EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”)
is
made and entered into as of _________ __, 2008, by and between Xcorporeal,
Inc.
(“Company”)
and
Xxxxx XxXxxxx (“Executive”),
to
become effective the 2nd
day of
October, 2008 (the “Effective
Date”).
RECITALS
A. WHEREAS,
Executive has experience and expertise to perform as the Chief Executive Officer
of Company, Company has agreed to employ Executive, and Executive has agreed
to
enter into such employment, on the terms set forth in this
Agreement.
B. WHEREAS,
Executive acknowledges that this Agreement is necessary for the protection
of
Company’s investment in its business, good will, products, methods of operation,
information, and relationships with its customers and other
employees.
C. WHEREAS,
Company acknowledges that Executive desires clarification of his compensation,
benefits, and other terms of employment.
NOW,
THEREFORE, in consideration thereof and of the covenants and conditions
contained herein, the parties agree as follows:
AGREEMENT
1. TERM
OF
AGREEMENT
The
term
of this Agreement shall begin on the Effective Date and shall continue until
the
earlier of: (a) the date on which it is terminated pursuant to Section 5; or
(b)
two (2) years following the Effective Date (“Term”).
In
the event Executive ceases to be employed by Company for any reason, Executive
shall tender his resignation from all positions he holds with the Company,
effective on the date his employment terminates.
2. EMPLOYMENT
2.1 Employment
of Executive.
Company
agrees to employ Executive to render services on the terms set forth herein.
Executive hereby accepts such employment on the terms and conditions of this
Agreement.
2.2 Position
and Duties.
Executive shall serve as Chief Executive Officer of Company, reporting to the
Company’s Board of Directors (“Board”),
and
shall have the general powers, duties and responsibilities of management usually
vested in that office and such other powers and duties as may be prescribed
from
time to time by the Board.
2.3 Standard
of Performance.
Executive agrees that he will at all times faithfully and industriously and
to
the best of his ability, experience and talents perform all of the duties that
may be required of and from him pursuant to the terms of this Agreement. Such
duties shall be performed at such place or places as the interests, needs,
business and opportunities of Company shall require or render
advisable.
2.4 Exclusive
Service.
Executive shall devote substantially all of his business energies and abilities
and all of his productive time to the performance of his duties under this
Agreement (reasonable absences during holidays and vacations excepted). The
Company acknowledges that Executive currently serves as the Chairman of
PatientFYI, LLC as well as an independent director of several other non-public
companies. The Company agrees that Executive may continue those activities
in
addition to his responsibilities as Chief Executive Officer.
3. COMPENSATION
3.1 Compensation.
During
the term of this Agreement, Company shall pay the amounts and provide the
benefits described in this Section 3, and Executive agrees to accept such
amounts and benefits in full payment for Executive’s services under this
Agreement.
3.2 Base
Salary.
Company
shall pay to Executive an annual base salary of $325,000, less applicable taxes,
earned and payable in substantially equal installments in accordance with
Company’s standard payroll practices. At Company’s sole discretion, Executive’s
base salary may be increased, but not decreased, annually.
3.3 Discretionary
Bonus.
Executive is eligible to receive an annual bonus in the sole discretion of
Company, based on Executive achieving designated individual goals and
milestones, and the overall performance and profitability of Company. The goals
and milestones will be established and reevaluated on an annual basis by mutual
agreement of Executive and the Board. Any bonus under this Section 3.3 will
be
based on a calendar year and shall be paid on or about April 30th
of the
following year, and in no event later than December 31 of the following year.
The first annual bonus, to the extent granted at the sole discretion of Company,
shall be prorated based on the Effective Date. The goals and objectives related
to the 2008 target bonus shall be established within thirty (30) days of the
Effective Date. Executive must be employed as of the last day of the calendar
year to which the bonus relates in order to receive any bonus for such year.
3.4 Equity
Incentive Plan.
(i) Executive
shall be granted options to purchase 700,000 shares of Company’s common stock
(the "Initial
Grant"),
at an
exercise price equal to the greater of (a) $1.50 per share or (b) the fair
market value of a share of Company common stock on the Effective Date, pursuant
to a Stock Option Agreement granted under the provisions of the Company's Stock
Incentive Plan (the "Plan").
The
option will vest as follows: 25% on the first, second, third, and fourth
anniversaries of the Effective Date.
