EMPLOYMENT AGREEMENT
Exhibit
10-1
This
Agreement (the “Agreement”) dated as of December 7, 2007 is made by and between
ECONOSHARE, INC., a publicly-owned Nevada corporation (the “Company”) and XXXXXX
XXXXX (the “Executive”).
RECITALS
WHEREAS,
the Company desires to hire the Executive as, (1) Chairman of the Board of
Directors of the Company, (2) Chief Executive Officer of the Company engaged
in
the oncological pharmaceutical and related or ancillary industries as the
Company shall determine and the Executive is willing to accept such employment
on the terms set forth herein.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained, and other good and valuable consideration, the Company and the
Executive hereby agree as follows:
1. Definitions
1.1 “Affiliate”
means any entity controlling, controlled by or under common control with the
Company.
1.2 “Board”
means the Board of Directors of the Company.
1.3 “Cause”
means (a) the Executive is convicted of or pleads guilty to a felony involving
dishonesty as against the Company or an Affiliate, (b) the Executive is
convicted of a felony not involving the Company, and after exhausting all rights
of appeal, is obligated to serve, and actually serves, ten (10) or more days
in
prison or pay a fine of more than One Hundred Thousand ($100,000) Dollars,
or
(c) the Executive, in carrying out the Executive’s duties and responsibilities
under this Agreement, is guilty of gross neglect or gross misconduct resulting,
in either case, in material economic harm to the Company to an Affilitate,
unless such act, or failure to act, was reasonably believed by the Executive
in
good faith, using reasonable judgment under the circumstances, to be in the
best
interests of the Company
1.4 “Commitment
Date” means the date the Company receives a financing commitment in an amount of
at least $4,000,000.
1.5 “Date
of Termination” means (a) in the case of a termination for which a Notice of
Termination (as hereinafter defined in Section 6.5) is required, the date of
actual receipt of such Notice of Termination or if later, the date specified
therein, as the case may be, and (b) in all other cases, the actual date on
which the Executive’s employment terminates during the Term of Employment (as
hereinafter defined in Section 3) (it being understood that nothing contained
in
this definition of “Date of Termination” shall affect any of the cure rights
provided to the Executive or the Company in this Agreement).
1.6 “Disability”
means the Executive’s inability to render, for a period of three consecutive
months, services hereunder.
1.7 “Good
Reason” means and shall be deemed to exist if (a) without the Executive’s
express prior written consent; the Executive is assigned any duties or
responsibilities inconsistent in any material respect with the scope of the
duties or responsibilities associated with the Executive’s title or positions,
as set forth and described in Article 4 of this Agreement; (b) without
the Executive’s express prior written consent, the Executive suffers, in any
material respect, a reduction in the duties, responsibilities or effective
authority associated with Executive’s titles and positions as set forth and
described in Article 4 of this Agreement; (c) without the Executive’s express
prior written consent, the Executive’s compensation under this Agreement is
decreased, or the Executive’s benefits under employee benefit or health or
welfare plans or programs of the Company are in the aggregate materially
decreased; (d) the Company fails to obtain the full assumption of this Agreement
by a successor entity in accordance with Section 11.2 of this Agreement;
(e) the Company fails to use reasonable efforts to maintain, or cause to be
maintained, directors and officers liability insurance coverage for the
Executive as provided in Section 12.9 of this Agreement; or (f) the Company
purports to terminate the Executive’s employment for Cause and the Company is
not entitled to terminate this Agreement for Cause.
1.8 “Person(s)”
means any individual or entity of any kind or nature, including any other person
as defined in Section 3(a)(9) of the Exchange Act, and as used in
Sections 13(d) and 14(d) thereof.
2. Employment. Subject
to the terms and provisions set forth in this Agreement, the Company hereby
employs the Executive during the Term of Employment as the Chief Executive
Officer and Chairman.
3. Term
of Employment. The term of employment under this Agreement shall
be deemed to commence as of the date set forth above (the “Commencement Date”)
and, unless terminated earlier pursuant to the terms hereof, shall terminate
on
the third anniversary of the Commitment Date (the “Term of
Employment”).
