Exhibit 10.9 Employment Agreement with Xxxxx X. Xxxxx
EMPLOYMENT AGREEMENT
Agreement made as of November 15, 2001 by and between GenoMed, Inc., a
Florida corporation (the "Company"), having its principal place of business at
0000 Xxxxxxx Xxx., Xx. Xxxxx, Xxxxxxxx, 00000, and Xxxxx X. Xxxxx (the
"Executive") currently residing at N 26 W 26 000 Xxxxx Xxxxxx Xx., Xxxxxxxx
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 five (5) year period commencing on January 1,
2002 (the "Commencement Date") and expiring December 31, 2007, which employment
shall be automatically extended for unlimited successive one (1) year periods
unless it is terminated during the pendency 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 Executive Officer 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 Company, through action of its Board of Directors. During such period,
the Executive shall devote his full attention, time and energies to the business
affairs of the Company (subject to the terms of Section 4 below), and will use
his best efforts to promote the interests and reputation of the Company;
provided that he may pursue such non-competitive activities during weekdays and
on weekends, such as teaching, entertaining, consulting or other remunerative or
non-remunerative affairs, as do not interfere, to any degree, 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. Hours of service to the Company during the
term of this Agreement shall be a minimum of forty (40) per week and otherwise
as determined by the Company's Board of Directors. During the pendency of this
Agreement, without his written consent, the Company shall not remove the
Executive's permanent place of business from St. Louis county in the state of
Missouri.
3. Compensation.
a. Salary. For the services to be rendered by the Executive under this
Agreement, the Company shall pay him, while he is adequately rendering such
services and performing his duties hereunder, and the Executive shall
accept as full payment for such service, a base compensation of one hundred
twenty-five thousand dollars ($125,000.00) per year, (inclusive of any
amounts subject to federal or state employment related withholding
requirements), payable in arrears in equal installments on a bi-weekly
basis occurring during the period of employment or otherwise as the parties
may agree. Such base compensation may be periodically increased on any
anniversary of the Commencement Date to take into account superior
performance or increases, if any, in the annual cost of living, and may at
such time be supplemented by discretionary bonuses or other benefits
payable from time to time, all as determined by action of the Company's
Board of Directors. Executive does not require health insurance.
b. Stock. Executive shall be entitled to five million (5,000,000) shares of
common stock of Company payable at the end of each year of employment for
five (5) consecutive years. If Executive is terminated for any reason
outlined in Section 8 hereof, Executive shall be entitled to the five
million (5,000,000) shares due for that year payable within thirty (30)
days of termination. In the event of voluntary resignation, Executive shall
be entitled to a prorated number of shares based on the total number of
shares due for that time period.
Executive hereby agrees that the certificate(s) representing such shares
may bear a legend, as set forth below, setting forth the restrictions upon
transfer and requiring evidence of compliance with applicable provisions of
the 1933 Act and the terms of this Agreement.
These shares have not been registered under the U.S. Securities Act of
1933 as amended, having been acquired for investment purposes only and
not with a view to redistribute. They may not be sold or offered for
in absence of an effective registration statement as to the shares
under the Securities Act of 1933 as amended, or an opinion of counsel
satisfactory to the corporation and an exemption from the Securities
Act of 1933 as amended, is available and that such registration is not
required, or in the alternative that such shares may be sold under
Rule 144 as promulgated by the Securities and Exchange Commission of
the United States.
4. Vacation: Fringe Benefits: Reimbursement of Expenses.
The Executive shall be entitled to two (2) weeks of fully paid vacation
during the initial and each extended term of this Agreement. He shall not be
entitled to receive monetary or other valuable consideration for vacation time
to which he is entitled but does not take. The timing of vacation periods shall
be within the discretion of the Company, 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 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.
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 one (1) year
period following the termination thereof for any reason other than (a) the
Company's discontinuance of activities; (b) an adjudication of the Company's
material breach of any of its obligations set forth in Sections 1-4, inclusive;
or (c) a termination of the Executive by the Company under the provisions of
subparagraph d. (2) of Section 8 below, 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 any county of the State of Missouri in which
the Company shall maintain any activity. 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 of Law 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, so that each month of the
specified period shall be deemed a separate period of time and each county
within the State of Missouri a separate 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 at least one (1) class of capital stock
of which is publicly traded on a national or regional stock exchange or by means
of an electronic interdealer quotation system, shall not be deemed to constitute
a breach by the Executive of the terms hereof.
