Exhibit 10.11
EMPLOYMENT AGREEMENT
BY AND BETWEEN
NANOBAC PHARMACEUTICALS, INC.
AND
Xxxxxxxxx X. Xxxxxxx III
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
January 26, 2004 (the "Effective Date"), by and between NANOBAC PHARMACUTICALS,
INC., a Florida corporation ("THE COMPANY"), and Xxxxxxxxx X. Xxxxxxx III
("EMPLOYEE").
WHEREAS, THE COMPANY and EMPLOYEE desire to enter into this Agreement to
assure THE COMPANY of the services of EMPLOYEE and to set forth the respective
rights and duties of the parties hereto;
WHEREAS, THE COMPANY is principally in the business of Biotechnical
Research and Development (such activities, present and future, being hereinafter
referred to as the "Business"); and
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions set forth herein, and other good and valuable consideration
the receipt and sufficiency of which hereby are acknowledged by the parties, THE
COMPANY and EMPLOYEE agree as follows:
ARTICLE I
Employment
1.1 Employment and Title. THE COMPANY hereby employs EMPLOYEE, and EMPLOYEE
hereby accepts such employment, as Chief Executive Officer, President and
Director of THE COMPANY (the "Employment Position"), all upon the terms and
conditions set forth herein.
1.2 Services. During the Employment Term (as hereinafter defined), EMPLOYEE
agrees to perform diligently and in good faith the duties of the Employment
Position, under the direction of the Board of Directors of THE COMPANY (the
"Board of Directors"). EMPLOYEE agrees to perform the services to be performed
hereunder for the exclusive benefit of THE COMPANY. EMPLOYEE shall be vested
with such authority as is generally commensurate with the Employment Position,
as further outlined below. EMPLOYEE will report solely to the Board of
Directors.
1.3 Location. The principal place of employment and the location of
EMPLOYEE's principal office shall be in Tampa, Florida; provided, however,
EMPLOYEE shall, if reasonably necessary, engage in reasonable travel in the
performance of EMPLOYEE's duties under this Agreement.
1.4 Representations.
(a) EMPLOYEE represents and warrants to THE COMPANY that EMPLOYEE has
full power and authority to enter into and perform this Agreement and that
EMPLOYEE's execution and performance of this Agreement shall not constitute a
default or breach by EMPLOYEE under, or of any of the terms of, any other
agreement to which EMPLOYEE is a party or by which EMPLOYEE is bound. EMPLOYEE
represents that no consent or approval of any third party is required for
EMPLOYEE's execution, delivery and performance of this Agreement or that all
consents or approvals of any third party required for such execution, delivery
and performance of this Agreement have been obtained. EMPLOYEE further
represents that EMPLOYEE's employment hereunder will not involve the use of
information or materials that belong to a former employer or another person or
entity and for which EMPLOYEE has a duty of confidentiality.
(b) THE COMPANY represents and warrants to EMPLOYEE that THE COMPANY
has full power and authority to enter into and perform this Agreement and that
THE COMPANY's execution and performance of this Agreement shall not constitute a
default or breach by THE COMPANY under, or of any of the terms of, any other
agreement to which THE COMPANY is a party or by which THE COMPANY is bound. THE
COMPANY represents that no consent or approval of any third party is required
for THE COMPANY's execution, delivery and performance of this Agreement or that
all consents or approvals of any third party required for such execution,
delivery and performance of this Agreement have been obtained.
ARTICLE II
Employment Term
The term of EMPLOYEE's employment hereunder (the "Employment Term") shall
commence as of the Effective Date hereof (referred to for these purposes as the
"Commencement Date") and shall continue for an initial term of three (3) years
from the Commencement Date (the "Initial Term"), unless earlier terminated
pursuant to the provisions of this Agreement. Following the completion of the
Initial Term, EMPLOYEE's term of employment shall be renewed automatically for
additional one-year terms ("Annual Terms") in the absence of written notice of
termination given by either party at least ninety (90) days prior to the date of
any such renewal.
ARTICLE III
Compensation
3.1 Base Salary. As compensation for the services to be rendered by
EMPLOYEE, THE COMPANY shall pay EMPLOYEE, during the Employment Term, an annual
base salary (as in effect from time to time, "Base Salary") of not less than
Three Hundred Thousand Dollars ($300,000) during the first year of the
Employment Term, Three Hundred and Twenty Five Thousand Dollars ($325,000)
during the second year of the Employment Term, and Three Hundred and Fifty
Thousand Dollars ($350,000) thereafter. The Base Salary shall accrue monthly
(prorated for periods less than a month) and shall be paid in accordance with
THE COMPANY's standard payroll practices. The Base Salary will be reviewed
annually, or, more frequently, as appropriate, by the Board of Directors for
upward, but not downward, adjustment in its sole discretion.
