ADDENDUM TO THE EMPLOYMENT CONTRACT: KIM K. THOMPSON THIS ADDENDUM to the EMPLOYMENT CONTRACT ("Agreement") dated the April 26, 2006, between Kraig Biocraft Laboratories, inc., a Wyoming corporation (the Thompson") is dated November 6, 2006,
XXXXX
BIOCRAFT LABORATORIES, INC.
ADDENDUM
TO THE
EMPLOYMENT
CONTRACT: XXX X. XXXXXXXX
THIS
ADDENDUM to the EMPLOYMENT CONTRACT ("Agreement") dated the April
26,
2006, between Xxxxx Biocraft
Laboratories, inc.,
a Wyoming corporation
(the
"Company")
and Xx Xxxxxxxx, an individual ("Executive", "Employee" or "Xx.
Xxxxxxxx")
is dated November 6, 2006,
The
Board
of Directors of the Company (the "Board") and Executive each desires that the
EMPLOYMENT CONTRACT be modified and amended by this ADDENDUM as described below.
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NOW,
THEREFORE, in consideration of the mutual promises and undertakings contained
in
this ADDENDUM , and for other good and valuable consideration, the receipt
and
adequacy of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
Section
4, subsection C of the EMPLOYMENT CONTRACT, titled Stock and Warrants, shall
be
deleted, and no stock warrants or stock options shall be issued or
owing
to Mr. 'Xxxxxxxx pursuant to former section 4(c). Pursuant to the deletion
of said
paragraph 4 (c), all references to the granting or vesting of stock warrants
in
section 4 (g), or otherwise in
the Employment Contract, are rendered meaningless and void, and such is
the intention of the parties entering into this addendum.
Section
8. titled Termination by Company, shall be amended to increase the referenced
severance allowance to
$600,000, or seventy five percent (75%) of the total salary compensation
Executive would have been
entitled to for the
remainder
of
his Term of employment, whichever is greater,
Section
9. titled Notice of Termination shall be amended to require that any notice
of
termination must, in order to be effective, be accompanied by
a
tendering of the severance allowance specified in Section
8.
Section
12. titled Death Benefit shall be amended to increase the referenced death
benefit to three hundred thousand dollars ($300,000) or thirty percent (35%)
of
the total salary compensation Executive would have been entitled to for the
remainder of his Term of employment, whichever is greater.
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IN
WITNESS WHEREOF, the parties hereto have executed this Addendum under seal
the
dayand year above first written.
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Executive
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Company
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/s/ Xxx
Xxxxxxxx
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/s/ Xxx
Xxxxxxxx
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Xxx
Xxxxx Xxxxxxxx
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Xxx
Xxxxx Xxxxxxxx
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| C.E.O. | |
| On behalf of Xxxxx Biocraft Laboratories, Inc. |
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XXXXX
BIOCRAFT LABORATORIES, INC.
EMPLOYMENT
CONTRACT: XXX X. XXXXXXXX
THIS
EMPLOYMENT CONTRACT ("Agreement") is dated as of the 26th day of April, 2006,
by
and between Xxxxx Biocraft Laboratories, Inc., a Wyoming corporation (the
"Company') and Xxx Xxxxxxxx, an individual ("Executive'', "Employee" or “Xx. Xxxxxxxx").
The
Board
of Directors of the Company (the "Board") and Executive each desires that
Executive furnish services to the Company on the terms and conditions
hereinafter set forth. The parties enter into this agreement setting forth
the
terms and conditions of the employment of the Executive with the
Company,
NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises and
undertakings contained in this Employment Contract, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
as follows:
1. Employment.
The Company hereby agrees to employ the Executive, and the Executive
hereby accepts such employment, on the terms and conditions hereinafter set
forth.
2. Term. The
term
of Executive's employment under this Agreement shall be for a period of five
(5)
years, commencing on May 1, 2006 and ending on April 30, 2011, unless further
extended or sooner terminated as hereinafter provided.
