EMPLOYMENT CONTRACT BETWEEN
BIOCELL INNOVATIONS, INC.
AND
XXXXXX XXXX
This Employment Contract made and entered into this seventh day of April 2002,
by and between BioCell Innovations, Inc. ("EMPLOYER"), and Xxxxxx Xxxx
("Vice-President") as ratified by action of the board of directors of EMPLOYER
at a regular meeting held on April 16, 2002. This contract incorporates and
replaces all prior contracts and/or amendments thereto.
EMPLOYER is Texas Corporation.
In consideration of the mutual promises of each, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
both the EMPLOYER and Vice-President agree as follows:
1. TERM:
The EMPLOYER employs the Vice-President, and the Vice-President hereby
accepts employment as a Vice-President for a TWO YEAR term commencing on March
17,2002 and ending on March 17,2004. At the end of the two-year period, this
agreement will automatically be extended for a three year period unless within
90 days prior to the termination date either party gives notice to the other
party of its intent to cancel the agreement. If EMPLOYER gives notice of
termination, EMPLOYER shall pay to Vice-President one year's salary in order to
make the termination effective. The parties recognize that if nothing is agreed
upon otherwise, Texas is a right-to-work state allowing the employer to
terminate employment at will and without cause, and EMPLOYER expressly agrees
that this employment will not be employment at will but shall be governed
exclusively by the terms of this agreement.
2. CONDITIONS OF EMPLOYMENT
A. DUTIES
The Vice-President is the coordinator of legal, information technology, and
intellectual property as more fully set forth herein.
The duties of Vice-President shall include, but are not limited to the
following:
1. Coordinate all legal activities in the corporation. Supervise and
coordinate any legal activities performed by outside counsel. Supervise any
attorneys employed by the corporation.
2. Implement policies established by the EMPLOYER through its governing
structure.
3. Advise the board with respect to information technology and intellectual
property.
4. Attend board of directors meetings when possible.
5. Perform such other duties as are customarily performed by a
Vice-President of legal coordination, information technology, and intellectual
property and such other duties as assigned by EMPLOYER that are within the
capability of Vice-President.
B. LIMITATION OF AUTHORITY
Notwithstanding other terms herein, Vice-President shall not have the right to
make contracts or commitments unless authorized by the President or Board of
Directors of the EMPLOYER.
C. SUPERVISION OF VICE-PRESIDENT
Vice-President reports to the President of the EMPLOYER. If that person is
temporarily absent or unable to perform his duties, then the Vice-President
shall report to the board member designated by the President. In no event shall
there be more than one person at any time acting on behalf of the EMPLOYER
insofar as control of the Vice-President is concerned.
D. REVIEW OF DOCUMENTS
The EMPLOYER, individually and collectively, shall refer all business documents
to Vice-President for review and comment.
E. BOARD/MANAGEMENT MEETINGS
The Vice-President shall attend appropriate meetings of the owner, board of
directors, with the exception of executive sessions devoted to the consideration
of any action or lack of action on the Vice-President's contract, the
Vice-President's salary or benefits, or the Vice-President's evaluation.
F. PROFESSIONAL ORGANIZATIONS, MEETINGS AND ACTIVITIES
The Vice-President shall devote his time, attention, and energy to the
coordination of the legal affairs of the corporation. The Vice-President shall
attend and participate in appropriate professional meetings at the local, state,
and national levels with the reasonable expenses for such attendance to be borne
by the EMPLOYER, including membership fees and dues of the Vice-President in
such organizations as he deems appropriate in the performance of his duties. The
Vice-President may hold offices or accept responsibilities in these professional
organizations, provided that such responsibilities do not interfere with the
performance of his duties as Vice-President.
G. OUTSIDE ACTIVITIES
The Vice-President shall be allowed to reasonably disengage from his present
employment. The Vice-President shall (on his own time and not company time
unless approved by the President) be allowed to publish articles and books and
give lectures and speeches.
