AMENDED EMPLOYMENT AGREEMENT
AMENDED
EMPLOYMENT AGREEMENT
THIS
AMENDED EMPLOYMENT AGREEMENT (“Agreement”)
is entered into as of September 1, 2007 (the “Commencement Date”) by and between
AURIGA
LABORATORIES, INC.,
a
Delaware corporation (the “Company”), and XXXXXXX
X. XXXXXXXXX,
an
individual resident of the State of California (“Executive”). This Agreement
expressly modifies the November 8, 2006 Agreement currently in force between
the
parties.
W
I T N E S S E T H
In
consideration of the mutual covenants and obligations herein set forth, the
parties hereto agree as follows:
1.
Engagement;
Nature of Duties.
Executive’s current position with the Company is as its Chief Financial Officer.
By way of this Agreement, the parties agree that Executive, for the period
hereinafter set forth, will serve as Director of Financial Reporting of the
Company. In such capacity, Executive shall report to the Chief Financial Officer
of the Company (“CFO”) and shall perform the duties and render the services for
and on behalf of the Company customarily performed by a Director of Financial
Reporting, and as may be set forth from time to time in resolutions of, or
other
directives issued by, the Board of Directors of the Company and/or any committee
or designee thereof (the “Board”) or the CEO (the “Services”).
2.
Term.
The
term of employment pursuant to this Agreement shall be from the present until
December 31, 2007 (the “Term”), unless sooner terminated in accordance with the
provisions hereof. Thereafter, Executive’s employment with Company will be
solely at-will
3.
Location.
Executive shall not be required to relocate his primary place of employment
outside of the greater Los Angeles County metropolitan area. Executive may,
however, be required to travel to other locations at such times as may be
reasonably necessary for the performance of his duties and responsibilities
under this Agreement. Any such travel undertaken by Executive shall be at the
Company’s expense and shall be reimbursed in accordance with the Company’s
prevailing policy for reimbursing personnel, as the same may, from time to
time,
be adjusted or revised.
4.
Performance
of Duties.
Executive agrees to perform such duties and render the Services to the best
of
his ability, devoting thereto his entire professional time, attention and energy
exclusively to the business and affairs of the Company and its affiliates,
as
its business and affairs now exist and as they hereafter may be changed, and
shall not during the term of his employment hereunder be engaged in any other
business activity, whether or not such business activity is pursued for gain
or
profit; provided, however, that Executive may serve: (a) on civic or charitable
boards or committees; and (b) with the prior written approval of the Board,
boards of corporations or business enterprises, in each case so long as such
activities do not interfere with the performance of Executive’s obligations
under this Agreement.
5.
Compensation
and Benefits.
(a) Base
Compensation .
Beginning on the Commencement Date, the Company shall pay to Executive a base
annualized compensation (“Base Compensation”) in the amount of One Hundred Fifty
Thousand Dollars ($150,000.00), payable in periodic installments in accordance
with the Company’s prevailing policy for compensating personnel, as the same
may, from time to time, be adjusted or revised.
(b) Expense
Reimbursement .
The
Company shall reimburse to Executive any and all reasonable expenses actually
incurred by Executive in the performance of the Services during the Term,
provided that such expenses are in accordance with any policies or directives
of
the Company regarding reimbursement of business expenses now or hereafter
adopted by the Company, and subject to Executive providing appropriate
supporting documentation, reasonably acceptable to the Company. Executive shall
be reimbursed for any and all cellular phone expenses actually incurred by
Executive in the performance of the Services during the Term, subject to
Executive providing appropriate supporting documentation, reasonably acceptable
to the Company.
1
(d) Equity
Incentives .
The
Board previously granted an option to purchase seven hundred fifty thousand
(750,000) shares of the Company’s Common Stock as set forth in a separate Notice
of Stock Option Grant. That Stock Option Grant is hereby terminated and amended
to grant Executive an option to purchase up to Fifty Thousand (50,000) shares
of
the Company’s Common Stock as set forth in a separate Stock Option Grant on the
terms set forth in that Notice of Stock Option Grant.
(e)
Health
and Disability Insurance .
Executive shall have the right to participate in, and be provided family
coverage at the Company’s expense for, any health and disability insurance
programs now or hereafter maintained by the Company for the benefit of its
senior executive-level employees generally, subject only to any eligibility
or
membership restrictions of such programs.
(f)
Other
Benefits .
