EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of January 10, 2000, by and between XXXXXX EQUITIES, INC., dba AETHLON MEDICAL,
a Nevada corporation (the "Company") and XXXXXXX X. XXXXXX ("Executive").
ARTICLE I
DUTIES AND TERM
1.1 EMPLOYMENT. In consideration of their mutual covenants and other
good and valuable consideration, the receipt, adequacy and sufficiency of which
is hereby acknowledged, the Company agrees to hire Executive, and Executive
agrees to remain in the employ of the Company, upon the terms and conditions
herein provided.
1 .2 POSITION AND RESPONSIBILITIES.
1.2.1 Executive shall serve as the Vice President--Business
Development of the Company and President of Aethlon, Inc., a wholly-owned
subsidiary of the Company (or in a capacity and with a title of at least
substantially equivalent quality) reporting directly to Chief Executive Officer
of the Company. Executive agrees to perform services not inconsistent with his
position as shall from time to time be assigned to him by the Chief Executive
Officer of the Company. Such services to be performed by Executive shall
include, but not be limited to, the following:
1.2.1.1 Management and supervision of government
grant proposals;
1.2.1.2 Technical due diligence for potential
acquisitions by the Company;
1.2.1.3 Liaison with the Company's scientific staff
and advisory board;
1.2.1.4 Scientific representation of the Company to
the financial community;
1.2.1.5 Identification of new business opportunities;
and
1.2.1.6 Management of the anticipated Cell Activation
subsidiary.
1.2.2 Executive further agrees to serve, if elected, as a
director of the Company and as an officer or director of any subsidiary or
affiliate of the Company.
1.2.3 During the period of his employment hereunder, Executive
shall devote substantially all of his business time, attention, skill and
efforts to the faithful performance of his duties hereunder.
1.3 TERM. The term of Executive's employment under this Agreement shall
commence on the date first above written and shall continue, unless sooner
terminated, until January 9, 2002, and it will continue thereafter for
successive One (1) year periods unless and until either party gives the other
party written notice of termination at least Sixty (60) days prior to the end of
a term.
ARTICLE II
COMPENSATION
For all services rendered by Executive in any capacity during his
employment under this Agreement, including, without limitation, services as a
director, officer or member of any committee of the Board of the Company or of
the Board of Directors of any subsidiary or affiliate of the Company, the
Company shall compensate Executive as follows:
2.1 BASE SALARY. The Company shall pay to Executive an annual base
salary commencing January 10, 2000 of not less than $80,000.00 (the "Base
Salary"). The Base Salary shall be reviewed annually by the Board or a committee
designated by the Board and the Board or such committee may, in its discretion,
increase the Base Salary.
2.2 INCENTIVE PAYMENT. During the period of Executive's employment
under this Agreement, the Executive shall be eligible to participate in an
incentive compensation program implemented by the Board (the "Annual Incentive
Bonus") whereby Executive have the potential to earn an additional $30,000 per
annum.
2.3 ADDITIONAL BENEFITS. Executive shall be entitled to participate in
all employee benefit and welfare programs, plans and arrangements (including,
without limitation, pension, profit-sharing, supplemental pension and other
retirement plans, insurance, hospitalization, medical and group disability
benefits, travel or accident insurance plans) and to receive fringe benefits,
such as dues and fees of professional organizations and associations, which are
from time to time available to the Company's executive personnel; PROVIDED,
HOWEVER, there shall be no duplication of termination or severance benefits, and
to the extent that such benefits are specifically provided by the Company to
Executive under other provisions of this Agreement, the benefits available under
the foregoing plans and programs shall be reduced by any benefit amounts paid
under such other provisions. Executive shall during the period of his employment
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hereunder continue to be provided with benefits at a level which shall in no
event be less in any material respect than the benefits made available to
Executive by the Company as of the date of this Agreement. Notwithstanding the
foregoing, the Company may terminate or reduce benefits under any benefit plans
and programs to the extent such reductions apply uniformly to all Senior
Executives entitled to participate therein, and Executive's benefits shall be
reduced or terminated accordingly. Specifically, without limitation, Executive
shall receive the following benefits:
2.3.1 HEALTH INSURANCE. The Company shall provide Executive a
monthly cash allowance for payment of health insurance premiums obtained by and
for Executive (and Executive's spouse and/or dependents) up to a maximum of Four
Hundred Dollars ($400.00) per month. Executive must submit to the Company
statements showing the actual amount of the health insurance premiums, and the
Company shall have the option to either pay the health insurance premiums
directly or to reimburse Executive for the health insurance premiums. The
Company shall have the option to obtain a group medical insurance plan which
covers Executive in place and stead of providing this monthly cash allowance.
However, in no event shall Executive be entitled to a cash payment for any
unused portion of the monthly allowance (i.e., if Executive's health insurance
premiums are $300.00 per month, Executive is not entitled to receive cash for
the unused $100.00 portion of the allowance).
