EMPLOYMENT AGREEMENT
AGREEMENT made as of January
1, 2008, by and between ImmunoBiotics, Inc., a Florida corporation
having its principal office at 0000 Xxxxx Xxxxxxx, Xxxxx X, Xxx Xxxxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as the "Company"), and Xxxxxx Xxxxx,
currently residing at 0 Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ
Executive, and Executive desires to be employed by the Company, pursuant to the
terms and conditions hereof;
NOW THEREFORE, in consideration of the
premises and of the mutual promises herein contained, the parties hereto agree
as follows:
1. EMPLOYMENT. The
Company hereby employs Executive and Executive hereby agrees to be employed by
the Company, subject to the terms and conditions hereinafter set
forth.
2. TERM. The
initial term of this Agreement shall begin on the date hereof (the "Employment
Date") and shall continue until December 31, 2009, subject to prior termination
in accordance with the terms hereof. Unless a new employment agreement is
entered into by the parties, this Agreement shall automatically be renewed for
successive one year periods unless either party notifies the other in writing
within 90 days prior to the expiration of this Agreement that the Agreement will
terminate upon its expiration.
3. DUTIES. Executive
shall serve as the President and Chief Executive Officer of the Company, with
duties and responsibilities commensurate with that position, which shall
include, but not be limited to, managing the day-to-day business of the Company,
hiring the day-to-day management staff, the Company’s relationship with its
licensees, negotiations regarding new potential significant business
relationships and any financings, sale, partnership or strategic mergers
involving the Company. In the performance of his duties, Executive shall comply
with the policies of and be subject to the reasonable direction of the Board of
Directors of the Company. Executive's principal place of employment shall be in
San Clemente, California and notwithstanding that Executive shall be required to
travel in the course of performing his duties, he shall not be required to move
his permanent residence outside Laguna Niguel, California.
The Executive agrees to devote the time
he deems necessary to the performance of the business of the Company and of any
of its subsidiaries by which he may be employed. It shall not be a violation of
this Agreement for Executive to (a) serve on corporate, civic, charitable and
professional boards and committees, (b) manage personal investments or (c)
provide consulting services to third parties so long as they do not materially
interfere with the performance of Executive’s duties hereunder (d) devote time
and attention to the business of SYNORx, Inc. or Vapor Extraction Technology,
Inc.
4. COMPENSATION. As
compensation for the services to be rendered by Executive hereunder, the Company
agrees to pay or cause to be paid to Executive, and Executive agrees to accept,
an annual salary of $75,000, payable in bi-weekly installments. The
Executive shall receive annual increases in salary which shall be at least five
percent (5%) per year for each subsequent year during this Employment
Agreement. In addition, the Executive shall receive an
annual bonus based upon a percentage of the Net Income (as hereinafter defined)
of the Company equal to fifteen percent (15%) of each dollar of Net
Income. For purposes hereof, Net Income shall be determined by the
certified public accounting firm regularly retained by the Company in accordance
with generally accepted accounting principles and shall be calculated as income
from operations for the applicable period before the payment of any taxes or any
noncash items such as depreciation or amortization. In addition, in the event of
a change of control, as such term is defined in section 9 hereof, then Executive
shall receive in addition to all other benefits hereunder, a bonus in the amount
of one year of base salary to be immediately paid upon the end of the employment
period.
5. ADDITIONAL
COMPENSATION. The Company may also pay Executive such other
additional compensation as may from time to time be determined by the
Company. In this regard, Executive shall receive annual performance
reviews in accordance with the Company's customary policies and
practices.
6. EMPLOYEE BENEFITS.
During the period Executive is employed hereunder, Executive shall be permitted
to participate in all group health, life, hospitalization and disability
insurance programs, pension plans, stock option plans and similar benefits that
are now or may become available to the other senior executives of the
Company. During the period Executive is employed hereunder, Executive
shall be entitled to 4 weeks paid vacation per year and 10 paid sick leave days.
