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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement ") is effective as of April
1, 2005, by and between Hemobiotech Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Company and Executive desire to enter into this Agreement
pursuant to which the Company will employ Executive in the capacity, for the
period and on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the parties hereby agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs Executive
and Executive hereby accepts such employment in Dallas, Texas the capacity of
Chief Financial Officer ("CFO") of the Company to act in accordance with the
terms and conditions hereinafter set forth. During the Term (as defined below),
Executive agrees that he will devote time, attention and skills to the operation
of the Business (as defined below) of the Company and that he will perform such
duties, functions, responsibilities and authority in connection with the
foregoing as are from time to time delegated to Executive by the Chief Executive
Officer as delegated by the Board of Directors of the Company (the "Board"),
which duties shall include but shall not be limited to generating financial
statements, bank reconciliations, schedules of assets and liabilities, and
completing and, to the extent required, certifying all financial and related
Securities and Exchange Commission (SEC) filings required to be made by the
Company. For purposes of this Agreement, the Business of the Company shall be
defined as the development and commercialization of blood substitute products.
Executive is not bound by the terms of any agreement with any previous employer
or other party which would limit his abilities to perform his duties and
obligations hereunder.
2. TERM. The term of this Agreement shall commence on the date
hereof and shall continue for a period of three (3) years. Thereafter, this
Agreement shall be automatically renewed for one year periods, unless otherwise
terminated by the Company or Executive upon written notice to the other given
not less than ninety (90) days prior to the next anniversary of the Agreement.
The initial three year term and any renewals thereof shall be referred to herein
as the "Term."
3. COMPENSATION. In consideration of all the services to be
rendered by Executive to the Company hereunder, the Company hereby agrees to pay
or otherwise provide Executive the following compensation and benefits. It is
furthermore understood that the Company shall have the right to deduct or
withhold under any provision of applicable law (including but not limited to
Social Security payments, income tax withholding and other required deductions
not in effect or which may become effective by law any time during the Term)
from:
(a) SALARY. Executive shall receive an initial annual
salary of One Hundred and Twenty Thousand Dollars ($120,000), plus annual cost
of living salary increases ("Initial
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Base Salary"). Effective as of the first business day of the calendar month
immediately following the Company's consummation of equity financings, bank
financings, or a combination thereof in which at least Fifty Percent (50%) of
the overall proceeds have been derived from equity financings, having aggregate
gross proceeds to the Company of not less than Ten Million Dollars ($10,000,000)
(the "Financing"), the Base Salary shall increase to One Hundred and Sixty Five
Thousand Dollars ($165,000) (as adjusted, the "Base Salary"). Within ten (10)
business days following the completion of the Financing, the Executive shall
receive a lump-sum payment (the "Base Salary Adjustment Payment") equal to the
Three Thousand Seven Hundred Fifty Dollars ($3,750) multiplied by the number of
months of service that were completed by the Executive at the Initial Base
Salary level prior to the consummation of the Financing (the "Base Salary
Adjustment Payment Period"); PROVIDED, HOWEVER, that the Base Salary Adjustment
Payment Period shall not exceed nine (9) months (i.e., Executive shall not be
entitled to receive an aggregate Base Salary Adjustment Payment that exceeds
Thirty-Three thousand Seven Hundred and Fifty Dollars ($33,750)) The applicable
Base Salary shall be reviewed by the Board each year prior to the anniversary of
this Agreement to determine the annual increase to the applicable Base Salary;
PROVIDED, HOWEVER, that in no event shall such annual increase be less than cost
of living increase. The applicable Base Salary will be paid in equal
installments not less frequently than bi-monthly in accordance with the
Company's salary payment practices in effect from time to time for senior
executives of the Company.
(b) BONUS PAYMENT. At the end of each fiscal year of the
Company following the completion of the Financing, in addition to the Base
Salary then in effect, Executive shall receive a bonus payment (the "Bonus
Payment") equal to Twenty-Five Percent (25%) of the Base Salary (or such other
Base Salary as shall be in effect at such time) (the "Bonus Percentage"). The
Bonus Payment will be paid in accordance with the Company's bonus payment
practices in effect from time to time for senior executives of the Company. The
Board of Directors of the Company (the "Board") shall review the Executive's
Bonus Percentage annually and may, in the Board's sole discretion, increase the
Bonus Percentage based upon the Company's and Executive's performance.
