EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (the “Agreement”) effective July 1, 2009 (“Effective
Date”), is entered into between CENTER FOR WOUND HEALING, INC., a Nevada
corporation (the “Company”) with its principal place of business at 000 Xxxxx
Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, and Xxxxxxx X. Xxxxxxx (“Executive”) who
resides at 00000 X. Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, to provide the terms and
conditions for Executive’s employment with the Company and its affiliates from
time to time (together, the “Group”).
The
Company and Executive have agreed that Executive will be employed by the Company
and will serve as the Company’s Vice President, Finance, upon the terms and
conditions set forth below.
Accordingly,
and in consideration of the mutual obligations set forth in this Agreement,
which Executive and the Company agree are sufficient, Executive and the Company
agree as follows:
1. Term of
Employment. Subject
to the provisions of Paragraph 4 below, the initial term of this Agreement (the
“Initial Term”) begins on July 1, 2009 and ends on June 30, 2011. For avoidance
of doubt, Executive’s employment by the Company pursuant to this Agreement shall
be automatically renewed for an additional twelve (12) months following the end
of the Initial Term unless either Executive or the Company has provided written
notice of its or his intent not to renew on or before January 1, 2011 (a
“Renewal Term”). Following the first Renewal Term, Executive’s employment by the
Company pursuant to this Agreement shall be automatically renewed for successive
twelve (12) month periods (each, also a “Renewal Term”) following the end of the
prior Renewal Term unless either Executive or the Company has provided written
notice of its or his intent not to renew prior to the expiration of the prior
Renewal Term. Executive’s term of employment under this Agreement (the “Term”)
consists of the Initial Term and any Renewal Term(s). For avoidance of doubt,
“Term” as used in this Agreement shall not include any Renewal Term(s) unless
this Agreement is extended in accordance with this Paragraph 1.
2. Position and
Responsibilities.
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(a)
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Effective
July 1, 2009, Executive shall be employed as the Company’s Vice President,
Finance, with the general powers, authority and responsibilities that
accompany those positions. Such position and responsibilities will
continue unless a change is to them is agreed to by the Executive and the
Company.
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(b)
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As
Vice President, Finance, Executive shall report directly to the CEO and
shall have the duties and responsibilities that are typically performed by
a Vice President, Finance, as well as any other lawful executive duties
and executive offices assigned to Executive by the CEO consistent with
Executive’s position, the size of the Company and the qualified personnel
employed by the Company. Executive agrees to comply with such lawful
policies of the Company as may be adopted from time to time as are
applicable to him. Executive shall devote his full business time and best
efforts to the Company’s business and affairs. Notwithstanding the
foregoing, nothing herein shall preclude Executive from (i) serving on the
board of one or more universities or charitable organizations (subject to
the approval of the CEO, such approval not to be unreasonably withheld),
(ii) engaging in charitable activities and community affairs, (iii)
managing his personal investments and affairs, and (iv) maintaining a
network of business contacts, provided that any such activities listed in
(i), (ii), (iii) and (iv) above do not interfere in more than a de minimis
manner with the proper performance of his duties and responsibilities
hereunder and comply with the limitations set forth in the Company’s
Non-Competition, Non-Solicitation and Confidentiality agreement to be
signed by Executive along with this Employment
Agreement.
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(c)
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Executive’s
principal place of employment shall be the Company’s corporate
headquarters, currently located in Tarrytown, New York, but Executive
shall be required to engage in reasonable and customary business travel on
behalf of the Company including visiting existing facilities owned or
operated by the Company.
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(d)
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Executive’s
primary residence shall be in Gurnee,
Illinois.
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3.
Compensation
and Expense Reimbursement.
Executive
shall receive the following compensation and/or reimbursement for
expenses:
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(a)
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Base Salary. Executive’s
annual base salary for each fiscal year during the Term shall be $260,000,
payable in equal monthly or more frequent installments as are customary
under the Company’s payroll practices from time to time. The CEO will
review the Base Salary at least annually and may (or may not) increase it
at any time for any reason, in the CEO’s sole discretion. Executive’s Base
Salary (as increased from time to time) shall not be reduced without
Executive’s written consent.