In the event the Executive does not use the days allotted above, the Executive
shall be paid for those days as additional compensation at the end of each
year. The Company
shall obtain and maintain during Executive’s employment, at its expense, “key
man” life insurance on the life of Executive in an amount of $2,000,000.
Executive shall be entitled to designate the beneficiary of $1,000,000 of such
insurance.
7. REIMBURSEMENT OF
EXPENSES. During the period Executive is employed hereunder,
the Company shall reimburse Executive for reasonable and necessary out-of-pocket
expenses advanced or expended by Executive or incurred by him for or on behalf
of the Company in connection with his duties hereunder in accordance with its
customary policies and practices.
8. CAR
ALLOWANCE. During
the period Executive is employed hereunder, Executive shall be entitled to a car
allowance of $300 per month plus monthly parking expenses.
9. TERMINATION OF EMPLOYMENT;
EFFECT OF TERMINATION.
(a) The
Executive's employment hereunder may be terminated at any time upon written
notice by the Company, upon the occurrence of any of the following events during
the term of this agreement:
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(i) the death
of Executive;
(ii) the
disability of Executive (as defined in paragraph (b); For
purposes hereof, the term "disability" shall mean the inability of Executive,
due to illness, accident or any other physical or mental incapacity, to perform
his duties in a normal manner for a period of six (6) months (whether
or not consecutive) in any twelve (12) month period during the term of this
Agreement. or
(iii) the
determination that there is cause (as hereinafter defined) for such termination.
For purposes hereof, "cause" shall mean and be limited to, if one of the
following events should occur during the employment term:
(A) Executive
is convicted in a court of law of a (i) felony or (ii) any crime or offense
involving material misuse or misappropriation of money or other property of
Company; or
(B) Executive
breaches a material provision of this Agreement and such breach continues for a
period of thirty (30) days after written notice of such breach is given to
Executive by Company.
(b) Executive
may resign from his employment without good reason by notice to the Company at
least sixty (60) days prior to the date of termination.
(c) Executive
shall have the right to terminate Executive's employment hereunder at any time
for good reason. For purposes hereof, “good reason” shall mean, a
reasonable determination by Executive that any of the following has
occurred:
(i) A
material breach by the Company of the terms of this Agreement, which breach is
not cured promptly after notice thereof from Executive; or
(ii) A change
in control which shall mean (a) any person becomes the beneficial owner (as term
is defined in the Securities Exchange Act of 1934) directly or indirectly, of
securities representing more than fifty percent (50%) of the total voting power
of Company’s shares; or (b) a change in the composition of the Board of
Directors as a result of which fewer than a majority of the directors are
Incumbent Directors. Incumbent Directors shall mean directors who are
either directors of the Company on the date hereof or are elected by the Board
of Directors with the affirmative vote of a majority of the Incumbent Directors
at the time of election or (c) the Company merges with another corporation after
which a majority of the shares of the resulting entity are not held by
shareholders of the Company prior to the merger.
(iii) An
assignment to Executive of any duties inconsistent with Executive’s position
(including status, office, title, and reporting requirements) authority, duties
or responsibilities as contemplated by Section 3 hereof which results in
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated and insubstantial action not taken in bad faith
which is remedied by the Company after receipt of notice thereof given by
Executive.
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(d) In the
event that Executive's employment is terminated by Executive for any reason
other than good reason, Executive will be entitled to only his accrued salary
through the date of termination and nothing more.
(e) In
the event that Executive's employment is terminated by Executive for good
reason, the Company shall (i) pay to Executive, within thirty (30) days after
the date of termination, any accrued base salary, bonus, vacation pay, expense
reimbursement and any other entitlements under this Agreement to the extent not
previously paid for an additional one year period and (ii) continue to provide
benefits to Executive at least equal to those which would have been provided to
him in accordance with the plans, programs, practices and policies which are
applicable to other senior executives.
