Exhibit 10.4
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement"), dated as of the 23rd day of
January 2002, between Hand Brand Distribution, Inc. and its successors, 0000
X.X. 0xx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 (the "Employer") and Xxxx Xxxxxx,
M.D., Ph.D., with address at 0000 Xxxx Xxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Employee").
R E C I T A L S:
A. The Employer and its affiliates desire to employ the
Employee.
B. The Employee desires to be so employed upon the terms
and conditions below set forth.
NOW, THEREFORE, in consideration of the terms and the mutual
undertakings contained herein, it is agreed as follows:
1. Term. Subject to the terms of this Section 1 and Sections 7, 8 and
9, this Agreement shall commence on January 23, 2002 and expire on January 24,
2007 (the date on which this Agreement shall expire, as such date may be
extended in accordance with the terms of this Section 1 is hereinafter referred
to as the "Expiration Date"). Subject to the terms of Sections 7, 8 and 9,
unless either party gives written notice to the other of its desire to terminate
this Agreement at least thirty days prior to the then current Expiration Date or
Extended Period (the "Termination Notification Date"), this Agreement will be
automatically extended for further period(s) of two years from the then current
Expiration Date (the "Extended Period") on the same terms and conditions as
herein set forth. Except when the contrary is indicated, the phrase "the term of
this Agreement" shall henceforth be deemed to include the Extended Period.
2. Employment. The Employer agrees to employ the Employee as the
Company's Chief Executive Officer and Chief Scientific Officer, Hand Brand
Distribution, Inc. and the Employee accepts such employment.
3. Duties.
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(a) The Employee shall render all services of the nature of
the services that a Chief Executive Officer, GeneThera, Inc. and as Chief
Scientific Officer, Hand Brand Distribution, Inc., would render to a company in
the biotechnology area.
(b) During the term of this Agreement, Employee shall devote
his full time, energy, skill and best efforts to promote Employer's business and
affairs and to perform his duties hereunder.
(c) The Employee shall report directly to the Board of
Directors of the Employer.
4. Compensation. The Employer shall pay to the Employee for the loyal
and consistent services provided to it hereunder: (a) a fee at the rate of
$12,000 per month during the term of this Agreement and (b) a one time payment
of $18,000 shall be paid to Employee at signing of this agreement. Annual
compensation shall be determined for appropriate increases at the end of each
year as determined by the Compensation Committee of the Board of Directors of
the Employer. Employee shall also receive at the end of each year during the
term of this Agreement, bonus compensation as determined by the Compensation
Committee of the Board of Directors of the Employer or if at the end of such
year the Employer has received net income in the amount of $2,000,000 or more,
Employee based on his performance as evaluated by the determined by the
Compensation Committee of the Board of Directors of the Employer, shall receive
a bonus payment equal to two (2) times his monthly salary at the end of the year
the payment is made.
5. Insurance and Benefits. During the term of this Agreement, the
Employee shall be entitled to participate in all employee benefit plans and
insurance programs, including company vehicle, which shall be provided from time
to time by the Employer to its employees (collectively, "Employee Benefit
Plans") in accordance with their terms and conditions. It is expressly
understood that Employee shall pay his withholding and other taxes applicable to
his income.
6. Termination.
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This Agreement may be terminated by the Employer for Cause immediately
upon written notice to the Employee. The term "Cause", as used herein, shall
mean the loss of any license necessary for the Employee to perform his duties
hereunder, or any willful misconduct, malfeasance, gross negligence or other
like conduct adversely affecting the best interests of the Employer, including,
without limitation, (i) the failure or neglect by the Employee to perform his
duties hereunder, (ii) the violation or attempted violation of any provision
hereof, (iii) the commission of any felony, including, without limitation, any
fraud against the Employer, any of its affiliates, clients or customers of the
Employer.
7. Return of Documents. On termination of this Agreement or at any time
upon the request of the Board of Directors of the Employer or its affiliates,
the Employee shall return to the Employer all documents, including all copies
thereof, and all other property relating to the business or affairs of the
Employer, including, without limitation, customer lists, agents or
representatives lists, commission schedules and information manuals, letters,
materials, reports, lists and records (all such documents and other property
being hereinafter referred to collectively as the "Materials"), in his
possession or control, no matter from whom or in what manner he may have
acquired such property. The Employee acknowledges and agrees that all of the
Materials are property of the Employer and releases all claims of right of
ownership thereto.
