EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
June 15th, 2004 by and between Optigenex Inc., a Delaware corporation with its
principal executive office located at 000 Xxxxxxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx,
XX 00000 (the "Company" or "Optigenex Inc."), and Xxxxxx X. XxXxxxxx (the
"Executive") (collectively, the "Parties").
WHEREAS, the Company desires to employ Executive, and Executive desires
to be employed by the Company, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to employ
Executive, and Executive hereby agrees to serve the Company,
on the terms and conditions set forth herein for the period
commencing on the date hereof and expiring on the second
anniversary thereof (the "Term"), unless sooner terminated as
hereinafter set forth.
1.2 Duties of Executive. Executive shall serve as Chief Financial
Officer of the Company. During the Term, Executive shall
diligently perform such services as may be reasonably assigned
to him by the Board of Directors of the Company. Executive
shall devote substantially all of his business time to the
business and affairs of the Company, render such services to
the best of his ability and use his best efforts to promote
the interest of the Company.
2. Compensation.
2.1 Base Salary. During the Term, the Company shall pay Executive
as compensation for all services rendered hereunder an annual
base salary ("Base Salary") at the rate per year payable in
accordance with the Company's normal payroll practice. During
the Term, the annual Base Salary may be adjusted from time to
time upon a majority vote of the Company's Board of Directors.
See Schedule A
2.2 Stock Options. Executive shall receive stock options in
accordance with Schedule B.
3. Expense Reimbursement and Other Benefits.
3.1 Expense Reimbursement. During the Term, the Company, upon the
submission of appropriate supporting documentation by
Executive, shall promptly reimburse Executive for all
reasonable expenses actually paid or incurred by Executive in
the course of and pursuant to the business of the Company.
3.2 Vacation. During the Term, Executive shall be entitled to 4
weeks' paid vacation per year, provided that no vacation
period may exceed 10 consecutive business days.
3.3 Other Benefits. During the Term, Executive shall be entitled
to participate and shall be included in any savings, 401(k),
pension, profit sharing, group medical, group disability or
similar plan generally provided to other senior executives of
the Company, subject to any eligibility requirements
applicable thereto.
3.4 Key Man Insurance. During the continuance of the Executive's
employment hereunder, the Company shall have the right, but
not the obligation, to maintain key man life insurance in its
own name covering the Executive's life in such amount as shall
be determined by the Company, for a term ending on the
termination or expiration of this Agreement. The Executive
shall aid in the procuring of such insurance by submitting to
be required medical examinations, if any, and by filling out,
executing and delivering such applications and other
instrument in writing as may be reasonably required by an
insurance company or companies to which applications for
insurance may be made by or for the Company.
3.5 Indemnification. The Company will indemnify and hold harmless
the Executive (and his legal representatives or other
successors) to the fullest extent permitted (including payment
of expenses in advance of final disposition of the proceeding)
by applicable law as in effect at the time of the subject act
or omission, or the certificate of incorporation and bylaws of
the Company in effect at such time or on the date of this
Agreement, whichever affords or afforded greater protection to
the Executive.
3.6 Directors and Officers Insurance. The Company has obtained
directors' and officers' liability insurance with coverage
reasonably consistent with the coverage in respect of similar
situated companies (both as size of company and business),
provided that the Company shall be under no obligation to
obtain or maintain such insurance if in the opinion of the
Company's Board of Directors, the Company cannot afford the
cost of such insurance based on working capital, cash flow or
other considerations deemed relevant by the Board.
4. Termination.
4.1 Termination for Cause. Notwithstanding anything contained to
the contrary in this Agreement, this Agreement may be
terminated by the Company for Cause. As used in this
Agreement, "Cause" shall only mean (i) any willful action or
omission of Executive which constitutes a material breach of
this Agreement (other than Section 5 of this Agreement) which
is not cured within ten business days after receipt by
Executive of notice of same; (ii) a breach of Section 5 of
this Agreement; (iii) theft, fraud, embezzlement or
misappropriation of the Company's assets or properties by
Executive or any action by Executive of a nature that
disparages or otherwise xxxxx the Company or its business or
public relations; or (iv) the conviction of Executive for any
criminal act which is a felony. Upon any termination pursuant
to this Section 4.1, the Company shall have no further
liability to Executive hereunder other than for the payment of
the unpaid portion of his Base Salary and reimbursement of
expenses duly incurred through the date of termination.
4.2 Disability. Notwithstanding anything contained in this
agreement, the Company by written notice to the Executive,
shall at all times have the right to terminate this Agreement,
and Executive's employment hereunder, if Executive shall, as
the result of mental or physical incapacity, illness or
disability, fail or be unable to perform his duties and
responsibilities provided for herein for a period of more than
120 days in any 12 month period (a "Permanent Disability").
Upon any termination pursuant to this Section 4.2, the Company
shall have no further liability to Executive hereunder other
than (i) payment to Executive of his Base Salary earned as of
the date of termination and (ii) reimbursement of expenses
duly incurred through the date of termination.
