EMPLOYMENT CONTRACT
EXHIBIT
10.55
This
Employment Contract (“Contract”) is entered into by and between Amarillo
Biosciences, Inc., a Texas corporation (“Employer”) and Xxxxx Xxxxxxx
(“Employee”). Employer hereby employs Employee, and Employee accepts employment,
on the following terms and conditions.
ARTICLE
I
TERM
OF EMPLOYMENT
1.0. By this Contract,
Employer employs Employee, and Employee accepts employment with Employer
starting April 15, 2008 to continue until this Contract shall have been
terminated by either party by the serving of three months’ advance, written
notice of such termination upon the other party.
ARTICLE
II
COMPENSATION
2.0. As compensation for all
services rendered under this Contract, Employee shall be paid by Employer a
salary of TWO HUNDRED TEN THOUSAND DOLLARS ($210,000.00) per YEAR, payable at
least monthly during the term of this Contract. The amount paid is to be
prorated for any partial employment period. Furthermore, Employee
recognizes that Employer has a cash shortage, and Employee will accept payment
in Employer’s voting common stock, which stock shall not be registered, until
such time that funds have been raised to pay Employee in
cash. Employee recognizes that Employer may experience periodic cash
shortages and agrees that he will take stock in lieu of cash in the future, if
the payment of Employee by Employer in cash would cause Employer to default, or
to be likely to default, on other obligations.
ARTICLE
III
DUTIES
OF EMPLOYEE AND JOB DESCRIPTION
3.0. Employee is employed as
Chief Operating Officer of Employer, and shall work at the corporate offices in
Amarillo, Texas or from his home. Employee shall perform the duties
(below) of Chief Operating Officer; reporting to the President &
CEO.
3.1. Summary of Duties and
Responsibilities: The Chief Operating Officer and Director of
Research and Development will focus on fund raising and develop, maintain and
promote the vision of the company. The COO will direct the functions of research
and development (R&D), sales and marketing, business development /
licensing, global commercial development, production and administration. The COO
will seek strategic alliances and business opportunities with other companies
and organizations. The COO will lead the development of the strategic plan and
establish objectives for all functions. The COO will interact with regulatory
affairs to ensure processes remain in control and product quality is maintained.
The COO will evaluate all operations for opportunities to improve quality and
productivity, resulting in efficiencies and cost savings.
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Duties
may be further set fourth in the Bylaws of Employer, or by resolution of the
Board of Directors of Employer. Employee shall devote his entire productive
time, ability, attention and energies to the business of Employer during the
term of this Contract, and during such time, Employee shall not directly or
indirectly render any services of a business, commercial or professional nature
to any other person or organization, whether or not for compensation, without
the prior consent of the Board of Directors of Employer.
ARTICLE
IV
EMPLOYEE
BENEFITS
4.0. If Employer provides
hospital, surgical, medical, dental, group life insurance, or other fringe
benefits to its employees, or any of them, at any time during the term of this
Contract, Employee shall be entitled to participate in such benefits, on terms
and conditions at least as favorable as those accorded to other employees of
Employer, subject to insurability. Employee shall be entitled an
amount of cash equal to what might otherwise be applied to the Company’s group
health plan to allow Employee to keep his current health plan.
ARTICLE
V
REIMBURSEMENT
OF EXPENSES INCURRED BY EMPLOYEE
5.0. Employee is authorized to
incur reasonable business expenses for promoting the business of Employer,
including expenditures for entertainment and travel. Employer will reimburse
Employee for all such expenses upon Employee’s presentation of written expense
vouchers, itemizing such expenditures.
