EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, executed this 4th day of December, 2002 and
except as specified herein, is effective as of the Effective Date, is entered
into by and between REGENETECH, INC., a Texas corporation (the "Regenetech"),
and XXXXXX XXXXXX, an individual ("Xxxxxx").
1.0 RECITALS
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1.1 Regenetech and Xxxxxx have previously entered into that
certain Consulting Agreement dated as of November 3rd, 2002 (the "Prior
Agreement").
1.2 As of the Effective Date, the Prior Agreement constituted the
entire understanding between Regenetech and Xxxxxx.
1.3 Regenetech and Xxxxxx desire to enter into this Employment
Agreement upon the terms and conditions set forth herein, and supersede the
Prior Agreement upon the effectiveness hereof.
1.4 Regenetech and Xxxxxx also desire to maintain Regenetech's
confidential and proprietary trade secrets by entering into the Confidentiality
Agreement contemporaneously herewith.
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby admitted and acknowledged, the parties hereto agree
as follows:
2.0 DEFINITIONS
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2.1 AGREEMENT: "Agreement" shall mean this Employment Agreement.
2.2 BUSINESS OF REGENETECH: "Business of Regenetech" shall mean adult
stem cell research and the marketing of adult stem cell intellectual property.
2.3 CONFIDENTIALITY AGREEMENT: "Confidentiality Agreement" shall
mean that certain Confidentiality and Non-Disclosure Agreement by and between
the Regenetech and Xxxxxx entered into concurrently herewith.
2.4 CORPORATION: "Corporation' shall mean Regenetech, Inc., a Texas
corporation.
2.5 COVENANT TERRITORY: "Covenant Territory" shall mean every city or
county in the United States.
2.6 COVENANT TERM: "Covenant Term" shall mean a period beginning on the
Effective Date and ending when Xxxxxx is no longer receiving Base Salary or any
other options or benefits under this agreement.
2.7 DISABILITY: "Disability" shall mean a determination by the Board of
Directors of Regenetech that, due to physical or mental illness, Xxxxxx is
unable to perform his customary duties hereunder for a period in excess of (i)
ninety (90) consecutive days, or (ii) one hundred twenty (120) days in any
consecutive twelve (12) month period.
2.8 DISCHARGE FOR CAUSE: "Discharge for Cause' shall mean:
(a) A violation or termination of employment for proven embezzlement,
intoxication or illegal drug use which materially interferes with job
performance,
(b) Absenteeism in excess of two (2) times normal corporate policy, wrongful
disclosure of the Regenetech's Confidential Information (including but not
limited to violation of the Confidentiality Agreement),
(c) Gross insubordination,
(d) Violation of any laws materially affecting the company, including, but
not limited to, state and federal securities laws, the Xxxxxxxx-Xxxxx Act,
sexual harassment laws, illegal discrimination laws arrest or indictment for a
felony, engaging in conduct adverse to the corporation, breach of common law
duties to the corporation such as loyalty, usurpation of business opportunity,
(e) Breach of any provisions of this agreement,
(f) Receipt of any rebate, kickback or other remuneration or consideration
from any party that conducts business with Regenetech,
(g) Failure to perform competently, in the Board's sole discretion, the
customary duties of those positions specified in this agreement for businesses
similar to the Business of Regenetech.
2.9 EFFECTIVE DATE: "Effective Date' shall mean December 4, 2002.
2.10 XXXXXX: "Xxxxxx" shall mean XXXXXX XXXXXX, an individual.
2.11 REGENETECH: "Regenetech" shall mean Regenetech,
Inc, a Texas corporation.
2.12 EMPLOYMENT AGREEMENT: "Employment Agreement" shall mean this
Employment Agreement dated December 4th , 2002 including all amendments thereto,
by and among Regenetech and Xxxxxx.
2.13 OPTION: "Option" shall mean the stock options granted
under the terms of this agreement.
2.13 PRIOR AGREEMENTS: "Prior Agreements" shall mean the Consulting
Agreement entered into between the parties dated November 3rd, 2002.
