EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement ("Agreement") is made and deemed effective as
of
January 10, 2008, by and between US Biodefense, Inc., a Utah corporation
("UBDE"), on one side, and Xxxxx Xxxxxxxxx ("Executive"), on the other side,
with reference to the herein recitals, terms and conditions.
RECITALS
WHEREAS,
Executive is negotiating the purchase of 10,000,000 (ten million) shares of
UBDE's common stock from the Company and Executive will thereby gain a
significant equity position thereby;
WHEREAS,
UBDE recognizes the experience and knowledge of Executive in matters relating
to
the UBDE's future business activities as a public company, and further,
recognizes that it is in the best interests of UBDE to retain the services
of
Executive;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
in
this Agreement, it is hereby agreed as follows:
AGREEMENT
Employment.
UBDE
hereby employs Executive as UBDE's Chairman of the Board and Chief Executive
Officer, and Executive hereby accepts employment by UBDE in accordance with
the
terms and conditions set forth in this Agreement.
Term.
Executive's
initial term of employment and the services to be provided hereunder shall
commence on January 10th ,2008 and
continue
for a period of two (2) years from such date (the "Initial Term"), subject
to
earlier termination as hereinafter provided.
Compensation.
UBDE
shall pay Executive the following aggregate compensation for all services
rendered by him to UBDE under this Agreement:
3.1
Base Salary.
UBDE
shall pay Executive a base salary during the term of this Agreement commencing
at the rate of one hundred thousand dollars ($100,000) per annum (the "Base
Salary"). The Base Salary shall be payable in arrears, in substantially equal
monthly installments or more frequently in accordance with the policies of
UBDE.
UBDE shall review Executive's base salary bi-annually with Executive for the
purpose of determining a reasonable increase based on Executive's service and
performance, taking into consideration a good-faith assessment of any other
incentive and/or bonus plans to which Executive may be a party. Such review
shall be in accordance with UBDE's policies and practices with other executives
in similar positions with UBDE and its subsidiaries, if any. Notwithstanding
the
foregoing, any increase in Executive's Base Salary shall be determined by UBDE
at its sole discretion. In the event that UBDE is not able to pay the
Executive's salary in cash, the Executive's salary will accrue and may be
converted into common stock at a discount to the trading market value. Market
Value will be the average closing price of UBDE common stock over the preceding
30 day period.
3.2
Annual Bonus.
UBDE
shall pay Executive an annual bonus (the "Annual Bonus") in a minimum amount
of
twenty five percent (25%) of Executive's annual Base Salary based on the
achievement of certain predetermined quantitative and qualitative goals related
to the operating performance of UBDE as mutually determined and agreed upon
by
Executive and UBDE and in accordance with UBDE’s policies and
practices.
3.3
Payment of Annual Bonus.
Executive's
Annual Bonus for each fiscal year shall be determined as soon as practicable
following the end of each fiscal year, but in no event later than sixty (60)
days following the end of each fiscal year. Any Annual Bonus due to Executive
shall be paid promptly upon its final determination. UBDE shall cause and
arrange to provide Executive with an annual statement showing the manner in
which the Annual Bonus was calculated.
3.4
Other Benefits.
Executive
shall be entitled to participate, to the full extent eligible and available
in
accordance with the terms of the program in which he desires to participate
in
all group life and medical insurance programs which UBDE shall from time to
time
have for the benefit of its officers, directors and/or employees, subject to
the
rules and requirements then in effect regarding participation of executives
or
employees therein. Executive shall also be entitled to participate in any
management compensation and benefit program on a basis similar to that which
is
made available to other members of UBDE's management team operating in a similar
capacity as the Executive. UBDE reserves the right to modify, terminate, and/or
reduce benefits at any time, provided such modification, termination and/or
reduction is applied to all other members of the management team operating
in a
similar capacity as Executive.
3.5
Signing Bonus.
UBDE
shall deliver to Executive, upon execution of this Agreement, one million
five-hundred thousand (1,500,000) post spilt shares of its common stock (the
"Stock"), which tender shall be irrevocable. The Stock shall be free and clear
of all liens, restrictions, security interests, charges or other encumbrances
and shall be registered on SEC form S-8.