4. Positions,
Responsibilities and Duties
4.1 Positions. During
the Term of Employment, the Executive shall be employed as, and the Company
shall at all times cause the Executive to be, (1) Chairman of the Board of
Directors of the Company, (2) Chief Executive Officer of Company and such future
direct or indirect subsidiaries of the Company engaged in the oncological
pharmaceutical industry and related or ancillary industries as the Company
shall
determine. In such positions, the Executive shall have the duties,
responsibilities and authority normally associated with such
positions. The Executive shall report solely and directly to the
Board of Directors of the Company, and all employees of the Company and all
of
the Subsidiaries and such future direct or indirect subsidiaries of the Company
engaged in the pharmaceutical industry for which the Executive serves as Chief
Executive Officer shall report to Executive.
4.2 Duties. During
the Term of Employment, the Executive shall devote such business time and
attention to the business of the Company as the Executive deems necessary to
perform faithfully and efficiently the duties and responsibilities contemplated
by this Agreement; provided, however, that the Executive shall be allowed,
to
the extent such activities do not substantially interfere with the performance
of the Executive’s duties and responsibilities hereunder, to (a) manage the
Executive’s personal financial and legal affairs, and (b) engage in other
businesses so long as they do not compete with the Company.
5. Compensation
and Other Benefits
5.1 Base
Salary. During the Term of Employment and commencing on the
Commitment Date the Executive shall receive a base salary of $200,000 per annum
during the first year of the Term, $300,000 during the second year of the Term
and $400,000 during the third year of the Term (“Base Salary”) payable in equal
monthly installments.
5.2 Equity
Compensation. On the Commencement Date and on each anniversary of
the Commencement Date thereafter, Executive shall be issued options to purchase
a number of shares of the Company’s Common Stock equal to one percent (1%) of
the number of shares of Common Stock issued and outstanding (the “Options”). The
Options issued on the Commencement Date shall be at a purchase price of $0.15
per share. The Options issued upon each successive anniversary for the remainder
of the Term shall be issued at a purchase price equal to the average closing
bid
price of the common stock on its primary exchange for the fifteen successive
trading days immediately prior to such anniversary of the Commencement
Date.
5.3 Incentive
Bonuses. Acknowledging the vital nature to the Company’s business
of filing and obtaining the approval of an Investigational New Drug (“IND”)
Application, during the Term (and in addition to the Base Salary), the Executive
shall be entitled to receive incentive cash bonus payments (the “Bonus”)
determined in accordance with the following Schedule:
(a) Upon
receipt of the IND for the Company’s candidate Kevetrin, Executive shall receive
a Bonus equal to:
(i) $250,000
if received within ten (10) months of the Commitment Date;
(ii) $150,000
if received within twelve (12) months of the Commitment Date;
(iii) $100,000
if received within sixteen (16) months of the Commitment Date; and
(iv) $0.00
if received sixteen (16) months after the Commitment Date.
(b) Upon
completion of Phase 1 of Kevetrin, with results allowing the Company to Commence
Phase 2/3, Executive shall receive an additional cumulative Bonus equal
to:
(i) $450,000
if completed within eighteen (18) months of the Commitment Date;
(ii) $350,000
if completed within twenty-four (24) months of the Commitment Date;
(iii) $150,000
if completed within twenty-eight (28) months of the Commitment Date;
and
(iv) $0.00
if completed twenty-eight (28) months after the Commitment Date.
(c) Upon
the commencement of Phase 2/3 of the IND for Kevetrin, Executive shall receive
an additional cumulative bonus equal to:
(i) $500,000
if commenced within thirty-six (36) months of the Commitment Date;
(ii) $350,000
if commenced within forty-two (42) months of the Commitment Date;
(iii) $150,000
if commenced within forty-eight (48) months of the Commitment Date;
and
(iv) $0.00
if commenced forty-eight (48) months after the Commitment Date.
The
Bonus shall be paid to the Executive in cash as soon as practicable after the
end of the fiscal year to which it relates, but in any event no later than
one
hundred five (105) calendar days after the end of such fiscal year (and, to
the
extent there is any disagreement as to the amount thereof any amount
acknowledged as payable by the Company shall be paid by such date).
5.4 Incentive
Retirement, and Savings Plans. During the Term of Employment, the
Executive shall be entitled to participate in all incentive, pension, retirement
savings and other employee benefit plans and programs maintained by the Company
and/or an Affiliate for the benefit of senior executives.