Executive shall have the right to participate in any and all benefit, retirement
or insurance programs now or hereafter maintained by the Company for the benefit
of its senior executive-level employees generally, including the Company’s
401(k) plan (with matching benefits equal to three percent (3%) of Executive’s
contributions thereto), subject only to any eligibility or membership
restrictions of such programs.
(g)
Vacation
.
During
each year of the Term, Executive shall be entitled to vacation leave of four
(4)
weeks, without deduction of salary. Such vacation leave shall be taken at such
time or times during the applicable year as may be mutually determined by
Executive and the Company acting reasonably, having regard to the performance
of
Executive’s essential duties to the Company pursuant to the terms of this
Agreement, and subject to the policies or directives of the Company regarding
vacation leave now or hereafter adopted by the Company. Executive may accumulate
unused vacation time from year to year.
(i)
Deduction
and Withholding .
All
compensation and other benefits to or on behalf of Executive pursuant to this
Agreement shall be subject to such deductions and withholding as may be agreed
to by the Executive or required by applicable law.
6.
Termination.
(a)
This Agreement may be terminated by the Company with Cause (as defined below),
which termination shall be effective upon written notice to Executive.For
purposes of this Agreement, “Cause” shall mean: a) Executive’s conviction or
plea of guilty or nolo contendere to a felony or any crime involving dishonesty
or moral turpitude, b) his willful failure to perform any of his material duties
under this Agreement which results in demonstrable material injury to the
Company, or c) commission by Executive of an act or omission that could
adversely and materially affect the Company’s business or reputation. If the
Company contends the Executive is in violation of either subparts (b) and (c)
of
this paragraph, then it shall provide written notice to the Executive of its
contention and the factual basis therefore and shall provide Executive a period
of thirty (30) days to remedy or cure said breach.
(b)
If, during the term of this Agreement, the Company terminates Executive’s
employment for any reason other than Cause, then the Company shall pay Executive
his Base Salary for the remainder of the Term of this Agreement. Such Base
Salary shall be paid at the rate in effect at the time of his termination of
employment and in accordance with the Company’s standard payroll procedures.
(d)
If, during the term of this Agreement, the Company terminates Executive’s
employment for any reason other than Cause, and if Executive elects to continue
health insurance coverage under the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”) for himself and, if applicable, his dependents, following the
termination of his employment, then the Company shall pay the monthly premium
under COBRA for Executive and, if applicable, such dependents, until the
earliest of: (i) the first (1st
)
anniversary of the termination of employment; (ii) the expiration of
Executive’s continuation coverage under COBRA; or (iii) the date at which
Executive receives substantially equivalent health insurance coverage in
connection with new employment or self-employment.
(e)
This Agreement shall automatically terminate upon Executive’s permanent
disability as a result of a physical or mental injury or disability, or death.
As used herein, “permanent disability” shall mean Executive’s substantial
inability to perform the Services with or without reasonable accommodations,
as
reasonably determined by a physician appointed by the Company, which inability
continues for more than ninety (90) consecutive days, or for more than one
hundred twenty (120) days in any 12-month period.
2
(f)
In the event of the Company’s termination of Executive’s employment for Cause,
or Executive’s voluntary termination of his employment for any reason, the
Company may place Executive on paid administrative leave and/or bar or restrict
his access to the Company’s facilities, contemporaneously with or at any time
after the delivery of the termination notice.
7.
Change
of Control.
(a)
Subject to Section 7(b), in the event of a Change of Control (as defined below),
if the Company terminates the employment of Executive for any reason other
than
for Cause, at any time within the twelve (12)-month period immediately following
a Change of Control, any portion of any severance benefits (if any) payable
to
Executive pursuant to this Agreement or any other payments to him in connection
with a Change of Control (collectively, the “Total Payments”) constitute an
Excess Parachute Payment (as defined below), then the Total Payments to be
made
to Executive shall be reduced such that the value of the Total Payments that
Executive is entitled to receive shall be One Dollar ($1.00) less than the
maximum amount that he may receive without becoming subject to the tax imposed
by Section 4999 of the United States Internal Revenue Code of 1986, as amended
(the “Code”), or which the Company may pay without loss of deduction under Code
Section 280G(a).
