Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of
May 1, 1999 by and between FIRST SCIENTIFIC, INC., a Delaware
corporation having its principal place of business at 0000 Xxxx 0000
Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000 ("First Scientific"), and XXXXX
XXXXX, a resident of Rockwell, Texas (the "Employee").
WITNESSETH:
WHEREAS, First Scientific is engaged in the business of the
formulation and sale of proprietary antibacterial and other products
for the healthcare and beauty care industries; and
WHEREAS, the Employee possesses knowledge and senior sales
experience of substantial value to First Scientific's continued
operations and expansion; and
WHEREAS, First Scientific desires to establish its right to the
services of the Employee in the capacity described below, on the
terms and conditions and subject to the rights of termination
hereinafter set forth, and the Employee is willing to accept such
employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the Employee and First Scientific have agreed
and do hereby agree as follows:
1. EMPLOYMENT AS VICE PRESIDENT, SALES AND MARKETING.
First Scientific does hereby employ, engage and hire the Employee as
Vice President, Sales and Marketing of First Scientific, and the
Employee does hereby accept and agree to such hiring, engagement and
employment. The Employee's duties during the Employment Period (as
that term is defined in Section 2 below) shall include such duties
as are reasonably related to the Employee's skills and experience,
as First Scientific's management and Board of Directors shall from
time to time prescribe or as provided in First Scientific's
policies. First Scientific's management and Board of Directors, in
their sole and absolute discretion, shall determine the Employee's
duties and responsibilities and may assign or reassign the Employee
to such duties, responsibilities or positions as they deem in First
Scientific's best interest; provided, however, that any such duties,
responsibilities or positions shall be reasonably related to the
Employee's skills and experience. The Employee shall devote a
reasonable portion of his time, skills and efforts to the
performance of his duties hereunder. The Employee shall also
exercise due diligence and care in the performance of his duties
under this Agreement.
2. EMPLOYMENT PERIOD.
2.1 INITIAL TERM. The Employee shall be employed by the
Company for the duties as set forth in Section 1 above for a twelve
(12) month period commencing on the date hereof and ending twelve
(12) months from the date hereof (the "Initial Term"), unless
earlier terminated in accordance with the provisions of this Agreement.
2.2 RENEWAL; EMPLOYMENT PERIOD DEFINED. No later than sixty
(60) days prior to the expiration of the Initial Term, the parties
hereto agree to meet and discuss in good faith the possibility of
extending the term of this Agreement, on terms and conditions
mutually acceptable to the parties, which shall include as material
terms Employee's meeting the performane criteria set forth on
Exhibit "A" attached hereto and hereby incorporated herein. If the
parties agree to extend this Agreement at the expiration of the
Initial Term, each such extension term is referred to herein as a
"Renewal Term" and, collectively, as the "Renewal Terms." Neither
First Scientific nor the Employee shall be under any obligation to
agree to any such extension or extensions and may refuse to extend
or renew this Agreement for any or no reason whatsoever. The period
of time commencing as of the date hereof and ending on the effective
date of the termination of employment of the Employee under this or
any successor Agreement is referred to herein as the "Employment
Period."
3. COMPENSATION.
3.1 COMPENSATION PACKAGE. First Scientific shall pay the
Employee, and the Employee agrees to accept from First Scientific in
full payment for his services and promises to First Scientific
(specifically including the Employee's Covenant Not to Compete as
set forth in Section 9 below),an annual compensation package as set
forth below, payable in equal semi-monthly installments or at such
other time or times as the Employee and First Scientific shall
agree. The Employee's annual compensation package need not be
renegotiated in the event this Agreement is extended or renewed
pursuant to Section 2 above.
The Employee's annual compensation package shall consist of the
following:
(a) COMPENSATION. Annual Salary: $100,000 or a base salary
of $85,000, plus a sales bonus based on new customer revenue added
to First Scientific sales (excluding current customers; National
Boston Medical, Xxxxxx Xxxxxxxx, Xxxxxxx and Xxxxxxx, Sheffield
Resource Network, Liquid Prosperity Group, Swire Loxley and
Convatec.), as follows:
* 3% on the first $500,000 in new customer revenue; plus
* 2% on new customer revenue $500,000 - 1,000,000; plus
* 1.5% on new customer revenue beyond $1,000,000.
