BIOSHIELD TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 6th day of January, 1997, between BioShield
Technologies, Inc., a Georgia corporation, having an address of 0000 X. Xxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, its successors and assigns, ("BioShield"
or "Company") and XXXXXXX X. XXXXXXX ("Employee") having an address of 000
Xxxxxxx Xxxxxx Xxx, Xxxxxx, Xxxxxxx 00000.
WITNESSETH
WHEREAS, BioShield is engaged in the business of the development,
manufacture, marketing, distribution and sale of antimicrobial and biostatic
products; and
WHEREAS, BioShield is desirous of obtaining the services of Employee in the
capacity of Director of Research and development; and
WHEREAS, Employee is desirous of entering into employment as a Director
of Research and Development of BioShield for compensation on a base salary and
possible incentive basis;
NOW THEREFORE, for the mutual covenants set forth herein and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is mutually agreed as follows:
ARTICLE I - GENERAL PROVISIONS
General Covenants and Representations - BioShield
1. The attached letter of offer and these terms and conditions become
an agreement only when accepted and signed by both parties.
2. BioShield agrees to compensate Employee for a base salary of
$55,000.00 per annum. The incentive based portion of compensation, if any, shall
be computed and payable pursuant to the provisions of Addendum 1, or as
subsequently revised. Employee will receive his compensation in accordance with
the Company's regular practices.
3. BioShield shall provide to Employee any medical or dental insurance
otherwise available to the employees of BioShield in general, on the same terms
and conditions as such insurance is provided, if at all, to other employees of
BioShield. Employee acknowledges that all benefits are subject to change.
4. Employee shall be entitled to vacations and holidays as generally
available to the employees of BioShield.
B. General Covenants and Representations - Employee
1. During the Term of this Agreement, Employee shall use his best
efforts to perform as a Director of Research and Development for BioShield
including all duties required in furtherance of his position or as are assigned
to him from time to time by an officer of BioShield. Employee shall make his
best efforts to meet the goals identified in Addendum Number 1 attached hereto
or as subsequently modified.
2. Employee shall diligently and faithfully devote his entire time,
energy, skill, and best efforts during usual business hours to promote
BioShield's business and affairs and perform his duties under this Agreement.
Employee shall at all times act so as to advance the best interests of
BioShield, and shall not undertake or engage in any other business activity or
continue or assume any other business affiliations which conflict or interfere
with the performance of his services hereunder without the prior written consent
of BioShield.
3. During the Term of this Agreement, Employee shall be governed by and
be subject to all BioShield's rules and regulations whether written or oral,
which are applicable to BioShield employees in general, and agrees to render his
duties at such place and at such times as BioShield shall in good faith require.
4. Employee agrees to domestic and foreign travel as required in
pursuit of the Employee's responsibilities. Employee acknowledges that in
performance of his duties he will be required to work with existing clients,
contact potential clients, and present workshops or informational exchanges.
Employee further acknowledges that he may be required to travel to and possible
spend significant periods of time at clients' facilities.
5. It is expressly agreed that Employee in performing services pursuant
to this Agreement is not one of BioShield?s officers and has no authority to
commit or to bind BioShield under any contract, obligation or liability, or to
obligate BioShield for any expenses, including without limitation, expenses for
materials and services.
6. Employee acknowledges and understands that BioShield shall withhold
federal and state income taxes and FICA from Employee?s salary hereunder, and
BioShield shall issue to Employee a federal and state W-2 with respect to such
fees and withholdings at the end of each calendar year during which Employee is
employed.
7. Employee agrees not to discuss his fees for service, or the fee
BioShield charges its clients, with any persons other than designated BioShield
management personnel.
ARTICLE II - PROPRIETARY INFORMATION AND RESTRICTIVE COVENANTS
Necessity of Restrictive Covenants. Employee agrees that while working
under this Agreement, he will learn and come in contact with certain Trade
Secrets and other Proprietary Information and will develop certain relationships
with BioShield's clients and employees which BioShield has expended significant
time and funds to create, perfect, maintain and protect. Employee acknowledges
that his agreement not to solicit BioShield's clients or employees is necessary
to protect BioShield's investment in its Trade Secrets, Proprietary Information,
client base and goodwill.