(c) BENEFIT PLANS. As of the date hereof, Executive shall
be reimbursed monthly by the Company for health insurance coverage. Upon
consummation of the Financing, Executive shall be covered by health, accident,
disability and life insurance programs and other fringe benefit program which
the Company may adopt and implement for the benefit of the Company's executives
following the completion of the Financing. Upon execution and delivery of this
Agreement, the Executive will also receive an option to purchase an aggregate of
Seventy-Five Thousand (75,000) shares of the Company's common stock, par value
$.001 per share (the "Common Stock") at an exercise price of Eighty-Five Cents
($.85) per share, which shall vest in accordance with, and which shall otherwise
be subject to, the terms and conditions of the Company's 2003 Stock Option Plan,
a copy of which is attached hereto as EXHIBIT A. In addition, upon the
Employee's completion of each year of service hereunder, the Executive shall
receive an additional option to purchase Twenty-Five Thousand (25,000) shares of
Common Stock on the anniversary date of this Agreement at an exercise price
equal to the then-fair market value of the Common Stock.
(d) EXPENSES. Executive shall be entitled to be
reimbursed for all reasonable expenses incurred by him in connection with the
fulfillment of his duties hereunder, including all necessary continuing
education and certification costs and related expenses;
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PROVIDED, HOWEVER, that Executive has obtained the Company's prior written
approval of such expenses and has complied with all policies and procedures
related to the reimbursement of such expenses as shall, from time to time, be
established by the Company.
(e) VACATIONS AND SICK LEAVE. Executive shall be entitled
to four (4) weeks paid vacation annually to be taken in accordance with the
Company's vacation policy in effect from time to time and at such time or times
as may be mutually agreed upon by the Company and Executive; PROVIDED, HOWEVER,
that if for any reason Executive does not take the full four (4) weeks vacation
in any given year, Executive shall be entitled to accrue and carry over such
vacation time according to the policy established by the Company. Executive
shall also be entitled to sick leave according to the sick leave policy which
the Company many adopt from time to time.
(f) RELOCATION EXPENSE REIMBURSEMENT. In addition to the
compensation set forth above, following the Financing, the Company shall
reimburse Executive for all reasonable relocation expenses incurred by the
Executive to move from Charlotte, North Carolina to Dallas, Texas; PROVIDED,
HOWEVER, that has obtained the Company's prior written approval of such expenses
(which approval shall not be unreasonably withheld) and has complied with all
policies and procedures related to the reimbursement of such expenses as shall,
from time to time, be established by the Company, including the submission by
Executive to the Company of receipts evidencing such expenses.
4. INDEMNIFICATION.
(a) COMPANY'S OBLIGATION TO INDEMNIFY. The Company shall
at all times during the Term and thereafter, indemnify and defend and hold
Executive harmless from and against all liability, loss, costs, claims, damages,
expenses, judgments, awards, and settlements as well as attorneys' fees and
expenses, personal or otherwise, whether in tort or in contract, law or equity,
that the Company or the Executive may incur by reason of or arising out of any
claim made by any third party (together, the "Losses"), with respect to
Executive's employment with Company in accordance with this Agreement; PROVIDED,
HOWEVER, that the Company's foregoing indemnification obligations shall not
apply to Losses incurred by the Company as a result of the Executive's willful
misconduct, gross negligence, conviction of a felony (including entry of a plea
of NOLO CONTENDERE) for illegal or criminal behavior or engagement in activities
beyond the scope of his employment hereunder. Indemnification shall include all
costs, including actual attorneys' fees and expenses reasonably incurred in
pursuing indemnity claims under or enforcement of this Agreement.
(b) EXECUTIVE'S OBLIGATION TO INDEMNIFY. Executive shall
also at all times during the term of this Agreement and thereafter, indemnify
and defend and hold Company, its founders, owners, directors, officers,
employees, advisors, agents, partners, service providers and affiliates harmless
from and against all Losses with respect to the Executive's willful misconduct,
gross negligence, conviction of a felony (including entry of a plea of NOLO
CONTENDERE) for illegal or criminal behavior or engagement in activities beyond
the scope of his employment hereunder during the Executive's employment with
Company in accordance with this Agreement. Indemnification shall include all
costs, including actual attorneys' fees and expenses reasonably incurred in
pursuing indemnity claims under or enforcement of this Agreement.
