EXHIBIT 10.33
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into on this
28th day of March 2005, as of and effective November 1, 2004, by and between
SinoFresh Healthcare, Inc., a Florida corporation (the "Company"), and Xxxxx X.
Xxxxx (hereinafter, the "Executive").
RECITALS
WHEREAS, the Company engages in the research, development and marketing of
novel therapies to treat inflammatory and infectious diseases and disorders of
the upper respiratory system; and
WHEREAS, the Company desires to continue to employ the Executive and to
enter into an agreement, and the Executive desires to continue such employment,
and the parties desire to enter into a new employment agreement, embodying the
terms of such employment; and
WHEREAS, both parties acknowledge the respective advantages, benefits, and
other valuable considerations to be realized by virtue of such a relationship.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to serve the Company on the terms and
conditions set forth herein.
1.2 Duties of Executive. During the Term of Employment under this
Agreement, the Executive shall serve as the Chief Financial Officer of the
Company ("CFO"), shall faithfully and diligently perform all services as may be
assigned to him by the Board of Directors (the "Board") or such officers of the
Company as designated by the Board and shall exercise such power and authority
as may from time to time be delegated to him by the Board. The Executive may
also serve as Secretary of the Company or in any other official capacity as
reasonably determined by the Board in its sole discretion. The Executive shall
devote his full time and attention to the business and affairs of the Company,
render such services to the best of his ability, and use his reasonable best
efforts to promote the interests of the Company. Notwithstanding the foregoing
or any other provision of this Agreement, it shall not be a breach or violation
of this Agreement for the Executive to (i) serve on corporate, civic or
charitable boards or committees, or (ii) manage personal investments, so long as
such activities do not significantly interfere with or significantly detract
from the performance of the Executive's responsibilities to the Company in
accordance with this Agreement.
1.3 Fiduciary Relationship and other Standards. It is understood and
agreed that the Executive will serve in a fiduciary capacity to the Company and,
as such, will comply with the standards applicable to fiduciaries, and will also
comply with any code of ethics established by the Company, by the governing
board or regulatory agency overseeing Certified Public Accountants, and other
policies and standards established by the Company for its employees generally.
2. Term.
2.1 Initial Term. The initial Term of Employment (as defined below)
under this Agreement, and the employment of the Executive hereunder, shall
commence on November 1, 2004 (the "Commencement Date") and shall expire on
October 31, 2007 unless sooner terminated in accordance with Section 5 hereof
(the "Initial Term").
2.2 Renewal Terms. The Initial Term of this Agreement, and the
employment of the Executive hereunder, may be renewed and extended for such
period or periods as may be mutually agreed to by the Company and the Executive
in a written supplement to this Agreement signed by the Executive and the
Company ("Written Supplement"). If this Agreement is not so renewed and extended
prior to the expiation of the Initial Term, this Agreement, and the employment
of the Executive, shall automatically terminate upon the expiration of the
Initial Term, unless earlier terminated under Article 5 hereof.
2.3 Term of Employment and Expiration Date. The period during which
the Executive shall be employed by the Company pursuant to the terms of this
Agreement is sometimes referred to in this Agreement as the "Term of
Employment", and the date on which the Term of Employment shall expire
(including the date on which any renewal term shall expire), is sometimes
referred to in this Agreement as the "Expiration Date".
3. Compensation.
3.1 Base Salary. The Executive shall receive a base salary at the
annual rate of $110,000 through calendar year 2005; $120,000 in year 2006; and
$135,000 in calendar year 2007 until the Expiration Date (the "Base Salary"),
with such Base Salary payable in installments consistent with the Company's
normal payroll schedule, subject to applicable withholding and other taxes.
