EMPLOYMENT AGREEMENT WITH DUNCAN MCINTYRE
EMPLOYMENT
AGREEMENT WITH
XXXXXX
XXXXXXXX
This
Employment Agreement (“Agreement”) is entered into as of the 1st day of April,
2006 (the “Effective Date”), by and between Xxxxxx
XxXxxxxx
(the
“Executive”)
and
Inyx
Europe Limited, a wholly owned subsidiary of Inyx, Inc.
(the
“Company”
or
the
“Employer”),
or
together the Parties.
RECITALS:
Whereas,
the Company desires to employ the Executive to provide personal services to
the
Company, and also wishes to provide the Executive with certain compensation
and
benefits in return for such services; and
Whereas,
the Executive wishes to be employed by the Company and provide personal services
to the Company in return for certain compensation and benefits.
Now,
therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as
follows:
1. EMPLOYMENT
1.1. GENERAL.
The Company hereby employs the Executive in the senior position of Managing
Director of Inyx Europe Limited, whose responsibilities include directing the
operations of the Company’s two United Kingdom operating subsidiaries,
Inyx-Pharma Limited and Ashton Pharmaceuticals Limited, as well as any other
operations that the Company may acquire in the United Kingdom or Europe, and
also assisting the Company’s overall growth in the pharmaceutical industry, and
the Company may assign other reasonable management duties to the Executive
from
time to time. The Executive agrees to perform and discharge such duties well
and
faithfully, and to be subject to the supervision and direction of Xxxx Xxxxxxx,
Chairman and Chief Executive Officer of Inyx, Inc. (“CEO”), and other senior
corporate executives of Inyx, Inc. or their designee or successor. The Executive
acknowledges that this appointment involves the affairs of the Company and
its
subsidiaries not only in the United Kingdom and Europe but also in the United
States and Canada. Accordingly, while the executive will be operationally based
in the United Kingdom, with offices both at the Ashton Pharmaceuticals site
in
Ashton, England, and at the Inyx-Pharma site in Runcorn, England, the Executive
will be required to travel periodically to other countries on behalf of the
Company and its subsidiaries, affiliates and strategic alliances. If the
Executive will be required to work outside the United Kingdom for more than
a
one month period he will receive separate notification.
1.2. SUSPENSION.
The Company may suspend all or any of the Executive's duties and powers for
such
periods and on such terms as it considers expedient and this may include a
term
that the Executive must stay away from all or any of the Company's premises
and/or will not be provided with any work and/or will have no business contact
with all or any of the company or any group company’s agents, employees,
customers, clients, distributors and suppliers. During any period of suspension
the Agreement will continue and the Executive will continue to be bound by
his/her obligations under this Agreement.
1.3. TIME
DEVOTED TO POSITION. The
Executive, during his employment by the Company, shall devote his full business
time, attention and skills to the business and affairs of the
Employer.
1.4. CERTIFICATIONS.
Whenever the Executive is required by law, rule or regulation or requested
by
any governmental authority or by the Company or the Company’s auditors to
provide certifications with respect to financial statements or filings with
the
Securities and Exchange Commission or any other governmental authority, the
Executive shall sign such certifications as may be reasonably requested by
such
officers, with such exceptions as the Executive deems necessary to make such
certifications accurate and not misleading.
1.5. HOURS
OF
WORK. There are no fixed hours of work and by signing this document, the
Executive hereby consents, in accordance with the Working Time Regulations
1998
to work more than 48 hours per week on average weekly should his duties so
require. The Executive agrees to give the Employer at least three (3) months'
notice in writing if he is no longer prepared to work more than an average
of 48
hours a week.
2. COMPENSATION
AND BENEFITS
2.1. SALARY.
At all times the Executive is employed hereunder, Employer shall pay to
Executive, and Executive shall accept, as full compensation for any and all
services rendered and to be rendered by him during such period to Employer
in
all capacities, including, but not limited to, all services that may be rendered
by him to any of Employer’s existing subsidiaries, entities and organizations
hereafter formed, organized or acquired by Employer, directly or indirectly
(each, a “Subsidiary” and collectively, the “Subsidiaries”), the following:
(i) a base salary at the annual rate of £130,000 or at such increased rate
as the Board (through its Compensation Committee), in its sole discretion,
may
hereafter from time to time grant to Executive, subject to adjustments in
accordance with Section 2.2 hereof (as so adjusted, the “Base Salary”); and
(ii) any additional bonus and the benefits set forth in Sections 2.3,
2.4 and 2.5 hereof. The Base Salary shall be payable monthly in accordance
with
the regular payroll practices of Employer applicable to senior executives,
less
such deductions as shall be required to be withheld by applicable law and
regulations or otherwise.