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3.2 Bonus Compensation. For every fiscal year of THE COMPANY ending during
the Employment Term, EMPLOYEE will be entitled to receive such additional bonus
or other compensation ("Bonus Compensation"), if any, as may be approved by the
Board of Directors or a Compensation Committee whose members all are directors
of THE COMPANY and which committee is appointed as such by the Board of
Directors.
3.3 Benefits. EMPLOYEE shall be entitled, during the Employment Term, to
the same fringe benefits as are from time to time then available to THE
COMPANY's most senior executive officers, such as (1) medical, hospital, dental,
life, disability, and other insurance coverage, (2) participation in incentive,
bonus, stock option, equity ownership, pension, profit sharing, and other
benefit plans, and (3) normal vacation allowance and other paid time off for all
EMPLOYEEs who are executive officers of THE COMPANY, but not less than three
weeks annually.
3.4 Withholding. Any and all amounts payable under this Agreement,
including amounts payable under this Article III and Article VII, are subject to
withholding for such federal, state and local taxes required pursuant to any
applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities. EMPLOYEE shall be furnished with an office at the
location set forth in Section 1.3 hereof, or at such other location as agreed to
by EMPLOYEE and THE COMPANY, and other working facilities and secretarial and
other assistance suitable to the Employment Position and reasonably required for
the performance of EMPLOYEE's duties hereunder.
4.2 Reimbursement for Expenses. THE COMPANY shall reimburse EMPLOYEE, in
accordance with THE COMPANY's policies and practices for senior management, for
all reasonable expenses actually incurred by EMPLOYEE while employed by THE
COMPANY and in the performance of EMPLOYEE's duties under and in accordance with
the terms and conditions of this Agreement, subject to EMPLOYEE's furnishing to
THE COMPANY an itemized account, reasonably satisfactory to THE COMPANY, in
substantiation of such expenditures, along with appropriate documentation
thereof, including receipts for all such expenses in the manner required
pursuant to THE COMPANY's policies and procedures and the Internal Revenue Code
of 1986, as amended (the "Code"), and applicable regulations in effect from time
to time.
4.3 Insurance. THE COMPANY may secure in its own name or otherwise, and at
its own expense, life, disability and other insurance covering EMPLOYEE or
EMPLOYEE and others, and EMPLOYEE shall not have any right, title or interest in
or to such insurance other than as expressly provided herein. EMPLOYEE agrees to
assist THE COMPANY in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s)
as THE COMPANY or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance. Any information
provided by EMPLOYEE to such insurance company (the results of examinations
being deemed part of such information) will be provided on a confidential basis,
and THE COMPANY shall have no access thereto.
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ARTICLE V
COVENANTS AND RESTRICTIONS
EMPLOYEE covenants that, except in carrying out his duties hereunder,
during the term of his employment and for a period of one (1) year following the
date of termination of employment hereunder (unless such longer period of time
is specifically set forth herein):
5.1 Non-Competition. Without the express written consent of the Board of
Directors, EMPLOYEE shall not directly or indirectly, own any interest in,
participate or engage in, assist, render any services (including advisory
services) to, become associated with, work for, serve (in any capacity
whatsoever, including, without limitation, as an EMPLOYEE, consultant, advisor,
agent, independent contractor, officer or director) or otherwise become in any
way or manner connected with the ownership, management, operation, or control
of, any business, firm, corporation, partnership or other entity (collectively
referred to herein as a "Person") that engages in, or assists others in engaging
in or conducting any business, which deals, directly or indirectly, in products
or services similar to or competitive with the Company's product line or
services in the United States; provided, however, the above shall not be deemed
to exclude EMPLOYEE from acting as director of another corporation with the
consent of the Company's Board of Directors; provided further, however, that the
above shall not be deemed to prohibit EMPLOYEE from owning or acquiring
securities issued by any corporation whose securities are listed with a national
securities exchange or are traded in the over-the-counter market, provided that
EMPLOYEE at no time owns, directly or indirectly, beneficially or otherwise,
five (5%) percent or more of any class of any such corporation's outstanding
capital stock.