3.2 Bonuses.
a. During the Term of Employment, the Executive shall be
eligible to receive an annual bonus of fifteen percent (15%) of Executive's Base
Salary in effect at the end of each fiscal year. The Bonus shall be subject to
performance criteria as agreed upon between the Executive and the Chief
Executive Officer. If Executive's employment with the Company terminates for any
reason (other than for Cause under Section 5.1) the Company shall pay the
Executive a pro rata portion (based upon the termination date of the Executive's
employment with the Company) of the bonus otherwise payable under this Section
3.2a; provided, however, that (i) the Bonus Period shall be deemed to end on the
last day of the fiscal quarter of the Company in which the Executive's
employment so terminates, and (ii) the business criteria used to determine the
bonus for this short Bonus Period shall be annualized and shall be determined
based upon unaudited financial information prepared in accordance with generally
accepted accounting principles (or as applicable, in accordance with the
standards of the Public Company Accounting Oversight Board (USA), and reviewed
and approved by the Board.
b. The Executive may receive such additional bonuses, if any,
as the Board may in its sole and absolute discretion determine.
c. Any bonuses payable pursuant to this Section 3.2 are
sometimes hereinafter referred to as "Incentive Compensation." Each period for
which Incentive Compensation is payable is sometimes hereinafter referred to as
a Bonus Period. Unless otherwise specified by the Board, the Bonus Period shall
be the fiscal year of the Company.
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d. Any Incentive Compensation payable pursuant to this Section
3.2 shall be paid by the Company to the Executive within 2-1/2 months after the
end of the Bonus Period for which it is payable.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursement of Expenses. Upon the submission of proper
substantiation by the Executive, and subject to such rules and guidelines as the
Company may from time to time adopt with respect to the reimbursement of
expenses of executive personnel, the Company shall reimburse the Executive for
all reasonable expenses actually paid or incurred by the Executive during the
Term of Employment in the course of and pursuant to the business of the Company
and all reasonable expenses associated with the maintenance of Executive's CPA
designation. The Executive shall account to the Company in writing for all
expenses for which reimbursement is sought and shall supply to the Company
copies of all relevant invoices, receipts or other evidence reasonably requested
by the Company. Leaves of absence without reduction in salary shall be granted
to Executive for attendance at conventions, tradeshows, continuing education
institutes and similar activities, which are approved by the Company's Chief
Executive Officer in advance. All expenses reasonably incurred by Executive in
connection with such activities shall be paid or reimbursed by the Company in
accordance with this Section 4.1.
4.2 Compensation/Benefit Programs. During the Term of Employment,
the Executive shall be entitled to participate in all medical, dental,
hospitalization, accidental death and dismemberment, disability, travel and life
insurance plans, and any and all other plans as are presently and hereinafter
offered by the Company to its employees generally, including savings, pension,
profit-sharing and deferred compensation plans, subject to the general
eligibility and participation provisions set forth in such plans.
4.3 Stock Options. Executive will be issued 150,000 stock options on
November 1, 2004. Of the options, 75,000 will vest immediately and the remaining
75,000 will vest in equal one-third increments on each of the next three
anniversary dates of this agreement. An additional 50,000 will be granted on
each November 1st of 2005, 2006, and 2007. These additional options shall vest
in equal installments on each of the next three anniversary dates after which
the options were granted. The excise price of all options will be based on the
closing market price on the date of grant and will expire on the fifth
anniversary of the date of grant. All options will be issued in accordance with
the Company'S 2002 Stock Option Plan or similar subsequent plans.
4.4 Other Benefits. The Executive shall be entitled to three (3)
weeks of paid vacation each calendar year during the Term of Employment, to be
taken at such times as the Executive and the Company shall mutually determine
and provided that no vacation time shall significantly interfere with the duties
required to be rendered by the Executive hereunder. Any vacation time not taken
by Executive during any calendar year may not be carried forward into any
succeeding calendar year. The Executive shall receive such additional benefits,
if any, as the Board shall from time to time determine.