On
April
30, 2007 and on the last day of April of each year thereafter, the Term shall
be
automatically extended for five (5) years, so that at all times, the Term on
each April 30 during the duration of this Agreement shall be an unexpired period
of five (5) years. The last day of the Term, as from time to time extended,
is
hereinafter referred to as the "Expiration Date." The Company or Executive
may
elect to terminate the automatic extension of the Term set forth
in this section by giving written notice of such election
on or before April 30 of any calendar year Upon the giving of such notice,
Executive's employment under this Agreement shall terminate on the Expiration
Date (as last extended).
3. Position
and Duties. During the Term of this Agreement, Executive shall be
employed as Chief Executive Officer of the Company. Inthis capacity
Executive shall have overall authority for the management of the business of
the
Company and the subsidiaries and affiliates of the Company of which he serves
as
Chief Executive Officer, Executive hereby accepts such employment and agrees
to
perform the customary duties of a Chief Executive Officer and accepts such
other
duties as may be set forth herein,
4. Compensation
and Related Matters.
a.
Base Salary. As compensation for the performance by the Executive of
his duties hereunder, the Company shall pay the Executive a annual base salary
of $185,000 for the period commencing May 1, 2006 through and including December
31, 2006, which base pay shall be increased each January 1st for the
subsequent
twelve (12) month periods by six percent (6%). Company acknowledges that the
base salary is less than Xx. Xxxxxxxx'x customary remuneration and that Xx.
Xxxxxxxx is entering into this agreement in part due his perception of the
future value of warrants and deferred, delayed and bonus compensation. Xx.
Xxxxxxxx informs the Company, and the company hereby acknowledges that Xx.
Xxxxxxxx is entering into this agreement and will be performing the services
to
the Company as contemplated herein, in reliance on the promises and
representations of the Company as described in this Agreement. Company further
acknowledges that it is the Company's intention that Xx. Xxxxxxxx so rely upon
these promises and that this Agreement is offered by the Company as an
inducement for Xx. Xxxxxxxx to take on the role of Chief Executive
Officer.
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b. Annual
Bonus/Incentive Compensation. In addition to the compensation described
in subparagraph a. above, Executive may receive such additional compensation,
if
any, in the form of an annual incentive bonus, as may be approved by the
Company's Board of Directors.
c. Stock
and Warrants. Executive will receive additional compensation in the
form of warrants
on the Company stock as a performance incentive. Executive will receive:
1) a five year warrant On
700,000 shares of the Company's common stock at an
aggregate exercise price of $150,000; 2) a eight year warrant on $1,500,000
shares of the Company's common stock at an aggregate exercise price of $500,000:
3) a nine year warrant On
2.000,000 shares of the Company's common stock at an aggregate exercise
price of $800,000 Those warrants are fully vested as of the date of this
agreement.
d. Life
andDisability Insurance Premium. COMPANY shall pay
Executive's premium on his personal life insurance policy for the period [he
or
she] performs the duties of EXECUTIVE. EXECUTIVE shall receive disability
insurance in an amount which is reasonable and commercially
customary.
e. Vacation
and sick leave. Paid vacation of four (4) weeks per year, which
vacation shall be taken at such times as are mutually convenient to Executive
and the Company. Paid sick leave for up to 21 days per year.
f. Medical
and Dental Insurance. COMPANY shall either provide to EXECUTIVE and pay
the full premium for a comprehensive family health medical and dental insurance
policy or
if EXECUTIVE elects to provide [his or her] own
hearth insurance, pay to EXECUTIVE an amount equal to the cost of
providing said comprehensive family health insurance policy.
g. Performance
Bonus Compensation. In addition to any other compensation paid to
EXECUTIVE, COMPANY shall pay EXECUTIVE the following compensation and bonuses
in
accordance with the criteria set Forth below;
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1. Upon
the Company's successful laboratory development of a new
silk fiber composed of one or more proteins
that are exogenous to a host and one or more proteins that are
endogenous to a host, the company will: 1) Release Executive
from the condition subsequent on a eight year warrant on 500,000
shares of
the company stock at an aggregate exercise price of $100,000 and,
2) raise
Executive's base pay by 14%.
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2. Upon
the Company's successful laboratory development of a new silk fiber
composed of two ormore
proteins that are exogenous to a host, whether or not combined
with one or
more proteins that are endogenous to a host, the company will:
1) Release
Executive from the condition subsequent on a eight year warrant
on 600.000
shares of the company
stock at an aggregate exercise price of $110,000, and: 2)
raise
Executive's base pay by 15%.
