Exhibit 10.4.4.1
----------------
May 15, 2003
AMENDMENT OF AGREEMENT
This Agreement substitutes and supercedes the Employment Agreement
entered into on April 1, 2003 by and among Inyx, Inc, a Nevada corporation (the
"Company"), and Xxxx Xxxxxxxxxx (the "Executive"). This Agreement will be in
effect as of May 15, 2003.
EMPLOYMENT AGREEMENT WITH
XXXX XXXXXXXXXX
This Employment Agreement ("Agreement") is entered into as of this 1st day of
April, 2003 (the "Effective Date"), by and between
Xx. Xxxx Xxxxxxxxxx (the "Executive")
Of the city of Toronto, in the Province of Ontario OF THE FIRST PART
And
Inyx, Inc. (formerly known as Doblique, Inc.), a Nevada corporation
(Inyx, Inc., together with all its subsidiaries and affiliates are hereinafter
referred to as the "Company" or the "Employer") OF THE SECOND PART
And
Inyx Canada Inc., ("Inyx Canada") a corporation organized
under the laws of Canada OF THE THIRD PART
R E C I T A L S:
Whereas, the Company desires to employ the Executive to provide personal
services to the Company, and also wishes to provide the Executive with certain
compensation and benefits in return for such services; and
Whereas, the Executive wishes to be employed by the Company and provide personal
services to the Company in return for certain compensation and benefits.
Now, therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as follows:
1. EMPLOYMENT
1.1. GENERAL. The Company hereby employs the Executive in the position of Vice
President of Finance of the Company and President of Inyx Canada, Inc. at the
compensation rate and benefits set forth in Section 2 hereof for the Employment
Term (as defined in Section 3.1 hereof). The Executive hereby accepts such
employment, subject to the terms and conditions herein contained. In all such
capacities, the Executive shall perform and carry out such duties and
responsibilities as may be assigned to her from time to time by the chief
executive officer of the Company reasonably consistent with the Executive's
position and this Agreement, and shall report to the chief executive officer of
the Company. Upon the request of the Company, the executive shall also serve as
a director or officer of subsidiaries in positions commensurate with her
position with the Company without additional compensation. If any compensation
is paid to the Executive by such subsidiaries, they shall be a credit against
amounts due hereunder. The Executive agrees to perform and discharge such duties
well and faithfully, and to be subject to the supervision and direction of the
chief executive officer of the Company.
1.2. TIME DEVOTED TO POSITION. The Executive, during the Employment Term, shall
devote substantially all of her business time, attention and skills to the
business and affairs of the Employer.
1.3. CERTIFICATIONS. Whenever the Executive is required by law, rule or
regulation or requested by any governmental authority or by the Company or the
Company's auditors to provide certifications with respect to financial
statements or filings with the Securities and Exchange Commission or any other
governmental authority, the Executive shall sign such certifications as may be
reasonably requested by such officers, with such exceptions as the Executive
deems necessary to make such certifications accurate and not misleading.
1.4 PLACE OF EMPLOYMENT. During the employment term the Executive will, subject
to work related travel, principally work at the Company's offices in Toronto.
2. COMPENSATION AND BENEFITS
2.1. SALARY. At all times the Executive is employed hereunder, Employer shall
pay to Executive, and Executive shall accept, as full compensation for any and
all services rendered and to be rendered by her during such period to Employer
in all capacities, including, but not limited to, all services that may be
rendered by her to any of Employer's existing subsidiaries, entities and
organizations hereafter formed, organized or acquired by Employer, directly or
indirectly (each, a "Subsidiary" and collectively, the "Subsidiaries"), the
following: (i) a base salary at the annual rate of $72,500 U.S. ($106,000
Canadian dollars), or at such increased rate as the Company's Compensation
Committee, in its sole discretion, may hereafter from time to time grant to
Executive, subject to adjustments in accordance with Section 2.2 hereof (as so
adjusted, the "Base Salary"); and (ii) any additional bonus and the benefits set
forth in Sections 2.3, 2.4 and 2.5 hereof. The Base Salary shall be payable in
accordance with the regular payroll practices of Employer applicable to senior
executives, less such deductions as shall be required to be withheld by
applicable law and regulations or otherwise.
2.2. ADJUSTMENTS IN BASE SALARY. On January 1, 2003 the base salary shall be
increased to $120,000 Canadian dollars. Subsequently each April 1st during the
Employment Term, the Base Salary shall be increased by five percent (5%).
