EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of January 1st, 2010
(the “Effective Date”), is by and between InovaChem, Inc., a Delaware
corporation (the “Company”), and Xxxx Xxxxxxxx (the “Executive”).
WITNESSETH:
WHEREAS,
the Company desires to employ the Executive as the Company’s Executive Chairman
of the Board of Directors of the Company (“Executive Chairman”), Chief Operating
Officer (“CEO”),and the Executive desires to serve as the Executive Chairman and
CEO on the terms and conditions contained herein; and
WHEREAS,
the Company desires to compensate the Executive for a minimum of a three (3)
year term at an annual base salary of $180,000, plus the issuance of an options
to purchase nine hundred thousand (900,000) shares of common stock of the
Company through its stock option plan;
NOW
THEREFORE, in consideration of the mutual benefits to be derived from this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Executive
hereby agree as follows:
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1.
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Term of Employment;
Office and Duties.
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(a) Commencing
on the Effective Date (the “Employment Date”), and for an initial term ending on
January 1st, 2013 (the “Initial Term”), the Company shall employ the Executive
as a senior executive of the Company with the title of Executive Chairman and
CEO, the Executive shall perform all duties and responsibilities which are
consistent with the positions and such additional duties and responsibilities
consistent with such positions as may from time to time be assigned to the
Executive by the Board of Directors. Executive agrees to perform such
duties and discharge such responsibilities in accordance with the terms of this
Agreement. This Agreement shall be automatically renewed for an additional
one (1) year term (the “Renewal Period”) unless terminated by either party by
written notice to the other party at least ninety (90) days prior to the
expiration of the Agreement. The Initial Term and any Renewal Period that
has commenced shall be collectively referred to herein as the “Term” in effect
as of the relevant time.
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2.
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Compensation and
Benefits.
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For all
services rendered by the Executive in any capacity during the period of
Executive’s employment by the Company, including without limitation, services as
an executive officer of the Company or any subsidiary, affiliate or division
thereof, from and after the Effective Date, the Executive shall be compensated
as follows:
(a) Base Salary. The
Company shall pay the Executive a fixed salary (“Base Salary”) at a rate
of one hundred and eighty thousand US Dollars (US $180,000) per year. The
Board of Directors may periodically review the Executive’s Base Salary and may
determine to increase (but not decrease) the Executive’s salary, in accordance
with such policies as the Company may hereafter adopt from time to time, if it
deems appropriate.
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(b) Signing Bonus. The
Company shall pay to the Executive a signing bonus of $30,000 within ten days of
the execution of this contract.
(c) Bonus. Executive
shall be entitled to receive an annual bonus in the sole and absolute discretion
of the Board of Directors of the Company. The Company anticipates that said
bonus would be for 100% of the Executive’s base salary.
(d) Fringe Benefits, Option
Grants and
Miscellaneous Employment Matters.
(i) The
Executive shall be entitled to participate in such disability, health and life
insurance and other fringe benefit plans or programs offered to all employees of
the Company, as well as to the key executive employees of Company, including a
Section 401(k) and retirement plan of the Company as may be established from
time to time by the Board of Directors, subject to the rules and regulations
applicable thereto. In addition, the Executive shall be entitled to the
following benefits:
(ii) Contemporaneous
with the execution of this Employment Agreement, the Executive is to receive a
grant (the “Stock Option Grant”), pursuant to the 2010 Stock Option Plan it
intends to adopt, of stock options (the “Stock Options”) to purchase one
nine hundred thousand (900,000) shares at an exercise price of $0.45 per share.
The Stock Options shall have a term of ten (10) years, shall become exercisable
when vested, and shall vest pro rata in 24 equal monthly installments (1/24th
each at the end of each fiscal month), with the first installment vesting on the
Effective Date. In the event a Change of Control (as set forth in Rule 405 of
the Securities Act of 1933), or sale of substantially all of the assets of the
Company or the merger out of existence of the Company should occur all options
will be vested immediately . The Executive shall be eligible for additional
Stock Option Grants as the Company may establish from time to time with respect
to periods during which he is employed by the Company. Notwithstanding the
foregoing, the Stock Options shall terminate immediately following a termination
of the Executive for “Cause” and upon 180 days upon the voluntary
termination of service by the Executive that is not for “Good
Reason.”
(e) Withholding and Employment Tax.
Payment of all compensation hereunder shall be subject to customary withholding
tax and other employment taxes as may be required with respect to compensation
paid by an employer/corporation to an employee.
