EMPLOYMENT AGREEMENT
Exhibit 10.8
This
Employment Agreement (“Agreement”)
is
entered into as of August 10, 2007, between Xcorporeal, Inc., a Delaware
corporation (“Company”),
and
Xxxxxx Xxxxxxxxx, an individual (“Executive”).
Recitals
A. The
Company is engaged in the business of developing and marketing Hospital
Artificial Kidney (HAK), Wearable Artificial Kidney (WAK), Hospital
Ultrafiltration Device (HUD) and Wearable Ultrafiltration Device
(WUD) products, including performing lab experimentation, equipment
testing, design review, verification, validation, development of prototypes
and
reporting, and U.S. Food & Drug Administration and other regulatory approval
processes (the “Business”).
B. The
Company desires to employ the Executive as its Chief Financial Officer, and
the
Executive desires to be so employed by the Company, on the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration thereof and of the covenants and conditions
contained herein, the parties agree as follows:
Agreement
1. Board
Approval.
The
Company and the Executive acknowledge that this entire Agreement is subject
to
approval by the Company’s Board of Directors (“Board”).
2. Employment.
The
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to serve as the Chief Financial Officer of the Company. The Executive agrees
to
perform such lawful services customary to that office and to perform those
services assigned to him from time to time by the Company’s Executive Chairman,
Chief Executive Officer, President, Chief Operating Officer, or Board. The
Executive further agrees to use his best ability and skills to promote the
interests of the Company and to devote his full business time and energies
to
the business and affairs of the Company.
3. Term
of Agreement.
The
Executive’s employment with the Company shall commence on a date to be
determined by the parties, subject to the Board’s approval of this Agreement,
which date when determined will be the “Effective
Date”
and
provided in Section 10 below. Subject to the terms of Sections 5 and 6
of this Agreement, the Term of this Agreement will commence on the Effective
Date for a period of three (3) years, if the Executive relocates his
residence to Southern California within one year after the Effective Date,
and
thereafter will renew automatically for one (1) year terms unless either
the Company or the Executive provides written notice of non-renewal to the
other
party not later than ninety (90) days prior to the scheduled expiration of
the Term in effect. In the event the Executive does not relocate his residence
to Southern California within one year after the Effective Date, the Term of
this Agreement will be for a period of one (1) year, and thereafter will
continue on a month-to-month basis subject to the terms of Sections 5 and 6
of this Agreement.
4. Compensation
and Other Related Matters.
(a)
Salary.
As
compensation for services rendered hereunder, the Executive shall receive an
annual base salary (“Base
Salary”)
of Two
Hundred Seventy-Five Thousand Dollars ($275,000.00), which salary shall be
paid
in accordance with the Company’s then prevailing payroll practices. The Company
shall not decrease the Executive’s Base Salary. At the Company’s sole discretion
the Executive’s Base Salary may be increased annually. Notwithstanding the
foregoing, commencing January 1, 2008 and annually thereafter, the Base
Salary shall be increased by at least the Consumer Price Index for Los Angeles,
California (or a reasonable proxy thereof).
(b)
Bonus.
During
the term of this Agreement, and in the Company’s sole discretion, the Executive
shall be eligible to receive an annual discretionary bonus of up to 50% of
the
Executive’s base salary at the end of each calendar year, subject to the
Executive and the Company achieving annual performance objectives. The annual
performance objectives will be agreed before the start of each calendar year
between the Executive and the Chief Operating Officer, subject to the approval
of the Company’s Board of Directors or its Compensation Committee. To receive
each annual discretionary bonus, the Executive must still be employed with
the
Company as of December 31 of the year for which the annual discretionary
bonus is payable and not be in breach at the time the bonus is payable. The
Company agrees that the Executive shall receive a guaranteed bonus of no less
than 20% of the Executive’s Base Salary at the end of calendar year 2007
(“2007
Bonus”).
The
2007 Bonus shall be calculated based on the total Base Salary actually earned
by
the Executive between the Effective Date and December 31, 2007. Subject to
achievement of the 2007 performance objectives agreed upon the parties set
forth
in Schedule I attached hereto, and at the Company’s sole discretion, the
Executive shall be eligible to receive a discretionary bonus (in addition to
the
2007 Bonus) at the end of calendar year 2007.
(c)
Stock
Options.