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(b)
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Annual Performance
Bonus. In addition to the foregoing, Executive shall be eligible to
receive an annual cash performance bonus (the “Annual Bonus”) for each
fiscal year ending during the Term if Executive remains employed by the
Company on the last day of such fiscal year based on the annual EBITDA
targets and the Accounts Receivable DSO target as set forth in the
Company’s Business Plan. Subject to the provisions of Paragraph 4 hereof,
Payment of the Annual Bonus shall be made no later than October 31 after
the close of the applicable fiscal year. The amount of Executive’s Annual
Bonus shall be established by the CEO in the CEO’s sole discretion
following the close of the applicable fiscal
year.
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(c)
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Benefits. Executive
shall be eligible to participate in all Company benefit plans and programs
as are generally available to the Company’s senior executives, and
Executive’s benefits shall be based on the terms of the applicable plans
as established by the Company from time to time. Executive shall be
entitled to four (4) weeks paid vacation per calendar year, which vacation
shall be exercised with due regard to the then current requirements of the
Company’s business. Executive’s vacation entitlement may be reviewed by
the CEO and increased at the CEO’s
discretion.
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(d)
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Stock Options. Executive
was granted options to purchase four hundred thousand (400,000) shares of
common stock of the Company under the Company’s “Center for Wound Healing
2006 Stock Option Plan” (the “Option Plan”). The Company represents that
such shares are not currently registered, but agrees to provide Executive
with “piggyback” registration rights on all options then granted to the
Executive should the Company register the shares of any shareholder or
warrant holder of the Company’s stock, and shall enter into a Registration
Rights Agreement reasonably acceptable to Executive providing for such
“piggyback” registration rights. The terms of such option grant shall be
as follows:
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(i) Time Vesting. 250,000 of the
400,000 shares are fully vested upon execution of this Employment
Agreement.
(ii) Performance Vesting. The
remaining 150,000 Performance Vesting Options will vest as follows:
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(A)
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If
the Company achieves the annual EBITDA targets and the annual Accounts
Receivable DSO target as set forth in the Company’s Business Plan for
fiscal year ending June 30, 2010, then Executive’s option to purchase
100,000 shares of the Company’s common stock shall vest as of the last day
of the applicable Quarter.
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(B)
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If
the Company achieves the annual EBITDA targets and the annual Accounts
Receivable DSO target as set forth in the Company’s Business Plan for
fiscal year ending June 30, 2011, then Executive’s option to purchase
50,000 shares of the Company’s common stock shall vest as of the last day
of the applicable Quarter.
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(C)
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The
Company’s EBITDA shall be calculated by reference to the Company’s Form
10K following the review of such Form 10K by the Company’s outside
accountants. In the absence of fraud by Executive, the EBITDA calculated
in the manner set forth in this subparagraph shall be conclusive with
respect to the whether any of the vesting thresholds provided in Paragraph
3(g)(ii)(A-D) have been met.
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(iii) Change in Control. All of
Executive’s options shall become fully vested and exercisable immediately before
the effective time of a Change in Control as defined in Paragraph 4(a)(v)
below.
(iv) Term of Option. Executive’s
options shall remain outstanding for five (5) years following its date of grant.
To the extent Executive’s options have vested at the time of his termination of
employment, his options shall remain outstanding until the earlier of the end of
the option term or the date on which Executive exercises his
option.
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(e)
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Expense Reimbursement.
Executive shall be entitled to receive prompt reimbursement from the
Company of all travel, tolls, parking, entertainment and out-of-pocket
expenses which are reasonably and necessarily incurred by Executive in the
performance of his duties hereunder; provided, however, that Executive
properly accounts for such expenses in accordance with Company’s policies
as in effect from time to time. The Company, upon the sole approval of the
CEO, will reimburse Executive for the cost of a round-trip flight (coach
fare) between Chicago, IL and any New York Metro area airport for an
immediate family member; provided, however. Executive remains at the
Company’s corporate headquarters for two consecutive weeks. Annual dues
for AICPA and FEI will also be reimbursed by the Company as well as all
continuing education costs necessary to maintain Executive’s existing
certifications. All approved reimbursements shall be paid within a
reasonable time (not later than March 15 of Employee’s taxable year
following the taxable year in which an expense was incurred) following the
presentation by Employee of appropriate documentation to the Company. The
amount of expenses eligible for reimbursement during any taxable year of
Employee under this Agreement will not affect the expenses eligible for
reimbursement in any other taxable year of Employee, and Employee’s right
to reimbursement of expenses is not subject to liquidation or exchange for
another benefit.
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4.
Termination.
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(a)
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Termination of
Employment.