8. Confidentiality.
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(a) Employee acknowledges he will have access to operating,
financial and other information of Employer and customers of the Employer
including, without limitation, procedures, business strategies, and prospects
and opportunities, techniques, methods and information about, or received by it,
from its customers and that divulgence will irreparably harm the Employer
("Confidential Information"). Employee also acknowledges that the foregoing
provides Employer with a competitive advantage (or that could be used to the
disadvantage of the Employer by a competitor). Employee also acknowledges the
interest of the Employer in maintaining the confidentiality of such information
and Employee shall not, nor any person acting on behalf of Employee, divulge,
disclose or make known in any way or use for the individual benefit of Employee
or others any of such Confidential Information. The foregoing is not applicable
to such of the Confidential Information that is established by Employee to be in
the public domain otherwise than as a result of its unauthorized disclosure by
Employee or any other person.
(b) The customers of the Employer entrust the Employer with
responsibility for their business in the expectation that the Employer will hold
all such matters, including in some cases the fact that they are doing business
with the Employer and the specific transactions in which they are engaged, in
the strictest confidence ("Customer Confidences"). Employee covenants that after
the termination of his employment with the Employer, he will hold all Customer
Confidences in a fiduciary capacity and will not directly or indirectly disclose
or use such information.
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(c) Employee hereby assigns to the Employer his entire right,
title and interest in any idea, concept, technique, invention and related
documentation, other works of authorship, and the like (all hereinafter called
"Developments") made, conceived, written, or otherwise created solely by him or
jointly with others, prior to the date hereof and/or while during the term of
his employment with the Employer and any of its affiliates whether or not such
Developments are patentable, subject to copyright protection or susceptible to
any other form of protection which relate to the actual business or research or
development of the Employer. Employee, after the termination of its employment
with Employer, shall return to the Employer (and shall not retain any copies or
excerpts therefrom) all documents, notes, analyses or compilations, including
all copies thereof, and all other property relating to the Employer ("Employer
Documents") including, but not limited to, documents generated by Employee
pursuant to his relation with the Employer. Employee at the request of Employer
shall sign any assignment or any other documents required to be signed by
Employer relating to the assignment by Employee to Employer of any developments.
(d) Employee acknowledges that the Employer has a compelling
business interest in preventing unfair competition stemming from the use or
disclosure of Customer Confidences and Confidential Information in the event
that, after any termination on the post- employment activities of Employee,
Employee goes to work or becomes affiliated with a competitor of the Employer.
(e) Employee further acknowledges that all customers he
services or dealt with while employed with the Employer are customers of the
Employer and not Employee's personally. Employee also acknowledges that, by
virtue of his employment with the Employer, Employee has gained or will gain
knowledge of the identity, characteristics and preferences of the customers of
the Employer, and that Employee will not use such Customer Confidences and
Confidential Information at any time.
9. Covenants Not to Compete or Solicit.
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(a) The Employee undertakes that during the term of this
Agreement and for 24 months thereafter, he will not, directly or indirectly
(whether as sole proprietor, partner, stockholder, director, officer, employee
or in any other capacity as principal or agent) compete with, or participate in
any business that competes with, the Employer; provided that the Employee may
invest in (i) the securities of any business or enterprise (but without
otherwise participating in the activities of such business or enterprise) which
are listed on a national or regional securities exchange or traded in the
over-the-counter market, and (ii) equity interests of the Employer, of any
member thereof.
(b) The Employee undertakes that during the term of this
Agreement and for a period of 24 months thereafter he will not, directly or
indirectly (whether as a sole proprietor, partner, stockholder, director,
officer, employee or in any other capacity as principal or agent), do any of the
following:
(i) hire, or attempt to hire for employment, any
person who is an employee of the Employer on the date of such termination of
employment, or attempt to influence any such person to terminate his employment
by the Employer; or
(ii) in any other manner interfere with, disrupt or
attempt to disrupt the relationship, contractual or otherwise, between the
Employer and any of its employees, or disparage the business or reputation of
the Employer to any such person.
(c) The Employee undertakes that during the term of this
Agreement and for 24 months thereafter he will not, directly or indirectly
(whether as a sole proprietor, partner, stockholder, director, officer, employee
or in any other capacity as principal or agent), do any of the following:
(i) solicit, service or accept any actual or
prospective accounts, clients or customers of the Employer during the period of
the Employee's employment by the Employer;
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(ii) influence or attempt to influence any of the
accounts, customers or clients referred to in Subsection 9(c)(i) to transfer
their business or patronage from the Employer to any other person or company
engaged in a similar business;
(iii) directly assist any person or company
soliciting, servicing or accepting any of the accounts, customers or clients
referred to in Subsection 9(c)(i); or
(iv) in any other manner directly interfere with,
disrupt or attempt to disrupt the relationship, contractual or otherwise,
between the Employer and any of its accounts, customers or clients referred to
in Subsection 9(d)(i), or any other person, or disparage the business or
reputation of the Employer to any such person.