4.5 Withholding. Anything in this Agreement to the contrary
notwithstanding, all payments required to be made by the Company hereunder to
the Executive or his estate or beneficiaries shall be subject to the withholding
of such amounts relating to taxes as the Company may reasonably determine it
should withhold pursuant to any applicable law or regulation. In lieu of
withholding such amounts, in whole or in part, the Company may, in its sole
discretion, accept other provisions for payment of taxes and withholding as
required by law, provided it is satisfied that all requirements of law affecting
its responsibilities to withhold have been satisfied.
5. Termination.
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5.1 Termination for Cause. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Term of
Employment, for Cause as defined below. For purposes of this Agreement, the term
"Cause" shall mean (i) the willful failure by the Executive substantially to
perform his duties hereunder, (ii) the Executive's substantial neglect of his
duties hereunder, (iii) the material breach of any other provision of this
Agreement by the Executive; (iv) any act of fraud, misappropriation, dishonesty
or embezzlement, any act of insubordination or similar conduct, as determined by
Company; or (v) conviction of the Executive for a felony or any crime involving
moral turpitude. Upon any termination pursuant to this Section 5.1, the Company
shall (i) pay to the Executive any unpaid Base Salary through the date of
termination. Upon any termination effected and compensated pursuant to this
Section 5.1, the Company shall have no further liability hereunder (other than
for (x) reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of Section 4.1, and (y)
payment of compensation for unused vacation days that have accumulated during
the calendar year in which such termination occurs).
5.2 Disability. In the event the Executive shall be unable, or fail,
to perform the essential functions of his position, with or without reasonable
accommodation, for any period of 60 consecutive days, or more than 90 days in
any six month period, the Company shall have the option, in accordance with
applicable law, to terminate this Agreement upon written notice to the
Executive. Upon termination pursuant to this Section 5.3, the Company shall (i)
pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice, (ii) pay to the Executive his accrued but
unpaid Incentive Compensation, if any, for any Bonus Period ending on or before
the date of termination of Executive's employment with the Company. Upon any
termination effected and compensated pursuant to this Section 5.2, the Company
shall have no further liability hereunder (other than for (x) reimbursement for
reasonable business expenses incurred prior to the date of termination, subject,
however to the provisions of Section 4.1, and (y) payment of compensation for
unused vacation days that have accumulated during the calendar year in which
such termination occurs).
5.3 Death. Upon the death of the Executive during the Term of
Employment, the Company shall (i) pay to the estate of the deceased Executive
any unpaid Base Salary through the Executive's date of death, and (ii) pay to
the estate of the deceased Executive his accrued but unpaid Incentive
Compensation, if any, for any Bonus Period ending on or before the Executive's
date of death. Upon any termination effected and compensated pursuant to this
Section 5.3, the Company shall have no further liability hereunder (other than
for (x) reimbursement for reasonable business expenses incurred prior to the
date of the Executive's death, subject, however to the provisions of Section
4.1, and (y) payment of compensation for unused vacation days that have
accumulated during the calendar year in which such termination occurs).
5.4 Termination Without Cause. The Company shall have the right to
terminate the Term of Employment at any time by written notice to the Executive
not less than 30 days prior to the effective date of such termination. Upon any
termination pursuant to this Section 5.4 (that is not a termination under any of
Sections 5.1, 5.2, 5.3 or 5.5), the Company shall (i) pay to the Executive any
unpaid Base Salary through the date of termination specified in such notice,
(ii) pay to the Executive the accrued but unpaid Incentive Compensation, if any,
for any Bonus Period ending on or before the termination of the Term of
Employment, (iii) pay to Executive an amount equal to six (6) months of the
Executive's Base Salary then in effect, which amount shall be paid over the
period of six months following the termination of the Executive's employment
with the Company, in the manner and at such times as the Base Salary otherwise
would have been payable to the Executive. Upon any termination effected and
compensated pursuant to this Section 5.4, the Company shall have no further
liability hereunder (other than for (x) reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
provisions of Section 4.1, and (y) payment of compensation for unused vacation
days that have accumulated during the calendar year in which such termination
occurs).