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(i)
Termination by the Company for
Cause. The CEO may terminate Executive’s employment for Cause at any time
upon written notice. “Cause” means any of the following: (1) Executive’s
material breach of this Agreement, breach of fiduciary duty having a material
adverse impact on the Company, material breach of the Company’s employment
policies applicable to him, or refusal to follow the lawful directives of the
CEO consistent with this Agreement that is not corrected (to the extent
correctable) within ten (10) days after delivery of written notice to Executive
with respect to such breach; (2) Executive’s material breach of a fiduciary duty
to the Company, material breach of the Company’s employment policies applicable
to him, refusal to follow the lawful directives of the CEO consistent with this
Agreement, or repeated breach of the same provision of this Agreement, each on
more than two (2) occasions, regardless of whether such breach has been or may
be corrected; (3) Executive’s indictment for or conviction of a felony or any
crime involving fraud; (4) Executive’s misappropriation of funds or material
property of the Company or any member of the Group; or (5) Executive’s material
dishonesty, disloyalty, or willful misconduct. Notwithstanding the foregoing,
any act, or failure to act, based upon the advice of counsel to the Company
shall be presumed to be done, or omitted to be done, by the Executive in good
faith and in the best interests of the Company, and shall not constitute Cause
as defined herein.
(ii) Termination by the Company without
Cause. The Company may terminate Executive’s employment under this
Agreement without Cause upon at least thirty (30) days’ prior written notice to
Executive.
(iii) Death or Disability.
Executive’s employment by the Company will immediately terminate upon
Executive’s death and at the option of either Executive or the Company,
exercisable upon written notice to the other party, may terminate upon the
Executive’s Disability. For purposes of this Agreement, “Disability” will occur
if (1) Executive becomes eligible for benefits under a long-term disability
policy provided by the Company, or (2) Executive has become unable, due to
physical or mental illness or incapacity, to substantially perform the essential
duties of Executive’s employment, with or without reasonable accommodation, for
a period of (A) 90 consecutive days or any consecutive waiting period during
which Executive is not eligible for long-term disability income benefits
pursuant to disability income policies provided by the Company, whichever is
less; or (B) or an aggregate of 120 days during any consecutive 12 month period,
as determined by an independent physician approved by the Company and Executive.
Executive agrees to be examined at the request of the Company by such
independent physician upon reasonable notice.
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(iv) Termination by Executive for Good
Reason. Executive may terminate his employment for Good Reason at any
time upon written notice to the Company. “Good Reason” shall mean the
occurrence, during the Term, of any of the following actions or failures to act,
but in each case only if (1) Executive objects in writing within thirty (30)
days of Executive having actual knowledge of such event, and (2) with respect to
subsections 1-5 below, such occurrence is not corrected (if correctable) by the
Company within ten (10) days after delivery of written notice to the CEO with
respect to such occurrence: (1) a material change in Executive’s duties,
reporting responsibilities, titles or elected or appointed offices as in effect
immediately prior to the effective date of such change; (2) any reduction in or
failure to pay when due any compensation or expense reimbursement to which
Executive is entitled pursuant to this Agreement; (3) requirement by the Company
for the Executive to relocate his primary residence; (4) the Company’s breach of
any material term of this Agreement.
(v) Termination as a result of a Change
in Control. Executive may terminate Executive’s employment under this
Agreement within 60 days of the occurrence of a Change in Control, as defined
herein. The term “Change in Control” means: a change in control of the Company
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act as in effect
at the time of such “change in control”, provided that such a change in control
shall be deemed to have occurred at such time as:
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(A)
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any
“person” (as that term is used in Sections 13(d) and 14(d)(2) of the
Exchange Act), is or becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) directly or indirectly, of securities
representing 45% or more of the combined voting power for election of
directors of the then outstanding securities of the Company or any
successor to the Company, provided, however, that for purposes of this
definition, the following transactions shall not constitute a Change in
Control: (1) any acquisition directly from the Company through a public
offering or private placement of shares of common stock (2) any
acquisition by the Company or an Affiliate, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any Affiliate, or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (1), (2) and (3) of
subsection (D) of this definition.
