EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
April 1, 1999, by and between Xxxxxx Equities, Inc. dba Aethlon Medical, a
Nevada corporation (the "Company") and Xxxxxxxx X. Xxxxx, Xx. ("Executive").
ARTICLE I
DUTIES AND TERM
1.1 EMPLOYMENT. In consideration of their mutual covenants and other
good and valuable consideration, the receipt, adequacy and sufficiency of
which is hereby acknowledged, the Company agrees to hire Executive, and
Executive agrees to remain in the employ of the Company, upon the terms and
conditions herein provided.
1.2 POSITION AND RESPONSIBILITIES.
(a) Executive shall serve as the Chief Executive Officer and
President of the Company and Hemex, Inc., a Delaware company (or in a
capacity and with a title of at least substantially equivalent quality)
reporting directly to the Board of Directors of the Company. Executive agrees
to perform services not inconsistent with his position as shall from time to
time be assigned to him by the Board of Directors.
(b) Executive further agrees to serve, if elected, as a director of
the Company and as an officer or director of any subsidiary or affiliate of
the Company.
(c) During the period of his employment hereunder, Executive shall
devote substantially all of his business time, attention, skill and efforts
to the faithful performance of his duties hereunder.
1.3 TERM. The term of Executive's employment under this Agreement shall
commence on the date first above written and shall continue, unless sooner
terminated, until March 31, 2001, and it will continue thereafter for
successive One (1) year periods unless and until either party gives the other
party written notice of termination at least Sixty (60) days prior to the end
of a term.
ARTICLE II
COMPENSATION
For all services rendered by Executive in any capacity during his
employment under this Agreement, including, without limitation, services as a
director, officer or member of any committee of the Board of the Company or
of the Board of Directors of any subsidiary or affiliate of the Company, the
Company shall compensate Executive as follows:
2.1 BASE SALARY. The Company shall pay to Executive an annual base
salary commencing April 1, 1999 of not less than $120,000.00 (the "Base
Salary") during the first full calendar year of this Agreement. The Base
Salary shall be reviewed annually by the Board or a committee designated by
the Board and the Board or such committee may, in its discretion, increase
the Base Salary.
2.2 INCENTIVE PAYMENT. During the period of Executive's employment under
this Agreement, the Executive shall be eligible to participate in an
incentive compensation program implemented by the Board (the "Annual
Incentive Bonus").
2.3 ADDITIONAL BENEFITS. Executive shall be entitled to participate in
all employee benefit and welfare programs, plans and arrangements (including,
without limitation, pension, profit-sharing, supplemental pension and other
retirement plans, insurance, hospitalization, medical and group disability
benefits, travel or accident insurance plans) and to receive fringe benefits,
such as dues and fees of professional organizations and associations, which
are from time to time available to the Company's executive personnel;
PROVIDED, HOWEVER, there shall be no duplication of termination or severance
benefits, and to the extent that such benefits are specifically provided by
the Company to Executive under other provisions of this Agreement, the
benefits available under the foregoing plans and programs shall be reduced by
any benefit amounts paid under such other provisions. Executive shall during
the period of his employment hereunder continue to be provided with benefits
at a level which shall in no event be less in any material respect than the
benefits made available to Executive by the Company as of the date of this
Agreement. Notwithstanding the foregoing, the Company may terminate or reduce
benefits under any benefit plans and programs to the extent such reductions
apply uniformly to all Senior Executives entitled to participate therein, and
Executive's benefits shall be reduced or terminated accordingly.
Specifically, without limitation, Executive shall receive the following
benefits:
(a) HEALTH INSURANCE. The Company shall provide Executive a monthly
cash allowance for payment of health insurance premiums obtained by and for
Executive (and Executive's spouse and/or dependents) up to a maximum of Four
Hundred Dollars ($400.00) per month. Executive must submit to the Company
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statements showing the actual amount of the health insurance premiums, and
the Company shall have the option to either pay the health insurance premiums
directly or to reimburse Executive for the health insurance premiums. The
Company shall have the option to obtain a group medical insurance plan which
covers Executive in place and stead of providing this monthly cash allowance.
However, in no event shall Executive be entitled to a cash payment for any
unused portion of the monthly allowance (i.e., if Executive's health
insurance premiums are $300.00 per month, Executive is not entitled to
receive cash for the unused $100.00 portion of the allowance).
(b) DISABILITY BENEFITS. In the event of Executive's failure
substantially to perform his duties hereunder on a full-time basis for a
period not exceeding 180 consecutive days or for periods aggregating not more
than 180 days during any twelve-month period as a result of incapacity due to
physical or mental illness, the Company shall continue to pay the Base Salary
to Executive during the period of such incapacity, but only in the amounts
and to the extent that disability benefits payable to Executive under
Company-sponsored insurance policies are less than Executive's Base Salary.
Additionally, during the term of this Agreement, including any renewals
hereof, the Company shall procure and maintain, at its own expense, a
long-term disability insurance policy for the benefit of Executive in the
event of Executive's total disability (as defined in Section 6.1).
