EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as
of this 17th day of September, 1998, between BIOSHIELD TECHNOLOGIES, INC., a
Georgia corporation (the "Company"), and XXXXXXX X. XXXXXX, a Florida resident
(the "Executive").
1. Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. Term. The employment of the Executive by the Company as provided in
Section 1 will commence on the second Monday following the closing of the
initial public offering of the Company (the "Commencement Date") as provided by
its registration statement first filed with the Securities and Exchange
Commission on June 26, 1998 (the "IPO") and will terminate at 12:01 a.m. on the
third anniversary of the Commencement Date (the "Expiration Date") unless
extended or sooner terminated as hereinafter provided (such period, the
"Employment Period"). If the IPO does not close by November 30, 1998, either
party may at any time beginning on December 1, 1998 and ending on the day prior
to the closing of the IPO, elect to cancel this Agreement prior to the
Commencement Date without any liability to any party, it being acknowledged that
no representation is being made with respect to whether or when the IPO may
close.
3. Position, Duties and Responsibilities.
(a) Position. The Executive hereby agrees to serve as Chief
Operating Officer and Vice President for Sales and Marketing of the Company. The
Executive shall devote his best efforts and substantially full time and
attention to the performance of services to the Business of the Company in his
capacity as an officer thereof and as may reasonably be requested by the Board.
The Company shall retain full direction and control of the means and methods by
which the Executive performs the above services. For purposes of this Agreement,
"Business" shall mean development, marketing, and sale of surface modifying
antimicrobials and biostatic products.
(b) Place of Employment. During the term of this Agreement,
the Executive shall perform the services required by this Agreement at the
Company's principal place of business in Atlanta, Georgia; provided, however,
that should the Company relocate its principal place of business to another city
or state, either party may terminate this Agreement in accordance with Section
5(e) below.
(c) Other Activities. Except with the prior written approval
of the Board (which the Board may grant or withhold in its sole and absolute
discretion), the Executive, during the Employment Period, will not (i) accept
any other employment, (ii) serve as an officer or on the board of directors or
similar body of any other business entity (except as otherwise set forth below)
that is or may be competitive with, or that might place him in a competing
position to, the Business of the Company or any of its affiliates, or (iii)
engage, directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that is or may be competitive with, or that
might place him in a competing position to, the Business of the Company or any
of its affiliates. Notwithstanding the foregoing, the Company agrees that the
Executive (or affiliates of the Executive) shall be permitted (i) to undertake
the activities set forth in Section 8, (ii) to make any other passive personal
investment that is not in a business activity that is directly or indirectly
competitive with the Business of the Company, (iii) to participate in industry
organizations, and (iv) to participate in charitable or educational activities.
4. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company shall
pay the Executive a salary of not less than $150,000 annually during the
Employment Period. All salary is to be paid consistent with the standard payroll
practices of the Company (e.g., timing of payments and standard employee
deductions, such as income tax withholdings, social security), but not less
frequently than monthly with each payment being no less than 1/12th of the
annual salary.
(b) Business Expenses. The Company shall reimburse the
Executive in connection with the conduct of the Company's business upon
presentation of sufficient tangible evidence of such expenditures consistent
with the Company's policies as in place from time to time.
(c) Stock Option Benefits. The Company agrees to grant the
Executive a non-qualified stock option to acquire up to 150,000 shares of the
Company's common stock at an exercise price equal to the offering price of the
Company's common stock in its IPO under the Company's 1997 Stock Incentive Plan
(the "Option Plan"). The option shall vest in three (3) equal installments of
50,000 each beginning on the first anniversary of the Commencement Date. In the
event the Executive is terminated without cause pursuant to Section 5(d) below
or the Executive terminates this Agreement for Good Cause pursuant to Section
5(e) below, then the vesting period shall be accelerated such that any option
shares that would have vested at the end of the year in which the Date of
Termination occurs (the "Termination Year") shall become immediately vested;
provided, however, that the Executive shall exercise all options vested upon
termination no later than 120 days following the last day of the Termination
Year. The Company agrees that within a reasonable time following the execution
of this Agreement it will execute an option agreement with the Executive (the
"Option Agreement") on these terms. Except as otherwise set forth in this
Section 4 and except with respect to the Company's obligations under this
Agreement with respect to the Option Agreement and the Option Plan, nothing
herein is intended, or shall be construed to require the Company to institute or
continue any, or any particular, plan or benefits.