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(B)
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the
consummation of a sale or disposition (through one or more transactions)
of 50% or more of the assets or business of the Company;
or
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(C)
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the
consummation of any reorganization, merger, consolidation or share
exchange unless (1) the persons who were the beneficial owners of the
outstanding Shares of the common stock of the Company immediately before
the consummation of such transaction beneficially own more than 60% of the
outstanding Shares of the common stock of the successor or survivor
corporation in such transaction immediately following the consummation of
such transaction and (2) the number of Shares of the common stock of such
successor or survivor corporation beneficially owned by the persons
described in Paragraph 4(a)(v)(D)(l) immediately following the
consummation of such transaction is beneficially owned by each such person
in substantially the same proportion that each such person had
beneficially owned Shares of the Company’s common stock immediately before
the consummation of such transaction, provided (3) the percentage
described in Paragraph 4(a)(v)(D)(l) of the beneficially owned shares of
the successor or survivor corporation and the number described in
Paragraph 4(a)(v)(D)(2) of the beneficially owned shares of the successor
or survivor corporation shall be determined exclusively by reference to
the shares of the successor or survivor corporation which result from the
beneficial ownership of Shares of common stock of the Company by the
persons described in Paragraph 4(a)(v)(D)(l) immediately before the
consummation of such transaction.
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(vi) Termination by Executive without
Good Reason. Executive may terminate his employment under this Agreement
without Good Reason upon at least ninety (90) days’ prior written notice to the
Company.
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(b)
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Consequences of Termination of
Employment.
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(i)
Termination by the Company without
Cause or by Executive for Good Reason. If the Company terminates
Executive’s employment without Cause or provides written notice of its intent
not to renew as described in Paragraph 1, or if Executive terminates his
employment for Good Reason at any time during the Term, Executive shall receive
the benefits described in this Paragraph 4(b)(i), provided Executive executes a
release (in a form acceptable to the Company) of all claims he has or may have
against the Company. If Executive receives the benefits set forth in this
Paragraph 4(b)(i), Executive shall not be eligible for severance benefits from
any other plan, program or policy of the Company then in effect.
1. Continuation
of Base Salary. Executive shall be entitled to continuation of Executive’s
then-existing Base Salary for a period of twelve months after the termination of
his active employment.
2. Salary and Bonus due
Executive. Executive shall receive any accrued but unpaid Base Salary and
any Annual Bonus earned for any prior year(s) but not yet paid.
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3. Pro-Rata Payment of Annual
Bonus. Executive shall be entitled to a pro-rata amount of his Annual
Bonus for the fiscal year in which his employment terminates equal to his Target
Annual Bonus times the number of days elapsed in the applicable fiscal year
divided by 365, payable not later than two and one-half (2 Vz) months after the
close of the applicable fiscal year.
4. Payment of Employment
Benefits. Executive shall be entitled to payment of any accrued
employment benefits to which he might be entitled pursuant to this Agreement,
including, without limitation, payment for any vacation not yet used during the
calendar year in which the termination of employment takes place, pro-rated to
the termination date. In addition, for a period of six (6) months following
Executive’s termination of employment, the Company shall continue Executive’s
(including Executive’s family) participation in any health or medical benefit
plan(s) in which he was participating prior to his termination of employment, at
the Company’s expense, if permitted by the terms and conditions of such plans;
If such plans do not permit Executive’s continued participation, then the
Company shall reimburse Executive for amounts actually incurred by him for
continuation coverage under such plans pursuant to COBRA for a period of six (6)
months. Reimbursements under this paragraph shall be paid promptly and in all
events not later than March 15 of Employee’s taxable year following the taxable
year in which the applicable expenses were incurred. The amount of expenses
eligible for reimbursement during any taxable year of Employee under this
Agreement will not affect the expenses eligible for reimbursement in any other
taxable year of Employee, and Employee’s right to reimbursement of expenses is
not subject to liquidation or exchange for another benefit.
5. Vesting of Stock Options. Any
unvested Stock Options pursuant to Paragraph 3(d)(i) hereof shall immediately
vest and become exercisable pursuant to the applicable Stock Option Agreement(s)
for such options. In addition to the foregoing, should the Company’s Adjusted
EBITDA for the Quarter during which such termination takes place meet the
applicable Adjusted EBITDA vesting thresholds required by Paragraph 3(d)(ii),
then any unvested options that would have vested as a result of the Company’s
achieving such Adjusted EBITDA threshold shall vest and become exercisable
pursuant to the Stock Option Agreement for such options.