(f) Paid Leave. During
the Term, the Executive shall be entitled to five (5) weeks of Paid Time Off
(PTO) per year as may be provided by the Company in accordance with the most
favorable plans, policies, programs and practices of the Company. Planned
PTO (for example, vacation) shall be taken at such times and intervals as shall
be determined mutually by the Executive and the Company. Up to two (3)
weeks of accrued, unused PTO may be carried over from year to year during the
Term, up to a limit of 4 weeks in addition to Term’s entitled PTO. In the
event of the termination of the Executive’s employment without Cause, the
Executive shall be entitled to cash compensation for PTO not used as of the
effective date of termination to the extent that such PTO has been accrued
during the calendar year in which such termination occurs. The Executive
will entitled to paid holiday in accordance with policies applicable to all
full-time regular employees in accordance with the then current policies of the
Company.
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3.
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Business
Expenses.
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The
Company shall pay or reimburse all reasonable travel and entertainment expenses
incurred by the Executive in connection with the performance of his duties under
this Agreement, including travel to offices and facilities in the United States
and abroad, reimbursement for attending out-of-town meetings of the Board of
Directors, and such other travel as may be required or appropriate in
Executive’s discretion, consistent with duly approved Company budgets, to
fulfill the responsibilities of his office, all in accordance with such policies
and procedures as the Company may from time to time establish for senior
officers and as required to preserve any deductions for federal income taxation
purposes to which the Company may be entitled and subject to the Company’s
normal requirements with respect to reporting and documentation of such
expenses. The Company shall also pay or reimburse Executive for all membership
fees and dues in appropriate professional associations and organizations
utilized by Executive in the course of his service for the Company, as well as
all expenses incurred by the Executive for Executive’s cellular telephone and
portable text messaging including monthly service charges, equipment maintenance
and all other ancillary charges including, but not limited to, text messaging,
paging, and wireless communications.
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4.
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Termination of
Employment.
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Notwithstanding
any other provision of this Agreement, Executive’s employment with the Company
may be terminated upon written notice to the other party as
follows:
(a) By
the Company, in the event of the Executive’s death or Disability (as hereinafter
defined) or for Cause (as hereinafter defined). For purposes of this Agreement,
“Cause” shall mean either: (i) the indictment of, or the bringing of formal
charges against Executive on charges involving criminal fraud or embezzlement;
(ii) the indictment of, or the brining of formal charges against Executive of a
crime involving an act or acts of dishonesty, fraud or moral turpitude by the
Executive, which act or acts constitute a felony; (iii) Executive negligently or
knowingly having caused the Company to violate the Company’s Bylaws or other
policies; (iv) Executive having committed acts or omissions constituting gross
negligence or willful misconduct with respect to the Company, including with
respect to any valid contract to which the Company is a party; (v) Executive
having committed acts or omissions constituting a breach of Executive’s duty of
loyalty or fiduciary duty to the Company or any material act of dishonesty or
fraud with respect to the Company which are not cured or substantially cured to
the satisfaction of the Board of Directors of the Company in a reasonable time,
which time shall be at least 5 days from receipt of written notice from the
Company of such material breach; (vi) Executive having committed acts or
omissions constituting a material breach of this Agreement which are not cured
or substantially cured to the satisfaction of the Board of Directors of the
Company in a reasonable time, which time shall be at least 5 days from receipt
of written notice from the Company setting forth with specificity the
particulars of any such material breach as well as the corrective actions
required. A determination that Cause exists as defined in clauses (iv), (v), or
(vi) (as to this Agreement) of the preceding sentence shall be made by at least
a majority of the members of the Board of Directors. For purposes of this
Agreement, “Disability” shall mean the inability of Executive, in the reasonable
judgment of a physician jointly appointed by the Executive and Board of
Directors, to perform, even with reasonable accommodation, his duties of
employment for the Company or any of its subsidiaries because of any physical or
mental disability or incapacity, where such disability shall exist for an
aggregate period of more than 30 days in any 365-day period. The Company
shall by written notice to the Executive specify the event relied upon for
termination pursuant to this Section 4(a), and Executive’s employment hereunder
shall be deemed terminated as of the date of such notice. In the event of any
termination under this Subsection 4(a), the Company shall pay all amounts then
due to the Executive under Section 2 (a) of this Agreement for any portion of
the payroll period worked but for which payment had not yet been made up to the
date of termination, and, if such termination was for Cause, the Company shall
have no further obligations to Executive under this Agreement, and any and all
options granted hereunder shall terminate according to their terms; provided,
however, that in the event of a termination for Cause pursuant to clause (vi)
above, the Company shall continue to pay to Executive the Base Salary (at a
monthly rate equal to the rate in effect immediately prior to such termination)
for nine (9) months from the date of termination, when, as and if such payments
would have been made in the absence of Executive’s termination and any and all
options granted hereunder shall terminate according to their
terms.
