EXHIBIT 10.13
AGREEMENT
THIS AGREEMENT ("Agreemenf"), dated and effective as of October 18,
2006, by and between Xxxxxx Xxxxxx and MEMS USA, Inc. ("MEMS").
WHEREAS, MEMS desires to have Xxxxxx Xxxxxx serve as a member of the
MEMS Board of Directors and Xxxxxx Xxxxxx desires to serve as a member of MEMS
Board of Directors, the parties agree as follows:
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2. Xxxxxx Xxxxxx accepts the position as a member of the Board of
Directors of MEMS:
3. MEMS shall at all times maintain Directors and Officers
Insurance (the "Policy") coverage in an amount of not less
than $5.000,000.00. The Policy shall include Xxxxxx Xxxxxx as
an insured. MEMS shall immediately notify Xxxxxx Xxxxxx if the
policy lapses for any reason. MEMS shall immediately provide a
copy of the Policy to Xxxxxx Xxxxxx:
4. MEMS agrees to pay to Xxxxxx Xxxxxx the sum of $20,000.00 as
soon as funds are available;
5. In addition, MEMS agrees to pay Xxxxxx Xxxxxx the sum of
$4,000.00 per month payable on the first day of each month as
long as Xxxxxx Xxxxxx is a member of MEMS Board of Directors;
6. If Xxxxxx Xxxxxx makes more than 3 trips (outside of the
greater Houston Texas area) to attend meetings on MEMS
business. MEMS shall pay Xxxxxx Xxxxxx an additional $2,000.00
per trip;
7. MEMS shall pay Xxxxxx Xxxxxx $250.00 per hour for work
performed for MEMS over and above time spent on trips to
attend meetings on MEMS business. MEMS shall pay Xxxxxx
Xxxxxx'x invoices for this hourly work within 30 days from
MEMS receipt of Xxxxxx Xxxxxx'x invoice:
8. MEMS shall pay all of Xxxxxx Xxxxxx'x travel expenses for
trips (outside of the greater Houston Texas area) to attend
meetings on MEMS business as follows: airfare shall be paid
directly by MEMS; hotel, food, rental car and parking shall be
paid or reimbursed according to MEMS travel cost reimbursement
policy in effect for MEMS officers at the time of the travel;
5.
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9. MEMS shall, as soon as possible, issue to Xxxxxx Xxxxxx
cashless options (the "Options") for 300,000 shares of MEMS
common stock. The Option period shall be 60 months from the
date of this Agreement and some or all of the Options may be
exercised at any time within the Option Period. The Options
shall vest immediately. The Options shall be adjusted to
reflect changes to the common stock such as, but not limited
to: stock splits, mergers, recapitalization, reorganization,
sale of assets or other occurrence that would change the
number of shares that a shareholder holds:
10. The parties agree that Xxxxxx Xxxxxx is NOT being employed as
an attorney and that Xxxxxx Xxxxxx is NOT representing MEMS in
his capacity as an attorney.
11. Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by all parties.
12. No failure or delay by any party in exercising any right or
privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other
right. power or privilege. To the maximi.nn extent permitted
by Law. (a) no waiver that may be given by a party shall be
applicable except in the specific instance for which it was
given and (b) no notice to or demand on one party shall be
deemed to be a waiver of any obligation of such party or the
right of the party giving such notice or demand to take
further action without notice or demand.
13. The terms and provisions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their
respective executors, heirs, personal representatives,
successors and assigns.
14. This Agreement may be executed in any number of counterparts.
and any party hereto may execute any such counterpart. each of
which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall
constitute but one and the same instrument.
15. This Agreement sets forth the entire understanding of the
parties. Any and all previous agreements and understandings
between or among the parties regarding the subject matter
hereof whether written or oral, are superseded by this
Agreement.
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16. Any provision of this Agreement that is invalid or
unenforceable shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or
rendering unenforceable the remaining provisions hereof.
17. Any rule of construction or interpretation otherwise requiring
this Agreement to be construed or interpreted against any
party by virtue of the authorship of this Agreement shall not
apply to the construction and interpretation hereof and
thereof,
18. The prevailing party in litigation regarding this Agreement
shall be entitled to an award of reasonable attorney fees and
costs.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed to be effective as of the date first above written.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
MEMS USA, INC.
By: /S/ Xxxxx X. Xxxxx 10/23/06
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Name: Xxxxx X. Xxxxx
Title: Chairman, CEO and President and
Member of the Board of Directors
By: /s/ Xxxxxx X. Xxxxxxxxxxx 10/23/06
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Name: Xxxxxx X. Xxxxxxxxxxx
Member of the Board of Directors
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