(d) Health and Similar Benefits. The Executive shall be
entitled to participate in or receive health, welfare, life insurance, long-term
disability insurance and similar benefits as the Company provides generally from
time to time to its executives. In the event that the Company does not provide
health benefits to its executives as of the Commencement Date, then the Company
shall pay the medical insurance premiums of the Executive as currently provided
under his COBRA benefits for a period of ninety (90) days from the Commencement
Date.
(d) Fringe Benefits. The Executive will be entitled to fringe benefits as may be
determined or granted from time-to-time by the Board.
(e) Vacation. The Executive shall be entitled to three
vacation weeks (15 business days) in each calendar year on a pro-rated basis.
The Executive will be entitled to all Company holidays.
(g) Relocation Benefits. The Company shall reimburse the
Executive for the reasonable costs or relocating his principal residence and
transferring his household from his present domicile in Florida to Georgia. The
Company shall reimburse the Executive for any real estate commission incurred by
the Executive for the sale of his principal residence in Florida up to a maximum
of six percent (6%). The Company shall reimburse the Executive for temporary
living expenses in Atlanta, Georgia for a period not to exceed sixty (60) days
from the Commencement Date and not to exceed an amount of $6,000.00.
5. Termination. The Executive's employment hereunder shall be, or may
be, as the case may be, terminated under the following circumstances:
(a) Death. The Executive's employment hereunder shall
terminate upon his death.
(b) Disability. The Executive's employment hereunder shall
terminate on the Executive's physical or mental disability or infirmity which,
in the opinion of a competent physician selected by the Board, renders the
Executive unable to perform his duties under this Agreement for more than 120
days during any 180-day period.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause. "Cause" shall mean (i) Employee's material
breach of any of the terms of this Agreement, (ii) his conviction of a crime
involving moral turpitude or constituting a felony under the laws of any state,
the District of Columbia or of the United States, or (iii) his gross negligence,
willful misconduct or fraud in the performance of his duties hereunder.
(d) Employment-At-Will/Termination for Any Reason.
Notwithstanding the term of this Agreement having a duration of three years and
the annual salary to be paid to the Executive during each of the first three
full years of his employment with the Company, nothing in this Agreement should
be construed as to confer any right of the Executive to be employed by the
Company for a fixed or definite term. Subject to Section 6 hereof, the Executive
hereby agrees that the Company may dismiss him under this Section 5(d) without
regard (i) to any general or specific policies (whether written or oral) of the
Company relating to the employment or termination of its employees, or (ii) to
any statements made to the Executive, whether made orally or contained in any
document, pertaining to the Executive's relationship with the Company.
Notwithstanding anything to the contrary contained herein, including Sections 2
and 4, the Executive's employment with the Company is not for any specified
term, is at will and may be terminated by the Company at any time by delivery of
a notice of termination to the Executive, for any reason, with or without cause,
without liability except with respect to the payments provided for by Section 6.
(e) Voluntary Resignation. The Executive may voluntarily
resign his position and terminate his employment with the Company at any time
for any reason or for Good Cause. For purposes of this Agreement, "Good Cause"
shall mean, without the express written consent of Executive, the occurrence of
any of the following events unless such events are substantially corrected
within thirty (30) days following written notification by Executive to the
Company that he intends to terminate his employment hereunder for one of the
following reasons: (i) any material reduction or diminution in the duties,
responsibilities and status of Executive's position; (ii) a material breach by
the Company of any provision of this Agreement; and (iii) the occurrence of a
Change in Control. The Executive understands, acknowledges and agrees that any
voluntary resignation by him as a result of any personal or family reasons not
otherwise set forth in this Section 5(e) shall not constitute Good Cause. As
used in this Agreement, "Change of Control" means the occurrence of any of the
following: (i) the adoption of a plan relating to the liquidation or dissolution
of the Company, (ii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person
or group, other than Xxxxxxx Xxxxxxx or Xxxxxxx X. Xxxxx or their affiliates
(the "Principals"), becomes the "beneficial owner" (as such term is defined in
Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934), directly
or indirectly, of more than eighty percent (80%) of the total voting power of
the total outstanding voting stock of the Company on a fully diluted basis or
(iii) the consummation of the first transaction (including, without limitation,
any merger or consolidation) the result of which is that any person or group,
other than the Principals, becomes the beneficial owner, directly or indirectly,
of more than eighty percent (80%) of the total voting power of the total
outstanding voting stock of the Company. If the Executive elects to resign for
any reason or for Good Cause, the Executive shall deliver written notice of
resignation to the Company (the "Notice of Resignation"). The Notice of
Resignation shall set forth the date such resignation shall become effective
(the "Date of Resignation"), which date shall, in any event, be at least thirty
(30) days and no more than sixty (60) days from the date the Notice of
Resignation is delivered to the Company. At its option, the Company may reduce
such notice period to any length, upon ten (10) days written notice to the
Executive.
