EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.10
This EXECUTIVE EMPLOYMENT AGREEMENT
(the “Agreement”) dated
December 10, 2008 by and between Medefile International, Inc., a Nevada
corporation (the “Company”), and Xxxxxx Xxxxxx,
an individual (the “Executive”).
The Company desires to employ the
Executive, and the Executive wishes to accept such employment with the Company,
upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the
foregoing facts and mutual agreements set forth below, the parties, intending to
be legally bound, agree as follows:
1. Employment. The
Company hereby agrees to employ Executive, and Executive hereby accepts such
employment and agrees to perform Executive’s duties and responsibilities in
accordance with the terms and conditions hereinafter set forth.
1.1 Duties and
Responsibilities. Executive shall serve as President and Chief Executive
Officer of the Company. During the Employment Term (as defined
below), Executive shall perform all duties and accept all responsibilities
incident to such positions and other appropriate duties as may be assigned to
Executive by the Company’s Board of Directors from time to time. The
Company shall retain full direction and control of the manner, means and methods
by which Executive performs the services for which she is employed hereunder and
of the place or places at which such services shall be rendered.
1.2 Employment
Term. The term of this Agreement shall commence as of December
__, 2008 (the “Effective
Date”) and shall continue for thirty-six (36) months, unless earlier
terminated in accordance with Section 4 hereof. The term of
Executive’s employment shall be automatically renewed for successive one (1)
year periods until the Executive or the Company delivers to the other party a
written notice of their intent not to renew the Employment Term, such written
notice to be delivered at least sixty (60) days prior to the expiration of the
then-effective Employment Term. Upon termination by the Company,
Executive is entitled to termination payments pursuant to Section 4
hereof. The period commencing as of the Effective Date and ending
thirty-six (36) months thereafter or such later date to which the term of
Executive’s employment under the Agreement shall have been extended by mutual
written Agreement is referred to herein as the “Employment Term.”
1.3 Extent of
Service. During the Employment Term, Executive agrees to use
Executive’s best efforts to carry out the duties and responsibilities under
Section 1.1 hereof and shall devote such time Executive deems is reasonably
necessary to perform his duties hereunder. To that end, the Company
acknowledges and agrees that Executive may dedicate some of his business time to
other ventures that do not compete directly with the business of the Company and
that doing so shall not be a violation of Executive’s obligations under this
Agreement.
1.4 Base
Salary. The Company shall pay Executive a base salary (the
“Base Salary”) at the
annual rate of $216,000 (U.S.), payable at such times as the Company customarily
pays its other senior level executives. In the sole discretion of the
Company, the Base Salary may be payable through the issuance of shares of the
Company’s common stock which have been registered by the Company on a Form S-8
registration statement filed with the Securities and Exchange
Commission.
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1.5 Discretionary
Bonus. From time to time during the Term, the Company may pay
to the Employee additional compensation in an amount determined by the sole
discretion of the Board of Directors.
1.6 Preferred
Stock.
(a) The
Company shall issue 10,000 shares of preferred “A” Stock, par value $.001 per
share, (the “Preferred
Shares”) to Executive. Each certificate representing the Preferred Shares
shall bear appropriate transfer restriction legends as required by the
Securities Act of 1933, as amended, and other applicable laws.
(b) Right of First
Refusal. The Company shall have the right, for a period of
thirty (30) days following notice from the Executive, to repurchase all of the
Preferred Shares granted to Executive under this Section 1.6 on the following
conditions:
(i) Executive
shall send to the Company notice of his intent to sell the Preferred Shares
(“Executive Notice”)
which Executive Notice shall include the name of the purchaser and purchase
price (“Purchase
Price”);
(ii) The
Company shall send to Executive a notice indicating their intention to
repurchase or not repurchase the Preferred Shares within thirty (30) days
following the date of the Executive Notice;
(iii) If the
Company wishes to repurchase the Preferred Shares, the Company shall repurchase
the Preferred Shares for the Purchase Price within thirty (30) days following
the date of the Executive Notice.
The
obligations created under this Section 1.6(b) shall survive termination of this
Agreement.
1.7 Other
Benefits. During the Employment Term, Executive shall be
entitled to participate in all employee benefit plans and programs made
available to the Company’s senior level executives as a group or to its
employees generally, as such plans or programs may be in effect from time to
time, including, without limitation, medical, dental, short-term and long-term
disability and life insurance plans, accidental death and dismemberment
protection and travel accident insurance. Executive shall be provided
office space and staff assistance appropriate for Executive’s position and
adequate for the performance of his duties.
1.8 Miscellaneous. Executive
shall be provided with reimbursement of expenses related to Executive’s
employment by the Company. Executive shall be entitled to vacation
and holidays in accordance with the Company’s normal personnel policies for
senior level executives.