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(b) By
the Company, in the absence of Cause, for any reason and in its sole and
absolute discretion, provided that in such event the Company shall, as
liquidated damages or severance pay, or both, continue to pay to Executive the
Base Salary (at a monthly rate equal to the rate in effect immediately prior to
such termination) for the longer of (x) the remaining Term or (y) twelve (12)
months from the date of termination (the “Termination Payments”), when, as and
if such payments would have been made in the absence of Executive’s termination.
The Termination Payments shall be made regardless of Executive’s subsequent
re-employment as long as any new employment is not in violation of Sections 5 or
6 of this Agreement.
(c) By
the Executive for “Good Reason,” (as the Executive shall reasonably determine in
good faith) which shall be deemed to exist: (i) if the Company’s Board of
Directors or that of any successor entity of the Company fails to appoint or
reappoint the Executive or removes the Executive from the title and/or office of
Executive Chairman and CEO of the Company or from any successor entity operating
the Company; (ii) if Executive is assigned any duties materially inconsistent
with the duties or responsibilities of the Executive Chairman of the
Company as contemplated by this Agreement or any other action by the Company
that results in a material diminution in such position, authority, duties, or
responsibilities, excluding an isolated, insubstantial, and inadvertent action
not taken in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive (but not excluding changes
resulting from a sale of the Company, whether by merger, tender offer or
otherwise) provided that Executive shall act within 30 days of becoming aware of
any such diminution in the scope of his duties, responsibilities, authority
or position; (iii) if the Company shall breach or shall have continued to fail
to comply with any material provision of this Agreement after a 30-day period to
cure (if such failure is curable) following written notice to the Company of
such non-compliance; or (iv) upon a change in control of the Company or within
twelve (12) months of any such change in control (for these purposes the term
“change in control” shall have the meaning set forth in Rule 405 of the
Securities Act of 1933), or within twelve (12) months of a sale of substantially
all of the assets of the Company or the merger out of existence of the
Company. In the event of any termination for “Good Reason” under this
Section 4(c), the Company shall, as liquidated damages or severance pay, or
both, pay the Termination Payments, as defined in (b) of this Section 4, to
Executive, when, as and if such payments would have been made in the absence of
Executive’s termination.
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(d) During
any period in which Executive is obligated not to compete with the Company
pursuant to Section 5 hereof (unless Executive was terminated for Cause as
defined herein), Executive and his family shall continue to be covered by the
Company’s life, medical, health and death plans. Such coverage shall be at the
Company’s expense to the same extent as if Executive were still employed by the
Company. In the event of a termination pursuant to Sections 4(b) or 4(c), the
Company shall provide to Executive the pro-rata share of his annual bonus, to
the extent one is awarded by the Compensation Committee the consideration of
which shall be taken in good faith, giving a full month’s credit for any partial
month worked in that bonus year. Additionally, in the event of a termination
pursuant to Sections 4(b) or 4(c), the Company shall provide to Executive, at
the Company’s expense, outplacement services of a nature customarily provided to
a senior executive. Notwithstanding the foregoing, the obligations of the
Company pursuant to this Section 4(d) shall remain in effect no longer than the
term of the Termination Payments.
(e) In
the event that any amounts payable and/or any benefits provided to the Executive
under the terms of this Agreement and/or under any other plan, agreement or
arrangement by which he is to receive payments or benefits in the nature of
compensation would constitute “excess parachute payments” as that term is
defined for purposes of Section 280G of the Internal Revenue Code of 1986, as
amended (“Code”) and Treasury Regulations promulgated pursuant thereto, then the
amounts payable under the terms of this Agreement and/or under any other plan,
agreement or arrangement shall be reduced so that no payments are deemed “excess
parachute payments.” Any decisions regarding this requirement or implementation
of reductions shall be made by tax counsel selected by the Company.