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5. LIMITATION OF LIABILITY. EXECUTIVE AGREES THAT REGARDLESS OF
THE FORM OF ANY CLAIM, EXECUTIVES' SOLE REMEDY AND COMPANY OBLIGATION WITH
RESPECT TO ANY CLAIMS MADE RELATED TO OR ARISING OUT OF THIS AGREEMENT SHALL BE
GOVERNED BY THIS AGREEMENT, AND IN ALL CASES EXECUTIVE'S REMEDIES SHALL BE
LIMITED SPECIFICALLY TO COMPANY AND NOT TO ASSETS OR PERSONAL AND BUSINESS
INTERESTS OF COMPANY FOUNDERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS,
PARTNERS AND AFFILIATES. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL COMPANY,
ITS FOUNDERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS, PARTNERS AND
AFFILIATES BE LIABLE FOR PERSONAL, INCIDENTAL, DIRECT, INDIRECT, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO
PROPERTY AND LOST PROFITS REGARDLESS OF WHETHER COMPANY SHALL BE ADVISED, SHALL
HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY.
6. TERMINATION. (a) EVENTS OF TERMINATION. This Agreement shall
terminate on the earliest to occur of the following events:
(i) the expiration of the Term;
(ii) the mutual agreement of the Company and the
Executive;
(iii) the voluntary termination of the Executive other then
as a result of a Constructive Termination Event (as
defined herein);
(iv) the death of Executive or Executive's retirement;
(v) Executive becoming completely unable to perform his
duties as described herein due to injury, illness or
disability (mental or physical), as determined by an
independent physician selected with the approval of
the Company and Executive, for a period of three (3)
consecutive months ("Disability"); or
(vi) the termination of the Executive by the Company for
"just cause" (as defined herein) upon giving written
notice to Executive
For the purposes hereof, the Company shall have "just cause" to terminate
Executive's employment hereunder as a result of Executive's gross negligence,
willful misconduct, conviction of a felony (including the entry of a plea of
NOLO CONTENDERE) for illegal or criminal behavior in carrying out his duties as
required pursuant to the terms of the Agreement. Notwithstanding any other
provision contained herein, the Company shall have the right to terminate the
agreement and Executive's employment WITHOUT just cause, and Executive's
remedies hereunder in the event of such termination shall be limited to the
Severance Payments set forth in Section 6(c) hereof.
(b) TERMINATION FOR JUST CAUSE OR VOLUNTARY TERMINATION.
If Executive's employment is terminated prior to the expiration of the Term for
just cause or if Executive's employment is terminated as set forth in Section
6(a) (ii) or (iii) hereof, Executive shall NOT be entitled to receive any
Severance Payments (as defined in Section 7 below) and will only be entitled to
receive any accrued but unpaid portion of the applicable Base Salary, plus any
accrued but unused vacation time and unpaid expenses (in accordance with
Sections 3(d) and (e) hereof) that have been earned by the Executive as the date
of such termination.
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(c) TERMINATION WITHOUT JUST CAUSE. If Executive's
employment is terminated by the Company without just cause or as a result of the
Executive's Disability, Executive shall be entitled to receive the Severance
Payments described in Section 7 hereof. For purposes of the Agreement,
termination without just cause shall include termination by Executive of his
employment with the Company within one hundred and twenty (120) days after the
occurrence of any of the following events (collectively herein referred to as
"Constructive Termination Events") which are not remedied within ten (10)
business days after written notice to the Company by Executive of such event:
(i) failure to maintain Executive in the office to the
position of CFO or a substantially equivalent office
or position, of or with the Company;
(ii) a significant adverse change in the nature or scope
of the authority, powers, functions, responsibilities
or duties attached to the position of Executive with
the Company as set forth herein or a reduction in
Executive's then-applicable Base Salary and benefits
as set forth herein;
(iii) the liquidation, dissolution, merger, consolidation
or reorganization of the Company or transfer of all
or a significant portion of its business and/or
assets, unless the successor or successors shall have
assumed all duties and obligations of the Company
under the Agreement;
(iv) the Company shall relocate its principal headquarters
offices or require Executive to have his principal
location of work changed to any location which is in
excess of fifty (50) miles from its current location
without the prior written consent of Executive; and
(v) any material breach of the Agreement by the Company
or its successors.
(d) INSURANCE. The Company may secure, in its own name,
or otherwise, and at its own expense, life, health, accident and other insurance
covering Executive or Executive and others. Executive agrees to assist the
Company in procuring such insurance by submitting to the usual and customary
medical and other examinations and by signing, as the insured, such applications
and other instruments in writing as may be reasonably requires by the insurance
companies to which application is made pursuant to such insurance. Executive
agrees that he shall have no right, title, or interest in or to any insurance
policies or to the proceeds thereof which the Company many so elect to take out
or to continue on the Executive's life.