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3. Upon
the Company's successful laboratory development of a new silk
fiber
composed, at least in part, of one or more
synthetic proteins, the company will 1) Release Executive
from the
condition subsequent on a eight year warrant on 900,000 shares
of the
company stock at an aggregate exercise price of $160,000, and;
2) raise
Executive's base pay by 18%.
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4. Upon
the Company's successful laboratory development of a new silk
fiber
composed, at [east in part, of one or more proteins that are
genetic
modifications or induced mutations of a host silk proteins, the
company will raise Executive's base pay by
8%.
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5.
Upon the Company's successful laboratory development
of two out of three
of the silk fibers referenced in subsections 1, 2 and
3 above, rite Board
of Directors meet (within 60 days of said event) and
consider what bonus
compensation would be appropriate and suitably rewarding
to Executive
under the totality of the
circumstances.
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6.
Upon the Company's becoming either a registered
company (in the United
States or any foreign jurisdiction) or
upon its stock being traded on the
pink sheets or the OTC Bulletin Board,
and upon the Company's achieving an
average market capitalization over a 120
calendar day period, in excess of
$35,000,000 the company will raise Executive's
base pay to $225,000, It
Executive's base pay is less than that
amount at the
time.
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7.
Upon the Company's becoming either a
registered company (in the United
States or any foreign jurisdiction) or
upon its stock being traded on the
pink sheets or the OTC Bulletin Board,
and upon the Company's achieving en
average market capitalization over a
91 calendar
day period, in excess of 565,000,000
the company will raise Executive's
base pay to $260,000, if Executive's
base pay is less than that amount at
the time.
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8.
Upon the Company's becoming
either a registered company
(in the United
States or any foreign jurisdiction)
or upon its stock being
traded on the
pink sheets or the OTC
Bulletin Board, and upon
the Company's achieving
an
average market capitalization
over a 91 calendar day
period, in excess of
$100,000,000 the company
will raise Executive's
base pay to $290,000, if
Executive's base pay is
loss than that amount at
the
time.
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9. Upon
the Company's
becoming
either
a registered
company
(in the
United
States
or any
foreign
jurisdiction)
or upon
its stock
being traded
on the
pink
sheets
or the
OTC Bulletin
Board,
and upon
the Company's
achieving
an
average
market
capitalization
over a
120 calendar
day period,
in excess
of
$200,000,000
the company
will raise
Executive's
base pay
to $365,000,
if
Executive's
base pay
is less
than that
amount
at the
time.
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10.Upon
the
Company's
becoming
either
a
registered
company
(in
the
United
States
or
any
foreign
jurisdiction)
or
upon
its
stock
being
traded
on
the
pink
sheets
or
the
OTC
Bulletin
Board,
and
upon
the
Company's
achieving
an
average
market
capitalization
over
a
150
calendar
day
period,
in
excess
of
$350,000,000
the
company
will
raise
Executive's
base
pay
to
$420,000,
if
Executive's
base
pay
is
less
than
that
amount
at
the
time.
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The
warrants described in this subsection (9) are in addition to any warrants issued
outside of this subsection (g) and are fully vested as of the date of this
agreement, but their exercise, in the absence of satisfying the respective
criteria set forth above, is subject to the following conditions subsequent:
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Executive exercises the warrants described in this subsection (g) without first
satisfying the above described criteria, the exercise shall be subject to the
condition that Executive First provide the Company with a written right to
redeem any such shares at the exercise price. Such a right of redemption shall
be for a period of seven years. The criteria will be deemed not to have been
met, if not met within 120 days of the termination of Executives employment,
for
any reason.
The
events referenced in subsections I, 2 and/or 3 above will be deemed to have
occurred and the criteria satisfied when verified in an opinion letter from
any
one of the following: Dr. Macomb Fraser, Dr, Xxxxxxxx Xxxxx, or an independent
laboratory of Company's choosing.
h.