The bonus program will be subject to review and appropriate
refinements and improvements for renewal terms, which likely will
also include team bonus incentives that cover others engaged in
maturing a successful order and contract (a team bonus may be
implemented for the other players during the Initial Term).
(b) STOCK OPTIONS. Subject only to an enabling board
resolution, the Employee will be granted stock options conveying
250,000 shares of First Scientific common stock. The options would
vest as follows from the grant date (which is anticipated to be
close to Employee's employment date).
Percentage Number of
End of: Vested Shares Vested
---------- -------------
Year I 40% 100,000
Year II 30% 75,000
Year III 30% 75,000
The options will be granted pursuant to the First Scientific
non-qualified stock option plan and subject to all the conditions
and provisions of the plan.
(c) HEALTH INSURANCE PLAN. First Scientific does not
currently have an employee medical health plan. Until such a plan
is adopted, the Employee will be entitled to receive a monthly
employee allowance of $250/month over and above any other
compensation. An eventual plan will probably require some level of
Employee premium participation. Typically, reasonably good family
health plans in the Utah market, with a fair deductable and a 20%
co-insurance provision, run $250 to $420/month. COBRA should negate
any "pre-existing condition" problem.
(d) MOVING ALLOWANCE. First Scientific shall provide a
one-time moving allowance of $10,000 to move the Employee's
household provisions from Dallas to Utah, and will reimburse actual
invoices paid up to that amount.
(e) HOUSE HUNTING. Employee and spouse are eligible for one
house hunting trip. All expenses, such as economy class air travel,
hotel, car rental and meals will be reimbursed against proper
receipts for up to five days, assuming mid-level, non-luxury hotels.
3.2 VACATION. The Employee shall be entitled to ten (10)
days of paid vacation and six (6) days of paid sick leave per year,
with such vacation to be scheduled and taken in accordance with
First Scientific's standard vacation policies.
4. BUSINESS EXPENSES. The Employee will be entitled to
reimbursement for all routine expenses incurred by the Employee in
the normal course of his employment for and on behalf of First
Scientific. Extraordinary expenses for which the Employee desires
to receive reimbursement shall be approved in writing by First
Scientific management.
5. DEATH OR DISABILITY.
5.1 TERMINATION OF EMPLOYMENT. If the Employee becomes
physically or mentally disabled while employed by First Scientific,
and as a result thereof becomes unable to continue the proper
performance of his duties hereunder, or if the Employee dies while
employed by First Scientific, the Employee's employment hereunder
shall automatically cease and terminate. Except for the proceeds
from any life or disability income insurance which may be provided
from time-to-time in the future by the Company for the Employee, in
which case the Employee would be entitled to said benefits actually
paid under such policy, First Scientific's obligation to pay any
component of the Employee's compensation package pursuant to Section
3.1 above shall cease as of the date of the Employee's death, or, in
the case of disability, the Employee's last day of active employment
with First Scientific.
5.2 DEFINITION OF DISABLED. The Employee shall be considered
to be "disabled" for purposes of this Section 5, if, in the judgment
of two (2) licensed physicians (one of whom shall be selected by the
President of First Scientific and the other selected by the Employee
(or his personal representative)), the Employee is unable to perform
his customary duties under this Agreement because of a physical or
mental impairment or if the Employee is unable to perform his
customary duties and responsibilities under this Agreement for one
hundred twenty (120) days in any twelve (12) month period for any
reason whatsoever; provided, however, that First Scientific shall
only pay the Employee his compensation package as provided by
Section 3.1 above up to thirty (30) days during said disability
period. The determination by such physicians shall be binding and
conclusive for all purposes. Upon the expiration of the one hundred
twenty (120) days, First Scientific may, in its sole discretion,
terminate this Agreement.
