Exhibit 10.10
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") entered
into at Beachwood, Ohio, this 1st day of February 2002, by and between EMPYREAN
BIOSCIENCE, INC. (the "Company") and XXXXXXX X. XXXXX ("Employee") amends the
EMPLOYMENT AGREEMENT, dated September 7, 1999 between the parties, as heretofore
amended (the "Agreement").
1. The following paragraph shall be added to the end of Section 2
of the Agreement:
Notwithstanding the foregoing, in the event and at anytime
from and after and during the continuation of any failure by the
Company to pay to Employee, when due, any amount(s) due Employee
pursuant to Section 3.1 (including any increases made in the rate
thereof), 3.3 or 3.4 of this Agreement, or to maintain in continuous
full force and effect, each fringe benefit contemplated by Section 3.2.
(i) Employee shall be entitled to reduce the "working
time" which Employee is obligated to devote to the
Company to an amount of time commensurate with the
actual compensation paid and benefits provided to
Employee by Company under the aforementioned
Sections, and further, that the "best efforts" which
Employee shall be obligated to make on behalf of the
Company shall be limited to those which can be
performed within such reduced time. Any activities
Employee may pursue during such "working time" which
Employee is no longer obligated to devote to the
Company shall be subject to the provisions of Section
5. Employee's reduction of Company "working time" in
reliance upon this paragraph shall not affect in any
way the benefits package (or any individual
benefits), incentive compensation (except to the
extent Employee's entitlement thereto may be based on
hours worked, Company financial results or other
performance criteria), and stock options to which
Employee is entitled pursuant to Sections 3.2, 3.4
and 3.5, respectively, of this Agreement. Further,
Company acknowledges and agrees that any exercise by
Employee of the foregoing right to reduce Employee's
Company "working time" shall not constitute a waiver
by Employee of any breach by the Company of any of
its obligations to Employee under Section 3, and
Employee remains entitled to all remedies available
for such breaches including, without limitation, the
right, at anytime after such reduction and prior to
the Company's cure of such breaches to make the
election permitted by clause (ii) of this paragraph;
and
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(ii) Employee may elect by written notice to the Company
that such failure constitute and be treated as a
"termination without cause" (by the Company within
the meaning of Section 4.2 of this Agreement and all
other purposes hereunder, effective as of the date of
the giving of such notice; provided that Employee has
theretofore previously notified the Company in
writing of Employee's intention that such failure be
so treated and such failure remains uncured thirty
(30) days after the giving of such prior notice; and
provided further, that any such election by Employee
shall not limit Employee's right to pursue all
remedies available for all such failures.
2. The following paragraph shall be added to the Agreement as a
new Section 5.9:
Notwithstanding the foregoing provisions of this Section 5,
if, at any time from and after the Commencement Date, a proposal or
business opportunity (whether or not related to the Business) is
presented to the Board of Directors, and the Board of Directors rejects
or otherwise determines not to pursue such proposal or business
opportunity, then Employee shall have the right to pursue such proposal
or business opportunity for Employee's own individual, direct or
indirect account and benefit and, if Employee shall elect to do so,
shall not be deemed to be, or otherwise be subject to any claim that
such conduct is, a breach or otherwise in violation of Section 5 or any
other provision of this Agreement; provided that Employee shall
continue to be subject to and obligated to observe the requirements of
Section 5.1. Nor shall any information relating to such proposal or
business opportunity rejected or not pursued by the Board of Directors
be deemed Trade Secrets of the Company within the meaning of Section
5.1. Further, notwithstanding anything to the contrary in Section 5.4
or 5.5, the Company shall not have or be entitled to any right, title
or interest in or to or to the use of any products, devices,
inventions, discoveries, concepts, methods, techniques, formulas or
ideas conceived or made by Employee outside the "working time" which
Employee is obligated hereunder to devote to the Business of the
Company and without the use of assistance of the Company's facilities,
materials or personnel, including, without limitation, any of the
foregoing conceived or made by Employee in connection with any
non-Company activities in which Employee may engage pursuant to the
second paragraph of Section 2 or this Section 5.9.
3. Except for and subject to the addition of the foregoing
provisions, the parties hereby confirm, acknowledge and agree
that the Agreement shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment in
multiple counterparts at the place and as of the date and year first
above written.
EMPYREAN BIOSCIENCE, INC. (Company)
By:
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Xxxxxxxx X. Xxxx, Chairman
EMPLOYEE
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Xxxxxxx X. Xxxxx
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