Retirement Plan. The Company will make reasonable commercial efforts to
adopt a retirement benefit plan, which will include
Executive, which is reasonable and comparable to such plans as are customary
in
Company's industry.
5.
Reimbursement of Expenses. The
Executive may incur reasonable expenses for furthering the Company's business,
including expenses for entertainment, travel, meals, and similar items. The
Company shall reimburse Executive for all business expenses after the Executive
presents an itemized account of expenditures, pursuant to Company policy. The
company will cause to be issued a corporate credit card which Executive can
use
for company business. Executive agrees that he
will reimburse the company for an charges he makes on said credit
account to the extent that such are not reasonably connected to the company's
business as contemplated herein. The Company will make any request for
reimbursement from Executive in writing and within fifty (50) days of the
disputed expenditure. Any request or demand by the Company to Executive for
reimbursement of expenditures is waved if not made within fifty days of the
date
the expenditure was made.
No
action will be brought or maintained by the Company against Executive, either
in
a court of law
or in
arbitration, or otherwise, to recover expenses, if the Company has
not complied with this section 5.
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6. Devotion
to Company. The Executive will devote substantially his furl
time, attention, and energies to the business of the Company, its affiliates
and
subsidiaries during this employment. The Company understands that Executive
is
engaged in other business, and Executive is not prohibited from an active
involvement in the operation of said business, however the parties do anticipate
that Executive will devote substantially his full time not less than 70% of
his
work time)
to Company.
7. Termination
by Executive. Executive may terminate his employment hereunder
by giving thirty clays written notice to the Company, in which
event such termination shall become effective at the end of the notice period,
or earlier as may be specified by the Company after receipt of Executive's
Notice of Termination.
8. Termination
by Company. With or without cause, the Company may terminate
Executive's employment at any time prior to the expiration of the five year
term
upon 60 days' written notice to the Executive. The Executive will be paid
his/her regular salary up to the date of termination. In addition, the Company
will pay the Executive on the date of the termination a severance allowance
of
$400,000, or sixty five percent (65%) of the total salary compensation Executive
would have been entitled to for the remainder of his Term of employment,
whichever is greater. The Company will pay any required withholding tax on
said
severance allowance without deducting the same from the amount to be paid to
Executive, If two out of the three conditions set fourth in section 4 (g) sub
parts 3, 4 and 5 have been met by
the time of said
termination,
or are met within 120 days subsequent to such termination,
the severance allowance will be increase by $100,000.
9. Notice
of Termination. Any purported termination of the Executive's
employment shall be communicated by written Notice of Termination to the other
party hereto. If such notice is served by the Company on the Executive, to
be
effective, it must include the signatures of the majority of the board of
directors approving such termination and thanking Executive for his service
to
date.
10.
Termination
Benefits, Upon the expiration or termination of this Agreement
or Executives employment, by either party for any reason, Company shall continue
to provide Executive with life and disability insurance and family health
insurance described above for a period of thirty six (36) months from said
termination/expiration. Company will make all reasonable efforts to allow
Executive to continue such coverage thereafter at Executives own expense, This
provision is in addition to
the
health
benefits provided in section 11
below. This provision shall survive the expiration or termination of
this
agreement for any
reason.
11. Health
Benefit. During the life
of Executive
and also during the life of his spouse, Company shall provide Executive
and his spouse accident and health insurance policies or programs reasonably
comparable to those in effect on the date of termination. or Executive and
his
spouse shall be entitled to be paid an amount equal to the premiums which would
be incurred for the purchase of accident
and
health insurance coverage comparable to that in effect on the Date of
Termination. In addition, Company shall provide Executive with life and
disability insurance policies in an amount not less than that in effect on
the
Date of Termination or Executive shall be entitled to be paid an amount equal
to
the premiums which would be incurred for the purchase of comparable coverage_ This provision shall
survive the expiration or termination of this agreement for any
reason.
12.
Death Benefit. Should Executive die during
the term
of employment, the Company shall pay to Executive's designee, the greater
of eighty thousand dollars ($80,000) or
thirty percent (26%) of the total salary compensation Executive
would have been entitled to for the
remainder
of his Term of employment,
whichever is greater, Company will also continue to pay the
medical
and
health benefits for Executive's family for a period of eight (B) years, in
addition to the benefits to Executives spouse, provided in section 11
above.
