Exhibit 99.1
EMPLOYMENT AGREEMENT
RECITALS
Whereas, Xxxxxxx X. Xxxxxxx, Xx. ("Employee" or "Philips") was the founding
Chief Executive Officer ("CEO") and Chairman of the Board of CDEX Inc., a Nevada
corporation ("CDEX" or the "Company");
Whereas, Philips resigned from employment of Company effective close of
business on December 31, 2005;
Whereas, the Company obtained the services of Philips as an Advisor to the
CEO and Board of Directors pursuant to a Consulting Agreement between CDEX and
IAM Investment Group LP ("LP") dated January 1, 2007 ("Consulting Agreement"),
to assist with the transition of management and administrative functions for the
Company from Rockville, MD to Tucson, AZ;
Whereas, at the direction of the Board of Directors and the CEO, Philips'
role expanded significantly during the performance of those services, and the
Board of Directors and CEO have asked Philips to accept the positions of
President and CEO and serve on the Board of Directors;
Whereas, Philips desires to serve in these positions; and
Whereas, in view of the foregoing, Philips, LP and CDEX hereby terminate
the Consulting Agreement without penalty to any Party, and Employee and CDEX
enter into this Employment Agreement at the same instant of termination on this
the 11th day of June, 2007 ("Effective Date").
Accordingly, for good and valuable consideration the sufficiency of which
is recognized and acknowledged by all Parties, the Company, LP and Philips agree
to the following:
AGREEMENT
1 . Agreement. The RECITALS, above, are incorporated in their entirety into
this Employment Agreement by reference. LP, the Company and Employee agree to be
bound by the terms of this Amendment.
2. Term. Employee or the Company may terminate this Agreement at any time
by giving the other party two weeks' advance notice in writing. The term of this
Agreement shall be two years from the Effective Date, unless it is extended by
the mutual written agreement of the Employee and the Company.
3. Services of the Employee. Employee shall serve as the President and CEO
and a Member of the Board of Directors of CDEX. These activities of the Employee
are referred to hereinafter as "Services." The Company recognizes and agrees
that the Employee may perform additional services for other persons, provided
that such services do not represent a conflict of interest or a breach of the
Employee's fiduciary duty to the Company.
4. Place of Performance. The Employee's place of performance initially
shall be Tucson, AZ. However, the Employee's place of performance may be altered
based on needs of the Company and considerations of Employee.
5. Compensation.
5.1. Fees. As compensation for Employee's services, the Employee and
Company agree that Employee shall be paid a annual compensation of $180,000 per
year, beginning on June 11, 2007. In the event that the Company elects to
terminate this Agreement for any reason prior to June 11, 2009, it is agreed
that Company shall pay Employee a severance fee of $200,000.
5.2. Bonuses and Equity Compensation. Employee shall be eligible for
performance bonuses as agreed to with the Board of Directors. Further, in view
of the services to be rendered and performance of Employee to date in the
broadly defined role of Advisor, the Company shall award Employee 350,000 stock
options under the Company's Stock Option Plan with a strike price as the fair
market value on the Effective Date of this Amendment to vest on June 11, 2008
and be effective for five years thereafter.
5.3. Benefits. At the Employee's option, Philips may participate in any
of the Company's employee benefit plans, fringe benefit programs, group
insurance arrangements or similar programs.
6. Expenses. The Company shall reimburse the Employee for reasonable and
authorized expenses incurred by the Employee in connection with the performance
of the Services upon periodic presentation by the Employee of an itemized
account of such expenses and appropriate receipts.
7. Termination of Services. Upon termination of the Employee's Services,
this Agreement shall become null and void, except as to Section 5 and as
provided in Section 11.3.
8. Compensation Upon Termination. Upon the termination of this Agreement,
Company shall pay to Employee any termination/severance fee owed pursuant to
Section 5.1, above, and all compensation due and owed to Employee under this
Agreement's annual fee compensation structure. In addition, Employee shall be
entitled to reimbursement of expenses that were incurred before the termination
became effective and that are reimbursable under this Agreement. Finally,
Employee shall be entitled to all stock options granted to Philips pursuant to
the Consulting Agreement, the Company's bonus plans or this Employment
Agreement, all such options vesting immediately upon termination without risk of
forfeiture. In that event, Employee may exercise all options with cashless
transactions based on the closing stock price as of the day of exercise.