(b)
For purposes of this Agreement, a “Change of Control” of the Company means, and
shall be deemed to have taken place, if: (i) a total change in executive
management of the Company has occurred; (ii) any person or entity or group
of
affiliated persons or entities, including a group which is deemed a “person” by
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the date hereof first acquires in one or more
transactions, at least one of which is after the date of this Agreement,
ownership of fifty percent (50%) or more of the outstanding shares of any class
of stock then entitled to vote in the election of directors of the Company;
and
(iii) as a result of, or in connection with, any such acquisition or any related
proxy contest, cash tender or exchange offer, merger or other business
combination, sale of all or substantially all of the assets of the Company
or
any combination of the foregoing transactions, hereinafter referred to as a
“Transaction,” the persons who were directors of the Company immediately before
the acquisition shall cease to constitute three-fourths of the membership of
the
Board or any successor to the Company during the period commencing with the
consummation of the Transaction and ending on the first to occur of the first
anniversary of such date or the conclusion of the next meeting of shareholders
to elect directors, except to the extent that any new directors during such
period were elected or nominated by at least three-fourths of such persons
(or
new directors who were so nominated or elected). “Ownership” means beneficial or
record ownership, directly or indirectly, other than: (i) by a person owning
such shares merely of record (such as a member of a securities exchange, a
nominee, or a securities depositary system); (ii) by a person as a bona fide
pledgee of shares prior to a default and determination to exercise powers as
an
owner of the shares; (iii) by a person who is not required to file statements
on
Schedule 13D by virtue of Rule 13d-1(b) of the Securities and Exchange
Commission under the Exchange Act; or (iv) by a person who owns or holds shares
as an underwriter acquired in connection with an underwritten offering pending
and for purposes of their public resale or planned private placement in
increments of less than such 50% amount. Without limitation, the right to
acquire ownership shall not of itself constitute ownership of shares.
(c)
For purposes of this Agreement, “Excess Parachute Payment” shall have the same
meaning as such term has under Code Section 280G and any temporary, proposed
or
final regulations thereunder, and any Total Payments shall be valued as provided
therein.
8.
Beneficiary
Designation.
Executive may designate a beneficiary to receive any remaining compensation
under Sections 6 and 7 in the event of Executive’s death after he becomes
entitled to receive any compensation thereunder (the “Beneficiary”). Such
designation shall be made by filing a written designation with the Board in
such
form as the Board may provide and may be changed by Executive from time to
time
by similar action. If no such designation is made by Executive or if Executive
is not survived by his designated Beneficiary, any remaining compensation under
Sections 6 and 7 at the time of Executive’s death shall be paid to Executive’s
estate.
3
9.
Obligations
of Executive - Property Rights.
(a)
As used in this Agreement, “Confidential Information” means any and all
information disclosed to Executive or material proprietary to the Company or
designated as Confidential Information by the Company and not generally known
by
non-Company personnel, which Executive develops or which Executive gains
knowledge of or access through as a consequence of or through Executive’s
employment by the Company (including information conceived, originated,
discovered or developed in whole or in part by Executive, alone or jointly
with
others). “Confidential Information” includes, but is not limited to, the
following types of information and other information of a similar nature
(whether or not reduced to writing or placed in any tangible medium of
expression): the Company’s products, processes, discoveries, ideas, concepts,
techniques and services, including information relating to research,
development, inventions, manufacture, purchasing, accounting, engineering,
marketing, merchandising, selling, trade secrets, customer lists, price lists,
pricing policies, financial information, employee files or any other information
that the Company maintains as confidential. “Confidential Information” also
includes any information described aforesaid which the Company obtains from
another party and which the Company treats as proprietary or designates as
Confidential Information, whether or not owned or developed by the Company.
(b)
Except as required in Executive’s duties to the Company and then only with the
Company’s prior written consent, Executive shall not, directly or indirectly,
use for Executive’s own benefit or the benefit of others, lecture upon, publish
articles concerning, disseminate, disclose, reveal or transfer to any person
or
entity, any Confidential Information or any part thereof, or assist or solicit
any person or entity other than the Company to secure any benefit from the
Confidential Information or any part thereof, either during or at any time
after
the term of this Agreement.
(c)
All documents, papers, notes, notebooks, memoranda, computer files and other
written or electronic records of any kind made by Executive during and in
connection with Executive’s employment by the Company, shall remain the property
of the Company at all times.
10.
Non-Competition
During Term.