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5.5 Termination by Executive.
a. The Executive shall at all times have the right, by written
notice not less than thirty (30) days prior to the termination date, to
terminate the Term of Employment.
b. Upon termination of the Term of Employment pursuant to this
Section 5.5 by the Executive without Good Reason (as defined below), the Company
shall (i) pay to the Executive any unpaid Base Salary through the effective date
of termination of the Term of Employment specified in such notice and (ii) pay
to the Executive his accrued but unpaid Incentive Compensation, if any, for any
Bonus Period ending on or before the date on which the Term of Employment
terminates. Upon any termination effected and compensated pursuant to this
Section 5.5(b), the Company shall have no further liability hereunder (other
than for (x) reimbursement for reasonable business expenses incurred prior to
the date of termination, subject, however, to the provisions of Section 4.1, and
(y) payment of compensation for unused vacation days that have accumulated
during the calendar year in which such termination occurs).
c. Upon termination of the Term of Employment pursuant to this
Section 5.5 by the Executive for Good Reason, the Company shall pay to the
Executive the same amounts, that would have been payable or provided by the
Company to the Executive under Section 5.4 of this Agreement if the Term of
Employment had been terminated by the Company without Cause. Upon any
termination effected and compensated pursuant to this Section 5.5(c), the
Company shall have no further liability hereunder (other than for (x)
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of Section 4.1, and (y) payment
of compensation for unused vacation days that have accumulated during the
calendar year in which such termination occurs).
For purposes of this Agreement, "Good Reason" shall mean (i) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1.2 of this Agreement, or any other action by the Company which results in a
material diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive; or (ii) any material failure by the
Company to comply with any of the provisions of Article 3 of this Agreement,
other than an isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive.
5.6 Resignation. Upon any termination of employment pursuant to this
Article 5, the Executive shall be deemed to have resigned as an officer of the
Company and its subsidiaries, and if he or she was then serving as a director of
the Company or any of its subsidiaries, as a director of the Company and its
subsidiaries, and if required by the Board, the Executive shall upon such
termination execute a resignation letter to the applicable board.
5.7 Survival. The provisions of this Article 5 shall survive the
termination of the Term of Employment or expiration of the term of this
Agreement.
6. Restrictive Covenants.
6.1 Non-competition.
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a. At all times during the Restricted Period, the Executive
shall not, directly or indirectly, engage in any competition with, or have any
interest in any sole proprietorship, corporation, company, partnership,
association, venture or business or any other person or entity (whether as an
employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) that directly or indirectly (or through any affiliated
entity) a Competing Business; provided that such provision shall not apply to
the Executive's ownership of common stock of the Company or the acquisition by
the Executive, solely as an investment, of securities of any issuer that is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, and that are listed or admitted for trading on any United States
national securities exchange or that are quoted on the Nasdaq Stock Market, or
any similar system or automated dissemination of quotations of securities prices
in common use, so long as the Executive does not control, acquire a controlling
interest in or become a member of a group which exercises direct or indirect
control of, more than two percent (2%) of any class of capital stock of such
corporation.
b. For purposes of this Agreement, the "Restricted Period"
shall be the Term of Employment and if the Term of Employment is terminated for
any reason other than by the Company for Cause (as defined in Section 5.1
hereof) or by the Executive for Good Reason (as defined in Section 5.5(d)
hereof), the one (1) year period immediately following termination of the Term
of Employment. Notwithstanding the foregoing, the Restricted Period shall end in
the event that the Company fails to make any payments required by Article 5
hereof with 15 days of written notice from the Executive of such failure.
c. For purposes of this Agreement, a "Competing Business"
shall mean a person or entity engaged in the business of (or as a component of
its business) the research, development, marketing, distribution and/or sales of
therapies for the treatment of symptoms or causes of inflammatory or infectious
diseases and/or disorders of the upper respiratory system.