2.3.2 DISABILITY BENEFITS. In the event of Executive's failure
substantially to perform his duties hereunder on a full-time basis for a period
not exceeding 180 consecutive days or for periods aggregating not more than 180
days during any twelve-month period as a result of incapacity due to physical or
mental illness, the Company shall continue to pay the Base Salary to Executive
during the period of such incapacity, but only in the amounts and to the extent
that disability benefits payable to Executive under Company-sponsored insurance
policies are less than Executive's Base Salary. Additionally, during the term of
this Agreement, including any renewals hereof, the Company shall procure and
maintain, at its own expense, a long-term disability insurance policy for the
benefit of Executive in the event of Executive's total disability (as defined in
Section 6.1).
2.3.3 REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall,
in accordance with standard Company policies, pay, or reimburse Executive for
all reasonable travel and other expenses incurred by Executive in performing his
obligations under this Agreement.
2.3.4 VACATIONS. Executive shall be entitled to twenty (20)
business days excluding Company holidays, of paid vacation during each year of
employment hereunder. Executive may accrue and carry forward no more than ten
(10) unused vacation days from any particular year of his employment under this
Agreement to the next.
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ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 DEATH OR RETIREMENT OF EXECUTIVE. Executive's employment under this
Agreement shall automatically terminate upon the death or retirement (as defined
in Section 6.1) of Executive.
3.2 BY EXECUTIVE. Executive shall be entitled to terminate his
employment under this Agreement by giving Notice of Termination (as defined in
Section 6.1) to the Company:
3.2.1 For good reason (as defined in Section 6.1);
3.2.2 At any time commencing with the date six (6) months
following the date of a change in control (as defined in Section 6.1) and ending
with the date twelve (12) months after the date of such change in control (a
"Change in Control Resignation"); and
3.2.3 At any time without good reason.
3.3 BY COMPANY. The Company shall be entitled to terminate Executive's
employment under this Agreement by giving Notice of Termination (as defined in
Section 6.1) to Executive:
3.3.1 In the event of Executive's total disability (as defined
in Section 6.1);
3.3.2 For cause (as defined in Section 6.1); and
3.3.3 At any time without cause.
ARTICLE IV
COMPENSATION UPON TERMINATION OF EMPLOYMENT
If Executive's employment hereunder is terminated in accordance with
the provisions of Article III hereof except for any other rights or benefits
specifically provided for herein following his period of employment, the Company
shall be obligated to provide compensation and benefits to Executive only as
follows, subject to the provisions of Section 5.4 hereof:
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4.1 UPON TERMINATION FOR DEATH OR DISABILITY. If Executive's employment
hereunder is terminated by reason of his death or total disability, the Company
shall:
4.1.1 Pay Executive (or his estate) or beneficiaries any Base
Salary Which has accrued but not been paid as of the termination date (the
"Accrued Base Salary");
4.1.2 Pay Executive (or his estate) or beneficiaries for
unused vacation days accrued as of the termination date in an amount equal to
his Base Salary multiplied by a fraction the numerator of which is the number of
accrued unused vacation days and the denominator of which is 360 (the "Accrued
Vacation Payment");
4.1.3 Reimburse Executive (or his estate) or beneficiaries for
expenses incurred by him prior to the date of termination which are subject to
reimbursement pursuant to this Agreement (the "Accrued Reimbursable Expenses");
4.1.4 Provide to Executive (or his estate) or beneficiaries
any accrued and vested benefit required to be provided by the terms of any
Companysponsored benefit plans or programs (the "Accrued Benefits"), together
with any benefits required to be paid or provided in the event of Executive's
death or total disability under applicable law;
4.1.5 Pay Executive (or his estate) or beneficiaries any
Annual Incentive Bonus with respect to a prior fiscal year which has accrued but
has not been paid, plus a portion of the Annual Incentive Bonus for the year in
which Executive's employment is terminated hereunder computed at the end of the
fiscal year and pro rated to reflect the portion of the fiscal year that
Executive was employed by the Company (collectively, the "Accrued Annual
Incentive Bonus"); and in addition,
4.1.6 Executive (or his estate) or beneficiaries shall have
the right to exercise all vested unexercised stock options and warrants
outstanding at the termination date in accordance with terms of the plans and
agreements pursuant to which such options or warrants were issued.
4.2 UPON TERMINATION BY COMPANY FOR CAUSE OR BY EXECUTIVE OTHER THAN
FOR GOOD REASON. If Executive's employment is terminated by the Company for
Cause, or if Executive terminates his employment with the Company other than (x)
upon Executive's death or total disability, (y) for good reason, or (z) pursuant
to a Change In Control Resignation (as defined in Section 3.2.2, the Company
shall:
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4.2.1 Pay Executive the Accrued Base Salary;
4.2.2 Pay Executive the Accrued Vacation Payment;
4.2.3 Pay Executive the Accrued Reimbursable Expenses;
4.2.4 Pay Executive the Accrued Benefits, together with any
benefits required to be paid or provided under applicable law;
4.2.5 Pay Executive any Annual Incentive Bonus with respect to
a prior fiscal year which has accrued but has not been paid; and in addition
4.2.6 Executive shall have the right to exercise vested
options and warrants in accordance with Section 4.1.6.
