Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered with the intent that it be effective as of the
1st day of December, 2000, by and between GreatBio Technologies, Inc., a
Nevada corporation having its principal place of business at 000 Xxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxx, Xxx Xxxx 00000 (Company) and Xxxxxxx X.
Xxxxxx, residing at 000 Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 (Executive).
1. EMPLOYMENT RELATIONSHIP
1.1 Executive shall be and hereby is employed in the capacity of
Chairman of the Board, Chief Executive Officer and President for
the Company. In that capacity he shall perform all duties
necessary and incidental to functioning as the executive in
charge of all aspects of the business of the Company. Executive
shall be responsible for the development and implementation,
upon approval of the Board of Directors of the Company, of all
Company policies and procedures and the supervision of the
Company's management staff and business development. In
addition, Executive shall have such other duties, consistent
with said employment, as may from time to time be assigned to
him by the Board of Directors. The Executive shall report
directly to the Board of Directors of the Company, and Executive
shall devote a majority of his working time and best efforts to
perform his duties and to promote the business and affairs of
the Company.
1.2 As compensation for the performance of his duties, Executive
shall receive an annual salary in an amount to be determined by
the Board of Directors annually, but in no event less than
$175,000, such salary to be paid in regular periodic
installments as the parties agree (the "Base Salary"). In
addition to the Base Salary, the Executive shall be eligible to
receive a discretionary bonus as determined from time to time by
the Board of Directors ( the "Discretionary Bonus"). The Board
shall determine the amount or manner of payment of the bonus, if
any, no later than forty-five (45) days after the end of each
fiscal year. The Discretionary Bonus may be payable in any
manner approved by the Board, including, but not limited to,
stock, cash or options and shall be paid to the Executive no
later than seventy-five (75) days after the end of each fiscal
year.
1.3 The Executive shall be entitled to four weeks of paid vacation
in each calendar year. In the event that the Executive is
employed hereunder during a calendar year for less than all of
that year, he shall be entitled in that year to a number of paid
vacation days which shall be prorated in accordance with the
number of days on which he is so employed in that year. The
Executive shall also be entitled to all paid holidays as
approved on an annual basis by the Board of Directors.
1.4 Executive shall be entitled to participate in all fringe benefit
programs now or hereafter approved by the Board of Directors.
However, at a minimum the Company agrees to obtain and maintain
at its sole cost and expense, life insurance and disability
insurance, for the benefit of the Executive in the following
amounts: a $1,000,000 life insurance currently owned by
Executive on his life, or at his election, an equivalent policy,
and disability insurance providing at least seventy-five percent
(75%) salary replacement.
1.5 Executive shall receive a non-qualified option to purchase up to
250,000 common shares at a strike price of $.50 per share. The
option may be exercised (a) with respect to all or any part of
100,000 of the Shares covered hereby at any time on or after
December 1, 2000, (b) with respect to all or any part of 150,000
of the Shares covered hereby at any time on or after December 1,
2002, (c) with respect to all or any part of 200,000 of the
Shares covered hereby at any time on or after December 1, 2003,
and (d) with respect to all or any part of the Shares covered
hereby at any time on or after December 1, 2004.
1.6 In addition to the Intitial Grant, the Executive shall be
entitled to participate in the GreatBio Technologies, Inc. 2001
Stock Option Plan ("Option Plan"). Grants under the Option Plan
shall be in amounts determined by the Compensation Committe.
1.7 Subject to the terms and conditions hereinafter set forth, the
term of the Executive's employment hereunder ("Term") shall
commence on the date hereof and shall remain in full force and
effect indefinitely unless terminated in accordance with
paragraph 3 of this Agreement.
1.8 Company shall reimburse Executive for all travel and business
expenses incurred by him which are reasonable and necessary for
carrying on the business of the Company. Expenses shall be
reimbursed after presentation by Executive of an itemized
account of such expenses in form and substance satisfactory to
the Board of Members.
1.9 The Executive shall have his principal office where determined
by the Corporation, provided however, that he shall not be
required as a result of his duties to relocate to a principal
office outside the Greater Rochester, New York area, provided,
however, that the Executive agrees to undertake all reasonable
travel required by the Company to be conducted in connection
with the performance of his duties.