6. TERMINATION BY FIRST SCIENTIFIC.
6.1 TERMINATION FOR REASONABLE CAUSE. First Scientific may
terminate this Agreement at any time before the last day of the
Initial Term, or before the last day of any Renewal Term if this
Agreement is renewed on the mutual agreement of the parties, for
"reasonable cause," as determined by the Managing Members of First
Scientific in the exercise of its reasonable business judgment. The
term "reasonable cause" as used herein shall mean:
(a) The failure of the Employee to discharge or perform
his duties and obligations promptly and in good faith under this
Agreement and with due diligence and care or to meet the objectives
agreed to and set forth on Exhibit "A" to this Agreement;
(b) The refusal of the Employee to implement or adhere
to lawful or reasonable policies or directives of First Scientific's
Board of Directors;
(c) Conduct of a criminal nature having an adverse
impact on First Scientific's reputation and standing in the industry
or community;
(d) Conduct in violation of the Employee's common law
duty of loyalty and fiduciary duty owed to First Scientific;
(e) Fraudulent conduct in connection with the business
or affairs of First Scientific, regardless of whether such conduct
is designed to defraud First Scientific or others; or
(f) Conduct in violation of any provision of this
Agreement or any other agreement or contract with First Scientific.
The existence of reasonable cause shall be conclusively determined
by First Scientific's Board of Directors. If the Employee's
employment is terminated for any of the reasons specified in
subparagraphs (c), (d), or (e) above, the Employee's employment may
be terminated immediately without any advance notice whatsoever.
The Employee's employment may be terminated for any of the reasons
specified in subparagraphs (a), (b) or (f) above, the Employee
shall be entitled to receive ten (10) days advance written notice of
termination. If the Employee's employment is terminated pursuant to
this Section 6.1, First Scientific's obligation to pay the
Employee's compensation package as determined pursuant to Section
3.1 above shall cease as of the Employee's last day of work.
6.2 NORMAL TERMINATION. This Employment Agreement shall
automatically terminate on the expiration of the Initial Term
without any notice from either party hereto, unless the parties
mutually agree in writing in advance to extend or renew this
Agreement for an additional Renewal Term, although performance
criteria in Exhibit "A" may be modified. If the parties agree to
extend or renew this Agreement, this Agreement, as extended or
renewed, shall automatically terminate as of the last day of each
Renewal Term, without any notice from either party hereto, unless
the parties mutually agree in writing in advance to extend this
Agreement for an additional Renewal Term as provided herein.
6.3 DISCOUNTINUANCE OF OPERATIONS. First Scientific may
terminate this Agreement at any time if First Scientific
discontinues its operations and liquidates, becomes insolvent,
voluntarily files for protection under the Bankruptcy Code, files
any petition or action in bankruptcy or insolvency or files for the
appointment of a receiver or trustee or for the assignment of its
assets for the benefit of its creditors. First Scientific
specifically reserves the right to discontinue its operations at any
time and for any reason whatsoever in the exercise of the reasonable
business judgment of its Board of Directors.
6.4 FINAL COMPENSATION PAYMENTS. First Scientific's
obligation to pay the Employee's compensation package pursuant to
Section 3.1 above shall terminate as of the last day of the Initial
Term, or as of the last day of any Renewal Term if this Agreement is
extended or renewed by the mutual written agreement of the parties
hereto, or on the day properly specified in any notice of
termination issued pursuant to any of the preceding paragraphs of
this Section 7.
7. TERMINATION BY THE EMPLOYEE. The Employee may terminate
this Agreement at any time before the last day of the Initial Term,
or before the last day of any Renewal Term if this Agreement is
renewed by the mutual agreement of the parties, if First Scientific
materially breaches this Agreement, and if said breach is not cured
within thirty (30) days of receipt of written notice of the breach
hereof.