(f) If
any payment to Executive under the terms of this Agreement is determined to
constitute a payment of nonqualified deferred compensation for purposes of
Section 409A of the Code, such payment shall be delayed until the date that is
six months after the date of Executive’s separation from service with the
Company, so as to comply with the special rule for certain “specified employees”
set forth in Code Section 409A(a)(2)(B)(i) unless it is determined that
immediate distribution is permissible (and does not trigger any additional tax
liability pursuant to Code Section 409A(a)(1)) pursuant to Code Section
409A(a)(2)(A)(v) by reason of being payable in connection with a change in
the ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company.
(g) The
Executive agrees that as of or following the termination of the Executive’s
employment for any reason or for no reason, he shall immediately resign as a
member of the Company’s Board of Directors if he is a member of the
Board.
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5.
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Non-Competition.
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During
the period of Executive’s employment hereunder and during the lesser period, if
any, during which payments are required to be made to the Executive by the
Company pursuant to Sections 4(b) or 4(c), or for a period of one year, the
Executive shall not, within any state or foreign jurisdiction in which the
Company or any subsidiary of the Company is then providing services or products
or marketing its services or products (or engaged in active discussions to
provide such services), or within a fifty (50) mile radius of any such state or
foreign jurisdiction, directly or indirectly own any interest in, manage,
control, participate in, consult with, render services for, or in any manner
engage in any business engaged or proposed to be engaged in by the Company.
Investments in less than five percent of the outstanding securities of any class
of a corporation subject to the reporting requirements of Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, shall not be
prohibited by this Section 5. The provisions of this Section 5 are subject to
the provisions of Section 14 of this Agreement.
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6.
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Inventions and
Confidential Information.
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The
parties hereto recognize that a major need of the Company is to preserve its
specialized knowledge, trade secrets, and confidential information. The strength
and good will of the Company is derived from the specialized knowledge, trade
secrets, and confidential information generated from experience with the
activities undertaken by the Company and its subsidiaries. The disclosure of
this information and knowledge to competitors would be beneficial to them and
detrimental to the Company, as would the disclosure of information about the
marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, and similar items of the Company and its
subsidiaries. The Executive acknowledges that the proprietary information,
observations and data obtained by him while employed by the Company concerning
the business or affairs of the Company are the property of the Company. By
reason of his being a senior executive of the Company, the Executive has or will
have access to, and has obtained or will obtain, specialized knowledge, trade
secrets and confidential information about the Company’s operations and the
operations of its subsidiaries, which operations extend throughout the United
States. For purposes of this Section 6, “Company” shall mean the Company, its
affiliates and each of its controlled subsidiaries. Therefore, subject to the
provisions of Section 14 hereof, the Executive hereby agrees as follows,
recognizing that the Company is relying on these agreements in entering into
this Agreement: During the period of Executive’s employment with the Company and
thereafter, the Executive will not use, disclose to others, or publish or
otherwise make available to any other party any inventions or any confidential
business information about the affairs of the Company, including but not limited
to confidential information concerning the Company’s products. “Confidential
Information” shall include commercial or trade secrets about Company’s products,
methods, engineering designs and standards, analytical techniques, technical
information, customer information, employee information, or financial and
business records, any of which contains proprietary information created or
acquired by the Company and which information is held in confidence by Company.
Confidential Information does not include information which: (i) becomes
generally available to the public, unless said Confidential Information was
disclosed in violation of a confidentiality agreement; or (ii) becomes available
to Executive on a non-confidential basis from a source other than the Company or
its agents, provided that such source is not bound by a confidentiality
agreement with the Company.
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(a) Disclosure and
Assignment. The Executive will promptly disclose in writing to the
Company complete information concerning each and every invention, discovery,
improvement, device, design, apparatus, practice, process, method or product
pertaining to Electric Motors and the Control thereof, whether patentable or
not, made, developed, perfected, devised, conceived or first reduced to practice
by the Executive, either solely or in collaboration with others, during the
period of his employment by the Company, whether or not during regular working
hours, relating either directly or indirectly to the business of the Company, or
the practices or techniques in carrying on the Company’s business
(“Developments”). The Executive, to the extent that he has the legal right
to do so, hereby acknowledges that any and all of the Developments regarding
Electric Motors and the Control thereof are the property of the Company and
hereby assigns and agrees to assign to the Company any and all of the Employee’s
right, title and interest in and to any and all of the Developments during the
period of his employment by the Company. At the request and expense of the
Company, the Executive will confer with the Company and its representatives for
the purpose of disclosing to the Company all Developments accomplished during
the period of his employment by the Company, as the Company shall reasonably
request during the period ending one year after termination of the Executive’s
employment with the Company.