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2. Confidential
Information. Executive recognizes and acknowledges that by
reason of Executive’s employment by and service to the Company before, during
and, if applicable, after the Employment Term, Executive will have access to
certain confidential and proprietary information relating to the Company’s
business, which may include, but is not limited to, trade secrets, trade
“know-how,” product development techniques and plans, customer lists and
addresses, cost and pricing information, strategy and programs, computer
programs and software and financial information (collectively referred to as
“Confidential Information”). Executive acknowledges that such
Confidential Information is a valuable and unique asset of the
Company. Executive covenants that he will not, unless expressly
authorized in writing by the Board of Directors, at any time during the course
of Executive’s employment use any Confidential Information or divulge or
disclose any Confidential Information to any person, firm or corporation except
in connection with the performance of Executive’s duties for the Company and in
a manner consistent with the Company’s policies regarding Confidential
Information.
Executive
also covenants that at any time after the termination of such employment,
directly or indirectly, he will not use any Confidential Information or divulge
or disclose any Confidential Information to any person, firm or corporation,
unless such information is in the public domain through no fault of Executive or
except when required to do so by a court of law, by any governmental agency
having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with apparent
jurisdiction to order Executive to divulge, disclose or make accessible such
information.
All
written Confidential Information (including, without limitation, in any computer
or other electronic format) which comes into Executive’s possession during the
course of Executive’s employment shall remain the property of the
Company. Upon termination of Executive’s employment, the Executive
agrees to return immediately to the Company all written Confidential Information
(including, without limitation, in any computer or other electronic format) in
Executive’s possession.
3. Non-Competition;
Non-Solicitation.
3.1 Non-Compete. The
Executive hereby covenants and agrees that during the term of this Agreement,
the Executive will not, without the prior written consent of the Company,
directly or indirectly, on his own behalf or in the service or on behalf of
others, whether or not for compensation, engage in any business activity, or
have any interest in any person, firm, corporation or business, through a
subsidiary or parent entity or other entity (whether as a shareholder, agent,
joint venturer, security holder, trustee, partner, consultant, creditor lending
credit or money for the purpose of establishing or operating any such business,
partner or otherwise) with any Competing Business in the Covered
Area. For the purpose of this Agreement, (i) “Competing Business” means the
exploration, development, and production of mineral resources and (ii) “Covered Area” means all
geographical areas of the United States, South America, and other foreign
jurisdictions where Company then has offices and/or sells its products directly
or indirectly through distributors and/or other sales
agents. Notwithstanding the foregoing, the Executive may own shares
of companies whose securities are publicly trades, so long as such securities do
not constitute more than five percent (5%) of the outstanding securities of any
such company.
3.2 Non-Solicitation. The
Executive hereby covenants and agrees that during the term of this Agreement,
the Executive will not divert any business of the Company or any customers or
suppliers of the Company and/or the Company’s business to any other person,
entity or competitor, or induce or attempt to induce, directly or indirectly,
any person to leave his or her employment with the Company.
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3.3 Remedies. The
Executive acknowledges and agrees that his obligations provided herein are
necessary and reasonable in order to protect the Company and their respective
business and the Executive expressly agrees that monetary damages would be
inadequate to compensate the Company for any breach by the Executive of his
covenants and agreements set forth herein. Accordingly, the Executive
agrees and acknowledges that any such violation or threatened violation of this
Section 3 will cause irreparable injury to the Company and that, in addition to
any other remedies that may be available, in law, in equity or otherwise, the
Company shall be entitled to obtain injunctive relief against he threatened
breach of this Section 3 or the continuation of any such breach by the Executive
without the necessity of proving actual damages.
4. Termination.
4.1 By
Company.
(a)
The
Company may terminate Executive's employment prior to the expiration of the Term
(“Termination”). If
such termination by the Company is for any reason other than a
Termination for Cause (as defined in Section 4.1(b) hereof), or Executive’s
death or disability, then:
(i) all
unvested options, warrants and other equity grants shall vest
immediately,
(ii) Executive
will be entitled to receive his Base Salary for a period of 30 days from the
date of his termination; and
(iii) Executive
shall be entitled to a continuation of health and other medical benefits and
coverage at the cost and expense of the Company for a period of not less than
eighteen (18) months, in consideration for all of which the parties hereto shall
exchange mutual releases of claims.
(b) For
purposes of this Agreement, the term "Termination for Cause" means, a
termination by reason of any of the following:
(i) Executive’s
conviction of or entrance of a plea of guilty or nolo contendere to a felony;
or
(ii) Executive
is engaging or has engaged in material fraud, material dishonesty, or other acts
of willful and continued misconduct in connection with the business affairs of
the Company;
provided, however, that (x) no
conduct by Executive shall be deemed willful for purposes of this Section 4.1 if
Executive believed in good faith that such conduct was in or not opposed to the
best interests of the Company, and (y) Cause shall in no event be deemed to
exist with respect to clause (ii) above, unless Executive shall have first
received written notice from the Board of Directors advising Executive of the
specific acts or omissions alleged to constitute misconduct, and such misconduct
continues after Executive shall have had a reasonable opportunity (which shall
be defined as a period of time consisting of at least fifteen (15) days from the
date Executive receives said notice) to correct the acts or omissions so
complained of.