(i) Grant
of Shares.
On the
Effective Date, the Executive shall be granted options to purchase three hundred
thousand (300,000) shares of common stock under the 2006 Incentive Compensation
Plan (the “Plan”).
Such
options will vest and be exercisable at a rate of twenty-five percent (25%)
per
year commencing on the first anniversary of the date of grant and will have
an
exercise price equal to the Fair Market Value, as such term is defined in the
Plan, on the date of grant.
(ii) Acceleration.
Notwithstanding provision (i) above, and provided that the Executive has
already relocated to Southern California: (A) any options not vested upon
Executive’s death or the termination of the Executive’s employment because he
has become Disabled (as defined below) will immediately vest and be exercisable
in accordance with the Plan; (B) if the Company terminates the Executive
without Cause (as defined below) before the end of twelve (12) months from
the
Effective Date, the first tranche of twenty-five percent (25%) of the
Executive’s options will immediately vest and be exercisable in accordance with
the Plan upon termination; (C) if the Company terminates the Executive without
Cause after twelve (12) months but before the end of eighteen
(18) months from the Effective Date, the second tranche of twenty-five
percent (25%) of the Executive’s options will immediately vest and be
exercisable
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in
accordance with the Plan; (D) if the Company terminates the Executive
without Cause after eighteen (18) months but before the end of thirty
(30) months from the Effective Date, the third tranche of twenty-five
percent (25%) of the Executive’s options will immediately vest and be
exercisable in accordance with the Plan; and (E) if the Company terminates
the Executive without Cause after thirty (30) months from the Effective
Date, the entire grant of three hundred thousand (300,000) options described
in
4(c)(i) will immediately vest and be exercisable in accordance with the Plan.
(iii) Fair
Market Value.
In the
event, at the time the Executive elects to exercise any options, the common
stock of Employer is not trading in sufficient volume to permit the Executive
to
immediately sell the common stock acquired upon exercise in the open market
(subject to any then applicable securities laws), the Executive may pay the
exercise price for such shares by either (A) the surrender of that portion
of the exercised option shares having a Fair Market Value on the date of
exercise equal to the aggregate exercise price of the options so exercised
or
(B) the surrender of Employer’s common stock having a Fair Market Value on
the date of exercise equal to the exercise price of the options so exercised
and, in the case of common stock acquired by the Executive directly or
indirectly from Employer, has been owned by the Executive for a sufficient
period to avoid a compensation expense to Employer under then applicable
accounting rules.
(iv) Change
of Control.
(A) Provided
the Executive has relocated to Southern California prior to the effective date
of a Change in Control, if the acquirer in the Change in Control does not adopt
the Executive’s option grant under the Plan in accordance with 26 C.F.R. 1.424-1
or offer the Executive a substitute grant under the acquirer’s plan having
similar economic value to the Executive’s option grant under the Plan, any
options granted to the Executive under the Plan that would not otherwise be
vested on the effective date of the Change in Control shall immediately vest
and
be exercisable immediately prior to the effective date of the Change in Control.
(B) Provided
the Executive has relocated to Southern California before the effective date
of
a Change in Control, if the acquirer in the Change in Control adopts the
Executive’s option grant under the Plan in accordance with 26 C.F.R. 1.424-1, or
offers the Executive a substitute grant under the acquirer’s stock option plan
having similar economic value to the Executive’s option grant under the Plan,
and (1) within six (6) months following the effective date of the
Change in Control the acquirer terminates the Executive’s employment without
Cause, or (2) if within twelve (12) months of the Effective Date and
within six (6) months of the effective date of the Change in Control if the
acquirer terminates the Executive with or without cause, then to the extent
that
twenty-five percent (25%) or more of the Executive’s total granted options
remain unvested on the date his employment terminates, twenty-five percent
(25%)
of the Executive’s total granted options from the acquirer (by adoption or
grant) shall immediately vest and be exercisable. For the avoidance of doubt,
if
the acquirer does not agree to include this right in its substitute grant to
the
Executive, the Executive’s option grant under the Plan shall be treated as under
Section 4(c)(iv)(A) above.
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(C) If
the Executive has not relocated to Southern California prior to the effective
date of the Change in Control, the Executive shall not be entitled to any
acceleration in the vesting of his options under the Plan in connection with
the
Change in Control.
