Exhibit
10.3
EMPLOYMENT
AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”)
is
entered into as of the 1st
day of
September, 2007 (the “Effective
Date”),
by
and between Medical Discoveries, Inc., a Utah
corporation (the “Company”),
and
Richard Palmer (hereinafter, “Executive,”
and
collectively with the Company, the “Parties”).
W I T N ES S E TH:
WHEREAS,
the Company desires to change its business from being a biopharmaceutical
company engaged in the development of drug candidates to becoming a company
engaged in the production and distribution of renewable energy products;
and
WHEREAS,
Executive and Mobius Risk Group, LLC; a Texas Limited Liability Company
(“Mobius”),
are
the owners of all of the outstanding membership interest of Global Clean Energy
Holdings LLC (“Global”),
a
Delaware limited liability company that owns certain rights and intellectual
properties related to the production and distribution of renewable energy
products; and
WHEREAS,
concurrently with the execution of this Agreement, the Company, Executive and
Mobius are completing the purchase by the Company of all of the equity and
ownership interests in Global from Executive and Mobius (the “Acquisition”);
and
WHEREAS,
Executive has expertise in the development of certain renewable energy products
and businesses; and
WHEREAS,
in connection with the Acquisition, the Company desires to employ Executive,
and
Executive desires to accept such employment with the Company.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the
parties hereto agree as follows:
ARTICLE
I
EMPLOYMENT;
TERM; DUTIES
1.1 Employment.
Pursuant to the terms and conditions hereinafter set forth, the Company hereby
employs Executive, and Executive hereby accepts employment, as President and
Chief Operating Officer (“COO”)
of the
Company. Executive shall initially serve as President and COO of the Company
until the resignation or termination of Judy Robinette, currently the Company’s
Chief Executive Officer (the
“Existing
CEO”).
Upon
the resignation or termination of the Existing CEO, Executive shall
automatically assume
the
additional position of Chief Executive Officer of the Company.
1.2 Existing
CEO.
The
Existing CEO has agreed to continue to serve as the Company’s Chief Executive
Officer until the Company’s periodic reports related to the Company’s prior
biopharmaceutical operations have been prepared
and filed with the Securities and Exchange Commission (“SEC”),
and
has agreed to resign immediately following the filing with the SEC of the last
of the following periodic reports that the Company: (i) the annual report on
Form 10-KSB for the fiscal year ending December 31, 2006, and (ii) the quarterly
reports on Form 10-QSB for the periods ending March 31, 2007 and June 30,
2007.
Notwithstanding the foregoing, if the Existing CEO resigns or is terminated
at
any time prior to or after the filing of the foregoing periodic reports with
the
SEC, Executive shall assume the position of the Company’s CEO immediately upon
such other resignation or termination.
1.3 Term.
Unless
otherwise terminated earlier in accordance with the provisions of this
Agreement, Executive’s employment with the Company shall commence on the
Effective Date, and shall continue for a period of three (3) years from the
Effective Date (the “Initial Employment Term”). Upon expiration of the Initial
Employment Term, the
Term
shall automatically renew for successive one-year periods every year thereafter
(“Successive Terms”) on the same terms and conditions set forth herein unless
either Party provides the other with written notice of its intention not to
renew the Term at least ninety (90) days prior to the end of the then-current
term.
1.4 Duties
and Responsibilities.
Executive shall perform such administrative, managerial and executive duties
for
the Company (and its subsidiaries if and when directed by the Board of Directors
of the Company (the “Board”))
as
are prescribed by applicable job specifications for the President and COO (and
CEO at such time Executive assumes such position) and the Bylaws of the Company,
such tasks and responsibilities as are customarily vested in and incidental
to
such positions, and such other duties, consistent with the Company’s Bylaws, as
may be assigned to him from time to time by the Board.
1.5 Exclusive
Employment.