2. COVENANTS BY EXECUTIVE
2.1 Except as required in the performance of his duties to Company,
Executive will never directly, indirectly or otherwise, use,
disseminate or disclose any Confidential Information.
2.2 Upon termination of his employment with Company, Executive shall
leave with or return to Company all copies of documents, records,
notebooks and similar repositories, in written or electronic form
containing Confidential Information.
2.3 Confidential Information means information concerning the matters
described below that are disclosed to the Executive or are or
become known to the Executive as a consequence of his employment:
2.3.1 The Company's assets, material agreements, products
and services, including specifications, plans, designs
or other documents relating to the assets, material
agreements, products and services, the Company's plans,
procedures, products, processes and services, trade
secrets, ideas, data, software programs, business
affairs and customers, and customer lists, including
information relating to research, development,
manufacturing, purchasing, engineering, pricing, selling
and marketing, and;
2.3.2 Any information regarding the affairs and business of
Company's customers and clients that Executive has
access to as a result of his Employment with the
Company.
2.3.3 Confidential Information does not include information
which (i) was known to the Executive prior to his
employment that does not relate to the business,
operations or affairs of the Company, (ii) is
disseminated to the public (without the fault of the
Executive), or (iii) is readily available to the public.
2.4 During the Non-Compete Period, the Executive agrees that he will
not, and will cause each of his Affiliates not to, for any
reason whatsoever, directly or indirectly, either individually
or as an owner, partner, officer, director, manager, lender or
otherwise, engage in any Competitive Business. The ownership
by the Executive in the aggregate of up to five percent (5%) of
any class of securities of any company which has a class of
securities registered under Section 12 of the Securities
Exchange Act of 1934, as amended, shall not constitute a breach
of this covenant.
During the Non-Compete Period, the Executive shall not, and
shall not permit any of his Affiliates to: (a) induce or
attempt to induce any Executive of the Company to leave the
employ of the Company to engage in any Competitive Business or
(b) induce or attempt to induce any customer, supplier, licensee
or other business relation of the Company to cease doing
business with the Company or in any way interfere with the
relationship between any such customer, supplier, licensee or
business relation of the Company.
2.4.1 The term "Non-Complete Period" shall mean the period
commencing with the date hereof and ending one year from
the date of termination.
2.4.2 The term "Competitive Business" shall mean any business
engaged in the same or a similar business or businesses
as that or those conducted by the Company from time to
time, but limited to MRI-compatible pacemakers and
related MRI-compatatible medical devices; and
HIV/AIDS diagnosis and/or treatment, and related
lentiviral vectors.
2.4.3 The parties hereto agree that the duration and geographic
scope of the non-competition provision set forth in this
section are reasonable. In the event that any court
determines that the duration or the geographic scope, or
both, are unreasonable and that such provision is to that
extent unenforceable, the parties agree that the
provision shall remain in full force and effect for the
greatest time period and in the greatest geographic area
that would not render it unenforceable. The parties
intend that this non-competition provision shall be
deemed to be a series of separate covenants, one for each
and every county of each and every state of the United
States of America and each and every political
subdivision of each and every country outside the United
States of America where this provision is intended to be
effective. The Executive agrees that the restrictions
contained in this section are reasonable in all respects.
2.5 The Executive agrees that any and all inventions, improvements,
ideas and innovations, whether or not patentable, which the
Executive may invent, discover, originate, make or conceive during
his services to the Company or any of its affiliates, whether
prior to or during his employment with the Company, either solely
or jointly with others, and which in any way relate to or are or
may be used in connection with the business of the Company limited
as stated in section 2.4.2 hereof shall be, to the extent of the
Executive's interest therein, the sole and exclusive property of
the Company or such affiliate and the Executive's interest therein
shall be assigned to the Company or such affiliate, as the case
may be, or to the Company's or such affiliate's nominee(s).
2.6. Notwithstanding the foregoing, the Company hereby specifically
acknowleges and agrees that Executive is also engaged in the
business (as an Executive, manager and equity participant in
certain other entities, including but not limited to, Technology
Innovations, LLC and Biophan, LLC) of the acquisition, development
and/or exploitation of medical and other technologies. The
Company agrees that such efforts by Executive on behalf of himself
and others are outside the scope of this Agreement, and that the
Company will obtain no rights to or interest in such other
technologies solely by virtue of Weinier's employment hereunder,
except as stated in paragraph 2.5 above, and Weiner shall have no
duty to make such technologies available to the Company.