13.
Consulting Agreement.
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a. Upon
the expiration or termination of this agreement for any reason, or by either
party, Company
agrees that it will employ Executive as a consultant for a period of six (6)
years and at a rate of 54,000 per month, with a rate increase on January 1*I. 2009, and
each
January thereafter of three percent (3%).Inhis capacity as consultant,
Executive will make himself available, as may be required by the Company,
for up
to 8 hours per month at such times and dates as are mutually convenient.
Executive may perform these services by telecommunications from such locations
as are convenient to him. In the event of the death of Executive, Executive's
designee shall receive a monthly death benefit, from Company, equal to the
amount of such consultancy, and for the full term or remainder of the term
of
the consultancy. Executive may resign from said consultancy position upon
providing Company with thirty (30) days written notice. This provision shall
survive the expiration or termination of this agreement for
any
reason.
b. In
the event that Company achieves gross sales of ten million dollars ($10,000,000)
or more,
or
one million dollars ($1,000,000) or more in net income, in any two years within
ten (10) years of
the date of this agreement, or upon the Company's achieving an average
market capitalization over a 180 calendar day period, in excess of
$45,000,000 within six (6) years of the date of this agreement, then the
consulting period will be for ten (10) years
(with
payments guaranteed for the full 10 years to designee in the event of
Executive's death during the term thereof), This provision shall survive the
expiration or termination of this agreement for any reason.
c
In the event that Company achieves gross sales of nineteen million dollars
($19,000,000) or
more,
or three million dollars ($3,000,000) or more in net income, in any two years
within twelve (12) years of the date of this agreement, or upon the Company's
achieving an average market capitalization over a 180 calendar day period,
in
excess of $65,000,000 within six (6) years of the date of this agreement, then
the consulting period will be for the life time of Executive and his spouse
(joint life with payments guaranteed for 20 years to designee in the event
both
predecease the twenty year period), and the consulting rate will be increased
to
$0,500 per month, with a three
percent
(3%) increase on January 1st 2009, and
each January 1st thereafter,
This provision shall survive
the expiration or termination of this agreement for any reason.
d. In
the event that Company achieves gross sales of thirty eight million dollars
($38,000,000)
ormore, or six million
dollars ($6,000,000) or more in net income, in any two years within twelve
(12)
years of the date of this agreement, or upon the Company's achieving an average
market capitalization over a 180 calendar day period, in excess of $120,000,000
within six (6) years of the date of this agreement, then the consulting period
will be for the life time of Executive and his spouse (joint life with payments
guaranteed for 20 years to designee in the event both predecease the twenty
year
period), and the consulting rate will be increased to 510,000 per month, with
a
three percent (3%) increase on January lst 2009, and
each
January 1st
thereafter.
This provision shall survive the expiration or
termination of this agreement for any reason.
e. In
the event that Company achieves gross sales of fifty nine million dollars
($59,000,000) or
more,
or nine million dollars ($9,000,000) or more in net income, in any year within
twelve (12) years of the date of this agreement, or upon the Company's achieving
an average market capitalization over a 180 calendar day period, in excess
of
$210,000,000 within six (6) years of The date of this agreement, then the
consulting period will be for the life time of Executive and his spouse (joint
life with
payments guaranteed
for 20 years to designee in the event both
predecease the twenty year period), and the consulting rate will be increased
to
$15,000 per month, with a three percent (3%) increase on January 1st. 2009, and
each
January 1st
thereafter,
This provision shall survive the expiration or
termination of this agreement for any reason.
f. In
the event that
Company achieves gross sales of seventy eight million dollars
($78,000,000)
or more, or twelve million dollars ($12,000,000) ormore in net income,
in any
year within twelve (12) years of the date of this agreement, or upon the
Company's achieving an average market capitalization over a 150 calendar day
period, in excess of $320,000,000 within six (6) years of to date of This
agreement, then the consulting period will be for
The life time of Executive and his spouse (joint life with payments guaranteed
for 20 years to designee in the event both predecease the twenty year period),
and the consulting rate will be increased to $20,000 per month, with a three
percent
(3%) increase on January 1st
2009, and
each January 1st thereafter.