(ii) If
Company issues shares to National Quality Care, Inc. ("NQCI")
pursuant
to its current negotiations with NQCI, Executive shall, upon the date of such
issuance to NQCI (the "Grant
Date"),
be
granted an additional option under the Plan to purchase such shares of Company's
common stock, at an exercise price equal to the greater of (a) $1.50 per share
or (b) the fair market value of a share of Company common stock on the Grant
Date, necessary to preserve Executive's ownership percentage of the Company
on a
fully diluted basis, based upon the ownership percentage determined as of the
date of the Initial Grant. The option shall be granted pursuant to a Stock
Option Agreement granted under the provision of the Plan, and shall vest as
follows: 25% on the first, second, third, and fourth anniversaries of the Grant
Date.
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(iii) Except
as
otherwise set forth herein, vesting of options will cease upon the termination
of Executive’s employment with Company.
3.5 Fringe
Benefits.
Upon
satisfaction of the applicable eligibility requirements, during the term of
his
employment, Executive (and his dependents) shall be included in any medical,
dental, disability and life insurance, pension and retirement plans and other
benefit plans or programs maintained by Company for the benefit of its
employees, subject to the terms of such plans and programs.
3.6 Paid
Time Off.
Executive shall accrue, on a daily basis, a total of four (4) workweeks of
paid
time off (PTO) per year following the Effective Date, provided, however, that
Executive’s accrued and unused PTO may not exceed a total of seven (7)
workweeks. Thereafter, Executive will not continue to accrue PTO benefits until
he has used enough PTO time to fall below this maximum amount. Any accrued
but
unused PTO will be paid to Executive, on a pro rata basis, at the time that
his
employment is terminated. This PTO shall be in addition to normal Company
holidays, which shall be determined at the discretion of Company from time
to
time.
3.7 Relocation.
If
Executive chooses to relocate his principal residence so that he may reside
in
closer proximity to the Company's headquarters, the Company shall reimburse
Executive for the reasonable packing, shipping, and transportation costs
incurred in relocating Executive's and his family's personal effects from his
then current home to the area in which the Company then is located, and for
any
additional costs upon which the Company and Executive then may mutually
agree.
3.8 Deduction
from Compensation.
Company
shall deduct and withhold from all compensation payable to Executive all amounts
required to be deducted or withheld pursuant to any present or future law,
ordinance, regulation, order, writ, judgment, or decree requiring such deduction
and withholding.
4. REIMBURSEMENT
OF EXPENSES
4.1 Travel
and Other Expenses.
Company
shall pay to or reimburse Executive for those travel, cell phone, promotional,
professional continuing education and licensing costs (to the extent required),
professional society membership fees, seminars and similar expenditures incurred
by Executive which Company determines are reasonably necessary for the proper
discharge of Executive’s duties under this Agreement and for which Executive
submits appropriate receipts and indicates the amount, date, location and
business character in a timely manner.
4.2 Liability
Insurance.
Company
shall provide Executive with officers and directors’ insurance, or other
liability insurance, consistent with its usual business practices, to cover
Executive against all insurable events related to his employment with Company.
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4.3 Indemnification.
Promptly upon written request from Executive, Company shall indemnify Executive,
to the fullest extent under applicable law, for all judgments, fines,
settlements, losses, costs or expenses (including attorneys’ fees), arising out
of Executive’s activities as an agent, employee, officer or director of Company,
or in any other capacity on behalf of or at the request of Company, unless
such
judgment, fine, settlement, loss, cost or expense is the result of Executive’s
gross negligence or misconduct. Such agreement by Company shall not be deemed
to
impair any other obligation of Company respecting indemnification of Executive
otherwise arising out of this or any other agreement or promise of Company
or
under any statute.
5. TERMINATION
5.1 Termination
With Good Cause; Resignation Without Good Reason.
Company
may terminate Executive’s employment at any time, with or without notice, for
Good Cause (as defined below). If Company terminates Executive’s employment for
Good Cause, or if Executive resigns without Good Reason (as defined below),
Company shall pay Executive his base salary prorated through the date of
termination, at the rate in effect at the time notice of termination is given,
together with any benefits mandated under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), or required under the terms of any death,
insurance or retirement plan, program or agreement provided by Company and
to
which Executive is a party or in which Executive is a participant. Company
shall
have no further obligations to Executive under this Agreement or any other
agreement, and all unvested options will terminate.
5.2 Termination
Without Good Cause; Resignation with Good Reason.
