Exhibit 2.1
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Employment Agreement") is made and entered into
as of the
16th day of January, 2004 (the "Commencement Date"), by and between
Nanobac Pharmaceuticals, Inc. (the "Company"), and
E. Xxxxx Xxxxxxxx, MD, PhD, an individual ("Employee").
WITNESSETH: WHEREAS, the Company operates as Nanobac Pharmaceuticals, Inc. (such
activities, together with all other activities of the Company and its
subsidiaries, if any, as conducted at or prior to the termination of this
Employment Agreement, and any future activities reasonably related thereto which
are contemplated by the Company and/or its subsidiaries at the termination of
this Employment Agreement identified in writing by the Company to Employee at
the date of such termination, are hereinafter referred to as the "Business
Activities");
WHEREAS, Employee is a renown scientist in the field generally described as
nanobacteriology and desires to continue her research in this filed and advance
the science of nanobacteriology; and
WHEREAS, the Company desires to employ Employee and Employee desires to be
employed by the Company upon the terms and conditions set forth in this
Employment Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises, covenants
and conditions herein contained and for other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby accepts
employment with the Company, all upon the terms and subject to the conditions
set forth in this Employment Agreement.
2. TERM OF EMPLOYMENT. The term of employment of Employee by the Company
pursuant to this Employment Agreement shall be for the period of Five (5) years
commencing on the Commencement Date and ending on the fifth year anniversary of
the Commencement Date, or such earlier date that Employee's employment is
terminated in accordance with the provisions of this Employment Agreement
("Employment Period"); provided however, that the Employment Period shall
automatically be extended for a successive one year period, if Employee consents
in writing, unless the Company gives Employee thirty (30) days written notice
prior to the end of such year that it does not intend to extend the term of the
Employment Period.
3. RESTRICTION ON OUTSIDE EMPLOYMENT. During the Employment Period of Five (5)
years, Employee shall not be employed in any other business activity, whether or
not such activity is pursued for gain, profit or other pecuniary advantage,
provided, however, that this restriction shall not be construed as preventing
Employee from investing her personal assets in a business which does not compete
with the Company or its subsidiaries or with any other company or entity
affiliated with the Company, where the form or manner of such investment will
not require services of any significance on the part of Employee in the
operation of the affairs of the business in which such investment is made and in
which his participation is solely that of a passive investor or advisor.
Exception may be granted after review by the Company. Such exception may be made
by the Board of Directors ("Board") of the Company and must be in writing and
made as a part of this Employment Agreement. Notwithstanding the foregoing, the
Company recognizes that Employee has conducted joint research projects with
governmental, educational and private partners and that these joint projects
have resulted in valuable technical developments. Company agrees to allow
Employee to continue such joint research activities so long as the Company may
reasonably protect its intellectual property assets.
4. WORK CHARTER. Employee is and shall be employed in the capacity of and shall
have the title of Director of Science, Nanobac Pharmaceuticals, Inc. research
projects in the near term will be in the following areas:
(1)
a. Nanobacteria - pure research to build study data to determine
application possibilities,
b. Pathological calcification eradication,
c. New cures/eradication applications,
d. Studies of the human anatomy and the potentials of the research
defined in a, b, and c (above),
e. Applications to animals,
f. Authorized publishing of findings in the required media form to
educate the medical profession and those associated with peripheral
interest,
g. Attend seminars/education programs to introduce the technology and
uses,
h. Investigate with approved selected physicians and/or scientists the
required testing to substantiate the research and give credibility to
therapeutics,
i. Share/Exchange knowledge with authorized scientists, researchers,
physicians and staff members.
5. COMPENSATION. During the Employment Period, subject to all the terms and
conditions of this Employment Agreement and as compensation for all services to
be rendered by Employee under this Employment Agreement, the Company shall pay
to or provide Employee with the following:
a. BASE SALARY. Upon execution of this Employment Agreement, the Company
shall pay to Employee a base annual salary at the rate of Two Hundred
and Fifty Thousand Dollars ($250,000.00) per year through the end of
the term of the Employment Agreement and any extensions thereof,
payable at such intervals (26 pay periods per year) as salaries are
paid generally to other employees of the Company. Compensation and
benefits to Employee shall begin upon the first bona fide day of
physical employment for the Company. Certification of actual start
date will be attached to this Employment Agreement as Addendum A.