ARTICLE
VI
PROPERTY
RIGHTS OF PARTIES
6.0. Employee has had access
to and become familiar with, and during the term of continued employment, will
continue to have access to and become familiar with, various trade secrets,
consisting of formulas, devices, secret inventions, processes, compilations of
information, records, and specifications owned by Employer and regularly used in
the operation of Employer. Employee shall not disclose any such trade secrets
directly or indirectly nor use them in any way either during the term of this
Contract or at any time thereafter except as required in the course of his
employment. All files, records, documents, drawings, specifications, equipment
and similar items relating to the business of Employer, whether or not prepared
by Employee, shall remain the exclusive property of Employer and shall not be
removed from the premises of Employer under any circumstances, except in pursuit
of the trade and business of Employer
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6.1. On the termination of
employment or whenever requested by Employer, Employee shall immediately deliver
to Employer all property in Employee’s possession or under Employee’s control
belonging to Employer, including but not limited to all accounting records,
computer terminals and drives, tapes, disks, or other data storage mechanisms,
accounting machines, and all office furniture and fixtures, supplies and other
personal property in the possession or under the control of Employee, in good
condition, ordinary wear and tear excepted, and including without limitation all
correspondence files, research date, and patent information or data, of every
sort.
6.2. Employee
hereby promises and agrees to convey and assign to Employer any and all other
rights or interests he may now have in and to trade secrets, formulas, devices,
inventions, processes, patents, applications, continuations, copyrights,
trademarks, compilations of information, records, specifications, rights,
interests and data of every other sort, affecting or pertaining directly or
indirectly to the business of Employer as now conducted, or to the patents,
trade secrets, and other rights not owned by Employer. In further clarification
of the preceding sentence, it is not Employee's intention to retain
individually any such rights or interests, other than those heretofore
specifically excepted. Except for the rights heretofore excepted, Employee does
not claim any rights or interests in and to trade secrets, formulas, devices,
inventions, processes, patents, applications, continuations, copyrights,
trade-marks, compilations of information, records, specifications, rights,
interests and data of any other sort, affecting or pertaining directly or
indirectly to the business of Employer as now conducted, or to the patents,
trade secrets, and other rights now owned by Employer.
6.3. Employee
agrees that he will promptly and fully inform and disclose to Employer all
inventions, designs, improvements and discoveries that Employee may have during
the term of this Contract that pertain or relate to the business of Employer or
to any experimental work carried on by Employer, whether conceived by Employee
alone or with others and whether or not conceived during regular working hours.
All such inventions, designs, improvements and discoveries shall be the
exclusive property of Employer. Employee shall assist Employer in obtaining
patents on all such inventions, designs, improvements and discoveries
deemed patentable by Employer, and shall execute all documents and do all things
necessary to obtain such patents for Employer or Employer.
6.4. It is contemplated that
Employee in the course of his employment will be engaged in work involving
various patents and secret processed owned by Employer. All experiments,
developments, formulas, patterns, devices, secret inventions and compilations of
information, records and specifications regarding such matter are trade secrets,
which Employee shall not disclose directly or indirectly to anyone other than
Employer or their agents, or use in any way either during the term of this
Contract or at any time after the termination of this Contract, except as
required in the course and scope of his employment.
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6.5. During the term of this
Contract, Employee shall not directly or indirectly either as an owner employee,
employer, consultant, agent, principal, partner, stock holder, corporate office,
director, or in any other individual or representative capacity engage or
participate in any business that is in competition in any manner whatsoever with
the business of Employer, provided, however, that Employee may without
restriction invest in professionally managed mutual funds and Employee may
purchase, own and sell stock or other securities, as long as Employee is not
directly or indirectly through one or more intermediaries in control of or
controlled by or under common control with any such company. Furthermore, upon
the termination of this Contract, Employee expressly agrees not to engage or
participate directly or indirectly in any business that is in competition with
the business of Employer, for a period of three (3) years; and further provided,
that no business will be considered to be in competition with Employer unless
its business relates to the manufacture, sale, testing or development of
products containing oral
interferon alpha. Employer and Employee
recognize and agree that Employer may obtain or develop additional technologies
from time to time, and if that is the case, Employer may expand the terms of
this non-competition provision by giving written notice to Employee of the
additional technologies that are to be protected.
6.6. In the event of a breach
of Employee of any provisions of this Article VI, the parties hereto agree that
Employer, in addition to any other remedies to which Employer may be entitled at
law, shall be entitled to the remedy of specific performance, it being
understood and agreed by the parties hereto that damages may be difficult to
ascertain, and that an award of damages would in all probability not
sufficiently compensate Employer for any breach by Employee of such
provisions.