(c) REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall, in
accordance with standard Company policies, pay, or reimburse Executive for
all reasonable travel and other expenses incurred by Executive in performing
his obligations under this Agreement.
(d) VACATIONS. Executive shall be entitled to twenty (20) business
days excluding Company holidays, of paid vacation during each year of
employment hereunder. Executive may accrue and carry forward no more than ten
(10) unused vacation days from any particular year of his employment under
this Agreement to the next.
ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 DEATH OR RETIREMENT OF EXECUTIVE. Executive's employment under this
Agreement shall automatically terminate upon the death or retirement (as
defined in Section 6.1) of Executive.
3.2 BY EXECUTIVE. Executive shall be entitled to terminate his
employment under this Agreement by giving Notice of Termination (as defined
in Section 6.1) to the Company:
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(a) For good reason (as defined in Section 6.1);
(b) At any time commencing with the date six (6) months following
the date of a change in control (as defined in Section 6.1) and ending with
the date twelve (12) months after the date of such change in control (a
"Change in Control Resignation"); and
(c) At any time without good reason.
3.3 BY COMPANY. The Company shall be entitled to terminate Executive's
employment under this Agreement by giving Notice of Termination (as defined
in Section 6.1) to Executive:
(a) In the event of Executive's total disability (as defined in
Section 6.1);
(b) For cause (as defined in Section 6.1); and
(c) At any time without cause.
ARTICLE IV
COMPENSATION UPON TERMINATION OF EMPLOYMENT
If Executive's employment hereunder is terminated in accordance with the
provisions of Article III hereof, except for any other rights or benefits
specifically provided for herein following his period of employment, the
Company shall be obligated to provide compensation and benefits to Executive
only as follows, subject to the provisions of Section 5.4 hereof:
4.1 UPON TERMINATION FOR DEATH OR DISABILITY. If Executive's employment
hereunder is terminated by reason of his death or total disability, the
Company shall:
(a) Pay Executive (or his estate) or beneficiaries any Base Salary
which has accrued but not been paid as of the termination date (the "Accrued
Base Salary");
(b) Pay Executive (or his estate) or beneficiaries for unused
vacation days accrued as of the termination date in an amount equal to his
Base Salary multiplied by a fraction the numerator of which is the number of
accrued unused vacation days and the denominator of which is 360 (the
"Accrued Vacation Payment");
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(c) Reimburse Executive (or his estate) or beneficiaries for
expenses incurred by him prior to the date of termination which are subject
to reimbursement pursuant to this Agreement (the "Accrued Reimbursable
Expenses");
(d) Provide to Executive (or his estate) or beneficiaries any
accrued and vested benefit required to be provided by the terms of any
Company-sponsored benefit plans or programs (the "Accrued Benefits"),
together with any benefits required to be paid or provided in the event of
Executive's death or total disability under applicable law;
(e) Pay Executive (or his estate) or beneficiaries any Annual
Incentive Bonus with respect to a prior fiscal year which has accrued but has
not been paid, plus a portion of the Annual Incentive Bonus for the year in
which Executive's employment is terminated hereunder computed at the end of
the fiscal year and pro rated to reflect the portion of the fiscal year that
Executive was employed by the Company (collectively, the "Accrued Annual
Incentive Bonus"); and in addition,
(f) Executive (or his estate) or beneficiaries shall have the right
to exercise all vested unexercised stock options and warrants outstanding at
the termination date in accordance with terms of the plans and agreements
pursuant to which such options or warrants were issued.
4.2 UPON TERMINATION BY COMPANY FOR CAUSE OR BY EXECUTIVE OTHER THAN FOR
GOOD REASON. If Executive's employment is terminated by the Company for
Cause, or if Executive terminates his employment with the Company other than
(x) upon Executive's death or total disability, (y) for good reason, or (z)
pursuant to a Change In Control Resignation (as defined in Section 3.2(b),
the Company shall:
(a) Pay Executive the Accrued Base Salary;
(b) Pay Executive the Accrued Vacation Payment;
(c) Pay Executive the Accrued Reimbursable Expenses;
(d) Pay Executive the Accrued Benefits, together with any benefits
required to be paid or provided under applicable law;
(e) Pay Executive any Annual Incentive Bonus with respect to a prior
fiscal year which has accrued but has not been paid; and in addition
(f) Executive shall have the right to exercise vested options and
warrants in accordance with Section 4.1(f).