2.3. BONUS. Subject to Section 3.3 hereof, the Executive shall be entitled to an
annual bonus during the Employment Term in such amount as determined by the
Company's Compensation Committee based on such performance criteria as it deems
appropriate, including without limitation, the Executive's performance and
Employer's earnings, financial condition, rate of return on equity and
compliance with regulatory requirements. The target amount of Executive's annual
bonus shall be ten (10%) percent of the Base Salary with no cap on bonus for
reaching and exceeding performance targets as set out in the Company's annual
budget. At the discretion of the Company's Compensation Committee, the Executive
shall also be entitled to additional project specific bonuses based on
successfully completing business or commercial opportunities which are accretive
to the Company's financial performance.
2.4. STOCK OPTIONS. The Executive shall be entitled to participate in stock
option and similar equity plans of Employer. In connection herewith, the
Executive has been granted options to purchase 100,000 shares of common stock of
the Company on terms and conditions set forth in the Stock Option Agreement with
the Company. The Executive shall be entitled to any additional annual stock
option grants provided at the discretion of the Company's Compensation
Committee.
2.5. EXECUTIVE BENEFITS
2.5.1. EXPENSES. Employer shall promptly reimburse the Executive for properly
documented expenses that she may reasonably incur in connection with the
performance of her duties including but not limited to, expenses for such items
as entertainment, business travel (all international air travel shall be at
least Business Class), hotel, meals, dues, and any admission fees and initiation
fees required for Company business. The Company shall also pay for appropriate
professional dues and memberships, in accordance with Company policy.
2.5.2. EMPLOYER PLANS. Executive shall be entitled to participate in such
employee benefit plans and programs as Employer may from time to time generally
offer or provide to executive officers of Employer or its Subsidiaries,
including, but not limited to, participation in life insurance, health and
accident, medical and dental plans including any such benefit plans offered by
the Subsidiaries where applicable, and profit sharing and retirement plans.
2.5.3. VACATION. Executive shall be entitled to four (4) weeks of paid vacation
per calendar year, prorated for any partial year. Unused vacation days will
continue to accrue for the benefit of the Executive and payable on termination
of employment.
2.5.4. PERSONAL LEGAL CONSULTING. Upon presentation of an invoice, the Company
shall reimburse the Executive for any legal fees and expenses incurred in the
negotiation of this Agreement, provided that the amount of such reimbursement
shall not exceed $1,500 USD.
2.5.5. LIFE INSURANCE. Employer shall obtain (PROVIDED, that Executive qualifies
on a non-rated basis) a term life insurance policy, the premiums of which shall
be borne by Employer and the death benefits of which shall be payable to
Executive's estate, or as otherwise directed by the Executive, in the amount
equal to not less than two times annual Base Salary throughout the Employment
Term.
2.5.6. TRANSPORTATION. Employer shall provide Executive with an automobile
allowance commensurate with his title and position together with all associated
operating expenses and parking garage expense. During the Employment Term, in
accordance with the directives of the Compensation Committee, the Executive
shall be provided with reasonable transportation for business purposes while
working at each of the Company's office or business locations.
3. EMPLOYMENT TERM; TERMINATION
3.1. EMPLOYMENT TERM. The Executive's employment hereunder shall commence on
April 1, 2003 and, except as otherwise provided in Section 3.2 hereof, shall
continue until the fourth (4th) anniversary of the date of this Agreement (the
"Initial Term"). Thereafter, this Agreement shall automatically be renewed for
successive one-year periods commencing on the fourth (4th) anniversary of the
date of this Agreement (with the Initial Term and any such subsequent employment
period(s), being referred to herein as the "Employment Term"), unless Executive
or Employer shall have provided a Notice of Termination (as defined in Section
3.4.2 hereof) in respect of its or her election not to renew the Employment Term
to the other party at least ninety (90) days prior to such termination. Upon
non-renewal of the Employment Term pursuant to this Section 3.1 or termination
pursuant to Sections 3.2.1 through 3.2.6 hereof, inclusive, Executive shall be
released from any duties hereunder (except as set forth in Section 4 hereof) and
the obligations of Employer to Executive shall be as set forth in Section 3.3
hereof only.
3.2. EVENTS OF TERMINATION. The Employment Term shall terminate upon the
occurrence of any one or more of the following events:
3.2.1. DEATH. In the event of Executive's death, the Employment Term shall
terminate on the date of her death.