Executive
agrees to devote the necessary amount of Executive’s business time, energy and
efforts to the business of the Company (and its subsidiaries if and when
directed by the Board), and to use Executive’s best efforts and abilities
faithfully and diligently to promote the business interests of the Company
(and
its subsidiaries if and when directed by the Board).
1.6 Other
Obligations -
The
Company and Executive acknowledge that Executive is currently a shareholder
and/or Director and/or Officer of several other businesses, including Mobius,
JTBH Investments, Inc., a California corporation and Creative Lighting, LLC
a
Florida LLC. It is also understood and agreed that Executive may be retained
from time to time on a limited basis to render an opinion or provide other
strategic advice for other companies which will not conflict with his duties
as
Executive of the Company (hereinafter “Other Positions”). Executive represents
that his obligations to the Other Positions will not impinge on his duties
and
obligations to Company under this Employment Agreement.
1.7 Board
of Directors.
As of
the Effective Date of this Agreement, Executive is hereby appointed as a member
of the Board, to serve until the next election of directors by the Company’s
shareholders. Thereafter, provided that Executive is still employed hereunder,
the Board shall nominate Executive to be elected to serve on the Board at each
meeting of the Company’s shareholders held during the Term to elect directors,
consistent with the provisions of Bylaws and Articles of Incorporation of the
Company, as amended and in effect from time to time.
1.9 Covenants
of Executive
1.9.1 Best
Efforts.
Executive
shall report directly to the Board and shall devote his best efforts to the
business and affairs of the Company (and its subsidiaries if and when directed
by the Board). Executive shall perform his duties, responsibilities and
functions to the Company hereunder to the best of his abilities in a diligent,
trustworthy, professional and efficient manner and shall comply, in all material
respects, with all
rules, regulations of the Company (and special instructions of the Board, if
any) and all other rules, regulations, guides, handbooks, procedures and
policies applicable to the Company and its business in connection with his
duties hereunder.
1.9.2 Records.
Executive shall use his best efforts and skills to truthfully, accurately,
and
promptly prepare, maintain, and preserve all records and reports that the
Company may, from time to time, request or require, fully account for all money,
records, equipment, materials, or other property belonging to the Company of
which he may have custody, and promptly pay and deliver the same whenever he
may
be directed to do so by the Board.
1.9.3 Compliance.
Executive shall use his best efforts to maintain
the Company’s compliance with all SEC rules, regulations and reporting
requirements for publicly traded companies, including, without limitation,
overseeing, and preparing and filing with the SEC all
periodic reports the Company is required to file under the Act and the Exchange
Act of 1934 (as amended, the “Exchange
Act”).
Executive shall at
all
times comply, and cause the Company to comply, with the then-current good
corporate governance standards and practices as prescribed by the SEC, any
exchange on which the Company’s capital stock or other securities may be traded
and any other applicable governmental entity, agency or
organization.
1.9.4 Code
of Conduct.
For
such period as when Executive is employed hereunder, Executive shall at all
times conduct himself with the highest ethical standards, and shall at all
times
adhere to Code of Conduct attached hereto as Exhibit
A
or such
other code of ethics that the Company may, from time to time,
adopt.
1.9.5 Opportunities.
The
Executive shall make available to the Company and present to the Board all
business opportunities of which he becomes aware, which are relevant to the
business of the Company (and its subsidiaries), and to no other person or entity
or to himself individually, including, without limitation, Mobius or any
affiliate thereof.
ARTICLE
II
COMPENSATION
AND OTHER BENEFITS
2.1 Base
Salary.
For the
duration of the Term, for all services rendered by Executive hereunder and
all
covenants and conditions undertaken by the Parties pursuant to this Agreement,
the Company shall pay, and Executive shall accept, as compensation, an annual
base salary (“Base
Salary”)
of
$250,000. The Base Salary shall be payable in regular installments in accordance
with the normal payroll practices of the Company, in effect from time to time,
but in any event no less frequently than on a monthly basis. Beginning on the
first anniversary of the commencement of Executive’s employment with the
Company, and on each anniversary thereafter during the Term, the Base Salary
shall be increased by the amount of the Consumer Price Index (“CPI”),
for
the immediately prior 12-month period, as published in the Wall Street
Journal.