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4.3 UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY EXECUTIVE FOR
GOOD REASON OR PURSUANT TO A CHANGE IN CONTROL RESIGNATION. If Executive's
employment is terminated (i) by the Company Without Cause, or (ii) by
Executive for Good Reason, or (iii) pursuant to a Change in Control
Resignation, the Company shall:
(a) Pay Executive the Accrued Base Salary;
(b) Pay Executive the Accrued Vacation Payment;
(c) Pay Executive the Accrued Reimbursable Expenses;
(d) Pay Executive the Accrued Benefits, together with
any benefits required to be paid or provided under applicable law;
(e) Pay Executive the Accrued Annual Incentive Bonus;
(f) Pay Executive commencing on the thirtieth (30th) day following
the termination date twelve (12) monthly payments equal to one-twelfth
(1/12th) of Executive's Base Salary in effect immediately prior to the time
such termination occurs;
(g) Maintain in full force and effect, for Executive's and his
eligible beneficiaries' continued benefit, until the first to occur of (x)
his attainment of alternative employment or (y) twelve (12) months following
the termination date of his employment hereunder the employee benefits
provided pursuant to Company-sponsored benefit plans, programs or other
arrangements in which Executive was entitled to participate as a full-time
employee immediately prior to such termination in accordance with Section 2.4
hereof, subject to the terms and conditions of such plans and programs (the
"Continued Benefits"). If Executive's continued participation is not
permitted under the general terms and provisions of such plans, programs and
arrangements, the Company shall arrange to provide Executive with Continued
Benefits substantially similar to those which Executive would have been
entitled to receive under such plans, programs and arrangements; and in
addition
(h) Executive shall have the right to exercise all vested unexercised
stock options and warrants in accordance with Section 4.1(f).
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ARTICLE V
RESTRICTIVE COVENANTS
5.1 CONFIDENTIALITY.
(a) Executive covenants and agrees to hold in strictest confidence,
and not disclose to any person without the express written consent of the
Company, any and all of the Company's proprietary information, as defined in
Subparagraph (c) below, except as such disclosure may be required in connection
with his employment hereunder. This covenant and agreement shall survive this
Agreement and continue to be binding upon Executive after the expiration or
termination of this Agreement, whether by passage of time or otherwise, so long
as such information and data shall remain proprietary information.
(b) Upon expiration or termination of this Agreement for any reason,
Executive shall immediately turnover to the Company any "Proprietary
Information." Executive shall have no right to retain any copies of any material
qualifying as Proprietary Information for any reason whatsoever after expiration
or termination of his employment hereunder without the express written consent
of the Company.
(c) For purposes of this Agreement, "Proprietary Information" means
and includes the following: the identity of clients or customers or potential
clients or customers of the Company or its affiliates; any written, typed or
printed lists, or other materials identifying the clients or customers of the
Company or its affiliates; Research & Development programs, plans and
discoveries; product development, marketing, and plans; any business plans or
strategic contracts, partnerships or alliances; any financial or other
information supplied by clients or customers of the Company or its affiliates;
any and all data or information involving the Company, its affiliates, programs,
methods or contacts employed by the Company or its affiliates in the conduct of
their business; any lists, documents, manuals, records, forms or other materials
used by the Company or its affiliates in the conduct of their business; any
descriptive materials describing the methods and procedures employed by the
Company or its affiliates in the conduct of their business; and any other secret
or confidential information concerning the Company's or its affiliates' business
or affairs. The terms "list," "document" or their equivalents, as used in this
Subparagraph (c), are not limited to a physical writing or compilation but also
include any and all information whatsoever regarding the subject matter of the
"list" or "documents," whether or not such compilation has been reduced to
writing. "Proprietary Information" shall not include any information which: (i)
is or becomes publicly available through no act or failure of Executive; (ii)
was or is rightfully learned by Executive from a source other than the Company
before being received from the Company; or (iii) becomes independently available
to Executive as a matter of right from
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a third party. If only a portion of the Proprietary Information is or becomes
publicly available, then only than portion shall not be Proprietary
Information hereunder.
(d) Executive acknowledges that he is the Chief Executive Officer and
President of the Company and in such capacity he will be a representative of the
Company with respect to clients and potential clients of the Company. Executive
also acknowledges that he has had and will continue to have access to
confidential information about the Company, its affiliates, and their clients
and that "Proprietary Information" acquired by him at the expense of the Company
is for use in its business. Executive has substantial experience in the
management of entrepreneurial companies and possesses special, unique,
extraordinary skills and knowledge in this field. Executive's management and
financial services to the Company are special, unique and extraordinary and the
success or failure of the Company is dependent upon his discharge of his duties
and obligations. Accordingly, by execution of this Agreement, and subject to
Subparagraph (c) hereof, Executive agrees that during his employment with the
Company and for a period of Two (2) years immediately after termination of his
employment with the Company (the "Non-Competition Period"), he shall not violate
the provisions of Section 5.2.
5.2 COMPETITION.
(a) During the Non-Competition Period specified in Section 5.1(d),
Executive shall not:
(i) Except as a passive investor in publicly-held companies, and
except for investments held as of the date hereof, directly or indirectly own,
operate, mange, consult with, control, participate in the management or control
of, be employed by, maintain or continue any interest whatsoever in any company
that directly competes with the Company or any parent corporation, subsidiary
corporation, or affiliated entity or company (hereinafter referred to as an
"Affiliate") in the United States; or
(ii) Directly or indirectly solicit any business of a nature
that is directly competitive with the business of the Company or an Affiliate
from any individual or entity that obtained such products or services from
the Company or its Affiliates at any time during his employment with the
Company; or
(iii) Directly or indirectly solicit any business of a nature
that is directly competitive with the business of the Company or an Affiliate
from any individual or entity solicited by him on behalf of the Company or
its Affiliates; or
(iv) Employ, or directly or indirectly solicit, or cause the
solicitation of, any employees of the Company or its Affiliates who are in
the employ of the Company or its Affiliates on the termination date of his
employment hereunder for employment by others.