(f) Notice. Any termination of the Executive's employment by
the Company shall be communicated by written Notice of Termination to the
Executive. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(g) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death, (ii) if the
Executive's employment is terminated by reason of his disability, the date of
the opinion of the physician referred to in Section 5(b), above, (iii) if the
Executive's employment is terminated by the Company for Cause pursuant to
subsection 5(c) above, or without Cause by the Company pursuant to subsection
5(d) above, the date specified in the Notice of Termination and (iv) if the
Executive voluntarily resigns pursuant to subsection 5(e) above, the date of the
Notice of Resignation.
(h) Termination Obligations.
(i) The Executive hereby acknowledges and agrees that
all Personal Property and equipment furnished to or prepared by the
Executive in the course of or incident to his employment, belongs to
the Company and shall be promptly returned to the Company upon
termination of the Employment Period. "Personal property" includes,
without limitation, all books, manuals, records, reports, notes,
contracts, lists, formulae, blueprints, and other documents, or
materials, or copies thereof (including computer files), and all other
proprietary information relating to the business of the Company.
Following termination, the Executive will not retain any written or
other tangible material containing any proprietary information of the
Company.
(ii) Upon termination of the Employment Period, the
Executive shall be deemed to have resigned from all offices then held
with the Company or any affiliate.
(iii) The representations and warranties contained
herein and the Executive's obligations under Sections 5(h), 6, 7, 8, 9
and 15 through 18 shall survive termination of the Employment Period
and the expiration of this Agreement.
(i) Release. In exchange for the Company entering into the
Agreement, the Executive agrees that, at the time of his resignation or
termination from the Company, he will execute a release acceptable to the
Company of all liability of the Company and its officers, shareholders,
employees and directors to the Executive in connection with or arising out of
his employment with the Company, except with respect to any then-vested rights
under the Company's Option Plan and except with respect to any Severance
Payments which may be payable to him under the terms of the Agreement.
6. Compensation Upon Termination.
(a) Death. If the Executive's employment shall be terminated
pursuant to Section 5(a), the Company shall pay the estate of the Executive (the
"Estate") his base salary payable pursuant to Section 4(a) and benefits
described in Sections 4.1(d) and 4(e) through the Date of Termination. At the
Estate's expense, the Executive's dependents shall also be entitled to any
continuation of health insurance coverage rights under any applicable law.
(b) Disability. If the Executive's employment shall be
terminated by reason of disability pursuant to Section 5(c), the Executive shall
receive his base salary payable pursuant to Section 4(a) and benefits described
in Sections 4(d) and 4(e) up to the Date of Termination and for 90 days
thereafter; provided, however, that payments so made to the Executive during the
disability shall be reduced by the sum of the amounts, if any, payable to the
Executive at or prior to the time of any such payment under any disability
benefit plan of the Company. At the Executive's own expense, the Executive and
his dependents shall also be entitled to any continuation of health insurance
coverage rights under any applicable law.
(c) Cause. If the Executive's employment shall be terminated
for Cause pursuant to Section 5(c) hereof, the Company shall pay the Executive
his base salary pursuant to Section 4(a) through the Date of Termination. At the
Executive's own expense, the Executive and his dependents shall also be entitled
to any continuation of health insurance coverage rights under any applicable
law.
(d) Other Terminations by the Company. If the Company shall
terminate the Executive's employment without cause pursuant to Section 5(d)
hereof, the Company shall pay the Executive his then current base salary at the
Date of Termination pursuant to Section 4(a) for a period of the lesser of (i)
the remaining unexpired term of this Agreement or (ii) one (1) year from the
Date of Termination (the "Severance Payment"). The Company shall pay on behalf
of the Executive the cost of any continuation of the then existing health
insurance coverage of the Executive for a period of the lesser of (i) the
remaining unexpired term of this Agreement, (ii) one (1) year from the Date of
Termination or (iii) until the Executive obtains Full Time Employment (the
"Severance Benefit"). For purposes of this Agreement, "Full Time Employment"
shall mean employment at a subsequent full time employer or in connection with a
full time consulting practice or other self-employment or any full time venture
founded by the Executive.
(e) Voluntary Resignation. If the Executive terminates his
employment with the Company pursuant to Section 5(e) hereof for Good Cause, the
Company shall pay the Executive his Severance Payment and Severance Benefit.
(f) If the Executive terminates his employment with the
Company pursuant to Section 5(e) hereof without Good Cause, the Company shall
have no obligation to pay the Severance Payment or Severance Benefit or
otherwise compensate the Executive following the Date of Resignation.
