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EXHIBIT 6.1
EMPLOYMENT AGREEMENT
AGREEMENT dated as of June 10, 1999 between XXXXX XXXXXXXXX, residing
at 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxx ("Executive") and ADVANCED PLANT
PHARMACEUTICALS, INC., a Delaware corporation, having its principal office at 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation").
RECITALS
The parties hereto desire to provide for the Executive's continued
employment by the Corporation in accordance with the terms and provisions set
forth below:
NOW, THEREFORE, the parties agree as follows:
1. Employment, Duties and Acceptance
1.1 This Agreement shall replace that certain Employment
Agreement dated July 1, 1996, by and between the Corporation and the Executive
(the "1996 Agreement") which 1996 Agreement shall no longer be in effect as of
the date hereof. The Corporation will continue to employ the Executive, and the
Executive will work for the Corporation as its President for a term commencing
on the date hereof and terminating on June 10, 2002, unless sooner terminated in
accordance with Section three of this Agreement. Such period, together with the
period of any extension or renewal period of such employment, is herein referred
to as the "Employment Period".
1.2 During the Employment period, the Executive shall serve as
the President of the Corporation and perform such duties as shall, from time to
time, be reasonably assigned to the Executive by the Board of Directors of the
Corporation consistent with his position and abilities. As President of the
Corporation, Executive's primary responsibilities will include general
management of the Corporation's affairs and its day to day operations.
1.3 Executive accepts such employment and agrees to devote
such time and attention as is necessary to the performance of his duties
hereunder, which may include overseas and domestic travel which travel will be
only as is reasonably required.
1.4 Corporation may, with the Executive's consent in writing,
designate him as an officer and/or as a director of the Corporation or any other
division or affiliate.
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2. Compensation.
2.1 As full compensation during the term of this Agreement for
all Executive's services to be rendered hereunder, including, without
limitation, any services rendered for the Corporation or any affiliate,
Corporation agrees to pay, or cause to be paid to Executive, in the manner
hereinafter provided, an amount equal to $135,000 per annum (hereinafter "Base
Salary"), to be paid in monthly installments.
2.2 In its sole discretion, the Board of Directors of the
Corporation may consider and award Executive a bonus at any time during the term
of this Agreement, such bonus to be additional consideration and apart-from the
Base Salary.
2.3 Executive shall be entitled to such medical and other
benefits as are customarily afforded to all Executives of the Corporation.
2.4 Executive shall be entitled to four weeks vacation per
calendar year. Such vacation will be taken subject to the needs of the
Corporation and in not greater than 10 business day segments.
2.5 For the purposes of this Article 2, any period less than a
full fiscal year shall be prorated for the portion thereof which shall be
applicable.
2.6 Corporation will pay or reimburse Executive for all
transportation, hotel or apartment rent and other living expenses reasonably
incurred by Executive on business trips required for the performance of his
duties hereunder, including, without limitation, regular trips between Israel
and the United States. Corporation will also pay and reimburse Executive for the
cost of telephones (hand wire and portable), fax equipment, photocopying,
secretarial and other usual and customary office services, equipment and
supplies as are necessary for the provision of services to be rendered under
this Agreement.
2.7 As additional compensation, Executive will be granted
under separate agreement, an option to purchase 750,000 shares of common stock
of the Corporation at an exercise price of $.01 (one cent) per share (the
"Option"), such right to vest as follows:
Number of Shares Date After Which Shares Can Be Purchased
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750,000 June 10, 1999
This Option shall not be exercisable after 5:00 p.m. E.S.T. on June 10,
2004.
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3. Term and Termination.
3.1 The term of this Agreement shall commence on June 10, 1999
and shall continue until June 10, 2002 ("Expiration Date"), unless sooner
terminated as herein provided.
3.2 If Executive shall die during the term of this Agreement,
this Agreement shall thereupon terminate, except that the Corporation shall pay
to the legal representative of Executive's estate all monies due hereunder up to
the date of his death, and the Corporation shall pay the equivalent of 12 months
Base Salary to Executive's estate in a single payment due three months after the
death of the Executive
3.3 Corporation, by notice to Executive, may terminate
Executive's employment services under this Agreement for any reason, effective
at the time specified in the notice. Upon such termination, Corporation will pay
Executive, in single payment on such termination date, an amount equivalent to
three years Base Salary.