5.2 Non-Solicitation. EMPLOYEE shall not knowingly provide or solicit to
provide to any Person or individual (i) any goods or services which are
competitive with those provided by the Company or which would be competitive
with the goods or services that the Company has planned to provide; or (ii) any
goods or services to any customer of the Company. The term "customer" shall mean
any person or individual to whom the Company has provided goods or services
within the twenty-four (24) month period prior to the termination of EMPLOYEE's
employment hereunder. Notwithstanding anything herein to the contrary, no
limitation shall be imposed on EMPLOYEE hereunder with respect to any goods and
services that the Company has planned to provide and which are not actually
being provided at the time of the termination of EMPLOYEE's employment
hereunder.
5.3 Confidentiality. EMPLOYEE agrees that he shall not divulge to others,
nor shall he use to the detriment of the Company or in any business or process
of manufacture competitive with or similar to any business or process of
manufacture engaged in by the Company or any of its subsidiary or affiliated
companies, at any time during his employment with the Company or thereafter, any
Confidential Information (as defined in Section 7.2) obtained by him during the
course of his employment with the Company relating to sales, salesmen, sales
volume or strategy, customers, formulas, processes, methods, machines,
manufactures, compositions, ideas, improvements or inventions belonging to or
relating to the business of the Company, or its subsidiary or affiliated
companies.
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5.4 Personnel. EMPLOYEE shall neither solicit, seek to solicit any of the
Company's personnel in any capacity whatsoever nor shall EMPLOYEE induce or
attempt to induce any of the Company's personnel to leave the employ of the
Company to work for EMPLOYEE or otherwise.
5.5 Damages. EMPLOYEE acknowledges that his breach of any of the
restrictive covenants contained in this Article V may cause irreparable damage
to the Company for which remedies at law would be inadequate. Accordingly, if
EMPLOYEE breaches or threatens to breach any of the provisions of this Article
V, the Company shall be entitled to appropriate injunctive relief, including,
without limitation, preliminary and permanent injunctions in any court of
competent jurisdiction, restraining EMPLOYEE from taking any action prohibited
hereby. This remedy shall be in addition to all other remedies available to the
Company at law or equity. If any portion of this Article V is adjudicated to be
invalid or unenforceable, this Article V shall be deemed amended to delete
therefrom the portion so adjudicated, such deletion to apply only with respect
to the operation of this Article V in the jurisdiction in which such
adjudication is made.
ARTICLE VI
Illness or Incapacity
6.1 Right to Terminate. Except as provided by this Article and
notwithstanding anything else to the contrary contained in this Agreement, THE
COMPANY shall have no right to terminate EMPLOYEE's employment hereunder during
any period that EMPLOYEE suffers illness or incapacity. THE COMPANY shall have
the right to terminate EMPLOYEE's employment hereunder by delivery of thirty
(30) days written notice of termination if EMPLOYEE is unable to perform, with
reasonable accommodation, in all material respects EMPLOYEE's duties hereunder
for a period exceeding six (6) consecutive months by reason of illness or
incapacity. A termination of employment under this Article will be deemed a
termination "without good cause" as described in Section 8.1 hereof.
6.2 Right to Replace. If EMPLOYEE's illness or incapacity, whether by
physical or mental cause, renders EMPLOYEE unable for a minimum period of thirty
(30) consecutive calendar days to carry out EMPLOYEE's duties and
responsibilities as set forth herein, THE COMPANY shall have the right to
designate a person to temporarily perform EMPLOYEE's duties; provided, however,
that if EMPLOYEE returns to work from such illness or incapacity within the six
(6) month period following the commencement of EMPLOYEE's inability due to such
illness or incapacity, EMPLOYEE shall be entitled to be reinstated in the
capacity described in Article I hereof with all rights, duties and privileges
attendant thereto.
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6.3 Rights Prior to Termination. EMPLOYEE shall be entitled to EMPLOYEE's
full Base Salary under Section 3.1 hereof and other benefits under Article III
hereof during such illness or incapacity unless and until expiration or other
termination of EMPLOYEE's employment hereunder.
6.4 Determination of Illness or Incapacity. For purposes of this Article
VI, the term "illness or incapacity" shall mean EMPLOYEE's inability to perform
EMPLOYEE's duties hereunder substantially on a full-time basis because of
physical or mental illness or physical injury as determined by the Board of
Directors, in its reasonable discretion based upon competent medical evidence.