6.2 Confidential Information. The Executive shall not at any time
divulge, communicate, use to the detriment of the Company or for the benefit of
any other person or entity, or misuse in any way, any Confidential Information
(as hereinafter defined) pertaining to the business of the Company. Any
Confidential Information shall be deemed a valuable, special and unique asset of
the Company that is received by the Executive in confidence and as a fiduciary,
and Executive shall remain a fiduciary to the Company with respect to all of
such information. For purposes of this Agreement, "Confidential Information"
means all trade secrets and information disclosed to the Executive or known by
the Executive as a consequence of or through the unique position of his
employment with the Company (including information conceived, originated,
discovered or developed by the Executive and information acquired by the Company
from others) prior to or after the date hereof, and not generally or publicly
known (other than as a result of unauthorized disclosure by the Executive),
about the Company or its business, which trade secrets and information include,
but are not limited to, the Company's financial information, technology,
intellectual property, formulas, technical and non-technical data, computer
software, product plans, business plans, prospects, customers, suppliers,
business methods and processes, research and development, marketing,
promotional, pricing, an data relating to employees and consultants. Any
Confidential Information or data now or hereafter acquired by the Executive with
respect to the business of the Company shall be deemed a valuable, special and
unique asset of the Company that is received by the Executive in confidence and
as a fiduciary, and Executive shall remain a fiduciary to the Company with
respect to all of such information. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Executive from disclosing Confidential
Information as required to perform his duties under this Agreement or to the
extent required by law. Upon request by the Company, the Executive shall deliver
promptly to the Company upon termination of his services for the Company, or at
any time thereafter as the Company may request, all Company memoranda, notes,
records, reports, manuals, drawings, designs, computer files in any media and
other documents (and all copies thereof)
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containing such Confidential Information and all property of the Company or any
other Company affiliate, which he may then possess or have under his control.
6.3 Nonsolicitation of Employees and Customers. At all times during
the Restricted Period, the Executive shall not, directly or indirectly, for
himself or for any other person, firm, corporation, partnership, association or
other entity (a) employ or attempt to employ or enter into any contractual
arrangement with any employee or former employee of the Company, unless such
employee or former employee has not been employed by the Company for a period in
excess of twelve months, and/or (b) call on or solicit any of the actual or
targeted prospective customers or clients of the Company on behalf of any person
or entity in connection with any Competing Business nor shall the Executive make
known the names and addresses of such clients or any information relating in any
manner to the Company's trade or business relationships with such customers,
other than in connection with the performance of Executive's duties under this
Agreement.
6.4 Ownership of Developments. All processes, concepts, techniques,
inventions and works of authorship, including new contributions, improvements,
formats, packages, programs, systems, machines, compositions of matter
manufactured, developments, applications and discoveries, and all copyrights,
patents, trade secrets, or other intellectual property rights associated
therewith conceived, invented, made, developed or created by the Executive
during the Term of Employment either during the course of performing work for
the Company or which are related in any manner to the business (commercial or
experimental) of the Company (collectively, the "Work Product") shall belong
exclusively to the Company and shall, to the extent possible, be considered a
work made by the Executive for hire for the Company within the meaning of Title
17 of the United States Code. To the extent the Work Product may not be
considered work made by the Executive for hire for the Company, the Executive
agrees to assign, and automatically assign at the time of creation of the Work
Product, without any requirement of further consideration, any right, title, or
interest the Executive may have in such Work Product. Upon the request of the
Company, the Executive shall take such further actions, including execution and
delivery of instruments of conveyance, as may be appropriate to give full and
proper effect to such assignment. The Executive shall further: (a) promptly
disclose the Work Product to the Company; (b) assign to the Company, without
additional compensation, all patent or other rights to such Work Product for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventions, all at the
sole cost and expense of the Company.
6.5 Books and Records. All books, records, and accounts relating in
any manner to the customers or clients of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of the Executive's employment hereunder or on the
Company's request at any time.
6.6 Definition of Company. Solely for purposes of this Article 6,
the term "Company" also shall include any existing or future subsidiaries of the
Company that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Company during
the periods described herein.