8. EFFECT OF TERMINATION; SURVIVAL. Upon the proper
termination of this Agreement by First Scientific or by the Employee
as provided herein, this Agreement shall thereupon be and become
void and of no further force or effect, except that the Covenant
Not to Compete set forth in Section 9 below and the Proprietary
Information provision set forth in Section 10 below shall survive
any said termination and shall continue to bind the Employee for the
period of time stated therein, and, in addition, the dispute
resolution procedures set forth in Section 16 below shall continue
to govern all disputes arising hereunder (except as set forth
therein), the representations and warranties set forth in Section 18
below shall continue in full force and effect. Any payments due
pursuant to the terms of this Agreement for services rendered prior
to the termination of this Agreement shall be made as otherwise
provided herein.
9. EMPLOYEE'S COVENANT NOT TO COMPETE. The Employee
acknowledges that he will serve as the Vice President, Sales and
Marketing of First Scientific and in such capacity the Employee will
be First Scientific's representative with clients, customers,
suppliers, investors and the potential clients, customers, suppliers
and investors in, of and to First Scientific. The Employee also
acknowledges that he will have access to confidential information
about First Scientific and its actual and potential clients,
customers, suppliers, and investors and that he will have access to
other "Proprietary Information" (as that term is defined in Section
10.3 below) acquired by First Scientific at the expense of First
Scientific for use in its business. The Employee has and will
develop in the course of his employment substantial contacts and
experience in and possesses special, unique and extraordinary skills
and knowledge related to all aspects of First Scientific's business.
The Employee's professional skills and services to First Scientific
and the contact base which he now has and will develop in the
course of his employment are special, unique and extraordinary, and
the continued success of First Scientific is highly dependent upon
the Employee's discharge of his duties and responsibilities as
provided herein. Accordingly, by execution of this Agreement:
9.1 DURATION OF COVENANT. The Employee agrees that during
the Employment Period and for a period of twelve (12) months
following Employee's termination of employment with First Scientific
for any reason whatsoever (whether such termination shall be
voluntary or involuntary), unless such termination is the direct
result of or a response to a material breach of the Agreement by
First Scientific, the Employee shall not violate the provisions of
Section 9.2 below. The Employee agrees that the twelve (12) month
period referred to in the immediately preceding sentence shall be
extended by the number of days included in any period of time during
which the Employee is or was engaged in activities constituting a
breach of Section 9.2 below.
9.2 PROHIBITED COMPETITIVE ACTIVITIES. During the time
period specified in Section 9.1 above, the Employee shall not:
(a) Directly or indirectly own, operate, manage,
consult with, control, participate in the management or control of,
be employed by, design, schedule or conduct marketing programs for,
maintain, or continue any interest whatsoever in any company,
corporation, partnership, entity or person that intends to engage
in or that is engaged, directly or indirectly in the business of the
company;
(b) Directly or indirectly solicit any client,
customer, supplier, investor in, of, to and from First Scientific
for any company, corporation, partnership, entity or person other
than for and on behalf of First Scientific in connection with the
executive and managerial duties delegated to the Employee pursuant
to this Agreement.
9.3 NEED FOR COVENANT AND LEGAL REMEDIES. The Employee
expresses, agrees, and acknowledges that the Covenant Not to Compete
contained in this Section 9 is necessary for First Scientific's
protection because of the nature and scope of First Scientific's
business and the Employee's position with and the scope of the
duties and responsibilities delegated to the Employee by First
Scientific. Further, the Employee acknowledges that, in the event
of his breach of this Covenant Not to Compete, money damages will
not sufficiently compensate First Scientific for its injury caused
thereby, and the Employee accordingly agrees that in addition to
such money damages, the Employee may be restrained and enjoined from
any continuing breach of this Covenant Not to Compete without any
bond or other security being required by any court. The Employee
acknowledges that any breach of this Covenant Not to Compete will
result in irreparable damage, harm and injury to First Scientific.