Upon THE COMPANY's written request, EMPLOYEE shall submit to reasonable medical
and other examinations to provide the evidence required hereunder.
ARTICLE VII
Trade Secrets
7.1 Confidentiality. EMPLOYEE will hold Confidential Information in
confidence and trust and limit disclosure of Confidential Information strictly
to persons who have a need to know such Confidential Information in connection
with the Business and who have agreed in writing with THE COMPANY to maintain
the confidentiality of such Confidential Information. EMPLOYEE will not
disclose, use, or permit the use or disclosure of Confidential Information,
except in satisfying EMPLOYEE's obligations under this Agreement. EMPLOYEE will
use reasonable care to protect Confidential Information from inappropriate
disclosure, whether inadvertent or intentional. Notwithstanding the foregoing,
EMPLOYEE may disclose Confidential Information if such disclosure is required by
a court order or an order of a similar judicial or administrative body;
provided, however, that EMPLOYEE notifies THE COMPANY of such requirement
immediately and in writing, and cooperates reasonably with THE COMPANY in
obtaining a protective or similar order with respect thereto.
7.2 Confidential Information. For the purposes of this Agreement, the
phrase "Confidential Information" means information or materials that, in THE
COMPANY's reasonable determination, provide advantage to THE COMPANY over others
not having such information or materials and includes (i) customer information,
supplier information, sales channel and distributor information, material terms
of any contracts, marketing philosophies, strategies, techniques and objectives
(including product and service roll-out dates and volume estimates), legal and
regulatory positions and strategies, advertising and promotional copy,
competitive advantages and disadvantages, non-published financial data, product
or service plans, designs, costs, prices and names, inventions, discoveries,
improvements, technological developments, know-how, software code, business
opportunities (including planned or proposed financings, mergers, acquisitions,
ventures and partnerships) and methodologies and processes (including the look
and feel of computer screens and reports) relating to the Business; (ii)
information designated in writing or conspicuously marked as "confidential" or
"proprietary" or likewise designated or marked with words of similar import;
(iii) information for which THE COMPANY has an obligation of confidentiality so
long as such obligation is known to EMPLOYEE; and (iv) information of a nature
that a reasonable person would conclude that it is confidential or proprietary.
Notwithstanding the foregoing, information will not be deemed Confidential
Information if such information: (i) prior to receipt from THE COMPANY, is or
was known to EMPLOYEE directly or indirectly from a source other than one having
an obligation of confidentiality to THE COMPANY; (ii) becomes known
(independently of disclosure by THE COMPANY) to EMPLOYEE directly or indirectly
from a source other than one having an obligation of confidentiality to THE
COMPANY; (iii) becomes publicly known or otherwise ceases to be secret or
confidential, except through a breach of this Agreement by EMPLOYEE; or (iv) is
independently developed by EMPLOYEE. EMPLOYEE may disclose Confidential
Information pursuant to the requirements of a governmental agency or by
operation of law, provided that EMPLOYEE gives THE COMPANY reasonable prior
written notice sufficient to permit THE COMPANY to contest such disclosure.
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7.3 Notification of Third Party Disclosure Requests. If EMPLOYEE receives
any written or oral third party request, order, instruction or solicitation for
the disclosure of Confidential Information not in conformance with this
Agreement or if EMPLOYEE becomes aware of any attempt by a third party to
improperly gain Confidential Information, EMPLOYEE shall immediately notify the
Board of Directors [*optional: or THE COMPANY's Chief Executive Officer] or of
such request, order, instruction or solicitation or of such attempt and fully
disclose the details surrounding such request, order, instruction or
solicitation or such attempt.
7.4 Non-Removal of Records. All documents, files, records, data, papers,
materials, notes, books, correspondence, drawings and other written, graphic or
electronic records of the Business and all computer software of THE COMPANY
which EMPLOYEE shall prepare or use, or come into contact with, shall be and
remain the exclusive property of THE COMPANY, in its discretion, and shall not
be physically, electronically, telephonically or otherwise removed from THE
COMPANY's premises without THE COMPANY's prior written consent.