6.7 Acknowledgment by Executive. The Executive acknowledges and
confirms that the restrictive covenants contained in this Article 6 (including
without limitation the length of the term of the provisions of this Article 6)
are reasonably necessary to protect the legitimate business interests of the
Company, and are not overbroad, overlong, or unfair and are not the result of
overreaching, duress or coercion of any kind. The Executive further acknowledges
and confirms that the compensation payable to
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the Executive under this Agreement is in consideration for the duties and
obligations of the Executive hereunder, including the restrictive covenants
contained in this Article 6, and that such compensation is sufficient, fair and
reasonable. The Executive further acknowledges and confirms that his full,
uninhibited and faithful observance of each of the covenants contained in this
Article 6 will not cause him any undue hardship, financial or otherwise, and
that enforcement of each of the covenants contained herein will not impair his
ability to obtain employment commensurate with his abilities and on terms fully
acceptable to him or otherwise to obtain income required for the comfortable
support of him and his family and the satisfaction of the needs of his
creditors. The Executive acknowledges and confirms that his special knowledge of
the business of the Company is such as would cause the Company serious injury or
loss if he were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of this Article 6.
The Executive further acknowledges that the restrictions contained in this
Article 6 are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company's successors and assigns. The Executive expressly
agrees that upon any breach or violation of the provisions of this Article 6,
the Company shall be entitled, as a matter of right, in addition to any other
rights or remedies it may have, to (a) temporary and/or permanent injunctive
relief in any court of competent jurisdiction as described in Section 6.10
hereof, and (b) such damages as are provided at law or in equity. The existence
of any claim or cause of action against the Company or its affiliates, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement of the restrictions contained in this Article 6.
6.8 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Article 6 is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Article 6 within the jurisdiction of such
court, such provision shall be interpreted or reformed and enforced as if it
provided for the maximum restriction permitted under such governing law.
6.9 Extension of Time. If the Executive shall be in violation of any
provision of this Article 6, then each time limitation set forth in this Article
6 shall be extended for a period of time equal to the period of time during
which such violation or violations occur. If the Company seeks injunctive relief
from such violation in any court, then the covenants set forth in this Article 6
shall be extended for a period of time equal to the pendency of such proceeding
including all appeals by the Executive.
6.10 Injunction. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in Article 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Article 6 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
6.11 Survival. The provisions of this Article 6 shall survive the
termination of the Term of Employment or expiration of the term of Agreement.
7. Non-Disparagement. It is agreed that upon and after termination of
Executive's employment under this Agreement, neither the Company nor the
Executive will disparage each other, nor will any public announcements, public
statements or press releases (each a "Publication") be issued concerning the
departure of the Executive unless such Publication is issued jointly and by
mutual agreement, except for public filings of the Company required by law.
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8. Section 162(m) Limits. Notwithstanding any other provision of this
Agreement to the contrary, if and to the extent that any remuneration payable by
the Company to the Executive for any year would exceed the maximum amount of
remuneration that the Company may deduct for that year under Section 162(m)
("Section 162(m)") of the Internal Revenue Code of 1986, as amended (the
"Code"), payment of the portion of the remuneration for that year that would not
be so deductible under Section 162(m) shall, in the sole discretion of the
Board, be deferred and become payable at such time or times as the Board
determines that it first would be deductible by the Company under Section
162(m), with interest at the "short-term applicable rate" as such term is
defined in Section 1274(d) of the Code. The limitation set forth under this
Section 8 shall not apply with respect to any amounts payable to the Executive
pursuant to Article 5 hereof.
9. Assignment. The Company shall have the right to assign this
Agreement and its rights and obligations hereunder in whole, but not in part, to
any corporation or other entity with or into which the Company may hereafter
merge or consolidate or to which the Company may transfer all or substantially
all of its assets, if in any such case said corporation or other entity shall by
operation of law or expressly in writing assume all obligations of the Company
hereunder as fully as if it had been originally made a party hereto, but may not
otherwise assign this Agreement or its rights and obligations hereunder. The
Executive may not assign or transfer this Agreement or any rights or obligations
hereunder.
10. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Florida, without
regard to principles of conflict of laws.
11. Jurisdiction and Venue. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Sarasota County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement which is expressly permitted by the terms of this Agreement to be
brought in a court of law, shall be brought in the courts of record of the State
of Florida in Sarasota County or the court of the United States, Middle District
of Florida, located in Tampa, Florida; (b) consents to the jurisdiction of each
such court in any such suit, action or proceeding; (c) waives any objection
which it or he may have to the laying of venue of any such suit, action or
proceeding in any of such courts; and (d) agrees that service of any court
papers may be effected on such party by mail, as provided in this Agreement, or
in such other manner as may be provided under applicable laws or court rules in
such courts.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Executive and the Company (or
any of its affiliates) with respect to such subject matter. This Agreement may
not be modified in any way unless by a written instrument signed by both the
Company and the Executive.
13. Notices: All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent (i) if to the Company, addressed to the Company at 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Chief Executive Officer, and
(ii) if to the Executive, to his address as reflected on the
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payroll records of the Company, or to such other address as either party shall
request by notice to the other in accordance with this provision.
14. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where permitted and
applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
15. Right to Consult with Counsel; No Drafting Party. The Executive
acknowledges having read and considered all of the provisions of this Agreement
carefully, and having had the opportunity to consult with counsel of his own
choosing, and, given this, the Executive agrees that the obligations created
hereby are not unreasonable. The Executive acknowledges that he has had an
opportunity to negotiate any and all of these provisions and no rule of
construction shall be used that would interpret any provision in favor of or
against a party on the basis of who drafted the Agreement.
16. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, provisions, sections or articles contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part thereof, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, provisions, sections or articles contained in this
Agreement shall be declared invalid, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, provisions or provisions, section or sections or article or articles
had not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
17. Waivers. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
18. Damages; Attorneys Fees. Nothing contained herein shall be construed
to prevent the Company or the Executive from seeking and recovering from the
other damages sustained by either or both of them as a result of its or his
breach of any term or provision of this Agreement. In the event that either
party hereto seeks to collect any damages resulting from, or the injunction of
any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable costs
and attorneys' fees of the other.
19. Waiver of Jury Trial. The Executive hereby knowingly, voluntarily
and intentionally waives any right that the Executive may have to a trial by
jury in respect of any litigation based hereon, or arising out of, under or in
connection with this Agreement and any agreement, document or instrument
contemplated to be executed in connection herewith, or any course of conduct,
course of dealing statements (whether verbal or written) or actions of any party
hereto.
20. Section Headings. The article, section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
21. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
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22. Cumulative Remedies. Notwithstanding the foregoing, all remedies of
Company hereunder are cumulative, in addition to any other remedies provided for
by law, and may, to the extent permitted by law, be exercised concurrently or
separately. The exercise of any one remedy shall not be deemed to be an election
of such remedy, or to preclude the exercise of any other remedy.
23. Claims Not a Defense. The Executive expressly agrees that the
existence of any claims that he may have against the Company, whether or not
arising from this Agreement, shall not constitute a defense to the enforcement
by the Company of the covenants or provisions herein.
24. Independent Covenants. The parties agree that each of the covenants
and provisions contained in this Agreement shall be deemed severable and
construed as independent of any other covenant or provision. If all or any
portion of a covenant or provision in this Agreement is held invalid,
unreasonable or unenforceable by a court or agency having valid jurisdiction in
an unappealed final decision to which Company is a party, the remaining
covenants and provisions shall remain valid and enforceable. Employee expressly
agrees to be bound by any lesser covenant or provision subsumed within the terms
of such covenant or provision that imposes the maximum duty permitted by law, as
if the resulting covenant or provision were separately stated in, and made a
part of this Agreement.
25. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument and agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
COMPANY:
SINOFRESH HEALTHCARE, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxx Xxxx
Title: Chairman and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxx
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