5.5 Welfare
Benefit Plans. During the Term of Employment, the Executive, the
Executive’s spouse and their eligible dependents, if any, shall be entitled to
participate in and be covered under all the welfare benefit plans or programs
maintained by the Company and/or the Subsidiaries, including, without
limitation, all term life insurance, long term disability insurance, medical,
hospitalization, dental, disability, accidental death and dismemberment and
travel accident insurance plans and programs. All premiums and other
costs and expenses associated with the participation by the Executive, his
spouse and his eligible dependents, if any, in the plans and/or programs
referenced herein, shall be borne in full by the Company.
5.6 Expense
Reimbursement. During the Term of Employment the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in performing the Executive’s duties and responsibilities
hereunder in accordance with the policies and procedures of the
Company. At the end of each fiscal year, the Executive and the
Company shall in good faith reconcile any differences and disputes with respect
to timing, right to reimbursement, reasonableness or documentation of any items
of expense reimbursement, it being agreed that no dispute respecting any of
the
foregoing shall constitute a basis for the Executive or the Company (including
the Subsidiaries) terminating or attempting to terminate this
Agreement
5.7 Vacation
and Fringe Benefits. During the Term of Employment, the Executive
shall be entitled to such paid vacation, fringe benefits and perquisites as
set
forth in Schedule 5.7 or, if more favorable to the Executive, as provided by
the
Company at any time hereafter.
6. Termination
6.1 Termination
Due to Death or Disability. The Company or the Executive may
terminate the Executive’s employment hereunder due to his death or
Disability. In the event the Executive’s employment is terminated due
to death or Disability, the Executive’s estate or Executive’s legal
representative, as the case may be, shall be entitled to:
(a) (i)
in the case of death, Base Salary continuation at the rate in effect (as
provided for by Section 5.1 of this Agreement) on the Date of Termination
for a period of three (3) months after the date of death, and (ii) in the case
of Disability, $10,000 per month for so long as the Executive is subject to
a
Disability or for the unexpired portion of the Term.
(b) any
Base Salary accrued or any Annual Bonus earned but not yet paid;
(c) a
pro rata Annual Bonus for the calendar year in which death or Disability occurs
(determined and payable in accordance with Section 5.2 of this
Agreement);
(d) any
deferred compensation not yet paid to the Executive (including, without
limitation, interest or other credits on such deferred amounts) and any accrued
vacation pay;
(e) reimbursement
pursuant to Section 5.6 hereof or any other provision of this Agreement for
expenses incurred but not yet paid prior to such death or
Disability;
(f) in
the case of death, any other compensation and befits as may be provided in
accordance with the terms and provision of any applicable plans and programs
of
the Company and/or the Affiliates; and
(g) in
the case of Disability, (i) continuation of the Executive’s health and welfare
benefits (as described in Section 5.5 of this Agreement at the level in effect
(as provided for by Section 5.5) on the Date of Termination through the end
of
the three-year period following the termination of the Executive’s employment
due to Disability (or the Company shall provide the economic equivalent
thereof), and (ii) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans and programs
of
the Company.
With
respect to the deferred compensation arrangements referred to in Sections
6.1(d), 6.2(c) and 6.3(d), to the extent that such deferred compensation
arrangements provide by their terms for any deferral of payments in the event
of
death or Disability, termination with Cause or termination without Cause or
for
Good Reason, such payments shall be deferred in accordance with such
arrangements to the extent required by the type of termination of this
Agreement. With respect to the other benefits referred to in Sections
6.1(g), 6.2(e) and 6.3(g), to the extent that such other benefit arrangements
provide by their terms for any deferral of payments in the event of death or
Disability, termination with Cause or determination without Cause or for Good
Reason, such payments shall be deferred in accordance with such arrangements
to
the extent required by the type of termination of this Agreement
6.2 Termination
by the Company for Cause. The Company may terminate the
Executive’s employment hereunder for Cause as provided in this Section 6.2;
provided that no act or omission referred to herein occurring prior to the
Commencement Date shall constitute Cause. If the Company terminates
the Executive’s employment hereunder for Cause the Executive shall be entitled
to:
(a) the
Executive’s Base Salary at the rate in effect (as provided for by
Section 5.1 of this Agreement) at the time of such termination through the
Date of Termination;
(b) any
Annual Bonus for the prior fiscal year not yet paid together with a pro-rata
portion of the Annual Bonus for the calendar year in which termination occurs
through the Date of Termination;
(c) any
deferred compensation (including, without limitation interest or other credit
on
such deferred amounts) and any accrued vacation pay;
(d) reimbursement
pursuant to Section 5.6 hereof or any other provision of this Agreement for
expenses incurred, but not yet paid prior to such termination of employment;
and
(e) any
other compensation and benefits as may be provided in accordance with the terms
and provisions of any applicable plans and programs of the Company and/or the
Subsidiaries.