(D) For
purposes of this Agreement, a “Change
in Control”
shall
be defined as (1) the acquisition of the Company by another entity by means
of a transaction or series of related transactions (including, without
limitation, any reorganization, merger, stock purchase or consolidation) or
(2) the sale, transfer or other disposition of all or substantially all of
the Company’s assets.
(v) In
all other respects, the stock options granted under this paragraph 4(c) shall
be
subject to the Plan.
(vi) In
addition to the stock options described above, the Executive will be eligible
to
receive stock, stock options, or other securities of the Company under plans
that are provided to other similar executives of the Company. Future grants,
if
any, will vest according to the terms at time of grant.
(d)
Other
Benefits.
The
fringe benefits, perquisites, and other benefits of employment to be provided
to
the Executive shall be equivalent to such benefits and perquisites as are
provided to other similar executives of the Company as amended from time to
time. The Executive’s Paid Time Off is defined and will accrue pursuant to the
Paid Time Off provisions of the Company’s Employee Handbook, except that the
Executive will be entitled to vacation of four (4) weeks during each year of
employment, which may be taken by the Executive upon prior notice in accordance
with the Company’s policies applicable to Company executives. In addition, the
Executive will be provided with accidental death and disability and long-term
disability insurance in amounts each no less than the Executive’s annual Base
Salary then in effect, or reimbursed for the reasonably equivalent cost of
a
private disability policy up to $1000 per month. If necessary, the Company
will
reimburse the Executive for COBRA coverage until such time as the Executive
is
covered under the Company’s group medical and dental plans.
(e)
Equipment.
Company
will provide Executive with a suitable notebook computer and related equipment
to enable Executive to conduct business from his New York home office. The
Company agrees to provide other personal computer equipment necessary for the
Executive to perform his duties upon submission of request by the Executive
and
approval by the Company. All equipment provided will remain the Company’s
property and the Executive agrees to provide the Company access to the equipment
immediately upon request due to regulatory requirements or any other reason.
(f)
Expenses.
The
Executive will be reimbursed for all reasonable and customary out-of-pocket
expenses actually incurred by him in the furtherance of his duties under this
Agreement. Such expenses shall be reimbursed upon submission to the Company
of
invoices containing original receipts for all such expenditures, and upon review
by the Company with respect to the reasonable nature and amount thereof.
Reasonable expenses include reimbursement for telephone charges for
business-related calls from the Executive’s New York home office and mobile
phone charges for business-related calls, provided that itemized invoices
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are
submitted within thirty (30) days of the Executive’s receipt of the
statement for those charges.
(g)
Commuting
Expenses.
The
Company shall reimburse the Executive for reasonable commuting expenses,
consistent with the Travel Policy in the Company’s Employee Handbook, between
the Executive’s Irvington, New York, residence and the Company’s Los Angeles,
California offices for a period of up to twelve (12) months from the
Effective Date.
(h)
Presence
in LA Office.
Executive agrees to spend at least one week per month at the Company’s Los
Angeles office located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, 00000.
(i)
Moving
Expenses.
Within
twelve (12) months from the Effective Date, Executive will have the
opportunity to relocate his and his immediate family’s one residence to Southern
California. The Company agrees to reimburse the Executive for the reasonable
expenses incurred in transporting his and his immediate family’s one household
and belongings from Irvington, New York to Los Angeles, California. The Company
further agrees to reimburse the Executive for the closing costs incurred by
the
Executive with respect to the sale of his New York residence and the purchase
of
his new residence in California. The Executive agrees to provide the Company
with an estimate of the cost for approval before the move, and after the move,
the Company will reimburse the Executive the actual costs paid.
5. Termination.
(a)
Employment
At-Will.
