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AGREEMENT
AGREEMENT made as of this 31st day of October, 1997, by and between Mr. M.
Xxx Xxxxx ("Xx. Xxxxx" or "Xxxxx") and BioTrack, Inc., a Delaware corporation
with a principal place of business at Riverside Technology Center, 000 Xxxxxxxx
Xxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000 (the "Company"), a subsidiary of DynaGen,
Inc. ("DynaGen").
WHEREAS, the Company believes it to be to its advantage to ensure that Xx.
Xxxxx renders services to the Company as hereinafter provided; and
WHEREAS, Xx. Xxxxx' senior managerial position requires that he be trusted
with extensive confidential information and trade secrets of the Company and
that he develop a thorough and comprehensive knowledge of all details of the
Company's business, including, but not limited to, information relating to
research, development, inventions, manufacturing, purchasing, accounting,
engineering, marketing, distribution and licensing of the Company's products and
services;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Position and Responsibilities.
(A) Consulting Agreement. From the date of execution of this Agreement
until December 22, 1997, Xx. Xxxxx agrees to serve as a consultant to
DynaGen pursuant to the terms and conditions of the Consulting Agreement
attached hereto as Exhibit A.
(B) Chief Executive Officer. Effective December 23, 1997, Xx. Xxxxx agrees
to serve as Chief Executive Officer of the Company. Xx. Xxxxx shall at all
times report to, and his activities shall at all times be subject to the
direction and control of, the Board of Directors of the Company, and Xx.
Xxxxx shall exercise such powers and comply with and perform, faithfully
and to the best of his ability, such directions and duties in relation to
the business and affairs of the Company as may from time to time be vested
in or requested of him by the Board and shall use his best efforts to
improve and extend the business of the Company. Xx. Xxxxx agrees to devote
all of his business time, attention and services to the diligent, faithful
and competent discharge of such duties for the successful operation of the
Company's business. Xx. Xxxxx will have authority over the hiring and
firing of all employees, consultants, agents, and other parties working for
the Company.
(C) Director Nomination.
(i) The Board of Directors of the Company shall nominate and appoint
Xx. Xxxxx as a director of the Company. Thereafter, during the term of
this Agreement, the Board of Directors of the Company shall designate
and nominate Xx. Xxxxx as a director of the Company and, if elected by
the stockholders of the Company, Xx. Xxxxx shall accept such position
and diligently perform the duties arising from such position. The
Board of Directors of the Company will use its best efforts to cause
Xx. Xxxxx to be elected as a director after nomination.
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(ii) The Board of Directors of the Company shall nominate and appoint
an individual designated by Xx. Xxxxx as a director of the Company.
Thereafter, during the term of this Agreement, the Board of Directors
of the Company shall designate and nominate the individual designated
by Xx. Xxxxx as a director of the Company and, if elected by the
stockholders of the Company, the individual designated by Xx. Xxxxx
shall accept such position and diligently perform the duties arising
from such position. The Board of Directors of the Company will use its
best efforts to cause the individual designated by Xx. Xxxxx to be
elected as a director after such nomination. Xx. Xxxxx' right to
designate a director shall expire upon the closing of the initial
public offering of the Company's stock.
2. Compensation: Salary and Other Benefits. As of December 23, 1997, the
Company shall pay Xx. Xxxxx the following compensation, including the following
salary and fringe benefits:
(A) Salary. In consideration of the services to be rendered by Xx. Xxxxx to
the Company, the Company will pay to Xx. Xxxxx the monthly salary rate of
$2,083.33 (Xx. Xxxxx' "base rate"). Xx. Xxxxx shall receive a bonus
equivalent to $10,000.00 for each full month employed from the date of this
Agreement to the time the Company receives $250,000 in seed capital within
30 days of the Company's receipt of such seed capital. Thereafter, Xx.
Xxxxx shall be paid at the monthly salary rate of $12,083.37 in conformity
with customary practices for executive compensation as such practices shall
be established or modified from time to time by the Compensation Committee
of the Board of Directors. Salary payments shall be subject to all
applicable federal and state withholding, payroll and other taxes.
(B) Fringe Benefits. Xx. Xxxxx shall be reimbursed for all reasonable
business related expenses. Xx. Xxxxx shall accrue four (4) weeks vacation
per year. Xx. Xxxxx will also be entitled to participate on the same basis
with all other senior management employees of DynaGen in DynaGen's standard
benefits package generally available to such senior management employees of
DynaGen with respect to group health, dental, disability, 401(K) plan (to
the extent such participation is allowed under the terms of the plan and
applicable law) and life insurance programs.
3. Equity Participation.
(A) Restricted Shares. Simultaneously, with the execution of this
Agreement, Xx. Xxxxx and the Company shall enter into the Stock Purchase
and Restriction Agreement in the form of Exhibit B hereto (the "Stock
Purchase and Restriction Agreement") providing for the purchase by Xx.
Xxxxx of an aggregate of 360,000 shares of Common Stock of the Company at a
purchase price of $.05 per share, subject to vesting as set forth therein
(the "Restricted Shares").
(B) Option Shares. As of December 23, 1997, Xx. Xxxxx and the Company shall
enter into the Incentive Stock Option Agreement in the form of Exhibit C
hereto (the "Option Agreement") providing for the grant of an incentive
stock option to Xx. Xxxxx to purchase an aggregate of 60,000 shares of
Common Stock of the Company at an exercise price per share to be equal to
the per share fair market value of the Company's Common Stock on the date
of grant as determined by the Company's Board of Directors, subject to
vesting as set forth therein (the "Option Shares").
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(C) Escrow and Lock-Up of Shares. Xx. Xxxxx acknowledges and agrees to be
bound by the terms of any escrow and lock-up agreement in connection with
the Company's initial public offering to the same extent as other
stockholders of the Company.
4. Annual Performance Review. On or about each November 1, while this
Agreement may be in effect, the Compensation Committee of the Board of Directors
and Xx. Xxxxx shall review the performance by, and the compensation to, Xx.
Xxxxx for the prior year and the proposed performance by, and compensation to,
Xx. Xxxxx for the then forthcoming year. Any future agreements regarding salary,
equity participation, fringe benefits and other material benefits and terms of
this Agreement shall be subject to approval by the Compensation Committee of the
Board of Directors and agreed to by Xx. Xxxxx.
5. Term. The term of this Agreement shall commence on the date first above
written and shall terminate on the earlier to occur of (i) three (3) years, (ii)
the death, physical incapacity or mental incompetence of Xx. Xxxxx, or (iii) the
occurrence of any of the circumstances described in Section 6 hereof (the
"Expiration Date"). For purposes of this Agreement, physical incapacity and
mental incompetence shall be defined as such terms are defined under the
Company's standard disability insurance policy in effect from time to time for
management employees of the Company. Such employment may be extended upon
approval by the Board of Directors and Xx. Xxxxx, subject to earlier termination
as provided herein.
6. Termination. Xx. Xxxxx' term of employment under this Agreement may be
terminated pursuant to clause (iii) of the first sentence of Section 5 as
follows:
(A) At Xx. Xxxxx' Option: Xx. Xxxxx may terminate his employment, with or
without cause, at any time upon at least sixty (60) days' advance written
notice to the Company. Upon receipt of such advance notice of termination
at Xx. Xxxxx' option, the Company may accelerate Xx. Xxxxx' departure date
at its discretion. In the event of termination at Xx. Xxxxx' option, Xx.
Xxxxx shall be entitled to no severance or other termination benefits
subsequent to Xx. Xxxxx' departure date. Xx. Xxxxx' termination of his
employment pursuant to this Section 6(A) will not be deemed a termination
at the election of the Company for reasons other than for cause.