A. Nondisclosure of proprietary Information and Trade Secrets
1. All information relating to BioShield's business shall be
safeguarded and treated as confidential by Employee, in compliance with
paragraphs 2-4 hereunder. To the extent, however, that such information is
publicly available or has theretofore been made public by BioShield, Employee
shall bear no responsibility for its disclosure, inadvertent or otherwise.
2. Trade Secrets and Proprietary Information. "Trade Secrets" means
information related to BioShield or its affiliates (1) which derives economic
value, actual or potential, from not being generally known to or readily
ascertainable by other persons who can obtain economic value from its disclosure
or use; and (2) which is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. Assuming the foregoing criteria are met.
Trade Secrets include, but are not limited to, technical and nontechnical data
related to computer programming methods and procedure, application development
and enablement, in-house developed protocols, company rules and regulations, the
formulas, patterns, designs, compilations, programs, methods, techniques,
drawings, processes, finances, lists of actual or potential customers, and
suppliers, and existing and future products of BioShield or its affiliates.
Proprietary Information includes the foregoing, as well as methods of doing
business, sales, service, or distribution techniques, selling prices, and the
names and addresses of present or prospective customers. Proprietary Information
also includes information which has been disclosed to BioShield or its
affiliates by a client or other third party and which BioShield or its
affiliates are obligated to treat as confidential.
3. All Trade Secrets and Proprietary Information and all physical
embodiments thereof received or developed by the Employee while employed by
BioShield are confidential to and will remain the sole and exclusive property of
BioShield. Except to the extent necessary to perform the duties assigned to him
by BioShield, Employee will hold such Trade Secrets or Proprietary Information
in trust and strictest confidence. Employee may in no event take any action
causing or fail to take the action necessary in order to prevent any Trade
Secrets or Proprietary Information disclosed to or developed by Employee to lose
its character or cease to qualify as a Trade Secret or Proprietary Information.
Employee will not, either during or for two (2) years subsequent to Employee's
employment with BioShield, use, reproduce, distribute, disclose or otherwise
disseminate the any Proprietary Information or any physical embodiments thereof.
4. Upon request by BioShield, and in any event upon termination of the
employment of Employee with BioShield for any reason, Employee will promptly
deliver to BioShield all property belonging to BioShield, including, without
limitation, all Trade Secrets or Proprietary Information (and all physical
embodiments thereof) then in his custody, control or possession.
B. Restrictive Covenants
1. Non-disparagement. Employee recognizes and acknowledges that the
success of BioShield's business is largely dependent upon and attributable to
the goodwill which BioShield has, at great expense, established over a period of
years. Therefore, Employee will not, during the term of his employment, and for
one (1) year thereafter, disparage BioShield , its officers, employees,
products, or methods and techniques of doing business. Employee hereby agrees to
indemnify and hold BioShield harmless from and against any and all losses,
claims, damages, or expenses, including attorneys' fees, arising from or growing
out of disparagement in violation of this paragraph.
2. Nonsolicitation Agreement.
(A) Nonsolicitation of Customers. Employee agrees that while working
pursuant to this Agreement and for a period of one (1) year following the
termination or expiration of this Agreement ("Nonsolicitation Period"), Employee
will not, for any reason, directly or indirectly, for himself or on behalf of
any person, partnership, corporation or other entity, either as an employee,
officer, director, partner, shareholder, agent, consultant, or independent
contractor:
(1) engage in any business activity as an antimicrobial chemist
for or provide any consulting service to any person or entity
who was a client or actively sought prospective client of
BioShield during the term of this Agreement; and
(2) for whom Employee provided services pursuant to this Agreement or with whom
Employee had regular, meaningful contact.