3.4 Corporation, by notice to Executive, may terminate
Executive's employment services under this Agreement if Executive shall become
disabled, or shall fail because of illness or incapacity, to render, for 6
successive months or for shorter periods aggregating 6 months or more in any one
year, services of the character contemplated by this Agreement. Notwithstanding
such termination, Corporation shall pay to Executive all monies due hereunder up
to the date of such notice, and the Corporation shall pay the equivalent of 12
months Base Salary to Executive in a single payment due three months after the
date of termination due to disability.
3.5 Corporation, by notice to Executive, may terminate
Executive's employment services under this Agreement for any other reason,
effective at the time specified in the notice. Upon such termination,
Corporation will pay Executive, in single payment on such termination date, an
amount equivalent to the lesser of nine months Base Salary or the amount of Base
Salary to be paid during the remaining term of this Agreement.
3.6 Executive may terminate his employment services with the
Corporation at any time during the term of this Agreement. Upon such
termination, the Corporation shall pay to Executive all monies due hereunder up
to the date of such notice.
4. Protection of Confidential Information: Non-Competition.
4.1 Executive acknowledges that:
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(a) As a result of his employment by the Corporation,
Executive has obtained and will obtain secret and confidential information
concerning the business of Corporation and its affiliates, including, without
limitation, the identity of customers and sources of supply, their needs and
requirements, the nature and extent of contracts with them, and related cost,
price and sales information.
(b) Corporation and its affiliates will suffer
substantial damage which will be difficult to compute if, during the period of
his employment with Corporation or thereafter, Executive should enter a
competitive business or should divulge secret and confidential information
relating to the business of the Corporation heretofore or hereafter acquired by
him in the course of his employment with the Corporation or any affiliate.
The provisions of this Agreement are reasonable and
necessary for the protection of the business of Corporation and its affiliates.
4.2 Executive agrees that he will not at any time, either
during the term of this Agreement or thereafter, divulge to any person, firm or
corporation any information obtained or learned by him during the course of his
employment with Corporation or any of its affiliates, or prior to the
commencement thereof in the course of his employment with the Corporation, with
regard to the operational, financial, business or other affairs of the
Corporation or its affiliates, their officers and directors, including, without
limitation, trade "know how," secrets, customer lists, sources of supply,
pricing policies, operational methods or technical processes, except (i) in the
course of performing his duties hereunder, (ii) with Corporation's express
written consent; (iii) to the extent that any such information is in the public
domain other than as a result of Executive's breach of any of his obligations
hereunder; or (iv) where required to be disclosed by court order, subpoena or
other government process. In the event that Executive shall be required to make
disclosure pursuant to the provisions of clause (iv) of the preceding sentence,
Executive promptly, but in no event more than 48 hours after learning of such
subpoena, court order, or other government process, shall notify, by personal
delivery or by cablegram, confirmed by mail, Corporation and, at Corporation's
expense, Executive shall: (a) take all reasonably necessary steps requested by
Corporation to defend against the enforcement of such subpoena, court order or
other government process, and (b) permit Corporation to intervene and
participate with counsel of its choice in any proceeding relating to the
enforcement thereof.
4.3 Upon termination of his employment with Corporation, or at
any time the Corporation may so request, Executive will promptly deliver to
Corporation all memoranda, notes, records, reports, manuals, drawings,
blueprints and other documents (and all copies thereof relating to the business
of Corporation and its affiliates and all property associated therewith, which
he may then possess or have under his control.
4.4 During the term of his employment with the Corporation or
any of its affiliates and for a period of two years thereafter, Executive shall
not, without the prior written permission of Corporation, in the United States,
its territories and possessions,
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directly or indirectly, (i) enter into the employ of or render any services to
any person, firm or corporation engaged in any Competitive Business (as defined
in Section 6.2); (ii) engage in any Competitive Business for his own account;
(iii) become associated with or interested in any Competitive Business as an
individual, partner, shareholder, creditor, director, officer, principal, agent,
Executive, trustee, consultant, advisor or in any other relationship or
capacity; (iv) employ or retain, or have or cause any other person or entity to
employ or retain, any person who was employed or retained by Corporation or any
of its affiliates while the Executive was employed by Corporation; or (v)
solicit, interfere with, or endeavor to entice away from Corporation or any of
its affiliates any of its or their customers or sources of supply. However,
nothing in this Agreement shall preclude Executive from investing his personal
assets in the securities of any corporation or other business entity which is
engaged in a Competitive Business if such securities are traded on a national
stock exchange or in the over-the-counter market and if such investment does not
result in his beneficially owning, at any time, more than 1% of the publicly
traded equity securities of such competitor.