Executive shall not, either directly or indirectly, during the Term of this
Agreement or at any time during his employment with the Company (the
“Noncompetition Period”):
(a)
Own an interest in, operate, join, manage, control, participate in or be
connected in any manner as an officer, director, employee, agent, consultant,
independent contractor, partner, shareholder, or principal of, or provide any
advice or services to, any Conflicting Organization (as defined below).
Ownership of less than five percent (5%) of the common stock or equity interest
of a public corporation shall not be deemed in violation of this provision.
(b)
Undertake planning for or organization of any Conflicting Organization or any
business activity materially competitive with the Company’s business or combine
with other employees or representatives of the Company for the purpose of
organizing any such Conflicting Organization or materially competitive business
activity.
(c)
“Conflicting Organization” means any person, business, company or organization
engaged in or about to become engaged in a business or activity which is
substantially similar to, or would reasonably be deemed to compete with, the
business of the Company.
11.
Non-Solicitation.
Executive shall not, during the Term of this Agreement or at any time during
his
employment with Company, and for a period of three (3) years immediately
thereafter, directly or indirectly:
(a)
Solicit, interfere, entice, induce or influence or seek to solicit, interfere,
entice, induce or influence, any person who is engaged as an employee,
consultant, agent, independent contractor or otherwise by the Company to
terminate his or her employment or engagement. In addition, Executive shall
not
authorize, approve or assist any third party to take any action that Executive
is prohibited from taking pursuant hereto.
4
(b)
Call on, solicit or take away, or attempt to call on, solicit or take away
any
of the customers or suppliers (for the purpose of obtaining goods or services
for a business directly or indirectly in competition with the Company) of the
Company, either for the benefit of Executive or any other person, organization
or entity. In addition, Executive shall not authorize, approve or assist any
third party to take any action that Executive is prohibited from taking pursuant
hereto.
12.
Responsibilities
Upon Termination.
Upon
the termination of his employment by the Company for whatever reason and
irrespective of whether or not such termination is voluntary on his part:
(a)
Executive shall: (i) promptly deliver to the Company all Confidential
Information and all other data, designs, drawings, plans, manuals, notes,
memoranda, work sheets, specifications, customer lists, supplier lists, computer
programs and all other materials which are or have become the property of the
Company and all copies or reproductions of any such materials (whether or not
such copies or reproductions are the property of the Company); and (ii) sign
and
deliver to the Company a certificate attesting that he has returned to the
Company all materials described in the preceding clause that were in Executive’s
possession or control and that Executive is not retaining any duplicate set(s)
of such materials;
(b)
Executive shall advise the Company of the identity of his new employer within
ten (10) days after accepting new employment and shall keep the Company so
advised of any change in employment during the Noncompetition Period; and
(c)
Executive in his sole discretion may notify any new employer of Executive that
he has been exposed to Confidential Information, that he has an obligation
to
the Company not to disclose any Confidential Information and that he is not
to
compete with the Company during the Noncompetition Period.
13.
Indemnification;
Insurance.
(a)
That certain Indemnification Agreement, dated November 8, 2006, entered into
between Executive and the Company hereto is hereby terminated on the Effective
Date.
14.
Assignment.
(a)
Assignment
By Company .
This
Agreement may and shall be assigned or transferred to, and shall be binding
upon
and shall inure to the benefit of, any successor of the Company, and any such
successor shall be deemed substituted for all purposes of the “Company” under
the terms of this Agreement. As used in this Agreement, the term “successor”
shall mean any person, firm, corporation or business entity which at any time,
whether by merger, purchase or otherwise, acquires all or substantially all
of
the assets or securities of the Company.
(b)
Assignment
By Executive .
This
Agreement shall inure to the benefit of and be enforceable by Executive’s
personal or legal representatives, executors and administrators, successors,
heirs, distributees, devisees and legatees.
15.
Separate
Agreements.
The
covenants of Executive contained in Sections 9, 10, 11, 12 and 13 of this
Agreement shall be construed as separate agreements independent of any other
agreement, claim or cause of action of Executive against the Company, whether
predicated on this Agreement or otherwise, and no other agreement, claim or
cause of action asserted by Executive shall constitute a defense to the
enforcement by the Company of these covenants. The covenants contained in this
Agreement are necessary to protect the legitimate business interests of the
Company. Damages for the violation of any such covenants will not give full
and
sufficient relief to the Company. In the event of any violation of any such
covenants, the Company shall be entitled to: (a) injunctive relief against
the
continued violation thereof; and (b) its actual damages. In any dispute
concerning whether or not Executive has violated any of such covenants, the
prevailing party shall be entitled to payment from the other party for any
and
all expenses, including attorneys’ fees and expenses, incurred by the prevailing
party in connection with such dispute.