2.2. CASH
BONUSES. Subject to Section 3.6 hereof, the Executive shall be entitled to
an annual cash bonus of up to fifty percent (50%) of the Executive’s annual base
salary, with the bonus amount based upon performance criteria achieved by the
Company and the Executive during a twelve (12) month period that are mutually
agreed upon by the Company and the Executive at the outset of the 12-month
period.
2.3. STOCK
OPTIONS. The Executive shall be entitled to participate in stock option and
similar equity plans of Employer. In connection herewith, the Executive will
be
granted 300,000 options to purchase shares of common stock of the Company with
an exercise price equal to the closing price of the Company’s common stock on
April 1, 2006 on the following basis: 100,000 options to be vested on March
31,
2007; 100,000 options to be vested on March 31, 2008; and 100,000 options to
be
vested on March 31, 2009; with all options issued on terms and conditions set
forth in the Stock Option Plan of the Company and a Stock Option Agreement
with
the Executive containing these terms. The Executive shall be entitled to any
additional annual stock option grants provided at the discretion of the
Board.
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2.4. EXECUTIVE
BENEFITS
2.4.1. EXPENSES.
Employer
shall promptly reimburse the Executive for properly documented expenses that
he
may reasonably incur in connection with the performance of his duties including
but not limited to, expenses for such items as business entertainment, business
travel, hotel and meals that are in accordance with Company policy and approved
by the Chairman of the Board and Chief Executive Officer of the Company. The
Company shall also pay the Executive a monthly car allowance of £800 and the
Executive shall be eligible for a Blackberry cell phone and lap-top computer
for
Company-related use.
2.4.2. EMPLOYER
PLANS. Executive shall be entitled to participate in such employee benefit
plans
and programs as Employer may from time to time generally offer or provide to
executive officers of Employer or its Subsidiaries, including, but not limited
to, participation in health and accident, medical and dental plans including
any
such benefit plans offered by the Subsidiaries where applicable, and profit
sharing and retirement plans, subject to the rules of such plans and the terms
of any applicable insurance policies. Participation in such plans shall be
conditional on the Executive complying with and satisfying any applicable
requirements of the insurer
2.4.3. VACATION.
The
Executive shall be entitled to five (5) weeks paid vacation per calendar year,
with vacation time in calendar 2006 being a pro-rata four (4) weeks. The
Executive will be entitled to payment in lieu of holidays accrued pro rata
but
not taken as at the date of termination of employment. If the Executive has
taken more holiday than his accrued entitlement at the date of termination
of
his employment, the Company shall be entitled to deduct the appropriate amount
from any payments due to the Executive (on the basis that each day of paid
holiday is equal to 1/260 of the salary).
3. EMPLOYMENT
TERM; TERMINATION
3.1. EMPLOYMENT
TERM. The Executive’s employment hereunder shall commence on April 1, 2006 and,
except as otherwise provided in Section 3.2 hereof, shall continue until March
31, 2009 (the “Initial Term”). No previous employment of the Executive shall
count as part of his continuous period of employment. Thereafter, this Agreement
shall continue, subject to the terms of this Agreement unless either (i)
Employer and Executive agree to a new employment agreement, or (ii) until
terminated by either party giving the other not less than three [3] months
prior
notice in writing, such notice to expire no earlier than March 31, 2009. Upon
termination of this Agreement pursuant to this Sections 3.1 or 3.2 hereof,
Executive shall be released from any duties hereunder (except as set forth
in
Section 5 hereof) and the obligations of Employer to Executive shall be as
set forth in Sections 3.4 and 3.5 hereof only.
3.2.