2.2 Bonus
Compensation.
For
each year during the Term, Executive will be eligible to earn an annual bonus
(the “Bonus”),
which
Bonus shall be based on Executive’s achievement of certain performance criteria
established by the Compensation Committee of the Board (“Compensation
Committee”)
and
provided to Executive as soon as practicable following the commencement of
each
such year. The target amount of the Bonus for any given employment year,
assuming that all of the target milestones are met, shall be an amount equal
to
one hundred percent (100%) of the Base Salary in effect for the applicable
year.
In connection with the award of any Bonus pursuant to this Section 2.2,
Executive’s performance will be reviewed by the Compensation Committee on no
less than an annual basis. Notwithstanding anything herein to the contrary,
the
Parties hereby acknowledge and agree that the Compensation Committee shall,
in
accordance with NASDAQ rules and regulations for publicly traded companies,
comprise independent directors of the Board only. In
the
event that the Company has not established a Compensation Committee, the
independent directors of the Board shall establish the annual target amount
of
any Bonus to be awarded hereunder and shall determine whether the target
milestones have been satisfied (directors appointed by, or affiliated with
Mobius shall not be deemed to be independent for the purposes of this
Agreement).
2.3 Incentive
Option.
Concurrently
with the execution of this Agreement, the Company shall grant Executive an
option (the “Incentive
Option”)
to
purchase 12,000,000 shares of the Company’s common stock at an exercise price
equal to the fair market price of the Company’s common stock on the Effective
Date. The Incentive Option shall vest according to the schedule set forth below,
and will expire five (5) years after the date of grant:
2.3.1 When
the
Company’s Market Capitalization reaches $75 million, the Incentive Option shall
vest with respect to 6,000,000 shares (such shares, the “First
Tranche”)
of the
Company’s common stock subject thereunder; and
2.3.2 When
the
Company’s Market Capitalization reaches or exceeds $120 million, the Incentive
Option shall vest with respect to the remaining 6,000,000 (such shares, the
“Second
Tranche”)
shares
of the Company’s common stock subject thereunder.
For
purposes of the Agreement, the term “Market
Capitalization”
shall
mean the product of the number of shares of common stock issued and outstanding
at the time Market Capitalization is calculated, multiplied by the average
closing price of the common stock for the thirty (30) consecutive trading days
prior to the date of calculation of Market Capitalization as reported on the
principal securities trading system on which the Company’s common stock is then
listed for trading, including the Pink Sheets, the NASDAQ Stock Market, the
OTC
Bulletin Board, or any other applicable stock exchange.
2.4 Business
Expenses.
During
the Initial Term and all Successive Terms thereafter, the Company shall
reimburse Executive for all reasonable, out-of-pocket business expenses incurred
in the performance of his duties hereunder consistent with the Company’s
policies and procedures, in effect from time to time, with respect to travel,
entertainment and other business expenses customarily reimbursed to senior
executives of the Company in connection with the performance of their duties
on
behalf of the Company. Such reimbursement shall be made by Company to Executive
no later than fifteen (15) days after submission of written expense reports
by
Executive to Company.
2.5 Other
Benefits.
During
the term of Executive’s employment with the Company, Executive shall be entitled
to the following benefits:
2.5.1 Executive
shall be entitled to participate in the Company’s employee stock option plan,
life, health, accident, disability insurance plans, pension plans and retirement
plans, in effect from time to time, to the extent and on such terms and
conditions as the Company customarily makes such plans available to its senior
executives; and
2.5.2 Executive
shall be entitled to receive coverage
for services rendered to the Company (and
its
subsidiaries if and when directed by the Board) while
Executive is a director or officer of the Company under any director and officer
liability insurance policy(s) maintained by the Company from time to time;
and
2.5.3 Company
shall pay on behalf of Executive the full cost of Executive’s and Executive’s
family health insurance plan. Until a Company plan is established, or a
replacement plan is put in place, the Company shall pay Executive’s COBRA policy
premium up to $1,000 per month provided through Mobius.