Executive shall have the right to terminate his employment with notice and
Good
Reason and Company shall have the right to terminate Executive’s employment at
anytime without Good Cause. If, at anytime prior to the expiration of the Term,
Company terminates Executive’s employment without Good Cause, or Executive
resigns for Good Reason:
(i) Company
shall pay Executive his base salary prorated through the date of termination,
at
the rate in effect at the time notice of termination is given, together with
any
benefits mandated under COBRA, or required under the terms of any death,
insurance or retirement plan, program or agreement provided by Company and
to
which Executive is a party or in which Executive is a participant;
(ii) Company
shall continue to pay Executive his base salary (at the annual rate in effect
at
the time of termination) for a period of twelve (12) months following
termination (the “Severance
Period”),
payable in substantially equal installments in accordance with Company’s payroll
policy from time to time in effect; and
(iii) If
Executive elects COBRA continuation coverage, Company shall pay for such health
insurance coverage through the Severance Period at the same rate as it pays
for
health insurance coverage for its active employees (with Executive required
to
pay for any employee-paid portion of such coverage). After the Severance Period
concludes, Executive shall be responsible for the payment of all premiums
attributable to COBRA continuation coverage at the same rate as Company charges
all COBRA beneficiaries. Nothing herein provided, however, shall be construed
to
extend the period of time over which such COBRA continuation coverage otherwise
may be provided to Executive and/or his dependents.
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To
be
eligible for the compensation provided for in Sections 5.2(ii) and (iii) above,
Executive must sign an agreement acceptable to Company that (a) waives any
rights Executive may otherwise have against Company, (b) releases Company from
actions, suits, claims, proceedings and demands related to the period of
employment and/or the termination of employment, and (c) contains certain other
obligations which shall be set forth at the time of the termination. Company
shall have no further obligations to Executive under this Agreement or any
other
agreement.
5.3 Good
Cause.
For
purposes of this Agreement, a termination shall be for “Good Cause” if
Executive, in the subjective, good faith opinion of Company, shall:
(i) Commit
an
act of fraud, moral turpitude, misappropriation of funds or embezzlement in
connection with his duties;
(ii) Breach
Executive’s fiduciary duty to Company, including, but not limited to, acts of
self-dealing (whether or not for personal profit);
(iii) Breach
this Agreement, the Confidentiality Agreement (defined below), or Company’s
written Codes of Ethics as adopted by the Board;
(iv) Commit
a
willful, reckless or grossly negligent violation of any material provision
of
Company’s written Employee Handbook, or any applicable municipal, state or
federal law or regulation;
(v) Fail
or
refuse (whether willfully, recklessly or negligently) to comply with all
relevant and material obligations, assumable and chargeable to an executive
of
his corporate rank and responsibilities, under the Xxxxxxxx-Xxxxx Act and the
regulations of the Securities and Exchange Commission promulgated
thereunder;
(vi) Fail
to
or refuse to comply with the lawful directives of the Board in the performance
of his duties under this Agreement (other than a failure caused by temporary
disability); provided, however, that no termination shall occur on that basis
unless Company first provides the Executive with written notice to cure. The
notice to cure shall reasonably specify the acts or omissions that constitute
the Executive’s failure or refusal to perform his duties, and the Executive
shall have a reasonable opportunity (not to exceed 10 days after the date of
notice to cure) to correct his failure or refusal to perform his duties.
Termination under this subsection (vi) shall be effective as of the date of
written notice to cure; or
(vii) Be
convicted of, indicted for, or enter a plea of guilty or no contest to, a felony
or misdemeanor under state or federal law, other than a traffic violation or
misdemeanor not involving dishonesty or moral turpitude.
-5-
5.4 Good
Reason.
For
purposes of this Agreement, a resignation shall be for “Good Reason” if tendered
within ninety (90) days of any of the following actions by Company:
(i) Assignment
to Executive of duties materially inconsistent with Executive’s status as
defined in Section 2.2, or a material reduction in the nature or status of
Executive’s responsibilities;
(ii) A
material change in the geographic location at which Executive must perform
the
services hereunder;
(iii) Any
other
action or inaction that constitutes a material breach of this Agreement by
Company; or
(iv) Executive
is asked to report to any one other than the Board.
A
resignation with Good Reason shall not be effective unless Company is first
provided with written notice of the action constituting Good Reason and an
opportunity to cure. The notice to cure shall reasonably specify the event
or
action constituting Good Reason and Company shall have an opportunity of thirty
(30) days to remedy such action.