5
16.
General
Obligations of Executive.
Executive agrees and acknowledges that he owes a duty of loyalty, fidelity
and
allegiance to act at all times in the best interests of the Company, to not
knowingly become involved in a conflict of interest and to not knowingly do
any
act or knowingly make any statement, oral or written, which would injure the
Company’s business, its interest or its reputation unless required to do so in
any legal proceeding by a competent court with proper jurisdiction. Executive
agrees to comply at all times with all applicable policies, rules and
regulations of the Company, including, without limitation, the Company’s policy
regarding trading in its Common Stock, as is in effect from time to time.
17.
Life
Insurance.
To the
extent that the Company desires to obtain insurance on Executive’s life for the
benefit of the Company, Executive shall cooperate and do all acts reasonably
necessary to enable the Company to obtain said insurance.
18.
Release.
If
Executive’s employment hereunder shall terminate under Sections 6(b), 6(c) or 7,
Executive agrees, as a condition to his entitlement to receive the amounts
specified in such Sections to be due to him, to execute and deliver to the
Company a standard release in a mutually agreeable form. Such release shall
be
delivered by Executive at the time of termination, but shall become effective
only after Executive has received all payments specified in this Agreement
to be
due to him from the Company in respect of his termination.
19.
Representations.
Executive hereby represents that he is not subject to any restriction of any
nature whatsoever on his ability to enter into this Agreement or to perform
his
duties and responsibilities hereunder, including, but not limited to, any
covenant not to compete with any former employer, any covenant not to disclose
or use any non-public information acquired during the course of any former
employment or any covenant not to solicit any customer or prospective customer
of any former employer.
20.
Notices.
Any and
all notices which are required or permitted to be given by any party to any
other party hereunder shall be given in writing, sent by registered or certified
mail, or by electronic communications (including telegram or facsimile) followed
by a confirmation letter sent by registered or certified mail, postage prepaid,
return receipt requested, or delivered by hand or messenger service, with the
charges therefore prepaid, addressed to such party as follows:
|
|
(a)
|
Notices
to the Company:
00000
Xxxxx Xxxxxx Xxxx, #000
Xxx
Xxxxxxx, XX 00000
Attn:
Chief Executive Officer
|
|
|
(b)
|
Notices
to Executive:
Xx.
Xxxxxxx X. Xxxxxxxxx
00000
Xxxxxxx Xxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
or
to
such other address as the parties shall from time to time give notice of in
accordance with this Section. Notices sent in accordance with this Section
shall
be deemed effective on the date of dispatch, and an affidavit of mailing or
dispatch, executed under penalty of perjury, shall be deemed presumptive
evidence of the date of dispatch.
21.
Entire
Agreement and Modifications.
This
Agreement, including the exhibits hereto and the agreements expressly referred
to herein, constitutes the entire understanding between the parties pertaining
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written. There
are
no warranties, representations or other agreements between the parties, in
connection with the subject matter hereof, except as specifically set forth
herein. No supplement, modification, waiver or termination of this Agreement
shall be binding unless made in writing and executed by the party thereto to
be
bound.
6
22.
Waivers.
No
term, condition or provision of this Agreement may be waived except by an
express written instrument to such effect signed by the party to whom the
benefit of such term, condition or provision runs. No such waiver of any term,
condition or provision of this Agreement shall be deemed a waiver of any other
term, condition or provision, irrespective of similarity, or shall constitute
a
continuing waiver of the same term, condition or provision, unless otherwise
expressly provided. No failure or delay on the part of any party in exercising
any right, power or privilege under any term, condition or provision of this
Agreement shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any other right,
power or privilege.
23.
Survival
of Agreement Provisions.
All
terms, conditions, provisions, covenants, agreements, representations and
warranties made herein shall survive the performance by the parties hereto
of
their obligations hereunder, and the termination or expiration of this
Agreement.
24.
Severability.