(B) At the election of the Company for Cause. The Company may, immediately
and unilaterally, terminate Xx. Xxxxx' employment hereunder "for cause" at
any time during the term of this Agreement without any prior written notice
to Xx. Xxxxx. Termination of Xx. Xxxxx' employment by the Company shall
constitute a termination "for cause" under this Section 6(B) if such
termination is for one or more of the following causes, as found by the
Board of Directors of the Company by a resolution duly adopted by a
majority of its members, excluding Xx. Xxxxx and the Xxxxx-designated
director:
(i) refusal to perform or discharge the duties or responsibilities
assigned by the Board of Directors, provided the same are not illegal
or would not result in a breach of Xx. Xxxxx' fiduciary duties to the
Company;
(ii) gross negligence in the performance of his duties;
(iii) conviction of a felony; or
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(iv) falseness of any warranty or representation by Xx. Xxxxx or
breach of Xx. Xxxxx' obligations under this Agreement to the material
detriment of the Company;
In the event of a termination "for cause" pursuant to the provisions of
clauses (i) through (iv) above, inclusive, Xx. Xxxxx shall be entitled to no
severance or other termination benefits except as required by law. In the event
of any termination of employment, the Company shall have a right to repurchase
the Restricted Shares upon the terms set forth in the Stock Purchase and
Restriction Agreement. In the event of any termination of employment "for
cause," no further vesting of the Option Shares shall occur from the date of
termination.
(C) At the Election of the Company for Reasons Other than for Cause. The
Company may, immediately and unilaterally, terminate Xx. Xxxxx' employment
hereunder at any time during the term of this Agreement without cause by giving
written notice to Xx. Xxxxx of the Company's election to terminate. In the event
the Company exercises its right to terminate Xx. Xxxxx under this Section 6(C),
the Company agrees to pay Xx. Xxxxx a severance or termination payment of:
(i) if termination occurs prior to six (6) months of employment, six
(6) months' salary continuation at Xx. Xxxxx' then current base rate,
(ii) if termination occurs after six (6) months of employment, twelve
(12) months' salary continuation at Xx. Xxxxx' then current base rate,
(iii) if termination occurs after twenty-four (24) months of
employment, in addition to the twelve months' salary continuation
referenced in Section 6(C)(ii), the immediate vesting of all unvested
shares of stock to which Xx. Xxxxx would be entitled under the Stock
Purchase and Restriction Agreement, and
(iv) the cost of Xx. Xxxxx' health and dental insurance coverage for
such applicable salary continuation period.
Such severance payments shall be payable on a monthly basis for such months
following Xx. Xxxxx' termination and shall be subject to all applicable federal
and state withholding, payroll and other taxes. In the event of any termination
under this Section 6(C) prior to December 22, 1999, the next regularly scheduled
quarterly installment of Restricted Shares immediately following the date on
which Xx. Xxxxx is notified of such termination to which Xx. Xxxxx would be
entitled under the Stock Purchase and Restriction Agreement shall hereby be
accelerated and deemed to have vested as of the date of notice of such intent to
terminate, and all remaining vesting of such Restricted Shares shall cease and
all Xx. Xxxxx' rights and obligations concerning the Restricted Shares shall
accordingly be governed by the terms of the Stock Purchase and Restriction
Agreement.
In the event of Xx. Xxxxx' death, the Company shall pay Xx. Xxxxx' current
base salary to Xx. Xxxxx' legal representative as salary continuation payments
for a period of one (1) year and for a period of one (1) year following Xx.
Xxxxx' death, the Company shall pay the cost of health and dental insurance
coverage continuation for Xx. Xxxxx' surviving spouse.
(D) Termination Because of Change in Control. In the event of a Change in
Control (as hereinafter defined) of the Company, and Xx. Xxxxx is either not
employed by the acquiring
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corporation in a comparable position at a comparable salary or Xx. Xxxxx'
the Company's principal place of business is relocated more than fifty (50)
miles from its present location, then (i) the Company or the acquiring
corporation, as the case may be, shall be obligated to pay to Xx. Xxxxx a
severance payment of 299% of Xx. Xxxxx' salary at Xx. Xxxxx' then current
base rate, and (ii) the time at which all non-vested Restricted Shares
vests shall be accelerated automatically to immediately prior to the time
the Change of Control occurs. Such change in control severance payments
shall be the exclusive severance payments or obligations owed to Xx. Xxxxx
under such circumstances and shall supersede any severance payments or
obligation specified in Section 6(C). For purposes of this Agreement, a
"Change in Control" shall have occurred if at any time any of the following
events shall occur:
(i) The Company is merged or consolidated or reorganized into or with
another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than a majority of the
combined voting power of the then-outstanding securities of such
surviving, resulting or reorganized corporation or person immediately
after such transaction is held in the aggregate by the holders of the
then-outstanding securities entitled to vote generally in the election
of directors of the Company (the "Voting Stock") immediately prior to
such transaction;
(ii) The Company sells or otherwise transfers all or substantially all
of its assets to any other corporation or other legal person, and as a
result of such sale or transfer less than a majority of the combined
voting power of the then-outstanding securities of such corporation or
person immediately after such sale or transfer is held in the
aggregate by the holders of the Voting Stock of the Company
immediately prior to such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule 14D-I (or
any successor schedule, form or report), each as promulgated pursuant
to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
disclosing that any "person" (as such term is used in Section 13(d)(3)
or Section 14(d)(2) of the 0000 Xxx) has become the "beneficial owner"
(as such term is used in Rule 13d-3 under the 0000 Xxx) of securities
representing 35% or more of the Voting Stock of the Company;
(iv) The Company files a report or proxy statement with the Securities
and Exchange Commission pursuant to the 1934 Act disclosing in
response to Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) that a change in control of the Company has
occurred; or
(v) If during any period of two consecutive years, individuals who at
the beginning of any such period constitute the Board cease for any
reason to constitute at least a majority thereof, unless the election,
or the nomination for election by the Company's stockholders, of each
director of the Company first elected during such period was approved
by a vote of at least a majority of the directors then still in office
who were directors of the Company at the beginning of any such period;
provided, however, that notwithstanding the foregoing provisions of this
Section 6(D), a Change in Control shall not be deemed to have occurred for
purposes of this Agreement solely because the Company, an entity in which
the Company directly or indirectly
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beneficially owns 50% or more of the voting securities, or any
Company-sponsored employee stock ownership plan or any other employee
benefit plan of the Company, either files or becomes obligated to file a
report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report)
under the 1934 Act, disclosing beneficial ownership by it of shares of the
Voting Stock or because the Company reports that a change in control of the
Company has occurred by reason of such beneficial ownership.
(E) Benefits if Agreement Terminated Due to Disability. In the event this
Agreement shall terminate pursuant to clause (ii) of the first sentence of
Section 5 due to the physical incapacity or mental incompetence of Xx.
Xxxxx, the Company shall pay Xx. Xxxxx an amount equal to three (3) months
salary at the then current base rate, less any amounts recovered by Xx.
Xxxxx under any health and disability insurance programs available through
the Company. The provisions of this Section 6(E) shall survive the
termination of this Agreement by reason of the physical incapacity or
mental incompetence of Xx. Xxxxx.
7. Insurance. The Company may, for its own benefit, maintain "keyman" life
and disability insurance policies covering Xx. Xxxxx. Xx. Xxxxx will cooperate
with the Company and provide such information or other assistance as the Company
may reasonably request in connection with the Company obtaining and maintaining
such policies.
8. Noncompetition Agreement.
(A) Non-Competition. While employed by the Company and for a period of one
year after any cessation of employment with the Company for any reason, Xx.