2.14 TERMINATION WITHOUT CAUSE: "Termination Without Cause" shall mean
any of the following:
(a) Termination of Xxxxxx'x services during the term of this Agreement for
reasons other than Discharge for Cause;
(b) Repeated gross harassment, malicious ridicule, or malicious
statements that repudiate the integrity or professional standing of Xxxxxx in a
manner that materially impairs Xxxxxx'x performance of Xxxxxx'x duties
hereunder. In the case of any of the foregoing, Xxxxxx shall provide Regenetech
with written notice of the foregoing items to provide Regenetech with an
opportunity to investigate and rectify it. Regenetech shall have thirty (30)
days to cure such items, and no "Termination Without Cause" shall occur until
the expiration of such period without action by Regenetech.
Termination initiated by Xxxxxx by reason of Paragraphs (b) shall
constitute "Termination Without Cause".
3.0 EMPLOYMENT
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Regenetech hereby employs Xxxxxx as of the Effective Date, and Xxxxxx
hereby accepts employment with Regenetech, upon the terms and conditions
contained in this Agreement.
4.0 CAPACITIES AND DUTIES
-----------------------
4.1 Xxxxxx is hereby employed in the capacity of President of
Regenetech, rendering such services and having such managerial and other duties
and responsibilities usual to executive management as may be assigned to Xxxxxx
from time to time by the Board of Directors of the Regenetech.
4.2 Xxxxxx shall render these services as determined by the Regenetech
at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx or at such other home office for senior
executives as Regenetech may designate from time to time.
4.3 Regenetech may also cause Xxxxxx to be elected to Regenetech's
Board of Directors, and/or be appointed Vice-Chairman of the board, but it shall
not entitle Xxxxxx to any additional compensation hereunder.
4.4 Xxxxxx agrees to devote his best efforts and exclusive time to
rendering services to Regenetech. Xxxxxx is specifically restricted from being
employed by any other corporation while under the employ of Regenetech pursuant
to the terms and conditions of this Agreement without prior written approval of
the Board of Directors of Regenetech.
4.5 If Xxxxxx engages in other work activities in breach of the
exclusivity provisions of this Section, for compensation or other consideration,
or receives ancillary compensation for activities associated with his employment
with Regenetech from sources unrelated to Regenetech, it shall be grounds for
immediate Discharge for Cause and abatement of all accrued and unpaid bonuses,
commissions, deferred compensation, stock option rights and other benefits.
5.0 INTERIM CONVENANTS
-------------------
5.1 Until the Effective Date, as an inducement for Regenetech's entry
into this Agreement, Xxxxxx agrees that the Prior Agreements shall remain in
full force and effect pursuant to the terms thereof
5.2 On the Effective Date, the Prior Agreements shall be superseded by
this Agreement and have no further force or effect.
6.0 TERM
----
6.1 Subject to the rights of parties to prior termination and
Regenetech's right to extend Xxxxxx'x employment under the terms hereof, the
term of this Agreement shall be three (3) years commencing on the Effective
Date.
6.2 This Agreement shall terminate upon the following events:
(a) Xxxxxx'x death;
(b) Xxxxxx'x Disability; or
(c) Regenetech so electing. If Xxxxxx is discharged without cause, he
shall be paid one-year's compensation according to Regenetech's normal employee
payment schedule. However, payments shall cease if Xxxxxx breaches any portion
of the confidentiality or non-compete provisions of this agreement during that
time.
6.3 Upon the expiration of this Agreement for any reason, this
Agreement may be extended at Regenetech's option for up to four (4) additional
one (1) year periods. If Regenetech so specifies, Xxxxxx shall continue to serve
in one of the capacity he was serving in at the time during any extension
period. In such case, Xxxxxx shall continue to be entitled to all benefits under
this Agreement, including but not limited to all benefits and stock options. Any
extensions shall occur separately on each anniversary date following the
original expiration date by Regenetech's provision of written notice to Xxxxxx,
at least thirty (30) days prior to the expiration date, of Regenetech's intent
to extend this Agreement for one (1) year. If Xxxxxx is terminated, and as a
result of such termination is entitled to severance pay under Section 7.6
hereof, any extension under this Section 6.3 shall take effect at the end of the
period for which Xxxxxx is entitled to severance pay, and the required notice
hereunder shall occur at least thirty (30) days prior to the expiration of such
period. Regenetech and Xxxxxx acknowledge that one of the purposes of
Regenetech's extension option is to give Regenetech the benefit of Xxxxxx'x
skills, advice, and experience, even if, during the period of any extension
