EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (this
“Agreement”), dated as of June 7, 2019
(“Effective
Date”), is made and
entered into by and between FitLife Brands, Inc., a Nevada
corporation (“Company”), and Xxxxxxx Xxxx
(“Employee”).
R E C I T A L S:
WHEREAS, Employee currently serves as the
Company’s Chief Retail Officer pursuant to an Employment
Agreement dated June 1, 2016 (“Original
Agreement”), which
Original Agreement expires by its terms effective June 7, 2019;
and
WHEREAS,
Company and Employee desire to terminate the Original Agreement in
consideration for the execution by the parties of this Agreement,
pursuant to which the Company will continue to retain the services
of Employee in the role of Chief Retail Officer.
NOW
THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment. The
Company shall employ the Employee, and the Employee accepts
employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the Effective
Date and ending as provided in Section
7 (the
“Employment
Period”).
2. Position
and Duties.
(a) During
the Employment Period, the Employee shall serve as the Chief Retail
Officer of the Company and shall have the duties, responsibilities
and authority for such position as designated by the Chief
Executive Officer of the Company (“CEO”), which duties, responsibilities and
authority shall include national and international retail sales and
product development. The Employee shall, if so requested by
the Company, also serve without additional compensation, as an
officer, director or manager of any entities from time to time
directly or indirectly owned or controlled by Company or its
affiliates.
(b) The
Employee shall report to the CEO and shall devote his best efforts
and substantially all of his active business time and attention
(except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the
Company and its affiliates. The Employee shall perform his
duties and responsibilities to the best of his ability in a
diligent and professional manner. During the Employment
Period, the Employee shall not engage in any business activity
which, in the reasonable judgment of the Board of Directors of the
Company (“Board”), conflicts with the duties of the
Employee hereunder, whether or not such activity is pursued for
gain, profit or other pecuniary advantage.
(c) The
foregoing restrictions shall not limit or prohibit the Employee
from engaging in passive investment, inactive business ventures and
community, charitable and social activities not interfering with
the Employee’s performance and obligations hereunder.
Further, as of the date of this Agreement, Employee agrees that he
will not use Company’s distribution network systems,
employees, or contacts to advance the water bottling and
distribution business in which he has invested.
3. Compensation.
(a) Base
Salary. As compensation
for the services contemplated herein, Employee shall receive a base
salary of One Hundred and Twenty Five Thousand and 00/100 Dollars
($125,000) per annum for the first year of this Agreement
(“Base Salary”), to be paid in accordance with
Company’s then-current payroll practices and policies, which
Base Salary shall be increased to One Hundred and Thirty Thousand
and 00/100 Dollars ($130,000) per annum effective on the first
anniversary of this Agreement, and to One Hundred and Thirty Five
Thousand and 00/100 Dollars ($135,000) per annum effective on the
second anniversary of this Agreement. The Company shall deduct and
withhold all necessary social security and withholding taxes and
any other similar sums required by law from any compensation paid
to Employee.
(b)
Commissions.
Employee shall be eligible to earn commission compensation on
a monthly basis in arrears in an amount equal to 2.50% of the
adjusted gross profit from the sale of franchise exclusive
products, adjusted for all deductions from gross profit incurred by
the Company, including but not limited to promotional expense,
advertising expense, the cost of all product samples, and returns.
Employee shall earn an additional commission related to the sale of
franchise exclusive products to international locations, to be
calculated in the same manner the domestic commission. The monthly
commissions referenced in this Section shall be calculated and
paid, as applicable, within thirty (30) days of the end of each
month, consistent with past practice. Employee’s
commission compensation eligibility and rate shall be reviewed at
least annually, and, in the discretion of the Company, may be
prospectively adjusted upward from time to time based upon the
performance of Employee, the financial condition of the Company,
prevailing industry trends, and such other factors as Company
considers relevant.
(c)
Bonus.
The Employee shall be eligible for an annual cash bonus, which
shall be determined in good faith by the compensation committee of
the Board in its sole discretion in connection with the annual
meeting or other such time, as the case may be, as determined by
such committee.