Xxxxx shall not (i) on behalf of any person, firm or corporation, or on Xx.
Xxxxx' own account, engage in any business activity or become interested in
any business, which is competitive with any product or services being
developed, marketed, planned, sold, or otherwise provided by the Company
during the two (2) years immediately prior to Xx. Xxxxx' termination; or
(ii) hire, entice away or in any manner persuade or attempt to persuade any
officer, employee or agent of the Company, or any of such subsidiaries and
affiliates, to discontinue his, her or its relationship with the Company,
such subsidiaries or affiliates. Nothing contained in this Section 8(A)
shall be deemed to prohibit Xx. Xxxxx from acquiring, solely as an
investment, up to 4% of the shares of the capital stock of any publicly
held corporation.
(B) Enforceability. If any of the covenants contained in Section 8(A), or
any part thereof, is held to be unenforceable because of the duration of
such provision or scope or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the
duration and/or scope and/or area of such provision, and, in its reduced
form, said provision shall then be enforceable. The parties hereto intend
to and hereby confer jurisdiction to enforce the covenants contained in
Sections 8(A) and 8(B) upon the state and federal courts within the
Commonwealth of Massachusetts.
9. Nondisclosure and Assignment of Inventions Agreement. In connection with
his employment by the Company pursuant to the terms of this Agreement, Xx. Xxxxx
shall execute, prior to the execution hereof by the Company, the Nondisclosure
and Assignment of Inventions Agreement attached hereto as Exhibit D, the terms
and conditions of which are incorporated herein by reference.
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10. Consent and Waiver by Third Parties. Xx. Xxxxx hereby represents and
warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agrement
without being in conflict with any other agreement, obligation or understanding
with any such third party. Xx. Xxxxx represents that he is not bound by an
agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder.
11. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without reference to its conflicts of laws
provisions.
12. Severability. In case any one or more of the provisions contained in
this Agreement, or the other agreements executed in connection with the
transactions contemplated hereby, for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other agreements, but this Agreement or such other agreements, as the case may
be, shall be construed and reformed to the maximum extent permitted by law.
13. Waivers and Modifications. This Agreement may be modified, and the
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 13. No waiver by either party of
any breach by the other or any provision hereof shall be deemed to be a waiver
of any later or other breach thereof or as a waiver of any other provision of
this Agreement. This Agreement sets forth all of the terms of the understandings
between the parties with reference to the subject matter set forth herein and
may not be waived, changed, discharged or terminated orally or by any course of
dealing between the parties, but only by an instrument in writing signed by the
party against whom any waiver, change, discharge or termination is sought. No
modification or waiver by the Company shall be effective without the consent of
at least a majority of the members of the Board of Directors (excluding Xx.
Xxxxx and the Xxxxx-designated director) then in office at the time of such
modification or waiver.
14. Assignment. Xx. Xxxxx acknowledges that the services to be rendered by
him hereunder are unique and personal in nature. Accordingly, Xx. Xxxxx may not
assign any of his rights or delegate any of his duties or obligations under this
Agreement. The rights and obligations of the Company under this Agreement shall
inure to the benefit of, and shall be binding upon, the successors and assigns
of the Company.
15. Entire Agreement. This Agreement, along with the Consulting Agreement,
the Stock Purchase and Restriction Agreement, the Option Agreement, and the
Nondisclosure and Assignment of Inventions Agreement, attached hereto as Exhibit
A, Exhibit B, Exhibit C and Exhibit D, respectively, constitute the entire
understanding of the parties relating to the subject matter hereof and
supersedes and cancels all agreements, written or oral, made prior to the date
hereof between Xx. Xxxxx and the Company relating to employment, salary, bonus,
or other compensation of any description, equity participation, pension,
post-retirement benefits, severance or other remuneration.
16. Construction. The language of all parts of this Agreement shall in all
cases be construed as a whole according to its fair meaning and not strictly for
or against any of the parties.
17. Notices. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
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If to the Company, to: BioTrack, Inc.
Riverside Technology Center
000 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of the Board
With a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000; and
If to Xx. Xxxxx, at Xx. Xxxxx' address set forth on the signature page hereto.
With a copy to:
Xxxxxxx Xxxx, Esq.
Xxxxx and Xxxxxxxx Professional Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
19. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
20. Attorneys Fees. In the event of any legal actions concerning the rights
or responsibilities of the parties under this Agreement, the prevailing party
shall be entitled to reimbursement of legal costs and expenses from the other
party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written as an instrument under seal.
BIOTRACK, INC.
M. Xxx Xxxxx
______________________________
Print Name
By: /s/ Guy * /s/ M. Xxx Xxxxx
____________________________ ______________________________
Signature
Title: Director 00 Xxxxx Xxxx Xx.
_________________________ ______________________________
Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
______________________________
City State Zip Code
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EXHIBIT A
CONSULTING AGREEMENT
This Consulting Agreement, dated October 31, 1997 (the "Effective Date"),
is between M. Xxx Xxxxx (the "Consultant") and DynaGen, Inc. ("DynaGen"), a
Delaware corporation with a principal place of business at Riverside
Technology Center, 000 Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000.
WHEREAS, DynaGen desires to engage the Consultant to perform business
development services regarding the BioLocator technology for BioTrack, Inc.
("BioTrack"), a subsidiary of DynaGen with a principal place of business at
Riverside Technology Center, 000 Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxx, XX
00000; and
WHEREAS, the Consultant desires to engage in a consultancy relationship
with the Company and would benefit from such an engagement;
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, it is agreed as follows:
1. CONSULTANT'S SERVICES. The Consultant shall act as a consultant to
DynaGen commencing on October 31, 1997 until December 22, 1997. The Consultant
shall provide consulting services and advice at such times and such places as
BioTrack or DynaGen may reasonably request and shall include, without
limitation, preparation and delivery of such reports as to the Consultant's
progress in performing the services which BioTrack or DynaGen may request from
time to time.
2. COMPENSATION. In exchange for the full, prompt and satisfactory
performance of such consulting services, DynaGen shall pay the Consultant a
monthly rate of $2,083.33 (the Consultant's "base rate"), to be paid on a
bi-weekly pro-rata basis. At the time BioTrack receives $250,000 in seed
capital, the Consultant shall receive on a pro-rata basis a bonus from either
BioTrack or DynaGen equivalent to $10,000.00 for each month retained under this
Consulting Agreement.
3. RESTRICTIONS ON THE DISCLOSURE OR USE OF PROPRIETARY INFORMATION. To
protect and secure to BioTrack and DynaGen its competitive market position,
goodwill, know-how, trade secrets, confidential information and customer
relationships, which the Consultant may acquire as a result of, or in connection
with, his relationship with BioTrack or DynaGen (or their predecessors,
successors, or assigns), the Consultant agrees as follows:
(A) ASSIGNMENT OF INVENTIONS. If at any time or times during the term of
the Consultant's consultancy with DynaGen, the Consultant shall (either alone or
with others) make, conceive, create, discover, invent or reduce to practice any
invention, modification, discovery, design, development, improvement, process,
software program, work of authorship, documentation, formula, data, technique,
know-how, trade secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registrable under copyright, trademark or
similar statutes (including but not limited to the Semiconductor Chip Protection
Act) or subject to analogous protection) (herein called "Developments") that (a)
relates to the business of BioTrack or DynaGen or any customer of or supplier to
BioTrack or DynaGen or any of the products or services being developed,
manufactured or sold by BioTrack or DynaGen or which may be used in relation
therewith, (b) results from tasks assigned to the Consultant by
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BioTrack or DynaGen or (c) results from the Consultant's use of premises or
personal property (whether tangible or intangible) owned, leased or contracted
for by BioTrack or DynaGen, such Developments and the benefits thereof are and
shall immediately become the sole and absolute property of BioTrack and its
assigns, as works made for hire or otherwise, and the Consultant shall promptly
disclose to BioTrack (or any persons designated by it) each such Development
and, as may be necessary to ensure BioTrack's ownership of such Developments,
the Consultant hereby assigns any rights (including, but not limited to, any
copyrights and trademarks) the Consultant may have or acquire in the
Developments and benefits and/or rights resulting therefrom to BioTrack's and
its assigns without further compensation and shall communicate, without cost or
delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to BioTrack.