2.7 The Executive further agrees to execute at any time, upon the
request and at the expense of the Company, for the benefit of the
Company, any of its affiliates or any nominee(s) thereof, any and
all appropriate applications, instruments, assignments and other
documents, which the Company shall deem necessary or desirable to
protect its (or any of its affiliates') entire right, title and
interest in and to any of the discoveries, inventions,
improvements, ideas and innovations described herein.
2.8 The Executive agrees, upon the request and at the expense of the
Company or any person to whom the Company or any of its affiliates
may have granted or grants rights, to execute any and all
appropriate applications, assignments, instruments and papers,
which the Company shall deem necessary for the procurement in the
United States of America and foreign countries of patent,
copyright or other protection for the discoveries, inventions,
improvements, ideas or innovations to be so assigned, including
the execution of new, provisional, continuing and reissue
applications, to make all rightful oaths, to testify in any
proceeding before any governmental authority authorized to grant
or administer patent protection or before any court, and generally
to do everything lawfully possible to aid the Company, its
affiliates and its and their successors, assigns and nominees to
obtain, enjoy and enforce proper patent, copyright or other
protection for the discoveries, inventions, improvements, ideas or
innovations conceived or made by him during the course of his
services to the Company or any of its affiliates for a period of
two (2) years after the termination of this Agreement.
2.9 The parties hereto agree and declare that monetary damages shall
be insufficient to fully compensate the Company for its losses in
the event that Executive violates the covenants contained in this
Article 2. Therefore, the Company, without the need to post bond,
shall be entitled to enjoin Executive from continuing to violate
his agreement not to compete, and Executive shall not raise as a
defense to any action or proceeding for an injunction the claim
that Company would be adequately compensated by monetary damages.
2.10 The Executive's obligations as described in this Article 2 shall
survive the termination of this Agreement for any reason.
3. TERMINATION/SEVERANCE
3.1 The Executive's employment hereunder may be terminated upon the
occurrence of any of the following:
(i) the death of the Executive;
(ii) voluntary termination by the Executive upon ninety
(90) days' notice to the Company ("Voluntary
Termination") or termination by the Company upon
ninety (90) days' notice to the Executive
("Involuntary Termination");
(iii) the inability of the Executive to render the services
to be rendered by the Executive pursuant to this
Agreement for a continuous period of ninety (90)
successive days or for shorter periods aggregating one
hundred twenty (120) days or more during any 180-day
period ("Disability");
(iv) upon a change in control in the Corporation where the
phrase Change in Control shall mean (1) on the date of
the merger or consolidation of the Corporation with
another entity where the members of the Board,
immediately prior to the merger or consolidation,
would not immediately after the merger or
consolidation, constitute a majority of the Board of
Directors of the entity issuing cash or securities in
the merger or consolidation, or (2) on the date of the
sale or other disposition of all or substantially all
of the assets of the Corporation;
(v) Termination of the Executive's employment hereunder by
the Corporation at any time for "cause", such
termination to take effect immediately upon written
notice from the Corporation to the Executive;
(vi) At the Executive's discretion, upon a significant
change in the Executive's job duties or
responsibilities, where the phrase "Significant Change
In The Executive's Job Duties Or Responsibilities" is
defined to mean "a material change in the type of work
Executive performs".
3.2 For all purposes of this Agreement, the term "cause" shall mean a
determination by a majority of the members of the Board of
Directors, other than the Executive, that (i) the Executive
willfully refuses to obey reasonable and lawful orders of the
Board; (ii) the Executive has willfully breached or habitually
neglected his duty, provided that the Executive does not take
reasonable steps to correct the problem within fifteen (15)
business days after written notice thereof; (iii) the Executive
has been convicted in a court of law of a crime or offense which
involves dishonesty or fraud, (iv) the Executive has breached any
of the Executive's material obligations pursuant to this
Agreement; or (v) the Executive has been convicted in a court of
law for the commission of a felony.
