EXHIBIT 10.4
BIOSHIELD TECHNOLOGIES, INC
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 11th day of March, 1997, between BioShield
Technologies, Inc., a Georgia corporation, having an address of 0000 X. Xxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, its successors and assigns, ("BIOSHIELD"
or "COMPANY") and XXXXXXX X. XXXX ("EMPLOYEE") having an address of 0000
Xxxxxxxxx Xxxxx, X.X., Xxxxxxx, XX 00000.
WITNESSETH
WHEREAS, BioShield is engaged in the business of the development, manufacture,
marketing, distribution and sale of antimicrobial and biostatic products; and
WHEREAS, BioShield is desirous of obtaining the services of Employee in the
capacity of Industrial and Institutional Business Unit Manager; and Secondary
Retail Manager (i.e., Sam's, Costco, Home Depot and Lowes).
WHEREAS, Employee is desirous of entering into employment as a Business Unit
Manager of BioShield for compensation on a base salary and commission overrides
as per Addendum I;
NOW THEREFORE, for the mutual covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is mutually agreed as follows:
ARTICLE 1 - GENERAL PROVISIONS
A. GENERAL COVENANTS AND REPRESENTATIONS - BIOSHIELD
1. The attached letter of offer and these terms and conditions become an
agreement only when accepted and signed by both parties.
2. BioShield agrees to compensate Employee for a base salary of $65,000.00
per annum. The incentive based portion of compensation shall be computed and
payable pursuant to the provisions of Addendum 1, or as subsequently revised.
Employee will receive his/her compensation in accordance with the Company's
regular practices.
3. BioShield shall provide to Employee any medical or dental insurance
otherwise available to the employees of BioShield in general, on the same terms
and conditions as such insurance is provided, if at all, to other employees of
BioShield. Employee acknowledges that all benefits are subject to change.
(Current insurance provided by BioShield after 90 days service is 50% of the
employee cost.)
4. Employee shall be entitled to vacations and holidays as generally
available to the employees of BioShield.
B. GENERAL COVENANTS AND REPRESENTATIONS - EMPLOYEE
1. During the Term of this Agreement, Employee shall use his/her best efforts
to perform as a Business Unit Manager for BioShield including all duties
required in furtherance of his/her position or as are assigned to him from
time to time by an officer of BioShield and as outlined in Addendum I.
Employee shall make his/her best efforts to meet the goals identified in
Addendum Number 1 attached hereto or as subsequently modified.
2. Employee shall diligently and faithfully devote his/her entire time,
energy, skill, and best efforts during usual business hours to promote
BioShield's business and affairs and perform his/her duties under this
Agreement. Employee shall at all times act so as to advance the best interests
of BioShield, and shall not undertake or engage in any other business activity
or continue or assume any other business affiliations which conflict or
interfere with the performance of his/her services hereunder without the prior
written consent of BioShield.
3. During the Term of this Agreement, Employee shall be governed by and be
subject to all of BioShield's rules and regulations whether written or oral,
which are applicable to BioShield employees in general, and agrees to render
his/her duties at such place and at such times as BioShield shall in good faith
require.
4. Employee agrees to domestic and foreign travel as required in pursuit of
the Employee's responsibilities. Employee acknowledges that in performance of
his/her duties he will be required to work with existing clients, contact
potential clients, and present workshops or informational exchanges. Employee
further acknowledges that he may be required to travel to and possibly spend
significant periods of time at clients' facilities.
5. It is expressly agreed that Employee in performing services pursuant to
this Agreement is not one of BioShield's officers and has no authority to commit
or to bind BioShield under any contract, obligation or liability, or to obligate
BioShield for any expenses, including without limitation, expenses for materials
and services.
6. Employee acknowledges and understands that BioShield shall withhold
federal and state income taxes and FICA from Employee's salary hereunder, and
BioShield shall issue to Employee a federal and state Form W-2 with respect to
such fees and withholdings at the end of each calendar year during which
Employee is employed.
7. Employee agrees not to discuss his/her fees for service, or the fee
BioShield charges its clients, with any persons other than designated BioShield
management personnel.
ARTICLE II - PROPRIETARY INFORMATION AND RESTRICTIVE COVENANTS
NECESSITY OF RESTRICTIVE COVENANTS. Employee agrees that while working under
this Agreement, he will learn and come in contact with certain Trade Secrets and
other Proprietary Information and will develop certain relationships with
BioShield's clients and employees which BioShield has expended significant time
and funds to create, perfect, maintain and protect. Employee acknowledges that
his/her agreement not to solicit BioShield's clients or employees is necessary
to protect BioShield's investment in its Trade Secrets, Proprietary Information,
client base and goodwill.
A. NONDISCLOSURE OF PROPRIETARY INFORMATION AND TRADE SECRETS
1. All information relating to BioShield's business shall be safeguarded and
treated as confidential by Employee, in compliance with paragraphs 2-4
hereunder. To the extent, however, that such information is publicly available
or has here to fore been made public by BioShield, Employee shall bear no
responsibility for its disclosure, inadvertent or otherwise.