The Consultant will, during the term of this Consultant Agreement, and at
any time thereafter at the request and cost (including a reasonable per diem
consulting fee) of BioTrack or DynaGen and at the Consultant's convenience,
promptly sign, execute, make and do all such deeds, documents, acts and things
as BioTrack or DynaGen and their duly authorized agents may reasonably require:
(i) to apply for, obtain, register and vest in the name of BioTrack alone
(unless BioTrack otherwise directs) letters patent, copyrights, trademarks
or other analogous protection in any country throughout the world and when
so obtained or vested to renew and restore the same; and
(ii) to defend any judicial, opposition or other proceedings in respect of
such applications and any judicial, opposition or other proceedings or
petitions or applications for revocation of such letters patent, copyright,
trademark or other analogous protection.
In the event BioTrack or DynaGen is unable, after reasonable effort, to
secure the Consultant's signature on any application for letters patent,
copyright or trademark registration or other documents regarding any legal
protection relating to a Development, whether because of the Consultant's
physical or mental incapacity or for any other reason whatsoever, the Consultant
hereby irrevocably designates and appoints BioTrack and its duly authorized
officers and agents as its agent and attorney-in-fact, to act for and in his
behalf and stead to execute and file any such application or applications or
other documents and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent, copyright or trademark registrations
or any other legal protection thereon with the same legal force and effect as if
executed by the Consultant.
(B) NONDISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION. The Consultant
shall not, either during the consultancy or at any time thereafter, for any
reason whatsoever, reveal to any person or entity (both commercial and
non-commercial) any of the trade secrets or confidential business information
concerning BioTrack or DynaGen: including its research and development
activities; product designs, prototypes and technical specifications; show-how
and know-how; marketing plans and strategies; pricing and costing policies;
customer and supplier lists and accounts; or nonpublic financial information of
BioTrack or DynaGen so far as they have come or may come to the Consultant's
knowledge, except as may be required in the ordinary course of performing the
Consultant's obligations to promote and advance the business of BioTrack. This
restriction shall not apply to: (i) information that is in the public domain
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through no fault of the Consultant; (ii) information approved for release by
written authorization of BioTrack or DynaGen; or (iii) information that may be
required by law or an order of any court, agency or proceeding to be disclosed.
The Consultant shall keep secret all matters of such nature entrusted to him and
shall not use or disclose any such information for the benefit of any third
party in any manner which may injure or cause loss to BioTrack or DynaGen,
whether directly or indirectly.
4. NONCOMPETITION AGREEMENTS.
(a) NON-COMPETITION. During the term of this Consulting Agreement and for a
period of one year thereafter, the Consultant shall not (i) on behalf of any
person, firm or corporation, or on the Consultant's own account, engage in any
business activity or become interested in any business, which is competitive
with any product or services being developed, marketed, planned, sold, or
otherwise provided by BioTrack or DynaGen during the two (2) years immediately
prior to the commencement of the term of this Consulting Agreement; or (ii)
hire, entice away or in any manner persuade or attempt to persuade any officer,
employee or agent of BioTrack or DynaGen, or any of such subsidiaries and
affiliates, to discontinue his, her or its relationship with BioTrack or
DynaGen, such subsidiaries or affiliates. Nothing contained in this Section 4(a)
shall be deemed to prohibit the Consultant from acquiring, solely as an
investment, up to 4% of the shares of capital stock of any publicly held
corporation.
(B) ENFORCEABILITY. If any of the covenants contained in Section 4(a), or
any part thereof, is held to be unenforceable because of the duration of such
provision or scope or the area covered thereby, the parties agree that the court
making such determination shall have the power to reduce the duration and/or
scope and/or area of such provision, and, in its reduced form, said provision
shall then be enforceable. The parties hereto intend to and hereby confer
jurisdiction to enforce the covenants contained in Sections 4(a) and 4(b) upon
the state and federal courts within the Commonwealth of Massachusetts.
5. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that
during the term of this Agreement the Consultant's relationship to DynaGen will
be that of an independent contractor and that neither this Agreement nor the
services to be rendered hereunder shall for any purpose whatsoever or in any way
or manner create any employer-employee relationship with either BioTrack or
DynaGen. Accordingly, the Consultant shall have sole and exclusive
responsibility for the payment of all federal, state and local income taxes, for
all employment and disability insurance and for Social Security and other
similar taxes with respect to any compensation or benefits provided by DynaGen
hereunder. The Consultant further agrees that if DynaGen pays or becomes liable
for such taxes or related civil penalties or interest as a result of the
Consultant's failure to pay taxes or report same, or due to DynaGen's failure to
withhold taxes, the Consultant shall indemnify and hold DynaGen harmless for any
such liability. The Consultant shall assume and accept all responsibilities
which are imposed on independent contractors by any statute, regulation, rule of
law or otherwise. The Consultant is not authorized to bind BioTrack or DynaGen,
or to incur any obligation or liability on behalf of BioTrack or DynaGen, except
as expressly authorized by BioTrack or DynaGen in writing.
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6. MISCELLANEOUS.
(a) This Consulting Agreement contains, and is intended as, a complete
statement of all of the terms of the arrangement between the parties with
respect to its subject matter, supersedes all previous negotiations, promises,
agreements and understanding with respect to those matters, and cannot be
changed or terminated except by an agreement in writing signed by the parties.
(b) The Consultant represents that his performance of all the terms of
this Consulting Agreement does not and will not breach any noncompetition
agreement and/or agreement to keep in confidence proprietary information,
knowledge or data acquired by the Consultant in confidence or in trust prior
to his retention by DynaGen, and the Consultant will not disclose to BioTrack
or DynaGen or induce BioTrack or DynaGen to use any confidential or
proprietary information or material belonging to any previous employer, client
or others.
(c) No provision of this Consulting Agreement shall be waived, amended,
modified, superseded, canceled, terminated, renewed or extended except in a
written instrument signed by the party against whom any of the foregoing
actions is asserted. Any waiver shall be limited to the particular instance
and for the particular purpose when and for which it is given.
(d) The invalidity, illegality or unenforceability of any provision of
this Consulting Agreement shall in no way effect the validity, legality or
enforceability of any other provision of this Consulting Agreement.
(e) This Consulting Agreement, the Services to be performed and all
rights hereunder are personal to the Consultant and may not be transferred or
assigned by the Consultant at any time.
(f) This Consulting Agreement shall be construed and enforced in
accordance with the internal laws of the Commonwealth of Massachusetts without
reference to its conflicts of laws provisions.
(g) This Consulting Agreement may be executed in duplicate counterparts,
which, when taken together, shall constitute one instrument and each of which
shall be deemed to be an original instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
14
The parties have executed this Consulting Agreement as an agreement under
seal as of the date set forth below.
DYNAGEN, INC.
/s/ Xxxx Xxxx
By:___________________________________
President and Chief Executive Officer
______________________________________
Title
/s/ Xxx Xxxxx
______________________________________
Xxx Xxxxx
Date:_____________________________
15
EXHIBIT B
STOCK PURCHASE AND RESTRICTION AGREEMENT
AGREEMENT, made as of the 31st day of October, 1997 by and between
BioTrack, Inc., a Delaware corporation (the "Company"), and M. Xxx Xxxxx (the
"Stockholder").