4.5 If Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 4.2 or 4.4, Corporation shall have
the right and remedy:
(a) to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed by Executive that the services being rendered hereunder
to Corporation are of a special, unique and extraordinary character and that any
such breach or threatened breach will cause irreparable injury to Corporation
and that money damages will not provide an adequate remedy to Corporation; and
(b) to require Executive to account for and pay over
to Corporation all compensation, profits, monies, accruals, increments or other
benefits (collectively "Benefits") derived or received by Executive as the
result of any transactions constituting a breach of any of the provisions of
Sections 4.2 or 4.4, and Executive hereby agrees to account for and pay over
such Benefits to Corporation.
Each of the rights and remedies enumerated in this Section 4.5
shall be independent of the other, and shall be severally enforceable, and such
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Corporation under law or equity.
4.6 If Executive shall violate any covenant contained in
Section 4.4, the duration of such covenant so violated shall be automatically
extended for a period of 2 years from the date on which Executive permanently
ceases such violation or for a period of 2 years from the date of the entry by a
court of competent jurisdiction of a final order or judgment enforcing such
covenant, whichever period is later.
4.7 If any provision of Sections 4.2 or 4.4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such
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determination shall have the power to modify such scope, duration, or area, or
all of them, and such provision or provisions shall then be applicable in such
modified form.
5. Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement, the making, interpretation or the breach thereof,
other than a claim solely for injunctive relief for any alleged breach of the
provisions of Section 4.2 or 4.4, as to which the parties shall have the right
to apply for specific performance to any court having equity jurisdiction, shall
be submitted to arbitration in New York City before a panel of three arbitrators
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof and any party to the
arbitration may, if he or it so elects, institute proceedings in any court
having jurisdiction for the specific performance of any such award. The powers
of the arbitrators shall include, but not be limited to, the awarding of
injunctive relief. The arbitrators shall include in any award in the prevailing
party's favor the amount of his or its reasonable attorneys' fees and expenses
and all other reasonable costs and expenses of the arbitration. In the event
that the arbitrators do not rule in favor of the prevailing party in respect of
all the claims alleged by such party, the arbitrators shall include in any award
in favor of the prevailing party the amount of his or its reasonable attorneys'
fees and other expenses and such other reasonable costs and expenses of the
arbitration as they deem just and equitable under the circumstances. Except as
provided above, each party shall bear his or its own attorneys' fees and
expenses and the parties shall bear equally all other costs and expenses of the
arbitration.
6. Definitions. As used in this Agreement:
6.1 "Affiliate" shall mean a corporation and any other entity
that, directly or indirectly, is controlled by, controlling, or under common
control with the Corporation.
6.2 "Competitive Business" shall mean any business engaged in
the medical pharmacology business.
7. Miscellaneous Provisions.
7.1 All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when given by telex, telegram or mailgram, or
when mailed first class postage prepaid, by registered or certified mail, return
receipt requested, addressed to the party to receive the same at his or its
address above set forth, or such other address as the party to receive the same
shall have specified by written notice given in the manner provided for in this
Section 7.1. All notices shall be deemed to have been given as of the date of
personal delivery, transmittal or mailing thereof.
7.2 This Agreement sets forth the entire agreement of the
parties and is intended to supersede all prior negotiations, understandings and
agreements. No provisions of
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this Agreement may be waived or changed except by a writing by the party against
whom such waiver of change is sought to be enforced. The failure of any party to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce such provision.
7.3 All questions with respect to the construction of this
Agreement, and the rights and obligations of the parties hereunder, shall be
determined in accordance with the law of the State of New York.
7.4 The article headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of any provision of this Agreement.
7.5 This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Corporation. This Agreement shall
not be assignable by Executive and shall inure to the benefit of and be binding
upon Executive and his legal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/S/ XXXXX XXXXXXXXX
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XXXXX XXXXXXXXX
ADVANCED PLANT PHARMACEUTICALS, INC.
By: /S/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: President
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