2. TRADE SECRETS AND PROPRIETARY INFORMATION. "Trade Secrets" means
information related to BioShield or its affiliates (1) which derives economic
value, actual or potential, from not being generally known to or readily
ascertainable by other persons who can obtain economic value from its disclosure
or use; and (2) which is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy. Assuming the foregoing criteria are met, Trade Secrets include, but
are not limited to, technical and non-technical data related to computer
programming methods and procedure, application development and, in-house
developed protocols, company rules and regulations, the formulas, patterns,
designs, compilations, programs, methods, techniques, drawings, processes,
finances, lists of actual or potential customers and suppliers, and existing
and future products of BioShield or its affiliates. Proprietary Information
includes the foregoing, as well as methods of doing business, sales, service,
or distribution techniques, selling prices, and the names and addresses of
present or prospective customers. Proprietary Information also includes
information which has been disclosed to BioShield or its affiliates by a
client or other third party and which BioShield or its affiliates are
obligated to treat as confidential.
3. All Trade Secrets and Proprietary Information and all physical embodiments
thereof received or developed by the Employee while employed by BioShield are
confidential to and will remain the sole and exclusive property of BioShield.
Except to the extent necessary to perform the duties assigned to him by
BioShield, Employee will hold such Trade Secrets or Proprietary Information in
trust and strictest confidence. Employee may in no event take any action
causing or fail to take the action necessary in order to prevent any Trade
Secrets or Proprietary Information disclosed to or developed by Employee to lose
its character or cease to qualify as a Trade Secret or Proprietary Information.
Employee will not, either during or for two (2) years subsequent to Employee's
employment with BioShield, use, reproduce, distribute, disclose or otherwise
disseminate the any Proprietary Information or any physical embodiments thereof
4. Upon request by BioShield, and in any event upon termination of the
employment of Employee with BioShield for any reason, Employee will promptly
deliver to BioShield all property belonging to BioShield, including, without
limitation, all Trade Secrets or Proprietary Information (and all physical
embodiments thereof) then in his/her custody, control or possession.
B. RESTRICTIVE COVENANTS
1. NON-DISPARAGEMENT. Employee recognizes and acknowledges that the success
of BioShield's business is largely dependent upon and attributable to the
goodwill which BioShield has, at great expense, established over a period of
years. Therefore, Employee will not, during the term of his/her employment, and
for one (1) year thereafter, disparage BioShield, its officers, employees,
products, or methods and techniques of doing business. Employee hereby agrees
to indemnify and hold BioShield harmless from and against any and all losses,
claims, damages, or expenses, including attorneys' fees, arising from or growing
out of disparagement in violation of this paragraph.
2. NON-SOLICITATION AGREEMENT.
(A) NON-SOLICITATION OF CUSTOMERS. Employee agrees that while working
pursuant to this Agreement and for a period of one (1) year following the
termination or expiration of this Agreement ("Non-solicitation Period"),
Employee will not, for any reason, directly or indirectly, for himself/herself
or on behalf of any person, partnership, corporation or other entity, either
as an employee, officer, director, partner, shareholder, agent, consultant, or
independent contractor:
(i) engage in any business activity as a Salesman for or provide any
consulting service to any person or entity who was a client or
actively sought prospective client of BioShield during the term of
this Agreement; and
(ii) for whom Employee provided services pursuant to this Agreement or with
whom Employee had regular, meaningful contact.
Employee further agrees that with respect to such clients identified herein he
will not request or advise any such customers of BioShield to withdraw from or
cancel any of their business with BioShield.
(B) NON-SOLICITATION OF EMPLOYEES. Employee agrees that during the Non-
solicitation Period he will not, directly or indirectly, for himself/herself
or on behalf of any other person, partnership, corporation, or other entity:
hire, solicit, interfere with or endeavor to entice away from BioShield any
employee of BioShield.
3. NON-COMPETITION AGREEMENT. Employee agrees that while working pursuant to
this Agreement and for a period of one (1) year following the termination or
expiration of this Agreement ("Non-competition Period"), Employee will not, for
any reason, directly or indirectly, for himself/herself or on behalf of any
person , partnership, corporation or other entity, engage in any business
activity as a Salesman for or provide consulting services to any person,
corporation, partnership or other entity, directly or indirectly, which is in
competition with BioShield in the specific geographic territory in which
Employee actually performed services for BioShield during the term of this
Agreement. At the time of the execution of this Agreement, such specific
geographic territory included: The World. The parties acknowledge that such
geographic location is subject to change and will include all territory in which
Employee actually performed services for BioShield. For the purposes of this
paragraph "competition" shall mean providing antimicrobial products to
businesses, governmental agencies, academic institutions and health care
facilities.