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(c) For
purposes of this Agreement, Executive’s employment shall be deemed to have been
terminated in the event of:
(i)
the material reduction of Executive’s title, authority, duties or
responsibilities, or the assignment to Executive of duties materially
inconsistent with Executive’s positions with the Company as stated in Section 1
hereof;
(ii)
a reduction in the Base Salary of Executive;
(iii)
the Company’s failure to pay Executive any amounts otherwise due hereunder or
under any plan, policy, program, agreement, arrangement or other commitment of
the Company if such failure is not cured by the Company within fifteen (15) days
of notice of such failure; or
(iv)
any other material breach by the Company of this Agreement.
(d) If
all, or any portion, of the payments provided under this Agreement, either alone
or together with other payments and benefits which Executive receives or is
entitled to receive from the Company, would constitute an “excess parachute
payment” within the meaning of Section 280G of the Internal Revenue Code
(whether or not under an existing plan, arrangement or other agreement) (each
such parachute payment, a “Parachute Payment”),
and would result in the imposition on the Executive of an excise tax under
Section 4999 of the Internal Revenue Code, then, in addition to any other
benefits to which the Executive is entitled under this Agreement, the Executive
shall be paid by the Company an amount in cash equal to the sum of the excise
taxes payable by the Executive by reason of receiving Parachute Payments plus
the amount necessary to put the Executive in the same after-tax position (taking
into account any and all applicable federal, state and local excise, income or
other taxes at the highest possible applicable rates on such Parachute Payments
(including without limitation any payments under this Section 4.1(d)) as if no
excise taxes had been imposed with respect to Parachute Payments.
4.2 By Executive’s Death or
Disability. This Agreement shall also be terminated upon the
Executive’s death and/or a finding of permanent physical or mental disability,
such disability expected to result in death or to be of a continuous duration of
no less than twelve (12) months, and the Executive is unable to perform his
usual and essential duties for the Company. In the event of
termination by reason of Executive’s death and/or permanent disability,
Executive or his executors, legal representatives or administrators, as
applicable, shall be entitled to an amount equal to Executive’s Base Salary
accrued through the date of termination, plus a pro rata share of any annual
bonus to which Executive would otherwise be entitled for the year which death or
permanent disability occurs.
4.4 Voluntary
Termination. Executive may voluntarily terminate the
Employment Term upon sixty (60) days’ prior written notice for any reason; provided, however, that no
further payments shall be due under this Agreement in that event except that
Executive shall be entitled to any benefits due under any compensation or
benefit plan provided by the Company for executives or otherwise outside of this
Agreement.
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5. General
Provisions.
5.1 Modification: No
Waiver. No modification, amendment or discharge of this
Agreement shall be valid unless the same is in writing and signed by all parties
hereto. Failure of any party at any time to enforce any provisions of
this Agreement or any rights or to exercise any elections hall in no way be
considered to be a waiver of such provisions, rights or elections and shall in
no way affect the validity of this Agreement. The exercise by any
party of any of its rights or any of the elections under this Agreement shall
not preclude or prejudice such party from exercising the same or any other right
it may have under this Agreement irrespective of any previous action
taken.
5.2 Further
Assurances. Each party to this Agreement shall execute all
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement.
5.3 Notices. All
notices and other communications required or permitted hereunder or necessary or
convenient in connection herewith shall be in writing and shall be deemed to
have been given when hand delivered or mailed by registered or certified mail as
follows (provided that notice of change of address shall be deemed given only
when received):
If to the Company,
to: Medefile
International, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx
000
Xxxxx Xxxxxx, XX 00000
With a copy
to: Xxxxxxx
X. Xxxxxxx
Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP
00 Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Executive,
to: Xxxxxx
Xxxxxx
000 Xxxxx Xxxxxx Xxxx, Xxxxx
000
Xxxxx Xxxxxx, XX 00000
or to
such other names or addresses as the Company or Executive, as the case may be,
shall designate by notice to each other in the manner specified in this
Section.
5.4 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
5.5 Severability. Should
any one or more of the provisions of this Agreement or of any agreement entered
into pursuant to this Agreement be determined to be illegal or unenforceable,
then such illegal or unenforceable provision shall be modified by the proper
court or arbitrator to the extent necessary and possible to make such provision
enforceable, and such modified provision and all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement
shall be given effect separately from the provisions or portion thereof
determined to be illegal or unenforceable and shall not be affected
thereby.
5.6 Successors and
Assigns. Executive may not assign this Agreement without the
prior written consent of the Company. The Company may assign its
rights without the written consent of the executive, so long as the Company or
its assignee complies with the other material terms of this
Agreement. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the Company, and the Executive’s rights under this
Agreement shall inure to the benefit of and be binding upon his heirs and
executors.
5.7 Entire
Agreement. This Agreement supersedes all prior agreements and
understandings between the parties, oral or written. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced.
5.8 Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original,
and all of which taken together shall constitute one and the same
instrument. This Agreement may be executed by facsimile with original
signatures to follow.
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IN
WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed
this Agreement as of the date first written above.
| MEDEFILE INTERNATIONAL, INC. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |||
| Director | |||
| XXXXXX XXXXXX | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Xxxxxx Xxxxxx | |||
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