5.5 Death
or Disability.
To the
extent consistent with federal and state law, Executive’s employment, salary,
and compensation shall terminate on his death or disability. “Disability” means
any health condition, physical or mental, or other cause beyond Executive’s
control, that prevents him from performing his duties, even after reasonable
accommodation is made by Company, for a period of 180 days within any 360 day
period. In the event of termination due to death or Disability, Company shall
pay Executive (or his legal representative) his salary prorated through the
date
of termination, at the rate in effect at the time of termination, together
with
any benefits accrued through the date of termination. Company shall have no
further obligations to Executive (or his legal representative) under this
Agreement.
5.6 Return
of Company Property.
Upon
the termination of his employment or at any time prior thereto upon the request
of Company, Executive shall return to Company all products, books, records,
forms, specifications, formulae, data processes, designs, papers and writings
relating to the business of Company including without limitation proprietary
or
licensed computer programs, customer lists and customer data, and/or copies
or
duplicates thereof in Executive’s possession or under Executive’s control.
Executive shall not retain any copies or duplicates of such property and all
licenses granted to him by Company to use computer programs or software shall
be
revoked upon the termination of Executive’s employment, unless earlier
terminated by Company.
5.7 Compliance
with Section 409A.
Payments and benefits under this Paragraph 5 shall be paid or provided only
at
the time of a termination of Executive’s employment that constitutes a
“separation from service” within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”),
and
the regulations and guidance promulgated thereunder. Further, if Executive
is a
“specified employee” as such term is defined under Section 409A of the Code and
the regulations and guidance promulgated thereunder, any payments described
in
Paragraph 5 shall be delayed for a period of six (6) months following
Executive’s separation of employment to the extent and up to an amount necessary
to ensure such payments are not subject to the penalties and interest under
Section 409A of the Code.
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5.8 Excess
Parachute Payments.
If
Executive would, except for this Section 5.8, be subject to a tax pursuant
to Section 4999 of the Code, or any successor provision that may be in effect,
as a result of "parachute payments" (as that term is defined in Section
280G(b)(2)(A) and (d)(3) of the Code) made pursuant to this Agreement or
pursuant to any plan, program, or policy of Company, or a deduction would not
be
allowed to Company for all or any part of such payments by reason of Section
280G(a) of the Code, or any successor provision that may be in effect, such
payments shall be reduced, eliminated, or postponed in such amounts as are
required to reduce the aggregate "present value" (as that term is defined in
Section 280G(d)(4) of the Code) of such payments to one dollar less than an
amount equal to three times Executive's "base amount" (as that term is defined
in Section 280G(b)(3)(a) and (d)(1) and (2) of the Code). To achieve such
required reduction in aggregate present value, Executive shall determine what
item(s) constituting the parachute payments shall be reduced, eliminated, or
postponed, the amount of each such reduction, elimination, or postponement,
and
the period of each such postponement. To enable Executive to make such
determination, Company shall be required to provide Executive with such
information as is reasonably necessary for such determination. Prior to the
making of any payment under this Agreement, either party may request a
determination as to whether such payment would constitute a "parachute payment,"
and, if so, the amount by which the payment must be reduced in accordance with
this Section 5.8. If such a determination is requested, it shall be made
promptly, at Company's expense, by tax counsel selected by Company and approved
by Executive (which approval shall not unreasonably be withheld), and such
determination shall be conclusive and binding on the parties. Company shall
provide such information as such counsel may reasonably request, and such
counsel may engage accountants or other experts at Company’s expense to the
extent that it reasonably deems it necessary to reach a
determination.
6. DUTY
OF
LOYALTY
Other
than those activities described in Section 2.4, during the term of his
employment, Executive shall not, without the prior written consent of Company,
directly or indirectly render services of a business, professional, or
commercial nature to any person or firm, whether for compensation or otherwise,
or engage in any activity directly or indirectly competitive with or adverse
to
the business or welfare of Company, whether alone, as a partner, or as an
officer, director, employee, consultant, or holder of more than 1 % of the
capital stock of any other corporation. Otherwise, Executive may make personal
investments in any other business so long as these investments do not require
him to participate in the operation of the companies in which he invests.
7. CONFIDENTIAL
INFORMATION
7.1 Trade
Secrets of Company.