b. SIGNING BONUS. Upon execution of this Employment Agreement, Employee
will be entitled to Two Hundred and Fifty Thousand Dollars ($250,000)
as a signing bonus to be paid under the following terms and
conditions:
i. Seventy Five Thousand Dollars ($75,000) due upon signing.
ii. One Hundred Seventy-Five Thousand Dollars ($175,000) due and
payable the later of when the Company raises in excess of Five
Million Dollars ($5,000,000) of capital or two (2) years from the
Commencement Date.
c. EQUITY. The Company will issue Five Million (5,000,000) shares of its
common stock (NNBP) in exchange for Employee's Six Thousand (6,000)
common shares of Nanobac OY.
d. BONUS. Employee will participate in any Executive Incentive Plan or
other employee bonus plans put in place by the Company.
e. VACATION AND OTHER BENEFITS. Employee shall be entitled to four (4)
weeks (20 working days = 4 weeks vacation) paid vacation after each 12
month period worked for the Company. Vacation days not used during the
calendar year may not be carried into subsequent years.
f. NEW DISCOVERIES. The Company agrees to establish in 2004 an
equity-based incentive plan for new intellectual property discoveries.
Employee shall be eligible to participate in this plan.
g. The Company agrees to provide medical insurance coverage for Employee.
The Company agrees to make available at Employee's expense medical
insurance for members of Employee's immediate family.
h. The Company will provide life insurance on Employee's life equal to
one (1) times Employee's base salary. The beneficiary of this life
insurance is to be determined by Employee.
i. The Company will provide long term disability insurance for Employee.
j. The Company will pay for the legal fees incurred regarding the USA
visa, immigration or Green Card application processes for Employee and
her immediate family as long as this Employment Agreement is in
effect. The Company will make attorney arrangements for these
processes, but will not be responsible for legal fees incurred by
Employee outside of the arrangements made specifically by the Company
on Employee's behalf.
(2)
k. The Company agrees to pay the reasonable cost associated with
relocation of Employee from her current residence in Houston to a new
residence in Tampa, Florida, or such other site agreed upon by the
parties.
l. The Company agrees to provide to Employee with a housing allowance of
_______________ Dollars ($__________) per month and a transportation
allowance of __________________ Dollars ($__________) per month during
the Employment Period.
The Company may provide Employee with other benefits. In the event the
Company provides other benefits not specifically stated herein, these other
benefits shall be specified and attached hereto as Exhibit: Other Benefits.
6. EXPENSES. The Company shall reimburse Employee for all reasonable, ordinary
and necessary expenses including, but not limited to, automobile and other
business travel and customer entertainment expenses incurred by her in
connection with her employment hereunder in accordance with the written policy
and guidelines of the Company in effect at the time such expenses were incurred,
provided, however, Employee shall render to the Company a complete and accurate
accounting of all such expenses in accordance with the substantiation
requirements of the Internal Revenue Service as a condition precedent to such
reimbursement. If the Company objects to any reimbursement sought by Employee,
the Company must make such objection within three (3) months of Employee's
request for such reimbursement. Objection shall be made by delivering the
objection to Employee in writing, such writing identifying the reimbursement
objected to and stating the reason for such objection.
7. ADHERENCE TO STANDARDS. Employee shall comply with the written policies,
standards, rules and regulations of the Company from time to time established
for all executive officers of the Company consistent with Employee's position
and level of authority.
8. REVIEW OF PERFORMANCE. The Chief Executive Officer of the Company shall
periodically review and evaluate the performance of Employee under this
Employment Agreement with Employee.
9. TERMINATION WITH CAUSE BY THE COMPANY. This Employment Agreement may be
terminated with Cause (as hereinafter defined) by the Company provided that the
Company shall:
a. Give Employee the Notice of Termination (as hereinafter defined), and
b. Pay Employee her annual base salary through the Date of Termination
(as hereinafter defined) at the rate in effect at the time the Notice
of Termination is given plus any bonus or incentive compensation which
has been earned or has become payable pursuant to the terms of any
compensation or benefit plan as of the Date of Termination, but which
have not yet been paid.
c. Notwithstanding the foregoing, the Company's obligation to pay the
annual base salary shall survive the first twelve months of the
Employment Period.
