EMPLOYMENT AGREEMENT (Robert S. Braswell IV)
Exhibit
99.1
EMPLOYMENT
AGREEMENT
(▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇)
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”)
is
made effective as of January 1, 2006 (the “Effective
Date”)
by and
between Health Discovery Corporation, a Texas corporation (“Employer”),
and
the undersigned individual (“Employee”).
R
E C I T A L S:
A. Employer
desires Employee’s employment with Employer upon the terms and conditions set
forth in this Agreement.
B. Employee
desires to accept such employment, upon the terms and conditions set forth
in
this Agreement.
C. Employee
represents and warrants to Employer that he is not party to any contract which
Employee will be breaching by entering into this Agreement or which restricts
in
any way Employee’s ability to accept employment with Employer.
D. Employer
would not enter into this Agreement with Employee but for the foregoing
representation and warranty by Employee.
NOW,
THEREFORE,
in consideration of the mutual promises, terms, provisions and conditions
contained in this Agreement, the parties agree as follows:
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1.
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Definitions.
For the purposes of this Agreement, the following terms have the
meanings
specified or referred to in this Section
1.
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“Basic
Compensation”--
Salary and Benefits.
“Company
Information”--
any
and all:
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(a)
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Trade
secrets concerning the business and affairs of Employer, including
product
specifications, data, know-how, formulae, compositions, processes,
designs, sketches, photographs, graphs, drawings, samples, inventions
and
ideas, past, current and planned research and development, current
and
planned distribution methods and processes, lists of current and
prospective customers, current and anticipated customer requirements,
price lists, market studies, business plans, computer software and
programs (including, but not limited to, object code and source code),
computer software and database technologies, systems, structures
and
architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts,
ideas,
designs, methods and information), Employee Inventions (as such term
is
defined below), and any other information, without regard to form
and
however documented, that is a trade secret within the meaning of
any
applicable state trade secret law (“Trade
Secrets”);
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(b)
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Confidential
information concerning the business and affairs of Employer not publicly
disclosed by Employee (which includes historical financial statements,
financial projections and budgets, historical and projected sales,
capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), without regard
to form
and however documented, but that does not qualify as a Trade Secret
(“Confidential Information”).
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“Employee
Invention”--
any
idea, invention, technique, modification, process or improvement (whether
patentable or not), any industrial design (whether registerable or not), and
any
work of authorship, publication (whether or not copyright protection may be
obtained for it) created, conceived or developed by Employee, either solely
or
in conjunction with others (including Employer and Employee’s other previous
employers), during or before the Employment Period, or during a period that
includes a portion of the Employment Period, that relates to the business then
being conducted or proposed to be conducted by Employer and any such item
created by Employee, either solely or in conjunction with others, following
termination of Employee’s employment with Employer that is based upon, contains,
consists of or uses Company Information. Employer will exclude items from
Employee Inventions that are not related to the present or proposed business
of
the Employer or its affiliates or that cannot be assigned under applicable
state
law, provided however that Employee notifies Employer of the existence of any
such item within ninety (90) days of its creation by Employee.
“Employment
Period”--
the
period of Employee’s employment under this Agreement.
“person”--
any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust,
association, organization or governmental body.
“Severance
Period”--
a
period of time beginning on the first day after the end of the Employment Period
and ending on the end of the Term of this Agreement.
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2.
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Employment
Terms and Duties.
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2.1
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Employment.
Employer hereby employs Employee, and Employee hereby accepts employment
by Employer, upon the terms and conditions set forth in this
Agreement.
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2.2
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Term.
Subject to the provisions of Section
5
of
this Agreement, the term of Employee’s employment under this Agreement
shall be for that term set forth on Schedule
I
attached hereto.
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2.3
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Duties.
Employee shall have such duties as are directed by the chief executive
officer of the Employer, and will initially serve in that capacity
set
forth in Schedule
I
to
this Agreement. Employee shall devote such portion of his time as
he deems
necessary to fully and completely perform the obligations of his
position
and employment, with the exception of absences on account of illness
or
vacation in accordance with Employer’s
policies.
