DNAPrint genomics, Inc.
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of May 16, 2003 by and between DNAPrint
genomics, Inc, a Utah corporation (the "Company") having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xx 00000 and Xxxxxx Xxxxx (the
"Executive") currently residing at 0000 Xxx Xxxxxxx, Xxxx, XX 00000.
BACKGROUND INFORMATION
The Company wishes to secure the employment services of the Executive for a
definite period of time and upon the particular terms and conditions hereinafter
set forth. The Executive is willing to be so employed. Accordingly, the parties
agree as follows:
OPERATIVE PROVISIONS
1. EMPLOYMENT AND TERM:
The Company hereby employs Executive and the latter hereby accepts employment by
the Company for the one (1) year period commencing on May 16, 2003 (the
"Commencement Date") and expiring May 15, 2004, which employment shall be
automatically extended for unlimited successive one (1) year periods unless it
is terminated during the term of any such of any such period, whether initial or
extended, by the occurrence of one of the events described in Section 8. hereof,
or at the end of any such period (subject to extension by operation of the
disability provisions contained in Section 8.) by one party furnishing the other
with written notice, at least sixty (60) days prior to the expiration of such
period, of any intent to terminate this Agreement upon the expiration of such
period.
2. DUTIES
During the term of this Agreement, whether initial or extended, the Executive
shall render to the Company services as Chief Medical Officer of the Company and
shall perform such duties as may be designated by and subject to the supervision
of the Company's Board of Directors, and shall serve in such additional
capacities appropriate to his responsibilities and skills as shall be designated
by the Board of Directors. During such period, the Executive shall devote his
full attention, time and energies, as necessary to the business affairs of the
Company (subject to the terms of Section 4. below), and will use his reasonable
business efforts to promote the interests and reputation of the Company;
provided that he may pursue such non-competitive activities as do not interfere
with the complete performance of his obligations hereunder. Any question of
interpretation which may arise under the preceding provision shall be resolved
by majority decision of the Company's Board of Directors.
3. COMPENSATION
For the services to be rendered by the Executive under this Agreement, the
Company shall pay him, while he is rendering such services and performing his
duties hereunder, and the Executive shall accept as full payment for such
service twenty-five (25) million shares of DNAPrint genomics, Inc. stock to be
issued as determined and set forth on Exhibit A hereto. In addition, the Company
shall pay to the Executive a cash bonus in the amount necessary to compensate
the Executive for any federal or state income tax payable on the stock
compensation granted hereunder, taking into account the additional tax payable
on the cash bonus provided hereby. Such cash bonus shall be paid by the Company
at the earliest time after such tax is incurred that the Board of Directors, in
its reasonable discretion, determines the Company can pay such bonus without
placing itself in a precarious cash position, but no later than the time at
which the Employee is required to pay the tax.
4. VACATION: FRINGE BENEFITS: REIMBURSEMENT OF EXPENSES.
The Executive shall be entitled to four (4) weeks of fully paid vacation during
the initial and each extended term of this Agreement, which vacation is subject
to increase from time to time at the discretion of the Board of Directors. He
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shall not be entitled to receive monetary or other valuable consideration for
vacation time to which he is entitled but does not take, unless so ordered by
the Board of Directors. Timing of vacations shall be at the sole discretion of
the Board of Directors, reasonably exercised so as not to unnecessarily
inconvenience the Executive.
During his period of employment hereunder, the Executive shall further be
entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in medical and life insurance, pension
benefits, disability and other fringe benefit plans as the Company may make
generally available to all of its executive employees and other employees from
time to time; subject, however, as to such plans, to such budgetary constraints
or other limitations as may be imposed by the Board of Directors of the Company
from time to time: and (b) reimbursement for all normal and reasonable expenses
necessarily incurred by him in the performance of his obligations hereunder,
subject to such reasonable substantiation requirements as may be imposed by the
Company to all employees of the Company, unless otherwise agreed to by the Board
of Directors.
5. PROPRIETARY INTERESTS.
During or after the expiration of his term of employment with the Company, the
Executive shall not communicate or divulge to, or use for the benefit of, any
individual, association, partnership, trust, corporation or other entity except
the Company, any proprietary information of the Company received by the
Executive by virtue of such employment, without first being in receipt of the
Company's written consent to do so.