9.4 ACKNOWLEDGMENTS BY THE EMPLOYEE. The Employee expressly
agrees and acknowledges as follows:
(a) This Covenant Not to Compete is reasonable as to
time and geographical scope and area, and does not place any
unreasonable burden on the Employee.
(b) The general public will not be harmed as a result
of enforcement of this Covenant Not to Compete.
(c) The Employee has requested or has had the
opportunity to request that his personal legal counsel review this
Covenant Not to Compete.
(d) The Employee understands and hereby agrees to each
and every term and condition of this Covenant Not to Compete.
10. PROPRIETARY INFORMATION.
10.1 RETURN OF PROPRIETARY INFORMATION. Upon the termination
of this Agreement for any reason whatsoever, the Employee shall
immediately turn over to First Scientific any and all Proprietary
Information (as that term is defined in Section 10.3 below). The
Employee shall have no right to retain any copies of any material
qualifying as Proprietary Information for any reason whatsoever
after the termination of his employment hereunder without the
express written consent of First Scientific.
10.2 NON-DISCLOSURE. It is understood and agreed that, in the
course of his employment hereunder and through his activities for
and on behalf of First Scientific, the Employee will receive, deal
with, and have access to First Scientific's Proprietary Information
and that the Employee holds said First Scientific's Proprietary
Information in trust and confidence for First Scientific. The
Employee agrees that he will not, during the term of this Agreement
or thereafter, in any fashion, form or manner, directly or
indirectly, retain, make copies of, divulge, disclose or communicate
to any person, company, partnership or entity, in any manner
whatsoever, except when necessary or required in the normal course
of the Employee's employment hereunder and for the benefit of First
Scientific or with the express written consent of First Scientific,
any of First Scientific's Proprietary Information or any information
of any kind, nature, or description whatsoever concerning any
matters affecting or relating to First Scientific's business or
affairs.
10.3 PROPRIETARY INFORMATION DEFINED. For purposes of this
Agreement, "Proprietary Information" shall not include Employee's
contributions to First Scientific as set forth in Exhibit "A," which
is attached hereto and by this reference made a part hereof, but
shall mean and include the following: (a) the identity of actual or
potential clients, customers, suppliers, or investors in, of, or to
First Scientific; (b) any written, typed or printed lists or other
materials identifying actual or potential clients, customers,
suppliers or investors in, of, or to First Scientific; (c) any
financial or other information supplied to First Scientific by
actual or potential clients, customers, suppliers or investors; (d)
any and all data or information involving the techniques, programs,
methods, customers, suppliers, investor or other contacts employed
by First Scientific in the conduct of its business; (e) any lists,
documents, manuals, records, forms or other materials used by First
Scientific in the conduct of its business; (f) any descriptive
materials describing the methods and procedures employed by First
Scientific in the conduct of its business; and (g) any other secret
or confidential information concerning First Scientific's business
or affairs. The terms "list," "document," or their equivalent, as
used in this Section 10.3, are not limited to a physical writing or
compilation, but also include electronic media and any and all other
information whatsoever regarding the subject matter of the "list" or
"document", whether or not such compilation has been reduced to
writing.
11. TERMINATION OF PRIOR AGREEMENTS. This Agreement
terminates and supersedes any and all prior agreements and
understandings between the parties hereto with respect to employment
or with respect to any form of direct or indirect compensation of
the Employee by First Scientific. Notwithstanding this provision,
the Employee agrees to execute contemporaneously with this
Employment Agreement an "Employee, Director, Consultant Proprietary
Information Agreement" in the form attached hereto as Exhibit "B",
which will survive this paragraph 11 and this Agreement.
12. ASSIGNMENT. This Agreement is personal in nature and
neither of the parties hereto shall, without the prior written
consent of the other, assign or transfer this Agreement or any of
the rights or obligations hereunder; provided, however, that in the
event of the merger, consolidation, or sale of all or substantially
all of the assets of First Scientific with or to any other company,
corporation, partnership, entity or person, this Agreement shall,
subject to the provisions hereof, be binding upon and inure to the
benefit of such successor and such successor shall discharge and
perform all of the promises, covenants, duties, and obligations of
First Scientific hereunder.