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3.
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Compensation.
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3.1
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Salary.
Employee shall be paid that salary set forth on Schedule
I
attached hereto (the “Salary”),
which shall be earned and payable in equal periodic installments
in
accordance with Employer’s customary payroll practices, but no less
frequently than monthly.
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3.2
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Options.
Employee shall be granted that number of options as set forth on
Schedule
I
attached hereto (the “Options”),
which options shall vest as set out on such schedule.
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3.3
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Benefits.
Employee shall, during the Employment Period, be permitted to participate
in such pension, profit sharing, employee stock option plan, bonus,
life
insurance, hospitalization, major medical, management incentive plans
and
other employee benefit plans of Employer or its affiliates that may
be in
effect from time to time, to the extent Employee is eligible under
the
terms of those plans (collectively, the “Benefits”).
Employee acknowledges that Employer currently does not have in effect
any
such plans.
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2
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4.
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Vacations,
Holidays and Other Paid Time Off.
Employee shall be entitled to the number of days of vacation set
forth on
Schedule
I
attached hereto. Employee will also be entitled to the paid holidays
and
other paid leave set forth in Employer’s policies.
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5.
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Termination.
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5.1
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Events
of Termination.
The Employment Period, Employee’s Basic Compensation and any and all other
rights of Employee under this Agreement or otherwise as an employee
and
officer of Employer or its affiliates will terminate (except as otherwise
provided in this Section
5)
(a) upon the death of Employee; (b) upon the disability of Employee
(as
defined in Section
5.2
of
this Agreement) immediately upon notice from either party to the
other;
(c) for cause (as defined in Section
5.3
of
this Agreement); or (d) without cause upon ninety (90) days’ prior notice
from Employer or Employee.
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5.2
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Definition
of Disability.
For purposes of Section
5.1
of
this Agreement, Employee shall be deemed to have a “disability”
if, because of a physical or mental impairment, Employee is unable
to
perform the essential functions of Employee’s duties under this Agreement
with or without reasonable accommodations for one-hundred twenty
(120)
consecutive days, or one hundred eighty (180) total days during any
twelve
(12) month period, as determined in accordance with this Section
5.2.
The disability of Employee will be determined based upon the examination
of Employee by a medical doctor selected by written agreement of
Employer
and Employee upon the request of either party by notice to the other.
If
Employer and Employee cannot agree on the selection of a medical
doctor,
each of them will select a medical doctor and the two medical doctors
will
select a third medical doctor who will conduct the examination. The
determination of the examining medical doctor selected under this
Section
5.2
will be binding on both parties. Employee must submit to a reasonable
number of examinations by the examining medical doctor under this
Section
5.2,
and Employee hereby authorizes the disclosure and release to the
examining
medical doctor of all supporting medical records. If Employee is
not
legally competent, Employee’s legal guardian or duly authorized
attorney-in-fact will act in Employee’s stead, under this Section
5.2,
for the purposes of submitting Employee to the examinations, and
providing
the authorization of disclosure, required under this Section
5.2.
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5.3
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Definition
of “For Cause.”
For purposes of Section
5.1,
the phrase “for cause”
with respect to a termination of employment by Employer means: (a) a
material breach by Employee of this Agreement; (b) Employee’s failure
to adhere to any Employer policy if Employee has been given an opportunity
to comply with such policy or cure his failure to comply; (c) the
appropriation (or attempted appropriation) of any business opportunity
of
Employer or any of Employer’s affiliates, including attempting to secure
or securing any personal profit in connection with any transaction
entered
into on behalf of Employer or any of Employer’s affiliates; (d) the
misappropriation (or attempted misappropriation) of any of Employer
or
Employer’s affiliate’s funds or property; (e) the conviction of, the
indictment for (or its procedural equivalent), or the entering of
a guilty
plea or plea of no contest with respect to, a felony, the equivalent
thereof, or any other crime with respect to which imprisonment is
a
possible punishment; or (f) any willful or intentional misconduct
by
Employee causing detriment to Employer or any of Employer’s affiliates (as
determined in Employer’s sole discretion).
