EMPLOYMENT
AGREEMENT
THIS AGREEMENT (the “Agreement”) is
to be effective as of September 1, 2009 (the “Effective
Date”), between Health Discovery Corporation (the
“Company”), and John A. Norris (the
“Executive”).
INTRODUCTION
The Company and the Executive now desire to
enter into this Agreement as to the terms of his employment by the
Company.
NOW, THEREFORE, the parties agree as follows:
1.
Terms and Conditions of Employment .
(a)
Employment . During the Term, Company will employ
the Executive, and the Executive will serve as Chief Operating
Officer (COO) of the Company with such responsibilities and
authority as may from time to time be assigned to the Executive by
the CEO and/or the President of the Company. The
Executive shall be responsible for strategic direction and
strategic alliances (in conjunction with the CEO and the President
and the Board of Directors of the Company) through performing the
duties listed in Exhibit A; and as may be requested by the CEO or
the President, such customary, appropriate and reasonable executive
duties as are usually performed by a chief operating
officer. In this capacity, the Executive will provide
services to the Company and be privy to the Company’s
Confidential Information and Trade Secrets. The
Executive will report to the CEO and the President of the Company.
The Executive’s primary office will be at the Company’s
headquarters in such geographic location within the United States
as may be determined by the Company.
(b)
Exclusivity . Throughout the Executive’s
employment hereunder, the Executive shall devote the
Executive’s time, energy and skill to the performance of the
duties of the Executive’s employment, shall faithfully and
industriously perform such duties, and shall diligently follow and
implement all management policies and decisions of the Company;
provided, however, that this provision is not intended to prevent
the Executive from managing his investments, or engaging in other
activities outside of the Company, whether or not compensable, so
long as he gives his duties to the Company first priority and such
activities do not interfere with his performance of duties for the
Company. Notwithstanding the foregoing, other than with
regard to the Executive’s duties to the Company and those
companies with which the Executive is already affiliated including
Norris Capital, Inc., the Executive will not accept any other
employment during the Term, perform any consulting services during
the Term, or serve on the board of directors or governing body of
any other business, except with the prior written consent of the
Board of Directors or the CEO or the President of the
Company. Further, the Executive has disclosed on Exhibit
B hereto, all of his nonpublic company bio-discovery related
investments, and agrees during the Term not to make any investments
during the Term hereof except as a passive investor. The
Executive agrees during the Term not to own directly or indirectly
equity securities of any public healthcare related company
(excluding the Company) that represents five percent (5%) or more
of the value of voting power of the equity securities of such
company. The Executive also warrants that no company with
which he is already affiliated is currently a Competing Business
and that there is no existing conflict of interest between his
activities in connection with those companies with which he is
already affiliated and the Business of the Company.
2.
Compensation .
(a)
Base Salary . The Company shall pay the Executive
base salary of $10,000.00 per month (the “Base
Salary”), The Base Salary shall be payable in equal
installments, no less frequently than twice per month, in
accordance with the Company’s regular payroll
practices.
(b)
Expenses . The Executive shall be entitled to be
reimbursed in accordance with Company policy in effect for
reasonable and necessary travel and entertainment expenses incurred
by the Executive in connection with the performance of the
Executive’s duties of employment hereunder; provided,
however, the Executive shall, as a condition of such reimbursement,
submit verification of the nature and amount of such expenses in
accordance with the reasonable reimbursement policies from time to
time adopted by the Company. Any travel by Executive on
behalf of the Company shall be at the Company’s expense and
shall include, but not be limited to, all costs for the
Executive’s transportation, lodging, meals, and with respect
to air fare at lowest available nonstop coach rates for domestic
flights and at lowest available nonstop business class rates for
all international flights.
(c)
Director & Officer Insurance . The Company,
at its expense, shall maintain director and officer insurance
covering Executive at levels consistent with past practice with a
reputable carrier. The Executive shall be entitled to
indemnification, including advancement of expenses (if applicable),
in accordance with and to the fullest extent permitted by law, and
as provided by the Company’s bylaws and articles of
incorporation, and any separate indemnification agreement, if
any.
(d)
Reimbursement Conditions . All expenses eligible
for reimbursement under this Agreement must be incurred by the
Executive during the Term of this Agreement to be eligible for
reimbursement. All reimbursements shall be paid as soon as
administratively practicable, but in no event shall any
reimbursement be paid after thirty days following the last day of
the calendar year.