7. Remedies for Breach of Executive's Obligations.
The parties 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 consent,
could cause the Company to suffer irreparable injury. Therefore, the obligations
of the Executive established under §§ 5. and 6. hereof shall be enforceable
both at law and in equity, by injunction, 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 anyone 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 the parties.
b. Termination - General. This Agreement is subject to termination prior to
the expiration of its initial or any extended term, if by the Executive upon
delivery to the Company of written notice of such intention, which notice shall
be deemed to result in termination thirty (30) days after its receipt by the
Company (the Company having the right following such receipt to accelerate the
effective date of termination but retaining the obligation to pay Executive his
compensation due for the full thirty (30) day period); and if by the Company
upon the occurrence of anyone 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 subsection 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 three (3) full calendar months
following his death shall be paid to his Beneficiary. In the event of his
disability, for the period ending on the last business day of the third calendar
month following the occurrence of such disability, the Executive shall be paid
his base compensation (reduced by any amount received by the Executive under the
terms of any disability insurance policy maintained by the Company at its sole
expense); thereafter, for the succeeding three (3) months shall be treated as
being on an authorized but unpaid leave of absence.
d. For Cause. In the event of a decision by the Board of Directors to
terminate Executive's employment for cause:
1. If, in the judgment of the Company's Board of Directors, reasonably
exercised, such termination is due 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
Company; (iii) his repeated conscious violation of any provision of the
Company's By-laws or of its other stated policies, standards or
regulations; (iv) his commission of any act involving moral turpitude; or
(v) a determination that he has demonstrated a dependence upon any
addictive substance, including alcohol, controlled substances, narcotics or
barbiturates; then, upon termination, he shall be entitled to receive
severance pay in an amount equal to ten percent (10%) of his annual base
compensation. As a condition precedent to the Company's right to terminate
this Agreement for one of the causes specified in the preceding sentence
which requires a repeated action or omission by the Executive [clauses (i),
(ii) and (iii)], there shall have been created by the Company and furnished
to the Executive, within the sixty (60) day period immediately following
commission of the proscribed act or omission, a written description thereof
and a statement advising him that the Company views such conduct as being
of the type which could lead to a termination of this Agreement under the
provisions of Section 8d. Further, if the Company seeks to terminate this
Agreement on the basis of clause (iii), it must be able to demonstrate that
the Executive has been furnished with a copy of the By-law provision, or of
the policy, standard or regulation which he is being accused of having
violated, at a time prior to the alleged commission of the violation.
2. If certain performances are not met during this Agreement, those being
seventy-five percent (75%) of the performance requirements in Exhibit A
{the "Business Plan"), the Agreement may be terminated, and Executive shall
be entitled to receive an amount equal to twenty-five percent (25%) of his
annual base compensation.
e. Payment of Termination Compensation: Continued Effectiveness of Certain
Obligations. Any compensation due the Executive as a result of the premature
termination of his employment status shall be paid to him after termination as
one lump sum. 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.
a. Nonassignability: Neither this Agreement nor any right or interest
hereunder shall be assignable by the Executive, his Beneficiary of his legal
representatives except as otherwise expressly provided herein.
b. Enforceability: If any term or condition or this Agreement shall be
invalid or unenforceable to any extent or in any application, then the remainder
of this Agreement, and such term or condition 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 if hand delivered, mailed from within the United States by
certified or registered mail, or sent by prepaid telegram to the recipient party
at the address appearing in the preamble to this Agreement or to such other
address as any such party may have designated by like notice forwarded to the
other party hereto. Change of address notices shall be deemed furnished when
received. All other notices shall be deemed furnished when mailed, telegraphed
or hand delivered.
d. Application of Missouri Law: This Agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Missouri. Venue shall be deemed located in St. Louis
County, Missouri.
e. Counterparts: This Agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one 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 an estate or trust)
designated on a written form prescribed by the Board of Directors to receive the
expiration of Agreement or death benefits described in Section 8. above. 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 or dies before complete distribution of
the benefit has been made, the Company shall distribute the benefit (or balance
thereof) to the surviving spouse of the Executive or if he be then deceased to
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 or him or its legal counsel 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 hereunto executed this Agreement.
Xxxxx X. Xxxxx, Executive GenoMed, Inc.
By: Xxxxx X. Xxxxx By: Xxxxx Xxxxxxx
Xxxxx X. Xxxxx Xxxxx Xxxxxxx - Chairman
Attest:
Witnesses:
Sign /s/Xxxx Xxxxx, III /s/R. Xxxxx Xxxx
Name Name
Printed: Xxxx Xxxxx, III R. Xxxxx Xxxx