This
provision shall survive the expiration or termination of this agreement for
any
reason.
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g. The
Company agrees that as it becomes commercially reasonable to do so, Company
will
fund this provision through the purchase of annuities, which shaft name
Executive and his spouse as joint life beneficiaries and his designees as the
alternative beneficiaries.
h. Net
income as used in this section refers to net income as defined by the generally
accepted accounting practices then in place
in the United States of America, or cash flow, whichever is
greater.
i.
Executive's
rights to this consulting provision and the benefits thereof are fully vested
as
of the date of this Agreement, and any conditional event as described in this
section, including Company's gross sales or net income events shall be
interpreted as conditions subsequent to the vesting of the relevant
benefits.
14. CHOICE
OF LAW. It is the intention of the parties to this
Agreement that this Agreement and the performance under this Agreement, and
all suits and special proceedings under this Agreement, be construed in
accordance with and under the Laws of the State of Michigan.
15. DISPUTED
COMPENSATION. In the event that the Company should at any time
dispute any payment or vesting of compensation as provided herein to executive,
Company agrees that it will provide Executive with a timely and immediate
written notice of such dispute detailing the specific compensation that it
disputes and detailing all of the legal reasons and the detailed factual basis
for its objection thereto. Such written notice will be provided to Executive
in
advance of the payment or vesting of any such disputed payment to Executive.
Providing such a notice does not eliminate or obviate the Company's
responsibility to make such a payment of compensation, its dispute or objection
notwithstanding.
In
the
event that the reasons for the dispute or objection arise after the disbursement
or vesting of such compensation to Executive, then Company agrees that it will
provide notice to Executive at the earlier of twenty one (21) days from the
date
of any such disbursement or vesting if Company knew or reasonably should have
known of the basis for such an objection within seven (7) days of such
disbursement or vesting, or if Company did not know or reasonably could not
be
expected to known of the basis for such an objection, within one hundred and
thirty one (131) days of the disbursement, payment or vesting of such benefit.
Any request or demand by the Company for reimbursement of compensation paid
to
Executive pursuant to this agreement is waved if not made within the limitation
period described in this paragraph. No action will be brought or maintained
by
the Company against Executive, either in a court of law or in arbitration,
or
otherwise, to recover compensation paid to executive if the Company has not
complied with this section 15.
Under
no
circumstances will any action will be brought or maintained by the company
against executive, either in a court of law or in arbitration, or otherwise,
to
recover compensation already vested or paid to executive, even if prior notice
of the dispute or objection as described above has been served, if more than
three hundred and sixty five (365) days have passed since the payment or vesting
which the company would otherwise seek to recover or overturn.
This
section 15 shall not apply to any compensation that Executive should receive
that is over and above the compensation specifically described in this
Agreement.
16. NO
WAIVER. The failure of either party to this Agreement to insist
upon the performance of any of the terms and conditions of this Agreement,
or
the waiver of any breach of any of the terms and conditions of this Agreement,
shall not be construed as thereafter waiving any such terms and conditions,
but
the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
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17. PARAGRAPH
HEADINGS. The titles to the paragraphs of this Agreement are solely
for
the convenience of the parties and shall not be used to explain, modify,
simplify, or aid in the interpretation of the provisions
of this Agreement.
18. COMPLETE
AGREEMENT, This Agreement contains the complete agreement concerning
the employment arrangement between the parties. The parties stipulate that
neither of them has made any representation with respect to the subject matter
of this Agreement or any representation including the execution and delivery
of
this Agreement except such representations as are specifically set forth in
this
Agreement and each of the parties acknowledges that [he or she] or it has relied
on its own judgment in entering into this Agreement. The parties further
acknowledge that any representations that may have been made by either of them
to the other prior to the date of executing this Agreement are of no effect
and
that neither of them has relied thereon in connection with [his or her] dealings
with the other.