(f) If
Executive’s employment is terminated by reason of Executive’s death, this
Agreement shall terminate without further obligation other than payment of
accrued obligations. If Executive’s employment is terminated by reason of
Executive’s disability, this Agreement shall terminate without further
obligation other than payment of (i) accrued obligations (ii) Welfare Benefit
Continuation and (iii) Executive’s base salary for a period of six months
following termination.
10. REPRESENTATIONS AND
AGREEMENTS OF EXECUTIVE.
The Executive represents and warrants
that he is free to enter into this Agreement and to perform the duties required
hereunder, and that there are no employment contracts, restrictive covenants or
other restrictions preventing the performance of his duties
hereunder.
11. COVENANTS OF THE
COMPANY.
(a) For a
period of two years from the date of this Agreement, the Company shall not take
any of the following actions without the approval of the Executive:
(i) Amend
the Company’s bylaws or Certificate of Incorporation;
(ii)
Change the composition of the Company’s Board of Directors;
(iii)
Issue any additional debt or equity securities of the Company or any of its
subsidiaries;.
In the
event the Company breaches or attempts to breach any of the terms of this
provision 11 or fails to make payments when due under this Agreement, the
Executive is entitled to injunctive relief, without the obligation of posting a
bond, and as part of any judgment, all costs and expenses, including legal fees,
incurred in enforcing the terms of this Agreement or collecting payments due
under this Agreement.
12. NON-COMPETITION.
Executive
agrees that if his employment is terminated for any reason or if he leaves the
employ of the Company for any reason, for a period of one (1) year from the date
of such termination of employment, he will not directly or indirectly, as owner,
partner, joint venture, stockholder, employee, broker, agent, principal,
trustee, corporate officer or director, licensor or in any capacity
whatsoever
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engage
in, become financially interested in, be employed by, render consulting services
to, or have any connection with, any business which is involved in the marketing
or selling of nutraceutical products as it’s core business in competition with
the Company ("Competitive Business"), in any geographic area where, during the
time of his employment, the business of the Company or any of its subsidiaries
is being conducted in any manner whatsoever, or hire or attempt to
hire for any Competitive Business any employee of the Company or any subsidiary
thereof, or solicit, call on or induce others to solicit or call on, directly or
indirectly, any customers of the Company for the purpose of inducing
them to purchase a product or service which may compete with any product or
service of the Company; provided, however, that
Executive may own any securities of any corporation which is engaged in such
business and is publicly owned and traded but in an amount not to exceed at any
one time five percent of any class of stock or securities of such company and
Executive may continue in his role as an officer, director and shareholder of
SYNORx, Inc.
If any
portion of the restrictions set forth in paragraph (a) should, for any reason
whatsoever, be declared invalid by a court of competent jurisdiction, the
validity or enforceability of the remainder of such restrictions shall not
thereby be adversely affected.
Executive
declares that the foregoing territorial and time limitations are reasonable and
properly required for the adequate protection of the business of the
Company. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction, Executive agrees
to the reduction of either said territorial or time limitation to such area or
period which said court shall have deemed reasonable.
The
existence of any claim or cause of action by Executive against the Company or
any subsidiary other than under this Agreement shall not constitute a defense to
the enforcement by the Company or any subsidiary of the foregoing restrictive
covenants, but such claim or cause of action shall be litigated
separately.
13. NON-DISCLOSURE OF
CONFIDENTIAL INFORMATION; INVENTIONS.
(a) Executive
shall not, during the term of this Agreement, and at any time following
termination of this Agreement, directly or indirectly, disclose or permit to be
known, to any person, firm or corporation, any confidential information acquired
by him during the course of or as an incident to his employment hereunder,
relating to the Company or any of its subsidiaries, the directors of the Company
or its subsidiaries, any client of the Company or any of its subsidiaries, or
any corporation, partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing has a
beneficial interest, including, but not limited to, the business affairs of each
of the foregoing. Such confidential information shall include, but
shall not be limited to, proprietary information, trade secrets, know-how,
market studies and forecasts, competitive analyses, the substance of agreements
with clients and others, client lists and any other documents embodying such
confidential information. Confidential information shall not include information
which (i) is or becomes part of the public domain without breach of this
Agreement (ii) was known by Executive on a non-confidential basis prior to
disclosure by the Company (iii) is independently received by Executive without
the use of confidential information or (iv) is explicitly approved for release
by written authorization of the Company. It shall not be a breach of
the terms of this Agreement if Executive discloses confidential information that
it is legally required to disclose provided that Executive promptly notifies the
Company of such requirement and, if requested by the Company, reasonably
cooperates in the Company’s efforts to prevent or limit such
disclosure.