(d) The Employer undertakes that during the term of this
Agreement and for a period of 60 months thereafter he will not, directly or
indirectly, disparage the business or reputation of the Employee to any
accounts, customers or clients referred to in Subsection 9(c)(i), or any other
person.
10. Enforcement of Covenants.
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The parties acknowledge and agree that the covenants contained in
Sections 8 and 9 are essential elements of this Agreement and that, but for the
agreements of the Employee to comply with such covenants, the Employer would not
have entered into this Agreement. The parties further acknowledge and agree that
a breach by the Employee of the covenants contained in Sections 8 and 9 may
result in irreparable injury to the Employer for which there is no adequate
remedy at law and that the Employer shall be entitled to seek enforcement of the
same by means of a temporary restraining order and/or a preliminary or permanent
injunction issued by any court having jurisdiction thereof. In the event that
the Employee breaches any of the covenants contained in Sections 8 and 9, the
Employer shall be entitled to an accounting and repayment of all profits,
Commissions and benefits the Employee receives in connection with such breach.
The Employee agrees to indemnify and hold harmless the Employer against all of
its costs and expenses (including, without limitation, reasonable attorneys fees
and expenses) incurred in connection with the enforcement of the covenants
contained in Sections 8 and 9, except, with respect to the enforcement of any
such covenant by the Employer, to the extent that the Employer is the prevailing
party in any action or proceeding commenced by the Employer in connection
therewith. The covenants contained in Sections 8 and 9 shall survive the
termination of this Agreement. The remedies provided in this Section 10 shall be
in addition to, and not in lieu of, any other remedies and relief including
damages to which the Employer may be entitled.
11. Blue-Pencil. If any court of competent jurisdiction shall at any
time deem the term of any of the covenants and undertakings of the Employee
under Sections 8 and 9 herein too lengthy, the other provisions of those
Sections 8 and 9 shall nevertheless stand, the period of restriction shall be
deemed to be the longest period permissible by law under the circumstances. The
court in each case shall reduce the period of restriction to permissible
duration.
12. Notices. Unless otherwise specifically provided herein, all
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid at the following addresses, and/or to such other addresses and/or
persons which either party may designate by like notice:
(a) If to the Employee, to:
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Xxxx Xxxxxx, M.D., Ph.D.
0000 Xxxx Xxx Xxxxx
Xxxxxxxxx, XX 00000
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(b) If to the Employer, to:
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Attn: Board of Directors
Hand Brand Distribution, Inc.
0000 X.X. 0xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
With a copy to:
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Xxxxx X. Xxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: 000.000.0000
13. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York without regard to
conflict of law provisions. Any disputes with respect to the interpretation of
this Agreement or the rights and obligations of the parties hereto shall be
exclusively brought in any federal or state court of competent jurisdiction
located in the City of New York, State of New York. Each of the parties waives
any right to object to the jurisdiction or venue of such courts or to claim that
such courts are an inconvenient forum.
14. Additional Provisions.
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(a) This Agreement shall inure to the benefit of, and be
binding upon, the Employer, its successors and assigns and shall inure to the
benefit of, and be binding upon, the Employee, his executors, administrators and
heirs. The Employee may not assign or delegate the performance of any of his
rights and/or obligations under this Agreement.
(b) This Agreement constitutes the entire Agreement,
representation and understanding of the parties hereto with respect to the
subject matter hereof, and no amendment or modification hereof shall be valid or
binding unless made in writing and signed by the parties hereto.
(c) No waiver of any provision of this Agreement shall be
valid unless the same is in writing and signed by the party against whom it is
sought to be enforced. No waiver of any default or breach of this Agreement
shall be deemed a continuing waiver or a waiver of any other breach or default.
(d) Employee acknowledges that prior to the execution of this
Agreement he had full opportunity to consult with his independent attorneys and
advisors as he deemed appropriate and he fully understands the nature and scope
of his rights and obligations hereunder.
(e) If any provision of this Agreement is invalid or
unenforceable in any jurisdiction such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability, but the
foregoing shall not render invalid or unenforceable in such jurisdiction the
remainder of this Agreement or the remainder of such provision or affect the
validity or unenforceability of any provision of this Agreement in any other
jurisdiction.
(The Reminder of this Page Left Intentionally Blank)
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IN WITNESS WHEREOF, the parties have executed this Agreement
or caused this Agreement to be executed on the date first above written.
Hand Brand Distribution, Inc., "Employer"
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Xxxxx X. Xxxxxxx,
Secretary Board of Directors
By: Resolution of Board of Directors
Xxxx Xxxxxx, "Employee"
/s/ Xxxx Xxxxxx
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