10. TERMINATION WITHOUT CAUSE BY THE COMPANY OR FOR GOOD REASON BY EMPLOYEE.
This Employment Agreement may be terminated by the Company:
a. At the end of the term of employment,
b. During the term of employment without cause as hereinafter defined, or
c. By reason of the Death or Disability of Employee.
In the event of termination by Employee for Good Reason, the Company shall
pay to Employee the earned compensation and other benefits described in the
Section entitled Compensation of this Employment Agreement to the Date of
Termination. Notwithstanding the foregoing, the Company's obligation to pay
the annual base salary shall survive the first twelve months of the
Employment Period.
11. MUTUAL DECISION TO TERMINATE EMPLOYMENT AGREEMENT. This Employment Agreement
may be terminated with mutual signed consent of both Parties. In this case, it
is hereby agreed by both parties that Employee is entitled to receive all earned
wages, benefits and options as of the effective date of such agreement or such
last day as agreed to by both Parties. In such case, any benefits not yet earned
will automatically revert back to the Company, benefits earned can be exercised
on a pro-rata basis and stock of the Company owned or granted may be purchased
according to the terms of this Employment Agreement.
(3)
12. DEFINITIONS. In addition to the words and terms elsewhere defined in this
Employment Agreement, certain capitalized words and terms used in this
Employment Agreement shall have the meanings given to them by the definitions
and descriptions in this Section entitled Definitions and elsewhere in this
Employment Agreement unless the context or use indicates another or different
meaning or intent. The following words and terms are defined terms under this
Employment Agreement:
a. "Disability" shall mean a physical or mental illness which, in the
judgment of the Company after consultation with the licensed physician
attending Employee, impairs Employee's ability to substantially
perform her duties under this Employment Agreement as an employee and
as a result of which he shall have been absent from his duties with
the Company on a full-time basis for the period prior to which
Employee becomes eligible to receive benefits under the
Company-provided long term disability insurance..
b. A termination with "Cause" shall mean a termination of this Employment
Agreement by reason of a good faith determination by the Board that
Employee:
i. Failed to substantially perform his duties with this Company
(other than a failure resulting from his incapacity due to
physical or mental illness) after a written demand for
substantial performance has been delivered to him by the Board,
which demand specifically identifies the manner in which the
Board believes he has not substantially performed his duties;
ii. Has engaged in conduct the consequences of which are materially
adverse to the Company, monetarily or otherwise; or
iii. Has materially breached the terms of this Employment Agreement.
No act, or failure to act, on Employee's part shall be grounds
for termination with Cause unless he has acted or failed to act
with an absence of good faith or without a reasonable belief that
her action or failure to act was in or at least not opposed to
the best interests of the Company. Employee shall not be deemed
to have been terminated with Cause unless there shall have been
delivered to Employee a letter setting forth the reasons for the
Company's termination of Employee with Cause.
c. "Good Reason" shall mean the occurrence of any of the following events
without Employee's prior express written consent:
i. Any material change in Employee's status, title, authorities or
responsibilities under this Employment Agreement which represents
a demotion from such status, title, position or responsibilities,
which are materially inconsistent with her status, title,
position or work responsibilities set forth in this Employment
Agreement, or any removal of Employee from, or failure to
appoint, elect, reappoint or reelect Employee to, any of such
positions, except in connection with the termination of his
employment with Cause, or as a result of his death or Disability,
provided, however, that no change in title, authorities or
responsibilities customarily attributable solely to the Company
ceasing to be a publicly traded corporation shall constitute Good
Reason hereunder;
ii. The failure by the Company to continue in effect any incentive,
bonus or other compensation plan in which Employee participates,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to the
failure to continue such plan, or the failure by the Company to
continue Employee's participation therein, or any action by the
Company which would directly or indirectly materially reduce her
participation therein or reward opportunities thereunder;
provided, however, that Employee continues to meet all
eligibility requirements thereof;
iii. The failure by the Company to continue in effect any employee
benefit plan (including any medical, hospitalization, life
insurance or disability benefit plan in which Employee
participates), or any material fringe benefit or prerequisite
enjoyed by her unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to the failure to continue such plan, or the failure by
the Company to continue Employee's participation therein, or any
action by the Company which would directly or indirectly
materially reduce her participation therein or reward
opportunities thereunder, or the failure by the Company to
provide her with the benefits to which he is entitled under this
Employment Agreement; provided, however, that Employee continues
to meet all eligibility requirements thereof;
iv. Any other material breach by the Company of any provision of this
Employment Agreement;
(4)
v. The failure of the Company to obtain a satisfactory agreement
from any successor or assign of the Company to assume and agree
to perform this Employment Agreement, as contemplated in the
Section entitled Indemnification Agreement hereof;
vi. Any purported termination of Employee's employment which is not
effected pursuant to a Notice of Termination satisfying the
requirements of this Employment Agreement; and for purposes of
this Employment Agreement, no such purported termination shall be
effective; or vii. Any Change of Control (as defined herein) of
the Company.