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(b) Executive expressly agrees and acknowledges that:
(i) The Company and its Affiliates have protected business
interests throughout North America, Europe, and Asia and that competition
with and against such business interests would be harmful to the Company
and/or its Affiliates;
(ii) This covenant not to compete is reasonable as to time and
geographical area and does not place any unreasonable burden upon him;
(iii) The general public will not be harmed as a result of
enforcement of this covenant not to compete;
(iv) He has had the opportunity to review this covenant not to
compete with his own independent legal counsel; and
(v) He understands and hereby agrees to each and every term and
condition of to this covenant not to compete (including, without limitation,
the provisions of Section 5.4).
5.3 NON-DISPARAGEMENT. During the term of this Agreement and the
Non-Competition Period, neither Executive nor the Company shall disparage the
other, and neither shall disclose to any third party the conditions of
Executive's employment with the Company except as may be required (i)
pursuant to applicable law or regulations, including the rules and
regulations of the Securities and Exchange Commission, (ii) to effectuate the
provisions of employee plans or programs and insurance policies, or (iii) as
may be otherwise contemplated herein or unless such information becomes
publicly available without fault of the party making such disclosure.
5.4 REMEDIES. Executive expressly agrees and acknowledges that this
covenant not to compete is necessary for the protection of the Company and
its affiliates because of the nature and scope of their business and his
position with the Company. Further, Executive acknowledges that any breach of
this covenant not to compete would result in irreparable damage to the
Company, and in the event of his breach of this covenant not to compete,
money damages will not sufficiently compensate the Company for its injury
caused thereby, and that the remedy at law for any breach or threatened
breach of Sections 5.1, 5.2 and 5.3 will be inadequate and, accordingly
agrees, that the Company shall, in addition to all other available remedies
(including without limitation, seeking such damages as it can show it has
sustained by reason of such breach), be entitled to injunctive relief or
specific performance and that in addition to such money damages he may be
restrained and enjoined from any continuing breach of this covenant not to
compete without any bond or other security being required of any court.
Executive further acknowledges and agrees that if the covenant not to compete
herein is deemed to be unenforceable and/or the Executive fails to comply
with this Article V, the Company
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has no obligation to provide any compensation or other benefits described in
Article IV hereof.
5.5 OWNERSHIP OF INVENTIONS.
(a) During the employment by the Company, Executive will have access
to trade secrets, data, know-how, knowledge or other confidential information
originated in the Company or disclosed to the Company by others under agreements
to hold the same confidential (collectively referred to as "Confidential
Information"). Executive acknowledges that Confidential Information includes any
information not readily available to the public, and includes not only technical
information but also business information. In addition, Executive may, during
the period of employment, create, make, develop or conceive inventions,
discoveries, concepts, ideas, designs, works of authorship, developments,
information, improvements, or trade secrets, whether patentable or not, and
whether solely or jointly with others, which may or may not also constitute
Confidential Information (collectively referred to as "Inventions"). Executive
agrees that all works of authorship to which Executive contributes shall be
considered "works made for hire" and shall be the sole property of the Company.
(b) Executive agrees that Executive will neither utilize any
Confidential Information for Executive's own benefit or for the benefit of
anyone except the Company, nor disclose, disseminate, lecture upon or publish
articles about any Confidential Information to any one outside the Company, or
to any officer or employee of the Company not also having access to Confidential
Information, at any time either during or after employment by the Company.
(c) Executive agrees to disclose promptly, in writing to Executive's
Supervisor, Company's Counsel and Chief Scientific Officer, any Inventions that
Executive may make, develop or conceive, solely or jointly, during the period of
employment by the Company, or by its predecessors, successors in business,
subsidiaries, parents or affiliates. All such Inventions shall be and remain the
property of the Company. Executive hereby assigns to the Company all Executive's
rights, titles and interests in and to any such Inventions, whether or not such
Inventions may be reduced to practice during the period of Executive's
employment, and to execute all patent or copyright applications, assignments and
other documents, and to take all other steps necessary, to vest in the Company
the entire right, title and interest in and to those Inventions and in and to
any patents or copyrights obtainable therefor in the United States and in
foreign countries, all at the Company's expense, but for no consideration to
Executive in addition to Executive's salary or wages. Executive agrees to keep
adequate records of all Inventions and make such records available to the
Company.