4.3 UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY EXECUTIVE FOR
GOOD REASON OR PURSUANT TO A CHANGE IN CONTROL RESIGNATION. If Executive's
employment is terminated (i) by the Company Without Cause, or (ii) by Executive
for Good Reason, or (iii) pursuant to a Change in Control Resignation, the
Company shall:
4.3.1 Pay Executive the Accrued Base Salary;
4.3.2 Pay Executive the Accrued Vacation Payment;
4.3.3 Pay Executive the Accrued Reimbursable Expenses;
4.3.4 Pay Executive the Accrued Benefits, together with any
benefits required to be paid or provided under applicable law;
4.3.5 Pay Executive the Accrued Annual Incentive Bonus;
4.3.6 Pay Executive commencing on the thirtieth (30th) day
following the termination date twelve (12) monthly payments equal to one-twelfth
(1/12th) of Executive's Base Salary in effect immediately prior to the time such
termination occurs;
4.3.7 Maintain in full force and effect, for Executive's and
his eligible beneficiaries' continued benefit, until the first to occur of (x)
his attainment of alternative employment or (y) twelve (12) months following the
termination date of his employment hereunder the employee benefits provided
pursuant to Company-sponsored benefit plans. programs or other arrangements in
which Executive was entitled to participate as a full-time employee immediately
prior to such termination in accordance with Section 2.4 hereof, subject to the
terms and conditions of such plans and programs (the "Continued Benefits"). If
Executive's continued participation is not permitted under the general terms and
provisions of such plans, programs and arrangements, the Company shall arrange
to provide Executive with Continued Benefits substantially similar to those
which Executive would have been entitled to receive under such plans, programs
and arrangements; and in addition
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4.3.8 Executive shall have the right to exercise all vested
unexercised stock options and warrants in accordance with Section 4.1.6.
ARTICLE V
RESTRICTIVE COVENANTS
5.1 CONFIDENTIALITY.
5.1.1 Executive covenants and agrees to hold in strictest
confidence, and not disclose to any person without the express written consent
of the Company, any and all of the Company's proprietary information, as defined
in Subparagraph 5.1.3 below, except as such disclosure may be required in
connection with his employment hereunder. This covenant and agreement shall
survive this Agreement and continue to be binding upon Executive after the
expiration or termination of this Agreement, whether by passage of time or
otherwise, so long as such information and data shill remain proprietary
information.
5.1.2 Upon expiration or termination of this Agreement for any
reason, Executive shall immediately turnover to the Company any "Proprietary
Information." Executive shall have no right to retain any copies of any material
qualifying as Proprietary Information for any reason whatsoever after expiration
or termination of his employment hereunder without the express written consent
of the Company.
5.1.3 For purposes of this Agreement, "Proprietary
Information" means and includes the following: the identity of clients or
customers or potential clients or customers of the Company or its affiliates;
any written, typed or printed lists, or other materia1s identifying the clients
or customers of the Company or its affiliates; Research & Development programs,
plans and discoveries; product development, marketing, and plans; any business
plans or strategic contracts, partnerships or alliances; any financial or other
information supplied by clients or customers of the Company or its affiliates;
any and all data or information involving the Company, its affiliates, programs,
methods or contacts employed by the Company or its affiliates in the conduct of
their business; any lists, documents. manuals, records, forms or other materials
used by the Company or its affiliates in the conduct of their business; any
descriptive materials describing the methods and procedures employed by the
Company or its affiliates in the conduct of their business; and any other secret
or confidential information concerning the Company's or its affiliates' business
or affairs. The terms "list," "document" or their equivalents, as used in this
Subparagraph (c), are not limited to a physical writing or compilation but also
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include any and all information whatsoever regarding the subject matter of the
"list" or "documents," whether or not such compilation has been reduced to
writing. "Proprietary Information" shall not include any information which: (i)
is or becomes publicly available through no act or failure of Executive; (ii)
was or is rightfully learned by Executive from a source other than the Company
before being received from the Company; or (iii) becomes independently available
to Executive as a matter of right from a third party. If only a portion of the
Proprietary Information is or becomes publicly available, then only than portion
shall not be Proprietary Information hereunder.
5.1.4 Executive acknowledges that he is the Vice
President--Business Development of the Company and President of Aethlon, Inc.
and in such capacity he will be a representative of the Company with respect to
clients and potential clients of the Company. Executive also acknowledges that
he has had and will continue to have access to confidential information about
the Company, its affiliates, and their clients and that "Proprietary
Information" acquired by him at the expense of the Company is for use in its
business. Executive has substantial experience in the management of medical
research and development and possesses special, unique, extraordinary skills and
knowledge in this field. Executive's management and scientific services to the
Company are special, unique and extraordinary and the success or failure of the
Company is dependent upon his discharge of his duties and obligations.
Accordingly, by execution of this Agreement, and subject to Subparagraph 5.1.3
hereof, Executive agrees that during his employment with the Company and for a
period of Two (2) years immediately after termination of his employment with the
Company (the "Non-Competition Period"), he shall not violate the provisions of
Section 5.2.