In
any case described in this Section 6.2, the Executive shall be given written
notice, authorized (with Executive abstaining) by a vote of at least two thirds
(2/3) of the members of the entire Board (excluding Executive), that the Company
intends to terminate the Executive’s employment for Cause. Such
written notice, given in accordance with Section 6.6 of this Agreement shall
specify the particular act or acts, or failure to act, which is or are the
basis
for the decision to so terminate the Executive’s employment for
Cause. The Executive shall be given the opportunity within ten (10)
calendar days of the receipt of such notice to meet with the Board to defend
such act or acts, or failure to act, and the Executive shall be given twenty
(20) business days after such meeting to correct such act, acts or failure(s)
to
act, provided that the Executive shall not have the right to cure the acts
described in Section 1.3(a) hereof. Upon failure of the Executive,
within such latter twenty (20) business day period, to correct such act, acts
or
failure(s) to act, the Executive’s employment by the Company shall automatically
be terminated under this Section 6.2 for Cause as of the date determined in
Section 1.4 of this Agreement; provided, however, if the act or acts, or
the failure to act, which is or are the basis for the decision to terminate
the
Executive’s employment for Cause are incapable of being cured within the twenty
(20) business day period and the Executive has commenced reasonable efforts
to
correct such act, acts or failure(s) to act within the twenty (20) day period,
then the Executive’s employment shall not be terminated under this
Section 6.2 for Cause and the Executive shall have a reasonable time period
following the expiration of the twenty (20) business day period to correct
such
act, acts or failure(s) to act.
6.3 Termination
with Good Reason. The Executive may terminate the Executive’s
employment hereunder for Good Reason. If the Executive seeks to
terminate the Executive’s employment hereunder for Good Reason, the Company
shall be given written notice that the Executive intends to terminate the
Executive’s employment for Good Reason. Such written notice, given in
accordance with Section 6.6 of this Agreement, shall specify the particular
act
or acts, or failure(s) to act, which is or are the basis for the Executive’s
decision to so terminate the Executive’s employment for Good
Reason. The Company shall be given the opportunity within ten (10)
calendar days of the receipt of such notice to meet with the Executive to
defend
such act or acts, or failure(s) to act, and the Company shall be given twenty
(20) business days after such meeting to correct such act, acts or failure(s)
to
act provided that the Company shall nor have the right to correct the acts
or
failure(s) to act specified in clauses (c), (i) and (k) of the definition
of
Good Reason. Upon failure of the Company, within such latter twenty
(20) business day period, to correct such act, acts or failure(s) to act,
the
Executive’s employment by the Company shall automatically be terminated under
this Section 6.3 for Good Reason as of the date of actual termination
provided that the date of actual termination shall be ten (10) calendar days
after receipt of the Executive’s notice if the Company does not have the right
to correct such act(s) or failure(s) to act.
6.4 No
Mitigation; No Offset. In the event of any termination of
employment under this Section 6, the Executive shall be under no obligation
to seek other employment and there shall be no offset against any amounts paid
or payable the Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that the Executive may
obtain. Any amounts due under this Section 6 are in the nature
of severance payments, or liquidated damages, or both, and are not in the nature
of a penalty.
6.5 Notice
of Termination. Any termination of the Executive by the Company
or by the Executive for Good Reason shall be communicated by a notice of
termination to the other party hereto given in accordance with Section 15.3
of this Agreement (the “Notice of Termination”). Such notice shall
(a) indicate the specific termination provision in this Agreement relied upon,
(b) set 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, and (c) if the termination date is other than the date
of receipt of such notice, specify the date on which the Executive’s employment
is to be terminated (which date shall not be earlier than the date on which
such
notice is given).