Executive, during the term of his employment, will develop, have access to
and
become acquainted with various trade secrets which are owned by Company and/or
its affiliates and which are regularly used in the operation of the businesses
of such entities. Executive shall not disclose such trade secrets, directly
or
indirectly, or use them in any way, either during the term of his employment
or
at any time thereafter, except as required in the course of his employment
by
Company. All files, contracts, manuals, reports, letters, forms, documents,
notes, notebooks, lists, records, documents, customer lists, vendor lists,
purchase information, designs, computer programs and similar items and
information, relating to the businesses of such entities, whether prepared
by
Executive or otherwise and whether now existing or prepared at a future time,
coming into his possession shall remain the exclusive property of such entities,
and shall not be removed, other than for work-related purposes, from the
premises where the work of Company is conducted, except with the prior written
authorization by Company.
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7.2 Confidential
Data of Customers of Company.
Executive, in the course of his duties, will have access to and become
acquainted with financial, accounting, statistical and personal data of
customers of Company and of their affiliates. All such data is confidential
and
shall not be disclosed, directly or indirectly, or used by Executive in any
way,
either during the term of his employment (except as required in the course
of
employment by Company) or at any time thereafter.
7.3 Continuing
Effect.
The
provisions of this Section 7 and Sections 8 and 9 of this Agreement shall remain
in effect after the Term and/or following the termination of Executive’s
employment with Company.
8. NO
SOLICITATION
8.1 No
Solicitation of Employees.
Executive agrees that he will not, during his employment with Company, and
for
one (1) year thereafter if terminated without Good Cause or with Good Reason
or
for two (2) years thereafter if his employment terminates for any other reason,
encourage or solicit any other employee of Company to terminate his or her
employment for any reason, or solicit the service of any other employee of
Company (or any individual who was an employee of Company during the year
preceding such solicitation), nor will he assist others to do so, nor agree
to
hire any employee of Company (or an individual who was an employee of Company
during the year preceding such hire) into employment with himself or any other
person or entity.
8.2 No
Solicitation of Customers.
Executive agrees that he will not, during his employment with Company, and
for
one (1) year thereafter if terminated without Good Cause or with Good Reason
or
for two (2) years thereafter if his employment terminates for any other reason,
directly or indirectly call on, or otherwise solicit business from any actual
customer or potential customer known by Executive to be targeted by Company,
nor
will he assist others in doing so, nor will he otherwise interfere in Company’s
relationship with any of its customers.
9. INTELLECTUAL
PROPERTIES.
To
the
extent permissible under applicable law, all intellectual properties made or
conceived by Executive arising out of or relating to this Agreement or Company’s
business during the term of this employment by Company shall be the right and
property solely of Company, whether developed independently by Executive or
jointly with others. As a condition to his employment, Executive will sign
the
Company’s standard Executive Innovation, Proprietary Information and
Confidentiality Agreement (“Confidentiality
Agreement”).
-8-
10. OTHER
PROVISIONS
10.1 Compliance
With Other Agreements.
Executive represents and warrants to Company that the execution, delivery and
performance of this Agreement will not conflict with or result in the violation
or breach of any term or provision of any order, judgment, injunction, contract,
agreement, commitment or other arrangement to which Executive is a party or
by
which he is bound.
10.2 Injunctive
Relief.
Executive acknowledges that the services to be rendered under this Agreement
and
the items described in Sections 6, 7, 8 and 9 are of a special, unique and
extraordinary character, that it would be difficult or impossible to replace
such services or to compensate Company in money damages for a breach of such
Sections. Accordingly, Executive agrees and consents that if he violates any
of
the provisions of this Agreement, Company, in addition to any other rights
and
remedies available under this Agreement or otherwise, shall be entitled to
temporary and permanent injunctive relief, without the necessity of proving
actual damages and without the necessity of posting any bond or other
undertaking in connection therewith.
10.3 Attorneys’
Fees.
The
prevailing party in any suit or other proceeding brought to enforce, interpret
or apply any provisions of this Agreement, shall be entitled to recover all
costs and expenses of the proceeding and investigation (not limited to court
costs), including all attorneys’ fees.
10.4 Counsel.
The
parties acknowledge and represent that, prior to the execution of this
Agreement, they have had an opportunity to consult with their respective counsel
concerning the terms and conditions set forth herein. Additionally, Executive
represents that he has had an opportunity to receive independent legal advice
concerning the taxability of any consideration received under this Agreement.
Executive has not relied upon any advice from Company and/or its attorneys
with
respect to the taxability of any consideration received under this Agreement.