Duties
of Executive.
4.1
Business Development/Operations.
Subject
to the oversight and direction of the UBDE’s board of directors, Executive shall
be responsible for managing and developing all aspects of UBDE's operations
and
business development affairs.
4.2
Additions and Changes.
Executive
shall perform such reasonable additional work as may be required by UBDE from
time to time under the terms and conditions and according to the directions,
instructions and control of UBDE's board of directors.
4.3
Best Efforts.
Executive
shall devote his best skill, effort and attention to his duties set forth herein
and to further enhance and develop UBDE's business affairs, interests and
welfare. Executive shall be entitled to perform his duties from whatever
location he deems appropriate.
4.4
Policies.
Executive
shall adhere to the employment policies of UBDE in effect from time to time.
References to the policies or practices of UBDE shall mean its policies or
practices of which Executive has notice as in effect and modified from time
to
time.
4.5
Other Employment.
Executive
may engage in other employment without prior written consent of UBDE. Further,
this provision shall not be construed to prevent the Executive from personally,
and for Executive's own account, owning, managing, investing or trading in
real
estate, stocks, bonds, securities, commodities, or any other forms of
investment, so long as such owning, managing, investing or trading is not in
competition with UBDE and does not interfere with the performance of Executive's
duties hereunder. However, Executive is not required to devote his full time
to
UBDE.
Expenses.
UBDE
shall reimburse Executive for reasonable and necessary business expenses in
accordance with the expense reimbursement policies and practices of UBDE and
in
accordance with a predetermined budget to be approved by the board of directors
of UBDE.
Director's
and Officer's Insurance.
UBDE
shall be required to maintain, for the benefit of Executive, a director's and
officer's policy of insurance.
Fringe
Benefits.
UBDE
shall provide Executive with all fringe benefits regularly provided to other
similarly situated officers, directors of UBDE, generally and with such other
fringe benefits as the Executive and UBDE shall mutually agree upon in
writing.
7.1
Vacation.
UBDE
shall provide Executive with two (2) weeks of paid vacation as well as holidays
in accordance with UBDE's policies.
7.2
Insurance.
UBDE
shall provide Executive with family health insurance pursuant to UBDE's health
insurance plan if one exists and in accordance with the policies and practices
of UBDE.
Termination.
8.1
Termination with Cause.
UBDE
may
terminate Executive "with cause" without notice, for reason of Executive's
(i)
misappropriation or embezzlement of funds of UBDE, (ii) intentional
misrepresentation of a product or service offered by UBDE, (iii) soliciting
a
client's or customer's business for personal or competitive gain, (iv) use
or
sale of illegal drugs in the work place, or repeated intoxication from alcohol
or controlled substances in the work place, (v) physical, mental or sexual
abuse
or harassment of any employee, customer or prospective client or customer,
(vi)
criminal negligence or criminal acts in the work place; (vii) commission of
a
felony or crime of moral turpitude, (viii) selling or providing confidential
information of UBDE to a competitor, or (ix) theft or destruction of property
of
UBDE. UBDE may terminate Executive "with cause" if, after ten (10) days prior
written notice by UBDE to Executive, Executive has failed to cure any of the
following occurrences: (i) violation of UBDE policies or procedures, (ii) breach
of any other of the covenants of this Agreement not specifically set forth
in
(i) through (viii) above, or (iii) breach of an employee's customary obligations
to the employer. In the event that Executive is terminated "with cause,"
Executive shall be entitled solely to the payment of (i) Executive's then
current Base Salary through the date Executive is terminated and (ii) all
accrued and unused vacation and sick leave as of the date of termination.
Executive shall not be entitled to receive any other amounts or benefits from
UBDE.
8.2
No Termination Without Cause.
UBDE
may
not terminate Executive "without cause." In the event that UBDE terminates
Executive "without cause," Executive shall be paid (i) the equivalent of two
years of Base Salary and minimum bonus commitment as well as all accrued and
unpaid salary through the date of termination and (ii) all accrued and unused
vacation and sick leave as of the date of termination in addition to other
legal
and equitable remedies available to Executive.