In the
event any one or more of the terms, conditions or provisions contained in this
Agreement should be found in a final award or judgment rendered by any court
of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining terms, conditions
and
provisions contained herein shall not in any way be affected or impaired
thereby, and this Agreement shall be interpreted and construed as if such term,
condition or provision, to the extent the same shall have been held invalid,
illegal, or unenforceable, had never been contained herein, provided that such
interpretation and construction is consistent with the intent of the parties
as
expressed in this Agreement. If any term, condition or provision contained
in
this Agreement shall be determined under applicable law, to be overly broad
in
duration, geographical coverage or substantive scope, such term, condition
or
provision shall be deemed narrowed to the broadest terms permitted by applicable
law.
25.
Headings.
The
headings of the Sections contained in this Agreement are included herein for
reference purposes only, solely for the convenience of the parties hereto,
and
shall not in any way be deemed to affect the meaning, interpretation or
applicability of this Agreement or any term, condition or provision hereof.
26.
Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California, notwithstanding the fact that one or more counterparts
hereof may be executed outside of the state, or one or more of the obligations
of the parties hereunder are to be performed outside of the state.
27.
Resolution
of Disputes.
As part
of this Agreement, Executive and Company agree to execute the Arbitration
Agreement attached hereto as Exhibit “A”. The parties agree to submit all claims
arising out of this Agreement and/or Executive’s employment with Company, except
as limited with the Arbitration Agreement, to arbitration.
28.
Attorneys’
Fees.
In the
event that any party to this Agreement shall commence any suit, action or other
proceeding to interpret this Agreement, or determine or enforce any right or
obligation created hereby, including but not limited to any action for
rescission of this Agreement or for a determination that this Agreement is
void
or ineffective ab
initio ,
the
prevailing party in such action shall recover such party’s costs and expenses
incurred in connection therewith, including attorney’s fees and costs of appeal,
if any. Any court shall, in entering any judgment or making any award in any
such suit, action or other proceeding, in addition to any and all other relief
awarded to such prevailing party, include in such judgment or award such party’s
costs and expenses as provided in this Section 28.
29.
Covenant
of Further Assurances.
All
parties to this Agreement shall, upon request, perform any and all acts and
execute and deliver any and all certificates, instruments and other documents
that may be necessary or appropriate to carry out any of the terms, conditions
and provisions hereof or to carry out the intent of this Agreement.
30.
Remedies
Cumulative.
Each
and all of the several rights and remedies provided for in this Agreement shall
be construed as being cumulative and no one of them shall be deemed to be
exclusive of the others or of any right or remedy allowed by law or equity,
and
pursuit of any one remedy shall not be deemed to be an election of such remedy,
or a waiver of any other remedy.
7
31.
Compliance
with Laws.
Nothing
contained in this Agreement shall be construed to require the commission of
any
act contrary to law, and whenever there is a conflict between any term,
condition or provision of this Agreement and any present or future statute,
law,
ordinance or regulation contrary to which the parties have no legal right to
contract, the latter shall prevail, but in such event the term, condition or
provision of this Agreement affected shall be curtailed and limited only to
the
extent necessary to bring it within the requirement of the law, provided that
such construction is consistent with the intent of the parties as expressed
in
this Agreement.
32.
Gender.
As used
in this Agreement, the masculine, feminine or neuter gender, and the singular
or
plural number, shall be deemed to include the others whenever the context so
indicates.
33.
No
Third Party Benefit.
Nothing
contained in this Agreement shall be deemed to confer any right or benefit
on
any person who is not a party to this Agreement.
34.
Construction;
Representation by Counsel.
The
parties hereby represent that they have each been advised by independent counsel
with respect to their rights and obligations hereunder. This Agreement shall
be
construed and interpreted in accordance with the plain meaning of its language,
and not for or against either party, and as a whole, giving effect to all of
the
terms, conditions and provisions hereof.
35.
Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed an original, and such counterparts
together shall constitute only one instrument. Any or all of such counterparts
may be executed within or outside the State of California. Any one of such
counterparts shall be sufficient for the purpose of proving the existence and
terms of this Agreement, and no party shall be required to produce an original
or all of such counterparts in making such proof.
IN
WITNESS WHEREOF,
the
parties have duly executed this Agreement as of the day and year first above
written.
|
“Company”
|
||
|
a
Delaware corporation
|
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx. | |
|
Name: Xxxxxx
X. Xxxxx
|
||
|
Title: Chief
Executive Officer
|
||
|
“Executive”
|
||
| /s/ Xxxxxxx X. Xxxxxxxxx. | ||
|
XXXXXXX
X. XXXXXXXXX
|
||
8
EXHIBIT
A
ARBITRATION
AGREEMENT
The
parties to this Arbitration Agreement (the “Agreement”) are Auriga Laboratories,
Inc. (the “Company”) and Xxxxxxx Xxxxxxxxx (“Executive”).