(e)
Withholding . All payments pursuant to this
Agreement shall be reduced for any applicable state, local, or
federal tax withholding obligations.
3.
Term, Termination and Termination Payments .
(a)
Term . The term of this Agreement shall begin as
of the Effective Date. It shall continue through
December 31, 2009 or until sooner terminated pursuant to Section
3(b) hereof (the “Term”).
(b)
Termination . This Agreement and the employment
of the Executive by the Company hereunder shall only be terminated:
(i) by expiration of the Term; (ii) by the Company without
Cause; (iii) by the Executive for Good Reason; (iv) by
the Company or the Executive due to the Disability of the
Executive; (v) by the Company for Cause; (vi) by the
Executive for other than Good Reason or Disability, upon at least
ninety (90) days prior written notice to the Company; or (vii) upon
the death of the Executive. Notice of termination by any
party shall be given prior to termination in writing and shall
specify the basis for termination and the effective date of
termination. Further, notice of termination for Cause by
the Company or Good Reason by the Executive shall specify the facts
alleged to constitute termination for Cause or Good Reason, as
applicable. Except as provided in Section 3(c), the
Executive shall not be entitled to any payments or benefits after
the effective date of the termination of this Agreement, except for
Base Salary pursuant to Section 2(a) accrued up to the effective
date of termination, and expenses required to be reimbursed
pursuant to Section 2(b) and (d).
(c)
Termination by the Company without Cause or by the Executive for
Good Reason .
(i) If
the employment of the Executive is terminated by the Company
without Cause or by the Executive for Good Reason and such
termination constitutes a Termination of Employment, the Company
will pay the Executive (his Base Salary pursuant to Section 2(a)
hereof for the remainder of the Term. Such amount
shall be paid in arrears in substantially equal installments not
less frequently than monthly over the remainder of the Term
commencing within thirty (30) days following the effective date of
termination; provided, however, if the Executive is a
“specified employee” within the meaning of Section 409A
of the Internal Revenue Code, as amended (the “Code”),
at the date of his Termination of Employment, then such portion of
the payments that would result in a tax under Code Section 409A if
paid during the first six (6) months after Termination of
Employment shall be withheld, starting with the payments latest in
time during such six (6) month period, and paid to the Executive
during the seventh month following the date of his Termination of
Employment. Notwithstanding the foregoing, if the total
payments to be paid to the Executive hereunder, along with any
other payments to the Executive, would result in the Executive
being subject to the excise tax imposed by Code Section 4999, the
Company shall reduce the aggregate payments to the largest amount
which can be paid to the Executive without triggering the excise
tax, but only if and to the extent that such reduction would result
in the Executive retaining larger aggregate after-tax
payments. The determination of the excise tax and the
aggregate after-tax payments to be received by the Executive will
be made by the Company. If payments are to be reduced,
the payments made latest in time will be reduced first.
(ii) If
the original Term is not extended or the Company or the Executive
terminates the Executive’s employment in accordance with the
Agreement upon or following expiration of the Term, such
termination shall not be deemed in and of itself to be a
termination of the Executive’s employment by the Company
without Cause or a resignation by Executive for Good
Reason.
(iii) Notwithstanding
any other provision hereof, as a condition to the payment of the
amounts in this Section, the Executive shall be required to execute
and not revoke within the revocation period provided therein, the
Release.
(d)
Survival . The covenants in this Section 3 hereof
shall survive the termination of this Agreement and shall not be
extinguished thereby.
4.
Ownership and Protection of Proprietary Information
.
(a)
Confidentiality . All Confidential Information
and Trade Secrets and all physical embodiments thereof received or
developed by the Executive while employed by the Company are
confidential to and are and will remain the sole and exclusive
property of the Company. Except to the extent necessary
to perform the duties assigned by the Company hereunder, the
Executive will hold such Confidential Information and Trade Secrets
in trust and strictest confidence, and will not use, reproduce,
distribute, disclose or otherwise disseminate the Confidential
Information and Trade Secrets or any physical embodiments thereof
and may in no event take any action causing or fail to take the
action necessary in order to prevent, any Confidential Information
and Trade Secrets disclosed to or developed by the Executive to
lose its character or cease to qualify as Confidential Information
or Trade Secrets.