5.2 COMPETITION.
5.2.1 During the Non-Competition Period specified in Section
5.1.4, Executive shall not:
5.2.1.1 Except as a passive investor in publicly-held
companies, and except for investments held as of the date hereof, directly or
indirectly own, operate, mange, consult with, control, participate in the
management or control of, be employed by, maintain or continue any interest
whatsoever in any company that directly competes with the Company or any parent
corporation, subsidiary corporations or affiliated entity or company
(hereinafter referred to as an "Affiliate") in the United States; or
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5.2.1.2 Directly or indirectly solicit any business
of a nature that is directly competitive with the business of the Company or an
Affiliate from any individual or entity that obtained such products or services
from the Company or its Affiliates at any time during his employment with the
Company; or
5.2.1.3 Directly or indirectly solicit any business
of a nature that is directly competitive with the business of the Company or an
Affiliate from any individual or entity solicited by him on behalf of the
Company or its Affiliates; or
5.2.1.4 Employ, or directly or indirectly solicit, or
cause the solicitation of, any employees of the Company or its Affiliates who
are in the employ of the Company or its Affiliates on the termination date of
his employment hereunder for employment by others.
5.2.2 Executive expressly agrees and acknowledges that:
5.2.2.1 The Company and its Affiliates have protected
business interests throughout North America, Europe, and Asia and that
competition with and against such business interests would be harmful to the
Company and/or its Affiliates;
5.2.2.2 This covenant not to compete is reasonable as
to time and geographical area and does not place any unreasonable burden upon
him;
5.2.2.3 The general public will not be harmed as a
result of enforcement of this covenant not to compete;
5.2.2.4 He has had the opportunity to review this
covenant not to compete with his own independent legal counsel; and
5.2.2.5 He understands and hereby agrees to each and
every term and condition of to this covenant not to compete (including, without
limitation, the provisions of Section 5.4).
5.3 NON-DISPARAGEMENT. During the term of this Agreement and the
Non-Competition Period, neither Executive nor the Company shall disparage the
other, and neither shall disclose to any third party the conditions of
Executive's employment with the Company except as may be required (1) pursuant
to applicable law or regulations, including the rules and regulations of the
Securities and Exchange Commission, (ii) to effectuate the provisions of
employee plans or programs and insurance policies, or (iii) as may be otherwise
contemplated herein or unless such information becomes publicly available
without fault of the party making such disclosure.
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5.4 REMEDIES. Executive expressly agrees and acknowledges that this
covenant not to compete is necessary for the protection of the Company and its
affiliates because of the nature and scope of their business and his position
with the Company. Further, Executive acknowledges that any breach of this
covenant not to compete would result in irreparable damage to the Company, and
in the event of his breach of this covenant not to compete, money damages will
not sufficiently compensate the Company for its injury caused thereby, and that
the remedy at law for any breach or threatened breach of Sections 5.1, 5.2 and
5.3 will be inadequate and, accordingly agrees, that the Company shall, in
addition to all other available remedies (including without limitation, seeking
such damages as it can show it has sustained by reason of such breach), be
entitled to injunctive relief or specific performance and that in addition to
such money damages he may be restrained and enjoined from any continuing breach
of this covenant not to compete without any bond or other security being
required of any court. Executive further acknowledges and agrees that if the
covenant not to compete herein is deemed to be unenforceable and/or the
Executive fails to comply with this Article V, the Company has no obligation to
provide any compensation or other benefits described in Article IV hereof.
5.5 OWNERSHIP OF INVENTIONS.
5.5.1 During the employment by the Company, Executive will
have access to trade secrets, data, know-how, knowledge or other confidential
information originated in the Company or disclosed to the Company by others
under agreements to hold the same confidential (collectively referred to as
"Confidential Information"). Executive acknowledges that Confidential
Information includes any information not readily available to the public, and
includes not only technical information but also business information. In
addition, Executive may, during the period of employment, create, make, develop
or conceive inventions, discoveries, concepts, ideas, designs, works of
authorship, developments, information, improvements, or trade secrets, whether
patentable or not, and whether solely or jointly with others, which may or may
not also constitute Confidential Information (collectively referred to as
"Inventions"). Executive agrees that all works of authorship to which Executive
contributes shall be considered "works made for hire" and shall be the sole
property of the Company.
5.5.2 Executive agrees that Executive will neither utilize any
Confidential Information for Executive's own benefit or for the benefit of
anyone except the Company, nor disclose, disseminate, lecture upon or publish
articles about any Confidential Information to any one outside the Company, or
to any officer or employee of the~ Company not also having access to
Confidential Information, at any time either during or after employment by the
Company.
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5.5.3 Executive agrees to disclose promptly, in writing to
Executive's Supervisor, Company's Counsel and Chief Executive Officer, any
Inventions that Executive may make, develop or conceive, solely or jointly,
during the period of employment by the Company, or by its predecessors,
successors in business, subsidiaries, parents or affiliates. All such Inventions
shall be and remain the property of the Company. Executive hereby assigns to the
Company all Executive's rights, titles and interests in and to any such
Inventions, whether or not such Inventions may be reduced to practice during the
period of Executive's employment, and to execute all patent or copyright
applications, assignments and other documents, and to take all other steps
necessary, to vest in the Company the entire right, title and interest in and to
those Inventions and in and to any patents or copyrights obtainable therefor in
the United States and in foreign countries, all at the Company's expense, but
for no consideration to Executive in addition to Executive's salary or wages.
Executive agrees to keep adequate records of all Inventions and make such
records available to the Company.
5.5.4 If the Company chooses to prosecute applications for
patents or copyrights for any such Inventions, the Company shall assume the
entire expense of preparing, filing and prosecuting such applications, through
counsel appointed by the Company; provided, however, that the Company is under
no obligation to prosecute such applications. Executive agrees to cooperate with
the Company and do whatever is necessary or appropriate to obtain patents,
copyrights or other legal protections for Inventions. If Executive is
incapacitated or refuses to so cooperate for any reason, Executive hereby
authorizes the Company to act as Executive's agent and to take whatever actions,
or execute whatever documents, may be needed to carry out this Agreement.
5.5.5 All records and other material pertaining to
Confidential Information, whether developed by Executive or others, shall be and
remain the property of the Company. Upon termination of Executive's employment
with the Company, all documents, records, notebooks and other material of any
kind pertaining to or containing Confidential Information then in Executive's
possession, or under Executive's control, whether prepared by Executive or
others, will be returned to the Company unconditionally.
5.5.6 Executive shall not be obligated to assign any Invention
which/relates to or would be useful in any business or activities in which the
Company is engaged if such Invention was conceived and reduced to practice by
Executive prior to Executive's employment with the Company, provided that all
such Inventions are listed at the time of employment on the attached Exhibit
"B." If no entry is made on Exhibit `B," then such entry shall be deemed to be
"none," whether or not Exhibit "B" is signed by Executive. Except as listed on
Exhibit "B," Executive will not assert any rights to any Inventions, as having
been made or acquired by Executive prior to being employed by the Company.
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5.5.7 Executive shall not be obligated to assign any Invention
which may be wholly conceived by Executive after Executive leaves the employ of
the Company, except that Executive is so obligated if such Invention shall
involve the utilization of Confidential Information of the Company.
5.5.8 Notwithstanding anything in this Agreement to the
contrary, Executive shall not be obligated to assign to the Company and of
Executive's rights in an Invention that the Executive developed entirely on
Executive's own time without using the Company's equipment, supplies, facilities
or Confidential Information, except for those Inventions that either: (i)
relate, at the time of conception or reduction to practice of Invention, to
either the Company's business, or actual or demonstrably anticipated research or
development of the Company, or (ii) result from any work performed by the
Executive for the Company. THIS AGREEMENT DOES NOT APPLY TO ANY INVENTION WHICH
QUALIFIES FULLY UNDER THE PROVISIONS OF CALIFORNIA LABOR CODE SECTION 2870 OR
ANY OTHER SUBSTANTIALLY EQUIVALENT LAW IN THE STATE IN WHICH THE EXECUTIVE IS
EMPLOYED. With regard to those Inventions which Executive is not obligated to
assign to the Company, Executive shall give the Company a right of first refusal
on any and all such Inventions and the right to meet any firm offer of another
for such Inventions. The Company must exercise such right of first refusal
within thirty (30) days of receipt of written notice from Executive setting
forth such offer.
ARTICLE VI
MISCELLANEOUS
6.1 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
6.1.1 "Accrued Annual Incentive Bonus" - as defined in Section
4.1.5;
6.1.2 "Accrued Base Salary" - as defined in Section 4.1.1;
6.1.3 "Accrued Benefits" - as defined in Section 4.1.4;
6.1.4 "Accrued Reimbursable Expenses" - as defined in Section
4.1.3; 6.1.5 "Annual Vacation Payment" - as defined in Section 4.1.2;
6.1.6 "Annual Incentive Bonus" - as defined in Section 2.2;
6.1.7 "Base Salary" - as defined in Section 2.1;
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6.1.8 "Board" - shall mean the Board of Directors of the
Company ;
6.1.9 "Cause" shall mean the occurrence of any of the
following:
6.1.9.1 Executive's gross and willful misconduct
which is injurious to the Company;
6.1.9.2 Executive's engaging in fraudulent conduct
with respect to the Company's business or in conduct of a criminal nature that
may have an adverse impact on the Company's standing and reputation;
6.1.9.3 The continued and unjustified failure or
refusal by Executive to perform the duties required of him by this Agreement
which failure or refusal shall not be cured within fifteen (15) days following
(a) receipt of Executive of written notice from the Board specifying the factors
or events constituting such failure or refusal, and (b) a reasonable opportunity
for Executive to correct such deficiencies;
6.1.9.4 Executive's use of drugs and/or alcohol in
violation of then current Company policy; or
6.1.9.5 Executive's breach of his obligation under
Section 1.2.3 hereof which shall not be cured within fifteen (15) days after
written notice thereof to Executive.
6.1.10 "Change In Control" shall mean and shall be deemed to
have occurred if:
6.1.10.1 After the date of this Agreement, any
"person" (as such term is used in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any successor
provision thereto) shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act or any successor provision thereof) directly or
indirectly of securities of the Company representing fifteen percent (15%) or
more of the combined voting power of the Company's then outstanding securities
ordinarily having the right to vote at an election of directors; PROVIDED,
HOWEVER, that, for purposes of this Subparagraph, "person" shall exclude the
Company, its subsidiaries, any person acquiring such securities directly from
the Company, any employee benefit plan sponsored by the Company or from
Executive or any stockholder owning fifteen percent (15%) or more of the
combined voting power of the Company's outstanding securities as of the date of
this Agreement; or
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6.1.10.2 Any stockholder of the Company owning
fifteen percent or more of the combined voting power of the Company's
outstanding securities as of the date of this Agreement shall become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act)
directly or indirectly of securities of the Company (other than through the
acquisition of securities directly from the Company or from Executive)
representing thirty-three and one-third percent (33 1/3%) or more of the
combined voting power of the Company's then outstanding securities ordinarily
having the right to vote at an election of directors; or
6.1.10.3 Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least eighty percent (80%) of the Board; provided, however, that any person
becoming a member of the Board subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least eighty percent (80%) of the members then comprising the Incumbent Board
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act or any
successor provision thereto) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board; or
6.1.10.4 Approval by the stockholders of the Company
and consummation of (a) a reorganization, merger, consolidation, or sale or
other disposition of all or substantially all of the assets of the Company, in
each case, with or to a corporation or other person or entity of which persons
who were the stockholders of the Company immediately prior to such transaction
do not, immediately thereafter, own more than sixty percent (60%) of the
combined voting power of the outstanding voting securities entitled to vote
generally in the election of directors of the reorganized, merged, consolidated
or purchasing corporation (or, in the case of a noncorporate person or entity)
were not members of the Incumbent Board at the time of the execution of the
initial agreement providing for such reorganization, merger, consolidation or
sale, or (b) a liquidation or dissolution of the Company.
6.1.11 "Change In Control Resignation" - as defined in Section
3.2.2;
6.1.12 "Continued Benefits" - as defined in Section 4.3.7;
6.1.13 "Expiration" shall mean the expiration of Executive's
employment hereunder in accordance with Section 1.3;
6.1.14 "Good Reason" shall mean the occurrence of any of the
following:
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6.1.14.1 The Company's failure to elect or reelect or
to appoint or reappoint Executive to offices, titles or positions carrying
comparable authority, responsibilities, dignity and importance to that of
Executive's offices and positions as of January 10, 2000;
6.1.14.2 Material change by the Company in
Executive's function, duties or responsibilities (including reporting
responsibilities) which would cause Executive's position with the Company to
become of less dignity, responsibility and importance than those associated with
his functions, duties or responsibilities as of January 10, 2000; or
6.1.14.3 Other material breach of this Agreement by
the Company, which breach is not cured within fifteen (15) days after written
notice thereof is, received by the Company.
6.1.15 "Non-Competition Period" - as defined in Section 5.1.4;
6.1.16 "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision of this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provisions
so indicated. Each Notice of Termination shall be delivered at least sixty (60)
days prior to the effective date of termination;
6.1.17 "Proprietary Information" - as defined in Section
5.1.3;
6.1.18 "Retirement" shall mean normal retirement at age as
determined by the Board;
6.1.19 "Senior Executives" shall mean the chief executive
officer and the four (4) most highly compensated executive officers of the
Company determined in accordance with the rules and regulations of the
Securities and Exchange Commission under the Exchange Act;
6.1.20 "Termination" shall mean the termination of Executive's
employment hereunder other than upon expiration of the term of such employment
in accordance with Section 1.3;
15
6.1.21 "Total Disability" shall mean Executive's failure
substantially to perform his duties hereunder on a full-time basis for a period
exceeding one hundred eighty (180) consecutive days or for periods aggregating
more than 180 days during any twelve-month period as a result of incapacity due
to physical or mental illness. If there is a dispute as to whether Executive is
or was physically or mentally unable to perform his duties under this Agreement,
such dispute shall be submitted for resolution to a licensed physician agreed
upon by the Board and Executive, or if an agreement cannot be promptly reached,
the Board and Executive each shall promptly select a physician, and if these
physicians cannot agree, the physicians shall promptly select a third physician
whose decision shall be binding on all parties. If such a dispute arises,
Executive shall submit to such examinations and shall provide such information
as such physician(s) may request, and the determination of the physician(s) as
to Executive's physical or mental condition shall be binding and conclusive.
Notwithstanding the foregoing, if Executive participates in any group disability
plan provided by the Company which offers long-term disability benefits, "Total
Disability" shall mean total disability as defined therein.
6.2 KEY MAN INSURANCE. The Company shall have the right, in its sole
discretion, to purchase "key man" insurance on the life of Executive. The
Company shall be the owner and beneficiary of any such policy. If the Company
elects to purchase a policy, Executive shall take such physical examinations and
supply such information as may be reasonably requested by the insurer.
6.3 MITIGATION OF DAMAGES; NO SET-OFF; DISPUTE RESOLUTION.
6.3.1 Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Agreement be
reduced by any compensation earned by Executive as the result of employment by
another employer after the date of termination of his employment hereunder or
otherwise. The Company's obligation to make the payments provided for in this
Agreement shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim or action which the Company may have against Executive.