WHEREAS, the Stockholder is purchasing common stock, $.01 par value per
share, of the Company (the "Common Stock") pursuant to this Agreement;
WHEREAS, the Company desires to place certain restrictions on the
disposition of the Common Stock held by the Stockholder, and the parties are
willing to execute this Agreement and to be bound by the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below, and the parties' desire to provide for continuity of ownership of
the Company to further the interests of the Company and its present and future
stockholders, the parties hereby agree with each other as follows:
1. PURCHASE PRICE AND PAYMENT. The Company agrees to sell to the
Stockholder and the Stockholder agrees to purchase from the Company 360,000
shares of Common Stock, (the "Shares"), at a price of $.05 per share (the
"Original Purchase Price"). Participant's payment for the Shares shall be made
by cash or by check in the aggregate amount of $18,000.00. As used in this
Agreement, the term "Shares" shall also include all other securities of the
Company which may be issued in exchange for or in respect of the Shares
(whether by way of stock split, stock dividend, combination, reclassification,
reorganization, or any other means).
2. REPRESENTATIONS OF THE STOCKHOLDER.
(a) The Stockholder is acquiring the Shares for his own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or
selling the same. The Stockholder understands that the purchase of the
Shares involves a high degree of risk in view of a number of
considerations, including that there may never be an established market for
the Shares. The Stockholder understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"), nor
any state securities laws and that the Shares must be held indefinitely
unless they are subsequently registered under the Act and relevant state
securities laws or an exemption from such registration is available. The
Stockholder further acknowledges that the Company is under no obligation to
register the Shares under the Act or relevant state securities laws or to
insure the availability of an exemption from registration to permit resale
or other disposition of the Shares.
(b) The Stockholder has adequate net worth and means of providing for
his current needs and contingencies to sustain a complete loss of his
investment in the Company. The Stockholder has such knowledge and
experience in financial and business matters such that he or she is capable
of evaluating the merits and risks of the purchase of the Shares.
(c) The Stockholder is fully familiar with the business, organization,
financial condition and operations of the Company, and has all such
information which the Stockholder deems necessary and appropriate to make
the investment decision with respect to the purchase of the Shares. The
Stockholder has had the opportunity to ask questions of and receive answers
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from the management of the Company concerning the terms and conditions of
the offering of the Shares and any additional information, documents,
records and books relative to its business, assets, financial condition,
results of operations and liabilities (contingent or otherwise) of the
Company. The Stockholder is familiar with this Agreement and confirms that
all documents, records and books pertaining to such Stockholder's
investment in the Company and requested by such Stockholder have been made
available or delivered to him.
3. REPRESENTATION OF THE COMPANY. The authorized capital stock of the
Company consists of (i) 1,000,000 shares of Preferred Stock, $.01 par value per
share (the "PREFERRED STOCK"), and (ii) 25,000,000 shares of Common Stock.
Immediately prior to the execution of this Agreement, 5,640,000 shares of Common
Stock will be validly issued and outstanding, fully paid and nonassessable with
no personal liability attaching to the ownership thereof and no shares of
Preferred Stock will have been issued. The stockholders of record are as set
forth in EXHIBIT A hereto. The designations, powers, preferences, rights,
qualifications, limitations and restrictions in respect of each class and series
of authorized capital stock of the Company are as set forth in the Company's
Restated Certificate of Incorporation (the "CHARTER"), a copy of which is
attached as EXHIBIT B. Except as set forth in EXHIBIT A hereto and this
Agreement (i) no person owns of record or is known to the Company to own
beneficially any share of Common Stock and (ii) no subscription, warrant,
option, convertible security, or other right (contingent or other) to purchase
or otherwise acquire equity securities of the Company is authorized or
outstanding. Except as provided for in the Charter or as set forth in EXHIBIT A
hereto and this Agreement, the Company has no obligation (contingent or other)
to purchase, redeem or otherwise acquire any of its equity securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof.
4. PROHIBITED TRANSFERS.
(a) The Stockholder shall not sell, assign, transfer, pledge,
hypothecate, mortgage, encumber or dispose of all or any of his Shares
except (a) Vested Shares, as defined in Section 5(a), provided that the
disposition of any such shares shall be subject to any limitations imposed
by this Agreement or (b) to the Company. Notwithstanding the foregoing, the
Stockholder may transfer any of his Shares (i) by way of gift to any member
of his family or to any trust for the benefit of any such family member or
the Stockholder; provided, however, that any such transferee shall agree in
writing with the Company, as a condition precedent to such transfer, to be
bound by all of the provisions of this Agreement to the same extent as if
such transferee were the Stockholder, or (ii) by will or the laws of
descent and distribution, in which event each such transferee shall be
bound by all of the provisions of this Agreement to the same extent as if
such transferee were the Stockholder. As used herein, the word "family"
shall include any spouse, lineal ancestor or descendant, brother or sister.
(b) In addition to the foregoing, if requested by the underwriters for
the initial underwritten public offering of securities of the Company, the
Stockholder shall agree not to sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or otherwise dispose of all or any of his Shares,
without the written consent of such underwriters, for a period of not more
than 180 days following the effective date of the registration statement
relating to such offering.
5. VESTING; OPTION OF COMPANY.
(a) If the Stockholder has continued to serve the Company or any of
its subsidiaries or affiliates in the capacity of a consultant, employee,
of ricer or director (such service is
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described herein as maintaining or being involved in a "Business
Relationship" with the Company) on the following dates, the following
number of Shares shall be deemed "Vested Shares" (and all other shares
shall be "Non-Vested Shares"):
On April 30, 1998 _ 60,000 Shares
On July 31, 1998 _ an additional 30,000 Shares
On October 31, 1998 _ an additional 30,000 Shares
On January 31, 1999 _ an additional 30,000 Shares
On April 30, 1999 _ an additional 30,000 Shares
On July 31, 1999 _ an additional 30,000 Shares
On October 31, 1999 _ an additional 30,000 Shares
On January 31, 2000 _ an additional 30,000 Shares
On April 30, 2000 _ an additional 30,000 Shares
On July 31, 2000 _ an additional 30,000 Shares
On October 31, 2000 _ an additional 30,000 Shares
(b) In the event of any termination pursuant to Section 6(C) of that
certain Agreement between the Company and the Stockholder dated the date
hereof, which among other provisions, provides the terms of the
Stockholder's employment with the Company (the "Employment Agreement"), the
next quarterly vesting pursuant to Section 5(a) of this Agreement
immediately following the date on which the Stockholder is notified of such
termination shall be accelerated and the number of Non-Vested Shares so
scheduled to vest shall be deemed to have vested as of the date of notice
of such intent to terminate, provided, however, that if the Stockholder's
employment is terminated after December 22, 1999 pursuant to Section 6(C)
of the Employment Agreement, then all Non-Vested Shares shall be deemed to
have vested as of the date of notice of such intent to terminate.
(c) In the event of a Change in Control (as defined in Section 6(D) of
the Employment Agreement) in which the Stockholder is not employed by the
acquiring Corporation in a comparable position at a comparable salary or
the Company's principal place of business is relocated more than fifty (50)
miles from its present location, then all Non-Vested Shares shall be deemed
to have vested immediately prior to the time the Change in Control occurs.