8.3
Termination Due to Executive's Death or Disability.
In
the
event that this Agreement is terminated due to Executive's death or disability
(as defined below), Executive (or Executive's legal representatives) shall
be
paid (i) nine (9) months' Base Salary as severance, (ii) Base Salary through
the
date of termination, (iii) all Bonus payments earned through the date of
termination or previously awarded and unpaid and (iv) all accrued and unused
vacation and sick leave as of the date of termination. For purposes of this
Agreement, the term "Disability" shall mean the mental and physical inability
to
perform satisfactorily Executive's regular full time duties - with or without
a
reasonable accommodation - as determined by a physician chosen by mutual
agreement of a physician selected by Executive and a physician selected by
UBDE,
provided, however, that any Disability which continues for thirty (30) days
(whether or not consecutive) in any eighteen (18) month period shall be deemed
a
Disability.
Indemnification.
9.1
Definition.
As
used
in this provision, "Damages" means all claims, damages, liabilities, losses,
judgments, settlements, and expenses, including, without limitation, all
reasonable fees and disbursements of counsel incident to the investigation
or
defense of any claim or proceeding or threatened claim or
proceeding.
9.2
Terms of Indemnification.
UBDE
agrees to indemnify, defend and hold harmless Executive from all Damages (i)
proximately caused by the fault or negligence of UBDE, its officers, directors,
employees or agents; (ii) which relate in any manner to the terms and
obligations of this Agreement; (iii) which relate to any other failure by UBDE
to comply with any terms of this Agreement; (iv) which relate to any failure
by
UBDE to comply with applicable laws and/or regulations in accordance with this
Agreement; and/or (v) resulting from any breach of any representation, warranty,
covenant or promise made by UBDE in this Agreement.
9.3
Notice of Claim.
UBDE
shall promptly notify Executive in writing of any claim asserted by a third
person that might give rise to any indemnity obligation hereunder. Failure
of
any UBDE to promptly give such notice shall not relieve that individual of
his
indemnification obligations under this Agreement. Together with or following
such notice, UBDE shall deliver to Purchaser copies of all notices and documents
received by such party relating to the asserted claim (including court
papers).
9.4
UBDE Indemnification.
Executive
will indemnify and hold harmless, previous board members and officers of the
corporation from any claim that arises relating to the business activities
of
UBDE after the "closing" date.
Transfer
and Assignment of Intellectual Property Rights.
Executive
agrees to transfer and assign to UBDE all of his rights, if any, to that certain
intellectual Internet property known as "XxxxxxxxXxxxxxxxXxxx.xxx"
“XxxxxxxxXxxXxxxxxxx.xxx” subject to UBDE's full compliance with the terms and
conditions of this Agreement. However, Executive expressly disclaims any (i)
warranty as to the viability, marketability, and/or functionality of that
Internet property. In no event shall Executive be liable or responsible for
any
claims made against that Internet property in any respect and UBDE will be
indemnified for all claims made prior to the "closing" date, UBDE will not
be
held responsible for any claims or liabilities relating to the above mentioned
Internet properties prior to closing.
Miscellaneous.
12.1
Survival of Representations and Warranties.
The
representations and warranties of the parties including indemnification
obligations contained herein shall survive following the termination of
Executive's employment with UBDE.
12.2
Waivers.
No
action taken pursuant to this Agreement, including any investigation by or
on
behalf of any party shall be deemed to constitute a waiver by the party taking
such action or compliance with any representation, warranty, covenant or
agreement contained herein, therein and in any documents delivered in connection
herewith or therewith. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any
subsequent breach.
12.3
Notices.
All
notices, requests, demands and other communications, which are required or
may
be given under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered or mailed, first class mail, postage prepaid:
To
US Biodefense, Inc.; Xxxxx Xxxx, CEO
00000
X.
Xxxxxx Xx.