6.3.2 If there shall be any dispute between the Company and
Executive (i) in the event of any termination of Executive's employment by the
Company, whether such termination was for Cause, or (ii) in the event of any
termination of employment by Executive, whether Good Reason existed, or (iii)
otherwise, the dispute shall be resolved in accordance with the dispute
resolution procedures set forth in Exhibit "A" hereto, the provisions of which
are incorporated as a part hereof, and the parties hereto hereby agree that such
dispute resolution procedures shall be the exclusive method for resolution of
disputes under this Agreement. In the event of a dispute hereunder as to whether
a termination by the Company was for Cause or by the Executive for Good Reason,
until there is a resolution and award as provided in Exhibit "A," the Company
shall pay all amounts, and provide all benefits, to Executive and/or Executive's
family or other beneficiaries, as the case may be, that the Company would be
required to pay or provide hereunder as though such termination were by the
Company without Cause or by Executive for Good Reason and shall pay the
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reasonable legal fees and expenses of counsel for Executive in connection with
such dispute resolution; provided, however, that the Company shall not be
required to pay any disputed amounts or any legal fees and expenses pursuant to
this Subparagraph (b) except upon receipt of a written undertaking by or on
behalf of Executive (and/or Executive's family or other beneficiaries, as the
case may be) to repay, without interest or penalty, as soon as practicable after
completion of the dispute resolution (A) all such amounts to which Executive (or
Executive's family or other beneficiaries, as the case may be) is ultimately
adjudged to not be entitled with respect to the payment of such disputed
amount(s) and (B) in addition, in the case of legal fees and expenses, a
proportionate amount of legal fees and expenses attributable to any of
Executive's claim(s) or any of Executive's defenses or counter-claim(s), if any,
which shall have been found by the dispute resolver to have been frivolous or
without merit.
6.4 SUCCESSORS; BINDING AGREEMENT. This Agreement shall be
binding upon any successor to the Company and shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives, beneficiaries,
designees, executors, administrators, heirs, distributees, devisees and
legatees.
6.5 MODIFICATION; NO WAIVER. This Agreement may not be
modified or amended except by an instrument in writing signed by the parties
hereto. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument by the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any other term or condition.
6.6 SEVERABILITY. The covenants and agreements contained
herein are separate and severable and the invalidity or unenforceability of any
one or more of such covenants or agreements, if not material to the employment
arrangement that is the basis for this Agreement, shall not affect the validity
or enforceability of any other covenant or agreement contained herein. If, in
any judicial proceeding, a court shall refuse to enforce one or more of the
covenants or agreements contained herein because the duration thereof is too
long, or the scope thereof is too broad, it is deemed reduced to the extent
necessary to permit the enforcement of such covenants or agreements.
6.7 NOTICES. All the notices and other communications required
or permitted hereunder shall be in writing and shall be delivered personally or
sent by registered or certified mail, return receipt requested, to the parties
hereto at the following addresses:
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If to the Company, to it at:
Xxxxxx Equities, Inc. dba Aethlon Medical
0000 Xxx Xxxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
If Executive, to him at:
Xx. Xxxxxxx X. Xxxxxx
0000 Xxx Xxxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
6.8 ASSIGNMENT. This Agreement and any rights hereunder shall not be
assignable by either party without the prior written consent of the other party
except as otherwise specifically provided for herein.
6.9 ENTIRE UNDERSTANDING. This Agreement (together with the Exhibit
incorporated as a part hereof) constitutes the entire understanding between the
parties hereto and no agreement, representation, warranty or covenant has been
made by either party except as expressly set forth herein.
6.10 EXECUTIVE'S REPRESENTATIONS. Executive represents and warrants
that neither the execution and delivery of this Agreement nor the performance of
his duties hereunder violates the provisions of any other agreement to which he
is a party or by which he is bound.
6.11 LIABILITY OF COMPANY WITH RESPECT TO INSURANCE POLICY. Executive
has selected the insurer and policy referred to in Section 2.4(a) hereof, and
the Company shall not have any liability to Executive (or his beneficiaries)
should the insurance company which issues the policy referred to therein fail or
refuse to pay (whether voluntarily or by reason of any order, injunction or
otherwise) thereunder or if any rights or elections otherwise available to
Executive thereunder are restricted or eliminated.
6.12 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed for all purposes by the laws of the State of California
applicable to contracts executed and wholly performed within such state.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
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COMPANY
XXXXXX EQUITIES, INC., a Nevada
corporation dba Aethlon Medical
By: /s/ Xxxxxxxx X. Xxxxx, Xx.
----------------------------
Xxxxxxxx X. Xxxxx, Xx.
Its President and C.E.O.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
XXXXXXX X. XXXXXX
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EXHIBIT "A"
DISPUTE RESOLUTION PROCEDURES
-----------------------------
A. If a controversy should arise which is covered by Section 6.3 of
Article VI, then not later than twelve (12) months from the date of the event
which is the subject of dispute either party may serve on the other a written
notice specifying the existence of such controversy and setting forth in
reasonably specific detail the grounds thereof ("Notice of Controversy");
PROVIDED that, in any event, the other party shall have at least thirty (30)
days from and after the date of the Notice of Controversy to serve a written
notice of any counterclaim ("Notice of Counterclaim"). The Notice of
Counterclaim shall specify the claim or claims in reasonably specific detail. If
the Notice of Controversy or the Notice of Counterclaim, as the case may be, is
not served within the applicable period, the claim set forth therein will be
deemed to have been waived, abandoned and rendered unenforceable.