options, Xxxxxx is not serving in a full time or other designated capacity. If
Xxxxxx terminates employment for any reason, and Regenetech exercises the option
granted herein but specifies that Xxxxxx'x duties shall no longer involve
serving Regenetech in a designated capacity, Regenetech's sole obligation to
Xxxxxx shall be to pay Xxxxxx the Base Salary provided in Section 7.1, in
accordance with Regenetech's normal payroll practices, and to provide Xxxxxx
with medical benefits. If Regenetech exercises its option to extend and
specifies that Xxxxxx'x duties shall no longer include serving Regenetech in a
designated capacity, Xxxxxx will remain reasonably available for consultation to
Regenetech, and agrees to protect Regenetech's trade secrets in accordance with
the provisions of the Confidentiality Agreement. In such circumstances, Xxxxxx
shall be entitled to engage in activities that would otherwise breach Section
4.4 hereof so long as such activities do not violate the provisions of Section
11.0 hereof. For purposes hereof, Regenetech shall not be obligated to render
more than fifty (50) hours of service to Regenetech each month, nor more than
six hundred (600) hours of services in the aggregate per year. Further, if
Regenetech exercises its rights to extend following a Discharge With or Without
Cause or if there is no Discharge With or Without Cause but Regenetech specifies
that Xxxxxx'x duties shall no longer include serving Regenetech in a designated
capacity, Xxxxxx shall not be deemed to be "employed" by Regenetech during the
period of any employment extensions solely for purposes of determining Xxxxxx'x
rights under any stock options. Notwithstanding the foregoing, if Xxxxxx is
Discharged Without Cause, Xxxxxx shall have one (1) year beyond the effective
date of such discharges to exercise all options and such options shall continue
to vest in accordance with their terms until such one (1) year period expires.
If Xxxxxx is discharged for Cause, all unexercised options shall immediately
cease and be void.
6.4 Xxxxxx may terminate this Agreement prior to the expiration of its
term only if Regenetech breaches any of its material covenants or obligations
hereunder. In such circumstances, Xxxxxx shall provide Regenetech with written
notice, specifying Regenetech alleged breach, at least thirty (30) days prior to
Xxxxxx'x termination. Said termination will take effect only if Regenetech fails
to cure or correct the breach specified in Xxxxxx'x written termination notice
within thirty (30) days of Regenetech's receipt thereof. Even in the case of a
breach by Regenetech, Regenetech may exercise the extension options provided in
Section 6.3. Further, if Xxxxxx terminates this Agreement under circumstances
constituting a "Termination Without Cause" that entitles Xxxxxx to xxxxxxxxx pay
under Section 7.6 hereof, Regenetech's extension option under Section 6.3 shall
take effect only after the expiration of the period for which Xxxxxx is entitled
to severance pay under Section 7.6, with Regenetech's notice of any extension to
be provided to Xxxxxx at least thirty (30) days prior to the expiration of the
period for which Xxxxxx is entitled to severance benefits.
6.5 Regenetech may unilaterally terminate this Agreement in the
following circumstances:
(a) Upon a Discharge for Cause, which shall take effect immediately
upon Regenetech's written notification to Xxxxxx, outlining the reasons for
cause. For Discharges for Cause under Section 2.8, Xxxxxx shall not be entitled
to any further compensation or benefits under this Agreement beyond the
effective date of the Discharge for Cause. In such circumstances, Xxxxxx shall
be entitled to retain any stock already obtained pursuant to an option or
otherwise, but any unvested or unexercised stock options granted to Xxxxxx shall
immediately and automatically terminate.
7.0 BASE COMPENSATION AND NORMAL BENEFITS
--------------------------------------
For the service of Xxxxxx, the Regenetech agrees to pay to Xxxxxx compensation
as follows:
7.1 Base Salary: Annual base compensation of eighty five thousand
dollars ($85,000.00) per year, paid according to the general payroll practices
of Regenetech as it exists from time to time. At such time as EMPLOYER receives
the total amount of $5,000,000 in funding, President's salary shall be increased
to $120,000 per year.
7.2 Annual Bonus:
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(a) In addition to other compensation payable hereunder, Regenetech's
Board of Directors may, in its sole and absolute discretion, xxxxx Xxxxxx an
annual bonus for each calendar year (or portion thereof in the case of a period
of less than twelve (12) months) during the term hereof. If granted, Regenetech
shall pay any bonus to Xxxxxx promptly after the first meeting of the
Regenetech's Board of Directors following the previous calendar year, but in no
case later than December 31st of each year beginning December 31, 2003.