(d)
Change in
Control. In the event there is
a change of control, as defined below, of the Company, then the
surviving corporation or the acquiring corporation shall assume the
Company’s obligations pursuant to this Agreement, including
any stock or stock option agreements that Employee has with the
Company. In the event any surviving corporation or acquiring
corporation refuses to assume such obligations and/or to substitute
similar stock awards for those outstanding under any agreement
between Employee and the Company, then the Employee shall be
entitled to accelerated vesting of all unvested shares subject to
such agreements, if any, such that all shares will be vested and
fully exercisable as of the date of the Change of Control. Change
of Control means: (i) a sale or other disposition of all or
substantially all of the assets of the Company; (ii) a merger or
consolidation in which the Company is not the surviving entity and
in which the stockholders of the Company immediately prior to such
consolidation or merger own less than fifty percent (50%) of the
surviving entity’s voting power immediately after the
transaction (iii) a reverse merger in which the Company is the
surviving entity but the shares of Common Stock outstanding
immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash
or otherwise, and in which the stockholders of the Company
immediately prior to such reverse merger own less than fifty
percent (50%) of the Company’s voting power immediately after
the transaction; or (iv) the acquisition, directly or indirectly by
any person or related group of persons (other than the Company or a
person that directly or indirectly controls, is controlled by, or
is under common control with, the Company), of beneficial ownership
(within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than 50% of the total combined voting
power of the Company’s outstanding securities pursuant to a
tender or exchange offer made directly to the Company’s
stockholders.
4. Benefits
and Expenses.
(a) Employee
Benefits. Employee shall
be eligible to participate in any employee benefit plans and
programs in effect from time to time and generally made available
to similarly situated employees of Company (including but not
limited to the Company’s standard Paid Time Off policy), in a
manner consistent with the terms and conditions of such plan or
program, and on a basis that is commensurate with Employee’s
position and duties with Company. Company reserves the right
to alter, amend, or discontinue any employee benefits at any time
without notice if such alterations, amendments or discontinuances
would also apply to all other similarly situated employees of
Company. In the event of a conflict between any benefit plan
or program and this Agreement, the terms of this Agreement shall
govern.
(b)
Expenses.
Company shall pay or reimburse Employee, in accordance with
Company’s then-current reimbursement policy, for any expenses
reasonably incurred by Employee in furtherance of Employee’s
duties hereunder upon submission by Employee of vouchers, receipts,
or itemized lists thereof prepared in compliance with such
reimbursement policy and as may be required by Company in order to
permit such payments as proper deductions to Company under the
Internal Revenue Code, as amended.
5.
Location of Work;
Facilities and Support. Subject to the travel requirements of
Employee’s position, Employee will perform Employee’s
duties hereunder based out of the Kansas City, Kansas metropolitan
area, or such other metropolitan area as approved by Company
management from time to time. Company shall furnish and pay
for all reasonable facilities, equipment, supplies, and services,
including support staff, needed by Employee to perform
Employee’s duties hereunder, and all other similar expenses
incurred as a result of this employment or which are incidental to
the performance of Employee’s duties hereunder, in accordance
with the uniform policies of Company; provided, however, that it is
understood that Employee works out of his primary residence located
in the Kansas City, Kansas metropolitan area and nothing in the
section shall require Company to secure additional or alternative
office space and/or assume any responsibility for the cost or any
portion thereof of Employee’s personal residence. Moreover,
the ability to make all hiring and staffing decisions shall remain
the authority of senior management of Company at its sole
discretion.
6.
Company
Policies. Employee
agrees that Employee will comply with other employee policies
applicable to similarly-situated employees of
Company.
7. Term.
(a) Unless
renewed by the mutual agreement of the Company and the Employee,
the Employment Period shall end on the third anniversary of the
Effective Date; provided, however,
that (i) the Employment Period shall terminate prior to such date
upon the Employee’s resignation, death or Disability (as
defined in the following sentence), and (ii) the Employment Period
may be terminated by the Company at any time prior to such date for
cause or without cause. For purposes of this Agreement
“Disability” means any long-term disability or
incapacity which (i) renders the Employee unable to substantially
perform their duties hereunder for one hundred twenty (120) days
during any 12-month period or (ii) is predicted to render the
Employee unable to substantially perform their duties for one
hundred twenty (120) days during any 12-month period based, in the
case of this clause (ii) only, upon the opinion of a physician
mutually agreed upon by the Company and the Employee, in each case
as determined by the Board (excluding the Employee if they should
be a member of the Board at the time of such determination) in its
good faith judgment; provided,
however, that no action shall
be taken hereunder that precludes Employee from making a claim
under any separate long-term disability policy maintained by the
Company. The last day on which Employee is employed by the
Company, whether separation is voluntary or involuntary and is with
or without cause, is referred to as the “Termination
Date.”