Executive’s employment with the Company is at-will, which means that either the
Executive or the Company can terminate it at any time, without notice, for
any
cause, or no cause. For purposes of this Agreement, a termination shall be
for
“Cause”
if
Executive, in the good faith opinion of the Company’s Board,:
(i) Commits
an act of fraud, moral turpitude, misappropriation of funds or embezzlement
in
connection with his duties;
(ii) Materially
breaches the Executive’s fiduciary duty to the Company, including, but not
limited to, acts of self-dealing (whether or not for personal profit);
(iii) Materially
breaches this Agreement, provided, however, that (A) no termination shall
occur on that basis unless, if the breach is curable, the Company first provides
the Executive with written notice to cure (the notice to cure shall reasonably
specify the acts or omissions that constitute the Executive’s material breach),
(B) the Executive shall have a reasonable opportunity (not to exceed
30 days after the date of notice to cure) to cure the breach and
(C) termination shall be effective as of the date of notice to cure;
(iv) Materially
breaches the Confidentiality Agreement or the Company’s written Codes of Ethics
as adopted by the Board;
(v) Materially
violates any provision of Company’s written Employee Handbook, or any applicable
state or federal law or regulation;
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(vi) Except
during a Disability Period, defined below, fails or refuses to comply with
all
relevant and material obligations, assumable and chargeable to an executive
of
his corporate rank and responsibilities, under the Xxxxxxxx-Xxxxx Act and the
regulations of the Securities and Exchange Commission promulgated thereunder;
(vii) Fails
or refuses to comply with the lawful directives of the Company in the
performance of his duties under this Agreement (except during a Disability
Period);
(viii) Engages
in willful misconduct that is materially injurious to the Company;
(ix) Uses
illegal substances, or excessively uses alcohol to a point of substantially
impairing his faculties, senses, or judgment, while on Company premises or
performing Company Business;
(x) Is
convicted of, or enter a plea of guilty or no contest to, a felony or
misdemeanor under state or federal law, other than a traffic violation or
misdemeanor not involving dishonesty or moral turpitude; or
(xi) Commits
an act of gross neglect or gross misconduct which the Company reasonably deems
to be good and sufficient cause.
(b)
Good
Reason.
For
purposes of this Agreement, a resignation shall be for “Good
Reason”
if
tendered by the Executive within thirty (30) days of any of the following
actions by or involving the Company:
(i) Assignment
to the Executive of duties materially inconsistent with the Executive’s status,
or a substantial reduction in the nature or status of the Executive’s
responsibilities;
(ii) After
the Executive’s relocation to Los Angeles, the relocation of the Executive’s
site of employment outside a 30 mile radius of Los Angeles without the
Executive’s consent, except for reasonably required travel on Company’s
Business;
(iii) Failure
to cause any acquiring or successor entity following a Change in Control to
assume the Company’s obligations under this Agreement, unless such assumption
occurs by operation of law;
(iv) Material
breach of this Agreement by the Company including failure to timely pay to
the
Executive any amount due under Section 3, which continues after written
notice and reasonable opportunity to cure (not to exceed 30 days after the
date of notice); or
(v) Demand
by the Company, Board, or any other senior executive that the Executive violate
any relevant and material obligations, assumable and chargeable to an executive
of his corporate rank and responsibilities, under the Xxxxxxxx-Xxxxx Act and
the
regulations of the Securities and Exchange Commission promulgated thereunder.
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(c)
Long
Term Disability.
If the
Executive becomes Disabled, the Company may terminate his employment if he
becomes Disabled upon thirty (30) days prior written notice to the
Executive. “Disabled”
means
the Executive is: (i) unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment, as
diagnosed by a reputable, independent physician, which can be expected to result
in death or can be expected to last for a continuous period of not less than
six
(6) months, or (ii) by reason of any medically determinable physical
or mental impairment, as diagnosed by a reputable, independent physician, which
can be expected to result in death or can be expected to last for a continuous
period of not less than six (6) months.
(d)
Death.
The
Executive’s employment shall terminate immediately upon the death of the
Executive.
6. Compensation
Upon Termination or Death, or During Disability.
(a)
Cause.
If the
Company terminates the Executive’s employment for Cause, the Company shall
continue to pay the Executive the Base Salary at the rate set forth in Section
4(a) through the date of termination of the Executive’s employment, together
with any benefits accrued under Section 4 through the date of termination
including, but not limited to, payment for accrued vacation days and
reimbursement for expenses (collectively, “Accrued
Obligations”).
Thereafter, the Company shall have no further obligation to the Executive under
this Agreement.
(b)
Termination
Without Cause by the Company.
If the
Company terminates the Executive’s employment without Cause as defined in
Section 5(a) of this Agreement, the Company shall pay the Executive an amount
equal to twelve (12) months of the Executive’s Base Salary at the rate in
effect at the date of termination of the Executive’s employment plus all Accrued
Obligations. In addition to any rights under COBRA, the term for continued
medical benefits provided by the Company to the Executive and his family shall
continue for a period of twelve (12) months from the date of termination without
Cause, provided that coverage will terminate sooner if the Executive becomes
eligible for coverage under another employer’s plan. Thereafter, the Company
shall have no further obligation to the Executive under this Agreement.