2.6 Vacation.
Executive shall be entitled to four (4) weeks vacation time each calendar year
with full pay.
2.7 Withholding.
The
Company may deduct from any compensation payable to Executive (including
payments made pursuant to this Article II or in connection with the termination
of employment pursuant to Article III of this Agreement) amounts sufficient
to
cover Executive’s share of applicable federal, state and/or local income tax
withholding, social security payments, state disability and other insurance
premiums and payments.
ARTICLE
III
TERMINATION
OF EMPLOYMENT
3.1 Termination
of Employment
Executive’s
employment pursuant to this Agreement shall terminate on the earliest to occur
of the following:
3.1.1 upon
the
death of Executive;
3.1.2 upon
the
delivery to Executive of written notice of termination by the Company if
Executive shall suffer a physical or mental disability which renders Executive,
in the reasonable judgment of the Board, unable to perform his duties and
obligations under this Agreement for either 90 consecutive days or 180 days
in
any 12-month period;
or
3.1.3 upon
the
expiration of the Initial Term (or, if the Initial Term has been extended,
upon
the expiration of the then-current Successive Term);
or
3.1.4 upon
delivery to Executive of written notice of termination by the Company for
Cause;
or
3.1.5 upon
delivery of written notice from Executive to the Company for Good
Reason.
3.2 Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
3.2.1 In
connection with Paragraph 3.1 herein, “Cause”
shall
mean any of the following:
(a) Executive
materially breaches any obligation, duty, or covenant under this Agreement,
which breach is not cured or corrected within thirty (30) days of receipt
by Executive of written notice thereof from the Company (except for breaches
of
Article IV of this Agreement, which cannot be cured and for which the Company
need not give any opportunity to cure); or
(b) Executive
commits any act of misappropriation of funds or embezzlement; or
(c) Executive
commits any act of fraud; or
(d) Executive
is convicted of, or pleads guilty or nolo
contendere
to any
charge of theft, fraud, a crime involving moral turpitude, or a felony under
federal or state law; or
(e) Executive
breaches the Company’s Code
of
Conduct attached hereto as Exhibit
A
or code
of ethics as in effect from time to time.
3.2.2 In
connection with Paragraph 3.1 herein, “Good
Reason”
shall
mean: (a) without Executive’s consent, the Company changes Executive’s position
or duties to such an extent that his duties are no longer consistent with the
positions of President and COO or President and CEO of the Company, or (b)
Company materially breaches any term of this Agreement which breach continues
uncured following thirty (30) days written notice by Executive to the Company
of
such breach.
3.2.3 “Termination
Date”
shall
mean the date on which Executive’s employment with the Company hereunder is
terminated.
3.3 Effect
of Termination
3.3.1 If
Executive’s employment is terminated by Executive for Good Reason or by Company
other than for Cause, Executive shall be entitled to
the
following (the “Severance
Payments”):
(a) The
Company shall pay Executive an amount equal to one (1) times Executive’s
then-current Base Salary plus
fifty
percent (50%) of the target Bonus in effect on the Termination
Date; and
(b) Any
stock
options granted to Executive pursuant to Section 2.5.1 hereof (excluding the
Incentive Option) shall fully vest, to the extent not already vested.
At
such
time when Executive’s employment with the Company is terminated, and as a
condition to Executive’s right to receive any benefits pursuant to this Section
3.3.1, the Executive shall execute and deliver to the Company a written release
in a form mutually acceptable to the Company and Executive.