For purposes of Section
5.1,
the phrase “for
cause”
with respect to a termination of employment by Employee means:
(a) any non-payment of compensation or failure to provide benefits
provided for hereunder after Employer has been given reasonable notice
of
same and an opportunity to comply with its obligations hereunder,
or
(b) a material adverse change in Employee’s duties and
responsibilities as described herein if mandated by
Employer.
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3
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5.4
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Termination
Pay.
Effective upon the termination of Employee’s employment under this
Agreement, Employer will be obligated to pay Employee (or, in the
event of
Employee’s death, Employee’s designated beneficiary as defined below) only
such compensation as is provided in this Section
5.4.
For purposes of this Section
5.4,
Employee’s designated beneficiary will be such individual beneficiary or
trust, located at such address, as Employee may designate by notice
to
Employer from time to time or, if Employee fails to give notice to
Employer of such a beneficiary, Employee’s estate. Notwithstanding the
preceding sentence, Employer will have no duty, in any circumstances,
to
attempt to open an estate on behalf of Employee, to determine whether
any
beneficiary designated by Employee is alive or to ascertain the address
of
any such beneficiary, to determine the existence of any trust, to
determine whether any person or entity purporting to act as Employee’s
personal representative (or the trustee of a trust established by
Employee) is duly authorized to act in that capacity, or to locate
or
attempt to locate any beneficiary, personal representative, or
trustee.
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5.4.1
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Termination
for Cause.
If Employer or Employee terminates this Agreement for cause, Employee
will
be entitled to receive Employee’s Salary for a period of three months from
the date such termination is effective, and all outstanding options
to
acquire shares of common stock of the Employer by Employee shall
vest
immediately.
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5.4.2
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Termination
Upon Disability.
If this Agreement is terminated by either party as a result of Employee’s
disability, as determined pursuant to Section 5.2,
Employer will pay Employee’s Salary through the date on which such
termination is effective and all outstanding options to acquire shares
of
common stock of the Employer by Employee shall vest immediately.
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5.4.3
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Termination
Upon Death.
If this Agreement is terminated because of Employee’s death, Employee will
be entitled to receive Employee’s Salary through the date on which such
termination is effective.
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5.4.4
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Termination
Without Cause.
If this Agreement is terminated by Employer without cause, Employee
will
be entitled to receive, in a “lump sum” payment within 15 days of
termination, Employee’s Salary for the entire remaining Term of this
Agreement (including any unpaid deferred compensation), as defined
in
Schedule
I.
In
addition, all outstanding options to acquire shares of common stock
of the
Employer shall vest immediately, and Employee shall be awarded options
to
purchase an additional 300,000 shares of company stock with an exercise
price of $0.11, fully vested. If this Agreement is terminated by
Employee
without cause, Employee will be entitled to receive Employee’s Salary only
through the date such termination is effective, and all outstanding
options to acquire shares of common stock of the Employer shall vest
immediately.
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5.4.5
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Benefits.
Employee’s accrual of, or participation in plans providing for, the
Benefits will cease at the effective date of the termination of Employee’s
employment under this Agreement for any reason, and Employee will
be
entitled to accrued Benefits pursuant to such plans only as provided
in
such plans. Employee will not receive, as part of Employee’s termination
pay pursuant to this Section 5,
any payment or other compensation for any sick leave, vacation or
other
leave unused on the date the notice of termination is given under
this
Agreement.
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4
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6.
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Nondisclosure
Covenant;
Employee Inventions.
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6.1
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Agreements
of Employer.
Employer promises that, after the beginning of, and throughout the
entirety of, the Employment Period, Employer shall provide to Employee
Company Information, as it exists as of the Effective Date and as
Employer
continues to acquire and develop new and additional Company Information
throughout the Employment Period.
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6.2
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Acknowledgments
by Employee.