(c)
Termination
for Good Reason by the Executive.
If the
Executive terminates the Executive’s employment with Good Reason as defined in
Section 5(b) of this Agreement, the Company shall pay the Executive an amount
equal to twelve (12) months of the Executive’s Base Salary at the rate in
effect at the date of termination of the Executive’s employment plus all Accrued
Obligations. In addition to any rights under COBRA, the term for continued
medical benefits provided by the Company to the Executive and his family shall
continue for a period of twelve (12) months from the date of termination for
Good Reason, provided that coverage will terminate sooner if the Executive
becomes eligible for coverage under another employer’s plan. Thereafter, the
Company shall have no further obligation to the Executive under this Agreement.
(d)
Disability.
During
any period that the Executive fails to perform his full-time duties with the
Company as a result of becoming Disabled (the “Disability
Period”),
the
Executive shall continue to receive his Base Salary at the rate set forth in
Section 4(a) of this
7
Agreement
and all Accrued Obligations, less any compensation payable to the Executive
under the applicable disability insurance plan of the Company during such period
until this Agreement is terminated pursuant to Section 5(c). Thereafter,
the Executive’s benefits shall be determined under the Company’s insurance and
other compensation programs then in effect in accordance with the terms of
such
programs and the Company shall have no further obligation to the Executive
under
this Agreement.
(e)
Death.
In the
event of the Executive’s death, the Executive’s beneficiary shall be entitled to
receive the Base Salary at the rate set forth in Section 4(a) until the date
of
his death plus all Accrued Obligations. Thereafter, the Executive’s benefits
shall be determined under the Company’s insurance and other compensation
programs then in effect in accordance with the terms of such programs and the
Company shall have no further obligation to the Executive or the Executive’s
beneficiary under this Agreement.
7. Confidentiality.
(a) The
Executive will execute the Company’s standard Executive Innovation, Proprietary
Information and Confidentiality Agreement (“Confidentiality
Agreement”),
which
is incorporated herein by reference.
(b)
No
Solicitation of Employees.
During
employment with Company and for one (1) year thereafter the Executive will
not encourage or solicit any other employee of Company to terminate his or
her
employment or independent contractor who was involved in a project related
to
the Business, for any reason, nor will the Executive assist others to do so.
General advertisements and employment fairs shall not be construed as
solicitation for purposes of this Section.
(c)
No
Solicitation of Customers.
During
employment with Company and for one (1) year thereafter the Executive will
not, directly or indirectly call on, or otherwise solicit, business from any
actual customer or potential customer known by the Executive to be targeted
by
Company, nor will he assist others in doing so.
(d)
Disclosure
of Confidential Information:
Executive shall not accept employment with any direct competitor of Company
for
a period of one (1) year where it would be impossible for Executive to
perform his new job without using or disclosing trade secrets or confidential
information.
8. Insurance
and Indemnification.
(a) The
Company shall provide the Executive with officers and directors’ insurance, or
other liability insurance, consistent with its usual business practices, to
cover the Executive against all insurable events related to his employment
with
the Company.
(b) The
Company shall indemnify, hold harmless and pay the cost of defending the
Executive to the fullest extent permitted by applicable law in connection with
any claim, action, suit, investigation or proceeding arising out of or relating
to performance by the Executive of services for, or action of the Executive
as
an officer or employee of the Company, or of any other person or enterprise
at
the request of the Company. The Company shall also pay
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all
judgments, awards, settlement amounts and fines associated with the foregoing.
Reasonable legal cost and expenses incurred by the Executive relating to the
performance of his duties and responsibilities as an executive officer of the
Company and/or in defending a claim, action, suit or investigation or criminal
proceeding shall be paid by the Company in a timely manner upon the receipt
by
the Company of an undertaking by or on behalf of the Executive to repay said
amount if it shall ultimately be determined that the Executive is not entitled
to be indemnified by the Company for such legal fees and related costs;
provided, however, that this arrangement shall not apply to a non-derivative
action commenced by the Company against the Executive. The foregoing shall
be in
addition to any indemnification rights the Executive may have by law, charter,
by-law or otherwise. If the Company assumes responsibility for the defense
of an
action brought against the Executive (i) the Company may not agree to any
settlement without the Executive’s prior written approval (which shall not be
unreasonably withheld) and (ii) the Executive will fully cooperate with the
Company’s efforts in defense of the matter.
9. Miscellaneous.
(a)
Capacity.
The
Executive represents and warrants that he is not a party to any agreement that
would prohibit the Executive from entering into this Agreement or fully
performing the Executive’s obligations hereunder.
(b)
Notice.
All
notices of termination and other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
by hand or mailed by United States registered mail, return receipt requested,
addressed as follows:
If
to
the Company:
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxxxxx
With
a copy to:
Xxxxxx
Xxxxx & Xxxxx LLP
1620
26th
Street,
Xxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxx X. Xxxxxxxx, Esq.
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If
to
the Executive:
Xxxxxx
Xxxxxxxxx
00
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxx Xxxx 00000
With
a copy to:
Ellenoff
Xxxxxxxx & Schole, LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
or
to
such other address as either party may designate by notice to the other, which
notice shall be deemed to have been given upon receipt.
(c)
Severability.
The
invalidity or unenforceability of any provisions under particular facts and
circumstances will not affect the validity or enforceability either of other
provisions or, under other facts and circumstances, of such provisions. In
addition, such provisions will be reformed to be less restrictive if under
such
facts and circumstances they would then be valid and enforceable.
(d)
Governing
Law.
The
validity, construction and performance will be governed by the laws, without
regard to the laws as to choice or conflict of laws, of the State of California.
(e)
Arbitration.
Any
dispute, controversy or claim arising out of or relating to this Agreement,
or
the Executive’s relationship with the Company or its affiliates, including
without limitation any claims of wrongful termination or employment
discrimination (whether based on age, gender, race, color, religion or any
other
protected class), and the issue of arbitrability of any claims, will be
submitted to and resolved by final and binding arbitration before a retired
judge at Judicial Arbitration and Mediation Services, Inc. (“JAMS”)
or its
successor in Santa Monica, California, under applicable JAMS rules. To the
maximum extent permitted by applicable law, the prevailing party will be awarded
its arbitration, attorney and expert witness fees, costs and expenses. Judgment
on any interim or final award of the arbitrator may be entered in any court
of
competent jurisdiction.
(f)
Headings.
The
sections and other headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation
of
this Agreement.
(g)
Waiver.
No
waiver by either party of a breach of any provision will be construed as a
waiver of any subsequent or different breach, and no forbearance by a party
to
seek a remedy for noncompliance or breach by the other party will be construed
as a waiver of any right or remedy with respect to such noncompliance or breach.
All waivers shall be in writing and signed by the party to be charged therewith.
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(h)
Amendment.
This
Agreement may be amended, modified or supplemented only by a writing executed
by
Executive and the Chairman, President or CEO of the Company.
(i)
Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same instrument.
(j)
Entire
Agreement.
This
Agreement and Schedule I hereto are the only agreement and understanding
between the parties, and supersedes all prior and contemporaneous agreements,
summaries of agreements, descriptions of compensation packages, discussions,
negotiations, understandings, representations or warranties, whether verbal
or
written, between the parties pertaining to such subject matter.
(k)
Authority.
The
Company hereby represents and warrants to the Executive that the Company has
full corporate power and authority to execute and deliver this Agreement and
to
perform the transactions contemplated hereby and thereby. The execution,
delivery, and performance by the Company of the Agreement have been duly
authorized and approved by all requisite corporate action on the part of the
Company.
(l)
Attorney
Fees.
The
Company hereby agrees to reimburse the Executive up to ten thousand dollars
($10,000) for all reasonable legal fees and costs incurred by the Executive
in
the negotiation and preparation of this Agreement regardless of whether this
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Agreement
is executed by the parties.
10. Effective
Date.
The
parties agree that the Effective Date shall be August ,
2007,
or on the date as soon thereafter as the Board approves this Agreement.
Agreed
to:
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Executive:
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By:
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Xxxxxx
Xxxxxxxxx
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Xxxxxx
X. Xxxxxxxxxx
President
& Chief Operating
Officer
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BOARD
APPROVAL DATE: August 10, 2007
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