3.2.2. WITHOUT CAUSE BY EXECUTIVE. Executive may terminate the Employment Term
at any time during such Term for any reason whatsoever by giving a Notice of
Termination to Employer. The Date of Termination pursuant to this Section 3.2.2
shall be thirty (30) days after the Notice of Termination is given.
3.2.3. DISABILITY. In the event of Executive's Disability (as hereinafter
defined), Employer may, at its option, terminate the Employment Term by giving a
Notice of Termination to Executive. The Notice of Termination shall specify the
Date of Termination, which date shall not be earlier than thirty (30) days after
the Notice of Termination is given. For purposes of this Agreement, "Disability"
means the inability of Executive for 180 days in any twelve (12) month period to
substantially perform her duties hereunder as a result of a physical or mental
illness, all as determined in good faith by the Company's Compensation
Committee.
3.2.4. CAUSE. Employer may, at its option, terminate the Employment Term for
"Cause" based on objective factors determined in good faith by the chief
executive officer of the Company as set forth in a Notice of Termination to
Executive specifying the reasons for termination and the failure of the
Executive to cure the same within thirty (30) days after Employer shall have
given the Notice of Termination; PROVIDED, HOWEVER, that in the event the chief
executive officer in good faith determines that the underlying reasons giving
rise to such determination cannot be cured, then the thirty (30) day period
shall not apply and the Employment Term shall terminate on the date the Notice
of Termination is given. For purposes of this Agreement, "Cause" shall mean (i)
Executive's conviction of, guilty or no contest plea to a felony (ii) an act or
omission by Executive in connection with her employment that constitutes fraud,
criminal misconduct, breach of fiduciary duty, dishonesty, gross negligence,
malfeasance, wilful misconduct or other conduct that is materially harmful or
detrimental to Employer; (iii) a material breach by Executive of this Agreement
and the failure of the Executive to cure the same within thirty (30) days; (iv)
continuing failure to perform such proper duties as are assigned to Executive by
in accordance with this Agreement and with law and good business practice, other
than a failure resulting from a Disability.
3.2.5. INTENTIONALLY LEFT BLANK
3.2.6. EMPLOYER'S MATERIAL BREACH. Executive may, at her option, terminate the
Employment Term upon Employer's material breach of this Agreement and the
continuation of such breach for more than ten (10) days after written demand for
cure of such breach is given to Employer by Executive (which demand shall
identify the manner in which Employer has materially breached this Agreement).
Employer's material breach of this Agreement shall mean (i) the failure of
Employer to make any payment that it is required to make hereunder to Executive
when such payment is due or within two (2) business days thereafter; (ii) the
assignment to Executive, without Executive's express written consent, of duties
inconsistent with her position, responsibilities and status with Employer, or a
change in Executive's reporting responsibilities, titles or offices or any plan,
act, scheme or design to constructively terminate the Executive, or any removal
of Executive from her position with Employer, except in connection with the
termination of the Employment Term by Employer for Cause, without Cause or
Disability or as a result of Executive's death or voluntary resignation or by
Executive other than pursuant to this Section 3.2.6; (iii) a reduction by
Employer in Executive's Base Salary.
3.3. CERTAIN OBLIGATIONS OF EMPLOYER FOLLOWING TERMINATION OF THE EMPLOYMENT
TERM. Following termination of the Employment Term under the circumstances
described below, Employer shall pay to Executive or her estate, as the case may
be, the following compensation and provide the following benefits in full
satisfaction and final settlement of any and all claims and demands that
Executive now has or hereafter may have hereunder against Employer. In
connection with Executive's receipt of any or all monies and benefits to be
received pursuant to this Section 3.3, Executive shall not have a duty to seek
subsequent employment during the period in which she is receiving severance
payments and the Severance Amount (as defined in Section 3.3.2 hereof) shall not
be reduced solely as a result of Executive's subsequent employment by an entity
other than Employer.
3.3.1. FOR CAUSE. In the event that the Employment Term is terminated by
Employer for Cause, Employer shall pay to Executive, in a single lump-sum, an
amount equal to any unpaid but earned Base Salary through the Date of
Termination.