Employee acknowledges that (a) after the execution of this Agreement,
and
during the Employment Period and as a part of Employee’s employment,
Employee will be afforded access to new Company Information of which
Employee is not aware at this time; (b) public disclosure of such
Company
Information could have an adverse effect on Employer or Employer’s
affiliates and their business; (c) Employer desires to obtain exclusive
ownership of each Employee Invention, and Employer will be at a
substantial competitive disadvantage if it fails to acquire exclusive
ownership of each Employee Invention; and (d) the provisions of this
Section
6
are reasonable and necessary to prevent the improper use or disclosure
of
Company Information and to provide Employer with exclusive ownership
of
all Employee Inventions.
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6.3
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Agreements
of Employee.
In consideration of the compensation and benefits to be paid or provided
to Employee by Employer under this Agreement, Employee covenants
as
follows:
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6.3.1
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Confidentiality.
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(i)
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During
and following the Employment Period, Employee shall hold in confidence
the
Company Information and shall not disclose it to any person except
with
the specific prior written consent of Employer or except as otherwise
expressly permitted by the terms of this Agreement. Employee’s obligations
under this Section 6.3.1 shall continue after the Employment Period:
(a)
for two (2) years with respect to Confidential Information; and (b)
for so
long after such two (2) year period as the information qualifies
as a
trade secret with respect to Trade
Secrets.
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(ii)
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Any
Trade Secrets of Employer will be entitled to all of the protections
and
benefits under any applicable state trade secret law and any other
applicable law. Employee hereby waives any requirement that Employer
submit proof of the economic value of any trade secret or post a
bond or
other security.
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(iii)
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None
of the foregoing obligations and restrictions applies to any part
of the
Company Information that Employee demonstrates was or became generally
available to the public other than as a result of a disclosure by
Employee.
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5
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(iv)
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Employee
will not remove from Employer’s premises (except to the extent such
removal is for purposes of the performance of Employee’s duties at home or
while traveling, or except as otherwise specifically authorized by
Employer) any document, record, notebook, plan, model, component,
device
or computer software or code, whether embodied in a disk or in any
other
form owned by Employer or any client of Employer or Employer’s affiliates
(collectively, the “Proprietary
Items”).
Employee recognizes that, as between Employer and Employee, all of
the
Proprietary Items, whether or not developed by Employee, are the
exclusive
property of Employer. Upon termination of Employee’s employment by either
party, or upon the request of Employer during the Employment Period,
Employee will return to Employer all of the Proprietary Items in
Employee’s possession or subject to Employee’s control, and Employee shall
not retain any copies, abstracts, sketches or other physical embodiment
of
any of the Proprietary Items, except, only that Employee may retain
copies
of items reasonably necessary and appropriate to demonstrate Employee’s
professional and managerial recommendations and opinion; provided,
however, that such Proprietary Items shall be used solely for the
purpose
of protecting Employee from liabilities and
claims.
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6.3.2
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Employee
Inventions.
Each Employee Invention will belong exclusively to Employer. Employee
acknowledges that all Employee Inventions are property of Employer,
including, but not limited to, any copyrights, patents, trademarks
or
other intellectual property rights pertaining thereto. If it is determined
that any such works are not works made for hire, Employee hereby
assigns
to Employer all of Employee’s right, title, and interest, including all
rights of copyright, patent, trademark and other intellectual property
rights to, or in, such Employee Inventions. Employee covenants that
Employee shall promptly:
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(i)
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Disclose
to Employer in writing any Employee
Invention;
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(ii)
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Assign
to Employer or to a party designated by Employer, at Employer’s request
and without additional compensation, all of Employee’s right to Employee
Inventions for the United States and all foreign
jurisdictions;
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(iii)
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Execute
and deliver to Employer such applications, assignments and other
documents
as Employer may request in order to apply for and obtain patents
or other
registrations with respect to any Employee Invention in the United
States
and any foreign jurisdictions;
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(iv)
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Sign
all other papers necessary to carry out the above obligations;
and
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(v)
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Give
testimony and render any other assistance, at Employer’s expense, in
support of Employer’s rights to any Employee
Invention.
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6.4
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Disputes
or Controversies.