3.3 Severance for Involuntary Termination. In the event of
Involuntary Termination of the Executive, the Corporation will pay
the Executive (i) the unpaid amount of the Executive's Base Salary
through the date of termination as set forth in paragraph 1.2
hereof; (ii) bonus compensation earned but not yet paid pursuant
to paragraph 1.2 hereof; and (iii) a severance payment equal to
one (1) year of his then current salary, due and payable in full
within fifteen (15) days of the Executive's termination from the
Company. In addition, the Executive will be immediately vested in
any options, warrants, retirement plan or agreements then in
effect and the Corporation will continue to provide the Executive
and his spouse with the Insurance as set forth in paragraph 6
hereof. All payments made to the Executive hereunder will be
subject to all applicable employment and withholding taxes.
3.4 Severance for Disability or Change in Control. In the event of
termination of employment of the Executive due to Disability or
Change in Control, the Company will pay the Executive (i) the
unpaid amount of the Executive's Base Salary through the date of
termination as set forth in paragraph 1.2 hereof; (ii) bonus
compensation earned but not yet paid pursuant to paragraph 1.2
hereof; and (iii) a severance payment equal to one (1) year of his
then current salary, in three (3) equal installments with the
first installment due and payable within fifteen (15) days
following termination, the second installment due and payable
within sixty (60) days following termination and the third
installment due and payable within one hundred and twenty (120)
days following termination. In addition, the Executive will be
immediately vested in any warrants, options, retirement plans or
agreements then in effect and the Corporation will continue to
provide the Executive and his spouse for a period of one year from
the date of termination. All payments made to the Executive
hereunder will be subject to all applicable employment and
withholding taxes.
3.5 Termination for Cause. In the event of the termination for Cause
of the Executive, all unexercised warrants and options, whether or
not vested, shall be canceled and the Executive will not be
eligible for severance payments. The Corporation shall pay to the
Executive the unpaid amount of the Executive's Base Salary through
the date of termination as set forth in paragraph 1.2 hereof.
3.6 Voluntary Termination. In the event of the Voluntary Termination
of the Executive, all unvested warrants and options shall be
canceled and the Executive shall have three (3) months from the
date of termination to exercise his rights with respect to any
unexercised but vested options. The Executive will not be
eligible for severance payments. The Company shall pay to the
Executive the unpaid amount of the Executive's Base Salary through
the date of termination.
3.7 The provisions of this paragraph 3 shall survive termination of
this Agreement for any reason.
4. MISCELLANEOUS PROVISIONS
4.1. Executive hereby represents and warrants that he is free to make
this Agreement and the making hereof and/or performance
hereunder by him will not violate the legal and/or equitable
rights of any third party.
4.2 Any notices to be given hereunder by either party to the other
shall be in writing and may be transmitted by personal delivery
or by certified mail. Mailed notices shall be addressed as
follows:
To Company: GreatBio Technologies, Inc.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
To Executive: Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
(Or to the last known residential address of Executive as the
same is reflected on the Company's records).
Each party may change that address by written notice delivered
or mailed in accordance with this section. Notices delivered
personally shall be deemed communicated as of the date of actual
receipt, except that if receipt is refused, then as of the date
delivery was attempted. Notices which are mailed shall be
deemed received two business days after the Notice was delivered
to an Executive or receptacle under the control of the United
States Post Office.
4.3 This Agreement constitutes the entire understanding of the
parties and there are no promises, terms, covenants, conditions
or obligations or other written, expressed or implied agreements
other than those contained herein. No change or modification of
this Agreement shall be valid unless the same shall be in
writing and signed by both parties hereto.
4.4 The waiver by either party hereto of a breach of any provision
of this Agreement shall not operate as or be construed as a
waiver of any subsequent breach of this Agreement.
4.5 The employment by Company of Executive is being effected because
of Executive's special capabilities and qualifications and all
of his rights, benefits and duties hereunder are, therefore, not
assignable or transferable in any manner.
4.6 This Employment Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
4.7 If any provision of this Employment Agreement is unenforceable,
the remaining provisions shall, to the extent possible, be
carried into effect, taking into account the general purposes
and spirit of this Employment Agreement.
4.8 Employer shall have the right to withhold from the Executive's
salary and other compensation hereunder all amounts required to
be withheld, including such amounts in respect of any
compensation deemed paid to the Executive under federal, state
and local tax laws.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
with the intent that it be effective as of the date first written above.
GreatBio Technologies, Inc. /s/Xxxxxxx X. Xxxxxx
By: _____________________________ __________________________________