(g) In the event of any Termination pursuant to Section 5, the
Executive shall be entitled to retain any and all options to purchase capital
stock of the Company granted to the Executive pursuant to the terms and
conditions of the Option Agreement that have vested, either by passage of time
or by virtue of acceleration pursuant to Section 4(c), as of the Date of
Termination.
(h) Any Severance Payment made pursuant to this Section 6
shall be payable in equal bi-monthly installments over the required duration set
forth in Sections 6(a) through 6(e).
(i) The continuing obligation of the Company to make the
Severance Payment to the Executive is expressly conditioned upon the Executive
complying and continuing to comply with his obligations and covenants under
Sections 7 and 8 of this Agreement following termination of employment with the
Company.
7. Confidentiality and Non-Solicitation Covenants.
(a) Confidentiality. In addition to the agreements set forth
in Section 5(h)(i), the Executive hereby agrees that the Executive will not,
during the Employment Period or at any time thereafter directly or indirectly
disclose or make available to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever, any Confidential Information
(as defined below). The Executive agrees that, upon termination of his
employment with the Company, all Confidential Information in his possession that
is in written or other tangible form (together with all copies or duplicates
thereof, including computer files) shall be returned to the Company and shall
not be retained by the Executive or furnished to any third party, in any form
except as provided herein; provided, however, that the Executive shall not be
obligated to treat as confidential, or return to the Company copies of any
Confidential Information that (i) was publicly known at the time of disclosure
to the Executive, (ii) becomes publicly known or available thereafter other than
by any means in violation of this Agreement or any other duty owed to the
Company by any person or entity or (iii) is lawfully disclosed to the Executive
by a third party. As used in this Agreement the term "Confidential Information"
means: information disclosed to the Executive or known by the Executive as a
consequence of or through his relationship with the Company, about the owners,
customers, employees, business methods, public relations methods, organization,
procedures or finances, including, without limitation, information of or
relating to owner or customer lists of the Company and its affiliates.
(b) Non-Solicitation. In the event of termination for any
reason other than pursuant to Section 5(e) or Section 5(e), the Executive agrees
that during the Employment Period and for one (1) year thereafter the Executive
will not, either on his own account or jointly with or as a manager, agent,
officer, employee, consultant, partner, joint venturer, owner or shareholder or
otherwise on behalf of any other person, firm or corporation, (i) carry on or be
engaged or interested directly or indirectly in, or solicit, the manufacture or
sale of goods or provision of services to any person, firm or corporation which,
at any time during the Employment Period has been or is a customer of or in the
habit of dealing with the Company in its Business, (ii) endeavor directly or
indirectly to canvas or solicit in competition with Company or to interfere with
the supply of orders for goods or services from or by any person, firm or
corporation which during the Employment Period has been or is a supplier of
goods or services to Company or (iii) directly or indirectly solicit or attempt
to solicit away from Company any of its officers or employees or offer
employment to any person who, on or during the six (6) months immediately
preceding the date of such solicitation or offer, is or was an officer or
employee of Company.
8. Covenant Not to Compete.
(a) The Executive agrees that during the Employment Period he
will devote substantially full-time to the Business of the Company and not
engage in any type of business in competition with the Business of the Company.
Subject to such full-time requirement and the restrictions set forth below in
this Section 8 and Section 3(c) above, the Executive shall be permitted to
continue his existing business investments and activities and may pursue
additional business investments; provided, however, that the Executive shall not
serve as officer or director of any public company resulting from such business
investments. The Executive agrees that he shall not (i) invest in, manage,
consult or participate in any way in any other business in competition with the
Business (in either an active or passive manner), (ii) participate in or advise
any business wherein activities similar to the Business are a relevant business
segment or (iii) act for or on behalf of any business that intends to enter or
participate in the activities similar to the Business, in each case unless the
independent members of the Company's Board of Directors determine that such
action is in the best interest of the Company. Notwithstanding the foregoing,
the Executive may purchase stock as a stockholder in any publicly traded
company, including any company which is involved in activities similar to the
Business; provided, however, that the Executive does not own (together or
separately or through his affiliates) more than 5% of any company (other than
the Company) in such business.
(b) The provisions of this Section 8 shall survive for one (1)
year following any termination of employment, except in the event of termination
pursuant to Section 5(d) or Section 5(e) herein.