B. Following receipt of the Notice of Controversy (or the Notice of
Counterclaim, as the case may be), there shall be a three (3) week period during
which the parties will make a good faith effort to resolve the dispute through
negotiation ("Period of Negotiation"). Neither party shall take any action
during the Period of Negotiation to initiate arbitration proceedings.
C. If the parties should agree during the Period of Negotiation to
mediate the dispute, then the Period of Negotiation shall be extended by an
amount of time to be agreed upon by the parties to permit such mediation. In no
event, however, may the Period of Negotiation be extended by more than five (5)
weeks or, stated differently, in no event may the Period of Negotiation be
extended to encompass more than a total of eight (8) weeks.
D. If the parties agree to mediate the dispute but are thereafter
unable to agree within one (1) week on the format and procedures for the
mediation, then the effort to mediate shall cease, and the Period of Negotiation
shall terminate four (4) weeks from the Notice of Controversy (or the Notice of
Counterclaim, as the case may be).
E. Following the termination of the Period of Negotiation, the dispute
(including the main claim and counterclaim, if any) shall be settled by
arbitration, and judgment upon the award may be entered in any court having
jurisdiction thereof. The format and procedures of the arbitration are set forth
below (referred to below as the "Arbitration Agreement").
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F. A notice of intention to arbitrate ("Notice of Arbitration") shall
be served within forty-five (45) days of the termination of the Period of
Negotiation. If the Notice of Arbitration is not served within this period, the
claim set forth in the Notice of Controversy (or the Notice of Counterclaim, as
the case may be) will be deemed to have been waived, abandoned and rendered
unenforceable.
G. The arbitration, including the Notice of Arbitration, will be
governed by the Commercial Rules of the American Arbitration Association except
that the terms of this Arbitration Agreement shall control in the event of any
difference or conflict between such Rules and the terms of this Arbitration
Agreement. The arbitration shall be scheduled to take place in San Diego,
California.
H. The dispute resolver shall reach a decision on the merits on the
basis of applicable legal principles as embodied in the law of the State of
California.
I. There shall be one dispute resolver, regardless of the amount in
controversy. The dispute resolver will be empowered to render an award and
interim decisions and shall be a member of the bar of any of the fifty States of
the United States or of the District of Columbia. The dispute resolver shall be
promptly appointed pursuant to Rule 13 of the Commercial Rules of the American
Arbitration Association ("AAA"). If the dispute resolver has not been appointed
within forty-five (45) days of the AAA's initial transmission of lists of
potential arbitrators, then the AAA shall unilaterally designate the dispute
resolver.
J. At the time of appointment and as a condition thereto, the dispute
resolver will be apprised of the time limitations and other provisions of this
Arbitration Agreement and shall indicate such dispute resolver's agreement to
the Tribunal Administrator to comply with such provisions and time limitations.
K. During the 30-day period following appointment of the dispute
resolver, either party may serve on the other a request for limited numbers of
documents directly related to the dispute. Such documents will be produced
within seven (7) days of the request.
L. Following the 30-day period of document production, there will be a
forty-five (45) day period during which limited depositions will be permissible.
Neither party will take more than five (5) depositions, and no deposition will
exceed three (3) hours of direct testimony.
M. Disputes as to discovery or prehearing matters of a procedural
nature shall be promptly submitted to the dispute resolver pursuant to telephone
conference call or otherwise. The dispute resolver shall make every effort to
render a ruling on such interim matters at the time of the hearing (or
conference call) or within five (5) business days thereafter.
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N. Following the promptly commence. The dispute hearing within thirty
(30) days of the will make every effort to conduct the period of depositions,
the arbitration hearing shall resolver will make every effort to commence the
conclusion of the deposition period and, in addition, hearing on consecutive
business days to conclusion.
O. An award will be rendered, at the latest, within nine (9) months of
the date of the Notice of Arbitration and within thirty (30) days of the close
of the arbitration hearing. The award shall set forth the grounds for the
decision in reasonably specific detail and shall also specify whether any claim
(or defense or counterclaim) of Executive is found to be frivolous or without
merit and what proportion, if any, of his legal fees and expenses which have
been paid by the Company Executive shall be required to repay to the Company in
accordance with Section 6.3.2. The award shall be final and nonappealable.
P. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THEY ARE WAIVING THEIR
RIGHTS TO A TRIAL IN A STATE OR FEDERAL COURT AND ARE ALSO WAIVING THEIR RIGHT
TO A JURY TRIAL.
COMPANY EXECUTIVE
XXXXXX EQUITIES, INC.,
a Nevada corporation dba
Aethlon Medical
By: /s/ Xxxxxxxx X. Xxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx
---------------------------- ------------------------------
Xxxxxxxx X. Xxxxx, Xx. XXXXXXX X. XXXXXX
Its: President and C.E.O.
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