4. TOLLING OF NON-DISPARAGEMENT, NON-COMPETITION AND NON-SOLICITATION PERIOD.
If BioShield or its successors in interest shall make application to a court of
competent jurisdiction for injunctive relief, then the one year periods
specified herein shall be tolled from the time of application for injunctive
relief until the date of final injunctive relief, including all periods of
appeal.
5. IRREPARABLE INJURY / INJUNCTIVE RELIEF. Employee acknowledges that a
breach of any of the restrictive covenants provided in Article II of this
Agreement will harm BioShield's client base and goodwill and will inhibit the
operation of its business thereby, giving rise to irreparable injury to
BioShield which is not adequately compensable in damages or at law.
Accordingly, Employee agrees that BioShield, its successor and assigns may
obtain injunctive relief against the breach or threatened breach of the
foregoing provisions, in addition to any other legal remedies which may be
available to it under this Agreement. Employee further acknowledges that in the
event of termination or expiration of this Agreement, his/her knowledge,
experience and capabilities are such that he can obtain contracts and work in
business activities which are of a different or non-competing nature than those
performed in the course of this Agreement and that the enforcement of a remedy
hereunder by way of injunction will not prevent Employee from earning a
reasonable livelihood.
6. ACCOUNTING FOR PROFITS. Employee covenants and agrees that if he violates
the provisions of Article II of this Agreement, BioShield shall be entitled to
an accounting and repayment of all profits, compensation, commissions,
remuneration or other benefits that he has realized and/or may realize as a
result of or in connection with any such violation. These remedies shall be in
addition and not in limitation of any other rights or remedies to which
BioShield is or may be entitled at law, in equity or under this Agreement.
7. SEVERABILITY AND SCOPE OF RESTRICTIVE COVENANTS. If in any judicial
proceeding, a court shall refuse to enforce any of the Restrictive Covenants
provided in Article II of this Agreement, whether because the time limit is too
long or because the restrictions contained herein are more extensive (whether as
to geographic area, scope of business or otherwise) than is necessary to protect
the business and goodwill of BioShield, it is expressly understood and agreed
between the parties hereto that this Agreement is deemed modified to the extent
necessary to permit this Agreement to be enforced in any such proceedings, as
long as such modifications shall not be unreasonable, arbitrary or against
public policy. Alternatively, if any provision of this Agreement is found to be
unenforceable as written, or so modified, then, and in that event, such
provision shall be automatically deleted from this Agreement, and the balance of
this Agreement shall remain in full force and effect.
8. COSTS OF ENFORCEMENT. In the event either party initiates action to
enforce his/her or its rights hereunder, the substantially prevailing party
shall recover from the substantially non-prevailing party its reasonable
expenses, court costs and reasonable attorneys' fees, whether suit be brought or
not. As used herein, expenses, court costs and attorneys' fees include
expenses, court costs and attorneys' fees incurred in any appellate proceeding.
All such expenses shall bear interest at the rate of Twelve Percent (12%) per
annum from the date the prevailing party pays such expenses until the date the
non-prevailing party repays such expenses. Expenses incurred in enforcing this
paragraph
shall be covered by this paragraph.
ARTICLE III - DURATION AND TERMINATION
1. The term of this Agreement is one (1) year from the date of its execution,
and within the first year, is only terminable for "cause" as outlined below.
Termination after the first full year shall be at BioShield's sole discretion.
This Agreement shall automatically renew at the end of each one (1) year period
until it is terminated by one or both of the parties hereto.
1. Either party may terminate this Agreement for "cause" within the first
year of service by giving two weeks notice in writing. Termination is
effective two weeks from receipt of such notice by either party. In the
event of termination by either party, BioShield, at its sole option, may
require the Employee to use any accrued vacation as a portion of the two
week notice period.
Cause is defined as: 1) Dereliction of duty, fraud, embezzlement,
wanton misconduct, malice and any violation of article II.
ARTICLE IV - MISCELLANEOUS
1. COPYRIGHTS AND PATENTS. Employee agrees that all property rights,
including but not limited to trademarks, copyrights and patents, in respect of
every invention, product, method, system, program or any intellectual property
or trade secret created by him during the course of or related to his/her
employment shall belong to BioShield and all such rights are hereby assigned to
BioShield which shall be exclusively entitled to the property therein.
2. This Agreement shall be governed by the laws of the State of Georgia.
3. This Agreement sets forth the entire agreement between the parties and
supersedes all contracts, proposals, oral or written, and all other
communications between the parties with respect to the subject matter hereof.
4. This Agreement can only be modified, amended or supplemented by the
express written agreement of both parties.
5. The obligations of Employee which arise under this Agreement shall survive
the termination of this Agreement, regardless of the manner, fashion or
circumstance surrounding the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Employee: BIOSHIELD TECHNOLOGIES, INC.,
a Georgia corporation
Signed: ___________________________ Signed: _______________________________
Xxxxxxx X. Xxxxx
Printed Name: _______________________________________ Title: President
Address: ___________________________ Date: _________________________________
___________________________
Telephone: ________________________________________
Soc. Sec. #: _______________________ AGREEMENT NO.: _________________________