(d) If the Company chooses to prosecute applications for patents or
copyrights for any such Inventions, the Company shall assume the entire expense
of preparing, filing and prosecuting such applications, through counsel
appointed
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by the Company; provided, however, that the Company is under no obligation to
prosecute such applications. Executive agrees to cooperate with the Company
and do whatever is necessary or appropriate to obtain patents, copyrights or
other legal protections for Inventions. If Executive is incapacitated or
refuses to so cooperate for any reason, Executive hereby authorizes the
Company to act as Executive's agent and to take whatever actions, or execute
whatever documents, may be needed to carry out this Agreement.
(e) All records and other material pertaining to Confidential
Information, whether developed by Executive or others, shall be and remain the
property of the Company. Upon termination of Executive's employment with the
Company, all documents, records, notebooks and other material of any kind
pertaining to or containing Confidential Information then in Executive's
possession, or under Executive's control, whether prepared by Executive or
others, will be returned to the Company unconditionally.
(f) Executive shall not be obligated to assign any Invention which
relates to or would be useful in any business or activities in which the Company
is engaged if such Invention was conceived and reduced to practice by Executive
prior to Executive's employment with the Company, provided that all such
Inventions are listed at the time of employment on the attached Exhibit "B." If
no entry is made on Exhibit "B," then such entry shall be deemed to be "none,"
whether or not Exhibit "B" is signed by Executive. Except as listed on Exhibit
"B," Executive will not assert any rights to any Inventions, as having been made
or acquired by Executive prior to being employed by the Company.
(g) Executive shall not be obligated to assign any Invention which may
be wholly conceived by Executive after Executive leaves the employ of the
Company, except that Executive is so obligated if such Invention shall involve
the utilization of Confidential Information of the Company.
(h) Notwithstanding anything in this Agreement to the contrary,
Executive shall not be obligated to assign to the Company and of Executive's
rights in an Invention that the Executive developed entirely on Executive's own
time without using the Company's equipment, supplies, facilities or Confidential
Information, except for those Inventions that either: (i) relate, at the time of
conception or reduction to practice of Invention, to either the Company's
business, or actual or demonstrably anticipated research or development of the
Company, or (ii) result from any work performed by the Executive for the
Company. THIS AGREEMENT DOES NOT APPLY TO ANY INVENTION WHICH QUALIFIES FULLY
UNDER THE PROVISIONS OF CALIFORNIA LABOR CODE SECTION 2870 OR ANY OTHER
SUBSTANTIALLY EQUIVALENT LAW IN THE STATE IN WHICH THE EXECUTIVE IS EMPLOYED.
With regard to those Inventions which Executive is not obligated to assign to
the Company, Executive shall give the Company a right of first refusal on any
and all such Inventions and the right to meet any firm offer of another for
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such Inventions. The Company must exercise such right of first refusal within
thirty (30) days of receipt of written notice from Executive setting forth
such offer.
ARTICLE VI
MISCELLANEOUS
6.1 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following ----------- meanings:
(a) "Accrued Annual Incentive Bonus" - as defined in Section 4.1(e);
(b) "Accrued Base Salary" - as defined in Section 4.1(a);
(c) "Accrued Benefits" - as defined in Section 4.1(d);
(d) "Accrued Reimbursable Expenses" - as defined in Section 4.1(c);
(e) "Annual Vacation Payment" - as defined in Section 4.1(b);
(f) "Annual Incentive Bonus" - as defined in Section 2.2(b)
(g) "Base Amount" - as defined in Section 4.4(b);
(h) "Base Salary" - as defined in Section 2.1;
(j) "Board" - shall mean the Board of Directors of the Company;
(k) "Cause" shall mean the occurrence of any of the following:
(i) Executive's gross and willful misconduct which is
injurious to the Company;
(ii) Executive's engaging in fraudulent conduct with respect to
the Company's business or in conduct of a criminal nature that may have an
adverse impact on the Company's standing and reputation;
(iii) The continued and unjustified failure or refusal by
Executive to perform the duties required of him by this Agreement which
failure or refusal shall not be cured within fifteen (15) days following (a)
receipt of Executive of
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written notice from the Board specifying the factors or events constituting
such failure or refusal, and (b) a reasonable opportunity for Executive to
correct such deficiencies;
(iv) Executive's use of drugs and/or alcohol in violation of
then current Company policy; or
(v) Executive's breach of his obligation under Section 1.2(c)
hereof which shall not be cured within fifteen (15) days after written notice
thereof to Executive.