SUMMARY
DISMISSAL. If the Executive:
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3.2.1. in
the
reasonable opinion of the Company fails or neglects efficiently and diligently
to discharge his/her duties or is guilty of any serious or (after having
received a written warning from the CEO, COO or other Senior Corporate
Executive) repeated breach of his obligations under this agreement (including
any consent granted under it); or
3.2.2. is
guilty
of serious misconduct or any other conduct which affects or in the reasonable
opinion of the Company is likely to affect prejudicially the interests of the
Company or any of its subsidiaries or is convicted of an arrestable offence
(other than a road traffic offence for which a non-custodial penalty is
imposed); or
3.2.3. becomes
bankrupt or makes any arrangement or composition with his/her creditors;
or
3.2.4. is
disqualified from being a director of any company by reason of an order made
by
any competent court; or
3.2.5. resigns
as a director without the prior consent of the CEO; or
3.2.6. is
guilty
of any breach or non-observance of any code of conduct, rule or regulation
adopted by the Company or by any regulatory body or fails or ceases to be
registered (where such registration is, in the opinion of the Company, required
for the performance of his duties) by any regulatory body in the United Kingdom
or elsewhere,
3.2.7. the
Company may (whether or not any notice of termination has been given under
Section 3.2) by written notice to the Executive terminate this Agreement
with immediate effect. A notice under paragraph 3.2.1 may
be
given by the Company to the Executive within 90 days of the end of any such
period or periods of incapacity referred to in that paragraph.
3.2.8. The
Company may at any time (whether or not any notice of termination has been
given
under Section 3.1) terminate the Agreement with immediate effect by giving
notice in writing to the other party on terms that the Company will pay to
the
Executive, in lieu of notice under Section 3.1, the salary in the amount
and at the times it would have paid to the Executive if the Company had given
notice of termination of the Agreement in accordance with Section 3.1 or,
if notice has previously been given under that Section, as if the Agreement
terminated on the expiry of the remainder of the period of notice. If the
Executive is paid salary in lieu of notice he will not be entitled to any
additional payment in respect of holiday which he would otherwise have accrued
during the notice period or the remainder of the notice period.
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3.3.
GARDEN
LEAVE. Section 3.1 does not limit the Company's right to suspend any of the
Executive's duties and powers under Section 1.2 during any period after
notice of termination of the Agreement has been given by the Company or the
Executive. In particular, the Company may exercise this right where the
Executive leaves the Company's employment in circumstances where it is
reasonable for the Company to believe that he is or is about to become concerned
in a business carried on, or about to commence, which is, or is likely to be,
competitive with any part of the business of any group Company with which the
Executive was engaged or concerned in the 12 months before the suspension
started. In addition or alternatively, the Company may during the whole or
any
part of such period of notice require the Executive to perform duties (including
any modified duties arising from an exercise by the Company of its rights under
Section 1.2) at such locations as the Company may require consistent with
Section 1.1. Throughout any such period of suspension the Executive's salary
and
other benefits to which he is entitled under this Agreement shall continue
to be
paid or provided by the Company. At any time during such period the Executive
will, at the request of the Company, immediately resign, without claim for
compensation, his/her office as a director of the Company and any directorship
or other office held by him in any group Company.
3.4.
OBLIGATIONS OF THE EXECUTIVE DURING SUSPENSION OR ON TERMINATION OF THIS
AGREEMENT. On the termination of the Agreement in any way (whether lawfully
or
otherwise) or on either party giving notice of termination of this Agreement
or
on the Company exercising its right of suspension as mentioned in Section 3.3,
the Executive will immediately:
3.4.1. resign
all offices held by him in any group Company (without prejudice to the rights
of
any party arising out of this Agreement or the termination of the
Agreement);
3.4.2. deliver
to the Company all property in his possession, custody or under his control
belonging to any group Company including (but not limited to) computer
equipment, mobile phones, security and computer passes, business cards, credit
and charge cards, original and copy documents or other media on which
information is held in his possession relating to the business or affairs of
any
group Company; and
3.4.3. transfer
(without payment) to the Company (or as the Company may direct) any qualifying
or nominee shares provided by it or any third party in any group Company to
him.
With
effect from the date of termination of this Agreement, all the rights and
obligations of the parties under this Agreement will cease except for those
which are expressed to continue after that date and except in relation to any
breach of any provision of this agreement before that date. Termination of
the
Agreement will not prejudice any other rights of the Company.
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3.5. CERTAIN
OBLIGATIONS OF EMPLOYER FOLLOWING TERMINATION OF THE EXECUTIVE’S EMPLOYMENT.