3.3.2 Notwithstanding
the reason for termination of Executive’s employment, Executive shall be
entitled to:
(a) all
benefits payable under applicable benefit plans in which Executive is entitled
to participate pursuant to Section 2.5 hereof through the Termination Date,
subject to and in accordance with the terms of such plans; and
(b) any
accrued but unused vacation earned by Executive through the Termination Date
pursuant to Section 2.6 hereof, paid out in accordance with legal requirements;
and
(c) reimbursement
for any business expenses incurred by Executive prior to Termination Date in
accordance with Section 2.4 of this Agreement.
3.3.3 If
Executive’s employment is terminated for death, disability, by Executive other
than for Good Reason or by the Company for Cause, Executive shall be entitled
to
no severance or other post-employment benefits (including, without limitation,
the Severance Payments) except as provided in Section 3.3.2 of this Agreement.
3.3.4 Notwithstanding
anything herein to the contrary, if Executive’s employment hereunder terminates
prior to the vesting of all or any portion of the Incentive Option granted
pursuant to Section 2.3 hereof, then:
(a) in
the
event the Company’s Market Capitalization reaches or exceeds $75 million at any
time within 60 days following the Termination Date, the Incentive Option shall
vest with respect to the First Tranche of shares; and,
(b) in
the
event the Company’s Market Capitalization reaches or exceeds $120 million at any
time within 60 days following the Termination Date, the Incentive Option shall
vest with respect to the Second Tranche of shares.
For
purposes of this Section 3.3.4, “Market
Capitalization”
as
used
herein shall mean the product of (i) the number of shares of Common Stock issued
and outstanding at the time Market Capitalization is calculated multiplied
by
(ii) the average closing price of the Common Stock for any Trading Day occuring
within 60 days of Executive’s termination as reported on the Trading Market;
“Trading
Market”
shall
mean the principal securities trading system on which the Common Stock is then
listed or admitted for trading, including the Pink Sheets, the NASDAQ Stock
Market, the OTC Bulletin Board, or any other applicable stock exchange; and
“Trading
Day”
shall
mean any day on which such Trading Market is open for trading. On any Trading
Day in which there are no transactions in the Common Stock, the Common Stock
shall be deemed to have been traded at the price and volume of the last previous
Trading Day on which there was a transaction.
3.3.5 Executive
hereby acknowledges that in the event of termination of his employment for
any
reason, Executive shall not be entitled to any severance, payment or other
compensation from the Company except as specifically provided in this Section
3.3.
ARTICLE
IV
INVENTIONS;
CONFIDENTIAL/TRADE SECRET INFORMATION AND RESTRICTIVE
COVENANTS
4.1 Inventions.
All
processes, technologies and inventions relating to the business of the Company
(and its subsidiaries) (collectively, “Inventions”),
including new contributions, improvements, ideas, discoveries, trademarks and
trade names, conceived, developed, invented, made or found by the Executive,
alone or with others, during his employment by the Company, whether or not
patentable and whether or not conceived, developed, invented, made or found
on
the Company’s time or with the use of the Company’s facilities or materials,
shall be the property of the Company and shall be promptly and fully disclosed
by Executive to the Company. The Executive shall perform all necessary acts
(including, without limitation, executing and delivering any confirmatory
assignments, documents or instruments requested by the Company) to assign or
otherwise to vest title to any such Inventions in the Company and to enable
the
Company, at its sole expense, to secure and maintain domestic and/or foreign
patents or any other rights for such Inventions.
4.2 Confidential/Trade
Secret Information/Non-Disclosure.
4.2.1 Confidential/Trade
Secret Information Defined.