(b) In addition to the bonus delineated in Paragraph (a), if there is a
pool of bonuses for all senior executives of the Regenetech, Xxxxxx shall be
included in said pool. The amount of the bonus from said pool payable to Xxxxxx,
if any, shall be determined in the sole discretion of the Board of Directors.
However, if the Board of Directors authorizes payments out of the pool to other
senior executives who have been employed for at least a full year by Regenetech,
Xxxxxx shall receive an amount from the bonus pool that is at least equal to the
lowest bonus paid to other senior executives out of the pool.
7.3 Reasonable Expenses: Regenetech shall pay or reimburse Xxxxxx for
any reasonable expenses incurred by Xxxxxx in the business of the Regenetech for
the promotion of its business, on the basis consistent with policies and
guidelines approved by the Board of Directors of Regenetech and in effect from
time to time; provided, however, that in any event the following expenses shall
be borne by the Regenetech:
(a) Regenetech will pay or will reimburse Xxxxxx for an automobile used
primarily in business travel by Xxxxxx on behalf of the Regenetech.
(b) Regenetech will pay or will reimburse Xxxxxx for the cost of
insurance, maintenance, repairs, and operating expenses reasonably and actually
incurred on behalf of the Regenetech in connection with said automobile and for
the business-related car phone usage in the same.
(c) Regenetech will pay or will reimburse Xxxxxx for monthly or other
periodic (non-initiation) fees and dues for Xxxxxx'x membership in and other
business-related charges reasonably and actually incurred by Xxxxxx for business
promotion and entertainment providing it has been approved in writing by the
Board prior to the expenses being incurred.
(d) Regenetech will not pay for Xxxxxx'x tax preparation.
7.4 ADDITIONAL BENEFITS: Xxxxxx shall have the right to participate in
any medical, vision, dental, life (including accidental death and dismemberment)
and long-term disability group insurance plans or similar Xxxxxx benefit plans
now in effect or hereinafter established or ratified by the Regenetech's Board
of Directors for the benefit of managerial or salaried Parkers for so long as
such plan is maintained in effect for the benefit of such Parkers, with Xxxxxx'x
participation or share therein being determined by the terms, provisions, and
requirements of the respective plans as in effect from time to time; provided,
however, that notwithstanding the foregoing provisions of this Section 7.0, the
following provisions will apply:
a) The cost of Xxxxxx'x coverage under the group insurance
plans and additional benefits mentioned in Subsection 7.4 above, as well as the
coverage of Xxxxxx'x spouse and dependent minor children under the medical and
dental group insurance plans, will be borne by Regenetech.
7.5 VACATION
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(a) After the first six months of employment hereunder, Xxxxxx shall be
entitled to vacation on an annual basis for three (3) weeks; provided, however,
that upon termination of employment hereunder Xxxxxx shall be entitled to
compensation for accrued vacation and time in excess of the number of days of
vacation that Xxxxxx accrued during his last twelve (12) months of employment
with the Regenetech and which has not been used.
(b) Notwithstanding the preceding, should Xxxxxx be Terminated Without
Cause before the first anniversary date of the Effective Date, then Xxxxxx shall
be entitled to three (3) weeks pay in lieu of any accrued vacation.
7.6 SEVERANCE: In the event Xxxxxx is Terminated Without Cause during
the first two (2) years of the initial three (3) year term, Regenetech shall pay
Xxxxxx compensation equal to one (1) year's Base Salary, plus medical benefits
under Section 7.4.
8.0 STOCK OPTIONS
--------------
8.1 Regenetech and Xxxxxx agree that the granting of options cannot be
accomplished at the execution of this agreement because of a lack of
clarification of income tax issues. Regenetech and Xxxxxx agree to use their
best efforts to reach an agreement as soon as possible wherein Xxxxxx obtains
options with the following milestones:
A. Option A to be an option for 100,000 shares of Regenetech stock upon
filing an SB-2 registration application with the SEC.
B. Option B to be an option for 100,000 shares of Regenetech stock upon
approval of the SB-2 registration by SEC.
C. Option C to be an option for 100,000 shares of Regenetech stock when the
first $5,000,000 has been received for sale of shares of Regenetech stock.
D. Option D to be an option for 100,000 shares of Regenetech stock upon
Regenetech receiving its first $10,000 in licensing or product sales revenue.
E. Option E to be an option for 100,000 shares of Regenetech stock upon
Regenetech receiving its first $500,000 in licensing or product sales revenue.