19. INDEMNIFICATION.
Company shall indemnify Executive against any and all expenses,
including amounts paid upon judgments, counsel fees, environmental penalties
and
fines, and amounts paid in settlement (before or after suit is
commenced),incurred by
the Executive in connection with [his or her] defense or settlement
of any claim, action, suit or proceeding in which [he or she] is made a party
or
which may be asserted against [him or her} by reason of [his or
her] employment or the performance of duties in this
Agreement or as an officer ordirector of the Company or otherwise in
connection to the Company. Such indemnification shall be in addition to
any or rights to which Executive may be entitled under any law, the articles
of
incorporation, the bylaws, any agreement, or otherwise. This provision shall
survive the expiration or termination of this agreement for any
reason,
20. Assumption
of Agreement by Company's Successors and Assignees. The Company's
rights and obligations under this agreement will inure to the benefit and be
binding upon the Company's successors and assignees.
21.
Legal Fees. Inthe event of any dispute or proceeding arising under this
Agreement where the Executive is ultimately the substantially prevailing party,
the Company shall promptly reimburse Executive for all costs, including without
limitation, the reasonable attorneys' fees of any attorney of the Executive's
choosing, incurred by the Executive in any such dispute or proceeding arising
under this Agreement.
22.
Assignment. This Agreement shall not be assignable by either party
without the prior written consent or the other party, However:
(1) It
may be
assigned by the Company to any person or entity acquiring all or substantially
all of the assets thereof, however Company will remain as a guarantor of
obligations hereunder: and
(2) It
may be
assigned by Executive as to his right to payment, but not as to any of his
obligations hereunder; and
23, Severability
of Provisions. If any of the provisions of this Agreement or the
application of any such provision shall for any reason be held invalid by a
court of competent jurisdiction, such
invalidity shall not affect or impair any other provision, it being
the
intention of the parties that such other provisions shall be and remain
in full force and effect.
24, Notices.
Ali notices, requests, demands and other communications provided for
by
this Agreement shall be in writing and shall deemed to have been given at the
time when mailed at any office of the United States Postal Service
enclosed in a certified postage-paid envelope addressed to the respective party
at the addresses set forth below (together with an electronic copy
to the designated e-mail addresses listed below if notice is being served on
Executive) or to such changed address as such party may have fixed by notice
to
the other party, provided, however, that any notice
or
change of address shall be affected only upon receipt and further provided
that
any notice may be personally delivered to the respective party by the party
giving notice in lieu of being mailed.
7
|
If
to Company:
|
Xxxxx
Biocraft Laboratories, inc. Attention: CORP 95
000
X 00xx
Xxxxxx, Xxxxx 0
Xxxxxxxx,
XX 00000
|
|
If
to Executive:
|
Either
party may waive this notice provision by providing a written acknowledgement
to
the other party that the first party has received effective notice.
25.
Binding Effect. This Agreement shall
inure to the benefit of and shall be binding upon the Company,
its
successors and assigns, and any corporation which may acquire all or
substantially all of the Company's assets or into which the Company may be
consolidated or merged, and shall inure to the benefit of Executive's personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Upon the Executive's death, all amounts,
warrants, and other compensation, to which he is entitled hereunder, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's designee, or, if there be no such designee, to
the
Executive's estate.
26.
Exercise
of Warrants.
Ail warrants described herein shall contain customary cashless
exercise and net issue features allowing the exercise price to be paid by a
deduction of the number of shares, which is equivalent in value to the aggregate
exercise price, from the equity to be received on exchange, The Company will
also authorize Executive the alternative or tendering a six year promissory
note
as payment for such exercise price. Such note shall be secured entirely by
a
security interest in the stock which is received in exchange, and Company's
recourse shall be limited to said security interest. Said note will allow
interest to accrue, until maturation, at the annual rate of 6.1%. All such
stock
issued shall have the same registration rights, if any, of the Company's
founder's stock.
27. Effect
of Prior Agreements, This agreement does not supersede, nor
shall it be interpreted as conflicting with, the Stock Purchase and intellectual
Property Agreement entered into between the parties and dated April 26,
2006.