During
the course of Executive’s employment, Executive will have access to various
Confidential/Trade Secret Information of the Company and information developed
for the Company (including information developed by Mobius in its capacity
as a
consultant to the Company). For purposes of this Agreement, the term
“Confidential/Trade
Secret Information”
is
information that is not generally known to the public and, as a result, is
of
economic benefit to the Company in the conduct of its business, and the business
of the Company’s subsidiaries. Executive and the Company agree that the term
“Confidential/Trade
Secret Information”
includes but is not limited to all information developed or obtained by the
Company, including its affiliates, and predecessors, and comprising the
following items, whether or not such items have been reduced to tangible form
(e.g., physical writing, computer hard drive, disk, tape, etc.): all methods,
techniques, processes, ideas, research and development, product designs,
engineering designs, plans, models, production plans, business plans, add-on
features, trade names, service marks, slogans, forms, pricing structures, menus,
business forms, marketing programs and plans, layouts and designs, financial
structures, operational methods and tactics, cost information, the identity
of
and/or contractual arrangements with suppliers and/or vendors, accounting
procedures, and any document, record or other information of the Company
relating to the above. Confidential/Trade Secret Information includes not only
information directly belonging to the Company which existed before the date
of
this Agreement, but also information developed by Executive for the Company,
including its subsidiaries, affiliates and predecessors, during the term of
Executive’s employment with the Company. Confidential/Trade Secret Information
does not include any information which (a) was in the lawful and unrestricted
possession of Executive prior to its disclosure to Executive by the Company,
its
subsidiaries, affiliates or predecessors, (b) is or becomes generally available
to the public by lawful acts other than those of Executive after receiving
it,
or (c) has been received lawfully and in good faith by Executive from a third
party who is not and has never been an executive of the Company, its
subsidiaries, affiliates or predecessors, and who did not derive it from the
Company, its subsidiaries, affiliates or predecessors.
4.2.2 Restriction
on Use of Confidential/Trade Secret Information.
Executive agrees that his/her use of Confidential/Trade Secret Information
is
subject to the following restrictions for an indefinite period of time so long
as the Confidential/Trade Secret Information has not become generally known
to
the public:
(a) Non-Disclosure.
Executive agrees that he will not publish or disclose, or allow to be published
or disclosed, Confidential/Trade Secret Information to any person without the
prior written authorization of the Company unless pursuant to or in connection
with Executive’s job duties to the Company under this Agreement.
(b) Non-Removal/Surrender.
Executive agrees that he will not remove any Confidential/Trade Secret
Information from the offices of the Company or the premises of any facility
in
which the Company is performing services, except pursuant to his duties under
this Agreement. Executive further agrees that he shall surrender to the Company
all documents and materials in his possession or control which contain
Confidential/Trade Secret Information and which are the property of the Company
upon the termination of this Agreement, and that he shall not thereafter retain
any copies of any such materials.
4.2.3 Prohibition
Against Unfair Competition/ Non-Solicitation of Customers.
Executive agrees that at no time after his employment with the Company will
he
engage in competition with the Company while making any use of the
Confidential/Trade Secret Information, or otherwise exploit or make use of
the
Confidential/Trade Secret Information. Executive agrees that during the twelve
month period following the Termination Date, he will not directly or indirectly
accept or solicit, in any capacity, the business of any customer of the Company
with whom Executive worked or otherwise had access to the Confidential/Trade
Secret Information pertaining to the Company’s business with such customer
during the last year of Executive’s employment with the Company, or solicit,
directly or indirectly, or encourage any of the Company’s customers or suppliers
to terminate their business relationship with the Company, or otherwise
interfere with such business relationships.
4.3 Non-Solicitation
of Employees.
Employee agrees that during the twelve month period following the Termination
Date, he shall not, directly or indirectly, solicit, directly or indirectly,
or
otherwise encourage any employees of the Company to leave the employ of the
Company, or solicit, directly or indirectly, any of the Company’s employees for
employment.
4.4 Non-Solicitation
During Employment.
During
his employment with the Company, Executive shall not: (a) interfere with the
Company’s business relationship with its customers or suppliers, (b) solicit,
directly or indirectly, or otherwise encourage any of the Company’s customers or
suppliers to terminate their business relationship with the Company, or (c)
solicit, directly or indirectly, or otherwise encourage any employees of the
Company to leave the employ of the Company, or solicit any of the Company’s
employees for employment.
4.5 Conflict
of Interest.
During
Executive’s employment with the Company, Executive must not engage in any work,
paid or unpaid, that creates an actual conflict of interest with the Company.