(l) "Change In Control" shall mean and shall be deemed to have
occurred if:
(i) After the date of this Agreement, any "person" (as such
term is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any successor provision thereto)
shall become the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act or any successor provision thereof) directly or indirectly of
securities of the Company representing fifteen percent (15%) or more of the
combined voting power of the Company's then outstanding securities ordinarily
having the right to vote at an election of directors; PROVIDED, HOWEVER,
that, for purposes of this Subparagraph, "person" shall exclude the Company,
its subsidiaries, any person acquiring such securities directly from the
Company, any employee benefit plan sponsored by the Company or from Executive
or any stockholder owning fifteen percent (15%) or more of the combined
voting power of the Company's outstanding securities as of the date of this
Agreement; or
(ii) Any stockholder of the Company owning fifteen percent or
more of the combined voting power of the Company's outstanding securities as
of the date of this Agreement shall become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) directly or indirectly of
securities of the Company (other than through the acquisition of securities
directly from the Company or from Executive) representing thirty-three and
one-third percent (33 1/3%) or more of the combined voting power of the
Company's then outstanding securities ordinarily having the right to vote at
an election of directors; or
(iii) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least
eighty percent (80%) of the Board; provided, however, that any person
becoming a member of the Board subsequent to the date hereof whose election,
or nomination for election by the Company's stockholders, was approved by a
vote of at least eighty percent (80%) of the members then comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act
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or any successor provision thereto) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board; or
(iv) Approval by the stockholders of the Company and
consummation of (a) a reorganization, merger, consolidation, or sale or other
disposition of all or substantially all of the assets of the Company, in each
case, with or to a corporation or other person or entity of which persons who
were the stockholders of the Company immediately prior to such transaction do
not, immediately thereafter, own more than sixty percent (60%) of the
combined voting power of the outstanding voting securities entitled to vote
generally in the election of directors of the reorganized, merged,
consolidated or purchasing corporation (or, in the case of a non-corporate
person or entity) were not members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization, merger,
consolidation or sale, or (b) a liquidation or dissolution of the Company.
(m) "Change In Control Resignation" - as defined in Section 3.2(b);
(n) "Continued Benefits" - as defined in Section 4.3(g);
(o) "Expiration" shall mean the expiration of Executive's
employment hereunder in accordance with Section 1.3;
(p) "Good Reason" shall mean the occurrence of any of the following:
(i) The Company's failure to elect or reelect or to appoint or
reappoint Executive to offices, titles or positions carrying comparable
authority, responsibilities, dignity and importance to that of Executive's
offices and positions as of April 1, 1999;
(ii) Material change by the Company in Executive's function,
duties or responsibilities (including reporting responsibilities) which would
cause Executive's position with the Company to become of less dignity,
responsibility and importance than those associated with his functions,
duties or responsibilities as of April 1, 1999; or
(iii) Other material breach of this Agreement by the Company,
which breach is not cured within fifteen (15) days after written notice
thereof is received by the Company.
(q) "Non-Competition Period" - as defined in Section 5.1(d);
(r) "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision of this Agreement relied upon and
shall set
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forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provisions so
indicated. Each Notice of Termination shall be delivered at least sixty (60)
days prior to the effective date of termination;
(s) "Proprietary Information" - as defined in Section 5.1(c);
(t) "Retirement" shall mean normal retirement at age as determined
by the Board;
(u) "Senior Executives" shall mean the chief executive officer and
the four (4) most highly compensated executive officers of the Company
determined in accordance with the rules and regulations of the Securities and
Exchange Commission under the Exchange Act;
(v) "Termination" shall mean the termination of Executive's
employment hereunder other than upon expiration of the term of such
employment in accordance with Section 1.3;
(w) "Total Disability" shall mean Executive's failure
substantially to perform his duties hereunder on a full-time basis for a
period exceeding one hundred eighty (180) consecutive days or for periods
aggregating more than 180 days during any twelve-month period as a result of
incapacity due to physical or mental illness. If there is a dispute as to
whether Executive is or was physically or mentally unable to perform his
duties under this Agreement, such dispute shall be submitted for resolution
to a licensed physician agreed upon by the Board and Executive, or if an
agreement cannot be promptly reached, the Board and Executive each shall
promptly select a physician, and if these physicians cannot agree, the
physicians shall promptly select a third physician whose decision shall be
binding on all parties. If such a dispute arises, Executive shall submit to
such examinations and shall provide such information as such physician(s) may
request, and the determination of the physician(s) as to Executive's physical
or mental condition shall be binding and conclusive. Notwithstanding the
foregoing, if Executive participates in any group disability plan provided by
the Company which offers long-term disability benefits, "Total Disability"
shall mean total disability as defined therein.
6.2 KEY MAN INSURANCE. The Company shall have the right, in its sole
discretion, to purchase "key man" insurance on the life of Executive. The
Company shall be the owner and beneficiary of any such policy. If the Company
elects to purchase a policy, Executive shall take such physical examinations
and supply such information as may be reasonably requested by the insurer.
6.3 MITIGATION OF DAMAGES; NO SET-OFF; DISPUTE RESOLUTION.
(a) Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise,
15
nor shall the amount of any payment provided for in this Agreement be reduced by
any compensation earned by Executive as the result of employment by another
employer after the date of termination of his employment hereunder or otherwise.
The Company's obligation to make the payments provided for in this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim or action which the Company may have against Executive.