8.2 Regenetech and Xxxxxx agree that although they will use their best
efforts to reach an agreement with respect to stock options, no such options
shall exist or invest until such an agreement is reached, reduced to writing,
and executed by both Regenetech and Xxxxxx.
9.0 XXXXXX LOANS
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9.1 Regenetech shall not make any loans to Xxxxxx.
10.0 PROTECTION AGAINST DISCLOSURE OF CONFIDENTIAL_INFORMATION
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10.1 ACCESS TO CONFIDENTIAL INFORMATION: Xxxxxx recognizes and
acknowledges that he has had and have access to certain Confidential Information
of the Regenetech and that such information constitutes valuable, special and
unique property of the Regenetech.
10.2 CONFIDENTIALITY AGREEMENT: Concurrent with the execution of this
Agreement, Xxxxxx will enter into that certain Confidentiality Agreement which
sets forth the Agreement of Regenetech and Xxxxxx regarding Confidential
Information.
10.3 CONDITION PRECEDENT: Xxxxxx acknowledges that but for his entering
into the Confidentiality Agreement, Regenetech would not have entered into this
Agreement.
10.4 BREACH OF CONFIDENTIALITY AGREEMENT: Xxxxxx and Regenetech agree
that a breach under the Confidentiality Agreement shall constitute a breach of
this Agreement and shall give rise to a Discharge for Cause.
10.5 PROPERTY OF REGENETECH: All records, forms, supplies or reproduced
copies, provided and furnished by Regenetech to Xxxxxx, or obtained by Xxxxxx
during the performance of his services under this Agreement, whether written,
oral or in electronic or computer format, and/or the Prior Agreements shall
remain the property of the Regenetech and shall be accounted for and returned by
Xxxxxx upon demand of Regenetech. Such records, forms and supplies shall
include, but not be limited to, such things as: documents; interoffice memos;
records, any correspondence, regardless of the author; notebooks; client lists;
or any such other supplies provided by the Regenetech. It is expressly
understood that Xxxxxx'x license to the possession of said records, forms or
supplies, or any copies thereof, are to fulfill his obligations to the
Regenetech under this Agreement and/or the Prior Agreements, and he has no other
right or proprietary interest in those documents.
11.0 RESTRICTIVE COVENANT NOT TO COMPETE
---------------------------------------
11.1 COVENANT: During the period of time any payments are being made by
Regenetech, its successors, or assigns, under this Agreement, Xxxxxx shall not
engage in or participate in the Business of the Regenetech, directly or
indirectly, as a partner, shareholder, officer, director, Xxxxxx, consultant,
independent contractor, agent or otherwise, within the Covenant Territory, other
than by working for Regenetech, or its successors or assigns.
11.2 AFFILIATION: Xxxxxx agrees that during the Covenant Term, he will
not, directly or indirectly, individually or together or through any affiliate
or other firm, request, advise, solicit, entice, persuade, induce, approach or
counsel or attempt to request, advise, solicit, entice, persuade, induce,
approach, or counsel any employee, insurance broker, insurance agent, reinsurer,
reinsurance broker, insured, client or customer of Regenetech to withdraw,
curtail, cancel, terminate, alter or refrain from extending or renewing any
contractual or other relationship of such employee, insurance broker, insurance
agent, reinsurer, reinsurance broker, insured, client, or customer of Regenetech
or, where such a relationship with the Regenetech is one of an exclusive nature,
to commence a similar or substantially similar relationship with the company, or
any of his affiliates, or any competitor of the Regenetech in the Covenant
Territory. In addition, Xxxxxx agrees that, if his employment is terminated
during the Covenant Term, he will not, directly or indirectly, individually or
together or through any affiliate or other firm, employ or attempt to employ any
of the Regenetech's employees or induce or encourage any of the Regenetech's
employees to seek or take employment other than with Regenetech
11.3 FAILURE TO COMPLY: Xxxxxx'x failure to comply with the provisions
of this Section 11.0 shall give Regenetech the right (in addition to all other
remedies Regenetech may have) to terminate any benefits or compensation to which
Xxxxxx may be otherwise entitled, following termination of his employment
hereunder. Xxxxxx'x obligations pursuant to this Section 11.0 shall be excused
during such time that Xxxxxx has performed his obligations under this Agreement
and Regenetech has failed to pay Xxxxxx the consideration owed to him, pursuant
to this Agreement, in addition to all the rights Xxxxxx may have with respect to
such breach by the Regenetech.