(b) Except
as otherwise required by law (e.g.,
COBRA) or as specifically provided herein, all of the
Employee’s rights to salary, fringe benefits and bonuses
hereunder (if any) accruing after the Termination Date shall cease
upon the Termination Date. Under no circumstances will
the Employee be entitled to payment for accrued and unused paid
time off upon the termination of the Employment
Period.
8. Nondisclosure.
(a) Definition
and Access. Employee
acknowledges that performance of Employee’s duties under this
Agreement necessarily involves access to and familiarity with
highly sensitive, confidential, and proprietary information of
Company which includes, without limitation, information about
Company’s products, formulations, product strategies, product
development and production processes, customers and prospective
customers, the buying patterns and needs of customers and
prospective customers, vendors and suppliers, pricing, quoting,
costing systems, billing and collection procedures, proprietary
software and the source code thereof, financial and accounting
data, data processing and communications, technical data, marketing
concepts and strategies, business plans, mergers and acquisitions,
research and development of new or improved products and services,
and general know-how regarding the business of Company and its
products (collectively referred to herein as
“Confidential
Information”).
(b)
Trade
Secrets. Company
considers much of its Confidential Information to constitute trade
secrets of Company (“Trade
Secrets”) which have
independent value, provide Company with a competitive advantage
over its competitors who do not know the Trade Secrets, and are
protected from unauthorized disclosure under applicable law.
However, whether or not the Confidential Information
constitutes Trade Secrets, Employee acknowledges and agrees that
the Confidential Information is protected from unauthorized
disclosure or use due to Employee’s covenants under this
Agreement and Employee’s fiduciary duties as an employee of
Company.
(c) Protections
and Obligations. Employee
acknowledges that the Confidential Information is a valuable,
special, and unique asset of Company such that the unauthorized
disclosure or use by unauthorized persons would cause irreparable
damage to the business of Company. In recognition of the
foregoing, Employee acknowledges and agrees that the Confidential
Information is, and shall at all times remain, the sole and
exclusive property of Company. Employee further agrees that
both during and after the term of this Agreement, Employee shall
not disclose to anyone or use for any purpose any Confidential
Information of Company, except as expressly authorized by Company.
Employee further agrees that, upon termination of this
Agreement, Employee will promptly return to Company all documents,
computer disks and files, and records of any kind, in any medium,
which contain any Confidential Information, including any and all
copies thereof.
9. Development
of Intellectual Property.
(a)
Definition of
Intellectual Property. As
used herein, the term “Intellectual
Property” shall include,
without limitation, any inventions, technological innovations,
discoveries, designs, formulas, know-how, processes, business
methods, patents, trademarks, service marks, copyrights, computer
software, ideas, creations, writings, lectures, illustrations,
photographs, motion pictures, scientific and mathematical models,
improvements to all such property, and all recorded material
defining, describing or illustrating all such property, whether in
hard copy or electronic form.
(b) Company’s
Rights in Intellectual Property. Employee agrees that all right, title
and interest of every kind and nature, whether now known or
unknown, in and to any Intellectual Property invented, created,
written, developed, conceived or produced by Employee during
Employee’s employment with Company (i) whether using
Company’s equipment, supplies, facilities and/or Confidential
Information, (ii) whether alone or jointly with others, (iii)
whether or not contemplated by the terms of Employee’s
employment, and (iv) whether or not during normal working hours,
that are within the scope of Company’s actual or anticipated
business operations or that relate to any of Company’s actual
or anticipated products or services are, and shall be, the
exclusive property of Company and shall hereinafter be referred to
as “Company Intellectual
Property.”
(c) Employee’s
Obligations. Employee agrees to take all reasonably
necessary actions to enable Company to obtain, register, perfect
and/or otherwise protect its rights in Company Intellectual
Property in the United States and all foreign countries.
Employee irrevocably waives any “moral rights,”
or other rights with respect to attribution of authorship or
integrity of Company Intellectual Property, that Employee may have
under any applicable law under any legal
theory.
