EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into
as of January 1, 2003, by and between Xxxx Xxxx (the "Executive") and Gender
Sciences Inc., a New Jersey corporation (the "Company").
1. Employment. The Company hereby agrees to Executive's employment, and
Executive hereby accepts such employment and agrees to perform his duties and
responsibilities, in accordance with the terms and conditions hereinafter set
forth.
1.1 Employment Term. The term of Executive's employment under
this Agreement shall commence as of January 1, 2003 (the "Effective Date") and
shall continue until the third (3rd) anniversary of the Effective Date, unless
earlier terminated in accordance with Section 3 or Section 4 hereof. The period
commencing as of the Effective Date and ending on the third (3rd) anniversary of
the Effective Date, or such later date to which the term of Executive's
employment under the Agreement shall have been extended is hereinafter referred
to as the "Employment Term."
1.2 Duties and Responsibilities. Executive shall serve in the
position of Executive Vice President. During the Employment Term, Executive
shall perform all duties and accept all responsibilities incident to such
position or other appropriate duties as may be assigned to her by the Company's
Board of Directors. Executive shall devote her full productive time and best
efforts to the performing of his duties and responsibilities under this Section
1.2.
1.3 No Conflicting Obligations. The Executive represents and
warrants to the Company that he is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with his obligations under this
Agreement. The Executive represents and warrants that he will not use or
disclose, in connection with his Employment, any trade secrets or other
proprietary information or intellectual property in which the Executive or any
other person has any right, title or interest and that his Employment will not
infringe or violate the rights of any other person. The Executive represents and
warrants to the Company that she has returned all property and confidential
information belonging to any prior employer.
1.4 Base Salary. For all of the services rendered by Executive
hereunder the Company shall pay Executive an annual base salary (his "Base
Salary") of one hundred and ten thousand Dollars ($110,000), payable in
installments at such times as the Company shall pay its other senior level
executives (but in any event no less often than monthly). The Base salary shall
be ninety nine thousand Dollars ($99,000) starting January 1, 2003 and may be
increased to one hundred and ten thousand Dollars ($110,000) on July 1, 2003
based upon review and the continued progress of the Company. The Base Salary
shall be reviewed by the Company annually with an increase not to exceed more
than ten percent (10%) in any year, which increase shall be at the discretion of
the Board of Directors and approved by the Compensation Committee.
1.5 Bonus. In addition to the Base Salary, the Executive shall
receive an annual incentive bonus (the "Annual Bonus") in an amount up to (i)
50% of her Base Salary if the Company achieves agreed upon targets. The Board of
Directors shall fix the targets for each year during the Employment Term. These
targets may include gross profit %, net profit, EBITDA, stock price,
budget/sales forecast, expense control, an operating budget by product, and a
capital raise. The Annual Bonus may be awarded half in cash, half in restricted
stock or stock options. The Compensation Committee will approve the Annual Bonus
Plan and Bonus Pool. The bonus program for the year beginning Janaury 1, 2003 is
attached hereto as "Exhibit A".
1.6 Automobile Allowance. During the Employment Term,
Executive shall be entitled to receive a monthly automobile allowance, payable
monthly in advance, which shall include all costs attendant to the use of the
automobile, including, but not limited to, liability and property insurance
coverage, costs of maintenance and fuel. Notwithstanding the foregoing, the
amount of the monthly automobile allowance shall be reviewed by the Company
annually. In no event shall the monthly auto allowance exceed $1,000.00.
1.7 Benefits. The Executive will be eligible to participate in
such employee benefit plans of the Company that may be in effect from time to
time and that are offered to the Company's senior level executives as a group or
to its employees generally, as such plans or programs may be in effect from time
to time, including without limitation, medical insurance.
1.8 Reimbursement of Expenses; Vacation. During her
Employment, the Executive shall be authorized to incur necessary and reasonable
travel, entertainment and other business expenses in connection with his duties
hereunder. The Company shall reimburse the Executive for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies for senior
level executives as a group. Executive shall be entitled to up to four (4) weeks
paid vacation per year and paid holidays in accordance with the Company's normal
personnel policies.