11.4 ENFORCEABILITY: If any provisions of this Section 11.0 as applied
to any party or circumstances, shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision and any other circumstances, or the
validity or enforceability of this Agreement. If any provision of this Section
11.0, or any part thereof, is held to be unenforceable, the court making such
determination shall have the power to modify and reform such provisions so that
the restriction imposed thereby is no greater than what would otherwise be
permissible under the applicable law.
11.5 SEPARATE COVENANTS: The parties hereto agree that the duration and
area for which the covenants set forth herein is to be effective are reasonable.
In the event that any court determines that the time period or the area, or both
of them, are unreasonable and that such covenant is to the extent unenforceable,
the parties hereto agree that the covenant shall remain in full force and effect
for the greatest time period and to the greatest area that would not render it
unenforceable. The parties intend that this covenant shall be deemed to be a
series of separate covenants, one for each and every county where this covenant
is intended to be effective.
11.6 EQUITABLE RELIEF: Xxxxxx represents that due to his education and
qualifications and the significant consideration which he will receive pursuant
to this Agreement, his ability to earn a livelihood would not be impaired if
Regenetech is granted equitable relief to enforce the obligations set forth in
this Agreement.
11.7 EXTENSION OF COVENANT TERM: The term of the covenant provided for
in this Section 11.0 shall be extended by any period for which Regenetech, in
its sole discretion, elects to extend the term of Xxxxxx'x employment, as
provided in Section 6.3 hereof.
12.0 RELEASE OF CLAIMS
-------------------
12.1 Upon the Effective Date, Regenetech, does hereby for its self, and
for its agents, current or former employees, representatives, attorneys, legal
successors and assigns, officers, directors and shareholders, expressly release
and absolutely and forever discharge Xxxxxx, and Xxxxxx'x respective agents,
representatives, attorneys, legal successors and assigns, of and from any and
all claims, demands, damages, debts, liabilities, obligations, costs, expenses,
liens, actions and causes of action of every kind and nature whatever, whether
known or unknown at the Effective Date, suspected or unsuspected, which
Regenetech, has at the Effective Date, own or hold, or at any time prior to the
Effective Date ever had, owned or held, or could, shall or may after the
Effective Date have, own or hold against Xxxxxx based upon, related to or by
reason of any contract, express, implied in fact or implied by law, lien,
liability, matter, cause, fact, thing, act or omission whatsoever occurring or
existing; provided, however, that such release shall not relieve any obligation
of Xxxxxx arising pursuant to this Agreement or the Confidentiality Agreement.
12.2 Upon the Effective Date, Xxxxxx does hereby for himself, and for
his agents, representatives, attorneys, legal successors and assigns, expressly
release and absolutely and forever discharge Regenetech and each of Regenetech's
respective agents, current or former employees, representatives, attorneys,
legal successors and assigns, officers, current and former directors and
shareholders, of and from any and all claims, demands, damages, debts,
liabilities, obligations, costs, expenses, liens, actions anti causes of action
of every kind and nature whatever, whether known or unknown at the Effective
Date, suspected or unsuspected, which Xxxxxx has, at the Effective Date, owns or
holds, or at any time prior to the Effective Date ever had, owned or held, or
could, shall or may after the Effective Date have, own or hold against and
Regenetech, related to or by reason of any contract, express, implied in fact or
implied by law, lien, liability, matter, cause, fact, thing, act or omission
whatsoever occurring or existing; provided, however, that such release shall not
relieve the Regenetech's obligations arising pursuant to this Agreement.
12.3 The parties expressly agree and acknowledge to one another that
they are familiar with Texas law with respect to a General Release.
INITIALS:
_____________ _____________
Xxxxxx Regenetech
13.0 WAIVER
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The failure of the Regenetech and Xxxxxx at any time to demand strict
performance by the other of any terms, covenants or conditions set forth herein,
shall not be construed as a continuing waiver or relinquishment thereof, and
either party may, at any time, demand strict and complete performance by the
other of said terms, covenants and conditions
14.0 SIGNIFICANCE OF HEADINGS
--------------------------
Section and Subsection headings contained herein are solely for the purpose
of convenience, and are not in any sense to be given weight in the construction
of this Agreement. Accordingly, in the case of any question with respect to the
construction of this Agreement, it is to be construed as though section and
subsection headings have been omitted.