Employee recognizes that should a dispute or controversy arising
from or
relating to this Agreement be submitted for adjudication to any court,
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6
arbitration
panel, or other third party, the preservation of the secrecy of Company
Information may be jeopardized. All pleadings, documents, testimony and records
relating to any such adjudication will be maintained in secrecy and will be
available for inspection by Employer, Employee and their respective attorneys
and experts, who will agree, in advance and in writing, to receive and maintain
all such information in secrecy, except as may be limited by them in
writing.
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7.
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Non-Competition
Covenant.
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7.1
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Employee
acknowledges that: (a) the services to be performed by Employee for
Employer are of a special, unique, unusual, extraordinary and intellectual
character; (b) Employer’s businesses are national in scope and its
products and services are marketed throughout the United States of
America; (c) Employer competes with other businesses that are or
could be located in any part of the United States of America; and
(d) the provisions of this Agreement are reasonable and necessary to
protect Employer’s businesses.
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7.2
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Employee
agrees that during the term of his employment by Employer and for
a period
of one (1) year following the termination of such employment, regardless
of the reason for or manner of termination, Employee shall not, within
the
United States of America, either directly or indirectly, on his own
behalf
or in the service or on behalf of others undertake for another biomarker
discovery company to perform duties and responsibilities: (i) relating
to
the development, sales, production, marketing or promotion of artificial
intelligence algorithms competitive with the products for which Employee
had responsibility during his employment; or (ii) the same or
substantially similar to those duties and responsibilities Employee
has
undertaken for the Company.
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8.
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Noninterference
Covenant.
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8.1
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Acknowledgments
by Employee.
Employee acknowledges that: (a) the services to be performed by
Employee under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character; (b) Employer’s businesses
are national and its products are marketed throughout the United
States of
America; (c) Employer competes with other businesses that are or
could be located in any part of the United States of America; and
(d) the provisions of this Section
8
are reasonable and necessary to protect Employer’s
businesses.
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8.2
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Covenants
of Employee.
In consideration of Employer providing Employee with new Company
Information at the inception of, and throughout, the Employment Period,
and for other valuable consideration, Employee covenants that Employee
will not, directly or indirectly:
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8.2.1
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Whether
for Employee’s own account or for the account of any other person, at any
time during the Employment Period and the Post-Employment Period,
solicit
any customer of Employer with whom Employee had material contact
during
the one (1) year prior to the Post-Employment Period for the purpose
of
marketing or selling a product or service competitive with any product
or
service of Employer and for which Employee had research, development,
sales, production or marketing involvement during the Employment
Period;
or
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8.2.2
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Whether
for Employee’s own account or the account of any other person, within the
United States at any time during the Employment Period and the
Post-Employment Period, solicit or in any manner induce or attempt
to
induce any employee of Employer or Employer’s affiliates with whom
Employee had material contact to terminate his/her employment with
Employer or Employer’s affiliate.
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For
purposes of this Agreement, the term “Post-Employment
Period”
means
a
one (1) year period beginning on the date of termination of Employee’s
employment with Employer or Employer’s affiliates.
If
any
covenant in this Section
8.2
is held
to be unreasonable, arbitrary, or against public policy, such covenant will
be
considered to be divisible with respect to scope, time and geographic area,
and
such lesser scope, time or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary and not
against public policy, will be effective, binding and enforceable against
Employee. Employee shall, while the covenant under this Section
8.2
is in
effect, give notice to Employer, within ten (10) days after accepting any other
employment, of the identity of Employee’s employer. Employer may notify such
employer that Employee is bound by this Agreement and, at Employer’s election,
furnish such employer with a copy of this Agreement or relevant portions
thereof.
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9.
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Nondisparagement
Covenant.
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Neither
Employee nor Employer shall, at any time during the Employment Period, disparage
the other, or its affiliates, or any of its respective shareholders, partners,
managers, directors, officers, employees or agents.
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10.
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General
Provisions.
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10.1
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Injunctive
Relief and Additional Remedy.