Xxxx
xx
Xxxxxxxxx, XX 00000
To
Executive: Xxxxx Xxxxxxxxx
000
Xxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
or
to
such other address as such party shall have specified by notice in writing
to
the other party.
12.4
Merger and Integration.
This
Agreement contains the entire understanding of the parties. There are no
representations, covenants or understandings other than those, either express,
implied or referred to herein. Each party acknowledges that there are no
conditions to this agreement other than those expressed or referred to herein.
Each party further acknowledges that no other party or any agent or attorney
of
any other party has made any promise, representation or warranty whatsoever,
express or implied or statutory, not contained or referred to herein, concerning
the subject matter hereof, to induce him to execute this Agreement, and he
acknowledges that he has not executed this Agreement in reliance on any such
promise, representation or warranty not specifically contained or referred
to
herein.
12.5
Sections and Other Headings.
The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
12.6
Governing Law.
This
Agreement, and all transactions contemplated hereby, shall be governed by,
construed and enforced in accordance with the laws of the State of Florida.
The
parties herein submit to personal jurisdiction and venue of a court of subject
matter jurisdiction which is appropriate for Oldsmar, Florida.
12.7
Attorney's Fees and Court Costs.
In
the event that litigation results from or arises out of this Agreement or the
performance thereof, the parties agree to reimburse the prevailing party's
reasonable attorney's fees, court costs, and all other expenses, whether or
not
taxable by the court as costs, in addition to any other relief to which, the
prevailing party may be entitled.
12.8
Contractual Procedures.
Unless
specifically disallowed by law, should litigation arise hereunder, service
of
process therefore, may be obtained through certified mail, return receipt
requested; the parties hereto waiving any and all rights they may have to object
to the method by which service was perfected.
12.9
Partial Invalidity.
If
any
provision in this Agreement is held by a court of competent jurisdiction to
be
invalid, void, or unenforceable, the remaining provisions will nevertheless
continue in full force without being impaired or invalidated in any
way.
12.10
Further Assurances.
The
parties agree to take all further actions, including execution of documents,
which are reasonably necessary to effectuate the transaction contemplated by
this Agreement.
12.11
Binding on Successors.
This
Agreement and covenants and conditions herein contained shall apply to, be
binding upon and inure to the benefit of the respective heirs, administrators,
executors, legal representatives, assignees, successors and agents of the
parties hereto.
12.12
Specific Performance.
The
parties agree that remedies, at least for any breach or threat of breach of
this
Agreement, may be inadequate and that, in the event of any such breach or threat
of breach, the non-breaching party will be entitled, in addition to all other
rights and remedies otherwise available at law or in equity, to the equitable
remedy of injunctive relief to enforce the provisions of this
Agreement.
12.13
Joint Preparation.
This
Agreement is to be deemed to have been jointly prepared by the parties hereto
and any uncertainty and ambiguity existing herein shall not be interpreted
against any party hereto, but according to the application of the rules of
interpretation of contracts, if any such uncertainty or ambiguity
exists.
12.14
Counterparts.
This
Agreement can be executed in one or more counterparts and the counterparts
signed in the aggregate shall constitute a single, original instrument. A
facsimile/photocopy of this Agreement may be used in lieu of the original for
all purposes.
12.15
Contingencies.
This
agreement must be signed by all board members of UBDE in addition to the
following other documents and actions: the lease agreement settlement must
be
signed, the stock purchase agreement must be signed, all board members must
resign as officers and board members of UBDE effective immediately and Xx.
Xxxxx
Xxxxxxxxx must be elected as COB/CEO and is responsible for all outstanding
obligations of UBDE.
IN
WITNESS WHEREOF, the parties have executed this Agreement (consisting of 6
pages) so that it is deemed effective as of the day and year first written
above.
US
Biodefense,
Inc.
Xxxxx Xxxxxxxxx
By:
/s/ Xxxxx Xxxx /s/
Xxxxx Xxxxxxxxx
---------------------------- ---------------------------------
Xxxxx
Xxxx/CEO Xxxxx
Xxxxxxxxx
Dated: 1/10/08
Dated: 1/10/08
|