6.6 Payment. Except
as otherwise provided in this Agreement, any payments to which the Executive
shall be entitled under this Section 6, including. without
limitation, any economic equivalent of any benefit shall be made as promptly
as
possible following the Date of Termination. If the amount of any
payment due to the Executive cannot be finally determined within ninety (90)
days after the Date of Termination (by way of example only, pro rata bonuses
determined pursuant to Section 6.8 hereof), such amount shall be estimated
on a good faith basis by the Company and the estimated amount shall be paid
no
later than ninety (90) days after such Date of Termination. As soon
as practicable thereafter, the final determination of the amount due shall
be
made and any adjustment requiring a payment to or from the Executive shall
be
made as promptly as practicable.
6.7 Disclosure
of Termination. Subject to the requirements of any Exchange on
which securities of the Company may be listed or the securities laws, and except
for terminations for Cause or the death or Disability of the Executive, any
public disclosure of the termination of this Agreement by the Company shall
be
subject to prior review and approval by the Executive, which review and approval
shall not be unreasonably withheld or delayed.
7. Key
Man Life Insurance. If requested by the Company, Executive will
cooperate with the Company, at the Company’s expense, to obtain key man life
insurance on the Executive’s life.
8. Non-exclusivity
of Rights. Except as provided in Section 5.3 hereof, nothing
in this Agreement or any other provision of this Agreement shall prevent or
limit the Executive’s continuing or future participation in any benefit, bonus
incentive or other plan or program provided or maintained by the Company, the
Subsidiaries or any other Affiliate and for which the Executive may qualify,
nor
shall anything herein limit or otherwise prejudice such rights as the Executive
may have under any other existing or fixture agreements with the Company, the
Subsidiaries or any Affiliate including, without limitation, any change of
control agreements or any stock option or restricted stock
agreements. Except as otherwise expressly provided in this Agreement,
amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plans or programs of the Company, the Subsidiaries or
any
other Affiliate at or subsequent to the Date of Termination shall be payable
in
accordance with such plans or programs.
9. Full
Performance. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall 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.
10. Confidential
Information. The Executive shall not, during the Term of
Employment and thereafter, without the prior express written consent of the
Company, disclose any confidential information, knowledge or data relating
to
the Company, which (a) was obtained by the Executive in the course of the
Executive’s employment with the Company, and (b) which is not information,
knowledge or data otherwise in the public domain (other than by reason of a
breach of this provision by the Executive), unless required to do so by a court
of law or equity or by a governmental agency or other authority. The
Executive shall assign to the Company all inventions (whether or not patentable)
and all other intellectual property developed by the Executive
hereunder. The Executive shall cooperate with the Company in
obtaining patents or other intellectual property registrations as determined
in
good faith by the Company to be necessary or desirable.
11. Successors.
11.1 The
Executive. This Agreement is personal to the Executive and,
without the prior express written consent of the Company, shall not be
assignable by the Executive, except that the Executive’s rights to receive any
compensation or benefits under this Agreement may be transferred or disposed
of
pursuant to testamentary disposition, intestate succession or a qualified
domestic relations order or in connection with a Disability. This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
estate, heirs, beneficiaries and/or legal representatives.
11.2 The
Company. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns. The Company
shall require any successor to all or substantially all of the business and/or
assets of the Company or the Subsidiaries, whether direct or indirect, by
purchase, merger, consolidation, acquisition of stock, or otherwise, by an
agreement in form and substance satisfactory to the Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent as the Company would be required to perform had no such succession taken
place.
12. Indemnification
12.1 General. The
Company agrees that if the Executive is made a party or is threatened to be
made
a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by reason of the
fact that Executive is or was a director or officer of the Company, the
Subsidiaries and/or any other Affiliate or is or was serving at the request
of
the Company, the Subsidiaries and/or any other Affiliate as a director, officer,
member, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including, without limitation, service
with
respect to employee benefit plans, whether or not the basis of such Proceeding
is alleged action in an official capacity as a director, officer, member,
employee or agent while serving as a director, officer, member, employee or
agent, Executive shall be indemnified and held harmless by the Company to the
fullest extent authorized by Nevada law, as the same exists or may hereafter
be
amended, against all Expenses (as hereinafter defined in Section 13.2) incurred
or suffered by the Executive in connection therewith, and such indemnification
shall continue as to the Executive even if the Executive has ceased to be an
officer, director or agent, or is no longer employed by the company and shall
inure to the benefit of Executive’s heirs, executors and
administrators.