3.3.2. WITHOUT CAUSE BY EMPLOYER; MATERIAL BREACH BY EMPLOYER; ELECTION NOT TO
RENEW BY EMPLOYER. In the event that the Employment Term is terminated by
Executive pursuant to Section 3.2.6 hereof or Employer elects not to renew this
Agreement at any time pursuant to Section 3.1 hereof, the Company shall pay the
Executive six (6) months of annual Base Salary in effect at that date, plus any
earned bonuses that the Executive may be entitled to. If such termination is
effective at any time after a Change of Control (as defined in Section 3.4.1
hereof) of the Employer, it shall pay to Executive, subject to Executive's
continued compliance with the terms of Section 4 hereof, any unpaid but earned
Base Salary through the Date of Termination PLUS an amount equal to one (1) time
annual Base Salary in effect at such applicable time (the "Severance Amount").
Additionally, any bonuses that are due to the Executive shall be paid by
Employer to Executive. Any payments made in accordance with this Section 3.3.2
shall be made in a lump sum payment at a convenient date no later than fourteen
(14) days after the termination date.
3.3.3 WITHOUT CAUSE BY EXECUTIVE; ELECTION NOT TO RENEW BY EXECUTIVE. In the
event that the Employment Term is terminated by Executive pursuant to Section
3.2.2 hereof or Executive elects not to renew this Agreement at any time
pursuant to Section 3.1 hereof, Employer shall pay to Executive, in a single
lump-sum, an amount equal to any unpaid but earned bonuses and Base Salary
through the Date of Termination.
3.3.4. DISABILITY. In the event that the Employment Term is terminated by reason
of Executive's Disability pursuant to Section 3.2.3 hereof, Employer shall pay
to Executive, subject to, in the case of Disability, Executive's continued
compliance with the terms of Section 4 hereof, the Severance Amount, payable in
accordance with Section 3.3.2 hereof.
3.3.5. POST-EMPLOYMENT TERM BENEFITS. In the event that the Executive is
terminated pursuant to Sections 3.2.1 through 3.2.6 hereof, inclusive, or either
Employer or Executive elects not to renew this Agreement pursuant to Section 3.1
hereof, Employer shall reimburse Executive for any unpaid expenses pursuant to
Section 2.5.1 hereof and if Executive is terminated pursuant to Sections 3.2.3,
3.2.5 or 3.2.6 hereof or Employer elects not to renew this Agreement pursuant to
Section 3.1 hereof, Employer shall pay, on behalf of Executive, for a period
equal to six (6) months from the Date of Termination (the "Benefits Period"),
subject to Executive's continued compliance with the terms of Section 4 hereof,
all life insurance, medical, dental, health and accident, and disability plans
and programs in which Executive was entitled to participate immediately prior to
the Date of Termination; PROVIDED, that Executive's continued participation is
legally possible under the general terms and provisions of such plans and
programs. In the event that Executive's participation in any such plan or
program is barred, Employer, at its sole cost and expense shall use its
commercially reasonable efforts to provide Executive with benefits substantially
similar to those that Executive was entitled to receive under such plans and
programs for the remainder of the Benefits Period.
3.3.6. STOCK OPTIONS
(a) If, within three (3) months following a Change of Control (as defined in
Section 3.4.1 hereof) of Employer, the Employment Term is terminated other than
for Cause, then Executive (or her estate) shall have three (3) months from the
date of such event to exercise such stock options; PROVIDED, that the such stock
options shall not have otherwise expired in accordance with the terms thereof.
In connection there with, Employer agrees to use commercially reasonable efforts
to amend Executive's Stock Option Agreements if necessary to effectuate the
provisions of this Section 3.3.6(a).
(b) In the event the Employment Term is terminated (i) by Employer pursuant to
Section 3.2.5 hereof and the reason for such termination is not related to the
performance of Executive in her duties with respect to Employer, or (ii) by
Executive pursuant to Section 3.2.6 hereof, then all stock options theretofore
granted to Executive shall thereupon vest and Executive shall have twelve (12)
months from such date to exercise such options; PROVIDED, that the relevant
stock option plan remains in effect and such stock options shall not have
otherwise expired in accordance with the terms thereof. In connection therewith,
Employer agrees to use commercially reasonable efforts to amend Executive's
Stock Option Agreements if necessary to effectuate the provisions of this
Section 3.3.6(b).
3.4. DEFINITIONS
3.4.1. "CHANGE OF CONTROL" DEFINED. A "Change of Control" of Employer means (i)
the approval by the stockholders of the Company of the sale, lease, exchange or
other transfer (other than pursuant to internal reorganization) by the Company
of all or substantially all of its respective assets to a single purchaser or to
a group of associated purchasers; (ii) the first purchase of shares of equity
securities of the Company pursuant to a tender offer or exchange offer (other
than an offer by the Company) for at least fifty (50%) percent of the equity
securities of the Company; (iii) the approval by the stockholders of the Company
of an agreement for a merger or consolidation in which the Company shall not
survive as an independent, publicly-owned corporation; (iv) the acquisition
(including by means of a merger) by a single purchaser or a group of associated
purchasers of securities of the Company from the Company or any third party
representing fifty (50%) percent or more of the combined voting power of the
Company's then outstanding equity securities in one or a related series of
transactions (other than pursuant to an internal reorganization).