(b) Limitation on Section
6(b). The provisions of Section 6(b) shall not apply to any
Development which the Employee can demonstrate through written records meet all
of the following conditions:
(i) such
Development was developed entirely on the Executive’s own time not in breach of
this Agreement;
(ii) such
Development was made without the use of any Company equipment, supplies,
facility or trade secret information;
(iii) such
Development does not relate (A) directly to the business of the Company or (B)
to the Company’s actual or demonstrably anticipated research or development;
and
(iv) such
Development does not result from any work performed by the Executive for the
Company
(c) During
the period of Executive’s employment with the Company and for twelve (12) months
thereafter, (a) the Executive will not directly or indirectly through another
entity induce any employee, agent or representative of the Company to leave the
Company’s employ or in any way interfere with the relationship between the
Company and any such person or (b) tortuously interfere with the Company’s
business relationship with any customer, supplier, licensee, licensor or other
business relation of the Company.
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7.
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Indemnification.
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The
Company will indemnify (and advance the costs of defense of) and hold harmless
the Executive (and his legal representatives) to the fullest extent permitted by
the laws of the state in which the Company is incorporated, as in effect at the
time of the subject act or omission, or by the Certificate of Incorporation and
Bylaws of the Company, as in effect at such time or on the date of this
Agreement, whichever affords greater protection to the Executive, and the
Executive shall be entitled to the protection of any insurance policies the
Company may elect to maintain generally for the benefit of its executive
officers, against all judgments, damages, liabilities, costs, charges and
expenses whatsoever incurred or sustained by him or his legal representative in
connection with any action, suit or proceeding to which he (or his legal
representatives or other successors) may be made a party by reason of his being
or having been an officer of the Company or any of its subsidiaries except that
the Company shall have no obligation to indemnify Executive for liabilities
resulting from conduct of the Executive with respect to which a court of
competent jurisdiction has made a final determination that Executive committed
gross negligence or willful misconduct.
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8.
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Litigation
Expenses.
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In the
event of any litigation or other proceeding between the Company and the
Executive with respect to the subject matter of this Agreement and the
enforcement of the rights hereunder, the losing party shall reimburse the
prevailing party for all of his/its reasonable costs and expenses relating to
such litigation or other proceeding, including, without limitation, his/its
reasonable attorneys’ fees and expenses.
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9.
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Consolidation; Merger;
Sale of Assets; Change of
Control.
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Nothing
in this Agreement shall preclude the Company from combining, consolidating or
merging with or into, transferring all or substantially all of its assets to, or
entering into a partnership or joint venture with, another corporation or other
entity, or effecting any other kind of corporate combination provided that the
corporation resulting from or surviving such combination, consolidation or
merger, or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of the
Company hereunder. Upon such a consolidation, merger, transfer of assets or
formation of such partnership or joint venture, this Agreement shall inure to
the benefit of, be assumed by, and be binding upon such resulting or surviving
transferee corporation or such partnership or joint venture, and the term
“Company,” as used in this Agreement, shall mean such corporation, partnership
or joint venture or other entity, and this Agreement shall continue in full
force and effect and shall entitle the Executive and his heirs, beneficiaries
and representatives to exactly the same compensation, benefits, perquisites,
payments and other rights as would have been their entitlement had such
combination, consolidation, merger, transfer of assets or formation of such
partnership or joint venture not occurred.
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10.
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Survival of
Obligations.
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Sections
4, 5, 6, 7, 8, 9, 11, 12 and 14 shall survive the termination for any reason of
this Agreement (whether such termination is by the Company, by the Executive,
upon the expiration of this Agreement or otherwise).
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11.
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Executive’s
Representations.
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The
Executive hereby represents and warrants to the Company that : (i) the
execution, delivery and performance of this Agreement by the Executive do not
and shall not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which the
Executive is a party or by which he is bound, (ii) the Executive is not a party
to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of the Executive, enforceable in accordance
with its terms. The Executive hereby acknowledges and represents that he has
consulted with legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
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12.
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Company’s
Representations.
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The
Company hereby represents and warrants to the Executive that (i) the execution,
delivery and performance of this Agreement by the Company do not and shall not
conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Company is a party or by
which it is bound; (ii) upon the execution and delivery of this Agreement by the
Executive, this Agreement shall be the valid and binding obligation of the
Company, enforceable in accordance with its terms; and (iii) the Company’s
representations made by the Board of Directors and members of senior management
to the Executive prior to the execution of this Agreement regarding the science,
business or fiscal propriety of the Company are accurate in all material
respects.