4.3 Death. In the event of the death of Executive during the Term,
the Company shall have no further liability to Executive's
estate hereunder other than (i) payment of Base Salary earned
as of the date of death, and (ii) reimbursement of expenses
duly incurred through the date of death.
4.4 Termination Without Cause. Notwithstanding anything contained
herein to the contrary, at any time the Company shall have the
right to terminate Executive's employment hereunder without
Cause by written notice to the Executive. Upon any termination
pursuant to this Section 4.4, the Company shall pay Executive
(i) his Base Salary (at the annual rate in effect on the date
of termination) through the end of the original two-year Term,
and (ii) expenses duly incurred through the date of
termination. Payments under clauses (i) and (ii) of the
preceding sentence shall be made in monthly installments,
beginning not later than the thirtieth day following the date
of termination. In addition, the Company shall continue to
provide Executive the benefits provided to other senior
executives of the Company through the end of the Term. The
Company shall be deemed to have terminated Executive's
employment pursuant to this Section 4.4 if such employment is
terminated by Executive voluntarily as a result of the
occurrence of any of the following events which is not
consented to in writing by Executive prior to its occurrence
or which is not cured by the Company within 30 days after its
receipt of written notice of Executive's objection to the
occurrence: (a) Executive is assigned to any position, duties
or responsibilities that are significantly diminished from
those contemplated by this Agreement; (b) Executive is
requested to engage in conduct that is reasonably likely to
result in a violation of law or (c) any material reduction in
Executive's rate of compensation or in the benefits set forth
in this Agreement (collectively "Good Reason").
4.5 Notice. Executive agrees to give the Company 60 days' prior
written notice of voluntary termination. Any termination under
this Agreement shall be communicated by the terminating party
to the other party in writing, specifying the termination
provision in this Agreement relied upon and setting forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination.
4.6 Procedure Upon Termination. On termination of employment,
regardless of the reason, Executive shall promptly return to
the Company all documents (including copies) and other
property of the Company, including without limitation, client,
customer and supplier lists, manuals, letters, materials,
reports and records in his possession or control.
5. Non-Competition and Non-Disclosure Covenants.
5.1 Discoveries. During the Term, Executive shall communicate to
the Company as Confidential Information (as hereinafter
defined) of Company, each discovery, idea, design, invention
and improvement relating to any matter of the Company's
business, whether or not patentable and whether or not reduced
to practice, which is conceived, developed or made by
Executive, alone or jointly with others during the Term in
connection with the services provided by Executive under this
Agreement, and all of such discoveries, ideas, designs,
inventions and improvements shall be the exclusive property of
the Company and all of Executive's rights, title and interest
therein are hereby irrevocably assigned by Executive to the
Company.
5.2 Non-Competition. From the date hereof through (i) the first
anniversary date of any termination of Executive's employment
with the Company by the Company without Cause or by Executive
for Good Reason or (ii) the second anniversary date of any
termination with Cause of Executive's employment with the
Company or of Executive's resignation, Executive agrees not to
engage in, have an interest in or render any services to,
directly or indirectly (as an officer, director, stockholder,
partner, associate, employee, consultant, owner, agent,
creditor, co-venture or otherwise) in any business which (i)
is engaged in the anti-aging/ age management and medical
practice management business or (ii) offers products or
services similar to or competitive with products and services
offered by the Company in the markets and territories in which
the Company's products and services are offered during the
Term, whether as executive, partner, director employee, agent,
consultant, shareholder, owner, manager, operator, licensor,
licensee, joint venturer or otherwise; provided that Executive
may hold less than 1% of the outstanding shares in any
business listed on a national securities exchange or
authorized for quotation on an inter-dealer quotation system
of a regulated national securities association.
Executive shall not, during the Term and for a period of one
year thereafter, directly or indirectly, take any action which
constitutes an interference with or a disruption of any of the
Company's business activities. For purposes of clarification,
but not of limitation, Executive hereby acknowledges and
agrees that the provisions of this Section 5.2 shall serve as
a prohibition against him from, during the period referred to
herein, directly or indirectly, hiring, offer to hire,
enticing, soliciting or in any other manner persuading or
attempting to persuade any officer, employee, agent, licensor,
licensee, client or customer of the Company, to discontinue or
alter his, her or its relationship with the Company.