3.4.2. "NOTICE OF TERMINATION" DEFINED. "Notice of Termination" means a written
notice that indicates the specific termination provision relied upon by Employer
or Executive and, except in the case of termination pursuant to Sections 3.2.1,
3.2.2 or 3.2.5 hereof, that sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employment Term
under the termination provision so indicated. 3.4.3. "DATE OF TERMINATION"
DEFINED. "Date of Termination" means such date as the Employment Term is expired
if not renewed or terminated in accordance with Sections 3.1 or 3.2 hereof.
4. CONFIDENTIALITY AND NONSOLICITATION; PROPERTY RIGHTS
4.1. "CONFIDENTIAL INFORMATION" DEFINED. "Confidential Information" means any
and all information (oral or written) relating to Employer or any Subsidiary or
any entity controlling, controlled by, or under common control with Employer or
any Subsidiary or any of their respective activities, including, information not
previously disclosed to the public or to the trade by the Company's management,
or otherwise in the public domain, with respect to the Company's products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information, business
plans, prospects or opportunities, but shall exclude any information which (i)
is or becomes available to the public or is generally known in the industry or
industries in which the Company operates other than as a result of disclosure by
the Executive in violation of her agreements under this Section or (ii) the
Executive is required to disclose under any applicable laws, regulations or
directives of any government agency, tribunal or authority having jurisdiction
in the matter or under subpoena or other process of law. The Executive confirms
that all restrictions in this Section are reasonable and valid and waives all
defences to the strict enforcement thereof.
4.2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive shall not at any
time (other than as may be required or appropriate in connection with the
performance by her of her duties hereunder), directly or indirectly, use,
communicate, disclose or disseminate any Confidential Information in any manner
whatsoever (except as may be required under legal process by subpoena or other
court order).
4.3. CERTAIN ACTIVITIES. The Executive shall not, while employed by the Company
and for a period of one (1) year following the Date of Termination, directly or
indirectly, hire, offer to hire, entice away or in any other manner persuade or
attempt to persuade any officer, employee, agent, lessor, lessee, licensor,
licensee or supplier of Employer or any of its Subsidiaries to discontinue or
alter her or its relationship with Employer or any of its Subsidiaries.
4.4. NON-COMPETITION. The Executive shall not, while employed by the Company and
for a period of one (1) year following the Date of Termination, engage or
participate, directly or indirectly (whether as an officer, director, employee,
partner, consultant, shareholder, lender or otherwise), in any business that
manufactures, markets or sells products that directly competes with any product
of the Employer that is significant to the Employer's business based on sales
and/or profitability of any such product as of the Date of Termination, unless
the Employment Term is terminated by Employer pursuant to Section 3.3.2 or by
the Executive pursuant to Section 3.2.6 hereof. Nothing herein shall prohibit
Executive from being a passive owner of any publicly-traded class of capital
stock of any entity directly engaged in a competing business.
4.5. PROPERTY RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to information,
inventions and discoveries or any interest in any copyright and/or other
property right developed, made or conceived of by Executive, either alone or
with others, at any time during her employment by Employer and whether or not
within working hours, arising out of such employment or pertinent to any field
of business or research in which, during such employment, Employer is engaged or
(if such is known to or ascertainable by Executive) is considering engaging,
Executive hereby agrees:
(a) that all such information, inventions and discoveries or any interest in any
copyright and/or other property right, whether or not patented or patentable,
shall be and remain the exclusive property of the Employer;
(b) to disclose promptly to an authorized representative of Employer all such
information, inventions and discoveries or any copyright and/or other property
right and all information in Executive's possession as to possible applications
and uses thereof;
(c) not to file any patent application relating to any such invention or
discovery except with the prior written consent of an authorized officer of
Employer (other than Executive);
(d) that Executive hereby waives and releases any and all rights Executive may
have in and to such information, inventions and discoveries, and hereby assigns
to Executive and/or its nominees all of Executive's right, title and interest in
them, and all Executive's right, title and interest in any patent, patent
application, copyright or other property right based thereon. Executive hereby
irrevocably designates and appoints Employer and each of its duly authorized
officers and agents as her agent and attorney-in-fact to act for her and on her
behalf and in her stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement of
any such patent, patent application, copyright or other property right with the
same force and effect as if executed and delivered by Executive; and
(e) at the request of Employer, and without expense to Executive, to execute
such documents and perform such other acts as Employer deems necessary or
appropriate, for Employer to obtain patents on such inventions in a jurisdiction
or jurisdictions designated by Employer, and to assign to Employer or its
designee such inventions and any and all patent applications and patents
relating thereto.