7.5 Return or Destruction of Confidential Information. Confidential
Information gained, received or developed by EMPLOYEE or in which EMPLOYEE
participated in developing will remain the exclusive property of THE COMPANY, in
its sole discretion. EMPLOYEE will promptly return to THE COMPANY or destroy or
erase all records, books, documents or any other materials whatsoever (including
all copies thereof) containing such Confidential Information in EMPLOYEE's
possession or control upon the earlier of (i) the receipt of a written request
from THE COMPANY for return or destruction of Confidential Information or (ii)
the termination of EMPLOYEE's employment hereunder.
7.6 Trade Secrets of Others. In the course of EMPLOYEE's employment
hereunder, EMPLOYEE will not use any information or materials that belong to any
former employer or any other person or entity and for which EMPLOYEE has a duty
of confidentiality or use or allow the use of any illegally obtained
confidential or secret information or materials.
ARTICLE VIII
Termination
8.1 Termination by THE COMPANY.
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(a) THE COMPANY may terminate EMPLOYEE's employment hereunder for good
cause anytime by delivery of written notice of termination. A termination for
good cause under this Section 8.1 shall be effective upon the date set forth in
a written notice of termination delivered to EMPLOYEE. Good cause will be
limited to the following circumstances:
(1) habitual absence from the Company's offices on non-Company
matters that interferes with the EMPLOYEE's duties;
(2) habitual drunkenness by the EMPLOYEE;
(3) habitual drug abuse or drug addiction by the EMPLOYEE;
(4) the EMPLOYEE maliciously denigrating in public the Company or any
officer, director or affiliate thereof;
(5) physical destruction of substantial property or asset of the
Company by, or caused by, the EMPLOYEE;
(6) appropriation of business opportunities of the Company by the
EMPLOYEE for the direct or indirect personal gain of the EMPLOYEE
or members of his family without the prior written consent of the
Board;
(7) willful and malicious interference with the Company's operations
by the EMPLOYEE;
(8) engagement by the EMPLOYEE in any act of fraud, material
misappropriation of funds or assets, or embezzlement, including
without limitation, theft, bribery or the receipt of kickbacks;
(9) a conviction of the EMPLOYEE for, or a plea of nolo contendere by
the EMPLOYEE to, a felony or other criminal act for which the
possible penalties include a prison sentence of at least 1 year;
(10) a material breach by the EMPLOYEE of the restrictive covenants
contained in this Agreement, or for disloyal, dishonest or
illegal conduct by the EMPLOYEE; or
(11) EMPLOYEE is in default in a material respect in the performance
of EMPLOYEE's obligations, services or duties hereunder,
including EMPLOYEE's willfully disregarding the written or oral
instructions of the Board of Directors [*optional: or THE
COMPANY's Chief Executive Officer] concerning the conduct of
EMPLOYEE's duties hereunder, EMPLOYEE's conduct which is
materially inconsistent with the published policies of THE
COMPANY, as promulgated from time to time and which are generally
applicable to all EMPLOYEEs or to senior management, or
EMPLOYEE's breach of any other material provision of this
Agreement; and, in any such case, such act has resulted (or could
reasonably be expected to result) in substantial harm to THE
COMPANY; or
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(b) THE COMPANY may terminate EMPLOYEE's employment hereunder without
good cause at any time not fewer than 30 days nor more than 45 days after
delivering written notice of termination to EMPLOYEE.
8.2 Effect of Termination for Good Cause. If EMPLOYEE's employment is
terminated by THE COMPANY for good cause:
(a) EMPLOYEE shall be entitled to accrued Base Salary under Section
3.1 and accrued vacation pay and other paid time off, each
through the date of termination;
(b) EMPLOYEE shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions
of Section 4.2 hereof; and
(c) Except as provided in Article X, this Agreement shall thereupon
be of no further force and effect.
8.3 Effect of Termination without Good Cause. If THE COMPANY terminates
EMPLOYEE's employment without good cause:
(a) EMPLOYEE shall be entitled to accrued Base Salary under Section
3.1 and accrued vacation pay and other time off, each through the
date of termination;
(b) EMPLOYEE shall be entitled to receive a one-time, lump sum
severance payment equal to the sum of all amounts of Base Salary
as would have been payable under Section 3.1 through the end of
the Initial Term or Annual Term as the case may be, such lump sum
to be paid by THE COMPANY to EMPLOYEE no later than thirty (30)
calendar days after the date of termination of employment
hereunder;
(c) If the termination is within three years of a Change of Control
(as defined herein), then, in lieu of any payment under
paragraphs (a) and (b) of this Section, EMPLOYEE shall be
entitled to receive a one-time, lump sum severance payment equal
to three (3) times the total amount of the annual Base Salary
payable under the terms of Section 3.1 of this Agreement plus any
Bonus Compensation paid in the prior year, such lump sum to be
paid by THE COMPANY to EMPLOYEE no later than thirty (30)
calendar days after the date of termination of employment
hereunder;
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(d) EMPLOYEE shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions
of Section 4.2 hereof;
(e) Except as provided in this Article and Article X, this Agreement
shall thereupon be of no further force or effect.
