirectly, is controlled by, controlling, or under common
control with the Corporation.
6.2 "Competitive Business" shall mean any business engaged in
the medical pharmacology business.
7. Miscellaneous Provisions.
7.1 All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when given by telex, telegram or mailgram, or
when mailed first class postage prepaid, by registered or certified mail, return
receipt requested, addressed to the party to receive the same at his or its
address above set forth, or such other address as the party to receive the same
shall have specified by written notice given in the manner provided for in this
Section 7.1. All notices shall be deemed to have been given as of the date of
personal delivery, transmittal or mailing thereof.
7.2 This Agreement sets forth the entire agreement of the
parties and is intended to supersede all prior negotiations, understandings and
agreements. No provisions of this Agreement may be waived or changed except by a
writing by the party against whom such waiver of change is sought to be
enforced. The failure of any party to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce such
provision.
7.3 All questions with respect to the construction of this
Agreement, and the rights and obligations of the parties hereunder, shall be
determined in accordance with the law of the State of New York.
7.4 The article headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of any provision of this Agreement.
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7.5 This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Corporation. This Agreement shall
not be assignable by Employee and shall inure to the benefit of and be binding
upon Employee and his legal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
ADVANCED PLANT PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President
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