d. Change of Control. "Change of Control" shall be deemed to have occurred when:
i. Securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding voting
securities are acquired pursuant to a tender offer or an exchange
offer by a person or entity which is not a wholly-owned
subsidiary of the Company or any of its affiliates;
ii. A merger or consolidation is consummated in which the Company is
a constituent corporation and which results in less than 50% of
the outstanding voting securities of the surviving or resulting
entity being owned by the then existing stockholders of the
Company;
iii. A sale is consummated by the Company of substantially all of the
Company's assets to a person or entity which is not a
wholly-owned subsidiary of the Company or any of its affiliates;
or
iv. During any period of two consecutive years, individuals who, at
the beginning of such period, constituted the Board cease, for
any reason, to constitute at least a majority thereof, unless the
election or nomination for election for each new director was
approved by the vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period
.
v. Notice of Termination. "Notice of Termination" shall mean a
written notice which shall indicate the specified termination
provision in this Employment Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee's employment under
the provision so indicated; provided, however, no such purported
termination shall be effective without such Notice of
Termination; provided further, however, any purported termination
by the Company or by Employee shall be communicated by a Notice
of Termination to the other party hereto in accordance with the
Section entitled Notices of this Employment Agreement.
vi. Date of Termination. "Date of Termination" shall mean the date
specified in the Notice of Termination (which, in the case of a
termination pursuant to the Section titled Termination Without
Cause By The Company Or For Good Reason By Employee of this
Employment Agreement shall not be less than sixty (60) days, and
in the case of a termination pursuant to this Section, titled
Definitions, of this Employment Agreement shall not be more than
sixty (60) days, from the date such Notice of Termination is
given); provided, however, that if within thirty (30) days after
any Notice of Termination is given the party receiving such
Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall
be the date finally determined by either mutual written agreement
of the parties or by the final judgment, order or decree of a
court of competent jurisdiction (the time for appeal there from
having expired and no appeal having been taken).
13. FEES AND EXPENSES. The Company shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by Employee as a
result of a contest or dispute over Employee's termination of employment if such
contest or dispute is resolved in Employee's favor.
14. NOTICES. Notices and all other communications provided for in this
Employment Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, or by expedited (overnight) courier with established
national reputation, shipping prepaid or billed to sender, in either case
addressed to the respective addresses last given by each party to the other
(provided that all notices to the Company shall be directed to the attention of
the President with a copy to the Secretary of the Company) or to such other
address as either party may have furnished to the other in writing in accordance
herewith. All notices and communication shall be deemed to have been received on
the date of delivery thereof, or on the second day after deposit thereof with an
expedited courier service, except that notice of change of address shall be
effective only upon receipt.
o Company at: Xxxx X. Xxxxxxx III, CEO and President, Nanobac Pharmaceuticals
Inc, 0000 Xxxx X X Xxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000.
o Employee at: E. Xxxxx Xxxxxxxx, MD, PhD, __________________________________
(5)
15. "KEY MAN" LIFE INSURANCE. The Company may, at any time after the execution
of this Employment Agreement, apply for and procure as owner and for its own
benefit, life insurance on Employee, in such amounts and in such form or forms
as the Company may determine. Employee shall, at the request of the Company,
submit to such medical examinations, supply such information, and execute such
documents as may be required by the insurance company or companies to whom the
Company has applied for such insurance. Employee hereby represents that to his
knowledge he is in excellent physical and mental condition and is not under an
addicting influence of alcohol, drugs or similar substance.