15.0 REGENETECH/XXXXXX RELATIONSHIP
-------------------------------
This Agreement shall specifically include any Regenetech/Xxxxxx
relationship. Regenetech shall be responsible for withholding the appropriate
taxes and paying the appropriate taxes and other assessments on Xxxxxx, pursuant
to the regulations promulgated by the related governmental agencies.
16.0 ENTIRE AGREEMENT
-----------------
16.1 SOLE AGREEMENT: This Agreement (including any attachments and
EXHIBITS hereto) contains the parties' sole and entire agreement regarding the
subject matter hereof, and supersedes any and all other agreements between them.
16.2 NO OTHER REPRESENTATIVES: The parties
acknowledge and agree that no party has made any representations (a) concerning
the subject matter hereof, or (b) inducing the other party to execute arid
deliver this Agreement, except those representations specifically referenced
herein. The parties have relied on their own judgment in entering into this
Agreement.
16.3 NO RELIANCE: The parties further acknowledge that
any statements or representations that may have been made by either of them to
the other are void and of no effect. No party has relied on any such statements
or representations in dealing with the other(s).
17.0 COOPERATION AND FURTHER ACTIONS
----------------------------------
The parties agree to perform any and all acts and to execute and deliver
any and all documents necessary or convenient to carry out the terms of this
Agreement.
18.0 NO MODIFICATIONS OR WAIVERS
------------------------------
18.1 MUST BE WRITTEN: Waivers or modifications of this Agreement, or of
any covenant, condition, or limitation contained herein, are valid only if in
writing. Such writing must be duly executed by the parties.
18.2 NO USE AS EVIDENCE: One or more waivers or modifications of any
covenant, term or condition in this Agreement by any party shall not be
construed by any other party as a waiver or modification applicable to any
subsequent breach of the same covenant, term or condition. Evidence of any such
waiver or modification may not be offered or received in evidence in any
proceeding, arbitration, or litigation between the parties arising out of or
affecting this Agreement, or a party's rights or obligations under it. This
limitation does not apply if the waiver or modification is in writing and duly
executed as provided above.
19.0 JOINT PREPARATION
------------------
The parties to this Agreement have been represented by competent counsel.
This Agreement is therefore deemed to have been jointly prepared by the parties,
and any uncertainty or ambiguity existing in it shall not be interpreted against
any party under the presumptions of Texas law, but rather shall be interpreted
according to the rules generally governing the interpretation of contracts.
20.0 SPOUSAL CONSENT
----------------
By executing this Agreement, Xxxxxx represents and warrants that he has
secured the permission and consent of his spouse to enter into this Agreement
and fully perform his respective obligations hereunder. Xxxxxx has obtained the
signature of his spouse on the Spousal Consent attached hereto as EXHIBIT A.
21.0 PROFESSIONAL FEES
------------------
If a lawsuit or other proceedings are instituted by any party to enforce
any of the terms or conditions of this Agreement against any other party hereto,
the prevailing party in such litigation or proceedings shall be entitled, as an
additional item of damages, to such reasonable attorneys' and other professional
fees (including but not limited to expert witness fees) and court costs or costs
of such other proceedings as may be fixed by any court of competent
jurisdiction, or other judicial or quasi-judicial body having jurisdiction
thereof, whether or not such litigation or proceedings proceed to a final
judgment or award.
22.0 BINDING UPON SUCCESSORS
-------------------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
23.0 ARBITRATION OF DISPUTES
-------------------------
In the event of any dispute under or relating to the terms of this
Agreement, or breach thereof, it is agreed that the same shall be submitted to
mediation. If a dispute regarding this Agreement cannot be resolved by mutual
agreement, Regenetech and Xxxxxx shall attempt to resolve the dispute in good
faith by submitting it to mediation in accordance with the CPR Mediation
Procedure used by the CPR Institute for Dispute Resolution (xxx.xxx.xxxxxx.xxx).
Unless otherwise agreed, the parties will select a mediator from the CPR Panel
of Distinguished Neutrals, and the mediation shall be held no later than sixty
days after the date on which either party notifies the other party that it is
invoking this mediation provision. Compliance with this Paragraph is a mandatory
condition precedent to seeking judicial enforcement of any provision in this
Agreement except: (i) in the event Cause for termination exists, although if
Xxxxxx challenges the termination for Cause, he must comply with the provisions
of this Paragraph as a mandatory condition precedent to filing suit; (ii) to
enforce the provision allowing for the recovery of attorney's fees and expenses
of litigation for a breach of this agreement; and (iii) in the event a party is
required to seek injunctive relief. To the extent permitted by law, the
applicable statue of limitations shall be tolled until the mediation required by
this Paragraph has concluded.