6. RESTRICTIVE COVENANT.
During the term of his employment hereunder and for the two (2) year period
following the termination hereof for any reason other than (a) the Company's
discontinuance of activities; or (b) an adjudication of the Company's material
breach of any of its obligations set forth in Sections 1-4, inclusive, the
Executive shall not, directly or indirectly, engage in or become an owner of,
render any service to, enter the employment of, or represent or solicit for any
business which competes with any activity of the Company conducted at any time
during the Executive's period of employment and which is located in the United
States. The parties expressly agree that the duration and geographical area of
this restrictive covenant are reasonable.
This covenant shall be construed as an agreement independent of any other
provision herein; and the existence of any claim or cause of action of the
Executive against the Company regardless of how arising, shall not constitute a
defense to the enforcement by the Company of its terms. If any portion of the
covenant is held by a court to be unenforceable with respect either to its
duration or geographical area, for whatever reason, it shall be considered
divisible both as to time and geographical area, resulting in an intended
requirement that the longest lesser period of time or largest lesser
geographical area found by such court to be a reasonable restriction shall
remain an effective restrictive covenant, specifically enforceable against the
Executive.
Notwithstanding any statement contained in this Section 6, to the contrary,
legal or beneficial ownership by the Executive of a less than five percent (5%)
interest in a competitive corporation the stock of which is publicly traded on a
stock exchange or by means of an electronic dealer quotation system, shall not
of itself be deemed to constitute a breach by the Executive of the terms hereof.
7. REMEDIES FOR BREACH OF EXECUTIVE OBLIGATIONS.
The parties to this agreement agree that the services of the Executive are of a
personal, specific, unique and extraordinary character and cannot be readily
replaced by the Company. They further agree that in the course of performing his
services, the Executive will have access to various types of proprietary
information of the Company, which, if released to others or used by the
Executive other than for the benefit of the Company, in either case without the
Company's written consent, could cause the Company to suffer irreparable injury.
Therefore, the obligations of the Executive established under section 5. and
section 6. hereof shall be enforceable both at law and in equity, by injunction,
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specific performance, damages or other remedy; and the right of the Company to
obtain any such remedy shall be cumulative and not alternative and shall not be
exhausted by any one or more uses thereof.
8. MODIFICATION AND TERMINATION
a. Modification. This Agreement may be amended or modified only with the
mutual written consent of the parties, and in its present form
consists of the entire Agreement between and amongst the parties.
b. Termination-General. This Agreement is subject to termination prior to
the expiration of its initial or any extended term, by the Company
upon the occurrence of any one of the following events: (a) the death
of the Executive; (b) the occurrence to Executive of a physical or
mental disability which, in the judgment (reasonably exercised) of the
Board of Directors, renders him unable to perform his normal duties on
behalf of the Company for a continuous period of six (6) months
(measured from the first day of the month immediately following the
occurrence of such disability); or (c) a determination by the Board of
directors that there is cause (as described in section d. below) to
terminate Executive's employment.
c. By Death or Disability. In the event of the Executive's death, his
base compensation otherwise due for the succeeding period of time but
no less than three (3) full calendar months following his death shall
be paid to his designated beneficiary, or to his estate if no
beneficiary has been designated. In the event of his disability the
Executive shall be paid his compensation for the succeeding period of
time but no less than three (3) months. Thereafter for the succeeding
three (3) months shall be treated as being on an authorized but unpaid
leave of absence.
d. For Cause. For purposes of this Agreement, the term "cause" shall
include, but not be limited to (i) the Executive's willful misconduct
or gross negligence; (ii) his conscious disregard of his obligations
hereunder or of any other duties reasonably assigned him by the Board
of Directors; (iii) his repeated conscious violation of any provision
of law, the Company's By-Laws or of its other stated polices,
standards, practices, regulations or procedures (iv) his commission of
any act involving moral turpitude; or (v) a determination that he has
demonstrated a dependence upon any addictive substance, including but
not limited to alcohol, controlled substances, narcotics or
barbiturates.
e. Continued Effectiveness of Certain Obligations. No termination or
expiration of this Agreement, whether consummated by action of either
party or by operation of the terms hereof, shall relieve the Executive
from his continued performance of the obligations established under
Sections 5. and 6. hereof.