(i) Without
limiting the generality of the foregoing, Employee hereby consents
and agrees to: (a) promptly and fully disclose to Company any and
all Company Intellectual Property; (b) assign to Company all rights
to Company Intellectual Property without limitation or royalty; and
(c) execute all documents necessary for Company to obtain,
register, perfect, or otherwise protect its rights in Company
Intellectual Property. Consideration for Employee’s
assignment to Company is hereby acknowledged. In the event
Company is unable, after reasonable effort, to secure
Employee’s signature on any documents necessary to effectuate
this provision, Employee hereby irrevocably designates and appoints
Company as Employee’s agent and attorney-in-fact, to act for
and on Employee’s behalf, and to execute any such documents
and to do all other lawfully permitted acts to further the
protection of Company Intellectual Property with the same legal
force and effect as if executed by Employee.
(ii) To
the extent, if any, that any Company Intellectual Property is
unassignable or that Employee retains any right, title or interest
in and to any Company Intellectual Property, Employee:
(a) unconditionally and irrevocably waives the enforcement of
such rights, and all claims and causes of action of any kind
against Company with respect to such rights; (b) agrees, at
Company’s request, to consent to and join in any action to
enforce such rights; and (c) hereby grants to Company a perpetual,
irrevocable, fully paid-up, royalty-free, transferable, sub
licensable (through multiple levels of sublicenses), worldwide
right and license to use, reproduce, distribute, display and
perform (whether publicly or otherwise), prepare derivative works
of and otherwise modify, make, have made, sell, offer to sell,
import and otherwise use, disclose and exploit (and have others
exercise such rights on behalf of Company) all or any portion of
Company Intellectual Property, in any form or media (now known or
later developed). The foregoing license includes, without
limitation, the right to make any modifications to Company
Intellectual Property regardless of the effect of such
modifications on the integrity of Company Intellectual Property,
and to identify Employee, or not to identify Employee, as one or
more authors of or contributors to Company Intellectual Property or
any portion thereof, whether or not Company Intellectual Property
or any portion thereof has been modified.
(iii) Employee
agrees to assist Company in connection with any demands, reissues,
oppositions, litigation, controversy or other actions involving any
item of Company Intellectual Property.
(iv)
Employee agrees to undertake the
foregoing obligations both during and after Employee’s
employment with Company, without charge, but at Company’s
expense with respect to Employee’s reasonable out-of-pocket
costs. Employee further agrees that Company may, in its sole
discretion, deem Company Intellectual Property as a Trade Secret,
in which case Employee will comply with the Confidential
Information provisions in this Agreement.
10. Acknowledgment
of Company’s Goodwill. Employee acknowledges that Company has
expended and will continue to expend considerable time, effort and
resources to develop and market its products and services, that the
relationships between Company and its employees, independent
contractors, customers, prospective customers, vendors, and
suppliers are valuable assets of Company and key to its success,
and that employees of Company establish close professional relationships with
other employees, independent contractors, customers, vendors, and
suppliers of Company in the course of their relationship with
Company, all of which constitute goodwill of Company
(“Goodwill”).
11. Noncompetition. In
order to prevent the improper use of Confidential Information,
Company Intellectual Property and Trade Secrets and the resulting
unfair competition and misappropriation of Goodwill and other
proprietary interests, Employee agrees that while Employee is
employed by Company and for a period of twelve (12) months
following termination of Employee’s employment for any reason
whatsoever, whether such termination is voluntary or involuntary,
and regardless of Cause, Employee shall not, directly or
indirectly, individually, with or through his spouse, within any
national or international geographic market area which is/was
serviced by Employee on behalf of Company during Employee’s
employment with Company, be involved in any business activity that
is directly or indirectly in competition with any business activity
of Company or any product or service offered, sold or solicited by
Company.
12. Nonsolicitation
of Customers. In
order to prevent the improper use of Confidential Information,
Company Intellectual Property and Trade Secrets and the resulting
unfair competition and misappropriation of Goodwill and other
proprietary interests, Employee agrees that while Employee is
employed by Company and for a period of twelve (12) months
following the termination of Employee’s employment for any
reason whatsoever, whether such termination is voluntary or
involuntary, and regardless of Cause, Employee will not, directly
or indirectly, on Employee’s own behalf or by aiding any
other individual or entity, call on, solicit the business of, sell
to, service, or accept business from, any of Company’s
customers (with whom Employee had personal contact and did business
with during the twelve (12) month period immediately prior to the
termination of Employee’s employment) for the purpose of
providing said customers with products and/or services of the type
or character typically provided to such customers by
Company.