5.3 Non-Disclosure. During the Term and thereafter, Executive
agrees to (i) hold all Confidential Information in trust and
confidence for the Company and shall not use or disclose any
such information to any person under any circumstances and
(ii) be liable for damages incurred by the Company as a result
of disclosure of any such information by Executive (without
the prior written consent of the Company) for any purpose at
any time after the date hereof. Notwithstanding the foregoing,
Executive may disclose any such information to the extent such
disclosure is compelled by a subpoena issued under applicable
law or to the extent such information becomes publicly
available other than by unauthorized disclosure by the
Executive. As used herein the term "Confidential Information"
shall mean, with respect to the Company, any and all
information (oral and written), other than such information
which can be shown to be in the public domain (such
information not being deemed to be in the public domain merely
because it is embraced by more general information which can
be shown to be in the public domain) other than as a result of
a breach of provisions of this Section 5.3, including, but not
limited to, business secrets, techniques and know-how, and
information relating to clients, customers and prospects,
suppliers, pricing, costs, marketing, and selling and
servicing.
5.4 Irreparable Harm. Executive agrees that all of the restrictive
covenants set forth in Section 5 herein are reasonable in both
scope and duration. Executive acknowledges that monetary
damages for a breach of these restrictive covenants are
inadequate and that breach would irreparably harm the Company.
Executive, therefore, further agrees that the Company may
enforce these restrictive covenants by obtaining an immediate
injunction in a court of law or equity without the necessity
of showing any actual damages and without the necessity of
posting any bond. This right to injunctive relief is
cumulative and in addition to all other remedies available to
the Company by reason of any breach. In the event that any
provision of these restrictive covenants is held, in whole or
in part to be invalid or unenforceable by reason or its scope
and/or duration, such invalidity or unenforceability shall be
limited to such provision and shall not effect any other
portion of these restrictive covenants and the restrictive
covenants shall be construed as if their scope of duration had
been more narrowly drawn so as to be valid and enforceable.
5.5 Consideration. Executive expressly acknowledges that the
covenants set forth in this Section 5 are a material part of
the consideration bargained for by the Company and without the
agreement of Executive to be bound by such covenants, the
Company would not have agreed to enter into this Agreement.
6. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State New York applicable to contracts entered into and
wholly performed in the State of New York.
7. Notices.
In order to be effective, any notice or other communication required or
permitted hereunder must be in writing and must be transmitted by
personal delivery, reputable overnight courier service, certified mail
(postage pre-paid, receipt requested) or telecopy, as follows:
If to the Company: Optigenex Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to: Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Or at such other address as the party shall designate in a written
notice to the other parties hereto, given in accordance with this
Section 7. All notices and other communications shall be effective (i)
if delivered in person, when delivered; (ii) if sent by overnight
courier, the next business day following the delivery thereof to such
courier (or such later date as is demonstrated by a bona fide receipt
therefore); (iii) if sent by certified mail, three days after deposit
in the mail; or (iv) if sent by telecopy with receipt acknowledged,
when sent.
8. BENEFITS; BUILDING EFFECT.
This Agreement shall be for the benefits of and binding upon the
Parties hereto and their respective heirs, personal representatives,
legal representatives, successors and, where applicable, assigns.
Notwithstanding the foregoing, neither Party may assign its rights or
benefits hereunder without the prior written consent of the other Party
hereto.
9. SEVERABILITY.
If any provision of this Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order
to achieve the intent of the Parties to the extent possible. In any
event, all other provisions of this Agreement shall be deemed valid and
enforceable to the fullest extent possible.
10. AMENDMENT; WAIVER.
This Agreement shall not be amended, modified or supplemented, except
in writing signed by both parties. The waiver by either Party hereto of a breach
or violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
11. NO THIRD-PARTY BENEFICIARY.
Nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any person (other than the parties
hereto and, in the case of Executive, his heirs, personal
representatives and/or legal representative) any rights or remedies
under or by reason of this Agreement.
12. SURVIVAL.
Notwithstanding the termination of this Agreement by Company for Cause,
for disability or otherwise under this Agreement, Executive's
obligations under Section 5 hereof shall survive and remain in full
force and effect for the periods therein provided and the provisions
for equitable relief against the Executive in Section 5 hereof shall
continue in force.
13. ENTIRE AGREEMENT.
This Agreement contains the entire agreement of the Parties and
supersedes any and all prior negotiations, correspondence,
understandings and agreements between the parties respecting the
subject matter hereof.
14. COUNTERPARTS.
This Agreement may be executed in original or facsimile counterparts,
each of which shall be deemed an original, but both of which when taken
together shall constitute one and the same instrument.
15. COUNSEL.
The parties to this Agreement do further state that they have been
represented by counsel of their own choice in arriving at this
Agreement and that this Agreement represents the product of their
negotiations.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date above written.
OPTIGENEX INC.
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
EXECUTIVE
/s/ Xxxxxx X. XxXxxxxx
----------------------
Xxxxxx X. XxXxxxxx
SCHEDULE A
1. BASE SALARY: $140,000 Per annum.
SCHEDULE B
1. STOCK OPTIONS VESTING SCHEDULE:
a. On August 6th, 2004-100,000, 5 year options @ $3.00 per share;
b. After 12 months of Employment-150,000, 5 options @ $3.00 per share
c. After 24 months of Employment-50,000, 5 options @ $3.00 per share