Employee acknowledges that the injury that would be suffered by Employer
or Employer’s affiliates as a result of a breach of the provisions of this
Agreement (including any provision of Sections
6,
7 and 8
of
this Agreement) would be irreparable and that an award of monetary
damages
to Employer or any of Employer’s affiliates for such a breach would be an
inadequate remedy. Consequently, Employer will have the right, in
addition
to any other rights it may have, to obtain injunctive relief to restrain
any breach or threatened breach or otherwise to specifically enforce
any
provision of this Agreement, and Employer or any of Employer’s affiliates
will not be obligated to post bond or other security in seeking such
relief.
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10.2
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Covenants
of Sections 6, 7 and 8 Are Essential Covenants.
The covenants by Employee in Sections
6, 7 and 8
of
this Agreement are essential elements of this Agreement, and without
Employee’s agreement to comply with such covenants, Employer or Employer’s
affiliate would not have entered into this Agreement or employed
Employee
and absolutely would not have disclosed to Employee any of the
Confidential Information. Employer or Employer’s affiliate and Employee
have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety
of
such covenants, with specific regard to the nature of the business
conducted by Employer or Employer’s affiliate. Employee’s covenants in
Sections
6, 7 and 8
of
this Agreement are essential covenants and the assertion of any claim
by
Employee against Employer or Employer’s affiliate under this Agreement or
otherwise, will not excuse Employee’s breach of any covenant in
Sections 6,
7 and 8
of
this Agreement. If Employee’s employment hereunder expires or is
terminated, this Agreement will continue in full force and effect
as is
necessary or appropriate to enforce the covenants and agreements
of
Employee in Sections
6, 7 and 8
of
this Agreement.
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8
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10.3
|
Representations
and Warranties by Employee.
Employee represents and warrants to Employer that the execution and
delivery by Employee of this Agreement does not, and the performance
by
Employee of Employee’s obligations hereunder will not, with or without the
giving of notice or the passage of time, or both: (a) violate any
judgment, writ, injunction or order of any court, arbitrator or
governmental agency applicable to Employee; or (b) conflict with,
result in the breach of any provisions of or the termination of,
or
constitute a default under, any agreement to which Employee is a
party or
by which Employee is or may be
bound.
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10.4
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Obligations
Contingent on Performance.
The obligations of Employer hereunder, including Employer’s obligation to
pay the compensation provided for herein, are contingent upon Employee’s
performance of Employee’s obligations hereunder and all obligations of
Employee hereunder are contingent upon Employer’s performance of
Employer’s obligations hereunder. It is specifically understood that in
the event Employee breaches the covenants in Sections
6, 7 and 8
of
this Agreement, Employee shall return any payments, if any, made
to
Employee during the Severance Period and Employer shall be under
no
further obligation to make further payments, if any, to Employee
during
such Severance Period.
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10.5
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Waiver.
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either
party in
exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power or privilege and no single
or
partial exercise of any such right, power or privilege will preclude
any
other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of
this Agreement can be satisfied by one party, in whole or in part,
by a
waiver or renunciation of the claim or right unless in writing signed
by
the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given;
and
(c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving
such
notice or demand to take further action without notice or demand
as
provided in this Agreement.
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10.6
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Binding
Effect; Assignment; Delegation of Duties Prohibited.
This Agreement shall inure to the benefit of, and shall be binding
upon,
the parties hereto and their respective successors, assigns, heirs
and
legal representatives, including any entity with which Employer may
merge
or consolidate or to which all or substantially all of its assets
may be
transferred. This Agreement is expressly assignable by Employer.
Employee
acknowledges and agrees that this Agreement may be assigned in the
future
by Employer to an affiliate or subsidiary of Employer or to a successor
in
interest of Employer. The duties and covenants of Employee under
this
Agreement, being personal, may not be assigned or
delegated.
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10.7
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Notices.