(b) If there shall be any dispute between the Company and Executive
(i) in the event of any termination of Executive's employment by the Company,
whether such termination was for Cause, or (ii) in the event of any termination
of employment by Executive, whether Good Reason existed, or (iii) otherwise, the
dispute shall be resolved in accordance with the dispute resolution procedures
set forth in Exhibit "A" hereto, the provisions of which are incorporated as a
part hereof, and the parties hereto hereby agree that such dispute resolution
procedures shall be the exclusive method for resolution of disputes under this
Agreement. In the event of a dispute hereunder as to whether a termination by
the Company was for Cause or by the Executive for Good Reason, until there is a
resolution and award as provided in Exhibit "A," the Company shall pay all
amounts, and provide all benefits, to Executive and/or Executive's family or
other beneficiaries, as the case may be, that the Company would be required to
pay or provide hereunder as though such termination were by the Company without
Cause or by Executive for Good Reason and shall pay the reasonable legal fees
and expenses of counsel for Executive in connection with such dispute
resolution; provided, however, that the Company shall not be required to pay any
disputed amounts or any legal fees and expenses pursuant to this Subparagraph
(b) except upon receipt of a written undertaking by or on behalf of Executive
(and/or Executive's family or other beneficiaries, as the case may be) to repay,
without interest or penalty, as soon as practicable after completion of the
dispute resolution (A) all such amounts to which Executive (or Executive's
family or other beneficiaries, as the case may be) is ultimately adjudged to not
be entitled with respect to the payment of such disputed amount(s) and (B) in
addition, in the case of legal fees and expenses, a proportionate amount of
legal fees and expenses attributable to any of Executive's claim(s) or any of
Executive's defenses or counter-claim(s), if any, which shall have been found by
the dispute resolver to have been frivolous or without merit.
6.4 SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding upon
any successor to the Company and shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, beneficiaries,
designees, executors, administrators, heirs, distributees, devisees and
legatees.
6.5 MODIFICATION; NO WAIVER. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties hereto. No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument by the party charged with such waiver
or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such
16
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or as
to any other term or condition.
6.6 SEVERABILITY. The covenants and agreements contained herein are
separate and severable and the invalidity or unenforceability of any one or
more of such covenants or agreements, if not material to the employment
arrangement that is the basis for this Agreement, shall not affect the
validity or enforceability of any other covenant or agreement contained
herein. If, in any judicial proceeding, a court shall refuse to enforce one
or more of the covenants or agreements contained herein because the duration
thereof is too long, or the scope thereof is too broad, it is deemed reduced
to the extent necessary to permit the enforcement of such covenants or
agreements.
6.7 NOTICES. All the notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally or
sent by registered or certified mail, return receipt requested, to the
parties hereto at the following addresses:
If to the Company, to it at:
Xxxxxx Equities, Inc. dba Aethlon Medical
0000 Xxx Xxxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
If Executive, to him at:
Xx. Xxxxxxxx X. Xxxxx, Xx.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
6.8 ASSIGNMENT. This Agreement and any rights hereunder shall not be
assignable by either party without the prior written consent of the other
party except as otherwise specifically provided for herein.
6.9 ENTIRE UNDERSTANDING. This Agreement (together with the Exhibit
incorporated as a part hereof) constitutes the entire understanding between
the parties hereto and no agreement, representation, warranty or covenant has
been made by either party except as expressly set forth herein.
6.10 EXECUTIVE'S REPRESENTATIONS. Executive represents and warrants that
neither the execution and delivery of this Agreement nor the performance of
his duties hereunder violates the provisions of any other agreement to which
he is a party or by which he is bound.
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6.11 LIABILITY OF COMPANY WITH RESPECT TO INSURANCE POLICY. Executive
has selected the insurer and policy referred to in Section 2.4(a) hereof, and
the Company shall not have any liability to Executive (or his beneficiaries)
should the insurance company which issues the policy referred to therein fail
or refuse to pay (whether voluntarily or by reason of any order, injunction
or otherwise) thereunder or if any rights or elections otherwise available to
Executive thereunder are restricted or eliminated.
6.12 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of New York applicable
to contracts executed and wholly performed within such state.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
COMPANY
XXXXXX EQUITIES, INC.,
a Nevada corporation dba Aethlon Medical
By:
-----------------------------------------
Xxxxx X. Xxxxx
Its: Chairman of the Board
EXECUTIVE
XXXXXXXX X. XXXXX, XX.
By:
-----------------------------------------
Xxxxxxxx X. Xxxxx, Xx.
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EXHIBIT "A"
DISPUTE RESOLUTION PROCEDURES
A. If a controversy should arise which is covered by Section
6.3 of Article VI, then not later than twelve (12) months from the date of the
event which is the subject of dispute either party may serve on the other a
written notice specifying the existence of such controversy and setting forth in
reasonably specific detail the grounds thereof ("Notice of Controversy");
PROVIDED THAT, in any event, the other party shall have at least thirty (30)
days from and after the date of the Notice of Controversy to serve a written
notice of any counterclaim ("Notice of Counterclaim"). The Notice of
Counterclaim shall specify the claim or claims in reasonably specific detail. If
the Notice of Controversy or the Notice of Counterclaim, as the case may be, is
not served within the applicable period, the claim set forth therein will be
deemed to have been waived, abandoned and rendered unenforceable.