28. Settlement
by Binding Arbitration. Any claim or controversy that arises out
of or relates to this agreement, or the breach of it, shall be settled by
binding arbitration in
accordance with
the rules of JAMS. Said arbitration shall be before a single
arbitrator whose decision shall be binding and final. Unless the parties agree
otherwise, the arbitration shall be held in the JAMS offices in Chicago,
Illinois. Judgment upon the award rendered may be entered in any
court with jurisdiction. In the event that the dispute involves
the
withholding by the Company or the refusal to pay by the Company of any
compensation due under the provisions of this agreement to Executive, his
spouse, family or designee, and such Executive, his spouse, family ordesignee are the prevailing
or
substantially prevailing parties, the Arbitrator shall award pm judgment
interest on any such compensation atthe
annual rate of 14% or the maximum amount allowable under the law if less than
/4%.
29.
Vesting of compensation and benefits.
Executive's (and where applicable Executive’s Spouse's and Designee's)
right(s) to the compensation and benefits described in this Agreement are fully
vested as of the date of
this Agreement. The conditional events described in numbered
paragraphs 4 (g) and 13 shall be interpreted as conditions subsequent, and
shall
not be interpreted as
providing any conditionality and the immediate vesting of the benefit as of
the
date of this Agreement.
8
30. Bankruptcy,
Security and Liens. It is the intention of the parties that to the
greatest extent allowable under the law, the rights and obligations of this
employment agreement shall not be waved or subordinated by any bankruptcy.
The
parties further agree that the obligations of Company hereunder are secured
by
the Company's assets including its intellectual property. In furtherance of
this
provision, the Company will, upon request from Employee, file or cause to be
filed such liens and notices of Employees security interests in said
assets.
31.
No
Attorney—Client Relationship. No Attorney—Client
Confidentiality. Company's Waiver Of Xxxxxxxxx.Xx is not
the intention of the parties to create by this Agreement or through the
employment relationship between them any attorney–client relationship, and
Company specially disavows and rejects any such relationship. Executive will
be
employed in the capacity of Chief Executive Officer of the Company, and will
use
his skills and talents on the Company's behalf in his capacity as C.E.O. Nothing
in this Agreement, in the employment relationship or in Executive's performance
of his duties shall be deemed to create an attorney-client relationship with
the
Company, its shareholders, or its Board of Directors. Company specifically
waves
any such attorney client relationship. Company has no expectation of attorney
client confidentiality in regard to this relationship and specifically waves
any
such attorney–client confidentiality with Executive. Executive is not an
attorney for the Company, and his actions as an officer or director or
shareholder shall not be interpreted as the actions of the Company's
attorney.
Similarly,
Company has no expectation that the rules pertaining to conflicts of interests
of attorneys, or any other rules relating to the engagement of attorneys apply
to this employment relationship. The Company specifically waves any and all
such
conflicts. Neither will Executives performance of his duties, including without
limitation, his role in advising, negotiating, drafting of documents and
contracts, preparing and filing governmental notices, documents or fillings,
recommending or taking action on behalf of the Company, appearing in pro say
on
behalf of the company, or any other service which is
performed in his capacity as an officer or director of the company bedeemed
to constitute the giving of legal advice. Company acknowledges that if it is
at
any time in need of, or desires, legal advice or legal services it must retain
outside attorneys to render such advice or service. This provision may only
be
waved in a writing signed by
both parties which explicitly and conspicuously states both the
party's intention to waive this numbered paragraph 31.
32. Execution
in Counterparts. This Agreement may be executed by the parties
hereto signing the same instrument, or by each party hereto signing a separate
counterpart or counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument The
parties agree that documents executed by facsimile or electronic transmission
shall be acceptable in this transaction, and the
signatures thereof shall have the same force and effect as original
signatures.
33. Waiver.
The failure of any party to insist in any one or more Instances
upon performance of any terms or conditions of this Agreement shall not be
construed as a waiver of future performance of any such term, covenant or
conditions, but the obligations of either party with respect thereto shall
continue in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
the
day and year above first written.
|
Executive
|
Company
|
|
/s/ Xxx
Xxxxxxxx
|
/s/ Xxx
Xxxxxxxx
|
|
Xxx
Xxxxx Xxxxxxxx
|
Xxx
Xxxxx Xxxxxxxx
|
| C.E.O. | |
| On behalf of Xxxxx Biocraft Laboratories, Inc. |
9