16. PRIOR EMPLOYMENT AGREEMENTS. This Employee Agreement is predicated upon and
not effective until the release of Employee by the board of directors of Nanobac
OY for employment under this Employment Agreement. Employee represents and
warrants that Employee's performance of all the terms of this Employment
Agreement and as an employee of the Company does not, and will not, breach any
employment agreement, arrangement or understanding or any agreement, arrangement
or understanding to keep in confidence proprietary information acquired by
Employee in confidence or in trust prior to Employee's employment by the
Company. Employee has not entered into, and shall not enter into, any agreement,
arrangement or understanding, either written or oral, which is in conflict with
this Employment Agreement or which would be violated by Employee entering into,
or carrying out his obligations under, this Employment Agreement.
17. PROPRIETARY INFORMATION AND INVENTIONS. Employee understands and
acknowledges that:
a. Upon execution of this Employment Agreement, Employee will also
execute Patent Assignment Agreement attached as Exhibit A.
b. Employee shall not, directly or indirectly, either during the term of
the Employee's employment under this Employment Agreement or
thereafter, disclose to anyone (except in the regular course of the
Company's business or as required by law or to a party bound to the
Company by a similar duty of nondisclosure), or use in any manner, any
information acquired by the Employee during his employment by the
Company with respect to any clients or customers of the Company or any
confidential or secret aspect of the Company's operations or affairs
unless such information has become public knowledge other than by
reason of actions, direct or indirect, of the Employee. Information
subject to the provisions of this paragraph shall include, without
limitation:
i. Procedures for computer access and passwords of the Company's
clients and customers, program manuals, user manuals, or other
documentation, run books, screen, file, or database layouts,
systems flowcharts, and all documentation normally related to the
design or implementation of any computer programs developed by
the Company relating to computer programs or systems installed
either for customers or for internal use;
ii. Lists of present clients and customers and the names of
individuals at each client or customer location with whom the
Company deals, the type of equipment or computer software they
purchase or use, and information relating to those clients and
customers which has been given to the Company by them or
developed by the Company, relating to computer programs or
systems installed;
iii. Lists of or information about personnel seeking employment with
or who are employed by the Company; iv. Prospect lists for actual
or potential clients and customers of the Company and contact
persons at such actual or potential clients and customers;
v. Any other information relating to Nanobac Pharmaceuticals, Inc.
and/or the Company's research, formulae, development, trade
secrets, inventions, purchasing, plans, studies, engineering,
marketing, merchandising, and selling.
c. Employee shall not, directly or indirectly, either during the term of
employment under this Agreement or for a period of five (5) years
thereafter or for five (5) months following the Termination Date if
this Employment Agreement is terminated by the Company other than for
Cause or by Employee for Good Reason;
i. Solicit, directly or indirectly, the services of any person who
was a full-time employee of the Company, its subsidiaries,
divisions, or affiliates, or solicit the business of any person
who was a client or customer of the Company, its subsidiaries,
divisions, or affiliates, in each case at any time during the
past year of the term of Employee's employment under this
Employment Agreement. For purposes of this Employment Agreement,
the term "person" shall include natural persons, corporations,
business trusts, associations, sole proprietorships,
unincorporated organizations, partnerships, joint ventures, and
governments, or any agencies, instrumentalities, or political
subdivisions thereof.
(6)
ii. Induce employees of the Company to terminate their employment
with the Company or engage in any Competitive Business in the
United States; provided, however, that the ownership of the
outstanding capital stock of a corporation whose shares are
traded on a national securities exchange or on the
over-the-counter market or the ownership and/or operation of a
franchise under a franchise agreement with the Company shall not
be deemed engaging any Competitive Business. "Competitive
Business" shall mean Pharmaceutical Research and/or
Pharmaceutical Product Development, Nanobacterial Research and/or
Development of Nanobacterial Diagnostics/Treatment/Therapeutics
or any other business that is the same as or similar to the
Company concept as it exists on the date of this Employment
Agreement or on the Termination Date.
d. All memoranda, notes, records, or other documents made or composed by
Employee, or made available to him during the term of this Employment
Agreement concerning or in any way relating to Business Activities or
clients shall be the Company's property and shall be delivered to the
Company on the termination of this Employment Agreement within seven
(7) calendar days and at any other time at the request of the Company.