7. SEVERANCE PAYMENT. (a) If the Company terminates Executive's
employment without just cause or if Executive's employment is terminated due to
Disability, Executive shall be entitled to receive, in addition to the
applicable Base Salary, plus any accrued but unused vacation time and unpaid
expenses (in accordance with Sections 3(d) and (e) hereof) that have been earned
by the Executive as of the date of such termination, the following severance
payments (the "Severance Payments"):
(i) equal monthly installments at the applicable Base
Salary rate then in effect, as determined on the
first day of the calendar month immediately
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preceding the day of termination, to be paid
beginning on the first day of the month following
such termination and continuing until the earlier of
(A) the expiration of the Term or (B) the expiration
of (i) six (6) months following the effective
termination date, so long as the Executive has been
employed by the Company for a period of at least
twelve (12) consecutive months, measured as of the
effective termination date, (ii) nine (9) months
following the effective termination date, so long as
the Executive has been employed by the Company for a
period of at least two (2) consecutive years,
measured as of the effective termination date, or
(iii) twelve (12) months following the effective
termination date, so long as the Executive has been
employed by the Company for a period of at least
three (3) consecutive years, measured as of the
effective termination date (in either case, the
"Severance Period"); PROVIDED, HOWEVER, that in no
event shall the Severance Period be less than six (6)
months; and
(ii) during the Severance Period, health and life
insurance benefits substantially similar to those
which Executive was receiving or entitled to receive
immediately prior to termination; PROVIDED, HOWEVER,
such insurance benefits shall be reduced to the
extent comparable benefits during such period
following Executive's termination, and any benefits
actually received by Executive shall be reported by
Executive to the Company.
(b) DISABILITY. Whenever Severance Payments are payable
to Executive hereunder during a time when Executive is partially or totally
disabled, and such Disability would entitle him to disability income payments
according to the terms of any plan or policy now or hereafter provided by the
Company, the Severance Payments payable to Executive hereunder shall be
inclusive of any such disability income and shall not be in addition thereto,
even if such disability income is payable directly to Executive by an insurance
company under a policy paid for by the Company
8. RESTRICTIVE COVENANTS. Executive and the Company agree that
the Company would suffer irreparable harm and incur substantial damage if
Executive were to enter into Competition (as defined herein) with the Company.
Therefore, in order for the Company to protect its legitimate business
interests, Executive agrees as follows:
(a) Without the prior written consent of the Company,
Executive shall not, during the period of employment with the Company, directly
or indirectly, invest or engage in any business that is Competitive (as defined
herein) with the Business of the Company or accept employment or render services
to a Competitor (as defined herein) of the Company as a director, officer,
agent, employee or consultant or solicit or attempt to solicit or accept
business that is Competitive with the Business of the Company, except that
Executive may own up to five percent (5%) of any outstanding class of securities
of any company registered under Section 12 of the Securities Exchange Act of
1934, as amended.
(b) Without the prior written consent of the Company and
upon any termination of Executive's employment with the Company and for a period
of twelve (12) months thereafter, Executive shall not, either directly or
indirectly, (i) invest or engage in any
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business that is Competitive (as defined herein) with the Business of the
Company, except that Executive may own up to five percent (5%) of any
outstanding class of securities of any company registered under Section 12 of
the Securities Exchange Act of 1934, as amended, (ii) accept employment with or
render services to a Competitor of the Company as a director, officer, agent,
employee or consultant unless he is serving in a capacity that has no
relationship to that portion of the Competitor's business that is Competitive
with the Business of the Company, or (iii) solicit, attempt to solicit or accept
business Competitive with the Business of the Company from any of the customers
of the Company at the time of his termination or within twelve (12) months prior
thereto or from any person or entity whose business the Company was soliciting
at such time.
(c) Upon termination of his employment with the Company,
and for a period of twelve (12) months thereafter, Executive shall not, either
directly or indirectly, engage, hire, employ or solicit in any manner whatsoever
the employment of an employee of the Company.
(d) For purposes of this Agreement, a business or
activity is in "Competition" or "Competitive" with the Business of the Company
if it involves, and a person or entity is a "Competitor", if that person or
entity is engaged in, or about to become engaged in, the research, development,
design, manufacturing, marketing or selling of a specific product or technology
that resembles, competes, or is designed to compete, with, or has applications
similar to any product or technology for which the Company has obtained or
applied for a patent or made disclosures, or any product or technology involving
any other proprietary research or development engaged in or conducted by the
Company during the term of Executive's employment with the Company.
9. DISCOVERIES AND INVENTIONS. Executive hereby assigns to the
Company all his right, title, and interest in and to any and all inventions,
discoveries, developments, improvements, techniques, designs and data related to
blood substitutes which Executive conceives of, reduces to practice, or
otherwise creates, either alone or jointly with others, in the course of his
employment hereunder and in which the law recognizes any protectable interest.