8.4 Deemed Termination without Good Cause. After the occurrence of any of
the following events, EMPLOYEE, at EMPLOYEE's sole option, may declare by thirty
days (30) written notice to THE COMPANY that EMPLOYEE's employment hereunder has
been terminated by THE COMPANY, and such termination will for all purposes of
this Agreement be deemed a termination by THE COMPANY without good cause:
(a) THE COMPANY removes EMPLOYEE from the Employment Position or from
the office of Chief Executive Officer and President;
(b) THE COMPANY materially changes EMPLOYEE's reporting requirements;
(c) THE COMPANY fails to afford EMPLOYEE the power and authority
generally commensurate with the Employment Position and from the
office of Chief Executive Office and President;
(d) THE COMPANY requires EMPLOYEE to relocate EMPLOYEE's residence;
(e) A Change of Control occurs; or
(f) THE COMPANY breaches any material provision of this Agreement.
8.5 Termination by EMPLOYEE. EMPLOYEE may terminate EMPLOYEE's employment
hereunder by giving not less than forty-five (45) days written notice to THE
COMPANY.
8.6 Effect of Termination by EMPLOYEE. If EMPLOYEE terminates EMPLOYEE's
employment pursuant to Section 8.5 hereof:
(a) EMPLOYEE shall be entitled to accrued Base Salary under Section
3.1 and accrued vacation pay and other paid time off, each
through the date of termination;
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(b) EMPLOYEE shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions
of Section 4.2 hereof; and
(c) Except as provided in Article X, this Agreement shall thereupon
be of no further force and effect.
8.7 Change of Control. For purposes of Section 8.3 of this Agreement, a
"Change of Control" shall be deemed to have occurred in the event of:
(a) The acquisition by any person or entity, or group thereof acting
in concert (except in the case of a public offering or private
placement of the Company's securities that is approved by the
Board of Directors of THE COMPANY, and excluding any person,
entity or group already beneficially owning thirty percent (30%)
or more of the now outstanding shares of capital stock of THE
COMPANY), of "beneficial" ownership (as such term is defined in
Securities and Exchange Commission ("SEC") Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")), of securities of THE COMPANY which, together with
securities previously owned, confer upon such person, entity or
group (excluding any person, entity or group that holds such
voting power as of the Commencement Date) the voting power, on
any matters brought to a vote of shareholders, of thirty percent
(30%) or more of the then outstanding shares of capital stock of
THE COMPANY; or
(b) The sale, assignment or transfer of assets of THE COMPANY in a
transaction or series of transactions, if the aggregate
consideration received or to be received by THE COMPANY in
connection with such sale, assignment or transfer is greater than
fifty percent (50%) of the book value, determined by THE COMPANY
in accordance with generally accepted accounting principles, of
THE COMPANY's assets determined on a consolidated basis
immediately before such transaction or the first of such
transactions; or
(c) The merger, consolidation, share exchange or reorganization of
THE COMPANY as a result of which the holders of all of the shares
of capital stock of THE COMPANY as a group would receive less
than fifty percent (50%) of the voting power of the capital stock
or other interests of the surviving or resulting corporation or
entity; or
(d) The adoption of a plan of liquidation or the approval of the
dissolution of THE COMPANY; or
(e) EMPLOYEE is removed from office as a director of THE COMPANY, or
is not reelected as a director upon termination or expiration of
any term of service as a director of THE COMPANY; or
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(f) The commencement (within the meaning of SEC Rule 14d-2 under the
Exchange Act) of a tender or exchange offer that, if successful,
would result in the occurrence of one of the events described in
paragraphs (a) through (h) of this Section; or
(g) A determination by the Board of Directors of THE COMPANY, in view
of then current circumstances or impending events, that one of
the events described in paragraphs (a) through *[(h)] of this
Section has occurred or is imminent, which determination shall be
made for the specific purpose of triggering the operative
provisions of this Agreement.