e.
i. Employee hereby assigns and agrees to assign to the Company all
his rights to and title and interest to all Inventions, and to
applications for United States and foreign patents and United
States and foreign patents granted upon such Inventions and to
all copyrightable material or other works related thereto
developed while in the employ of the Company.
ii. Employee agrees for himself and his heirs, personal
representatives, successors, and assigns, upon request of the
Company, to at all times do such acts, such as giving testimony
in support of Employee's inventorship, and to execute and deliver
promptly to the Company such papers, instruments, and documents,
without expense to him, as from time to time may be necessary or
useful in the Company's opinion to apply for, secure, maintain,
reissue, extend, or defend the Company's worldwide rights in the
Inventions or in any or all United States patents and in any or
all patents in any country foreign to the United States, so as to
secure to the Company the full benefits of the Inventions or
discoveries and otherwise to carry into full force and effect the
text and the intent of the assignment set out in this Section,
Proprietary Information And Inventions.
iii. Notwithstanding any provision of this Employment Agreement to the
contrary, the Company shall have the royalty-free right to use in
its business, and to make, have made, use, and sell products,
processes, and services to make, have made, use, and sell
products, processes, and services derived from any inventions,
discoveries, concepts, and ideas, whether or not patentable,
including, but not limited to, processes, methods, formulas, and
techniques, as well as improvements thereof and know-how related
thereto, that are not inventions as defined herein, but which are
made or conceived by Employee during his employment by the
Company or with the use or assistance of the Company's
facilities, materials, or personnel. If the Company determines
that it has no present or future interest in any invention or
discovery made by Employee under this paragraph, the Company
shall release such invention or discovery to Employee within
Sixty (60) days after Employee's notice in writing is received by
the Company requesting such release. If the Company determines
that it does or may in the future have an interest in any such
invention or discovery, such information will be communicated to
Employee within the 60-day period described above.
iv. For purposes of this Employment Agreement, "Inventions" means
inventions, discoveries, concepts, and ideas, whether patentable
or not, including, but not limited to, processes, methods,
formulas, and techniques, as well as improvements thereof or
know-how related thereto, concerning any present or prospective
activities of the Company with which Employee becomes acquainted
as a result of his employment by the Company.
f. Employee acknowledges that the agreements provided in this Section,
Proprietary Information And Inventions, were an inducement to the Company
entering into this Employment Agreement and that the remedy at law for breach of
Employee's covenants under this Section, Proprietary Information And Inventions,
will be inadequate and, accordingly, in the event of any breach or threatened
breach by Employee of any provision of this Section, Proprietary Information And
Inventions, the Company shall be entitled, in addition to all other remedies, to
an injunction restraining any such breach.
(7)
18. REMEDIES. Employee acknowledges and agrees that the Company's remedy at law
for a breach or a threatened breach of the provisions herein would be
inadequate. It is agreed that the Company shall be entitled to, equitable relief
in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy which may then be
available. No remedy herein conferred is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to any other remedy given hereunder now or hereinafter existing at law
or in equity or by statute or otherwise.
19. SUCCESSORS. This Employment Agreement shall be binding on the Company and
any successor to any of its businesses or assets. Without limiting the effect of
the prior sentence, the Company shall use its best efforts to require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Employment
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place.
20. BINDING EFFECT. This Employment Agreement shall inure to the benefit of and
be enforceable by Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee should die while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Employment Agreement to
Employee's estate.
21. MODIFICATION AND WAIVER. No provision of this Employment Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by Employee and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
22. HEADINGS. Headings used in this Employment Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
23. SEVERABILITY. The invalidity or unenforceability of any provision of this
Employment Agreement, whether in whole or in part, shall not in any way affect
the validity and/or enforceability of any other provision contained herein. Any
invalid or unenforceable provision shall be deemed severable to the extent of
any such invalidity or unenforceability. It is expressly understood and agreed
that while the Company and Employee consider the restrictions contained in this
Employment Agreement reasonable for the purpose of preserving for the Company
the good will, other proprietary rights and intangible business value of the
Company, if a final judicial determination is made by a court having
jurisdiction that the time or territory or any other restriction contained in
this Employment Agreement is an unreasonable or otherwise unenforceable
restriction against Employee, the provisions of such clause shall not be
rendered void but shall be deemed amended to apply as to maximum time and
territory and to such other extent as such court may judicially determine or
indicate to be reasonable.