1.9 Tax Withholding. The Company may withhold from any
compensation or other benefits payable under this Agreement all federal, state,
city or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
2. Confidentiality and Non-Compete. The Executive has entered into a
Confidentiality and Non-Compete Agreement with the Company which includes a
Non-Solicitation and Non-Disturbance section, which is attached hereto as
Exhibit B and incorporated herein by this reference.
3. Termination. The Employment Term shall terminate upon the occurrence
of any one of the following events:
3.1 Disability. The Company may terminate the Employment Term
if Executive is unable substantially to perform his duties and responsibilities
hereunder to the full extent required by the Company by reason of illness,
injury or incapacity for three (3) consecutive months, or for more than six (6)
months in the aggregate during any period of twelve (12) calendar months. In the
event of such termination, the Company shall pay Executive her Base Salary
through the date of such termination. In addition, Executive shall be entitled
to the following: (i) a pro rata Annual Bonus, if applicable, for the year of
termination; (ii) any other amounts earned, accrued or owing but not yet paid
under Section 1 above; (iii) continued participation for the remaining
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Employment Term in those benefits in which she was participating on the date of
termination which, by their terms, permit a former employee to participate; and
(iv) any other benefits in accordance with applicable plans and programs of the
Company. In such event, the Company shall have no further liability or
obligation to Executive for compensation under this Agreement except as
otherwise specifically provided in this Agreement. Executive agrees, in the
event of a dispute under this Section 3.1, to submit to a physical examination
by a licensed physician selected by the Company. The Company agrees that
Executive shall have the right to have her personal physician present at any
examination conducted by the physician selected by the Company.
3.2 Cause. The Company may terminate the Employment Term, at
any time, for "Cause," in which event all payments under this Agreement shall
cease, except for Base Salary to the extent already accrued. For purposes of
this Agreement, "Cause" shall mean:
(a) An unauthorized use or disclosure by the
Executive of the Company's confidential information or trade secrets, which use
or disclosure causes material harm to the Company;
(b) A material breach by the Executive of any
agreement between the Executive and the Company;
(c) A material failure by the Executive to comply
with the Company's written policies or rules;
(d) The Executive's gross negligence or willful
misconduct; or
(e) A failure by the Executive to perform assigned
duties after receiving written notification of such failure from the Board of
Directors; or
(f) Conviction of a crime which is classified as a
felony.
The foregoing shall not be deemed an exclusive list of all
acts or omissions that the Company may consider as grounds for the termination
of the Executive's Employment without Cause.
3.3 Termination by the Company Without Cause. The Company may
terminate the Employment Term, at any time, without Cause. In the event
Executive is terminated without Cause, Executive shall be entitled to receive:
(i) any amounts earned, accrued or owing but not yet paid pursuant to Section 1
above; (ii) a lump sum severance payment in an aggregate amount equal the sum of
one (1) times Executive's then-current Base Salary for the remainder of the
Executive's Employment Term; (iii) a continuation of all benefits for which
Executive is eligible to participate as of the Termination Date in a fashion
which is similar to those which Executive is receiving immediately prior to the
Termination Date for a period of one (1) year after such termination without
cause; and (iv) all unvested stock options held by Executive shall accelerate
and become immediately exercisable, and any restrictions on restricted stock
held by Executive shall lapse. Amounts payable and benefits to be received
pursuant to subsections (i), (ii), (iii) and (iv) of the preceding sentence will
be collectively referred to herein as the "Severance Package."
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3.4 Constructive Termination Without Cause.
(a) Constructive Termination Without Cause shall mean
a termination of the Executive's employment at his initiative following the
occurrence, without the Executive's written consent, of one or more of the
following events:
i) a material diminution in Executive's
duties, title, responsibilities, authority as Chairman or the assignment to
Executive of duties which are materially inconsistent with his duties or which
materially impair the Executive's ability to function in his then current
position; and
(b) In the event of a Constructive Termination
Without Cause, Executive shall be entitled to receive the Severance Package.