9. INDEBTEDNESS OF EXECUTIVE. If, during the course of his employment,
Executive becomes indebted to the Company for any reason, the Company
shall, if it so elects, have the right to set off and to collect any sums
due it from the Executive out of any amounts which it may owe to the
Executive for unpaid compensation. In the event that this Agreement
terminates for any reason, all sums owed by the Executive to the Company
shall become immediately due and payable.
10. MISCELLANEOUS PROVISIONS.
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a. Non-assignment: Neither this Agreement nor any right or interest
hereunder shall be assigned by the Executive, his Beneficiary or his
legal representatives.
b. Enforcement: If any term or condition or this Agreement shall be
invalid or deemed unenforceable to any extent or in any application,
then the remainder of this Agreement, and such terms or conditions
except to such extent or in such application, shall not be affected
thereby, and each and every term and condition of this Agreement shall
be valid and enforced to the fullest extent and in the broadest
application permitted by law.
c. Notice: All notices or other communications required or permitted to
be furnished pursuant to this Agreement shall be in writing and shall
be considered as properly furnished when actually received by the
recipient.
d. Application of Florida Law: This Agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and
by the laws of the State of Florida. Venue shall be deemed located in
Sarasota County, Florida.
e. Counterparts: This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute on and the same instrument.
f. Binding Effect: Each of the provisions and agreements herein contained
shall be binding upon and inure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns
of the respective parties hereto.
g. Beneficiary: As used herein, the term "Beneficiary" shall mean the
person or persons (who may be designated contingently or successively
and who may be an entity other than an individual, including but not
limited to and estate or trust) designated on a written form
prescribed by the Board of Directors. Each Beneficiary designation
shall be effective only when filed with the Secretary of the Company
during the Executive's lifetime. Each Beneficiary designation filed
with the Secretary will cancel all designations previously so filed.
If the Executive fails to properly designate a Beneficiary or if the
Beneficiary predeceases the Executive, the Beneficiary shall be the
Executive's estate.
h. Legal Fees and Costs: If a legal action is initiated by any party to
this Agreement against another, arising out of or relating to the
alleged performance or non-performance of any right or obligation
established hereunder, or any dispute concerning the same, any and all
fees, costs and expenses reasonably incurred by each successful party
in investigating, preparing for, prosecuting, defending against, or
providing evidence, producing documents or taking any other action in
respect of, such action shall be the joint and several obligation of
and shall be paid or reimbursed by the unsuccessful party.
IN WITNESS WHEREOF, the parties have executed this Agreement.
DNAPrint genomics, Inc.
By: ___________________
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DNAPrint genomics, Inc.
Title: _________________
________________________
Xxxxxx Xxxxx
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DNAPrint genomics, Inc.
Exhibit A
Compensation:
The Executive will be awarded 25,000,000 shares of DNAPrint genomics, Inc.
common stock. The parties acknowledge that such shares have an approximate value
of $255,000 based on the following underlying assumptions:
o The average closing price of the Company's common stock over the
past 20 trading days was $0.017.
o The application of a 40% discount to reflect lack of
marketability is appropriate, yielding a per share valuation of
$0.0102 per share.
o Applying $0.0102 per share to 25,000,000 shares yields a
valuation of $255,000.
Stock:
DNAPrint genomics, Inc. common stock will be issued and be subject to the normal
rules and regulations governing the issuance of stock of the Company and will
constitute restricted securities. However, upon registration of any stock, the
Company will include the Executive's stock in the registration.
Liability for Tax:
Except as explicitly required herein, the Company assumes no liability for the
tax consequences of this transaction. The Executive is fully responsible for all
tax, including but not limited to; federal, state, local or municipal tax.
Stock Legend:
The stock will bear an appropriate restrictive legend.
Name on Stock:
25,000,000 shares of DNAPrint genomics, Inc. stock is to be issued to:
Xxxxxx Xxxxx
0000 Xxx Xxxxxxx
Xxxx, XX 00000
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