(d) The Company shall have the right (the "Repurchase Right") to
repurchase all, or any lesser number, of the Non-Vested Shares from the
Stockholder, upon the occurrence of any of the events specified in Section
4(e) below (a "Repurchase Event"). The Repurchase Right may be exercised by
the Company within sixty days following the date the Company receives
actual knowledge of such event (the "Repurchase Period"). The Repurchase
Right shall be exercised by the Company by giving the Stockholder written
notice on or before the last day of the Repurchase Period of its intention
to exercise the Repurchase Right, and, together with such notice, tendering
to the Stockholder an amount equal to $.05 per Share. The Company may
assign the Repurchase Right to one or more persons. Upon timely exercise of
the Repurchase Right in the manner provided in this Section 4(d), the
Stockholder shall deliver to the Company the stock certificate or
certificates representing the shares being repurchased, duly endorsed and
free and clear of any and all liens, charges and encumbrances.
If shares are not purchased under the Repurchase Right, the
Stockholder and his successor in interest, if any, will hold any such
shares in his possession subject to all of the provisions of this
Agreement.
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(e) The Company shall have the Repurchase Right in the event of the
termination of the Stockholder's Business Relationship with the Company or
any of its subsidiaries or affiliates, voluntarily or involuntarily, for
any reason whatsoever.
6. RIGHT OF FIRST OFFER.
(a) If the Stockholder desires to transfer all or any part of the
Vested Shares to any person other than the Company (an "Offeror"), the
Stockholder shall: (i) obtain in writing an irrevocable and unconditional
bona fide offer (the "Offer") for the purchase thereof from the Offeror;
and (ii) give written notice (the "Option Notice") to the Company setting
forth the Stockholder's desire to transfer such shares, which Option Notice
shall be accompanied by a photocopy of the Offer and shall set forth at
least the name and address of the Offeror and the price and terms of the
Offer. Upon receipt of the Option Notice, the Company shall have an
assignable option to purchase any or all of such Vested Shares (the
"Company Vested Shares") specified in the Option Notice, such option to be
exercisable by giving, within thirty days after receipt of the Option
Notice, a written counter-notice to the Stockholder. If the Company elects
to purchase any or all of such Company Vested Shares, it shall be obligated
to purchase, and the Stockholder shall be obligated to sell to the Company,
such Company Vested Shares at the price and terms indicated in the Offer
within thirty days from the date of delivery by the Company of such
counter-notice.
(b) The Stockholder may, for sixty days after the expiration of the
sixty day option period set forth in Section 5(d), sell to the Offeror,
pursuant to the terms of the Offer, any or all of such Company Vested
Shares not purchased or agreed to be purchased by the Company or its
assignees of; provided, however, that the Stockholder shall not sell such
Company Vested Shares to such Offeror if such Offeror is a competitor of
the Company and the Company gives written notice to the Stockholder, within
thirty days of its receipt of the Option Notice, stating that the
Stockholder shall not sell his Company Vested Shares to such Offeror. If
any or all of such Company Vested Shares are not sold pursuant to an Offer
within the time permitted above, the unsold Company Vested Shares shall
remain subject to the terms of this Section 6.
7. FURTHER RESTRICTIONS. Any attempted transfer in violation of the terms
of this Agreement shall be ineffective to vest any legal or beneficial interest
in the Shares in any transferee and shall be null and void. Without limiting the
foregoing, any purported transfer in violation hereof shall be ineffective as
against the Company, and the Company shall have a continuing right and option
(but not an obligation) until this Agreement terminates to purchase the Shares
purported to be transferred by or for the Stockholder for a price and on terms
the same as those at which such Shares could have been purchased hereunder at
the time of the transfer. In addition to any other legal or equitable rights
that they may have, the Company or the Stockholder may enforce their rights
hereunder by specific performance to the extent permitted by law. Nevertheless,
the Company may in any particular circumstances waive these restrictions on
transfer.
8. REGISTRATION OF SHARES. If the Company at any time proposes to register
any of its securities under the Act for sale to the public for the account of
DynaGen, Inc. (except with respect to registration statements on Forms X-0, X-0
or another form not available for registering the Vested Shares for sale to the
public), each such time it will give written notice to the Stockholder of its
intention so to do. Upon the written request of the Stockholder, received by the
Company within 15 days after the giving of any such notice by the Company to
register any of the Vested Shares, the Company will use its
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best efforts to cause the Vested Shares as to which registration shall have been
so requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the Stockholder (by the same method of
disposition as that which DynaGen, Inc. intends to use) of the Vested Shares so
registered; provided, however, that the Vested Shares eligible for such
registration will be equal to the product of all such Vested Shares and a ratio,
the numerator of which is the number of shares of Common Stock held by DynaGen,
Inc. to be so registered by the Company and the denominator of which is the
total number of shares of Common Stock held by DynaGen, Inc. In the event that
any registration pursuant to this Section 8 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of Vested Shares to be
included in such an underwriting may be reduced if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold therein by DynaGen, Inc.;
provided, however, that such reduction in the number of Vested Shares to be
included in an underwritten public offering shall be proportional to any such
reduction required in the number of shares of Common Stock to be sold by
DynaGen, Inc. Notwithstanding the foregoing provisions, the Company may withdraw
any registration statement referred to in this Section 8 without thereby
incurring any liability to the Stockholder.
9. LOCK-UP. The Stockholder acknowledges and agrees to be bound by the
terms of any escrow and lock-up agreement in connection with the Company's
initial public offering to the same extent as other stockholders of the Company.
10. STOCK TRANSFER RECORD. The Company shall not effect or record any
transfer of Shares in its stock transfer records unless such transfer is in
compliance with the provisions of this Agreement. If the Stockholder desires to
make a transfer, he shall furnish to the Company such evidence of compliance
with this Agreement as may be reasonably required by the Board of Directors of,
or counsel for, the Company.
11. TERM. The Company's right of first offer contained in Section 6 hereof
shall terminate immediately prior to the consummation of the first firm
commitment underwritten public offering of equity securities of the Company
pursuant to an effective registration statement under the Act.
12. REMEDIES OF THE COMPANY.
(a) FAILURE TO DELIVER SHARES TO THE COMPANY. If the Stockholder
becomes obligated to sell any Shares to the Company under this Agreement
and fails to deliver such Shares in accordance with the terms of this
Agreement, the Company, may, at its option, in addition to all other
remedies it may have, send to the Stockholder the purchase price for such
Shares as is herein specified. Thereupon, the Company, upon written notice
to the Stockholder, shall cancel on its books the certificate or
certificates representing the Shares to be sold (and may issue, in lieu
thereof, in the name of the Company a new certificate or certificates
representing such Shares) and upon such cancellation all of the
Stockholder's rights in and to such Shares shall terminate.
(b) SPECIFIC ENFORCEMENT. The Stockholder expressly agrees that the
Company will be irreparably damaged if this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants and/or
conditions of this Agreement by the Stockholder, the Company shall, in
addition to all other remedies, be entitled to a temporary or permanent
injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
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13. LEGENDS. Each certificate evidencing any of the Shares shall bear each
of the legends substantially as follows:
"The Shares represented by this certificate are subject to
restrictions on transfer and may not be sold, exchanged, transferred,
pledged, hypothecated or otherwise disposed of except in accordance with
and subject to all the terms and conditions of a certain Stock Purchase and
Restriction Agreement dated as of October 31, 1997, a copy of which the
Company will furnish to the holder of this certificate upon request and
without charge."
"The Shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended. These shares have been
acquired for investment and not with a view to distribution or resale and
may not be offered, sold, mortgaged, pledged, hypothecated, or otherwise
transferred unless and until such shares are registered under the
Securities Act of 1933, as amended, or an opinion of counsel satisfactory
to the Company is obtained to the effect that registration is not required
under such Act."