4.6 Breach
of Provisions.
If
Executive breaches any of the provisions of this Article IV, or in the event
that any such breach is threatened by Executive, in addition to and without
limiting or waiving any other remedies available to the Company at law or in
equity, the Company shall be entitled to immediate injunctive relief in any
court, domestic or foreign, having the capacity to grant such relief, to
restrain any such breach or threatened breach and to enforce the provisions
of
this Article IV.
4.7 Reasonable
Restrictions.
The
Parties acknowledge that the foregoing restrictions, as well as the duration
and
the territorial scope thereof as set forth in this Article IV, are under all
of
the circumstances reasonable and necessary for the protection of the Company
and
its business.
4.8 Special
Definition.
For
purposes of this Article IV, the term “Company”
shall
be deemed to include any subsidiary of the Company.
ARTICLE
V
MISCELLANEOUS
5.1 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective legal representatives, heirs, distributees, successors and
assigns. Executive may not assign any of his rights and obligations under this
Agreement. The Company may assign its rights and obligations under this
Agreement to any successor entity.
5.2 Notices.
Any
notice provided for herein shall be in writing and shall be deemed to have
been
given or made (a) when personally delivered or (b) when sent by telecopier
and
confirmed within 48 hours by letter mailed or delivered to the party to be
notified at its or his/hers address set forth herein; or three (3) days after
being sent by registered or certified mail, return receipt requested, (or by
equivalent currier with delivery documentation such as FEDEX or UPS) to the
address of the other party set forth or to such other address as may be
specified by notice given in accordance with this section 5.2:
|
If
to the Company:
|
Medical
Discoveries, Inc.
c/o
Sunhaven Farms
30103
West Gwinn Road
Prosser,
WA 99350
Telephone: (509) 786-1013
Attention: David R.
Walker
|
| |
|
|
With
a copy (which shall not
constitute
notice) to:
|
Troy
& Gould
1801
Century Park East, 26th
Floor
Los
Angeles, CA 90067
Attention:
Istvan Benko, Esq.
Telecopy
No.: (310) 789-1490
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| |
|
|
If
to Executive:
|
Richard
Palmer
3806
Newton Street
Torrance,
CA 90505
Telephone:
(310) 378-8529
Facsimile:
(310) 378-7620
|
| |
|
|
With
a copy (which shall not
constitute
notice) to:
|
Eileen
Darroll, Esq.
Palmer
Darroll Law Offices
2940
Westwood Blvd, 2nd Floor
Los
Angeles, CA 90064
Tele:
(310)474-2193
Fax:
(310)474-5151
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5.3 Severability.
If any
provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provision or portion thereof, and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement or portion thereof, and this Agreement shall be
carried out as if any such invalid or unenforceable provision or portion thereof
were not contained herein. In addition, any such invalid or unenforceable
provision or portion thereof shall be deemed, without further action on the
part
of the parties hereto, modified, amended or limited to the extent necessary
to
render the same valid and enforceable.
5.4 Waiver.
No
waiver by a party hereto of a breach or default hereunder by the other party
shall be considered valid, unless expressed in a writing signed by such first
party, and no such waiver shall be deemed a waiver of any subsequent breach
or
default of the same or any other nature.
5.5 Entire
Agreement.
This
Agreement sets forth the entire agreement between the Parties with respect
to
the subject matter hereof, and supersedes any and all prior agreements between
the Company and Executive, whether written or oral, relating to any or all
matters covered by and contained or otherwise dealt with in this Agreement.
This
Agreement does not constitute a commitment of the Company with regard to
Executive’s employment, express or implied, other than to the extent expressly
provided for herein.
5.6 Amendment.
No
modification, change or amendment of this Agreement or any of its provisions
shall be valid, unless in writing and signed by the Parties.
5.7 Authority.
The
Parties each represent and warrant that it/he has the power, authority and
right
to enter into this Agreement and to carry out and perform the terms, covenants
and conditions hereof.