24.0 SEVERABILITY
------------
If any part, clause, or condition of this Agreement is held to be partially
or wholly invalid, unenforceable, or inoperative for any reason whatsoever, such
shall not affect any other provision or portion hereof, which shall continue to
be effective as though such invalid, inoperative, or unenforceable part, clause
or condition bad not been made.
25.0 GOVERNING LAW AND VENUE
--------------------------
All questions concerning this Agreement, its construction, and the rights
and liabilities of the parties hereto shall be interpreted and enforced in
accordance with the laws of the State of Texas as applied to contracts, which
are executed and performed entirely within the state. For purposes of this
Agreement, sole and proper venue shall be the City of Houston, State of Texas
26.0 INTERPRETATION
--------------
26.1 SECTION HEADINGS: The section and subsection headings of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
26.2 CAPITALIZED TERMS: Except as otherwise expressly provided herein,
all capitalized terms defined in this Agreement shall have the meaning ascribed
to them herein.
26.3 GENDER AND NUMBER: Whenever required by the context, the singular
shall include the plural, the plural shall include the singular, and the
masculine gender shall include the neuter and feminine genders and vice versa.
27.0 FACSIMILE AND EMAIL NOTICES
---------------------------
For purposes hereof, delivery of written notice shall be complete upon
receipt of electronic facsimile or email, provided that any facsimile or email
notice shall only be deemed received if (a) the transmission thereof is
confirmed, and (b) facsimile or email notice is followed by written notice, made
either by (i) personal delivery thereof, or (ii) via deposit in regular mail,
postage prepaid, within three (3) business days following the facsimile or email
notice. Notices shall be addressed to the parties as follows:
Regenetech: Regenetech, Inc.
Attn: Xxxxxx Xxxx
0000 Xxxxx Xxxxxx, 00xx xxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Regenetech: Regenetech, Inc.
Attn: Xxxx Xxxx
0000 Xxxxx Xxxxxx, 00xx xxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax:
Xxxxxx: Xxxxxx Xxxxxx
0000 Xxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Notice shall be deemed given on the date it is sent via facsimile or email.
Any party may change the address to which to send notices by notifying the other
party of such changes in writing in accordance with this Paragraph.
28.0 TIME OF ESSENCE
-----------------
The patties acknowledge and agree that time is strictly of the essence with
respect to each and every term, condition, obligation and provision hereof.
Failure to timely perform any of the terms, conditions, obligations or
provisions hereof by any party shall constitute a material breach of this
Agreement by the party so failing to perform.
29.0 THIRD PARTY BENEFICIARIES
---------------------------
No term or provision of this Agreement is intended to be, or shall be, for
the benefit of any person, firm, organization or corporation not a party hereto,
and no such other person, firm, organization or corporation shall have any right
or cause of action hereunder.
30.0 COUNTERPARTS
------------
This Agreement may be executed in several counterparts, each of which so
executed shall be deemed to be an original, but such counterparts shall together
constitute and be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
REGENETECH, INC.,
a Texas corporation
By: /s/ Xxxx Odom___________________
It's Chief Operating Officer
-------------------------------
'Regenetech"
/s/ ______________________
--------------------------
XXXXXX XXXXXX, an individual
"XXXXXX"
CONSENT TO AGREEMENT
I, the undersigned, am the spouse of Xxxxxx Xxxxxx. I have read the Employment
Agreement entered into on December 4th , 2002, by and among Regenetech, Inc, a
Texas corporation ("Corporation") and my spouse, Xxxxxx Xxxxxx, and clearly
understand the provisions thereof.
I am aware that by the provisions of said Agreement my spouse has agreed to
certain provisions regarding his employment with the aforementioned Corporation,
including the expiration of certain stock options according to their terms and
the grant of new stock options and my community interest therein, if any, in
accordance with the terms and provisions of said Agreement. I hereby approve of
and consent and agree to be bound by the provisions of said Agreement, in its
entirety.
DATED: December 4, 2002.
/s/__________________________
Xxxxxxxx Xxxxxx