4. Payments Upon a Change in Control.
4.1 Definitions. For all purposes of this Section 4, the
following terms shall have the meanings specified in this Section 4.1 unless the
context clearly otherwise requires:
(a) "Change in Control" means:
i) a merger or acquisition in which the
Company is not the surviving entity, except for a transaction the principal
purpose of which is to change the State of the Company's incorporation;
ii) a stockholder approved sale, transfer
or other disposition of all or substantially all of the assets of the Company;
iii) a transfer of all or substantially all
of the Company's assets pursuant to a partnership or joint venture agreement or
similar arrangement where the Company's resulting interest is less than fifty
percent (50%);
iv) any reverse merger in which the Company
is the surviving entity but in which fifty percent (50%) or more of the
Company's outstanding voting stock is transferred to holders different from
those who held the stock immediately prior to such merger;
v) on or after the date hereof, a change
in ownership of the Company through an action or series of transactions, such
that any person is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing fifty percent (50%) or more of the
securities of the combined voting power of the Company's outstanding securities;
or
vi) a majority of the members of the Board
are replaced during any twelve-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Board prior to the
date of such appointment of election.
(b) "Termination Date" shall mean the date of receipt
of a Notice of Termination of this Agreement or any later date specified
therein.
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(c) "Termination of Employment" shall mean the
termination of Executive's actual employment relationship with the Company.
(d) "Termination Upon a Change in Control" shall mean
a Termination of Employment upon or within one (1) year after a Change in
Control initiated by the Company for any reason permitted under this Agreement
other than (x) the Executive's disability, as described in Section 3.1 hereof,
(y) death, or (z) for "Cause," as described in Section 3.3 hereof.
4.2 Notice of Termination. Any Termination upon a Change in
Control shall be communicated by a Notice of Termination to the other party
hereto given in accordance with Section 11 hereof. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) briefly
summarizes the facts and circumstances deemed to provide a basis for a
Termination of Employment and the applicable provision hereof, and (iii) if the
Termination Date is other than the date of receipt of such notice, specifies the
Termination Date (which date shall not be more than fifteen (15) days after the
giving of such notice).
4.3 Severance Compensation upon Termination. In the event of
Executive's Termination upon a Change in Control, Executive shall be entitled to
receive the Severance Package. In such event, the Company shall have no further
liability or obligation to Executive for compensation under this Agreement
except as otherwise specifically provided in this Agreement.
5. Acceleration of Equity Incentives. As of the occurrence of the
termination of Executive's employment by the Company without Cause, by Executive
in the event of a Constructive Termination Without Cause, or a termination upon
a Change in Control, notwithstanding any provision in the Gender Sciences Inc.
200_ Omnibus Equity Incentive Plan (or any agreement entered into thereunder or
any successor stock compensation plan or agreement thereunder) to the contrary,
any stock option then held by Executive shall be exercisable and any restriction
on any restricted stock then held by Executive shall lapse or be deemed fully
satisfied, as applicable.
6. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in or rights under any
benefit, bonus, incentive or other plan or program provided by the Company or
any affiliate and for which Executive may qualify; provided, however, that if
Executive becomes entitled to and receives all of the payments provided for in
this Agreement, Executive hereby waives his right to receive payments under any
severance plan or similar program applicable to all employees of the Company.
7. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
8. Release. Receipt of the Severance Package pursuant to Sections 3.4,
3.5 or 4.3 shall be in lieu of all other amounts payable by the Company to
Executive and in settlement and complete release of all claims Executive may
have against the Company other than those arising pursuant to payment of the
Severance Package. Executive acknowledges and agrees that execution of a general
release of claims in favor of the Company setting forth the terms of this
Section 8 and otherwise reasonably acceptable to the Company and Executive shall
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be a condition precedent to the Company's obligation to pay the Severance
Package to Executive. The cash portion of the Severance Package shall be due and
payable by the Company within thirty (30) days after applicable termination of
the Employment Period.
9. Arbitration; Expenses.
(a) In the event of any dispute under the provisions
of this Agreement other than a dispute in which the sole relief sought is an
equitable remedy such as an injunction, the parties shall be required to have
the dispute, controversy or claim settled by arbitration in the City of
Englewood, New Jersey in accordance with the commercial arbitration rules then
in effect of the American Arbitration Association, before a panel of three
arbitrators, two of whom shall be selected by the Company and Executive,
respectively, and the third of whom shall be selected by the other two
arbitrators. Any award entered by the arbitrators shall be final, binding and
nonappealable and judgment may be entered thereon by either party in accordance
with applicable law in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable. The fees of the American
Arbitration Association and the arbitrators and any expenses relating to the
conduct of the arbitration (including reasonable attorneys' fees and expenses)
shall be paid as determined by the arbitrators.
(b) In the event of an arbitration or lawsuit by
either party to enforce the provisions of this Agreement following a Change in
Control, the party that prevails on any material issue which is the subject of
such arbitration or lawsuit, shall be entitled to recover from the other party
the reasonable costs, expenses and attorneys' fees the party has incurred
attributable to such issue.
10. Notices. Any notice required to be given hereunder shall be
delivered personally, shall be sent by first class mail, postage prepaid, return
receipt requested, by overnight courier, or by facsimile, to the respective
parties at the addresses given below, which addresses may be changed by the
parties by notice conforming to the requirements of this Agreement.
If to the Company, to: Gender Sciences Inc.
Attn: Xxxx Xxxxx & Board Members
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
If to Executive, to: Xxxx Xxxx
0 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: 201-569-1188
Cc: Board of Directors
Chairman, Compensation Committee
Chairman, Audit Committee
Any such notice deposited in the mail shall be conclusively deemed delivered to
and received by the addressee four (4) days after deposit in the mail, if all of
the foregoing conditions of notice shall have been satisfied. All facsimile
communications shall be deemed delivered and received on the date of the
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facsimile, if (a) the transmittal form showing a successful transmittal is
retained by the sender, and (b) the facsimile communication is followed by
mailing a copy thereof to the addressee of the facsimile in accordance with this
paragraph. Any communication sent by overnight courier shall be deemed delivered
on the earlier of proof of actual receipt or the first day upon which the
overnight courier will guarantee delivery.
11. Contents of Agreement; Amendment and Assignment.
(a) This Agreement supersedes all prior agreements
and sets forth the entire understanding between the parties hereto with respect
to the subject matter hereof and cannot be changed, modified, extended or
terminated except upon written amendment approved by the Company and executed on
its behalf by a duly authorized officer.
(b) All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, executors, administrators, legal representatives, successors
and assigns of the parties hereto, except that the duties and responsibilities
of Executive hereunder are of a personal nature and shall not be assignable or
delegable in whole or in part by Executive.
12. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision or application in any
other jurisdiction. If any provision is held void, invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other circumstances.
13. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by a party in exercising any right, remedy or power hereunder
or existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by such party from time to time and
as often as may be deemed expedient or necessary by such party in its sole
discretion.
14. Beneficiaries; References. Executive shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death by giving the Company written notice thereof. In the event of
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
15. Captions. All section headings and captions used in this Agreement
are for convenience only and shall in no way define, limit, extend or interpret
the scope of this Agreement or any particular section hereof
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16. Executed Counterparts. This Agreement may be executed in one or
more counterparts, all of which when fully-executed and delivered by all parties
hereto and taken together shall constitute a single agreement, binding against
each of the parties. To the maximum extent permitted by law or by any applicable
governmental authority, any document may be signed and transmitted by facsimile
with the same validity as if it were an ink-signed document. Each signatory
below represents and warrants by his signature that he is duly authorized (on
behalf of the respective entity for which such signatory has acted) to execute
and deliver this instrument and any other document related to this transaction,
thereby fully binding each such respective entity.
17. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of New Jersey without giving effect to any conflict
of laws provisions.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
"Company" GENDER SCIENCES INC.
a New Jersey Corporation
/s/ XXXXXX XXXXX
----------------------------------------------------
Xxxxxx Xxxxx, Chairman
"Executive" /s/ XXXX X. XXXX
----------------------------------------------------
[Signature Page to Employment Agreement]
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EXHIBIT A
2003 BONUS PLAN
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GENDER SCIENCES INC.
2002 BONUS PLAN
1. PURPOSES OF THE PLAN
The Gender Sciences Inc. 2002 Bonus Plan (the "Plan") is
established to promote the interests of Gender Sciences Inc., a New Jersey
corporation (the "Company"), by creating an incentive program to (a) attract and
retain employees who will strive for excellence and (b) motivate those
individuals to set and achieve above-average objectives by providing them with
rewards for contributions to the operating profits and earning power of the
Company.
2. ADMINISTRATION OF THE PLAN
The Compensation Committee of the Board of Directors of the
Company (the "Committee") shall administer the Plan and adopt rules and
regulations to implement the Plan. Decisions of the Committee shall be final and
binding on all parties who have an interest in the Plan.
3. SELECTION OF PARTICIPANTS
(a) Service Requirement. An individual shall be eligible
to participate in the Plan if he or she has been an Employee for a period of not
less than twelve (12) consecutive months at the close of the fiscal year for
which a bonus is payable. An individual who is on a leave of absence shall
remain eligible, but his or her award shall be adjusted as provided in Section
4(d).
(b) Definitions. For purposes of the Plan:
(i) Employee. An individual shall be considered
an "Employee" as long as such individual remains employed on a full-time basis
by the Company or one or more of its Subsidiaries.
(ii) Subsidiary. Each corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company shall
be considered to be a "Subsidiary" of the Company, provided each such
corporation (other than the last corporation in the unbroken chain) owns, at the
time of determination, stock possessing more than 50% of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
4. BONUS AWARDS
(a) Bonus Pool. The aggregate bonus pool for a fiscal
year shall not exceed 10% of Consolidated Operating Income for such fiscal year,
and the actual amount shall be determined by the Committee in its sole
discretion. If the number does exceed 10% of operating income, the difference
shall be paid in stock. "Consolidated Operating Income" means the Company's
consolidated operating income for the fiscal year. The calculation of
Consolidated Operating Income shall be in accordance with generally accepted
accounting principles (including FAS 14), adjusted to exclude the following:
(i) Any Matching Contributions made to the
Company's 401(k) Savings Plan for such fiscal year;
(ii) All items of income, gain, loss or expense
for such fiscal year determined by the Committee to be extraordinary or unusual
in nature and not incurred or realized in the ordinary course of business,
whether or not such items would otherwise be considered to be extraordinary or
unusual in accordance with the standards established by Opinion No. 30 of the
Accounting Principles Board; and
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(iii) Any profit or loss attributable to the
business operations of any entity acquired by the Company during such fiscal
year.
Operating profit shall not be adjusted for a minority interest
holder's share of a consolidated subsidiary's operating income or loss.
(b) Allocations. The Committee shall determine the bonus
pool to be paid under the Plan for the Company's fiscal year in accordance with
Subsection (a) above. The aggregate bonus pool so determined shall be allocated
among the eligible Employees in amounts determined by the Committee upon the
satisfaction of one or more performance requirements determined in advance by
the Committee. Such performance requirements may include the requirement that
the performance of the Company or a business unit of the Company for a specified
period of one or more years equal or exceed a target determined in advance by
the Committee. The Company's independent auditors shall determine such
performance. Such target shall be based on one or more criteria set forth in
Appendix A. The Committee shall identify such target not later than the 90th day
of such period.
(c) Entitlement to Bonus. No eligible Employee shall earn
any portion of a bonus award under the Plan until the last day of the Company's
fiscal year and only if there has been an allocation to such Employee pursuant
to Subsection (b) above. If an eligible Employee receives no allocation under
Subsection (b) above, then such Employee shall not be entitled to any bonus
under the Plan.
(d) Termination of Employment and Leaves of Absence. If
an Employee ceases to be employed by either the Company or one or more of its
Subsidiaries for any reason on or before the date when the bonus is earned, then
he or she shall not earn or receive any bonus under the Plan. If an eligible
Employee is on a leave of absence for a portion of the fiscal year, the bonus to
be awarded shall be prorated to reflect only the time when he or she was
actively employed and not any period when he or she was on leave.
(e) Final Report. Following completion of the bonus
calculation and allocation described in this Section 4, the Committee shall
issue a written report containing the final calculation and allocation.
5. PAYMENT OF BONUS AWARDS
The individual bonus award allocated to each Employee pursuant
to Section 4 shall be paid to such Employee within 30 days after completion of
the annual audit of the Company's financial statements by its independent
auditors, regardless of whether the individual has remained in Employee status
through the date of payment.
6. GENERAL PROVISIONS
(a) Plan Amendments. The Plan shall become effective when
adopted by the Company's Board of Directors. The Board of Directors may at any
time amend, suspend or terminate the Plan, provided that it must do so in a
written resolution and such action shall not adversely affect rights and
interests of Plan participants to individual bonuses allocated prior to such
amendment, suspension or termination.
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(b) Benefits Unfunded. No amounts awarded or accrued
under this Plan shall be funded, set aside or otherwise segregated prior to
payment. The obligation to pay the bonuses awarded hereunder shall at all times
be an unfunded and unsecured obligation of the Company. Plan participants shall
have the status of general creditors and shall look solely to the general assets
of the Company for the payment of their bonus awards.
(c) Benefits Nontransferable. No Plan participant shall
have the right to alienate, pledge or encumber his or her interest in this Plan,
and such interest shall not (to the extent permitted by law) be subject in any
way to the claims of the Employee's creditors or to attachment, execution or
other process of law.
(d) No Employment Rights. No action of the Company in
establishing the Plan, no action taken under the Plan by the Committee and no
provision of the Plan itself shall be construed to grant any person the right to
remain in the employ of the Company or its subsidiaries for any period of
specific duration. Rather, each Employee will be employed "at will," which means
that either such Employee or the Company may terminate the employment
relationship at any time and for any reason, with or without cause.
(e) Exclusive Agreement. This Plan document is the full
and complete agreement between the eligible Employees and the Company on the
terms described herein.
7. EXECUTION.
To record the adoption of the Plan by the Board of Directors,
the Company has caused its authorized officer to execute the same.
GENDER SCIENCES INC.
/s/ XXXX XXXX
--------------------------------------
Xxxx Xxxx, Secretary
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EXHIBIT A
---------
PROPOSED 2003 BONUS PLAN FOR GENDER SCIENCES, INC.
--------------------------------------------------
This plan is based on EBITDA and cash flow. It also reflects a maximum
bonus payout as follows:
GT: 100% OF SALARY
AG: 100% OF SALARY
MG: 50% OF SALARY
JJ: 25% OF SALARY
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EBITDA PROJECTED % OF BONUS TO BE PAID ACTUAL AMOUNT CASH PAYOUT BY MONTH
---------------- --------------------- ------------------------- --------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
$750,000 25% $96,563 $8047
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$1,000,000 50% $193,125 $16,094
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$1,500,000 75% $289,688 $24,141
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$2,000,000 100% $386,250 $32,188
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EMPLOYEE SALARY 25% OF BONUS 50% OF BONUS 75% OF BONUS 100% OF BONUS
-------- ------ ------------ ------------ ------------ -------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
GT $150,000 $37,500 $75,000 $112,500 $150,000
----------------------------------------------------------------------------------------------------------------------
AG $160,000 $40,000 $80,000 $120,000 $160,000
----------------------------------------------------------------------------------------------------------------------
MG $110,000 $13,750 $27,500 $41,250 $55,000
----------------------------------------------------------------------------------------------------------------------
JJ $85,000 $5,313 $10,625 $15,938 $21,250
----------------------------------------------------------------------------------------------------------------------
PAYOUT - 1ST QUARTER OF 2004
25% GUARANTEED IN CASH
75% CASH OR STOCK AT DISCRETION OF THE BOARD OF DIRECTORS
EXHIBIT B
Confidentiality and Non-Compete Agreement
Including Non-Solicitation and Non-Disturbance
[See Attached]
CONFIDENTIALITY and NON-COMPETE AGREEMENT
THIS CONFIDENTIALITY and NON-COMPETE AGREEMENT ("Agreement") is entered
into on January 1, 2003, between Xxxx Xxxx ("Employee") and Gender Sciences,
Inc. ("Employer").
1. Definitions. As used in this Agreement, the following terms
have the following definitions:
a. Clients: Any person or entity for whom Employer
performs services, to whom Employer sells or licenses products, or from whom
Employer, Employee or both obtain information.
b. Confidential Information: Proprietary or confidential
information that Employer has or will develop, compile, own or exclusively
license, or that Employer receives under conditions of confidentiality.
Confidential Information includes not only information disclosed by Employer
(including its employees, agents, and independent contractors) or its Clients to
Employee in the course of employment, but also information (including
Inventions) developed or learned by Employee during the course of employment
with Employer.
Confidential Information is broadly defined and includes (i)
all information that has or could have commercial value or other utility in the
business in which Employer or its Clients are engaged or in which they
contemplate engaging; (ii) all information that, if disclosed without
authorization, could be detrimental to the interest of Employer or its Clients,
whether or not such information is identified as Confidential Information by
Employer or its Clients; (iii) all information that has not been released by
Employer to the general public. For example, Confidential Information includes,
but is not limited to, techniques, methods, processes, formulas, trade secrets,
inventions, discoveries, improvements, research or development information,
specifications, data, patent applications, patents, patent rights, software,
algorithms, flow charts, data flow diagrams, state transition diagrams, formats,
technical plans and designs, marketing plans, business plans, strategies,
forecasts, price lists and other unpublished financial information, budgets,
projections, customer and supplier lists, characteristics, and agreements.
c. Inventions: Discoveries, developments, designs,
ideas, improvements, inventions, formulas, processes, techniques, know-how, and
data (whether or not patentable or registerable under copyright or similar
statutes).
2. Effective Date. This Agreement will be effective on the
earlier of (i) commencement of Employee's employment with Employer or (ii) the
date and time at which any Confidential Information was or is first disclosed to
Employee.
3. Use and Protection of Employer's Confidential Information.
Employee acknowledges that the unauthorized use or disclosure of Confidential
Information may be highly prejudicial to the interests of Employer or its
Clients, an invasion of privacy, or an improper disclosure of trade secrets.
Employee therefore agrees, at all times during and after Employee's employment
to use all reasonable care to protect the Confidential Information by observing,
at a minimum, the following guidelines:
a. Employee will hold in trust, keep confidential, not
make use of, and not disclose or reveal to any third party any Confidential
Information, directly or indirectly, except in the course of Employee's
employment with Employer and for the benefit of Employer. Employee will not
copy, reproduce, remove, or otherwise cause the transmission of Confidential
Information or Inventions from Employer's principal place of business or such
other place of business specified by Employer, except within the authorized
scope of his employment.
4. Noncompetition.
a. Except with the express prior written consent of the
Board of Directors, Employee will not, during the period of employment with
Employer and for a period of one (1) year thereafter, (i) engage in any
employment or activity outside of Employer which actually or potentially is in
conflict with Employer's business or related interests, (ii) induce any other
employee of or consultant to Employer to engage in any such employment or
activity, or (iii) solicit any Clients or potential Clients of Employer for
services similar to those performed by Employer, even if not directly
competitive with such services.
b. In order for Employer to protect its trade secrets,
confidential information and client relationships, for a period of one year
immediately after termination of Employee's employment with Employer, Employee
will not interfere with Employer's business by soliciting an employee to leave
Employer's employ, by inducing a consultant to sever the consultant's
relationship with Employer, or by soliciting business from any of Employer's
Clients.