5.8 Attorneys’
Fees.
If
either party hereto commences an arbitration or other action against the other
party to enforce any of the terms hereof or because of the breach by such other
party of any of the terms hereof, the prevailing party shall be entitled, in
addition to any other relief granted, to all actual out-of-pocket costs and
expenses incurred by such prevailing party in connection with such action,
including, without limitation, all reasonable attorneys’ fees, and a right to
such costs and expenses shall be deemed to have accrued upon the commencement
of
such action and shall be enforceable whether or not such action is prosecuted
to
judgment.
5.9 Captions.
The
captions, headings and titles of the sections of this Agreement are inserted
merely for convenience and ease of reference and shall not affect or modify
the
meaning of any of the terms, covenants or conditions of this
Agreement.
5.10 Governing
Law.
This
Agreement, and all of the rights and obligations of the Parties in connection
with the employment relationship established hereby, shall be governed by and
construed in accordance with the substantive laws of the State of California
without giving effect to principles relating to conflicts of law.
5.11 Arbitration.
5.11.1 Scope.
To the
fullest extent permitted by law, Executive and the Company agree to the binding
arbitration of any and all controversies, claims or disputes between them
arising out of or in any way related to this Agreement, the employment
relationship between the Company and Executive and any disputes upon termination
of employment, including but not limited to breach of contract, tort, ,
constitutional claims; and any claims for violation of any local, state or
federal law, statute, regulation or ordinance or common law, excluding any
claim
for wages under the California Labor Code ,or any claim relating to the
Company’s failure to pay wages. For the purpose of this agreement to arbitrate,
references to “Company” include all subsidiaries or related entities and their
respective executives, supervisors, officers, directors, agents, pension or
benefit plans, pension or benefit plan sponsors, fiduciaries, administrators,
affiliates and all successors and assigns of any of them, and this agreement
to
arbitrate shall only apply to them to the extent Executive’s claims arise out of
or relate to their actions on behalf of the Company.
5.11.2 Arbitration
Procedure.
To
commence any such arbitration proceeding, the party commencing the arbitration
must provide the other party with written notice of any and all claims forming
the basis of such right in sufficient detail to inform the other party of the
substance of such claims. In no event shall this notice for arbitration be
made
after the date when institution of legal or equitable proceedings based on
such
claims would be barred by the applicable statute of limitations. The arbitration
will be conducted in Los Angeles, California, by a single neutral arbitrator
and
in accordance with the then-current rules for resolution of employment disputes
for Judicial Arbitration and Mediation Services (“JAMS”). The Arbitrator is to
be selected by the mutual agreement of the Parties. If the Parties cannot agree,
the Superior Court will select the arbitrator. The parties are entitled to
representation by an attorney or other representative of their choosing. The
arbitrator shall have the power to enter any award that could be entered by
a
judge of the trial court of the State of California, and only such power, and
shall follow the law. The award shall be binding, and the Parties agree to
abide
by and perform any award rendered by the arbitrator. The arbitrator shall issue
the award in writing, and therein state the essential findings and conclusions
on which the award is based. Judgment on the award may be entered in any court
having jurisdiction thereof. In the event Company initiates the arbitration
proceeding, Company shall bear the total cost of the arbitration filing, hearing
fees, and the cost of the arbitrator. In the event the Executive initiates
the
arbitration proceeding, the Executive shall bear the total cost of the
arbitration filing, hearing fees, and the cost of the arbitrator.
5.12 Survival.
The
termination of Executive’s employment with the Company pursuant to the
provisions of this Agreement shall not affect Executive’s obligations to the
Company hereunder which by the nature thereof are intended to survive any such
termination, including, without limitation, Executive’s obligations under
Article IV of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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MEDICAL
DISCOVERIES, INC.,
a
Utah corporation
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By:
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Name:
David R. Walker
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Title:
Chairman of the Board
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| Richard
Palmer |