H. LIMITATION TO CONSULTATION ACTIVITIES/OUTSIDE EMPLOYMENT
Notwithstanding paragraph 2G, Vice-President shall not, without the express
written consent of EMPLOYER, be interested directly or indirectly, in any
manner, as a partner, officer, director, shareholder, adviser, employee, or in
any other capacity in any other business similar to EMPLOYER's business or any
allied trade; provided, however, that nothing contained in this section shall be
deemed to prevent or to limit the right of Vice-President to invest any of his
money in the capital stock or other securities of any corporation whose stock or
securities are publicly owned or are regularly traded on any public exchange,
nor shall anything contained in this section be deemed to prevent Vice-President
from investing or limit Vice-President's right to invest his or her money in
real estate.
I. CIVIC ACTIVITIES
The Vice-President is encouraged to participate in community and civic affairs.
The membership and direct expenses of such memberships and activities shall be
paid by the EMPLOYER as permitted by law and approved by the EMPLOYER.
J. REASSIGNMENT AND PLACE OF EMPLOYMENT
The Vice-President shall not be reassigned from the position of Vice-President
to another position without the Vice-President's written consent. Vice-President
shall perform his duties in Xxxxxx County, Texas or a county adjacent thereto
unless he agrees otherwise.
3. COMPENSATION
A. SALARY
EMPLOYER shall pay to Vice-President in exchange for services rendered under
this agreement, compensation at the rate of seventy-two thousand Dollars
($72,000.00) per year, payable two time(s) a month on or before the first and
fifteenth days of each month while this Agreement shall be in force. Three
thousand dollars ($3000.00) per month of compensation shall be deferred and not
paid until EMPLOYER receives from all source an aggregate total cash receipt in
the amount of $5,000,000. At such time as the total amount of $5,000,000 is
received by EMPLOYER, Vice-President's salary shall be increased to $96,000 per
year and Vice-President shall be paid his deferred salary. On the each
anniversary of employment under this agreement, Vice-President shall receive a
salary increase of no less than 10% as decided by the Compensation Committee of
the EMPLOYER.
B. HOLIDAYS
The EMPLOYER shall allow Vice-President to have as holidays all holidays that
the federal government gives to its employees.
C. VACATION AND SICK LEAVE
If Vice-President so elects, he may take 2 weeks vacation during the first 6
months of this contract and 3 weeks vacation each year thereafter.
Vice-President shall be allowed 10 sick days per year. Vice-President shall be
allowed to accrue three years of vacation and sick leave. Upon termination of
this agreement or the employment hereunder, Vice-President shall be paid on a
pro rata daily basis for any accrued vacation or sick leave.
D. REIMBURSEMENTS AND EXPENSES
EMPLOYER shall reimburse Vice-President for all reasonable expenses incurred in
travel for EMPLOYER, attending the annual conference of his professional
association, educational courses, and meetings of the local chapter of his
professional association upon presentation of appropriate expense reports. No
such expenses shall be approved unless Vice-President has prior written approval
to make such expenses.
E. LIFE INSURANCE PREMIUM
EMPLOYER shall pay Vice-President's premium on a life insurance policy as may be
later mutually agreed upon by the parties.
F. AUTOMOBILE EXPENSE.
Vice-President shall provided a vehicle of a value not to exceed $50,000 of
Vice-President's choosing, subject to the approval of the EMPLOYER. Said vehicle
shall be replaced every four years. Vice-President may use this vehicle for
business and personal purposes. EMPLOYER shall maintain automobile liability,
property damage, and comprehensive insurance and pay the normal and necessary
expenses for operation and maintenance of such vehicle.
G. MEDICAL AND DENTAL INSURANCE
EMPLOYER shall provide to Vice-President and pay the full premium for a
comprehensive family health insurance Policy for Vice-President and his spouse.
4. ANNUAL PERFORMANCE EVALUATION
EMPLOYER shall evaluate and assess the performance of the Vice-President at
least yearly.