In
order
to obtain an expeditious determination of the parties’ rights and obligations
and to avoid the high cost and lengthy delays typically associated with court
actions, both Executive and the Company agree to submit any and all claims
or
controversies arising out of or relating to the Executive’s employment to
arbitration. This Agreement applies to all claims or controversies regarding
contracts, torts (personal injury), or arising under statute, including, without
limitation, the claims and causes of action specified below.
1. SUBMISSION
TO ARBITRATION.
a. Executive
or the Company will begin the arbitration process by delivering a written
request for arbitration to the other party within the same time limits which
would apply to the filing of a civil court action. Failure to deliver a timely
written request for arbitration will preclude the aggrieved party from
instituting any legal, arbitration or other proceeding and will constitute
a
complete waiver of all such claims, as they would in court. Statutory claims
shall be raised within the limitations period provided by the applicable
statute.
b. Claims
covered by this provision (“Covered Claims”) include, without limitation, the
following: (i) alleged violations of federal, state and/or local constitutions,
statutes, regulations or ordinances, including, but not limited to, laws
dealing with unlawful discrimination and harassment;
(ii)
claims based on any purported breach of contractual obligation, including but
not limited to breach of the covenant of good faith and fair dealing, wrongful
termination or constructive discharge; (iii) violations of public policy; (iv)
claims relating to a transfer, reassignment, denial of promotion, demotion,
reduction in pay, or any other term or condition of employment; (v) claims
based
on contract or tort; (vi) claims relating to trade secrets or unfair
competition, and (vii) any and all other claims arising out of Executive’s
employment with or the termination thereof by the Company. THIS INCLUDES, BUT
IS
NOT LIMITED TO, CLAIMS BROUGHT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964;
CALIFORNIA GOVERNMENT CODE SECTION 12960, et
seq.;
AND
ANY OTHER FEDERAL, STATE OR LOCAL ANTI-DISCRIMINATION LAWS RELATING TO
DISCRIMINATION INCLUDING BUT NOT LIMITED TO THOSE BASED ON THE FOLLOWING
PROTECTED CATEGORIES: GENETIC INFORMATION OR CHARACTERISTICS; SEX AND GENDER;
RACE; RELIGION; NATIONAL ORIGIN; MENTAL OR PHYSICAL DISABILITY (INCLUDING CLAIMS
UNDER THE AMERICAN WITH DISABILITIES ACT); MEDICAL CONDITION (CANCER); VETERAN
OR MILITARY STATUS; MARITAL STATUS; SEXUAL ORIENTATION OR PREFERENCE; AGE;
PREGNANCY; AND RETALIATION OR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
FOR ALLEGING OR FILING OR PARTICIPATING IN ANY GRIEVANCE OR OTHERWISE
COMPLAINING OF ANY WRONG RELATING TO THE AFOREMENTIONED CATEGORIES OR ANY PUBLIC
POLICY.
9
c. The
following claims are expressly excluded
and not
covered by this Agreement for final and binding arbitration: (i) claims related
to workers’ compensation and unemployment insurance; (ii) administrative filings
with government agencies such as the California Department of Fair Employment
& Housing, the Equal Employment Opportunity Commission, the U.S. Department
of Labor or the National Labor Relations Board; and (iii) claims that are
expressly excluded by statute or are expressly required to be arbitrated under
a
different procedure pursuant to the terms of an employee benefit plan. In
addition, nothing in this Agreement shall preclude either party from seeking
appropriate interim injunctive relief pursuant to the California Code of Civil
Procedure or applicable federal law before arbitration or while arbitration
proceedings are pending.
d. IN
CONSIDERATION FOR AND AS A MATERIAL CONDITION OF EMPLOYMENT AND CONTINUATION
OF
EMPLOYMENT WITH THE COMPANY, EXECUTIVE AGREES THAT ARBITRATION IS THE EXCLUSIVE
MEANS FOR RESOLVING COVERED CLAIMS. ONLY AN ARBITRATOR, NOT A JUDGE OR JURY,
WILL DECIDE ANY COVERED CLAIM.
e. Any
claim
arising between Executive and the Company covered by the arbitration provisions
of this Agreement will be submitted to arbitration before a mutually-agreeable
neutral arbitrator in the State of California pursuant to the Employment
Arbitration Rules and Mediation Procedures (formerly the National Rules for
the
Resolution of Employment Disputes) of the American Arbitration Association
in
effect upon the date the claim is submitted in writing to the Company. The
Rules
are incorporated fully herein by reference.