All notices, consents, waivers and other communications under this
Agreement must be in writing and will be deemed to have been duly
given
when (a) delivered by hand (with written confirmation of receipt);
(b) sent by facsimile (with written confirmation of transmission),
provided that a copy is mailed by registered mail, postage prepaid,
return
receipt requested; or (c) when received by the addressee, if sent by
a nationally recognized overnight delivery service (receipt requested),
in
each case to the appropriate addresses and facsimile numbers set
forth
below (or to such other addresses and facsimile numbers as a party
may
designate from time to time by notice to the other
parties):
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9
| If to Employer: |
Health
Discovery Corporation
5501
½ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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| If to Employee: | At that address set forth on the signature page hereto. |
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10.8
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Entire
Agreement; Amendments.
Other than the Settlement Agreement executed by the parties of even
date
herewith, this Agreement contains the entire agreement between the
parties
with respect to Employee’s employment with Employer and supersedes all
prior agreements and understandings, oral or written, between the
parties
hereto with respect to the subject matter hereof. This Agreement
may not
be amended orally, but only by an agreement in writing signed by
the
parties hereto.
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10.9
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Governing
Law.
This Agreement will be governed by, and construed in accordance with,
the
laws of the State of Georgia, without regard to conflicts of laws
principles.
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10.10
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Section
Headings, Construction.
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All
references to “Section” or “Sections” refer to the corresponding Section
or Sections of this Agreement unless otherwise specified. All words
used
in this Agreement will be construed to be of such gender or number
as the
circumstances require. Unless otherwise expressly provided, the word
“including” (or “included” or “includes”) shall be deemed to be followed
by the phrase “without limitation.”
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10.11
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Severability.
If any provision of this Agreement is held invalid or unenforceable
by any
court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement
held
invalid or unenforceable only in part or degree will remain in full
force
and effect to the extent not held invalid or
unenforceable.
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10.12
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Counterparts.
This Agreement may be executed in one or more counterparts, each
of which
will be deemed to be an original copy of this Agreement and all of
which,
when taken together, will be deemed to constitute one and the same
agreement.
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(Signatures
begin on next page)
10
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
effective as of the 1st
day of
January, 2006.
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EMPLOYER:
Health
Discovery Corporation
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
M.D.
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, M.D.
Title: Chief
Executive Officer
EMPLOYEE:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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11
SCHEDULE
I
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Employee:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇
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Effective
Date:
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January
1, 2006
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Salary:
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$70,000
Annual Salary, to be reviewed after the first year for potential
increase
based on performance of Employee. Employee agrees to defer ½ of all salary
under this agreement until January 1, 2008.
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Options:
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Employee
will receive options to acquire 1,500,000 shares of Employer’s common
stock at an exercise price equal to $0.11. Such options are deemed
fully
vested as of the date of this Agreement, and they are otherwise subject
to
the terms of the Company’s form of option agreement.
Additionally,
Employee will receive options to acquire an additional 500,000 shares
of
Employer’s common stock at an exercise price equal to $0.11. These options
will vest at the rate of 125,000 every six months, beginning January
1,
2006. Any unvested options shall vest upon a change of control of
the
Employer. At such time as employer implements an Employee Stock Option
Plan or other such plan employee may convert options to such plan
at
employee’s discretion.
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Benefits:
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Employer
will reimburse Employee’s reasonable and necessary expenses in accordance
with Employer’s policies and procedures.
In
the event that Employer adopts an employee stock option plan or other
such
plan under which company employees or directors receive additional
ownership interests in Employer, Employee shall participate in any
such
plan on a pro
rata
basis with other participants based on Employee’s Salary as defined in
this Agreement.
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Vacation:
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Employee
will be entitled to twenty-one (21) days of paid vacation each
year.
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Office
Allowance:
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Employer
will reimburse Employee $300 per month for expenses associated with
maintaining a corporate office in Employee’s home.
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Title:
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Contract
administrator.
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Duties:
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Employee’s
responsibilities shall be limited to: (1) the type and scope of activities
he has carried out for Employer previously; and (2) assisting Employer’s
counsel in connection with any litigation, licensing, or other legal
matters. Employee may be required to travel extensively for Employer
and
Employer’s affiliates in connection with his duties. In the event that
Employer wishes to expand Employee’s duties under this Agreement, any such
change must be agreed to in writing by Employer and Employee.
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Term:
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Three
years beginning on the Effective
Date.
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