13. Nonsolicitation
of Vendors/Employees. In order to prevent the improper use
of Confidential Information, Company Intellectual Property and
Trade Secrets and the resulting unfair competition and
misappropriation of Goodwill and other proprietary interests,
Employee agrees that while Employee is employed by Company and for
a period of twelve (12) months following the termination of
Employee’s employment for any reason whatsoever, whether such
termination is voluntary or involuntary, and regardless of Cause,
Employee will not, directly or indirectly, on Employee’s own
behalf or by aiding any other individual or
entity:
(a) Encourage,
discourage, interfere with, or otherwise cause, in any manner, any
business partner, independent contractor, vendor or supplier of
Company to curtail, sever, or alter its relationship or business
with Company; or
(b) Employ
or solicit for employment any employee of Company with whom
employee worked and had personal contact while employed by Company,
except to the extent such employment or solicitation for employment
is for a business that is not competitive with the business,
products or services offered or provided by Company and cannot
adversely affect Company’s relationship or volume of business
with its customers.
14. Reasonable
Restrictions.
(a) Applicable
to any Status. Employee acknowledges and agrees that
the post-employment obligations of this Agreement shall be
applicable to Employee regardless of whether Employee engages in
any such competing business activity directly (or indirectly via
personal contacts) as an individual or as a sole proprietor,
stockholder, partner, member, officer, director, employee, agent,
consultant, or independent contractor of any other
entity.
(b) Reasonable
Restriction. In signing this Agreement, Employee is
fully aware of the restrictions that this Agreement places upon
Employee’s future employment or contractual opportunities
with someone other than Company. However, Employee
understands and agrees that Employee’s employment by Company,
Employee’s privileged position within Company, and
Employee’s access to Confidential Information and Trade
Secrets of Company and Company Intellectual Property makes such
restrictions both necessary and reasonable. Employee
acknowledges and agrees that the restrictions hereby imposed
constitute reasonable protections of the legitimate business
interests of Company and that they will not unduly restrict
Employee’s opportunity to earn a reasonable living following
the termination of Employee’s employment.
15. Remedies.
(a) Employee
acknowledges that compliance with this Agreement is necessary to
protect the business and Goodwill of Company and a breach of this
Agreement will cause irreparable and continuous damage Company for
which money damages may not be adequate. In addition, the
parties agree that, in the event of a breach or threatened breach
to this Agreement, the non-breaching party shall be entitled to
(a) an injunction to prevent the continuation of such harm,
(b) money damages insofar as they can be determined and
(c) reasonable attorneys’ fees and costs. Nothing
in this Agreement, however, shall be construed to prohibit the
non-breaching party from also pursuing any other remedy, the
parties having agreed that all remedies shall be cumulative.
The obligations contained in this Agreement shall survive any
termination of Employee’s employment, regardless of the
reason for the termination.
(b) Because
the Employee’s services are unique and because the Employee
has access to certain Confidential Information Company Intellectual
Property, the parties hereto agree that money damages would be an
inadequate remedy for any breach of this Agreement.
Therefore, in the event of a breach of Sections 8, 9, 11, 12
and 13 of this Agreement, the Company and any of its Affiliates or
their successors or assigns may, in addition to other rights and
remedies existing in their favor at law or in equity, apply to any
court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any
violations of, the provisions hereof. The Employee agrees not
to claim that the Company has adequate remedies at law for a breach
of Sections 8, 9, 11, 12 and 13, as a defense against any attempt
by the Company to obtain the equitable relief described in this
Section 15.
(c) In
addition to the foregoing, and not in any way in limitation
thereof, or in limitation of any right or remedy otherwise
available to the Company, if the Employee violates any provision of
the foregoing Sections 8, 9, 11, 12 and 13, any severance payments
then or thereafter due from the Company to the Employee shall be
terminated forthwith and the Company’s obligation to pay and
the Employee’s right to receive such severance payments shall
terminate and be of no further force or effect, if and when
determined by a court of competent jurisdiction, in each case
without limiting or affecting the Employee’s obligations (or
terminating the Non-Compete Period) under such Sections 8, 9, 11,
12 and 13, or the Company’s other rights and remedies
available at law or equity.