B. Following receipt of the Notice of Controversy (or the
Notice of Counterclaim, as the case may be), there shall be a three (3) week
period during which the parties will make a good faith effort to resolve the
dispute through negotiation ("Period of Negotiation"). Neither party shall take
any action during the Period of Negotiation to initiate arbitration proceedings.
C. If the parties should agree during the Period of
Negotiation to mediate the dispute, then the Period of Negotiation shall be
extended by an amount of time to be agreed upon by the parties to permit such
mediation. In no event, however, may the Period of Negotiation be extended by
more than five (5) weeks or, stated differently, in no event may the Period of
Negotiation be extended to encompass more than a total of eight (8) weeks.
D. If the parties agree to mediate the dispute but are
thereafter unable to agree within one (1) week on the format and procedures for
the mediation, then the effort to mediate shall cease, and the Period of
Negotiation shall terminate four (4) weeks from the Notice of Controversy (or
the Notice of Counterclaim, as the case may be).
E. Following the termination of the Period of Negotiation, the
dispute (including the main claim and counterclaim, if any) shall be settled by
arbitration, and judgment upon the award may be entered in any court having
jurisdiction thereof. The format and procedures of the arbitration are set forth
below (referred to below as the "Arbitration Agreement").
F. A notice of intention to arbitrate ("Notice of
Arbitration") shall be served within forty-five (45) days of the termination of
the Period of Negotiation. If the Notice of Arbitration is not served within
this period, the claim set forth in the Notice of
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Controversy (or the Notice of Counterclaim, as the case may be) will be
deemed to have been waived, abandoned and rendered unenforceable.
G. The arbitration, including the Notice of Arbitration, will
be governed by the Commercial Rules of the American Arbitration Association
except that the terms of this Arbitration Agreement shall control in the event
of any difference or conflict between such Rules and the terms of this
Arbitration Agreement. The arbitration shall be scheduled to take place in
Buffalo, New York.
H. The dispute resolver shall reach a decision on the merits
on the basis of applicable legal principles as embodied in the law of the State
of New York.
I. There shall be one dispute resolver, regardless of the
amount in controversy. The dispute resolver will be empowered to render an award
and interim decisions and shall be a member of the bar of any of the fifty
States of the United States or of the District of Columbia. The dispute resolver
shall be promptly appointed pursuant to Rule 13 of the Commercial Rules of the
American Arbitration Association ("AAA"). If the dispute resolver has not been
appointed within forty-five (45) days of the AAA's initial transmission of lists
of potential arbitrators, then the AAA shall unilaterally designate the dispute
resolver.
J. At the time of appointment and as a condition thereto, the
dispute resolver will be apprised of the time limitations and other provisions
of this Arbitration Agreement and shall indicate such dispute resolver's
agreement to the Tribunal Administrator to comply with such provisions and time
limitations.
K. During the 30-day period following appointment of the
dispute resolver, either party may serve on the other a request for limited
numbers of documents directly related to the dispute. Such documents will be
produced within seven (7) days of the request.
L. Following the 30-day period of document production, there
will be a forty-five (45) day period during which limited depositions will be
permissible. Neither party will take more than five (5) depositions, and no
deposition will exceed three (3) hours of direct testimony.
M. Disputes as to discovery or prehearing matters of a
procedural nature shall be promptly submitted to the dispute resolver pursuant
to telephone conference call or otherwise. The dispute resolver shall make every
effort to render a ruling on such interim matters at the time of the hearing (or
conference call) or within five (5) business days thereafter.
N. Following the period of depositions, the arbitration
hearing shall promptly commence. The dispute resolver will make every effort to
commence the
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hearing within thirty (30) days of the conclusion of the deposition
period and, in addition, will make every effort to conduct the hearing on
consecutive business days to conclusion.
O. An award will be rendered, at the latest, within nine (9)
months of the date of the Notice of Arbitration and within thirty (30) days of
the close of the arbitration hearing. The award shall set forth the grounds for
the decision in reasonably specific detail and shall also specify whether any
claim (or defense or counterclaim) of Executive is found to be frivolous or
without merit and what proportion, if any, of his legal fees and expenses which
have been paid by the Company Executive shall be required to repay to the
Company in accordance with Section 6.3(b). The award shall be final and
nonappealable.
P. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THEY ARE
WAIVING THEIR RIGHTS TO A TRIAL IN A STATE OR FEDERAL COURT AND ARE ALSO WAIVING
THEIR RIGHT TO A JURY TRIAL.
COMPANY EXECUTIVE
XXXXXX EQUITIES, INC., XXXXXXXX X. XXXXX, XX.
a Nevada corporation dba
Aethlon Medical
By: ------------------------------- By: ---------------------------
Xxxxx X. Xxxxx Xxxxxxxx X. Xxxxx, Xx.
Its: Chairman of the Board
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EXHIBIT "B"
LIST OF INVENTIONS
CREATED PRIOR TO EMPLOYMENT WITH THE COMPANY
22