Following termination of the Executive’s employment by the Company or any group
company under the circumstances described below, Employer shall pay to Executive
the following compensation and provide the following benefits in full
satisfaction and final settlement of any and all claims and demands that
Executive now has or hereafter may have hereunder against Employer.
3.5.1. TERMINATION
UNDER SECTION 3.2. In the event that the Executive’s employment is terminated by
Employer under Section 3.2, Employer shall pay to Executive, in a single
lump-sum, an amount equal to any unpaid but earned Base Salary through the
Date
of Termination. Any payment made in accordance with this Section 3.5.1
shall be made at a convenient date no later than fourteen (14) days after the
termination date.
3.5.2.
ELECTION
NOT TO RENEW BY EMPLOYER UNDER SECTION 3.1. In
the
event that the Employer terminates this Agreement after the Initial Term
pursuant to Section 3.1. hereof, it shall pay to Executive, subject to
Executive’s continued compliance with the terms of Section 5 hereof, any unpaid
but earned Base Salary through the effective Date of Termination PLUS, an amount
equal to nine months (9) months of Base Salary in effect at such applicable
time
(the “Severance Amount”). Additionally, any Bonuses that are due to the
Executive shall be paid by Employer to Executive. HOWEVER, if termination of
Executive is due to or after a Change of Control (as defined in Section 3.6.2
hereof) of the Employer, the Severance Amount is increased to twenty-four (24)
months Base Salary in effect at such applicable time, and any non-vested stock
options granted to Executive shall become fully vested at time of such
termination date. Any payments made in accordance with this Section 3.6.2 shall
be made in a lump-sum payment at a convenient date no later than fourteen (14)
days after the effective termination date. In consideration of such payment,
and
assuming all other payments required hereby have been paid, Executive agrees
to
provide Employer a general release of any claims relating to such termination
or
otherwise.
3.5.3. TERMINATION
BY THE EXECUTIVE UNDER SECTION 3.1In
the
event that the Executive elects not to renew this Agreement at any time pursuant
to Section 3.1 hereof, Employer shall pay to Executive Base Salary through
the effective Date of Termination. In addition, Employer shall pay Executive,
in
a single lump-sum, an amount equal to any unpaid but earned Bonuses through
the
effective Date of Termination, PROVIDED that the Executive complies with Section
3.1 and provides the Employer with three (3) months advance notification in
writing of the intent to terminate this Agreement.
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3.6. DEFINITIONS.
3.6.1. “DATE
OF
TERMINATION” DEFINED. “Date of Termination” means such date as the Executive’s
employment under this Agreement is terminated in accordance with
Sections 3.1, or 3.2 hereof.
3.6.2. “CHANGE
OF CONTROL” DEFINED. A “Change of Control” of Employer means (i) the approval by
the stockholders of the Company of the sale, lease, exchange or other transfer
(other than pursuant to internal reorganization) by the Company of all or
substantially all of its respective assets to a single purchaser or to a group
of associated purchasers; (ii) the first purchase of shares of equity securities
of the Company pursuant to a tender offer or exchange offer (other than an
offer
by the Company) for at least fifty (50%) percent of the equity securities of
the
Company; (iii) the approval by the stockholders of the Company of an agreement
for a merger or consolidation in which the Company shall not survive as an
independent, publicly-owned corporation; (iv) the acquisition (including by
means of a merger) by a single purchaser or a group of associated purchasers
of
securities of the Company from the Company or any third party representing
fifty
(50%) percent or more of the combined voting power of the Company’s then
outstanding equity securities in one or a related series of transactions (other
than pursuant to an internal reorganization or transfers of the Executive’s
interests).
4. PENSIONS.
4.1. The
Executive is eligible to join the Company’s Defined Pension Scheme. Benefits are
provided on a defined contribution basis, except that benefits on death in
employment are linked to the Executive’s pensionable pay.
5. CONFIDENTIALITY
AND NONSOLICITATION; PROPERTY RIGHTS.
5.1. “CONFIDENTIAL
INFORMATION” DEFINED. “Confidential Information” means any and all information
(oral or written) relating to Employer or any Subsidiary or any entity
controlling, controlled by, or under common control with Employer or any
Subsidiary or any of their respective activities, including, information not
previously disclosed to the public or to the trade by the Company’s management,
or otherwise in the public domain, with respect to the Company’s products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information, business
plans, prospects or opportunities, but shall exclude any information which
(i) is or becomes available to the public or is generally known in the
industry or industries in which the Company operates other than as a result
of
disclosure by the Executive in violation of his agreements under this Section
or
(ii) the Executive is required to disclose under any applicable laws,
regulations or directives of any government agency, tribunal or authority having
jurisdiction in the matter or under subpoena or other process of law. The
Executive confirms that all restrictions in this Section are reasonable and
valid and waives all defenses to the strict enforcement thereof.