5. TERMINATION
This employment contract may be terminated by:
A. Mutual agreement of the parties.
B. Disability of Vice-President. If the Vice-President is permanently
disabled or is otherwise unable to perform his duties because of sickness,
accident, injury, or mental incapacity for a period of ninety (90) working days
beyond any accrued sick leave, the EMPLOYER shall have the option to terminate
this agreement.
C. Discharge for cause. In the event Vice-President commits a material
breach of the obligations and duties of Vice-President under this Agreement or
commits any acts designated as conduct violation or for just cause shall be
considered cause for immediate dismissal. EMPLOYER may terminate this Agreement,
during its term, only for "cause" which, for purposes herein, shall mean
Vice-President's (i) material and continuing failure to perform his essential
duties hereunder. Vice-President may terminate this Agreement upon any material
breach by EMPLOYER that is not cured within 30days of written notice by
Vice-President.
D. Unilateral termination by EMPLOYER. In the event the EMPLOYER terminates
Vice-President and during such time the Vice-President is willing and able to
perform his duties under this agreement, then in that event the EMPLOYER agrees
to pay Vice-President, as severance pay, the remainder of the salary under the
contract plus one years salary.
E. Death of Vice-President. This agreement shall terminate on the death of
Vice-President.
6. CONFIDENTIAL INFORMATION.
(1) Definition of Confidential Information. Vice-President acknowledges
that he has been informed that it is the policy of the Employer to maintain as
secret and confidential all information relating to the following ("Confidential
Information"):
(a) The financial condition of the Employer.
(b) The systems, products, services, discoveries, designs, inventions,
pricing and bidding methods, proprietary marketing and proprietary sales
techniques, technical processes, information about costs, profits, key
personnel, heretofore or hereafter acquired, developed and/or used by the
Employer other than those that have been made generally available.
(c) The customers, prospective customers (whom Employer has contacted, made
sales presentations, provided bids, or otherwise specifically solicited during
the Term hereof), suppliers, vendors and Vice-Presidents of the Employer,
records of transactions, and other information concerning the Business of
Employer.
(d) Research records, technical data, production and processing techniques,
manufacturing processes, and the like.
The above items shall be included within the scope of Confidential Data
whether prepared by Vice-President or coming into Vice-President's possession
during the employment hereunder.
(2) Vice-President Shall Receive Confidential Information.
Vice-President acknowledges that Vice-President will be provided with
information about the Employer, and that the Employment during the Term hereof,
including any renewals or extensions, will continue to bring Vice-President into
close contact with confidential affairs of the Employer. Thus, Vice-President
acknowledges that by reason of Vice-President's employment by the Employer,
Vice-President will acquire Confidential Information.
(3) Vice-President Acknowledges Importance of Confidential Information.
Vice-President acknowledges that all Confidential Information is of great
value to Employer, and essential to Employer's preservation of the Business and
the goodwill of Employer.
(4) Vice-President's Services Special and Unique.
The Vice-President recognizes the duties and services to be performed by
Vice-President, as a Vice-President of the Employer, are special, unusual,
extraordinary and unique, and intellectual in nature.
(5) Vice-President Shall Not Disclose Confidential Information.
Vice-President confirms that protection of the Employer's goodwill
reasonably necessary and that Vice-President agrees that Vice-President shall
not, directly or indirectly, except where authorized by the Board of Directors
of the Employer for the benefit of the Employer:
(a) At any time, divulge to any persons, firms, corporations, governmental
entities or agencies or other entities, other than the Employer or its
affiliates ("Third Parties"), or use or cause or authorize any Third Parties to
use, any such Confidential Information, or any other information which he knows
or should know is regarded as confidential and valuable by the Employer (whether
or not any of the foregoing information is actually novel or unique) except as
otherwise required by law. However, the Vice-President may divulge information
relating to the financial condition of the Employer to Vice-President's attorney
or accountant solely in connection with the occurrence of a change in control,
making calculations of payments required under this Agreement, or with respect
to a Termination of this Agreement and the payment of the any amounts, if any,
in accordance with this Agreement and solely for such attorney's or accountant's
use with respect thereto. Vice-President shall provide Employer with a copy of
such information and the name of the accountant or attorney given such
information.
(b) At any time during the Covenant Period, solicit or cause or authorize
directly or indirectly to be solicited, or accept or cause or authorize directly
or indirectly to be accepted, for or on behalf of himself or Third Parties, any
Business from Third Parties who are, at any time within Two (2) years prior to
the cessation of Vice-President's employment, customers or prospects of the
company; or
(c) At any time during the Covenant Period, solicit or
cause or authorize directly or indirectly to be solicited for employment, or
cause or authorize directly or indirectly to be employed, for or on behalf of
the Vice-President or Third Parties, any person who is or was, at any time
within One (1) year prior to the cessation of employment hereunder,
Vice-Presidents of the Employer.
(6) Exceptions to Non-Disclosure of Confidential Information.
Notwithstanding the foregoing, the restrictions contained in this provision
shall not apply to any Confidential Information or portion thereof which:
(a) At the time of disclosure by the Vice-President is generally and
readily available to the public other than by an act or omission on the part of
Vice-President; or
(b) At the time of disclosure by Vice-President has been acquired from
or made available to Vice-President by a Third Party having the lawful right to
disclose such information.
(c) Vice-President is required to disclose pursuant to any state or
federal law, rule or regulation or by an applicable judgment, order or decree of
any court or government body or agency having jurisdiction over such matter.
However, at least Twenty (20) days prior written notice of such required
disclosure before such disclosure is made to enable the Employer to seek an
appropriate protective order to take such other actions as it deems necessary or
appropriate.
7. NON COMPETE
The Vice-President shall not, at any times during the period hereof, and for two
years from the date of termination of this Agreement, directly or indirectly,
within a geographic area of 100 miles, engage in, or become involved in, any
competitive or similar business as that of the within Employer.
8. SAVINGS CLAUSE
If any provision, or any portion thereof, contained in this Agreement is held to
be unconstitutional, invalid, or unenforceable, the remainder of this Agreement,
or portion thereof, shall be deemed severable, shall not be affected, and shall
remain in full force and effect.
9. MODIFICATION
Any modification of this Agreement or additional obligation assumed by either
party in connection with this Agreement shall be binding only if evidenced in
writing signed by each party or an authorized representative of each party.
10. SURVIVAL
If EMPLOYER or its assets are sold or control of the corporation changes, this
agreement shall survive and pass to the new corporation or entity, except,
however, either party may elect to terminate this agreement in which case
corporation or the new corporation or entity shall pay to Vice-President the
remainder of the payments to be made for the term of this agreement plus the
first extension thereof.
11. 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 and pursuant to the
laws of the State of Texas and that, in any action, special proceeding or other
proceeding that may be brought arising out of, in connection with, or by reason
of this Agreement, the laws of the State of Texas shall be applicable and shall
govern to the exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be instituted.
12. 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.
13. 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.
14. COMPLETE AGREEMENT
This Agreement contains the complete agreement concerning the employment
arrangement between the parties and shall, as of the effective date hereof,
supersede all other agreements 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 it has relied on its
own judgment in entering into this Agreement. The parties further acknowledge
that any payments or 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 dealings with the
other.
15. INDEMNIFICATION
Employer shall indemnify Vice-President 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 Vice-President in connection with his defense or settlement of any claim,
action, suit or proceeding in which he is made a party or which may be asserted
against him by reason of his employment or the performance of duties in this
Agreement. Such indemnification shall be in addition to any other rights to
which those indemnified may be entitled under any law, bylaw agreement, or
otherwise.
In witness whereof, each party to this Agreement has caused it to be executed at
Houston, TX on the date so stated.
For EMPLOYER
/s/ Xxxxxxx Xxxx, CEO
/s/_______________________________
Xxxxxx Xxxx