(ii) Termination by the Company for
Cause. If Executive’s employment with the Company is terminated by the
Company for Cause, Executive shall receive (A) any accrued but unpaid Base
Salary through the Term or twelve months, whichever is less; (B) any Annual
Bonus earned for any prior year(s) but not yet paid; and (C) payment of any
accrued employment benefits to which he might be entitled pursuant to this
Agreement. Nothing contained in this sub-paragraph shall limit any right of the
Company in law or equity.
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(iii) Termination as a result of a Change
in Control. If Executive terminates his employment due to a Change in
Control under Paragraph 4(a)(v), Executive shall be entitled to receive the
payments and benefits set forth in Paragraph 4(b)(i) above.
(iv) Termination by Executive without
Good Reason. If Executive terminates his employment due to Paragraph
4(a)(vi), Executive shall be entitled to receive the payments and benefits set
forth in Paragraph 4(b)(1) subparagraphs 1, 2, 3, and 4 only. Continuation of
Executive’s then-existing Base Salary under Paragraph 4(b)(i)(l) will be offset
by any cash earnings Executive generates from any business he becomes associated
with for a period of twelve months after the termination of his active
employment, including serving as a consultant or as an employee of an NGO firm,
educational institution or government agency. If cash earnings are earned as a
consultant, cash earnings shall be defined as the Executive’s billed hourly rate
paid to Executive less direct expense attributable to the billed hourly
rate.
(v) Transition Period. If
termination takes place as a result of Change in Control, by Executive without
Good Reason, or by expiration of Term, Executive will remain in active
employment and assist the Company, for a period of not more than 90 days after
notice of termination or expiration of Term (“Transition Period”), in
identifying, securing and training his replacement. Payments and benefits set
forth in Paragraph 4(b) will commence at the termination of the Transition
Period.
(vi) Required Delay for Payment to
Specified Employees. To the extent necessary to comply with the
restriction in Section 409A of the Code concerning payments to specified
employees, the first payment to Executive pursuant to this Paragraph 4(b) shall
be made at least six months and one day after Executive’s “separation from
service” (within the meaning of section 409A of the Code). The first payment
shall include any installments that would have been paid previously under
Paragraph 4(b) were it not for this special timing rule, plus interest on the
delayed installments at an annual rate (compounded monthly) equal to the federal
short-term rate (as in effect under Section 1274(d) of the Code on Executive’s
separation from service).
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5.
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Employment
Taxes.
All payments and other compensation under this Agreement shall be subject
to withholding of applicable taxes and other amounts required by law to be
withheld.
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6.
Indemnification. To the
fullest extent permitted by applicable law, the Company shall provide
indemnification for Executive under its Articles of Incorporation and Bylaws.
Executive shall be covered by the Company’s standard indemnification agreement
and by any director’s and officer’s liability insurance policy maintained by the
Company, subject to the terms of such agreement and/or policy(ies). The Company
shall maintain directors and officer’s liability insurance in amounts
appropriate for the Company’s size and business throughout the Term and for a
period of three (3) years thereafter.
7.
Successors. The
Company shall use commercially reasonable efforts to require (through
contractual arrangements or otherwise) any successor to the Company to all or
substantially all of the Company’s business and/or assets (whether a direct or
indirect successor, and whether by purchase, lease, merger, consolidation,
liquidation, or otherwise) to assume the obligations under this Agreement. In
case of any succession, the term “Company” shall refer to the successor. The
terms of this Agreement and all of Executive’s rights hereunder shall inure to
the benefit of, and be enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. Notwithstanding the foregoing, nothing contained herein
shall be construed as authorizing any assignment or other delegation by
Executive of his duties hereunder.
8.
No Third-Party
Beneficiaries. Except
as to any successor as provided in Paragraph 7 above, nothing in this Agreement
may confer upon any person or entity not a party to this Agreement any rights or
remedies of any nature or kind whatsoever under or by reason of this
Agreement.
9.
No Duty to
Mitigate.
Executive shall not be required to seek new employment or otherwise to mitigate
the payments contemplated by this Agreement; provided, however, that the
payments contemplated by Paragraph 4(b)(i)(l) of this Agreement (and to the
extent such provision is incorporated by reference by any other provision of
this Agreement) shall be offset by earnings that Executive may receive as
defined in Paragraph 4(b)(iv) during the period in which payments pursuant to
Paragraph 4(b)(iv) are being made by the Company. Moreover, any benefits or
reimbursement to which Executive is entitled pursuant to Paragraph 4(b)(i)(4)
shall cease if Executive obtains comparable heath or medical insurance coverage
with another employer. Nothing contained in this Paragraph 9 shall be construed
to obligate Executive to pay any amounts to the Company, or to repay any amounts
already paid to him by the Company, under any circumstances.
