FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.4(a)
FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is made as of August 1, 2007 (the
“Amendment”), by and between Xxxxxx X. Xxxxx (the “Employee”) and Health
Discovery Corporation, a Georgia corporation (the “Employer”).
RECITALS
A. The
Employer executed and delivered to Employee that certain Employment Agreement
dated as of December 5, 2005 (the “Employment Agreement”). The Employment
Agreement provides that Employer will employ Employee for a period of three
(3)
years, unless earlier terminated, under the terms and conditions set forth
therein.
B. The
Employer has implemented a cash conservation plan that includes salary deferrals
and reductions while it is considering pursuing potential licensing
opportunities and raising additional equity through private placements and/or
debt offerings.
C. The
Employer has requested, and the Employee has agreed to, an amendment to the
terms of compensation evidenced by the Employment Agreement, and the parties
wish to memorialize their agreement in writing.
NOW,
THEREFORE, for and in consideration of the mutual agreements herein stated,
and
other good and valuable consideration, the adequacy and receipt of which
are
hereby acknowledged, Employer and Employee agree as follows:
1.
Section 3.1 shall be deleted and replaced with the following:
3.1
Salary.
Employer shall pay Employee a base gross salary at the rate of $7,000 per
month,
payable in accordance with Employer’s customary payment policy; provided,
however, that Employee shall defer $2,000 per month of such base gross salary
(the “Deferred Compensation”) until the Employer receives following the date
hereof a cash infusion, through a sale of Employer securities or otherwise,
of
at least $1,500,000 (the “Cash Infusion”). Employee agrees that if he terminates
his employment before the Cash Infusion, or if Employer terminates Employee’s
employment for Cause (as that term is defined in the Employment Agreement)
before the Cash Infusion, then the Employee shall forfeit the Deferred
Compensation. Unless the Employee forfeits the Deferred Compensation, Employer
shall pay the Deferred Compensation by no later than the fifteenth day of
the
third month after the end of the calendar year in which the earlier of the
Cash
Infusion or Employer’s termination of Employee’s employment without Cause
occurs.
2.
Effective
Time. This Amendment shall become effective as of August 1, 2007.
3.
No
Other
Amendment or Waiver. The Employment Agreement, as amended by this Amendment,
remains in full force and effect in accordance with its terms, and Employer
and
Employee hereby ratify and confirm the same.
4.
Counterparts.
This Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which, when so executed
and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one instrument.
5.
Successors
and Assigns. This Amendment shall be binding upon and inure to the benefit
of
the successors and permitted assigns of the parties hereto.
6.
Section
References. Section titles and references used in this Amendment shall be
without substantive meaning or content of any kind whatsoever.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, Employer and Employee have executed this Amendment as of
the
day and year first written above.
EMPLOYEE
/s/
Xxxxxx X.
Xxxxx
Xxxxxx
X.
Xxxxx
HEALTH
DISCOVERY
CORPORATION
By:
/s/
Xxxxxxx X. Xxxxxxxx, M.D.
Name:
Xxxxxxx X.
Xxxxxxxx, M.D.
Title:
CEO
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