(b)
Return of Company Property . Upon request by the
Company, and in any event upon termination of this Agreement for
any reason, as a prior condition to receiving any final
compensation hereunder (including any payments pursuant to
Section 3 hereof), the Executive will promptly deliver to the
Company all property belonging to the Company, including, without
limitation, all Confidential Information and Trade Secrets (and all
embodiments thereof) then in the Executive’s custody, control
or possession.
(c)
Survival . The covenants of confidentiality set
forth herein will apply on and after the date hereof to any
Confidential Information and Trade Secrets disclosed by the Company
or developed by the Executive while employed or engaged by the
Company prior to or after the date hereof. The covenants
restricting the use of Confidential Information will continue and
be maintained by the Executive for a period of two years following
the termination of this Agreement. The covenants
restricting the use of Trade Secrets will continue and be
maintained by the Executive following termination of this Agreement
for so long as permitted by the governing law.
5.
Non-Competition and Non-Solicitation Provisions
.
(a) The
Executive agrees that during the Applicable Period, the Executive
will not (except on behalf of or with the prior written consent of
the Company, which consent may be withheld in Company’s sole
discretion), within the Area either directly or indirectly, on his
own behalf, or in the service of or on behalf of others, provide
managerial services or management consulting services substantially
similar to those Executive provides for the Company to any
Competing Business. The Executive acknowledges and
agrees that the Business of the Company is conducted in the
Area.
(b) The
Executive agrees that during the Applicable Period, he will not,
either directly or indirectly, on his own behalf or in the service
of or on behalf of others solicit any individual or entity which is
an actual or, to his knowledge, actively sought prospective client
of the Company or any of its Affiliates (determined as of date of
termination of employment) with whom he had material contact while
he was an Executive of the Company, for the purpose of offering
services substantially similar to those offered by the
Company.
(c) The
Executive agrees that during the Applicable Period, he will not,
either directly or indirectly, on his own behalf or in the service
of or on behalf of others, solicit for employment with a Competing
Business any person who is a management level employee of the
Company or an Affiliate with whom Executive had contact during the
last year of Executive’s employment with the
Company. The Executive shall not be deemed to be in
breach of this covenant solely because an employer for whom he may
perform services may solicit, divert, or hire a management level
employee of the Company or an Affiliate provided that the Executive
does not engage in the activity proscribed by the preceding
sentence.
(d) The
Executive agrees that during the Applicable Period, he will not
make any statement (written or oral) that could reasonably be
perceived as disparaging to the Company or any person or entity
that he reasonably should know is an Affiliate of the
Company.
(e) In
the event that this Section 5 is determined by a court which has
jurisdiction to be unenforceable in part or in whole, the court
shall be deemed to have the authority to strike any unenforceable
provision, or any part thereof or to revise any provision to the
minimum extent necessary to be enforceable to the maximum extent
permitted by law.
(f) The
provisions of this Section 5 shall survive termination of this
Agreement.
6.
Remedies and Enforceability .
The Executive agrees that the covenants,
agreements, and representations contained in Sections 4 and 5
hereof are of the essence of this Agreement; that each of such
covenants are reasonable and necessary to protect and preserve the
interests and properties of the Company; that irreparable loss and
damage will be suffered by the Company should the Executive breach
any of such covenants and agreements; that each of such covenants
and agreements is separate, distinct and severable not only from
the other of such covenants and agreements but also from the other
and remaining provisions of this Agreement; that the
unenforceability of any such covenant or agreement shall not affect
the validity or enforceability of any other such covenant or
agreements or any other provision or provisions of this Agreement;
and that, in addition to other remedies available to it, including,
without limitation, termination of the Executive’s employment
for Cause, the Company shall be entitled to seek both temporary and
permanent injunctions to prevent a breach or contemplated breach by
the Executive of any of such covenants or agreements.
7.
Notice .
All notices, requests, demands and other
communications required hereunder shall be in writing and shall be
deemed to have been duly given if delivered or if mailed, by United
States certified or registered mail, prepaid to the party to which
the same is directed at the following addresses (or at such other
addresses as shall be given in writing by the parties to one
another):
If to the
Company:
2 East Bryan
Street, Suite 601
Savannah, GA
31401
If to the
Executive:
531 West
Washington Street
Hanson, MA
02341
Notices
delivered in person shall be effective on the date of
delivery. Notices delivered by mail as afores