ARTICLE
VII
STOCK
OPTION
7.0. Employer hereby grants to
Employee non-transferable stock options to purchase 700,000 shares of Employer’s
voting common stock, subject to the terms and conditions hereinafter set forth
in this Article VII. Where required by applicable laws or regulation, or by
administrative necessity, the Board of Directors of Employer may prescribe
additional terms and conditions regarding the issuance and administration of the
stock options, as long as such additional terms and conditions do not conflict
with the terms and conditions hereinafter set forth.
7.1. The options granted
pursuant to Section 8.0 above, shall be exercisable as
follows:
a.
as to 100,000 shares, between April 15, 2008 and April 14, 2013;
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b.
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as
to 200,000 shares, between April 15, 2009 and April 14, 2014,
inclusive;
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c.
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as
to 200,000 shares, between April 15, 2010 and April 14, 2015, inclusive;
and
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d.
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as
to 200,000 shares, between April 15, 2011 and April 14, 2016
inclusive
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The
exercise price for all options shall be the closing price of ABI stock on April
15, 2008 or $0.30, whichever is greater.
The foregoing notwithstanding, no
options which are not already theretofore exercisable shall become exercisable
at any time after the termination of Employee’s full time active employment with
Employer.
7.2. In the event
of death or complete disability of Employee, or a voluntary termination of
employment (which shall include the resignation of Employee, or the giving of a
notice of termination of this Contract, or a successor or amended employment
contract, by Employee pursuant to Section 1.0, above), Employee (or if
applicable, Employee’s estate or personal representative) shall have a period of
sixty (60) days within which to exercise any matured (exercisable) options which
have not theretofore been exercised; and after the expiration of said sixty (60)
day period, such options shall expire and be of no further force or effect. In
the event of notice of a pending or completed Change in Control, as hereinafter
defined, all options held by Employee under this Employment Contract shall be
immediately exercisable, and Employee shall thereupon have a period of sixty
(60) days within which to exercise any or all of such options; and after the
expiration of said sixty (60) day period, such options shall expire and be of no
further force or effect.
For
purposes of this Agreement, “Change in Control” shall mean when any entity,
person or group other than Employer or a Subsidiary of Employer or Hayashibara
Biochemical Laboratories, Inc. or an affiliate thereof acquires shares of
Employer in a transaction or series of transactions that result in such entity,
person or group directly or indirectly owning beneficially fifty-one percent
(51%) or more of Employer’s outstanding shares of voting common
stock.
7.3. The stock options herein
granted are not qualified or incentive stock options within the meaning of the
Internal Revenue Code of 1986, or successor provisions. Employer has
provided no tax advice to Employee with respect to the taxation of the grant
and/or exercise of such options, and/or the disposition of the underlying
shares, and Employee has been advised to consult with his own tax advisor
regarding such matters. Furthermore, the underlying shares will not
be registered with the SEC, and will therefore be “Restricted Securities” within
the meaning of Rule 144, promulgated under the Securities Act of
1933. Employer cannot insure that its securities will continue to
qualify for sale or resale under Rule 144, and in the event Rule 144 should at
some time be no longer available with regard to such sales, Employee might find
it difficult or impossible to sell the option shares.
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ARTICLE
VIII
ENTIRETY
OF AGREEMENT; AMENDMENTS; SURVIVAL
8.0. This Contract supersedes
all other agreements, either oral or in writing, between the parties to this
Contract with respect to the employment of Employee by Employer. This Contract
contains the entire understanding of the parties and all of the covenants and
agreements between the parties with respect to such employment.
8.1. This Contract may be
amended only by an instrument signed in writing by both parties; and provided
further, that no amendment may be executed on behalf of Employer, except
pursuant to a resolution of the Board of Director of Employer.
8.2. The following provisions
shall survive the expiration of this Agreement: ARTICLES VI, VII, and
VIII.
IN
WITNESS WHEREOF, this Contract is executed by the undersigned as of this 10 day
of April, 2008.
EMPLOYEE: EMPLOYER:
AMARILLO BIOSCIENCES,
INC.
/s/
Xxxxx
Xxxxxxx By:
/s/
Xxxxxx X. Xxxxxxx
Xxxxx
Xxxxxxx Xxxxxx
X. Xxxxxxx, President, CEO
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