The
arbitrator must allow discovery adequate to arbitrate all claims, including
access to essential documents and witnesses. In making his or her award, the
Arbitrator shall have the authority to make any finding congruent with
applicable law. In reaching his or her decision, the Arbitrator shall adhere
to
relevant law and applicable legal precedent, and shall have no power to vary
therefrom. The Arbitrator must issue a written award. The Arbitrator shall,
in
the award or separately, make specific findings of fact, and set forth facts
in
support of his or her decision, as well as the reasons and basis for his or
her
opinion. Should the Arbitrator exceed the jurisdiction or authority here
conferred, any party aggrieved thereby may file a petition to vacate, amend
or
correct the Arbitrator’s award in a court of competent jurisdiction, pursuant to
applicable law.
The
Company will pay the arbitrator’s fees and other administrative costs of
arbitration, and other reasonable costs as specified by the arbitrator under
applicable law so that Executive does not have to bear any cost beyond any
amount which would have to be paid as a filing fee in a municipal or superior
court. Each party shall be responsible for payment of its attorneys’ fees,
unless, upon application by a party, the arbitrator makes an award of attorneys’
fees under applicable statutory or other law.
10
2. GOVERNING
LAW.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of California.
3. INTERPRETATION.
This
Agreement shall be interpreted in accordance with the plain meaning of its
terms
and not strictly for or against either party.
4. ENTIRE
AGREEMENT.
This
Agreement embodies the complete agreement and understanding of the parties
related to the resolution of any dispute regarding Executive’s employment with
or termination from the Company, or as otherwise specified above, superseding
any and all other prior or contemporaneous oral or written agreements between
the parties with respect to the same, and contains all of the covenants and
agreements of any kind whatsoever between the parties with respect to the same.
Each party acknowledges that no representations, inducements, promises or
agreements regarding the resolution of any dispute regarding Executive’s
employment with or termination by the Company, whether oral or written, express
or implied, have been made by either party or anyone acting on behalf of a
party, that are not incorporated herein. No other agreement or promise regarding
the resolution of any dispute between Executive and the Company not contained
herein shall be valid or binding.
5. MODIFICATION.
This
Agreement may be amended only by an agreement in writing signed by the parties
hereto.
6. INVALIDITY.
Should
any provision(s) in this Agreement be held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remaining provisions shall be
unaffected and shall continue in full force and effect, and the invalid, void
or
unenforceable provision shall be deemed not to be part of this
Agreement.
7. VOLUNTARY
AGREEMENT. Executive
and the Company represent and agree that each has reviewed all aspects of this
Agreement, has carefully read and fully understands all provisions of this
Agreement, and is voluntarily entering into this Agreement. The parties
represent and agree that each has had the opportunity to review any and all
aspects of this Agreement with the legal or other advisor of the party’s choice
before executing this Agreement.
8. SUCCESSORS
AND ASSIGNS.
This
Agreement shall be binding upon and inure to the benefit of and shall be
enforceable as applicable by and against Executive’ and the Company’s
successors, heirs, beneficiaries and legal representatives. It is agreed that
the rights and obligations of Executive and the Company may not be delegated
or
assigned except as specifically set forth in this Agreement.
9. SURVIVAL
OF TERMS.
The
provisions of this Arbitration Agreement will survive the termination of
Executive’s employment and remain in full force and effect thereafter. Nothing
in this Agreement will be construed to create any express or implied contract
of
employment or alter in any way the at-will nature of Executive’s
employment.
11
10. COUNTERPARTS.
This
Agreement may be executed in counterparts and each counterpart, when executed,
shall have the validity of an original. Photographic or facsimile copies of
any
signed counterparts may be used in lieu of the original for any
purpose.
We
have
read and understand this Arbitration Agreement and voluntarily agree to all of
its terms.
| DATED: August 27, 2007 | /s/ Xxxxxxx Xxxxxxxxx | ||
|
Xxxxxxx Xxxxxxxxx |
|||
| DATED: August 27, 2007 | /s/ Xxxxxx X. Xxxxx | ||
|
|
12