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(b) All
information and documents relating to the Company, its affiliates as hereinabove
described (or other business affairs) shall be the exclusive property of the
Company, and Executive shall use his best efforts to prevent any publication or
disclosure thereof. Upon termination of Executive's employment with
the Company, all documents, records, reports, writings and other similar
documents containing confidential information, including copies thereof, then in
Executive's possession or control shall be returned and left with the Company. A
copy of which may be retained by the Executive.
(c) Any
inventions, discoveries, concepts or ideas, or expressions thereof, whether or
not subject to patents, copyrights, trademarks or service xxxx protections, and
reduced to practice, which are conceived or developed by Executive while
employed with the Company which relate to or result from the actual business,
work, research or investigation of the Company shall be the sole and exclusive
property of the Company. Executive will do all things reasonably
requested by the Company to assign to and vest in the Company the entire right,
title and interest to any such inventions, discoveries, concepts, ideas or
expressions thereof.
13. RIGHTS UPON
BREACH. Executive recognizes that the services to be rendered
by him hereunder are of a special, unique, unusual, extraordinary and
intellectual character involving skill of the highest order and giving them
peculiar value, the loss of which cannot be adequately compensated for in
damages. In the event of a breach of this Agreement by Executive, the
Company shall be entitled to injunctive relief, without the obligation of
posting a bond, or any other legal or equitable
remedies. The remedies provided in this Agreement shall
be deemed cumulative and the exercise of one shall not preclude the exercise of
any other remedy at law or in equity for the same event or any other
event.
14. AMENDMENT OR
ALTERATION. No amendment or alteration of the terms of this
Agreement shall be valid unless made in writing and signed by both of the
parties hereto.
15. GOVERNING
LAW. This Agreement shall be governed in all respects by the
laws of the State of California. Executive and the Company hereby
irrevocably consent to the jurisdiction of any California State or Federal court
over any action or proceeding arising out of any dispute between Executive and
the Company, and Executive further irrevocably consents to the service of
process in any such action or proceeding by the mailing of a copy of such
process to Executive at the address set forth above.
16. SEVERABILITY. The
holding of any provision of this Agreement to be illegal, invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and
effect.
17. NOTICES. Any
notices required or permitted to be given hereunder shall be sufficient if in
writing, and sent by certified mail to the addresses set forth above or such
other address as either party may from time to time designate in writing to the
other, and shall be deemed given as of the date of the delivery or
mailing.
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18. WAIVER OR
BREACH. It is agreed that a waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach by that same party.
19. ENTIRE AGREEMENT AND BINDING
EFFECT. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, heirs, distributees, successors and assigns.
20. ASSIGNMENT. This
Agreement may not be transferred or assigned by either party without the prior
written consent of the other party.
21. SURVIVAL. The
termination of Executive's employment hereunder shall not affect the
enforceability of Sections 11, 12, 13 and14 hereof.
22. FURTHER
ASSURANCES. The parties agree to execute and deliver all such
further instruments and take such other and further action as may be reasonably
necessary or appropriate to carry out the provisions of this
Agreement.
23. HEADINGS. The
Section headings appearing in this Agreement are for purposes of easy reference
and shall not be considered a part of this Agreement or in any way modify, amend
or affect its provisions.
24. COUNTERPARTS. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together,
shall
constitute one instrument.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date and year first above
written.
IMMUNOBIOTICS, INC.
By:
____________________________
Name:
__________________________
Title: __________________________
_________________________
Xxxxxx
Xxxxx
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