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5.2. NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION. The Executive shall not at any time (other than
as
may be required or appropriate in connection with the performance by him of
his
duties hereunder), directly or indirectly, use, communicate, disclose or
disseminate any Confidential Information in any manner whatsoever (except as
may
be required under legal process by subpoena or other court order).
5.3. CERTAIN
ACTIVITIES. The Executive shall not, while employed by the Company and for
a
period of one (1) year following the Date of Termination, directly or
indirectly, hire, offer to hire, entice away or in any other manner persuade
or
attempt to persuade any officer, employee, agent, lessor, lessee, licensor,
licensee or supplier of Employer or any of its Subsidiaries to discontinue
or
alter his or its relationship with Employer or any of its
Subsidiaries.
5.4. NON-COMPETITION.
The Executive shall not, while employed by the Company and for a period of
one
(1) year following the Date of Termination, engage or participate, directly
or
indirectly (whether as an officer, director, employee, partner, consultant,
shareholder, lender or otherwise), in any business that manufactures, markets
or
sells products that directly competes with any product of the Employer that
is
significant to the Employer’s business based on sales and/or profitability of
any such product as of the Date of Termination. Nothing herein shall prohibit
Executive from being a passive owner of less than 1% of any publicly-traded
class of capital stock of any entity directly engaged in a competing
business.
5.5. If
the
Company exercises its right to suspend the Executive's duties and powers for
a
period of up to [3] months under Section 1.2 during any period after notice
of
termination of the Agreement has been given by the Company or the Executive,
the
aggregate of the period of the suspension and the period after the date of
termination for which covenants in Sections 5.3 and 5.4 apply will not exceed
12
months and, if the aggregate of the two periods would exceed 12 months, the
period after the termination date for which the covenants in Sections 5.3 and
5.4 apply will be reduced accordingly.
5.6. PROPERTY
RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to information, inventions and
discoveries or any interest in any copyright and/or other property right
developed, made or conceived of by Executive, either alone or with others,
at
any time during his employment by Employer and whether or not within working
hours, arising out of such employment or pertinent to any field of business
or
research in which, during such employment, Employer is engaged or (if such
is
known to or ascertainable by Executive) is considering engaging, Executive
hereby agrees:
(a) that
all
such information, inventions and discoveries or any interest in any copyright
and/or other property right, whether or not patented or patentable, shall be
and
remain the exclusive property of the Employer;
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(b) to
disclose promptly to an authorized representative of Employer all such
information, inventions and discoveries or any copyright and/or other property
right and all information in Executive’s possession as to possible applications
and uses thereof;
(c) not
to
file any patent application relating to any such invention or discovery except
with the prior written consent of an authorized officer of Employer (other
than
Executive);
(d) that
Executive hereby waives and releases any and all rights Executive may have
in
and to such information, inventions and discoveries, and hereby assigns to
Executive and/or its nominees all of Executive’s right, title and interest in
them, and all Executive’s right, title and interest in any patent, patent
application, copyright or other property right based thereon. Executive hereby
irrevocably designates and appoints Employer and each of its duly authorized
officers and agents as his agent and attorney-in-fact to act for him and on
his
behalf and in his stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement
of
any such patent, patent application, copyright or other property right with
the
same force and effect as if executed and delivered by Executive;
and
(e) at
the
request of Employer, and without expense to Executive, to execute such documents
and perform such other acts as Employer deems necessary or appropriate, for
Employer to obtain patents on such inventions in a jurisdiction or jurisdictions
designated by Employer, and to assign to Employer or its designee such
inventions and any and all patent applications and patents relating
thereto.
5.7. NON-EXCLUSIVITY
AND SURVIVAL. The covenants of the Executive contained in this Section 5
are in addition to, and not in lieu of, any obligations that Executive may
have
with respect to the subject matter hereof, whether by contract, as a matter
of
law or otherwise, and such covenants and their enforceability shall survive
any
termination of the Executive’s employment by the Company by either party and any
investigation made with respect to the breach thereof by Employer at any
time.