10. CONFIDENTIALITY. Executive shall not use, or disclose any of
the Confidential Information and Trade Secrets, either during the Term of his
employment or at anytime thereafter, except as required in the course of his
employment. For purposes of this Agreement, "Confidential Information and Trade
Secrets" shall mean all information, know how, trade secrets, processes,
computer software or programs and related documentation, methods, practices,
fabricated techniques, marketing plans, and other compilations of information
which relate to the Business of, and are owned by the Company which were not
known generally to others engaged in the Business of the Company and which the
Company has taken affirmative actions to protect from public disclosure or which
do not exist in the public domain. All information, data and similar items and
documentation relating to the Business of the Company, shall remain the
exclusive property of the Company unless owned by Executive.
11. NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and deemed to have been
given when delivered in person or when dispatched by telegram, electronic mail,
or electronic facsimile transfer (confirmed in
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writing by mail, registered or certified, return receipt requested, postage
prepaid, simultaneously dispatched) to the addressees at the addresses specified
below.
If to Executive: Xxxx X. Xxxxxxxxx
c/x Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Grey, Esq.
Tel: (000) 000-0000
If to the Company: Xxxxxx X. Xxxxxx, Ph.D.
Chairman & CEO
Hemobiotech Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
or to such other address or fax number as either party may from time to time
designate in writing to the other.
12. ENTIRE AGREEMENT. This Agreement, together with EXHIBIT A,
constitutes the entire agreement between the parties hereto relating to the
subject matter hereof, and supersedes all prior agreements and understandings,
whether oral or written, with respect to the same. No modification, alteration,
amendment or revision of or supplement to this Agreement shall be valid or
effective unless the same is in writing and signed by both parties hereto.
13. GOVERNING LAW. This Agreement and the rights and duties of the
parties hereunder shall be governed by, construed under and enforced in
accordance with the laws of the State of Texas.
14. ASSIGNMENT. The rights and obligations of the parties under
this Agreement shall not be assignable without written permission of the other
party
15. SEVERABILITY. The invalidity of any provision of this
Agreement under the applicable laws of the State of Texas or any other
jurisdiction, shall not affect the other provisions hereby declared to be
severable from all other provisions. The intention of the parties, as expressed
in any provision held to be void or ineffective, shall be given such full force
and effect as may be permitted by law.
16. SURVIVAL. The obligations of the Company or its successor to
pay any Severance Payments required hereunder subsequent to the termination of
this Agreement and the obligations of Executive under Sections 6, 7 and 8 hereof
shall survive the termination of this Agreement.
17. REMEDIES. Executive and the Company recognize that the
services to be rendered under this Agreement by Executive are special, unique,
and of extraordinary character, and that in the event of the breach by Executive
of the terms and conditions of Sections 4, 5, 8, 9 and 10 hereof the Company
shall be entitled, if it so elects, to institute and prosecute proceedings in
any court of competent jurisdiction , to obtain damages for any breach thereof.
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18. DISPUTE RESOLUTION. Except for the right of either party to
apply to a court of competent jurisdiction for a temporary restraining order, a
preliminary injunction, or other equitable relief to preserve the status quo or
prevent irreparable harm, any and all claims, disputes or controversies arising
under, out of, or in connection with the Agreement, including any dispute
relating to production, use or commercialization, which the parties shall be
unable to resolve within sixty (60) days shall be mediated in good faith. The
party raising such dispute shall promptly advise the other party of such claim,
dispute or controversy in a writing, which describes in reasonable detail the
nature of such dispute. By not later than five (5) business days after the
recipient has received such notice of dispute, each party shall have selected
for itself a representative who shall have the authority to bind such party, and
shall additionally have advised the other party in writing of the name and title
of such representative. By not later than ten (10) business days after the date
of such notice of dispute, the party against whom the dispute shall be raised
shall select a mediation firm in Texas and such representatives shall schedule a
date with such firm for a mediation hearing. The parties shall enter into good
faith mediation and shall share the costs equally. If the representatives of the
parties have not been able to resolve the dispute within fifteen (15) business
days after such mediation hearing, the parties shall have the right to pursue
any other remedies legally available to resolve such dispute in either the
Courts of the State of Texas or in the United States District Court for the
District of Texas, to whose jurisdiction for such purposes Company and Executive
each hereby irrevocably consents and submits.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Hemobiotech Inc,
A Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Ph.D.
Chairman & CEO
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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