8.8 Certain Additional Payments by THE COMPANY.
(a) If it shall be determined that any payment, distribution or
benefit received or to be received by EMPLOYEE from THE COMPANY
("Payments") would be subject to the excise tax imposed by
Section 4999 of the Code (the "Excise Tax"), then EMPLOYEE shall
be entitled to receive an additional payment (the "Excise Tax
Gross-Up Payment") in an amount such that the net amount retained
by EMPLOYEE, after the calculation and deduction of any Excise
Tax on the Payments and any federal, state and local income taxes
and excise tax on the Excise Tax Gross-Up Payment provided for in
this Section 8.8, shall be equal to the Payments. In determining
this amount, the amount of the Excise Tax Gross-Up Payment
attributable to federal income taxes shall be reduced by the
maximum reduction in federal income taxes that could be obtained
by the deduction of the portion of the Excise Tax Gross-Up
Payment attributable to state and local income taxes. Finally,
the Excise Tax Gross-Up Payment shall be reduced by income or
excise tax withholding payments made by THE COMPANY or any
affiliate of either to any federal, state or local taxing
authority with respect to the Excise Tax Gross-Up Payment that
was not deducted from compensation payable to EMPLOYEE.
(b) All determinations required to be made under this Section 8.8,
including whether and when an Excise Tax Gross-Up Payment is
required and the amount of such Excise Tax Gross-Up Payment and
the assumptions to be utilized in arriving at such determination,
except as specified in Section 8.8(a) above, shall be made by THE
COMPANY's independent auditors (the "Accounting Firm"), which
shall provide detailed supporting calculations both to THE
COMPANY and EMPLOYEE within 15 business days after EMPLOYEE
provides THE COMPANY with notice that a Payment has been or will
be made or such earlier time as may be required by THE COMPANY.
The determination of tax liability made by the Accounting Firm
shall be subject to review by EMPLOYEE's tax advisor and, if
EMPLOYEE's tax advisor does not agree with the determination
reached by the Accounting Firm, then the Accounting Firm and
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EMPLOYEE's tax advisor shall jointly designate a nationally
recognized public accounting firm, which shall make the
determination. All fees and expenses of the accountants and tax
advisors retained by either EMPLOYEE or THE COMPANY shall be
borne by THE COMPANY. Any Excise Tax Gross-Up Payment, as
determined pursuant to this Section 8.8, with respect to a
Payment shall be paid by THE COMPANY to EMPLOYEE at such time as
EMPLOYEE is entitled to receive the Payment. Any determination by
a jointly designated public accounting firm shall be binding upon
THE COMPANY and EMPLOYEE.
(c) As a result of the uncertainty in the application of Subsection
4999 of the Code at the time of the initial determination
hereunder, it is possible that Excise Tax Gross-Up Payments will
not have been made by THE COMPANY that should have been made
consistent with the calculations required to be made hereunder
("Underpayment"). In the event that EMPLOYEE thereafter is
required to make a payment of any Excise Tax, any such
Underpayment calculated in accordance with and in the same manner
as the Excise Tax Gross-Up Payment in Section 8.8(a) above shall
be promptly paid by THE COMPANY to or for the benefit of
EMPLOYEE. In the event that the Excise Tax Gross-Up Payment
exceeds the amount subsequently determined to be due, such excess
shall constitute a loan from THE COMPANY to EMPLOYEE payable on
the fifth day after demand by THE COMPANY (together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code).
ARTICLE IX
Miscellaneous
9.1 No Waivers. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
9.2 Notices. Any notice required or permitted to be given to under the
terms of this Agreement may be delivered in person, by courier or a nationally
recognized overnight delivery service that obtains a confirmation of delivery,
or by registered or certified mail, postage prepaid, return receipt requested,
or by fax or e-mail transmission if delivery is promptly confirmed, and shall be
addressed as follows:
If to THE COMPANY: Nanobac Pharmaceuticals Inc.
0000 Xxxxxx Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxx, XX 00000
Attention: Chairman of the Board
Fax: 000-000-0000
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If to EMPLOYEE: Xxxxxxxxx X. Xxxxxxx III
00000 Xxxxxxxxx Xxx Xx.
Xxxxx, XX 00000
Fax: 000-000-0000
Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
delivered by courier or overnight delivery service, (iii) on the third day after
it is mailed by registered or certified mail, postage prepaid, return receipt
requested as provided herein, (iv) when proper transmission is confirmed if
transmitted by fax or e-mail.