16. Assignability.
This Agreement and any rights, duties and obligations of the
Employee are personal to Employee, and are not assignable by
Employee. Company shall have the right to assign this
Agreement to a successor in interest. This Agreement is
binding upon, and shall inure to the benefit of, the parties hereto
and the personal representatives and heirs of Employee and the
successors and assigns of Company.
17. Notices. All
notices and other communications provided for in this Agreement
shall be validly given, made or served if in writing and delivered
personally by hand, by a nationally recognized overnight courier
service (i.e., FedEx or United Parcel Service), by United
States certified or registered first class mail, postage prepaid
with return receipt requested or by facsimile transmission.
Each such notice, consent, request, instruction, approval,
demand or other communication shall be effective if delivered
personally by hand or by a nationally recognized overnight courier
service, when delivered at the address specified in this Section;
if delivered by United States certified or registered first class
mail, on the date appearing on the return receipt therefor; and if
delivered by facsimile transmission, when such facsimile
transmission is transmitted to the facsimile transmission number
specified in this Section and the appropriate confirmation is
received. In the event that a party is unable to deliver a notice,
consent, request, instruction, approval, demand or other
communication due to the inaccuracy of the address or facsimile
transmission number provided by the other party pursuant to this
Section, or the other party’s failure to notify the party of
a change of its address or facsimile transmission number as
specified pursuant to this Section, such notice, consent, request,
instruction, approval, demand, or other communication shall be
deemed to be effective upon confirmation by a nationally recognized
overnight courier service of its failure to complete delivery to
the other party’s address as set forth in this Section (or
other address duly given to the party by the other party in
accordance with this Section).
Addresses
and facsimile transmission numbers for notices (unless and until
written notice is given of any other address or facsimile
transmission number):
|
|
|
|
If to
Company, to:
Xxxxxx
Xxxx
0000 X.
000xx
Xxxxxx
Xxxxx,
XX 00000
|
If to
Employee, to:
Xxxxxxx
Xxxx
00000
Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX
00000
|
18. Governing
Law and Venue. This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Nebraska, without regard
to its conflict of laws doctrine. Each party agrees that any
action by either party to enforce the terms of this Agreement may
be brought by the other party in an appropriate state or federal
court in Nebraska and waives all objections based upon lack of
jurisdiction or improper or inconvenient venue of any such
court.
19. Entire
Agreement. This
Agreement, including the recitals to this Agreement, which are
incorporated herein by this reference, constitutes the entire
agreement of the parties relating to the subject matter of this
Agreement, and supersedes any prior agreements or understandings,
written or oral, between the parties with respect to the subject
matter of this Agreement. The previous sentence
notwithstanding, Employee expressly acknowledges that Employee may
be subject to additional policies and agreements instituted for the
purpose of protecting Company’s Confidential Information
and/or Intellectual Property; as such, Employee expressly
acknowledges that all such policies and agreements shall be used
together with this Agreement to protect such interests of Company
to the fullest extent allowed by law. No supplement,
modification or amendment of this Agreement shall be binding unless
executed in writing by all of the parties to this Agreement.
The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner
affect the right of such party at a later time to enforce the same.
No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed
in writing by the party making the waiver. Employee
acknowledges that Employee has had adequate opportunity to consider
and secure legal advice relative to this Agreement.
20. Reformation
and Severability. Employee and Company intend and agree
that if a court of competent jurisdiction determines that the scope
of any provision of this Agreement is too broad to be enforced as
written, the court should reform such provisions to such narrower
scope as it determines to be enforceable. Employee and
Company further agree that if any provision of this Agreement is
determined to be unenforceable for any reason, and such provision
cannot be reformed by the court as anticipated above, such
provision shall be deemed separate and severable and the
unenforceability of any such provisions shall not invalidate or
render unenforceable any of the remaining provisions
hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
By: /s/ Xxxxxx
Xxxx
Xxxxxx Xxxx
Chief Executive Officer
EMPLOYEE
By: /s/ Xxxxxxx
Xxxx
Xxxxxxx Xxxx
Employee