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13.
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Enforcement.
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Because
the Executive’s services are unique and because the Executive has access to
confidential information concerning the Company, the parties hereto agree that
money damages would not be an adequate remedy for any breach of this Agreement.
Therefore, in the event of a breach or threatened breach of any provision of
this Agreement, the Company may, in addition to other rights and remedies
existing in its favor, 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 (without posting a bond or other
security).
Severability.
In case
any one or more of the provisions or part of a provision contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect in any jurisdiction, such invalidity, illegality or
unenforceability shall be deemed not to affect any other provision or part of a
provision of this Agreement, nor shall such invalidity, illegality or
unenforceability affect the validity, legality or enforceability of this
Agreement or any provision or provisions hereof in any other jurisdiction; and
this Agreement shall be reformed and construed in such jurisdiction as if such
provision or part of a provision held to be invalid or illegal or unenforceable
had never been contained herein and such provision or part reformed so that it
would be valid, legal and enforceable in such jurisdiction to the maximum extent
possible. In furtherance and not in limitation of the foregoing, the Company and
the Executive each intend that the covenants contained in Sections 5 and 6 shall
be deemed to be a series of separate covenants, one for each and every state of
the United States and any foreign country set forth therein. If, in any judicial
proceeding, a court shall refuse to enforce any of such separate covenants, then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings. If, in any
judicial proceeding, a court shall refuse to enforce any one or more of such
separate covenants because the total time, scope or area thereof is deemed to be
excessive or unreasonable, then it is the intent of the parties hereto that such
covenants, which would otherwise be unenforceable due to such excessive or
unreasonable period of time, scope or area, be enforced for such lesser period
of time, scope or area as shall be deemed reasonable and not excessive by such
court.
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14.
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Entire Agreement:
Amendment.
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This
Agreement sets forth the entire agreement and understanding of the parties
hereto with respect to the matters covered hereby and supersedes any prior
agreement or understanding. This Agreement may not be amended, waived, changed,
modified or discharged except by an instrument in writing executed by or on
behalf of the party against whom enforcement of any amendment, waiver, change,
modification or discharge is sought. No course of conduct or dealing shall be
construed to modify, amend or otherwise affect any of the provisions
hereof.
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15.
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Notices.
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All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given: if physically delivered,
upon delivery; if delivered by express mail or other expedited service, upon
delivery; or if mailed, postage prepaid, via certified mail, return receipt
requested, upon receipt; addressed as follows:
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(a)
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To
the Company:
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(b)
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To
the Executive:
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c/o
NuGen Mobility
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Xxxx
Xxxxxxxx
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00000
Xxxxxxxx Xxxx, #000
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000
X Xxxxxx XX
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Xxxxxxx,
XX 00000
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Xxxxxxxxxx,
XX
00000
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and / or
to such other persons and addresses as any party shall have specified in writing
to the other pursuant to this provision.
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16.
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Assignability.
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This
Agreement shall not be assignable by either party and shall be binding upon, and
shall inure to the benefit of, the heirs, executors, administrators, legal
representatives, successors and assigns of the parties. In the event that all or
substantially all of the business of the Company is sold or transferred, then
this Agreement shall be binding on the transferee of the business of the Company
whether or not this Agreement is expressly assigned to the
transferee.
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17.
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Governing
Law.
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This
Agreement shall be governed by and construed under the laws of the State of
Delaware.
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18.
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Waiver and Further
Agreement.
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Any
waiver of any breach of any terms or conditions of this Agreement shall not
operate as a waiver of any other breach of such terms or conditions or any other
term or condition, nor shall any failure to enforce any provision hereof operate
as a waiver of such provision or of any other provision hereof. Each of the
parties hereto agrees to execute all such further instruments and documents and
to take all such further action as the other party may reasonably require in
order to effectuate the terms and purposes of this Agreement.
10
|
19.
|
Headings of No
Effect.
|
The
paragraph headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the date first above written.
|
COMPANY:
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx,
M.D.
|
|
|
Xxxxxxx
Xxxxxxxx, M.D., Chairman of the Compensation Committee
|
||
|
EXECUTIVE:
|
||
|
By:
|
/s/ Xxxx Xxxxxxxx
|
|
|
Xxxx
Xxxxxxxx
|
||
11