12.2 Expenses. As
used in this Article, the term “Expenses” shall include, without limitation,
damages, losses, judgments, liabilities, fines, penalties, excise taxes,
settlements and costs, reasonable attorneys’ fees, reasonable accountants’ fees,
and disbursements and costs of attachment or similar bonds, investigations,
and
any reasonable expenses of establishing a right to indemnification under this
Agreement.
12.3 Subrogation. In
the event of payment under this Article, the Company shall be subrogated to
the
extent of such payment to all the rights of recovery of the
Executive.
12.4 Partial
Indemnification. If the Executive is entitled under any provision
of this Article to indemnification by the Company for some or a portion of
any Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify the Executive for the portion of such Expenses to which
the Executive is entitled.
12.5 Advance
of Expenses. Expenses incurred by the Executive in connection
with any Proceeding shall be paid by the Company in advance upon request of
the
Executive that the Company pay such Expenses, provided that prior to such
advance the Executive shall provide the Company with a written undertaking
to
repay such advances to the Company if it shall ultimately be determined that
he
is not entitled to be indemnified as authorized under the Nevada Revised
Statutes Corporation Law.
12.6 Notice
of Claim. The Executive shall give to the Company notice of any
claim made against the Executive for which indemnity will or could be sought
under this Article. In addition, the Executive shall give the Company
such information and cooperation as it may reasonably require and as shall
be
within the Executive’s power and at such times and places as are convenient for
the Executive.
12.7 Defense
of Claim. With respect to any Proceeding as to which the
Executive notifies the Company of the commencement thereof:
12.7.1 The
Company will be entitled to participate therein at its own expense;
and
12.7.2 Except
as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume
the defense of the Executive, with counsel satisfactory to the
Executive. The Executive also shall have the right to employ the
Executive’s own counsel in such action, suit or Proceeding and the reasonable
fees and expenses of such counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of
any action, suit or Proceeding brought by or on behalf of the Company or the
Subsidiaries or as to which the Executive shall have concluded that there may
be
a conflict of interest between the Company or the Subsidiaries and the Executive
in the conduct of the defense of such action.
12.7.3 The
Company shall not be liable to indemnify the Executive under this Agreement
for
any amounts paid in settlement of any action or claim effected without its
written consent. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on the Executive without
Executive’s written consent. Neither the Company nor the Executive
will unreasonably withhold or delay their consent to any proposed
settlement.
12.8 Non-exclusivity. The
right to indemnification and the payment of expenses incurred in defending
a
Proceeding in advance of its final disposition conferred in this Section 13
shall not be exclusive of any other right which the Executive may have or
hereafter may acquire under any statute, provision of the certificate of
incorporation or by-laws of the Company or the Subsidiaries, agreement, vote
of
stockholders or disinterested directors or otherwise.
12.9 Directors
and Officers Liability Policy. The Company agrees to use
commercially reasonable efforts to obtain a directors and officers liability
insurance policy covering the Executive in an amount and in accordance with
terms no less favorable than that policy in effect upon the Commencement
Date. The Company shall use its commercially reasonable efforts to
maintain during the Term of Employment (and for so long thereafter as is
practicable in the circumstances taking account of prevailing conditions as
to
availability of such insurance) coverage to the Executive in an amount at least
equal to that maintained immediately prior to the Commencement
Date.