10.
Notice. Notices
and other communications between the parties to this Agreement shall be
delivered in writing and shall be deemed to have been given when personally
delivered or on the third business day after mailing by U.S. registered or
certified mail, return receipt requested and postage prepaid, or by a recognized
national courier service.
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(a)
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Notices
and other communications not personally delivered to Executive shall be
addressed to Executive, at the most recent home address that he provided
in writing to the Company.
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(b)
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Notices
and other communications to the Company shall be addressed to the
Company’s corporate headquarters, to the attention of the Company’s
Secretary.
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11.
Waiver and
Amendments. No
provision of this Agreement may be modified, waived, or discharged, unless the
modification, waiver, or discharge is agreed to in writing signed by Executive
and by an authorized representative of the Company (other than Executive).
Unless specifically characterized as a continuing waiver, no waiver of a
condition or provision at any one time may be considered a waiver of the same
provision or condition (or any different provision or condition) at any other
time.
12.
Ability to
Enter this Agreement.
Executive represents and warrants that neither the execution and delivery of
this Agreement nor the performance of Executive’s services hereunder will
conflict with, or result in a breach of any employment or other agreement to
which Executive is a party or by which Executive might be bound or affected.
Executive further represents and warrants that Executive has full right, power,
and authority to enter into and carry out the provisions of this
Agreement.
13.
American Jobs
Creation Act of 2004. This
Agreement shall be construed, administered and interpreted in accordance with a
good-faith interpretation of Section 409A of the Code and Section 885 of the
American Jobs Creation Act of 2004. If the Company or Executive determines that
any provision of this Agreement is or might be inconsistent with such provisions
(including any administrative guidance issued thereunder), the parties shall
make their best efforts to act in good faith compliance with the requirements of
Section 409A of the Code and to agree to such amendments to this Agreement as
may be necessary or appropriate to comply with such requirements.
14.
Choice of Law
and Exclusive Jurisdiction. This
Agreement (including its validity, interpretation, construction, and
performance) shall be governed by the laws of the State of New York, without
regard to any concerning conflicts or choice of law that might otherwise refer
construction or interpretation to the substantive law of another jurisdiction.
Any dispute related to or arising from this Agreement, or its construction,
formation, or termination, shall be brought exclusively in the state or federal
courts for Westchester County, New York, and both the Company and Executive
waive any defense of lack of personal jurisdiction in such courts for any action
arising from or related to this Agreement.
15. Section
Headings. All
headings in this Agreement are inserted for convenience only. Headings do not
constitute a part of the Agreement and may not affect the meaning or
interpretation of any term or other provision of this Agreement.
16.
Severability
and Reformation. Each
substantive provision of this Agreement is a separate agreement, independently
supported by good and adequate consideration, and is severable from the other
provisions of the Agreement. If a court of competent jurisdiction determines
that any term or provision of this Agreement is unenforceable, then the other
terms and provisions of this Agreement shall remain in full force and effect,
and the unenforceable terms or provisions shall be equitably modified to the
extent necessary to achieve the underlying purpose in an enforceable
way.
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17.
Whole
Agreement. This
Agreement reflects the entire understanding and agreement between the Company
and Executive regarding Executive’s employment. This Agreement supersedes all
prior negotiations, discussions, correspondence, communications, understandings,
and agreements, whether oral or written, relating to Executive’s employment with
the Company. The respective rights and obligations of the parties to this
Agreement shall survive the termination of Executive’s employment to the extent
necessary to give such rights and obligations their intended
effect.
18.
No
Presumption. Each
party hereto has participated in the negotiation and drafting of this Agreement
and each has been represented throughout to his or its satisfaction by legal
counsel of their respective choice. In the event any ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provision
of this Agreement.
19.
Fiscal
Year. Should
the Company’s fiscal year be modified during the Term, the provisions of this
Agreement shall be deemed modified and amended to provide Executive with
equivalent rights and benefits to which he would otherwise have been eligible
but for such modification.
20.
Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute a single
instrument.
(signatures
on the next page)
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Its
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CEO
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Date
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June 21, 2010
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EXECUTIVE:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Date
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June 21, 2010
|
13
