EMPLOYMENT AGREEMENT
Exhibit 10.5
THIS
EMPLOYMENT AGREEMENT (“Agreement”)
is
made and entered into as of November 30, 2006, by and between Xcorporeal,
Inc., a Delaware corporation (“Company”),
and
Xxxxxx Xxxx, M.D. (“Executive”).
RECITALS
A. WHEREAS,
Executive has experience and expertise applicable to employment with Company
to
perform as the Chief Medical and Scientific Officer of Company, Company has
agreed to employ Executive and Executive has agreed to enter into such
employment, on the terms set forth in this Agreement.
B. WHEREAS,
Executive acknowledges that this Agreement is necessary for the protection
of
Company’s investment in its business, good will, products, patents, inventions,
intellectual property, methods of operation, information, and relationships
with
its customers and other employees.
C. WHEREAS,
Company acknowledges that Executive desires definition of his compensation
and
benefits, and other terms of his employment.
NOW,
THEREFORE, in consideration thereof and of the covenants and conditions
contained herein, the parties agree as follows:
AGREEMENT
1.
TERM
OF EMPLOYMENT
1.1
Initial
Term.
The
initial term of employment will begin on December 1, 2006 (the
“Commencement
Date”)
and
will continue until four (4) years following the Commencement Date
(“Initial
Term”).
After
the expiration of the Initial Term, Executive will be employed on an at-will
basis, with either party able to terminate the employment, with or without
cause
and with or without notice. For purposes of this Agreement, the “Term”
shall
mean the period during which Executive is an employee of the Company.
2.
EMPLOYMENT
2.1
Employment
of Executive.
Company
agrees to employ Executive to render services on the terms set forth herein.
Executive hereby accepts such employment on the terms and conditions of this
Agreement.
2.2
Position
and Duties.
Executive will serve as Chief Medical and Scientific Officer of Company,
reporting to the Chief Executive Officer or Chairman (“Chairman”)
of the
Company’s Board of Directors (“Board”),
and
will have the general powers, duties and responsibilities of management usually
vested in that office in a corporation and such other powers and duties as
may
be prescribed from time to time by the Chairman or the Board.
2.3
Standard
of Performance.
Executive agrees that he will at all times faithfully and industriously and
to
the best of his ability, experience and talents perform all of the duties that
may be required of and from him pursuant to the terms of this Agreement. Such
duties will be performed at such place or places as the interests, needs,
business and opportunities of Company will require or render advisable.
2.4
Exclusive
Service.
(a) Subject
to Section 2.4(b),
Executive will (i) devote substantially all of his business energies and
abilities and all of his productive time to the performance of his duties under
this Agreement (reasonable absences during holidays and vacations excepted),
and
will not, without the prior written consent of Company, render to others any
service of any kind (whether or not for compensation) that, in the opinion
of
Company, would materially interfere with the performance of his duties under
this Agreement, and (ii) not, without the prior written consent of Company,
maintain any affiliation with, whether as an agent, consultant, employee,
officer, director, trustee or otherwise, nor will he directly or indirectly
render any services of an advisory nature or otherwise to, or participate or
engage in, any other company or business activity.
(b) Provided
that doing so does not interfere with Executive’s obligations under the other
provisions of this Section 2,
Executive may spend up to ten hours per week (on a non-cumulative basis)
attending and presenting at medical conferences, meetings and symposiums,
lecturing and teaching at UCLA The Geffen School of Medicine, or treating
private patients, all in a manner that does not compete with the business of
the
Company.
3.
COMPENSATION
3.1
Compensation.
During
the Term, Company will pay the amounts and provide the benefits described in
this Section 3,
and
Executive agrees to accept such amounts and benefits in full payment for
Executive’s services under this Agreement.
3.2
Base
Salary.
Company
will pay to Executive a base salary equivalent to $420,000.00 per year
commencing the Commencement Date, payable in accordance with Company’s standard
payroll practices. At Company’s sole discretion, Executive’s base salary may be
increased, but not decreased, annually. Notwithstanding the foregoing,
commencing on January 1, 2008 and annually thereafter, the Base Salary will
be increased by at least the Consumer Price Index for Los Angeles, California
(or a reasonable proxy thereof).
3.3
Discretionary
Bonus.
Except
as described in Section 5.1
below,
Executive is eligible to receive an annual bonus in an amount that will be
targeted at 50% of Executive’s base salary for such year. The bonus will be
based on Executive achieving designated individual goals and milestones, and
the
overall performance and profitability of the Company. The goals and milestones
will be established and reevaluated on an annual basis by mutual agreement
of
Executive and the Chairman, subject to review and approval by the Board or
its
Compensation Committee. Any bonus under this Section 3.3
will be
based on a calendar year and will be paid no later than the
March 15th
of the
following year, and will be payable to the extent awarded regardless of whether
Executive’s employment terminated prior to such payment. The first
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annual
bonus (for calendar year 2006), to the extent granted at the sole discretion
of
the Company, will be prorated based on the Commencement Date.
3.5
Stock
Options.
(a) Upon
U.S. Food and Drug Administration approval of the Company’s first product,
Executive will, subject to Board approval (which will not be unreasonably
withheld), be granted an option to purchase 500,000 shares of Company’s common
stock pursuant to a stock option agreement under the provisions of Company’s
2006 Stock Incentive Plan (“Plan”)
at an
exercise price equal to the fair market value of the common stock on the date
of
grant, with a term of 10 years. This option is in addition to the option to
purchase 500,000 shares of common stock granted to Executive on November 14,
2006 in his capacity as a director of the Company.
(b) Except
as otherwise set forth herein, vesting of options will cease upon the
termination of both Executive’s service as a director and employment with
Company and its affiliates.
3.6
Fringe
Benefits.
Subject
to Section 3.7
and upon
satisfaction of the applicable eligibility requirements, Executive and
Executive’s family will be provided with group medical and dental insurance and
group dental coverage through Company’s plans. Medical and dental benefits will
commence on the first day of the month following the Commencement Date. In
the
event that no benefit plans are in place at that time, the Company will
reimburse Executive for COBRA coverage until such time as Executive is covered
under the Company’s group medical and dental plans. Company will pay for
$500,000 of term life insurance for the benefit of Executive, subject to the
standard physical examination that is required by the issuing insurance company.
In addition, Executive will be provided with accidental death and disability
and
long-term disability insurance, or reimbursed for the reasonably equivalent
cost
of a private disability policy. Executive will also be provided with $1,500
per
month to reimburse executive for the cost of an automobile. Executive is also
eligible to participate in Company’s 401K plan beginning on the first day of the
month following the Commencement Date.
3.7
Paid
Time Off.
Executive will accrue, on a daily basis, a total of four (4) workweeks of paid
time off (PTO) per year commencing with the Commencement Date, provided,
however, that Executive’s accrued and unused PTO may not exceed a total of seven
(7) workweeks. This PTO will be in addition to normal Company holidays,
which will be determined at the discretion of the Company from time to time.
Thereafter, Executive will not continue to accrue PTO benefits until he has
used
enough PTO time to fall below this maximum amount. Any accrued but unused PTO
will be paid to Executive, on a pro rata basis, at the time that his employment
is terminated. In addition to PTO, the Executive will be entitled to normal
Company holidays.
3.8
Deduction
from Compensation.
Company
will deduct and withhold from all compensation payable to Executive all amounts
required to be deducted or withheld pursuant to any present or future law,
ordinance, regulation, order, writ, judgment, or decree requiring such deduction
and withholding.
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4.
REIMBURSEMENT OF EXPENSES
4.1
Travel
and Other Expenses.
Company
will pay to or reimburse Executive for those travel, promotional, professional
continuing education and licensing costs (to the extent required), professional
society membership fees, seminars and similar expenditures incurred by Executive
which Company determines are reasonably necessary for the proper discharge
of
Executive’s duties under this Agreement and for which Executive submits
appropriate receipts and indicates the amount, date, location and business
character in a timely manner.
4.2
Liability
Insurance.
Company
will provide Executive with officers and directors’ insurance, or other
liability insurance, consistent with its usual business practices, to cover
Executive against all insurable events related to his employment with Company.
4.3
Indemnification.
Promptly upon written request from Executive, Company will indemnify Executive,
to the fullest extent under applicable law, for all judgments, fines,
settlements, losses, costs or expenses (including attorney’s fees), arising out
of Executive’s activities as an agent, employee, officer or director of Company,
or in any other capacity on behalf of or at the request of Company. Such
agreement by Company will not be deemed to impair any other obligation of
Company respecting indemnification of Executive otherwise arising out of this
or
any other agreement or promise of Company or under any statute. The rights
to
indemnification will survive any termination of Executive’s employment or this
Agreement.
5.
TERMINATION
5.1
Termination
With Good Cause; Resignation Without Good Reason.
Company
may terminate Executive’s employment at any time, with or without notice, or
Good Cause (as defined below). If Company terminates Executive’s employment with
Good Cause, or if Executive resigns without Good Reason (as defined below),
Company will pay Executive his salary prorated through the date of termination,
at the rate in effect at the time notice of termination is given, together
with
any benefits accrued through the date of termination and any accrued bonus
earned through the date of termination. Company will have no further obligations
to Executive under this Agreement or any other agreement, and all unvested
options will terminate.
5.2
Termination
Without Good Cause; Resignation with Good Reason.
Executive will have the right to terminate his employment with notice and Good
Reason. If Company terminates Executive’s employment without Good Cause, or
Executive resigns for Good Reason:
(a) Company
will pay Executive his salary prorated through the date of termination, at
the
rate in effect at the time notice of termination is given, together with any
benefits accrued through the date of termination;
(b) Company
will pay Executive in a lump sum an amount equal to two (2) year’s salary
(at the rate in effect at the time of termination) plus a bonus equal to 200%
of
the targeted bonus for the year in which termination occurs;
(c) All
of Executive’s unvested stock options will vest immediately; and
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(d) In
addition to any rights under COBRA, the term for continued medical benefits
provided by Company will continue for a period of two years from the date of
termination, provided that coverage will terminate sooner if Executive and
his
family become eligible for coverage under another employer’s plan.
To
be eligible for the compensation provided for in Section 5.2(b),
(c) and (d)
above,
Executive must execute a full and complete release of any and all claims against
Company, excluding only: (i) claims for indemnification under (A)
Sections 4.3
or 10.12
of this
Agreement, (B) the Indemnification Agreement dated October 13, 2006
between the Company and Executive, or (C) the articles of incorporation or
bylaws of the Company or applicable law; (ii) post-employment termination
rights under employee benefit plans and stock option agreements; and
(iii) rights to the compensation provided for in Section 5.2(b),
(c) and (d)
above.
Except as set forth above, the release shall be in substantially the standard
form used by Company (“Release”).
5.3
Good
Cause.
For
purposes of this Agreement, a termination will be for “Good Cause” if Executive
has:
(a) Commited
an act of actual fraud, moral turpitude, misappropriation of funds or
embezzlement in connection with his duties under this Agreement;
(b) Willfully
or recklessly violated (i) Executive’s fiduciary duty to Company;
(ii) any material provision of Company’s written Executive Handbook which
results in material damage to the Company, or (iii) any applicable state or
federal law or regulation;
(c) Willfully,
recklessly or grossly negligently failed or refused to comply with (i) the
Company’s written Codes of Ethics as adopted by the Board or (ii) all
relevant and material obligations, assumable and chargeable to an executive
of
his corporate rank and responsibilities, under the Xxxxxxxx-Xxxxx Act and the
regulations of the Securities and Exchange Commission promulgated thereunder;
(d) Materially
breached this Agreement (other than Section 10.1)
or the
Confidentiality Agreement (defined below), or willfully failed to or refused
to
comply with the lawful directives of the Chairman or the Board in the
performance of his duties under this Agreement (other than a failure caused
by
temporary disability); provided, however, that no termination will occur on
that
basis unless the Company first provides the Executive with written notice to
cure; the notice to cure will reasonably specify the acts or omissions that
constitute the Executive’s failure or refusal to perform his duties, and the
Executive will have a reasonable opportunity given the circumstances (not to
exceed 30 days after the date of notice to cure) to correct his failure or
refusal to perform his duties;
(e) Be
convicted of, or enter a plea of guilty or no contest to, a felony under state
or federal law, other than a traffic violation or misdemeanor not involving
dishonesty or moral turpitude.
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5.4
Good
Reason.
For
purposes of this Agreement, a resignation by Executive will be for “Good Reason”
if tendered within ninety (90) days of any of the following actions by
Company:
(a) Assignment
to Executive of duties materially inconsistent with Executive’s status as
defined in Section 2.2,
or a
substantial reduction in the nature or status of Executive’s responsibilities;
(b) Relocation
of Executive’s site of employment outside a 30 mile radius of Los Angeles
(unless closer to Executive’s residence) without Executive’s consent, except for
reasonably required travel on Company’s business;
(c) Failure
to cause any acquiring or successor entity following a Change in Control to
assume Company’s obligations under this Agreement, unless such assumption occurs
by operation of law; or
(d) Material
breach of this Agreement by Company, or failure to timely pay to Executive
any
amount due under Section 3,
which
continues after written notice and reasonable opportunity to cure (not to exceed
10 days after the date of notice);
(e) Executive
is asked to report to an individual other than the current Chairman or Board;
(f) The
Company voluntarily sells, transfers or assigns all or substantially all of
its
rights under the Company’s License Agreement dated September 1, 2006;
(g) Company’s
failure to grant the stock options as provided in Section 3.5(a);
or
(h) The
occurrence of a Change in Control (as defined below).
5.5
Effects
of Change in Control.
Immediately upon a Change in Control, all of Executive’s unvested options will
vest immediately, and remain exercisable until the later of the expiration
date
of the options as specified in the option agreement or three (3) years
after the Change of Control.
5.6
Change
in Control.
For
purposes of this Agreement, a “Change
in Control”
will
be
defined as:
(a) The
acquisition of Company by another entity by means of a transaction or series
of
related transactions (including, without limitation, any reorganization, merger,
stock purchase or consolidation);
(b) The
sale, transfer or other disposition of all or substantially all of the Company’s
assets; or
(c) The
acquisition by merger, purchase of stock or otherwise, in one or a series of
transactions, of more than 50% of the common stock of the Company, or of other
voting
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securities
of the Company having the ability to elect a majority of the members of the
Board, by a person, entity or a “group” (as defined in Section 13(d)(3) of
the Securities Exchange Act), other than the person who is the Chairman as
of
the date of execution of this Agreement, or any of his affiliates.
5.7
No
Change in Control.
Notwithstanding the provisions of Section 5.6,
the
following will not constitute a Change in Control:
(a) If
the sole purpose of the transaction is to change the state of the Company’s
incorporation or to create or eliminate a holding company that will be owned
in
substantially the same proportions by the same beneficial owners as before
the
transaction;
(b) If
Company’s stockholders of record as constituted immediately prior to the
transaction will, immediately after the transaction (by virtue of securities
issued as a consideration for Company’s capital stock or assets or otherwise),
hold more than 50% of the combined voting power of the surviving or acquiring
entity’s outstanding securities;
(c) An
underwritten public offering of Company’s common stock, if Company’s
stockholders of record as constituted immediately prior to the offering will,
immediately after the offering, continue to hold more than 50% of the combined
voting power of Company’s outstanding securities;
(d) The
private placement of preferred or common stock, or the issuance of debt
instruments convertible into preferred or common stock, for fair market value
as
determined by the Board, provided the acquiring person does not as a result
of
the transaction own more than 50% of the outstanding capital stock of Company,
have the right to vote more than 50% of the outstanding voting stock of Company,
or have the right to elect a majority of the Board; or
(e) If
Executive is a member of a group that acquires control of Company in an event
that would otherwise be a Change in Control, such event will not be deemed
a
Change in Control and Executive will have no right to benefits hereunder as
a
result of such event; provided, however, that Executive will not be deemed
a
member of any acquiring group solely by virtue of his continued employment
or
ownership of stock or stock options following a Change in Control.
5.8
Death
or Disability.
To the
extent consistent with federal and state law, Executive’s employment, salary,
and accrual of commissions will terminate on his death or disability.
“Disability” means any health condition, physical or mental, or other cause
beyond Executive’s control, that prevents him from performing his duties, even
after reasonable accommodation is made by Company, for a period of 180
consecutive days within any 360 day period. In the event of termination due
to death or Disability, Company will pay Executive (or his legal representative)
his salary prorated through the date of termination, at the rate in effect
at
the time of termination, together with any benefits accrued through the date
of
termination, and an amount equal to (a) one year of salary (at the rate in
effect at the time of termination); and (b) the Executive’s full targeted bonus
for that year. To be eligible for the compensation provided for in this
Section 5.5,
Executive’s representative must execute a Release (as contemplated by
Section 5.2) on behalf of Executive or Executive’s estate.
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5.9
Return
of Company Property.
Within
five (5) days after the Termination Date, Executive will return to Company
all products, books, records, forms, specifications, formulae, data processes,
designs, papers and writings relating to the business of Company including
without limitation proprietary or licensed computer programs, customer lists
and
customer data, and/or copies or duplicates thereof in Executive’s possession or
under Executive’s control. Executive will not retain any copies or duplicates of
such property and all licenses granted to him by Company to use computer
programs or software will be revoked on the Termination Date.
6.
DUTY
OF LOYALTY
6.1
During his employment with the Company, Executive will not, without the prior
written consent of Company, directly or indirectly render services of a
business, professional, or commercial nature to any person or firm, whether
for
compensation or otherwise, or engage in any activity directly or indirectly
competitive with or adverse to the business or welfare of Company, whether
alone, as a partner, or as an officer, director, employee, consultant, or holder
of more than 1 % of the capital stock of any other corporation. Otherwise,
Executive may make personal investments in any other business so long as these
investments do not require him to participate in the operation of the companies
in which he invests. Notwithstanding the foregoing, Executive will be permitted
to engage in non-competitive professional activities as provided in Section
2.4(b).
7.
CONFIDENTIAL INFORMATION
7.1
Trade
Secrets of Company.
Executive, during the Term, will develop, have access to and become acquainted
with various trade secrets which are owned by Company and/or its affiliates
and
which are regularly used in the operation of the businesses of such entities.
Executive will not disclose such trade secrets, directly or indirectly, or
use
them in any way, either during the Term or at any time thereafter, except as
required in the course of his employment by Company. All files, contracts,
manuals, reports, letters, forms, documents, notes, notebooks, lists, records,
documents, customer lists, vendor lists, purchase information, designs, computer
programs and similar items and information, relating to the businesses of such
entities, whether prepared by Executive or otherwise and whether now existing
or
prepared at a future time, coming into his possession will remain the exclusive
property of such entities, and will not be removed, other than work-related
purposes, from the premises where the work of Company is conducted, except
with
the prior written authorization by Company.
7.2
Confidential
Data of Customers of Company.
Executive, in the course of his duties, will have access to and become
acquainted with financial, accounting, statistical and personal data of
customers of Company and of their affiliates. All such data is confidential
and
will not be disclosed, directly or indirectly, or used by Executive in any
way,
either during the Term (except as required in the course of employment by
Company) or at any time thereafter.
7.3
Inevitable
Disclosure.
Subject
to Section 5.2,
after
Executive’s employment has terminated with Good Cause or without Good Reason,
Executive will not accept employment with any direct competitor of Company
for a
period of one (1) year, where the new employment is likely to result in the
inevitable disclosure of Company’s trade secrets or confidential
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information,
or it would be impossible for Executive to perform his new job without using
or
disclosing trade secrets or confidential information.
7.4
Limited
Exceptions.
Notwithstanding the foregoing, no information will be considered trade secret
or
confidential to the extent it is or becomes publicly available without breach
of
this Agreement by Executive, is rightfully received by Executive without
obligations of confidentiality, or is ordered released or disclosed by court
order, lawful process or government authority.
7.5
Continuing
Effect.
The
provisions of this Section 7
will
remain in effect after the Termination Date.
8.
NO
SOLICITATION
8.1
No
Solicitation of Executives.
Subject
to Section 5.2,
Executive agrees that he will not, during the Term and for one (1) year
thereafter if terminated without Good Cause or with Good Reason or for two
(2) years thereafter if terminated with Good Cause or without Good Reason,
encourage or solicit any other employee of Company to terminate his or her
employment for any reason, nor will he assist others to do so.
8.2
No
Solicitation of Customer.
Subject
to Section 5.2,
Executive agrees that he will not, during the Term and for one (1) year
thereafter if terminated without Good Cause or with Good Reason or for two
(2) years thereafter if terminated with Good Cause or without Good Reason,
directly or indirectly call on, or otherwise solicit, business within the scope
of business sought by Company from any actual customer or potential customer
known by Executive to be targeted by Company, nor will he assist others in
doing
so.
9. INTELLECTUAL
PROPERTIES.
The
Executive has signed a separate Innovation, Proprietary Information and
Confidentiality Agreement (“Confidentiality
Agreement”).
10.
OTHER
PROVISIONS
10.1
Compliance
With Other Agreements.
Executive represents and warrants to Company that the execution, delivery and
performance of this Agreement will not conflict with or result in the violation
or breach of any term or provision of any order, judgment, injunction, contract,
agreement, commitment or other arrangement to which Executive is a party or
by
which he is bound.
10.2
Injunctive
Relief.
Executive acknowledges that the services to be rendered under this Agreement
and
the items described in Sections 6,
7, 8 and 9
are of a
special, unique and extraordinary character, that it would be difficult or
impossible to replace such services or to compensate Company in money damages
for a breach of this Agreement. Accordingly, Executive agrees and consents
that
if he violates any of the provisions of this Agreement, Company, in addition
to
any other rights and remedies available under this Agreement or otherwise,
will
be entitled to temporary and permanent injunctive relief, without the necessity
of
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proving
actual damages and without the necessity of posting any bond or other
undertaking in connection therewith.
10.3
Attorneys’
Fees.
The
prevailing party in any suit or other proceeding brought to enforce, interpret
or apply any provisions of this Agreement, will be entitled to recover all
costs
and expenses of the proceeding and investigation (not limited to court costs),
including all attorneys’ fees.
10.4
Counsel.
The
parties acknowledge and represent that, prior to the execution of this
Agreement, they have had an opportunity to consult with their respective counsel
concerning the terms and conditions set forth herein. Company will pay the
reasonable attorneys fees of Xxxx & Xxxxx P.C. as counsel for Executive in
connection with the negotiation, drafting and execution of this Agreement.
Additionally, Executive represents that he has had an opportunity to receive
independent legal advice concerning the taxability of any consideration received
under this Agreement. Executive has not relied upon any advice from Company
and/or its attorneys with respect to the taxability of any consideration
received under this Agreement. Executive further acknowledges that Company
has
not made any representations to him with respect to tax issues.
10.5
Nondelegable
Duties.
This is
a contract for Executive’s personal services. The duties of Executive under this
Agreement are personal and may not be delegated or transferred in any manner
whatsoever, and will not be subject to involuntary alienation, assignment or
transfer by Executive during his life.
10.6
Governing
Law.
The
validity, construction and performance of this Agreement will be governed by
the
laws, without regard to the laws as to choice or conflict of laws, of the State
of California.
10.7
Arbitration.
Any
dispute, controversy or claim arising out of or relating to this Agreement,
or
Executive’s employment with Company, including without limitation the issue of
arbitrability, will be resolved by final and binding arbitration before a
retired judge at JAMS or its successor in Santa Monica, California. To the
maximum extent permitted by applicable law he prevailing party will be awarded
its arbitration, attorney and expert witness fees, costs and expenses. Judgment
on any interim or final award of the arbitrator may be entered in any court
of
competent jurisdiction.
10.8
Severability.
The
invalidity or unenforceability of any particular provision of this Agreement
will not affect the other provisions, and this Agreement will be construed
in
all respects as if any invalid or unenforceable provision were omitted.
10.9
Binding
Effect.
The
provisions of this Agreement will bind and inure to the benefit of the parties
and their respective successors and permitted assigns.
10.10
Notice.
Any
notices or communications required or permitted by this Agreement will be deemed
sufficiently given if in writing and when delivered personally or 48 hours
after
deposit with the United States Postal Service as registered or certified mail,
postage prepaid and addressed as follows:
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(a) If
to Company, to the principal office of Company in the State of California,
marked “Attention: Chairman”; or
(b) If
to Executive, to the most recent address for Executive appearing in Company’s
records or such other address as may be provided by Executive to the Company.
10.11
Headings.
The
Section and other headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation
of
this Agreement.
10.12
Additional
Indemnification.
Provided that Executive resigns as an employee, officer and director of his
current employer prior to the Commencement Date, notwithstanding Section 10.1,
Company
will indemnify, defend and hold harmless Executive from any Losses relating
to
any threatened, pending or completed claim, action, suit or proceeding brought
by or on behalf of such employer relating to Executive’s resignation, entering
into this Agreement, accepting employment with the Company and/or performing
services hereunder. For this purpose, and any such claim, action, suit or
proceeding will be considered a Claim and will be treated and handled in all
respects pursuant to the Indemnification Agreement between Company and Executive
dated as of October 13, 2006.
10.13
Amendment
and Waiver.
This
Agreement may be amended, modified or supplemented only by a writing executed
by
each of the parties. Either party may in writing waive any provision of this
Agreement to the extent such provision is for the benefit of the waiving party.
No waiver by either party of a breach of any provision of this Agreement will
be
construed as a waiver of any subsequent or different breach, and no forbearance
by a party to seek a remedy for noncompliance or breach by the other party
will
be construed as a waiver of any right or remedy with respect to such
noncompliance or breach.
10.14
Entire
Agreement.
This
Agreement is the only agreement and understanding between the parties pertaining
to the subject matter of this Agreement, and supersedes all prior agreements,
summaries of agreements, descriptions of compensation packages, discussions,
negotiations, understandings, representations or warranties, whether verbal
or
written, between the parties pertaining to such subject matter.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
EXECUTIVE:
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx, M.D.
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COMPANY:
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By
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/s/
Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx, Chairman
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11
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