13. Arbitration. Any
controversy or claim arising out of or relating to this Agreement or any portion
thereof, shall be resolved by binding arbitration. The arbitration
shall be conducted in New York, New York in accordance with the arbitration
rules promulgated and adopted by the American Arbitration Association,
JAMS/Endispute or other reputable recognized alternative dispute resolution
organization (hereinafter collectively referred to as “ADR”) chosen by the party
demanding arbitration. Any party may commence arbitration by sending
a written demand for arbitration to the other party and filing such claim with
the ADR and paying the appropriate filing fees. The demand will state
the dispute with reasonable particularity. Subject to the
availability of the neutral arbitrator, the arbitration hearing shall be
commenced within the sixty (60) days following the date of appointment of the
neutral arbitrator. Unless the parties mutually agree on one
arbitrator, the arbitration shall be conducted by a panel of three (3) qualified
arbitrators, one (1) chosen by the Company, one (1) by the Executive and one
(1)
chosen by the first two (2) arbitrators so appointed. If either party
fails to designate an arbitrator within ten (10) days of receipt of the demand
for arbitration, then it shall be deemed that the parties have agreed to have
a
single arbitrator. The neutral arbitrator shall be chosen within
twenty (20) days of receipt of the demand for arbitration. If the
parties or their respective arbitrators fail to agree upon a neutral arbitrator,
then either party may apply to the Supreme Court of New York County, for an
order appointing the neutral arbitrator. Each party shall retain the
right to cross-examine the opposing party’s witnesses. Discovery
shall be limited to one (1) deposition per side and one (1) demand for
production and inspection of documents. The majority decision of the
arbitration panel shall be final, binding and conclusive on all parties (without
any right of appeal therefrom) and shall not be subject to judicial review,
other than as provided by law. The fees for the neutral arbitrator
and administration of the arbitration shall be divided between the
parties. As part of its decision, the arbitration panel may allocate
the cost of arbitration, including fees of attorneys and experts, as it deems
fair and equitable in light of all relevant circumstances. The
parties waive the right to a trial by jury. The award of the
arbitrator shall be in writing and shall set forth the basis upon which all
issues submitted by the parties for decision has been
decided. Judgment on the award rendered by the arbitration panel may
be entered in any court of competent jurisdiction.
14. Miscellaneous
14.1 Applicable
Law. Except as may be otherwise provided herein, this Agreement
shall be governed by and construed in accordance with the laws of the State
of
New York, applied without reference to principles of conflict of
laws.
14.2 Amendments. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
14.3 Notices. All
notices and other communications hereunder shall be in writing and shall be
given by hand-delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If
to the
Executive: Xxxxxx
Xxxxx
[Home
Address]
If
to the
Company: EconoShare,
Inc.
000
Xxxxxxxxxxx Xx, Xxxxx
X000
Xxxxxxxxxx,
Xxxxxxxxxxxxx
00000
or
to such other address as either party shall have finished to the other in
writing in accordance herewith. Notices and communications shall be
effective when actually received by the addressee.
14.4 Withholding. The
Company may withhold from any amounts payable under this Agreement such federal,
state and local income, unemployment, social security and similar employment
related taxes and similar employment related withholdings as shall be required
to be withheld pursuant to any applicable law or regulation.
14.5 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and any such provision which is not valid or enforceable in whole shall be
enforced to the maximum extent permitted by law.
14.6 Captions. The
captions of this Agreement are not part of the provisions hereof and shall
have
no force or effect.
14.7 Beneficiaries/References. The
Executive shall be entitled to select (and change) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
the Executive’s death, and may change such election, in either case by giving
the Company written notice thereof. In the event of the
Executive’s death or a judicial determination of the Executive’s incompetence,
reference in this Agreement to the Executive shall be deemed, where appropriate,
to refer to the Executive’s beneficiary(ies), estate or other legal
representative(s).
14.8 Entire
Agreement. This Agreement contains the entire agreement among the
parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.
14.9 Representation. Each
party to this Agreement represents and warrants that it is fully authorized
and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it
and
any other person, firm or organization or any applicable laws or
regulations.
14.10 Survivorship. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement or the Executive’s employment hereunder to the
extent necessary to the intended preservation of such rights and
obligations.
14.11 Joint
and Several Obligation. Anything to the contrary notwithstanding
in this Agreement, all of the monetary and non-monetary obligations of the
Company in this Agreement shall be and are the joint and several obligations
of
the Company and the Subsidiaries.
14.12 Joint
Efforts/Counterparts. Preparation of this Agreement shall be
deemed to be joint effort of the parties hereto and shall not be construed
more
severely against any party. This Agreement may be signed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
“COMPANY”
By:
/s/Xxxxxxx
Xxxxx,
President
“EXECUTIVE”
/s/
XXXXXX XXXXX,
individually