4.6. INJUNCTIVE RELIEF. The parties hereby acknowledge and agree that (a)
Employer will be irreparably injured in the event of a breach by Executive of
any of her obligations under this Section 4; (b) monetary damages will not be an
adequate remedy for any such breach; (c) Employer will be entitled to injunctive
relief, in addition to any other remedy which it may have, in the event of any
such breach; and (d) the existence of any claims that Executive may have against
Employer, whether under this Agreement or otherwise, will not be a defence to
the enforcement by Employer of any of its rights under this Section 4.
4.7. NON-EXCLUSIVITY AND SURVIVAL. The covenants of the Executive contained in
this Section 4 are in addition to, and not in lieu of, any obligations that
Executive may have with respect to the subject matter hereof, whether by
contract, as a matter of law or otherwise, and such covenants and their
enforceability shall survive any termination of the Employment Term by either
party and any investigation made with respect to the breach thereof by Employer
at any time.
5. MISCELLANEOUS PROVISIONS.
5.1. SEVERABILITY. If, in any jurisdiction, any term or provision hereof is
determined to be invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired; (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction; and (c) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
5.2. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement (and all signatures need not appear on any
one counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered to each
of the other parties hereto.
5.3. NOTICES. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed duly given upon receipt when delivered
by hand, overnight delivery or telecopy (with confirmed delivery), or three (3)
business days after posting, when delivered by registered or certified mail or
private courier service, postage prepaid, return receipt requested, as follows:
If to Employer, to:
Inyx, Inc.
000 Xxxxxxxx 0xx. Xxxxx,
Xxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
If to Executive, to:
Xxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Telephone No.: (000) 000 0000
or to such other address(es) as a party hereto shall have designated by notice
in writing to the other parties hereto.
5.4. AMENDMENT. No provision of this Agreement may be modified, amended, waived,
or discharged in any manner except by a written instrument executed by both the
Employer and the Executive.
5.5. ENTIRE AGREEMENT. This Agreement and, with respect to Section 3.3.6 hereof,
Executive's Stock Option Agreements and the governing stock option plans,
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersede all prior agreements and understandings of
the parties hereto, oral or written. In the event of any conflict between
Section 3.3.6 hereof and Executive's Stock Option Agreements and the governing
stock option plans, Section 3.3.6 shall govern.
5.6. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario, Canada applicable to
contracts made and to be wholly performed therein.
5.7. INTENTIONALLY LEFT BLANK.
5.8. HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
5.9. BINDING EFFECT; SUCCESSORS AND ASSIGNS. The Executive may not delegate any
of her duties or assign her rights hereunder. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns. Employer shall require
any successor (whether direct or indirect and whether by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Employer, by an agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform if no such succession had taken place.
5.10. WAIVER, ETC. The failure of either of the parties hereto to, at any time,
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of either of the parties
hereto thereafter to enforce each and every provision of this Agreement. No
waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party against
whom or which enforcement of such waiver is sought, and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
5.11. CAPACITY, ETC. Executive and Employer hereby represent and warrant to the
other that, as the case may be: (a) she or it has full power, authority and
capacity to execute and deliver this Agreement, and to perform her or its
obligations hereunder; (b) such execution, delivery and performance shall not
(and with the giving of notice or lapse of time or both would not) result in the
breach of any agreements or other obligations to which she or it is a party or
she or it is otherwise bound; and (c) this Agreement is her or its valid and
binding obligation in accordance with its terms.
5.12. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively in arbitration conducted in
Toronto, Canada in accordance with the rules of the Canadian Arbitration Panel
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Punitive damages shall not be awarded. In any arbitration
proceeding, the party determined to be the prevailing party shall be entitled to
receive, in addition to any other award, its attorneys' fees and expenses of the
proceeding.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
INYX, INC.
By:
/s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Chairman
/s/ Xxxx Xxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxx
