EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.3
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
15th
day of May, 2006,
by and
among COBALIS
CORP. (the "Company"),
and
XXXXXXX
XXXXXXXX,
an
individual (the
"Executive") (hereinafter
collectively referred to as "the parties").
PREAMBLE
WHEREAS,
the Executive is being employed by the Company as its President and Chief
Executive Officer and is experienced in all phases of the business of the
Company and the Company desires to retain the services of the Executive pursuant
to the terms and conditions hereinafter set forth.
WHEREAS,
the Company’s Board of Directors (“the Board”) has determined that it is
essential and in the best interest of the Company and its stockholders to retain
the services of its key management personnel and to ensure their continued
dedication and efforts without undue concern for their personal financial and
employment security; and
WHEREAS,
in order to induce the Executive to remain in the employ of the Company,
particularly in the event of a threat of a change in control of the Company,
the
Company desires by this writing to set forth the continued employment
relationship of the Executive with the Company.
NOW,
THEREFORE, in consideration of the respective agreements of the parties
contained herein, it is agreed as follows:
| 1. |
TERM.
The initial term of this Agreement shall be for the period commencing
on
May 15, 2006 (the "Start Date"), and ending on the third anniversary
of
the Start Date (the "Initial Term"), provided, however, that the
term of
this Agreement shall be automatically extended for successive one
(1) year
periods thereafter (each, a "Renewal Period") unless either the Company
or
the Executive shall have given written notice to the other party
at least
ninety (90) days prior to the end of the Term of Agreement (as hereinafter
defined), that the Term of Agreement shall not be so extended. The
Initial
Term together with each Renewal Period, if any, are collectively
referred
to herein as the "Term of Agreement". The Executive's employment
hereunder
shall be coterminous with the Term of Agreement, unless sooner terminated
as provided in Section 5 hereof.
|
| 2. |
EMPLOYMENT.
During the term of the Executive's employment under this
Agreement:
|
| (a) |
Subject
to the terms and conditions of this Agreement, Executive shall be
employed
as President of the Company, or such other senior executive capacity
as
may be mutually agreed to in writing by the parties. As President,
the
Executive shall have active and general supervision and management
over
the business and affairs of the Company and shall have full power
and
authority to act for all purposes for and in the name of the Company
in
all matters except where action of the Board is required by law,
the
By-laws of the Company, or resolutions of the Board. The Executive
agrees
to discharge all of the duties normally associated with such positions,
to
faithfully and to the best of his abilities perform such other services
consistent with his position as a senior executive as may from time
to
time be assigned to him by the Board or Company's Chairman of the
Board of
Directors (the "Chairman"), and to devote all of his business time,
skill
and attention to such services. The Executive agrees that he shall
not
engage in any other business activities of any kind which would give
rise
to a conflict of interest for the Executive with respect to his duties
and
obligations to the Company.
|
1
| (b) |
The
Executive shall report directly to the
Board.
|
| (c) |
The
Executive shall participate in all meetings of the Board (other than
executive sessions and those meetings or portions of meetings specifically
identified in advance, at which Executive's performance will be
discussed), unless, in its reasonable discretion, the Board determines
that a conflict exists which requires it to exclude Executive from
a
meeting.
|
| 3. |
COMPENSATION.
During the term of the Executive's employment under this
Agreement:
|
| (a) |
Base
Salary.
The Company agrees to pay or cause to be paid to the Executive during
the
Term of Agreement a base salary at the rate of $250,000 (Two Hundred
Fifty
Thousand) per annum or such increased amount as the Board may from
time to
time determine (hereinafter referred to as the "Base Salary"). Such
Base
Salary shall be payable in accordance with the Company's customary
practices applicable to its executives. Such Base Salary shall be
reviewed
at least annually by the Chairman or the Board and may be further
increased (but not decreased) in such amounts as the Chairman or
the Board
in its discretion may decide.
|
| (b) |
Back
Wages.
The Executive shall receive 100,000 (One-Hundred Thousand) restricted
shares of the common stock, par value $.01 per share, of the Company
(the
“Common Stock”) in lieu of the total amount of $86,939.10 owned to the
Executive up to the Start Date for accrued (11/01/05 to 05/15/06)
and
unpaid base salary ($67,708.33) and accrued (01/2003-12/2004) and
unpaid
eight weeks of vacation pay
($19,230.77).
|
| (c) |
Stock
Options.
|
| (i) |
Initial
Grant.
On
or prior to the Start Date, the Company hereby grants to the Executive
an
option (the "Initial Stock Option") to purchase 1,500,000 (One Million
Five Hundred Thousand) shares of the Common Stock at the purchase/exercise
price of $1.40 per share, with a term of not less than five (5) years
from
the Start Date. This Initial Stock Option shall vest and be exercisable
as
follows: 1/3 of the shares vest and become exercisable as of the
Start
Date; 1/3 of the shares shall vest and become exercisable one year
after
the Start Date; and 1/3 of the shares shall vest and become exercisable
two years after the Start Date. Notwithstanding the foregoing, the
Initial
Stock Option shall vest and be fully exercisable upon a Change in
Control
and shall vest as otherwise provided herein upon termination of the
Executive's employment.
|
| (ii) |
Future
Grants.
The Executive shall be entitled to participate in future stock option
grants (the "Future Stock Options") as determined by the Board or
any
dully authorized Committee of the
Board.
|
2
| (iii) |
Option
Agreement.
The Initial Stock Option and any Future Stock Options shall be evidenced
by agreements in customary form for grants of stock options to executive
officers of the Company under the terms of the Company’s Stock Option and
Award Plan (the “Plan”) and consistent with the terms and conditions of
this Agreement.
|
| (d) |
Performance
Bonus.
During the Term of this Agreement, the Executive shall be eligible
to
receive a performance bonus based on the Executive’s performance and the
Company reaching a certain performance and business related milestones
(i.e., successful completion of second III Phase clinical trial,
NDA
filing, new product acquisition, licensing partnership, and future
capital) in the amount and form to be determined at the time within
the
sole discretion by the Board.
|
| 4. |
OTHER
BENEFITS.
During the term of the Executive's employment under this
Agreement:
|
| (a) |
Employee
Benefits.
The Executive shall be entitled to participate in all employee benefit
plans, practices and programs maintained by the Company and made
available
to employees generally including, without limitation, all pension,
retirement, profit sharing, savings, medical, hospitalization, disability,
dental, life, vision or travel accident insurance benefit plans.
The
Executive's participation in such plans, practices and programs shall
be
on the same basis and terms as are applicable to employees of the
Company
generally.
|
| (b) |
Executive
Benefits.
The Executive shall be entitled to participate in all executive benefit
or
incentive compensation plans now maintained or hereafter established
by
the Company for the purpose of providing compensation and/or benefits
to
executives of the Company including, but not limited to, any supplemental
retirement, salary continuation, stock option, deferred compensation,
supplemental medical, dental, vision or life insurance, or other
bonus or
incentive compensation plans. Unless otherwise provided herein, the
Executive's participation in such plans shall be on the same basis
and
terms, as other senior executives of the Company, and shall be reasonably
equivalent to the benefit levels and reward opportunities applicable
to
the Executive as in effect on the date hereof. No additional compensation
provided under any of such plans shall be deemed to modify or otherwise
affect the terms of this Agreement or any of the Executive's entitlements
hereunder.
|
| (c) |
Fringe
Benefits and Perquisites.
The Executive shall be entitled to all fringe benefits and perquisites
(e.g. professional membership dues, additional reimbursement for
uncovered
medical expenses, executive life insurance, cell phone bills, tax
advisory
services, corporate housing and corporate car) generally made available
by
the Company to its senior executives.
|
3
| (d) |
Eligibility
Waiver of Waiting Times.
Subject to the terms of this Agreement, the Executive (and to the
extent
applicable under the terms and benefits of such plans which apply
to the
Dependents shall have the right to participate in all employee plans
and
benefits currently existing or hereafter granted by the Company to
its
employees and all waiting periods under such plans and benefits
arrangements will be waived to the full extent possible unless such
waiver
would require the Company to waive waiting periods for other employees.
In
the event that the provisions of any such employee plans or benefit
arrangements do not permit immediate waiver of waiting periods, comparable
benefits will be provided to the Executive and the Dependents outside
such
plans and arrangements.
|
| (e) |
Business
Expenses.
Upon submission of proper invoices in accordance with the Company's
normal
procedures, the Executive shall be entitled to receive prompt
reimbursement of all reasonable out-of-pocket business, entertainment
and
travel expenses incurred by him in connection with the performance
of his
duties hereunder or for promoting, pursuing or otherwise furthering
the
business or interest of the
Company.
|
| (f) |
Office
and Facilities.
The Executive shall be provided with an appropriate office in Irvine,
California, with such secretarial and other support facilities as
are
commensurate with the Executive's status with the Company and adequate
for
the performance of his duties
hereunder.
|
| (g) |
Vacation
and Sick Leave.
The Executive shall be entitled, without loss of pay, to absent himself
voluntarily from the performance of his employment under this Agreement,
pursuant to the following:
|
| (i) |
The
Executive shall be entitled to annual vacation in accordance with
the
policies as periodically established by the Board for similarly situated
executives of the Company, which shall in no event be less than four
(4)
weeks per year;
|
| (ii) |
In
addition to the aforesaid paid vacations, the Executive shall be
entitled,
without loss of pay, to absent himself voluntarily from the performance
of
his employment for such additional periods of time and for such valid
and
legitimate reasons as the Chairman or the Board in its discretion
may
determine. Further, the Chairman or the Board shall be entitled to
grant
to the Executive a leave or leaves of absence with or without pay
at such
time or times and upon such terms and conditions as the Chairman
or the
Board in its discretion may determine;
and
|
| (iii) |
The
Executive shall be entitled to sick leave (without loss of pay) in
accordance with the Company's policies as in effect from time to
time,
which shall in no event be less than six (6) days per
year.
|
| 5. |
TERMINATION.
The Executive's employment hereunder may be terminated under the
following
circumstances:
|
| (a) |
Death.
The Executive's employment shall be terminated as of the date of
the
Executive's death and the Executive's Dependents shall be entitled
to the
benefits provided in Section 7(b)
hereof.
|
4
| (b) |
Disability.
The Company may terminate the Executive's employment after having
established the Executive's Disability, subject to the payment by
the
Company to the Executive of the benefits provided in Section 7(b)
hereof.
For purposes of this Agreement, "Disability" shall mean the Executive's
inability to substantially perform his duties and responsibilities
hereunder by reason of any physical or mental incapacity for two
or more
periods of ninety (90) consecutive days each in any three hundred
and
sixty (360) day period, as determined by a physician with no history
of
prior dealings with the Company or the Executive, as reasonably agreed
upon by the Company and the
Executive.
|
| (c) |
Cause.
The Company may terminate the Executive's employment for "Cause",
effective as of the date of the Notice of Termination (as defined
in
Section 6 below) and as evidenced by a resolution adopted in good
faith by
two-thirds (2/3) of the entire Board, subject to the payment by the
Company to the Executive of the benefits provided in Section 7(a)
hereof.
A termination for Cause is a termination made because the Executive
has
(A) committed an act of fraud or embezzlement against the Company
or any
affiliate thereof, or (B) a knowing and willful unauthorized disclosure
of
Confidential Information (as defined in Section 10 below) of the
Company,
which disclosure results in material damage to the Company, or (C)
a
breach of one or more of the following duties to the Company which
continues after written notice thereof specifying the particular
events or
conditions which constitute the alleged breach and the specific cure
requested by the Company and a reasonable opportunity to cure: (1)
the
duty not to take actions which would reasonably be viewed by the
Company
as placing the Executive's interest in a position adverse to the
interests
of the Company, or (2) the duty not to engage in self-dealing with
respect
to the Company's assets, properties or business opportunities; or
(D) been
convicted (or entered a plea of nolo contendere) for the commission
of (1)
a felony or (2) a crime involving fraud, dishonesty or moral turpitude;
or
(E) engaged in intentional misconduct as an employee of the Company,
which
misconduct or violation results in material damage to the Company
or its
reputation and continues after written notice thereof specifying
the
particular events or conditions which constitute the alleged misconduct
or
violation and the specific cure requested by the Company and a reasonable
opportunity to cure (if such misconduct is susceptible to cure by
the
Executive), including, but not limited to (1) intentional violations
by
the Executive of written policies of the Company, or specific directions
of the Board, which policies or directives are not illegal (or do
not
involve illegal conduct) and do not require the Executive to violate
reasonable business ethical standards, or (2) intentional violations
of
the Company's code of corporate conduct; or (F) failed, after written
notice from the Company to render services to the Company in accordance
with this Agreement or the Executive's position and responsibilities
with
the Company in a manner that amounts to gross neglect in the performance
of his duties to the Company.
|
The
Company may suspend the Executive, without pay, upon the Executive's indictment
for the commission of (1) a felony or (2) a crime involving fraud, dishonesty
or
moral turpitude. Such suspension may remain effective until such time as the
indictment is either dismissed or a verdict of not guilty has been entered,
at
which time the Executive shall be reinstated with the Company. Upon such
reinstatement, the Executive shall be entitled to payment by the Company of
all
Base Salary to which the Executive would have otherwise been entitled to during
the period of such suspension.
5
| (d) |
Without
Cause.
The Company may terminate the Executive's employment without Cause.
The
Company shall deliver to the Executive a Notice of Termination (as
defined
in Section 6 below) not less than thirty (30) days prior to the
termination of the Executive's employment without Cause and the Company
shall have the option of terminating the Executive's duties and
responsibilities (but not his employment) prior to the expiration
of such
thirty-day notice period, subject to the payment by the Company of
the
benefits provided in either Section 7(c) or 7(e) hereof, as may be
applicable.
|
| (e) |
Good
Reason.
The Executive may terminate his employment for "Good Reason" (as
defined
below) by delivering to the Company a Notice of Termination (as defined
in
Section 6 below) not less than thirty (30) days prior to the termination
of the Executive's employment for Good Reason. The Company shall
have the
option of terminating the Executive's duties and responsibilities
(but not
his employment) prior to the expiration of such thirty-day notice
period,
subject to the payment by the Company of the benefits provided in
either
Section 7(c) or 7(e) hereof, as may be applicable. For purposes of
this
Agreement, Good Reason shall mean the occurrence of any of the events
or
conditions described in Subsections (i) through (viii) hereof which
are
not cured by the Company (if susceptible to cure by the Company)
within
fifteen (15) days after the Company has received written notice from
the
Executive specifying the particular events or conditions which constitute
Good Reason and the specific cure requested by the
Executive.
|
| (i) |
Diminution
of Responsibility.
(A) A change in the Executive’s status, title, position or
responsibilities (including reporting responsibilities) which in
the
Executive’s reasonable judgment constitutes a material diminution in the
Executive's status, title, position or responsibilities (including
reporting responsibilities) as in effect immediately prior thereto;
or (B)
the assignment to the Executive of any duties or responsibilities
(including reporting responsibilities) which are in the Executive’s
reasonable judgment materially inconsistent with such status, title,
position or responsibilities (including reporting responsibilities);
or
(C) any removal of the Executive from or failure to reappoint the
Executive to the position of President, except in connection with
the
termination of the Executive's employment as provided for elsewhere
in
this Agreement;
|
| (ii) |
Salary
Reduction.
(A) A reduction in the Executive's Base Salary as defined in Section
3(a);
or (B) a failure by the Company to increase the Executive’s Base Salary
within any twelve (12) month period by the average percentage increase
during such period of the base salaries of the three most senior
executives of the Company other than the
Executive;
|
6
| (iii) |
Relocation.
The Company's requiring the Executive to be based at any place other
than
the Company's current headquarters or within a 30-mile radius thereof;
|
| (iv) |
Discontinuation
of Material Compensation or Benefit Plan.
The failure by the Company to continue in effect any material compensation
or benefit plan in which the Executive was participating, including,
but
not limited to, the Company's deferred compensation plan and 401(k)
plan
without providing the Executive with compensation and benefits
substantially equal (in terms of benefit levels and/or reward
opportunities) to those provided for under such
plan;
|
| (v) |
Bankruptcy.
The initiation by or against the Company of proceedings under the
United
States Bankruptcy Code or under state insolvency laws, which proceedings
are not vacated within 60 days of notice thereof to the
Company;
|
| (vi) |
Breach
by Company.
Material breach by the Company of the terms and conditions of this
Agreement or any other agreement between the Executive and the Company
after formal notice by the Executive and a reasonable opportunity
to
cure;
|
| (vii) |
Purported
Termination.
Any purported termination of the Executive’s employment for Cause by the
Company which does not comply with the terms of Section 5 of this
Agreement; and
|
| (viii) |
Failure
to Successfully Assign.
Failure of the Company to obtain an agreement from any successor
or assign
of the Company to assume and agree to perform the Company's obligations
under this or any other agreement between the Executive and the Company.
|
| (f) |
Good
Reason Arising Prior To Change in Control.
Any event or condition described in Sections 5(e)(i) through (viii)
which
occurs prior to a Change in Control, but which (A) was at the request
of a
third party who has taken steps reasonably calculated to effect a
Change
in Control, or (B) otherwise arose in connection with a Change in
Control,
will constitute Good Reason for purposes of this Agreement notwithstanding
that it occurred prior to a Change in
Control.
|
| (g) |
Without
Good Reason.
The Executive may voluntarily terminate his employment without Good
Reason
by delivering to the Company a Notice of Termination not less than
thirty
(30) days prior to the termination of the Executive's employment
and the
Company shall have the option of terminating the Executive's duties
and
responsibilities (but not his employment) prior to the expiration
of such
thirty-day notice period, subject to the payment by the Company to
the
Executive of the benefits provided in Section 7(a) hereof through
the last
day of such notice period.
|
| (h) |
Non-Renewal
of Term of Agreement.
Either party may elect not to extend the Term of Agreement pursuant
to
Section 1 hereof, subject to the payment by the Company to the Executive
of the benefits provided in Section 7(d)
hereof.
|
7
| 6. |
NOTICE
OF TERMINATION.
Any purported termination by the Company or by the Executive shall
be
communicated by written Notice of Termination to the other party
hereto.
For purposes of this Agreement, a "Notice of Termination" shall mean
a
notice which (1) indicates a termination of the Executive’s employment
date, (2) the specific termination provision in this Agreement relied
upon, and (3) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated. For purposes of this Agreement,
no such
purported termination of the Executive's employment hereunder shall
be
effective without such Notice of
Termination.
|
| 7. |
COMPENSATION
UPON TERMINATION.
Upon termination of the Executive's employment during the Term of
Agreement, the Executive shall be entitled to the following
benefits:
|
| (a) |
Termination
by the Company for Cause or by the Executive Without Good
Reason.
If
the Executive's employment is terminated by the Company for Cause
or by
the Executive Without Good Reason, the Company shall pay the Executive
all
amounts earned hereunder through the date of termination of the
Executive's employment, including:
|
| (i) |
any
accrued and unpaid Base Salary;
|
| (ii) |
reimbursement
for any and all monies advanced to the Executive or expenses incurred
in
connection with the Executive's employment for reasonable and necessary
expenses incurred by the Executive on behalf of the Company for the
period
ending on the date of termination of the Executive’s
employment;
|
| (iii) |
any
accrued and unpaid vacation pay;
|
| (iv) |
any
previous compensation which the Executive has previously deferred
(including any interest earned or credited thereon), subject to the
terms
and conditions of the applicable deferred compensation plans then
in
effect; and
|
| (v) |
any
stock options and stock appreciation rights (including Initial Stock
Option and Future Stock Options) granted to the Executive and vested
through the date of termination of the Executive’s employment pursuant to
the vesting schedule in Section 3(c)(i) shall become immediately
exercisable for a remaining life of the Stock Option, or a period
which
shall be no less than twenty-four (24) months following the date
of
termination of the Executive’s employment, whichever is
greater.
|
| (vi) |
The
foregoing items in Section 7(a)(i) through 7(a)(v) being collectively
referred to as the "Accrued
Compensation".
|
| (b) |
Termination
Upon Death or Disability. If
the Executive's employment is terminated by the Company upon the
Executive's Disability or by reason of the Executive's death, the
Executive (or his beneficiaries, as applicable) shall be entitled
to the
following:
|
| (i) |
any
Accrued Compensation (Section 7(a)(i) through 7(a)(v)) through the
date of
termination of the Executive’s
employment;
|
8
| (ii) |
all
restrictions on any outstanding awards granted by the Company (including
restricted stock awards) granted to the Executive shall lapse and
such
awards shall become fully (100%) and immediately vested, and all
stock
options and stock appreciation rights granted to the Executive (including
Initial Stock Option and Future Stock Options) shall become fully
(100%)
and immediately exercisable for a remaining life of the Stock Option,
or a
period which shall be no less than twenty-four (24) months following
the
Termination date, whichever is
greater;
|
| (iii) |
for
a number of months equal to twenty-four (24), the Company shall at
its
expense continue on behalf of the Executive and/or Executive’s dependents
and beneficiaries (the “Dependents”) the life insurance, disability,
medical, dental, vision and hospitalization benefits which were being
provided to the Executive and/or Dependents at the time Notice of
Termination is given. In the event that the provisions of any such
employee benefit arrangements do not permit continuing coverage,
then the
Company shall provide the Dependents with substantially equivalent
coverage through other sources. The benefits provided in this Section
7(b)(iii) shall be no less favorable to the Dependents, in terms
of
amounts and deductibles and costs to them, than the coverage provided
the
Dependents under the plans providing such benefits at the time Notice
of
Termination is given. This Subsection (iii) shall not be interpreted
so as
to limit any benefits to which the Dependents may be entitled under
any of
the Company's employee benefit plans, programs or practices following
the
Executive's termination of employment, including without limitation,
retiree medical and life insurance benefits;
and
|
| (iv) |
the
Executive's entitlement to any other compensation or benefits hereunder
shall be determined in accordance with the Company's employee benefit
plans and other applicable programs and practices then in
effect.
|
| (c) |
Termination
by the Company Without Cause or by the Executive for Good
Reason.
If
the Executive's employment by the Company shall be terminated by
the
Company without Cause, or if the Executive terminates his employment
for
Good Reason, the Executive shall be entitled to the
following:
|
| (i) |
any
Accrued Compensation (Section 7(a)(i) through 7(a)(v)) through the
date of
termination of the Executive’s
employment;
|
9
| (ii) |
If
the Executive voluntarily elects and agrees not to engage in Prohibited
Activities (as hereinafter defined) for a period of one (1) year
after the
date of termination of the Executive’s employment, the Company shall pay
the Executive as additional compensation for the periods subsequent
to the
termination date, an amount in cash equal to one (1) time the sum
of the
Executive's annual Base Salary at the highest rate in effect at any
time
within the ninety (90) day period ending on the date the Notice of
Termination is delivered. The additional compensation provided in
the
previous sentence shall be payable in substantially equal monthly
installments for a period of twelve months. If the Executive does
not so
voluntarily elect and agree or otherwise engages in such Prohibited
Activities, then the Executive's eligibility to receive the
post-employment benefits provided for in this Section 7(c)(ii) shall
immediately thereafter terminate. The Executive's entitlement to
any other
compensation or benefits hereunder shall be determined in accordance
with
the Company's employee benefit plans and other applicable programs
and
practices then in effect. For the purposes of this Agreement, the
term
"Prohibited Activities" means directly or indirectly engaging as
an owner,
employee, consultant or agent of any entity that manufactures, markets
and
distributes, or plans to (directly or indirectly through related
entities,
joint ventures, strategic alliances or other affiliated entities),
prescription or non-prescription pharmaceuticals or medical devices
for
treatments in the fields of allergy (each a "Competitive Business").
Notwithstanding the foregoing, it shall not be considered a "Prohibited
Activity" for the Executive (i) to own or purchase any corporate
securities of any entity that is regularly traded on a recognized
stock
exchange or over-the-counter market so long as the Executive does
not own,
in the aggregate, 5% or more of the voting equity securities of any
such
entity or (ii) to perform consulting services for an entity engaged
in a
Competitive Business to the extent the Executive has given the Company
at
least 30 days advance notice of the Executive's desire to perform
such
consulting services and both the Chairman (or the board of directors
of a
successor entity to the Company, as the case may be), in their sole
and
absolute discretion, have consented in writing to the performance
of such
consulting services by the
Executive;
|
| (iii) |
all
restrictions on any outstanding awards granted by the Company (including
restricted stock awards) granted to the Executive shall lapse and
such
awards shall become fully (100%) and immediately vested, and all
stock
options and stock appreciation rights granted to the Executive (including
Initial Stock Option and Future Stock Options) shall become fully
(100%)
and immediately exercisable for a remaining life of the Stock Option,
or a
period which shall be no less than twenty-four (24) months following
the
Termination date, whichever is greater;
and
|
| (iv) |
for
a number of months equal to twenty-four (24), the Company shall at
its
expense continue on behalf of the Executive and the Dependents the
life
insurance, disability, medical, dental, vision and hospitalization
benefits which were being provided to the Executive at the time Notice
of
Termination is given. In the event that the provisions of any such
employee benefit arrangements do not permit continuing coverage,
then the
Company shall provide the Executive with substantially equivalent
coverage
through other sources. The benefits provided in this Section 7(c)(iv)
shall be no less favorable to the Executive, in terms of amounts
and
deductibles and costs to him, than the coverage provided the Executive
under the plans providing such benefits at the time Notice of Termination
is given. This Subsection (iv) shall not be interpreted so as to
limit any
benefits to which the Executive or the Dependents may be entitled
under
any of the Company's employee benefit plans, programs or practices
following the Executive's termination of employment, including without
limitation, retiree medical and life insurance
benefits.
|
10
| (d) |
Termination
Due to Non -- Renewal of Term of
Agreement.
|
| (i) |
If
the Company notifies the Executive under Section 1 hereof that it
shall
not extend the Term of Agreement for any Renewal Period, the Executive
shall be entitled to the benefits provided in Section 7(c)
above.
|
| (ii) |
If
the Executive notifies the Company under Section 1 hereof that he
shall
not extend the Term of Agreement for any Renewal Period, the Executive
shall be entitled to the benefits provided in Section 7(a)
above.
|
| (e) |
Termination
by the Company Without Cause or by the Executive for Good Reason
Following
a Change in Control.
If
the Executive's employment by the Company shall be terminated by
the
Company without Cause or by the Executive for Good Reason within
twelve
(12) months following a Change in Control (as defined in Section
8 below),
the Executive shall be entitled to the following:
|
| (i) |
any
Accrued Compensation (items in Section 7(a)(i) through 7(a)(v)) through
the date of termination of the Executive’s
employment;
|
| (ii) |
if
the Executive voluntarily elects and agrees not to engage in Prohibited
Activities (as hereinafter defined) for a period of one (1) year
after the
date of termination of the Executive’s employment, the Company shall pay
the Executive as additional compensation for the periods subsequent
to the
termination date, an amount in cash equal to two (2) times the sum
of the
Executive's annual Base Salary at the highest rate in effect at any
time
within the ninety (90) day period ending on the date the Notice of
Termination is delivered. The additional compensation provided in
the
previous sentence shall be payable in substantially equal monthly
installments for a period of twenty-four (24) months. If the Executive
does not so voluntarily elect and agree or otherwise engages in such
Prohibited Activities, then the Executive's eligibility to receive
the
post-employment benefits provided for in this Section 7(d)(ii) shall
immediately thereafter terminate. The Executive's entitlement to
any other
compensation or benefits hereunder shall be determined in accordance
with
the Company's employee benefit plans and other applicable programs
and
practices then in effect. For the purposes of this Agreement, the
term
"Prohibited Activities" means directly or indirectly engaging as
an owner,
employee, consultant or agent of any entity that manufactures, markets
and
distributes, or plans to (directly or indirectly through related
entities,
joint ventures, strategic alliances or other affiliated entities),
prescription or non-prescription pharmaceuticals or medical devices
for
treatments in the fields of allergy (each a "Competitive Business").
Notwithstanding the foregoing, it shall not be considered a "Prohibited
Activity" for the Executive (i) to own or purchase any corporate
securities of any entity that is regularly traded on a recognized
stock
exchange or over-the-counter market so long as the Executive does
not own,
in the aggregate, 5% or more of the voting equity securities of any
such
entity or (ii) to perform consulting services for an entity engaged
in a
Competitive Business to the extent the Executive has given the Company
at
least 30 days advance notice of the Executive's desire to perform
such
consulting services and both the Company's President (or the board
of
directors of a successor entity to the Company, as the case may be),
in
their sole and absolute discretion, have consented in writing to
the
performance of such consulting services by the
Executive;
|
11
| (iii) |
all
restrictions on any outstanding awards granted by the Company (including
restricted stock awards) granted to the Executive shall lapse and
such
awards shall become fully (100%) and immediately vested, and all
stock
options and stock appreciation rights granted to the Executive (including
Initial Stock Option and Future Stock Options) shall become fully
(100%)
and immediately exercisable for a remaining life of the Stock Option,
or a
period which shall be no less than twenty-four (24) months following
the
Termination date, whichever is greater;
and
|
| (iv) |
for
a number of months equal to twenty-four (24), the Company shall at
its
expense continue on behalf of the Executive and the Dependents the
life
insurance, disability, medical, dental, vision and hospitalization
benefits which were being provided to the Executive at the time Notice
of
Termination is given. In the event that the provisions of any such
employee benefit arrangements do not permit continuing coverage,
then the
Company shall provide the Executive with substantially equivalent
coverage
through other sources. The benefits provided in this Section 7(c)(iv)
shall be no less favorable to the Executive, in terms of amounts
and
deductibles and costs to him, than the coverage provided the Executive
under the plans providing such benefits at the time Notice of Termination
is given. This Subsection (iv) shall not be interpreted so as to
limit any
benefits to which the Executive or the Dependents may be entitled
under
any of the Company's employee benefit plans, programs or practices
following the Executive's termination of employment, including without
limitation, retiree medical and life insurance
benefits.
|
| (f) |
The
Executive shall not be required to mitigate the amount of any payment
provided for under this Section 7 by seeking other employment and
no such
payment shall be offset or reduced by the amount of any compensation
or
benefits provided to the Executive in any subsequent
employment.
|
| 8. |
CHANGE
IN CONTROL.
For purposes of this Agreement, a "Change in Control" shall mean
any of
the following events:
|
| (a) |
the
acquisition (other than from the Company) by any person (as such
term is
defined in Section 13(c) or 14(d) of the Securities Exchange Act
of 1934,
as amended (the "1934 Act")) of beneficial ownership (within the
meaning
of Rule 13d-3 promulgated under the 0000 Xxx) of twenty percent (20%)
or
more of the combined voting power of the Company's then outstanding
voting
securities;
|
12
| (b) |
the
individuals who, as of the date hereof, are members of the Board
(the
"Incumbent Board"), cease for any reason to constitute at least two
thirds
(2/3) of the Board, unless the election, or nomination for election
by the
Company's stockholders, of any new director was approved by a vote
of at
least two thirds (2/3) of the Incumbent Board, and such new director
shall, for purposes of this Agreement, be considered as a member
of the
Incumbent Board;
|
| (c) |
approval
by stockholders or the Board of:
|
| (i) |
a
merger or consolidation involving the Company and an independent
third
party if the stockholders of the Company, immediately before such
merger
or consolidation, do not, as a result of such merger or consolidation,
own, directly or indirectly, more than eighty percent (80%) of the
combined voting power of the then outstanding voting securities of
the
corporation resulting from such merger or consolidation in substantially
the same proportion as their ownership of the combined voting power
of the
voting securities of the Company outstanding immediately before such
merger or consolidation; or
|
| (ii) |
an
agreement for the sale or other disposition of all or substantially
all of
the assets of the Company to an independent third party;
and
|
| (d) |
the
liquidation or dissolution of the
Company.
|
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur pursuant to
Section 8(a), solely because thirty percent (30%) or more of the combined voting
power of the Company's then outstanding securities is acquired by any
corporation which, immediately prior to such acquisition, is owned directly
or
indirectly by the stockholders of the Company in the same proportion as their
ownership of stock in the Company immediately prior to such acquisition.
| 9. |
FEDERAL
EXCISE TAX.
The Company shall reimburse the Executive for any excise tax imposed
by
Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code")
on any portion of the compensation or benefits payable to the Executive
in
connection with a Change of Control. The Executive and the Company
agree
to reasonably cooperate to mitigate the amount of any such tax that
might
become payable. The Company shall pay to the Executive the payments,
or
portions thereof, provided for in this Section 9 not later than fifteen
(15) days prior to the date on which such taxes, or portions thereof,
are
due as determined by the tax counsel referred to below. Tax counsel
selected by the Company and reasonably acceptable to the Executive
shall
determine whether the payments provided for by this Section 9 shall
be
required, based on the actual tax rates to which the Executive is
subject
at the time. The Executive shall, on a confidential basis, provide
such
counsel with such information as such counsel reasonably requests
in
connection with such determination. All determinations of tax counsel
shall be binding on the Executive and the Company. Tax counsel shall
determine that payments shall be due hereunder only if, and to the
extent
that, it is more likely than not that the payments or benefits are
subject
to a tax. In making the determinations required by this Section 9,
tax
counsel may rely on benefit consultants, accountants or other experts.
The
Company agrees to pay all reasonable fees and expenses of such tax
counsel. If, subsequent to the payment to the Executive of payments
pursuant to this Section 9, the tax counsel referred to in this Section
9
reasonably determines that the amount of the payments paid pursuant
to
this Section 9 are greater than, or less than, the amount required
to have
been paid, the Executive shall reimburse the Company an amount, or
the
Company shall pay to the Executive an additional amount, respectively,
based upon such determination. In the event that tax counsel referred
to
in this Section 9 reasonably determines that the Executive is required
to
pay excise tax, interest or penalties to a governmental taxing authority
as a result of his non-payment of taxes where such tax counsel had
determined that such taxes need not be paid, the Company shall pay
to the
Executive an additional amount equal to (A) the amount of such interest
and/or penalties, (B) the excise tax which was not paid and (C) any
excise
tax and any other taxes imposed by the Code or under state or local
law on
the payments provided for in this
sentence.
|
13
| 10. |
RECORDS
AND CONFIDENTIAL DATA:
Proprietary Inventions.
|
| (a) |
The
Executive acknowledges that in connection with the performance of
his
duties during the Term of Agreement the Company will make available
to the
Executive, or the Executive will have access to, certain Confidential
Information (as defined below) of the Company and its affiliates.
The
Executive acknowledges and agrees that any and all Confidential
Information learned or obtained by Executive during the course of
his
employment by the Company or otherwise, whether developed by the
Executive
alone or in conjunction with others or otherwise, shall be and is
the
property of the Company and its
affiliates.
|
| (b) |
The
Confidential Information will be kept confidential by the Executive,
will
not be used in any manner which is detrimental to the Company, will
not be
used other than in connection with the Executive's discharge of his
duties
hereunder, and will be safeguarded by the Executive from unauthorized
disclosure.
|
| (c) |
For
the purposes of this Agreement, "Confidential Information" shall
mean all
confidential and proprietary information of the Company and its affiliates
that has been created, discovered or developed or has otherwise become
known to the Company (including, without limitation, information
created,
discovered, developed or made known by or to the Executive during
the
period of or arising out of his employment hereunder), or in which
property rights have been assigned or otherwise conveyed to the Company,
which information has commercial value in the business in which the
Company is engaged; by way of illustration and not by limitation,
Confidential Information includes information derived from reports,
investigations, experiments, research, work in progress, drawing,
designs,
plans, proposals, codes, marketing and sales programs, client lists,
shareholder lists, client mailing lists, supplier lists, financial
projections, cost summaries, pricing formula, marketing studies relating
to prospective business opportunities and all other concepts, ideas,
materials, or information prepared or performed for or by the Company
or
its affiliates. For purposes of this Agreement, the Confidential
Information shall not include and the Executive's obligation's shall
not
extend to (i) information which is or becomes, without violation
by the
Executive of this Agreement, generally available to the public and
(ii)
information obtained by the Executive other than pursuant to or in
connection with this employment. Notwithstanding the foregoing, if
the
Executive is required by law or legal process to disclose the Confidential
Information, the Executive shall provide the Company with prompt
notice so
that the Company may seek a protective order or other appropriate
remedy
and/or waive compliance with this Section 10. If, in the absence
of a
protective order or other remedy or the receipt of a waiver by the
Company, the Executive is nonetheless, in the opinion of counsel,
legally
compelled to disclose the Confidential Information, the Executive
may,
without liability hereunder, disclose only that portion of the
Confidential Information which such counsel advises is legally required
to
be disclosed, provided, however, that the Executive exercise reasonable
efforts to preserve the confidentiality of the Confidential Information,
including without limitation, cooperating with the Company to obtain
an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential
Information.
|
14
| (d) |
The
Executive hereby assigns to the Company any rights he may acquire
during
his employment hereunder in all Confidential Information and agrees
that
all Inventions (as defined below) will be the sole property of the
Company
and its assigns, and the Company and its assigns will be the sole
owner of
all the patents and other rights in connection therewith. The Executive
hereby assigns to the Company any rights he may acquire during the
period
of his employment hereunder in all Inventions and agrees to assist
the
Company in every proper way (but at the Company's expense) to obtain
and
from time to time enforce patents on Inventions in any and all countries.
The Executive shall execute all documents for use in applying for
and
obtaining such patents thereon and enforcing same, as the Company
may
desire, together with any assignments thereof to the Company or persons
designated by it. The Executive's obligation to assist the Company
in
obtaining and enforcing patents for Inventions in any and all countries
will continue beyond the termination of employment hereunder, but
the
Company will compensate the Executive at a reasonable rate after
such
termination for time actually spent by him at the Company's request
on
such assistance. The Executive acknowledges that, in accordance with
Section 2872 of the California Labor Code, the assignment provisions
in
this paragraph (d), do not apply to Inventions for which no equipment,
supplies, facility, or trade secret information of the Company was
used,
which were developed entirely on the Executive's own time, and (i)
which
do not relate (a) to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development or (ii)
which
do not result from any work performed by the Executive for the Company.
The Executive has identified on Schedule I hereto all inventions
or
improvements relevant to the subject matter of the Executive's employment
hereunder which have been made or conceived or first reduced to practice
by the Executive alone or jointly with others prior to the date hereof
which the Executive desires to remove from the operation of this
Agreement; and the Executive represents that such list is complete.
If
there is no such list on Schedule I, the Executive represents that
he has
made no such inventions and improvements as of the date
hereof.
|
| (e) |
For
purposes of this Agreement, "Inventions" shall mean all improvements,
inventions, formulae, processes, techniques, know-how and data whether
or
not patentable, made or conceived or reduced to practice or learned
by the
Executive, either alone or jointly with others, during the Executive's
employment hereunder which are related to or useful in the business
of the
Company, or result from tasks assigned to the Executive by the Company,
or
result from use of premises owned, leased or contracted for by the
Company.
|
| (f) |
The
Executive's obligations under this Section 10 shall survive the
termination of the Term of
Agreement.
|
15
| 11. |
COVENANT
NOT TO SOLICIT.
|
| (a) |
To
protect the Confidential Information and other trade secrets of the
Company, the Executive agrees, during the term of this Agreement
and for a
period of twelve months after the Executive's cessation of employment
with
the Company, not to solicit or participate in or assist in any way in the
solicitation of any employees or consultants of the Company. For
purposes
of this covenant, "solicit" or "solicitation" means directly or indirectly
influencing or attempting to influence employees or consultants of
the
Company to become employed with any other person, partnership, firm,
corporation or other entity. The Executive agrees that the covenants
contained in this Section 11 are reasonable and desirable to protect
the
Confidential Information of the
Company.
|
| (b) |
It
is the intent and desire of the Executive and the Company that the
restrictive provisions of this Section 11 be enforced to the fullest
extent permissible under the laws and public policies as applied
in each
jurisdiction in which enforcement is sought. If any particular provision
of this Section 11 shall be determined to be invalid or unenforceable,
such covenant shall be amended, without any action on the part of
either
party hereto, to delete therefrom the portion so determined to be
invalid
or unenforceable, such deletion to apply only with respect to the
operation of such covenant in the particular jurisdiction in which
such
adjudication is made.
|
| (c) |
The
Executive's obligations under this Section 11 shall survive the
termination of the Term of
Agreement.
|
| 12. |
REMEDIES
FOR BREACH OF OBLIGATIONS UNDER SECTIONS 10 OR 11
HEREOF.
The Executive acknowledges that the Company will suffer irreparable
injury, not readily susceptible of valuation in monetary damages,
if the
Executive breaches his obligations under Sections 10 or 11 hereof.
Accordingly, the Executive agrees that the Company will be entitled,
in
addition to any other available remedies, to seek injunctive relief
against any breach or prospective breach by the Executive of his
obligations under Sections 10 or 11 hereof. The Company shall seek
such
relief in any Federal or state court where venue would be appropriate
based upon the Executive's principal residence or his principal place
of
business, or, at the Company's election, in any other state in which
the
Executive maintains his principal residence or his principal place
of
business as provided for in Section 13(j) below. The Executive hereby
submits to the non-exclusive jurisdiction of all those courts for
the
purposes of any actions or proceedings instituted by the Company
to obtain
that injunctive relief, and the Executive agrees that process in
any or
all of those actions or proceedings may be served by registered mail,
addressed to the last address provided by the Executive to the Company,
or
in any other manner authorized by law. Notice in such proceedings
shall be
given in the manner required by law. The Executive further agrees
that, in
addition to any other remedies available to the Company by operation
of
law or otherwise, in the event the Executive willfully and materially
breaches any of his obligations under Sections 10 or 11 hereof, he
shall
not be entitled to any amounts which may otherwise be payable under
the
terms of Sections 7(b), 7(c), 7(d) and 7(e) hereof and under the
terms of
the benefit plans of the Company in which he participates and to
which he
might otherwise then be entitled by virtue hereof. Nothing in Sections
10
or 11 shall operate as a diminution of the Executive's obligations
under
the Company's standard agreements pertaining to the subject matter
of such
sections.
|
16
| 13. |
MISCELLANEOUS.
|
| (a) |
Successors
and Assigns.
|
| (i) |
This
Agreement shall be binding upon and shall inure to the benefit of
the
Company, its successors and assigns and the Company shall require
any
successor or assign to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company
would
be required to perform if no such succession or assignment had taken
place. The term “the Company” as used herein shall include such successors
and assigns. The term "successors and assigns" as used herein shall
mean a
corporation or other entity acquiring all or substantially all the
assets
and business of the Company (including this Agreement) whether by
operation of law or otherwise, or any entity employing the Executive
which
has spun off or split off from the Company;
and
|
| (ii) |
Neither
this Agreement nor any right or interest hereunder shall be assignable
or
transferable by the Executive, his beneficiaries or legal representatives,
except by will or by the, laws of descent and distribution. This
Agreement
shall inure to the benefit of and be enforceable by the Executive's
legal
personal representatives.
|
| (b) |
Non-exclusivity
of Rights.
Nothing in this Agreement will prevent or limit the Executive's continuing
or future participation in any written benefit, bonus, incentive
or other
plan or program provided by the Company or any of its subsidiaries
and for
which the Executive may qualify, and nothing in this Agreement will
limit
or reduce such rights as the Executive may have under any other written
agreements with the Company or any of its subsidiaries. Amounts which
are
vested benefits or which the Executive is otherwise entitled to receive
under any plan or program of the Company or any of its subsidiaries
will
be payable in accordance with such plan or program, except as explicitly
modified by this Agreement.
|
| (c) |
Settlement
of Claims.
The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder will
not be
affected by any circumstances, including, without limitation, any
set-off,
counterclaim, recoupment, defense or other right which the Company
may
have against the Executive or
others.
|
17
| (d) |
Indemnification.
|
| (i) |
The
Company agrees that if the Executive is made a party to or involved
in, or
is threatened to be made a party to or otherwise to be involved in,
any
action, suit or proceeding, whether civil, criminal, administrative
or
investigative (a "Proceeding"), by reason of the fact that he is
or was a
director, officer or employee of the Company or any affiliate, or
is, or
was serving at the request of the Company or any affiliate as a director,
officer, member, employee or agent of another corporation, limited
liability corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Executive's alleged
action in an official capacity while serving as a director, officer,
member, employee or agent, the Executive shall be indemnified and
held
harmless by the Company and each relevant against any and all liabilities,
losses, expenses, judgments, penalties, fines and amounts reasonably
paid
in settlement in connection therewith, and shall be advanced reasonable
expenses (including attorneys' fees) as and when incurred in connection
therewith, to the fullest extent legally permitted or authorized
by
Company’s by-laws or, if greater, by the laws of the State of Nevada, as
may be in effect from time to time. The rights conferred on the Executive
by this Section 13 (d)(i) shall not be exclusive of any other rights
which
the Executive may have or hereafter acquire under any statute, the
by-laws, agreement, vote of stockholders or disinterested directors,
or
otherwise. In this regard, the Executive shall have full discretion
as to
choice of counsel in all matters subject to indemnification under
this
Agreement. The indemnification and advancement of expenses provided
for by
this Section shall continue as to the Executive after he ceases to
be a
director, officer or employee and shall inure to the benefit of his
heirs,
executors and administrators, and shall survive any termination or
non-renewal of this Agreement. In addition, the Executive shall also
be
entitled to indemnification from the Company on terms no less advantageous
to the Executive as are provided to any officer or director of the
Company; and
|
| (ii) |
For
the Initial Term and thereafter, the Executive shall be covered by
any
directors' and officers' liability policy maintained by Employer
from time
to time.
|
| (e) |
Legal
Counsel.
The Executive acknowledges that he has had the opportunity to consult
with
legal counsel of his choice in connection with the drafting, negotiation
and execution of this Agreement and related employment
arrangements.
|
| (f) |
Notice.
For the purposes of this Agreement, notices and all other communications
provided for in the Agreement (including the Notice of Termination)
shall
be in writing and shall be deemed to have been duly given when personally
delivered or sent by Certified mail, return receipt requested, postage
prepaid, addressed to the respective addresses last given by each
party to
the other, provided that all notices to the Company shall be directed
to
the attention of the Chairman. All notices and communications shall
be
deemed to have been received on the date of delivery thereof or on
the
third business day after the mailing thereof, except that notice
of change
of address shall be effective only upon
receipt.
|
18
| (g) |
Withholding.
The Company shall be entitled to withhold the amount, if any, of
all taxes
of any applicable jurisdiction required to be withheld by an employer
with
respect to any amount paid to the Executive hereunder. The Company,
in its
sole and absolute discretion, shall make all determinations as to
whether
it is obligated to withhold any taxes hereunder and the amount
hereof.
|
| (h) |
Modification.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
and
signed by the Executive and the Company. No waiver by either party
hereto
at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed
by such
other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent
time.
|
| (i) |
Arbitration.
If any legally actionable dispute arises under this Agreement or
otherwise
which cannot be resolved by mutual discussion between the parties,
then
the Company and the Executive each agree to resolve that dispute
by
binding arbitration before an arbitrator experienced in employment
law.
Said arbitration will be conducted in accordance with the rules applicable
to employment disputes of the Judicial Arbitration and Mediation
Services
("JAMS") and the law applicable to the claim. The parties shall have
30
calendar days after notice of such arbitration has been given to
attempt
to agree on the selection of an arbitrator. In the event the parties
are
unable to agree in such time, JAMS will provide a list of nine available
arbitrators and an arbitrator will be selected from such nine-member
panel
provided by JAMS by the parties alternately striking out one name
of a
potential arbitrator until only one name remains. The party entitled
to
strike an arbitrator first shall be selected by a toss of a coin.
The
parties agree that this agreement to arbitrate includes any such
disputes
that the Company may have against the Executive, or the Executive
may have
against the Company and/or its related entities and/or employees,
arising
out of or relating to this Agreement, or Executive's employment,
or the
Executive's termination, including, but not limited to, any claims
of
discrimination or harassment in violation of applicable law and any
other
aspect of the Executive's compensation, employment, or the Executive's
termination. The parties further agree that arbitration as provided
for in
this Section 13(i) is the exclusive and binding remedy for any such
dispute and will be used instead of any court action, which is hereby
expressly waived, except for any request by either party for temporary
or
preliminary injunctive relief pending arbitration in accordance with
applicable law or for breaches by the Executive of the Executive's
obligations under Sections 10 or 11 above, or an administrative claim
with
an administrative agency. The parties agree that the arbitration
provided
herein shall be conducted in Orange County, California unless otherwise
mutually agreed, or unless the Executive's primary place of employment
is
a different location. The Company shall pay the cost of any arbitration
brought pursuant to this paragraph, including filing fees, administrative
fees and the costs of the arbitrator, excluding, however, the filing
fees
of the Executive if he is the moving party to the extent such fees
are
equal to or less than those that would applicable to file a complaint
in
the Orange County Superior Court and the cost of representation of
the
Executive unless such cost is awarded in accordance with law or otherwise
awarded by the arbitrators.
|
19
| (j) |
Governing
Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California applicable to
contracts executed in and to be performed entirely within such State,
without giving effect to the conflict of law principles
thereof.
|
| (k) |
No
Conflicts.
The Executive represents and warrants to the Company that he is not
a
party to, or otherwise bound by any agreement or arrangement (including,
without limitation, any license, covenant, or commitment of any nature),
or subject to any judgment, decree, or order of any court or
administrative agency, that would conflict with or will be in conflict
with, or in any way preclude, limit or inhibit the Executive's ability
to
execute this Agreement, or to carry out his duties and responsibilities
hereunder.
|
| (l) |
Trade
Secrets of Others.
The Company acknowledges that the Executive, as a current and/or
former
employee or independent contractor of another company, may previously
have
been privy to trade secrets and/or confidential information of such
other
company, and may be under an obligation to such other company to
maintain
the confidentiality of such trade secrets or confidential information.
Accordingly, to the extent the Executive is under such an obligation,
the
Executive shall not: (i) bring any records, notes, files, drawings,
documents, plans and like items, provided to him in confidence by
such
other company, or any copies thereof, relating to or containing or
disclosing confidential information or trade secrets of any such
other
company on the premises of the Company, or otherwise use such documents
and items in the performance of services for the Company; or (ii)
disclose
any confidential information or trade secrets provided to the Executive
in
confidence by such other company to any other employee of the Company;
provided, however, that this prohibition only applies to documents
or
information that the Executive obtained or learned before the beginning
of
his relationship with the Company.
|
| (m) |
Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect
the
validity or enforceability of the other provisions
hereof.
|
| (n) |
Entire
Agreement.
This Agreement constitutes the entire agreement between the parties
hereto
and supersedes all prior agreements, if any, understandings and
arrangements, oral or written, between the parties hereto with respect
to
the subject matter hereof. No agreement or representations, oral
or
otherwise, express or implied, with respect to the subject matter
hereof
have been made by either party which are not expressly set forth
in this
Agreement.
|
20
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
day and year first above written.
| THE COMPANY | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name: Xxxxx Xxxxxxxx
Its: Chairman of the
Board
|
||
| THE EXECUTIVE | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxx | |
|
Name: Xxxxxxx
Xxxxxxxx
|
||
00