Executive further acknowledges that Company has not made any representations
to
him with respect to tax issues.
10.5 Nondelegable
Duties.
This is
a contract for Executive’s personal services. The duties of Executive under this
Agreement are personal and may not be delegated or transferred in any manner
whatsoever, and shall not be subject to involuntary alienation, assignment
or
transfer by Executive during his life.
10.6 Governing
Law.
The
validity, construction and performance of this Agreement shall be governed
by
the laws, without regard to the laws as to choice or conflict of laws, of the
State of California.
10.7 Venue.
If any
dispute arises regarding the application, interpretation or enforcement of
any
provision of this Agreement, including fraud in the inducement, such dispute
shall be resolved either in federal or state court in Los Angeles,
California.
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10.8 No
Jury.
If any
dispute arises regarding the application, interpretation or enforcement of
any
provision of this Agreement, including fraud in the inducement, the parties
hereby waive their right to a jury trial.
10.9 No
Punitive Damages.
If any
dispute arises regarding the application, interpretation or enforcement of
any
provision of this Agreement, including fraud in the inducement, the parties
hereby waive their right to seek punitive damages in connection with said
dispute.
10.10 Severability.
If any
provision of this Agreement shall be found invalid or unenforceable for any
reason, in whole or in part, then such provision shall be deemed modified,
restricted, or reformulated to the extent and in the manner necessary to render
the same valid and enforceable, or shall be deemed excised from this Agreement,
as the case may require, and this Agreement shall be construed and enforced
to
the maximum extent permitted by law, as if such provision had been originally
incorporated herein as so modified, restricted, or reformulated or as if such
provision had not been originally incorporated herein, as the case may be.
The
parties further agree to seek a lawful substitute for any provision found to
be
unlawful; provided, that, if the parties are unable to agree upon a lawful
substitute, the parties desire and request that a court or other authority
called upon to decide the enforceability of this Agreement modify those
restrictions in this Agreement that, once modified, will result in an agreement
that is enforceable to the maximum extent permitted by the law in existence
at
the time of the requested enforcement.
10.11 Binding
Effect.
The
rights and obligations of Company under this Agreement shall be binding upon
and
inure to the benefit of its successors and assigns.
10.12 Notice.
Any and
all notices required in connection with this Agreement shall be deemed
adequately given only if in writing and (a) personally delivered, or sent
by first class, registered or certified mail, postage prepaid, return receipt
requested, or by recognized overnight courier, (b) sent by facsimile,
provided a hard copy is mailed on that date to the party for whom such notices
are intended, or (c) sent by other means at least as fast and reliable as
first class mail. A written notice shall be deemed to have been given to the
recipient party on the earlier of (a) the date it shall be delivered to the
address required by this Agreement; (b) the date delivery shall have been
refused at the address required by this Agreement; (c) with respect to
notices sent by mail or overnight courier, the date as of which the Postal
Service or overnight courier, as the case may be, shall have indicated such
notice to be undeliverable at the address required by this Agreement; or
(d) with respect to a facsimile, the date on which the facsimile is sent
and receipt of which is confirmed. Any and all notices referred to in this
Agreement, or which either party desires to give to the other, shall be
addressed to his residence in the case of Executive, or to its principal office
in the State of California, marked “Attention: Chairman” in the case of
Company.
10.13 Headings.
The
Section and other headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
10.14 Amendment
and Waiver.
This
Agreement may be amended, modified or supplemented only by a writing executed
by
each of the parties. Either party may in writing waive any provision of this
Agreement to the extent such provision is for the benefit of the waiving party.
No waiver by either party of a breach of any provision of this Agreement shall
be construed as a waiver of any subsequent or different breach, and no
forbearance by a party to seek a remedy for noncompliance or breach by the
other
party shall be construed as a waiver of any right or remedy with respect to
such
noncompliance or breach.
10.15 Entire
Agreement.
This
Agreement is the only agreement and understanding between the parties pertaining
to the subject matter of this Agreement, and supersedes all prior agreements,
summaries of agreements, descriptions of compensation packages, discussions,
negotiations, understandings, representations or warranties, whether verbal
or
written, between the parties pertaining to such subject matter.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
EXECUTIVE:
|
Xxxxx
XxXxxxx
|
|||
|
COMPANY:
|
|||
| By | |||
| Xxxxxx X. Xxxxxx | |||
|
Its
Chairman
|
|||
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