14. DELIVERY OF STOCK AND DOCUMENTS. Upon the closing of any purchase of
Shares from the Stockholder pursuant to this Agreement, the Stockholder shall
deliver to the purchaser the certificate or certificates representing the Shares
being sold, duly endorsed for transfer and bearing such documentary stamps, if
any, as are necessary, and such assignments, certificates of authority, tax
releases, consents to transfer, instruments and evidences of title of the
Stockholder and of such Stockholder's compliance with this Agreement as may be
reasonably required by the purchaser or by counsel for the purchaser.
15. GENERAL.
(a) NOTICES. Any and all notices, requests or other communications
hereunder shall be given in writing and delivered in person or sent by
registered or certified mail, return receipt requested, postage prepaid;
and such notices shall be addressed: (i) if to the Company, to Xxxx Xxxx
the President of the Company at its principal office; and (ii) if to the
Stockholder, to the address of the Stockholder as reflected on the
signature page to this Agreement, unless notice of a change of address is
furnished to the Company in the manner provided in this Section 15(a). Any
notice which is required to be made within a stated period of time shall be
considered timely if delivered or mailed as provided above before midnight
of the last day of such period.
(b) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction. If the final judgment
of a court of competent jurisdiction declares that any term or provision
hereof is invalid or unenforceable, the parties agree that the court making
the determination of invalidity or unenforceability shall have the power to
reduce the scope, duration, or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as
so modified after the expiration of the time within which the judgment may
be appealed.
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(c) Benefit and Burden; Assigns. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their
legatees, distributees, estates, executors, administrators, personal
representatives, successors and assigns, and other legal representatives.
The Company may assign its rights under the Agreement, in whole or in part,
to any person or persons designated by the Board of Directors of the
Company.
(d) Headings. The headings, subheadings and other captions in this
Agreement are for convenience and reference only and shall not be used in
interpreting, construing or enforcing any of the provisions of this
Agreement.
(e) Entire Agreement; Amendments; Conflicts. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and neither this Agreement nor any provision hereof may be
waived, modified, amended or terminated except by a written agreement
signed by the parties hereto. To the extent any term or other provision of
any other indenture, agreement or instrument by which any party hereto is
bound conflicts with this Agreement, this Agreement shall have precedence
over such conflicting term or provision.
(f) Governing Law. This Agreement, and any claims relating to the
relationship of the parties contemplated herein, whether or not arising
directly under this Agreement, shall be governed by the laws of the
Commonwealth of Massachusetts without reference to its conflicts of laws
provisions.
(g) Waivers. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature.
(h) Continuation of Business Relationship. Nothing in this Agreement
shall create an obligation on the Company to continue the Stockholder's
Business Relationship with the Company.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Stock Purchase and Restriction Agreement has
been executed as of the date and year first above written.
COMPANY:
BIOTRACK, INC.
/s/ Xxxx Xxxx
By:_____________________________________
Xxxx Xxxx, President
Riverside Technology Center
000 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
STOCKHOLDER:
/s/ M. Xxx Xxxxx
_____________________________________
M. Xxx Xxxxx
Address: 00 Xxxxx Xxxx Xxxx
_____________________________
Xxxxxxxx, XX 00000
_____________________________
23
EXHIBIT A
Stockholders of record of BioTrack, Inc.
Number of Shares
Name of Common Stock
---- ----------------
DynaGen, Inc. 5,630,000
Xxxx Xxxxx Xxxxx 10,000
---------
TOTAL 5,640,000
24
EXHIBIT B
RESTATED
CERTIFICATE OF INCORPORATION
OF
DYNAGEN OF MASSACHUSETTS, INC.
A DELAWARE CORPORATION
DynaGen of Massachusetts, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify that:
1. The name of the corporation is DynaGen of Massachusetts, Inc. (the
"Corporation"). The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on July 23, 1997.
2. The amendment and restatement herein set forth has been duly approved by
the Board of Directors of the Corporation and consented to in writing by the
sole stockholder of the Corporation pursuant to Sections 141, 228 and 242 of the
General Corporation Law of the State of Delaware ("Delaware Law").
3. The restatement herein set forth has been duly adopted pursuant to
Section 245 of the Delaware Law. This Restated Certificate of Incorporation
restates and integrates and amends the provisions of the Corporation's
Certificate of Incorporation.
4. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
"FIRST. The name of the corporation is BioTrack, Inc. (the
"Corporation").
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 0000 Xxxxxx Xxxxxx, in the city of Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 26,000,000 shares, consisting
of 25,000,Q00 shares of Common Stock with
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a par value of one cent ($.01) per share (the "Common Stock") and 1,000,000
shares of Preferred Stock with a par value of one cent ($.01) per share (the
"Preferred Stock").
A description of the respective classes of stock and a statement of the
designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
A. PREFERRED STOCK
The Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the Corporation's Board of
Directors may determine. Each series of Preferred Stock shall be so designated
as to distinguish the shares thereof from the shares of all other series and
classes. Except as otherwise provided in this Restated Certificate of
Incorporation, different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The Board of Directors is expressly authorized to provide for the issuance
of all or any shares of the Preferred Stock in one or more series, each with
such designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and such
qualifications, limitations or restrictions thereof as shall be stated in the
resolution or resolutions adopted by the Board of Directors to create such
series, and a certificate of said resolution or resolutions shall be filed in
accordance with the General Corporation Law of the State of Delaware. The
authority of the Board of Directors with respect to each such series shall
include, without limitation of the foregoing, the right to provide that the
shares of each such series may: (i) have such distinctive designation and
consist of such number of shares; (ii) be subject to redemption at such time or
times and at such price or prices; (iii) be entitled to the benefit of a
retirement or sinking fund for the redemption of such series on such terms and
in such amounts; (iv) be entitled to receive dividends (which may be cumulative
or non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series of stock; (v) be entitled to such
rights upon the voluntary or involuntary liquidation, dissolution or winding up
of the affairs, or upon any
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distribution of the assets of the Corporation in preference to, or in such
relation to, any other class or classes or any other series of stock: (vi) be
convertible into, or exchangeable for, shares of any other class or classes or
any other series of stock at such price or prices or at such rates of exchange
and with such adjustments, if any; (vii) be entitled to the benefit of such
conditions, limitations or restrictions, if any, on the creation of
indebtedness, the issuance of additional shares of such series or shares of any
other series of Preferred Stock, the amendment of this Restated Certificate of
Incorporation or the Corporation's By-laws, the payment of dividends or the
making of other distributions on, or the purchase, redemption or other
acquisition by the Corporation of, any other class or classes or series of
stock, or any other corporate action; or (viii) be entitled to such other
preferences, powers, qualifications, rights and privileges, all as the Board of
Directors may deem advisable and as are not inconsistent with law and the
provisions of this Restated Certificate of Incorporation.
B. COMMON STOCK
1. RELATIVE RIGHTS OF PREFERRED STOCK AND COMMON STOCK. All preferences,
voting powers, relative, participating, optional or other special rights and
privileges, and qualifications, limitations, or restrictions of the Common Stock
are expressly made subject and subordinate to those that may be fixed with
respect to any shares of the Preferred Stock.
2. VOTING RIGHTS. Except as otherwise required by law or this Restated
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation.
3. DIVIDENDS. Subject to the preferential rights of the Preferred Stock, if
any, the holders of shares of Common Stock shall be entitled to receive, when
and if declared by the Board of Directors, out of the assets of the Corporation
which are by law available therefor, dividends payable either in cash, in
property or in shares of capital stock.
4. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, after distribution
in full of the preferential
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amounts, if any, to be distributed to the holders of shares of the Preferred
Stock, holders of Common Stock, shall be entitled, unless otherwise provided by
law or this Restated Certificate of Incorporation, to receive all of the
remaining assets of the Corporation of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of Common Stock
held by them respectively.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware:
A. The Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation.
B. Elections of directors of the Corporation need not be by written
ballot unless the By-laws of the Corporation shall so provide.
C. The books of the Corporation may be kept at such place within or
without the State of Delaware as the By-laws of the Corporation may provide
or as may be designated from time to time by the Board of Directors of the
Corporation.
SEVENTH. The Corporation eliminates the personal liability of each member
of its Board of Directors to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided, however, that,
to the extent provided by applicable law, the foregoing shall not eliminate
the liability of a director (i) for any breach of such director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of Title 8 of the Delaware Code or (iv) for
any transaction from which such director derived an improper personal benefit.
No amendment to or repeal of this provision shall apply to or have any effect
on the liability or alleged liability of any director for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
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EIGHTH. The Corporation reserves the right to amend or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
NINTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation."
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IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Restated Certificate of Incorporation to be signed by
its President and attested by its Secretary this 28th day of October, 1997.
DYNAGEN OF MASSACHUSETTS, INC.
/s/ Xxxx Xxxx
By:_____________________________________
Xxxx Xxxx
President
ATTEST:
/s/ Xxxxxx Xxxxxxxx
By:_______________________________
Xxxxxx Xxxxxxxx
Secretary
30
EXHIBIT D
BIOTRACK, INC.
NONDISCLOSURE AND ASSIGNMENT OF INVENTIONS AGREEMENT
In consideration for and as a condition of my initial employment as an
employee (the "Employee") of BioTrack, Inc. (the "Company"), and in
consideration of the receipt by me of shares of the Company's Common Stock, $.01
par value per share, pursuant to that certain Stock Purchase and Restriction
Agreement of even date herewith, I hereby agree with the Company as follows:
1. I will not at any time, whether during or after the termination of my
employment, for any reason whatsoever, reveal to any person or entity (both
commercial and non-commercial) any of the trade secrets or confidential business
information concerning the Company: including its research and development
activities; product designs, prototypes and technical specifications; show-how
and know-how; marketing plans and strategies; pricing and costing policies;
customer and supplier lists and accounts; or nonpublic financial information of
the Company so far as they have come or may come to my knowledge, except as may
be required in the ordinary course of performing my duties as an employee of the
Company to promote and advance the business of the Company. This restriction
shall not apply to: (i) information that is in the public domain through no
fault of my own; (ii) information approved for release by written authorization
of the Company; or (iii) information that may be required by law or an order of
any court, agency or proceeding to be disclosed. I shall keep secret all matters
of such nature entrusted to me and shall not use or disclose any such
information for the benefit of any third party in any manner which may injure or
cause loss to the Company, whether directly or indirectly.
2. If at any time or times during the term of my employment with the
Company (which term shall include my employment on a part-time or consulting
basis), I shall (either alone or with others) make, conceive, create, discover,
invent or reduce to practice any invention, modification, discovery, design,
development, improvement, process, software program, work of authorship,
documentation, formula, data, technique, know-how, trade secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright, trademark or similar statutes (including but not
limited to the Semiconductor Chip Protection Act) or subject to analogous
protection) (herein called "Developments") that (a) relates to the business of
the Company or any customer of or supplier to the Company or any of the products
or services being developed, manufactured or sold by the Company or which may be
used in relation therewith, (b) results from tasks assigned to me by the Company
or (c) results from the use of premises or personal property (whether tangible
or intangible) owned, leased or contracted for by the Company, such Developments
and the benefits thereof are and shall immediately become the sole and absolute
property of the Company and its assigns, as works made for hire or otherwise,
and I shall promptly disclose to the Company (or any persons designated by it)
each such Development and, as may be necessary to ensure the Company's ownership
of such Developments, I hereby assign any rights (including, but not limited to,
any copyrights and trademarks) I may have or acquire in the Developments and
benefits and/or rights resulting therefrom to the Company and its assigns
without further compensation and shall communicate, without cost or delay, and
without disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
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I will, during my employment and at any time thereafter, at the request
and cost of the Company, promptly sign, execute, make and do all such deeds,
documents, acts and things as the Company and its duly authorized agents may
reasonably require:
(a) to apply for, obtain, register and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights,
trademarks or other analogous protection in any country throughout the world
and when so obtained or vested to renew and restore the same; and
(b) to defend any judicial, opposition or other proceedings in respect of
such applications and any judicial, opposition or other proceedings or
petitions or applications for revocation of such letters patent, copyright,
trademark or other analogous protection.
In the event the Company is unable, after reasonable effort, to secure my
signature on any application for letters patent, copyright or trademark
registration or other documents regarding any legal protection relating to a
Development, whether because of my physical or mental incapacity or for any
other reason whatsoever, I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agent and attorney-in-fact, to
act for and in my behalf and stead to execute and file any such application or
applications or other documents and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or trademark
registrations or any other legal protection thereon with the same legal force
and effect as if executed by me.
3. I hereby consent to the use of my name, picture, signature, voice,
image, and/or likeness by the Company during my employment by the Company and
for a reasonable time thereafter (and at all times to the extent required by law
or as necessary to safeguard the Company's intellectual property rights).
Further, I waive all claims I may now have or may ever have against the Company
and its officers, employees, and agents arising out of the Company's use,
adaptation, reproduction, modification, distribution, exhibition or other
commercial exploitation of my name, picture, signature, voice, image and/or
likeness, including but not limited to right of privacy, right of publicity and
celebrity, use of voice, name or likeness, defamation and copyright
infringement. I represent and warrant that I have not made any contract or
commitment in conflict with this consent and waiver.
4. I hereby waive any and all rights of integrity, paternity, disclosure
and withdrawal in and to any copyrighted works created by me in the course of my
employment with the Company, that may exist in such works under the laws of the
United States or any foreign country, or under the Berne Convention for the
Protection of Literary and Artistic Works.
5. I agree that any breach of this Agreement by me will cause irreparable
damage to the Company and that in the event of such breach the Company shall
have, in addition to any and all remedies of law, the right to an injunction,
specific performance or other equitable relief to prevent the violation of my
obligations hereunder.
6. I understand that this Agreement does not create an obligation on the
Company or any other person or entity to continue my employment.
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7. I represent that the Developments identified in the pages, if any,
attached hereto comprise all the unpatented and unregistered copyrightable
Developments which I have made, conceived or created prior to my employment by
the Company, which Developments are excluded from this Agreement. I understand
that it is only necessary to list the title and purpose of such Developments but
not details thereof.
I further represent that my performance of all of the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
8. Any waiver by the Company of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision hereof.
9. I hereby agree that each provision herein, shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity, subject or
otherwise so as to be unenforceable at law, such provision or provisions shall
be construed by the appropriate judicial body by limiting or reducing it or
them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
10. My obligations under this Agreement shall survive the termination of my
employment regardless of the manner of such termination and shall be binding
upon my heirs, executors, administrators and legal representatives.
11. The tend "Company" shall include BioTrack, Inc. and any of its
subsidiaries, subdivisions or affiliates including, without limitation, DynaGen,
Inc. The Company shall have the right to assign this Agreement to its successors
and assigns, and all covenants and agreements hereunder shall inure to the
benefit of and be enforceable by said successors or assigns.
12. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without giving effect to the
principles of conflicts of laws of such state.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the undersigned and the Company have executed this
Agreement as of this 31st day of October, 1997.
BIOTRACK, INC. M. XXX XXXXX
/s/ Guy * /s/ M. Xxx Xxxxx
By:_____________________________ ________________________________
Signature
Director
Title:__________________________