24. GOVERNING LAW. This Employment Agreement shall be construed and enforced
pursuant to the laws of the State of Florida and Hillsborough County. Venue
shall be in Hillsborough County, Florida, the court of competition jurisdiction
located nearest to Hillsborough County, Florida, or such other jurisdiction
agreed to by the parties.
25. ARBITRATION. Any controversy or claim arising out of or relating to this
Employment Agreement or any transactions provided for herein, or the breach
thereof, other than a claim for injunctive relief shall be settled by
arbitration in accordance with the commercial Arbitration Rules of the American
Arbitration Association (the "Rules") in effect at the time demand for
arbitration is made by any party. The evidentiary and procedural rules in such
proceedings shall be kept to the minimum level of formality that is consistent
with the Rules. Arbitration shall be before a three-arbitrator panel. One
arbitrator shall be named by the Company, a second shall be named by Employee
and the third arbitrator shall be named by the two arbitrators so chosen. In the
event that the third arbitrator is not agreed upon, the third arbitrator shall
be named by the American Arbitration Association. Arbitration shall occur in
Tampa, Florida or such other location agreed to by the Company and Employee. The
award made by all or a majority of the panel of arbitrators shall be final and
binding, and judgment may be entered in any court of law having competent
jurisdiction. The award is subject to confirmation, modification, correction, or
vacation only as explicitly provided in Title 9 of the United States Code. The
prevailing party shall be entitled to an award of pre- and post-award interest
as well as reasonable attorneys' fees incurred in connection with the
arbitration and any judicial proceedings related thereto.
(8)
26. EXECUTIVE OFFICER STATUS. Employee acknowledges that he may be deemed to be
an "executive officer" of the Company for purposes of the Securities Act of
1993, as amended (the "1933 Act"), and the Securities Exchange Act of 1934, as
amended (the "1934 Act") and, if so, he shall comply in all respects with all
the rules and regulations under the 1933 Act and the 1934 Act applicable to her
in a timely and non-delinquent manner. In order to assist the Company in
complying with its obligations under the 1933 Act and 1934 Act, Employee shall
provide to the Company such information about Employee as the Company shall
reasonably request including, but not limited to, information relating to
personal history and stockholdings. Employee shall report to the general counsel
of the Company or other designated officer of the Company all changes in
beneficial ownership of any shares of the Company common stock deemed to be
beneficially owned by Employee and/or any members of Employee's immediate
family.
27. PRONOUNS. All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular, or plural, as the identity of the
person or entity may require. As used in this Employment Agreement and as
context requires: (1) words of the masculine gender shall mean and include
corresponding neuter words or words of the feminine gender, (2) words in the
singular shall mean and include the plural and vice versa, and (3) the word
"may" gives sole discretion without any obligation to take any action.
28. COUNTERPARTS. This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one document.
29. EXHIBITS. Any Exhibits attached hereto are incorporated herein by reference
and are an integral part of this Employment Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed
by the Company and Employee as of the date first above written.
Company: /s/ Xxxx X. Xxxxxxx III Date: January 20, 2004
------------------------
Xxxx X. Xxxxxxx III
CEO and President
Nanobac Pharmaceuticals, Inc.
Employee: /s/ E. Xxxxx Xxxxxxxx, MD, PhD Date: January 20, 2004
-------------------------------
E. Xxxxx Xxxxxxxx, MD, PhD,
(9)
Patent Assignment Agreement
---------------------------
Patent Assignment Agreement shall contain the following provisions:
Outright assignment of all of Olavi's and Neva's interests in issued
nonobacteria related patents and pending patent applications.
Outright assignment of inventions and other IP created during Neva's and
Olavi's employment with Nanobac
License back by Nanobac to Olavi and Xxxx of issued patents and pending patent
applications as of the date of the employment agreement, with the following
terms.
License shall take effect upon termination of employment with Nanobac
License shall be worldwide, royalty-free through the term of the issued
patents
License shall be limited to products or services which do not infringe
existing Nanobac products, Nanobac products under development as of the
termination of employment, or products produced by Nanobac licensees under
license from Nanobac.