5. Prior Knowledge and Prior Relationships.
a. Except as disclosed in Attachment A, Employee has no
knowledge of any Confidential Information other than information Employee has
learned from Employer.
b. Employee has no agreements, relationships, or
commitments to any other person or entity that conflict with or would prevent
Employee from performing any of Employee's obligations to Employer under this
Agreement.
c. Employee will not disclose to Employer, use, or
induce Employer to use any proprietary information or trade secrets that
Employee obtained in the course and scope of previous employment relationships.
Employee represents and promises that Employee has returned all property and
Confidential Information belonging to other employers.
6. Non-Solicitation. During the period of employment with the
Company and for the period after during which the "Severance Package" is in
effect:
a. The [Employee / Executive] will not solicit or cause
to be solicited, or aid in the solicitation of business from past or current
clients or active prospects of the Company for services or products similar to
those being developed, licensed, marketed or sold by the Company; and
b. The [Employee / Executive] will not directly or
indirectly contact or solicit any employee of the Company with regard to
present, future or contemplated employment opportunities on behalf of himself,
or any other person, firm, corporation, governmental agency or other entity.
7. Notices. Any notice, report, or statement required or
permitted under this Agreement will be considered to be given or transmitted
when sent by certified mail, postage prepaid, addressed to the party for whom it
is intended at its address of record; by facsimile, which notice will be
effective on computer confirmation of receipt; or by courier or messenger
service, which notice will be effective on receipt by recipient as indicated on
the carrier's receipt. The record addresses of the parties are as follows:
Employer: 00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Employee: Address
City, State, Zip
8. No Waiver. No waiver of a breach, failure of any condition, or
any right or remedy contained in or granted by this Agreement will be effective
unless it is in writing and signed by the party waiving the breach, failure,
right, or remedy. No waiver of any breach, failure, right, or remedy will be
deemed a waiver of any other breach, failure, right, or remedy, whether or not
similar, nor will any waiver constitute a continuing waiver unless the writing
so specifies.
9. Governing Law. This Agreement, and any dispute arising from
the relationship between the parties to this Agreement, shall be governed and
determined by the laws of the State of New Jersey. Any dispute that arises under
or relates to this Agreement (whether Contract, Tort, or both) shall be resolved
in the applicable state or federal court and the parties expressly waive any
right they may otherwise have to cause any such action or proceeding to be
brought or tried elsewhere.
10. Severability. If any provision of this Agreement is invalid or
unenforceable by a court of competent jurisdiction, that invalidity will not
affect any other provision or provisions of this Agreement unless an essential
purpose of this Agreement would be defeated by the loss of the illegal,
unenforceable, or invalid provision.
11. Attachments. Attachment A constitutes a part of this Agreement
and is incorporated into this Agreement by this reference.
12. Binding Effect. This Agreement will inure to the benefit of
and be binding on the successors and assigns of Employer and Employee.
13. Integration. This Agreement and its Attachments constitutes
the final, complete, and exclusive statement of the Agreement between Employee
and Employer with respect to the protection and disclosure of Confidential
Information. The parties agree that this Agreement supersedes all prior and
contemporaneous understandings or agreements of the parties and that there are
no express or implied agreements contrary to this Agreement.
This Agreement may be amended, supplemented, or modified only
by the mutual agreement of the parties. No amendment, supplement, or
modification of this Agreement will be binding unless it is in writing and
signed by both parties.
14. Specific Performance.
a. Because Employee's breach of this Agreement may cause
Employer irreparable harm for which money is inadequate compensation, Employer
will be entitled to injunctive relief through litigation, arbitration, or any
other proceeding, to enforce this Agreement, in addition to damages and other
available remedies in contract, tort, or both, such as attorney's fees and
costs.
b. Employee acknowledges and agrees that the protection
set forth in this Agreement are a material condition to employment with, and
compensation by, Employer.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on this 1st day
of January, 2003 at Englewood, New Jersey.
GENDER SCIENCES INC.
/s/ XXXXXX XXXXX
-----------------------------------
By: Xxxxxx Xxxxx
Its: Chairman
[EMPLOYEE]
/s/ XXXX XXXX
-----------------------------------
Employee