9.3 Severability. The provisions of this Agreement are severable and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
9.4 Successors and Assigns. The rights and obligations of THE COMPANY under
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of THE COMPANY, including the survivor upon any merger,
consolidation, share exchange or combination of THE COMPANY with any other
entity. EMPLOYEE shall not have the right to assign, delegate, or otherwise
transfer to any person or entity any duty or obligation to be performed by
EMPLOYEE hereunder.
9.5 Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification
(except as otherwise provided herein with respect to the modification of
provisions that are unreasonable, arbitrary or against public policy),
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding that involves the interpretation of any provisions of this
Agreement.
9.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida without reference to
the conflict of law principles thereof.
9.7 Construction. This Agreement was negotiated at arms'-length and will
not be construed more strongly against any party regardless of which party was
responsible for its preparation. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural will include
the singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender will include the other genders. The words "Agreement," "hereof,"
"herein" and "hereunder" and words of similar import referring to this Agreement
refer to this Agreement as a whole, including Exhibits, and not to any
particular provision of this Agreement. Whenever the word "include," "includes"
or "including" is used in this Agreement, it will be deemed to be followed by
the words "without limitation." The various headings contained in this Agreement
are inserted only as a matter of convenience and in no way define, limit or
extend the scope or intent of any of the provisions of this Agreement.
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9.8 Further Assurances. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by the other party in order to carry out the provisions
and purposes of this Agreement.
9.9 Affiliate. The term "Affiliate" with respect to a party to this
Agreement means (i) any person or entity directly or indirectly controlling the
party; (ii) any person or entity controlled by or under common control with the
party; (iii) any person or entity owning or controlling 10% or more of the
outstanding voting securities or interests of the party; (iv) any officer,
director, partner or EMPLOYEE of a person or entity described in (i), (ii) or
(iii) above; and (v) any entity for which a person or entity described in (i),
(ii) or (iii) above is an officer, director, partner, or EMPLOYEE.
9.10 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
9.11 Confidential Arbitration. The parties hereto agree that any dispute
concerning or arising out of the provisions of this Agreement, EMPLOYEE's
employment or termination of EMPLOYEE's employment shall be resolved by
confidential arbitration in accordance with the rules of the American
Arbitration Association. Such confidential arbitration shall be held in Tampa,
Florida, and the decision of the arbitrator(s) shall be conclusive and binding
on the parties and shall be enforceable in any court of competent jurisdiction.
The arbitrator may, in the arbitrator's discretion, award attorney's fees and
costs to such party as the arbitrator sees fit in rendering a decision.
9.12 Indemnification Agreement. THE COMPANY and EMPLOYEE shall enter into
an Indemnification Agreement in form and substance reasonably satisfactory to
EMPLOYEE and appropriate with respect to an officer of a publicly traded
corporation.
ARTICLE X
Survival
The provisions of Articles VII and VIII of this Agreement and this Article
shall survive the termination, rescission or expiration of this Agreement
whether upon, or prior to, the Scheduled Termination Date hereof. The
representations and warranties of the parties hereto shall survive the execution
of this Agreement and continue without limitation.
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ARTICLE XI
Intellectual Property
All Confidential Information, computer software, video and sound
recordings, scripts, creations, inventions, improvements, designs and
discoveries conceived, created, invented, authored, developed, produced or
discovered by EMPLOYEE while employed by THE COMPANY, whether alone or with
others, whether during or after regular work hours, are and will be THE
COMPANY's property exclusively, in its sole discretion. EMPLOYEE hereby assigns
to THE COMPANY all copyrights, trademarks, patents, related applications and
registrations, and other rights of authorship, invention or ownership EMPLOYEE
may have with respect to such items. Moreover, at any time, without additional
consideration, EMPLOYEE will execute and deliver any documents or instruments
that THE COMPANY may request in order to effectively convey and transfer good
title and right to, and put THE COMPANY in possession of, such items.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
Nanobac Pharmaceuticals, INC.,
a Florida corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Print Name: Xxxx Xxxxxxx
Title: Chairman of the Board
EMPLOYEE
By: /s/ Xxxxxxxxx X. Xxxxxxx III
--------------------------------
Xxxxxxxxx X. Xxxxxxx III
00000 Xxxxxxxxx Xxx Xx
Xxxxx, Xx 00000
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