13. GOVERNING LAW. Except as provided in Section 16.3 below,
this Agreement shall be governed in all respects, whether as to
validity, construction, capacity, performance or otherwise, by the
laws of the State of Utah, and no action involving this Agreement or
the enforcement of any mediation or arbitration award thereunder may
be brought in any judicial forum except in the Second District Court
of Utah or in the Federal District Court for the District of Utah.
14. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement of the parties hereto respecting the matters within its
scope and may be modified only in a writing signed by both parties.
15. WAIVER. Failure to insist upon strict compliance with
any of the terms, covenants, or conditions hereof shall not be
deemed a waiver of any such term, covenant or condition, nor shall
any waiver or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or more
times be deemed to constitute a waiver or relinquishment of such
right or power at any other time or times.
16. DISPUTE RESOLUTION PROCEDURES.
16.1 CONSULTATION. Any dispute to be resolved pursuant to the
employment relationship created by this Agreement shall be resolved
as follows:
(a) The complaining party shall write a description of
the facts giving rise to the dispute and shall send it to the other
party as provided in this Agreement for the delivery of notices.
This description shall explain the nature of the problem and refer
to the relevant Sections of this Agreement on which the complaint is
based. The complaining party shall also set forth a proposed
solution to the problem, including a specific time frame within
which the parties must act.
(b) The party receiving the description must respond in
writing within fifteen (15) days after receipt of the description
with an explanation, including references to the relevant Sections
of this Agreement and a response to the proposed solution.
(c) Not more than ten (10) days after receipt of the
response referenced in Section 16.1(b) above, the parties must meet
and discuss options for resolving the dispute. The complaining
party must initiate the scheduling of this meeting.
16.2 MEDIATION. If the meeting does not resolve the dispute,
then a settlement conference shall be held in Xxxxx County, Utah,
not more than thirty (30) days after the unsuccessful meeting. The
complaining party must initiate the scheduling of the conference.
The parties shall try to agree on a retired judge of the Second
District Court, in and for Xxxxx County, State of Utah, to mediate
the conference. If the parties are unable to agree on a retired
judge, they shall ask Judicial Arbitration & Mediation Services,
Inc. ("JAMS") to provide a list of three such retired judges who are
available and each party shall strike one (1) of such retired
judges. The remaining retired judge shall serve as the mediator at
the settlement conference.
16.3 ARBITRATION. Any dispute not resolved pursuant to
Section 16.1 or 16.2 above shall, if demanded by either party, be
finally resolved and determined by binding arbitration in the County
of Xxxxx, State of Utah, under the administration of JAMS in
accordance with the law of the State of Utah and the JAMS Rules of
Practice and Procedure for the Arbitration of Commercial Disputes
(collectively, the "Rules").
(a) Proceedings. Subject to appropriate protective
orders, the parties to the arbitration shall facilitate the
arbitration by: (1) making available to one another and to the
arbitrator for inspection, copying and extraction all documents,
books, records under the control of such party that are relevant to
the subject matter of the arbitration proceeding; (2) conducting
arbitration hearings to the greatest extent possible on successive
days; (3) observing strictly the periods established by the Rules or
by the arbitrator for the submission of evidence or briefs; and (4)
making reasonably available to one another in arbitration discovery
and to the arbitrator all personnel who are under the control of
such party or who control such party and who have information
relevant to the arbitration proceeding.
(b) In the arbitration proceeding, depositions may be
taken and discovery obtained in accordance with the Rules. The
arbitrator, in his discretion, may impose sanctions to enforce
discovery and may limit discovery.
(c) Until the arbitration award is rendered, neither
party to the arbitration proceeding shall have any right to apply to
or appeal to any court in connection with any question of law
arising in the course of the arbitration proceeding except to
enforce arbitration, provided that either such party may apply to
any court for (1) an injunction or other provisional or interim
relief in support of arbitration or pursuant to Section 16.3(b)
above, and any such application shall not be deemed incompatible
with or a waiver of the agreement to arbitrate, or (2) a temporary
restraining order, preliminary injunction or other interim relief to
enforce this Agreement, provided that the decision to award
permanent injunctive relief shall be determined by arbitration.