Employee further agrees that with respect to such clients identified
herein he will not request or advise any such customers of BioShield to withdraw
from or cancel any of their business with BioShield.
(B) Nonsolicitation of Employees. Employee agrees that during the
Nonsolicitation Period he will not, directly or indirectly,
for himself or on behalf of any other person, partnership,
corporation, or other entity: hire, solicit, interfere with or
endeavor to entice away from BioShield any employee of
BioShield.
3. Noncompetition Agreement. Employee agrees that while working
pursuant to this Agreement and for a period of one (1) year following the
termination or expiration of this Agreement ("Noncompetition Period"), Employee
will not, for any reason, directly or indirectly, for himself or on behalf of
any person, partnership, corporation or other entity, engage in any business
activity as a _______________ Chemist for or provide consulting services to any
person, corporation, partnership or other entity, directly of indirectly, which
is in competition with BioShield in the specific geographic territory in which
Employee actually performed services for BioShield during the term of this
Agreement. At the time of the execution of this Agreement, such specific
geographic territory included: U.S.A. and Europe. The parties acknowledge that
such geographic location is subject to change and will include all territory in
which Employee actually performed services for BioShield. For the purposes of
this paragraph "competition" shall mean providing software services to
businesses, governmental agencies, academic institutions and health care
facilities.
4. Tolling of Nondisparagement, Noncompetition and Nonsolicitation
Period. If BioShield or its successors in interest shall make application to a
court of competent jurisdiction for injunctive relief, then the one year periods
specified herein shall be tolled from the time of application for injunctive
relief until the date of final injunctive relief, including all periods of
appeal.
5. Irreparable Injury/Injunctive Relief. Employee acknowledges that a
breach of any of the restrictive covenants provided in Article II of this
Agreement will harm BioShield?s client base and goodwill and will inhibit the
operation of its business thereby, giving rise to irreparable injury to
BioShield which is not adequately compensable in damages or at law. Accordingly,
Employee agrees that BioShield, its successor and assigns may obtain injunctive
relief against the breach or threatened breach of the foregoing provisions, in
addition to any other legal remedies which may be available to it under this
agreement. Employee further acknowledges that in the event of termination or
expiration of this Agreement, his knowledge, experience and capabilities are
such that he can obtain contracts and work in business activities which are of a
different or noncompeting nature than those performed in the course of this
Agreement and that the enforcement of a remedy hereunder by way of injunction
will not prevent Employee from earning a reasonable livelihood.
6. Accounting for Profits. Employee covenants and agrees that if he
violates the provisions of Article II of this Agreement, BioShield shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration or other benefits that he has realized and /or may
realize as a result of or in connection with any such violation. These remedies
shall be in addition and not in limitation of any other rights or remedies to
which BioShield is or may be entitled at law, in equity or under this Agreement.
7. Severability and Scope of Restrictive Covenants. If in any judicial
proceeding, a court shall refuse to enforce any of the Restrictive Covenants
provided in Article II of this Agreement, whether because the time limit is too
long or because the restrictions contained herein are more extensive (whether as
to geographic area, scope of business or otherwise) than is necessary to protect
the business and goodwill of BioShield, it is expressly understood and agreed
between the parties hereto that this Agreement is deemed modified to the extent
necessary to permit this Agreement to be enforced in any such proceedings, as
long as such modifications shall not be unreasonable, arbitrary or against
public policy. Alternatively, if any provision of this Agreement is found to be
unenforceable as written, or so modified, then, and in that event, such
provision shall be automatically deleted from this Agreement, and the balance of
this Agreement shall remain in full force and effect.
8. Costs of Enforcement. In the event either party initiates action to
enforce his or its rights hereunder, the substantially prevailing party shall
recover from the substantially nonprevailing party its reasonable expenses,
court costs and reasonable attorneys' fees, whether suit be brought or not. As
used herein, expenses, court costs and attorney's fees include expenses, court
costs and attorneys' fees incurred in any appellate proceeding. All such
expenses shall bear interest at the rate of Twelve Percent (12%) per annum from
the date the prevailing party pays such expenses until the date the
nonprevailing party repays such expenses. Expenses incurred in enforcing this
paragraph shall be covered by this paragraph.
ARTICLE III - DURATION AND TERMINATION
1. The term of this Agreement is one (1) year from the date of its
execution. This Agreement shall automatically renew at the end of each one (1)
year period until it is terminated by one or both of the parties hereto.
2. Either party may terminate this Agreement for any or no reason
whatsoever by giving two weeks notice in writing. Termination is effective two
weeks from receipt of such notice by either party. In the event of termination
by either party, BioShield at its sole option, may require the Employee to use
any accrued vacation as a portion of the two week notice period.
ARTICLE IV - MISCELLANEOUS
1. Copyrights and Patents. Employee agrees that all property rights,
including but not limited to trademarks, copyrights and patents, in respect of
every invention, product, method, system, program or any intellectual property
or trade secret created by him during the course of or related to his employment
shall belong to BioShield and all such rights are hereby assigned to BioShield
which shall be exclusively entitled to the property therein.
2. This Agreement shall be governed by the laws of the State of Georgia.
3. This Agreement sets forth the entire agreement between the parties
and supersedes all contracts, proposals, oral or written, and all other
communications between the parties with respect to the subject matter hereof.
4. This Agreement can only be modified, amended or supplemented by the
express written agreement of both parties.
5. The obligations of Employee which arise under this Agreement shall
survive the termination of this Agreement, regardless of the manner, fashion or
circumstance surrounding the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Employee: BIOSHIELD TECHNOLOGIES , INC.,
a Georgia corporation
Signed:__________________________ Signed___________________________
Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx Xxxxxxx Title: President
Address: 000 Xxxxxxx Xxxxxx Xxx Date: 1/6/97
---------------------------------- ------
Xxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Soc. Sec.#: ###-##-#### AGREEMENT NO.: 3
---------------------------- ---------
December 10, 1996
Xx. Xxxxxxx Xxxxxxx
000 Xxxxxxx Xxxxx Xxx
Xxxxxx, Xxxxxxx 00000
Reference: Director of Research & Development
Employment Position
Dear Xx. Xxxxxxx:
Xxx and I would like to thank you for your interesting presentation and for
discussing your background and qualifications with us.
We are very impressed with your accomplishments and experience to date, and
believe that you possess the necessary skills and knowledge required to help
BioShield maintain its technological edge in the field of antimicrobial agents
and surface treatments. Therefore, it is my pleasure to offer you the position
of Director of Research & Development of BioShield starting January 6, 1997, and
hope that you will accept this great and challenging employment opportunity.
As discussed during our meeting, as a Director of R&D, you will perform, among
other things, the following functions:
Develop, evaluate and laboratory test existing and new antimicrobial compound
products.
4. provide chemical manufacturing processes, scale up, quality assurance, and
raw chemical material procurement. Also, provide procedures and instructions for
making chemical compounds and formulated products.
5. Work and assist with sales, marketing, and regulatory departments in the
introduction, formulation and registration of existing and new antimicrobial
products.
6. Write and implement standard laboratory test methods, quality control and
laboratory research and development procedures. Maintain laboratory records and
documentation.
7. Work and assist with patent applications and executions.
8. Conduct studies for presentations and discussions.
9. Attend meeting with clients, suppliers and scientists.
10. Fulfill the Company's governmental regulatory duties EPA &FDA, and submit
all the necessary reporting. provide and assist in health, environmental affairs
including EPA, FDA & USDA regulations.
11. Develop and prepare technical bulletins, assays and material
safety data sheets.
As discussed, your starting salary will be $55,000 plus all other company
benefits such as health, stock options and bonuses.
We trust the above is satisfactory to you, and look forward to hearing from you
soon. Please do not hesitate to contact me should you have any questions.
Sincerely yours,
Xxxxxxx Xxxxxxx