9. CDEX Agreements. As an express condition for the Company's agreement to
enter into this Agreement, and as a pre-condition to the effectiveness of this
Agreement, the Employee and Company agree that the Non-Compete Agreement and
Non-Disclosure Agreement executed as part of Employee's earlier Employment
Agreement are still in effect.
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10. Arbitration. Any failure to perform, controversy or claim arising out
of or relating to this Agreement or the breach, termination or validity thereof,
shall be determined exclusively by arbitration in accordance with the provisions
of this Section and in accordance with the rules of the American Arbitration
Association for arbitrating commercial matters. The arbitration shall be held in
Tucson, Arizona, or such other location as the parties shall mutually agree. The
arbitrators shall base their award on applicable Arizona law and judicial
precedent, and shall accompany their award with written findings of fact and
conclusions of law. The decision of the arbitrators shall be binding on the
parties, except that any party may appeal the arbitrators' decision by filing an
action to reconsider the decision of the arbitrators in a court having
jurisdiction hereunder. In any such action the arbitrators' findings of fact
shall be conclusive and binding on both parties and the sole questions to be
determined by the court shall be (i) whether or not the arbitrators' decision
was contrary to Arizona law and judicial precedent, and (ii) if the court
determines that the arbitrators' decision was contrary to Arizona law and
judicial precedent, then how the dispute shall be resolved based on the
arbitrators' findings of facts and Arizona law and judicial precedent. The
decision of the court as to the resolution of the dispute under Arizona law and
judicial precedent shall supercede the arbitrators' decision. Judgment upon the
award rendered by the arbitrators, as modified by the court, if applicable, may
be entered in any court having jurisdiction in accordance herewith.
11. Miscellaneous.
11.1 Notices. All notices, demands, requests or other communications
required or permitted to be given or made hereunder shall be in writing and
shall be hand-delivered or shall be mailed by first class registered or
certified mail, postage prepaid to the respective addresses of the parties.
Notice shall be deemed to have been received either on the day delivered, if
hand-delivered, or five (5) days after mailing, if mailed.
11.2 Severability. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which shall remain in full force and
effect.
11.3 Survival. It is the express intention and agreement of the parties
hereto that the provisions of Section 7, Section 8, Section 9, Section 10, and
Section 11 hereof shall survive the termination of this Agreement. In addition,
all obligations of the Company to make payments pursuant to Sections 5 and 6
with regard to fees earned, obligations made or expenses incurred prior to the
termination of this Agreement shall survive any termination of this Agreement on
the terms and conditions set forth herein.
11.4 Assignment. Neither party shall assign any right or delegate any
obligation hereunder without the other party's written consent, and any
purported assignment or delegation by a party hereto without the other party's
written consent shall be void. This Agreement shall be binding upon and inure to
the benefit of the Company and its successors and the Employee, his heirs,
executors, administrators and legal representatives.
11.5 Amendment; Waiver. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by the parties hereto.
Neither the waiver by any of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure of any of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.
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11.6 Headings. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
11.7 Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Arizona (but not
including the choice of law rules thereof). Subject to the arbitration
provisions herein, any action filed in relation to this Agreement and the
performance of the parties hereunder shall be filed in the appropriate state
court or the U.S. District Court having jurisdiction over Tucson, Arizona, the
parties hereto waiving any other venue to which they may be entitled by virtue
of domicile or otherwise. Each of the parties hereto waives a trial by jury in
regard to any claims or disputes relating to this Agreement.
11.8 Entire Agreement. This Agreement constitutes the entire agreement
between and among the parties respecting the engagement of the Employee, there
being no representations, warranties or commitments except as set forth herein.
11.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement,
or have caused this Agreement to be duly executed on their behalf effective as
of the day and year first hereinabove written.
By:____________________ By:_________________________
Xxxxxxx X. Xxxxxxx, Xx. Xx. X. X. Xxxx
(Representing both himself and CDEX Inc.
IAM Investment Group LP) Chairman of the Board of Directors
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