9. Injunctive Relief and Enforcement. In the event of breach by the
Executive of the terms of Sections 5(h), 5(i), 7 or 8, and only following
mediation or attempted mediation as set forth in Section 16 below (unless the
Company is suffering irreparable injury, in which case Section 16 will not
prevent the Company from seeking injunctive relief against the Executive in any
court or forum), the Company shall be entitled to institute legal proceedings to
enforce the specific performance of this Agreement by the Executive and to
enjoin the Executive from any further violation of Sections 5(h), 5(i), 7 or 8
and to exercise such remedies cumulatively or in conjunction with all other
rights and remedies provided by law and not otherwise limited by this Agreement.
The Executive acknowledges, however, that the remedies at law for any breach by
him of the provisions of Sections 5(h), 5(i), 7 or 8 may be inadequate. In
addition, in the event the agreements set forth in Sections 5(h), 5(i), 7 or 8
shall be determined by any court of competent jurisdiction to be unenforceable
by reason of extending for too great a period of time or over too great a
geographical area or by reason of being too extensive in any other respect, each
such agreement shall be interpreted to extend over the maximum period of time
for which it may be enforceable and to the maximum extent in all other respects
as to which it may be enforceable, and enforced as so interpreted, all as
determined by such court in such action.
10. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered when
transmitted by telecopy with receipt confirmed, or one day after delivery to an
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Executive: Xxxxxxx X. Xxxxxx
===========================================
With a copy to: Capers, Dunbar, Xxxxxxx & Xxxxxxxx
1500 First Union Bank Building
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
If to the Company: BioShield Technologies, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxx X-000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
With a copy to: Xxxxxxxxx, Xxxxxxx & Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect; provided, however, that if any one or more of the terms contained in
Sections 5(h), 7 or 8 hereto shall for any reason be held to be excessively
broad with regard to time, duration, geographic scope or activity, that term
shall not be deleted but shall be reformed and constructed in a manner to enable
it to be enforced to the extent compatible with applicable law.
12. Assignment. This Agreement may not be assigned by the Executive,
but may be assigned by the Company to any successor to its Business and will
inure to the benefit and be binding upon any such successor.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Headings. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
15. Choice of Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws of the State of
Georgia, except with respect to matters of law concerning the internal corporate
affairs of any corporate entity which is a party to or the subject of this
Agreement, and as to those matters the law of the jurisdiction under which the
respective entity derives its powers shall govern.
16. Mediation. Subject to any irreparable injury being suffered by the
Company giving rise to the right of the Company to seek injunctive relief
against the Executive pursuant to Section 9 hereof, in the event that there
shall be a dispute among the parties arising out of or relating to this
Agreement, or the breach thereof, the parties agree that such dispute shall be
resolved by mediation in Atlanta, Georgia, before a mediator and on terms and
conditions mutually acceptable to the parties; provided, however, that if the
parties cannot agree on the terms and conditions of such mediation, such terms
and conditions shall be established by the mediator. The fees and expenses
relating to such mediation, including reasonable attorneys' fees, shall be borne
equally by the parties. If mediation fails or is not accomplished within 180
days of the dispute, the parties shall be free to pursue all legal and equitable
remedies available.
17. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE COMPANY
IS AWARDED ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED TO THIS
AGREEMENT, A BREACH OF ANY COVENANT CONTAINED IN THIS AGREEMENT (WHETHER EXPRESS
OR IMPLIED BY EITHER LAW OR FACT), OR ANY OTHER CAUSE OF ACTION BASED IN WHOLE
OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, SUCH DAMAGES SHALL
BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I) PUNITIVE DAMAGES, AND
(II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST PROFITS AND OTHER
INDIRECT OR SPECULATIVE DAMAGES). THE MAXIMUM AMOUNT OF DAMAGES THAT THE
EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE AMOUNT EQUAL TO ALL AMOUNTS
OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS AGREEMENT THROUGH ITS
NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD, PLUS INTEREST ON ANY DELAYED
PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY APPLICABLE LAW FROM AND AFTER
THE DATE(S) THAT SUCH PAYMENTS WERE DUE.
18. WAIVER OF JURY TRIAL. TO THE EXTENT APPLICABLE, EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement and
understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Executive and the Company (by
duly adopted resolution of its Board of Directors).
20. The Executive's Acknowledgment. The Executive acknowledges (a) that
he has had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and (b) that he has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
21. Condition Precedent. This Agreement is conditioned upon the closing
of the IPO on or before November 15, 1998. In the event the IPO is not
consummated on or before November 30, 1998, then either party shall have the
option to cancel this Agreement pursuant to Section 2 herein and this Agreement
shall be void and of no further force or effect.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date and year first above written.
"COMPANY"
BIOSHIELD TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
"EXECUTIVE"
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx X. Xxxxxx