6. DISCIPLINARY
AND GRIEVANCE PROCEDURES
6.1. The
Executive is subject to the Company's disciplinary and grievance procedures,
copies of which are available from the Company’s Human Resources Department.
These procedures do not form part of the Executive's contract of
employment.
6.2. If
the
Executive wishes to appeal against a disciplinary decision he may apply in
writing to the Company’s Human Resources Department in accordance with the
Company's disciplinary procedure.
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6.3. If
the
Executive wishes to raise a grievance, he may apply in writing to the Company’s
Human Resources Department in accordance with the Company's grievance
procedure.
7. MISCELLANEOUS
PROVISIONS.
7.1. COLLECTIVE
AGREEMENTS. There is no collective agreement which directly affects the
Executive’s employment by the Company.
7.2. SEVERABILITY.
If, in any jurisdiction, any term or provision hereof is determined to be
invalid or unenforceable, (a) the remaining terms and provisions hereof
shall be unimpaired; (b) any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction; and (c) the invalid or unenforceable term or provision
shall, for purposes of such jurisdiction, be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing
the
intention of the invalid or unenforceable term or provision.
7.3. EXECUTION
IN COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and
by the different parties hereto in separate counterparts, each of which shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement (and all signatures need not appear on any one
counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered to
each
of the other parties hereto.
7.4. NOTICES.
All notices, requests, demands and other communications hereunder shall be
in
writing and shall be deemed duly given upon receipt when delivered by hand,
overnight delivery or telecopy (with confirmed delivery), or three (3) business
days after posting, when delivered by registered or certified mail or private
courier service, postage prepaid, return receipt requested, as
follows:
If
to
Employer, to:
Inyx
Europe Limited
c/o
Inyx,
Inc.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Chairman
and Chief Executive Officer
Facsimile
No.: 000-000-000-0000
If
to
Executive, to:
Xxxxxx
XxXxxxxx
000
Xxxxxxx Xxxx
Xxxxxxxxxxx,
Xxxxxxxxxx
XX0
0XX
Xxxxxxx
| Facsimile No.: |
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Or
to
such other address(es) as a party hereto shall have designated by notice in
writing to the other parties hereto.
7.5. AMENDMENT.
No provision of this Agreement may be modified, amended, waived, or discharged
in any manner except by a written instrument executed by both the Employer
and
the Executive.
7.6. ENTIRE
AGREEMENT. This Agreement, the, Executive’s Stock Option Agreements and the
governing stock option plans, constitute the entire agreement of the parties
hereto with respect to the subject matter hereof, and supersede all prior
agreements and understandings of the parties hereto, oral or
written.
7.7. APPLICABLE
LAW. This Agreement shall be governed by and construed in accordance with
applicable to contracts made and to be wholly performed therein, without regard
to principles of conflicts of laws.
7.8. HEADINGS.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
7.9. WAIVER,
ETC. The failure of either of the parties hereto to, at any time, enforce any
of
the provisions of this Agreement shall not be deemed or construed to be a waiver
of any such provision, nor to in any way affect the validity of this Agreement
or any provision hereof or the right of either of the parties hereto thereafter
to enforce each and every provision of this Agreement. No waiver of any breach
of any of the provisions of this Agreement shall be effective unless set forth
in a written instrument executed by the party against whom or which enforcement
of such waiver is sought, and no waiver of any such breach shall be construed
or
deemed to be a waiver of any other or subsequent breach.
7.10. CAPACITY,
ETC. Executive and Employer hereby represent and warrant to the other that,
as
the case may be: (a) he or it has full power, authority and capacity to
execute and deliver this Agreement, and to perform his or its obligations
hereunder; (b) such execution, delivery and performance shall not (and with
the giving of notice or lapse of time or both would not) result in the breach
of
any agreements or other obligations to which he or it is a party or he or it
is
otherwise bound; and (c) this Agreement is his or its valid and binding
obligation in accordance with its terms.
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IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the parties
hereto as of the date first above written.
INYX, INC.
By:
| /s/ Xxx X. Xxxxx | |||
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|
Xxx
X. Xxxxx
Executive
Vice President
|
| /s/ Xxxxxx XxXxxxxx | |||
|
|
|||
| XXXXXX XXXXXXXX |
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12 -