(d) Any award rendered by the arbitrator shall be final
and binding upon each party to the arbitration proceeding and
judgment on the award may be entered in any court of competent
jurisdiction in Xxxxx County, State of Utah. The arbitration award,
where appropriate, may be enforced by such court through injunctive
or other equitable relief, as well as being enforced at law,
including the awarding of damages. The arbitrator also may issue
decisions for interim, interlocutory, provisional or partial relief,
including temporary restraining orders, preliminary injunctions,
orders to compel discovery, orders of attachment and protective
orders, any of which may be enforced as an arbitration award by any
court of competent jurisdiction. Any arbitration award for money
shall be made and shall be payable in U.S. dollars. The arbitrator
may award interest from the date of any breach of this Agreement and
shall fix the rate of interest on any amount awarded from the date
of the award to the date the award is paid in full.
17. INTERPRETATION; SEVERABILITY. The headings and captions
used in this Agreement are for convenience only and shall not be
considered in interpreting this Agreement. Notwithstanding any rule
or maxim of construction to the contrary, any ambiguity or
uncertainty in this Agreement shall not be construed against either
of the parties hereto based upon authorship of any of the provisions
hereof. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any
statute, law, rule or public policy, then only the portions of this
Agreement that violate such statute, law, rule or public policy
shall be stricken. All portions of this Agreement that do not
violate any statute, law, rule or public policy shall continue in
full force and effect. Further, any court order striking any
portion of this Agreement shall modify the stricken terms as
narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
18. REPRESENTATIONS AND WARRANTIES.
18.1 As of the date hereof, the Employee represents and
warrants to First Scientific as follows:
(a) The Employee has received all required approvals
and consents necessary to enter into and perform the services
required under this Agreement.
(b) There is no pending or threatened litigation or
proceedings against the Employee, except as previously disclosed to
the Company in writing.
18.2 As of the date hereof, First Scientific represents and
warrants to the Employee as follows:
(a) First Scientific has received all required
approvals and consents necessary to enter into and perform under
this Agreement. To the best of First Scientific's knowledge, there
is no pending or threatened litigation or proceedings against First
Scientific.
(b) First Scientific is a corporation duly organized,
validly existing, and in good standing under the laws of the State
of Delaware with all requisite corporate power and authority to own
its assets and carry on its business as now owned and as now
conducted, respectfully.
(c) There is no pending or threatened litigation or
proceedings against the Intellectual Property Rights (as that term
is defined below). For purposes of this Section 19.2, "Intellectual
Property Rights" shall include any information, materials, technical
data or know-how, including, but not limited to, that which relates
to research, development, market demographics, products, formulas,
services, inventions, processes, formulations, extracts, techniques,
strategies, hardware, equipment, methods, designs, software,
drawings, marketing sources, information, investor, contacts,
opportunities, and/or contracts or trade secrets.
19. ATTORNEY'S FEES. If either party incurs any attorney's
fees in order to enforce the terms and conditions of this Agreement,
whether or not a legal action or an arbitration proceeding is
instituted, the party not in breach shall be entitled to
reimbursement for all attorney's fees and costs, in addition to any
other remedies such party may have at law or in equity.
20. NOTICES. All notices, requests, consents, and other
communications hereunder will be in writing and will be deemed to
have been delivered on the date personally delivered, upon receipt
of a telecopy or telex, or three (3) days following the date mailed
first class, registered or certified mail, postage prepaid, if
addressed to the other party at the address first set forth above or
at such new address as may have previously been communicated to the
other party pursuant to this Section 20.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement effective as of the date first-above written.
FIRST SCIENTIFIC: FIRST SCIENTIFIC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Its: President
THE EMPLOYEE:
/s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx
