EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of June 30, 2008 (the
“Effective Date”), is by and between InovaChem, Inc., a Delaware corporation
(together with its subsidiaries, the “Company” or “InovaChem”), and Xxxxxxxx Xx,
(the “Executive”).
WITNESSETH:
WHEREAS,
the Company now desires to employ the Executive as the Company’s Vice President
& Corporate Secretary; and
WHEREAS,
the Executive desires to serve as the Vice President & Corporate Secretary;
and
NOW
THEREFORE, in consideration of the mutual benefits to be derived from this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Term
of Employment; Office and Duties.
(a) Commencing
on the Effective Date (the “Employment Date”), and for an initial term ending on
December 31, 2010 (the “Initial Term”), the Company shall employ the Executive
as a senior executive of
the
Company with the title of Vice President & Corporate Secretary. As Vice
President & Corporate Secretary, Executive shall perform all duties and
responsibilities which are consistent with the positions and such additional
duties and responsibilities consistent with such positions as may from time
to
time be assigned to the Executive by the Board of Directors. Executive agrees
to
perform such duties and discharge such responsibilities in accordance with
the
terms of this Agreement. This Agreement shall be automatically renewed for
an
additional one (1) year term (the “Renewal Period”) unless the Company notifies
the Executive ninety (90) days prior to the expiration of the Agreement of
the
Company’s intention not to renew the Agreement. The Initial Term and any Renewal
Period that has commenced, as the same may be sooner terminated, shall be
collectively referred to herein as the “Term” in effect as of the relevant
time.
2. Compensation
and Benefits.
The
Company is in the process of offering securities (the “Private Offering”), per
the Executive Summary dated March 14, 2008, to a limited number of accredited
investors. All compensation and benefits listed below will begin to accrue
with
the completion of the Private Offering. Following the completion of the Private
Offering, and at the sole discretion of the Board, Executive’s compensation will
begin to be paid at a percentage and time in keeping with the Company’s
financial situation.
For
all
services rendered by the Executive in any capacity during the period of
Executive’s employment by the Company, including without limitation, services as
an executive officer or member of any committee of the Board of Directors or
any
subsidiary, affiliate or division thereof, from and after the Effective Date,
the Executive shall be compensated as follows:
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(a) Base
Salary.
The
Company shall pay the Executive a fixed salary (“Base Salary”) at a rate of One
Hundred Thousand US Dollars (US $100,000) per year. The Board of Directors
may
periodically review the Executive’s Base Salary and may determine to increase
(but not decrease) the Executive’s salary, in accordance with such policies as
the Company may hereafter adopt from time to time, if it deems appropriate.
A
portion of the Base Salary will be payable in accordance with the customary
payroll practices of the Company and a portion of the Base Salary in the sole
discretion of the Board, will be deferred and paid at such time as the Company’s
financial situation permits as determined by the Board of Directors.
(b) Bonus.
Executive is entitled to receive an annual bonus (the “Annual Bonus”), payable
each year subsequent to the issuance of final audited financial statements,
but
in no case later than 120 days after the end of the Company’s most recently
completed fiscal year. The final determination on the amount of the Annual
Bonus
will be made by the Compensation Committee of the Board of Directors, based
primarily on mutually agreed upon criteria, established with respect to the
ensuing fiscal year, within thirty (30) days following the adoption by the
Board
of Directors of a budget relating to the ensuing year. Criteria for the Annual
Bonus for 2008 shall be agreed upon prior to or within sixty (60) days after
the
execution of this Agreement. The Compensation Committee may also consider other
more subjective factors in making its determination. The targeted amount of
the
Annual Bonus shall be fifty percent (50%) of the Executive’s base salary. The
actual Annual Bonus for any given period may be higher or lower than fifty
percent (50%). For any fiscal year in which Executive is employed for less
than
the full year, Executive shall receive a bonus which is prorated based on the
number of full months in the year which are worked.
(c) Fringe
Benefits, Option Grants and Miscellaneous Employment Matters.
(i) The
Executive shall be entitled to participate in such disability, health and life
insurance and other fringe benefit plans or programs offered to all employees
of
the Company, as well as to the key executive employees of Company, including
a
Section 401(k) and retirement plan of the Company as may be established from
time to time by the Board of Directors, subject to the rules and regulations
applicable thereto. At the Executive's option, in lieu of providing group
medical benefits, the Company will reimburse the Executive for health insurance
premium payments made by the Executive. Upon termination of Executive's coverage
under such private supplemental health insurance policy, he shall have the
option of enrolling in the Company's group plan or converting his prior coverage
to an individual policy, at which time the Company would reimburse him for
an
amount equal to its monthly cost of covering Executive under its plan, and
Executive would pay any additional amounts necessary to provide individual
coverage. In addition, the Executive shall be entitled to the following
benefits:
(ii) Contemporaneous
with the execution of this Employment Agreement, Executive received a grant
(the
“Stock Option Grant”) of stock options (the “Stock Options”) to purchase
100,000
shares at an exercise price equal to
the
closing transaction price of the Company’s Common Stock on the last trading day
preceding execution of this Employment Agreement.
If the
Company’s common stock is not trading at the effective date of this Agreement,
then the exercise price shall equal the fair market value of the Company’s
Common Stock as determined by the Board of Directors in its reasonable
discretion. The Stock Options shall have a term of ten (10) years, shall become
exercisable when vested, and shall vest pro rata in twelve equal quarterly
installments (1/12th each at the end of each fiscal quarter), with the first
installment vesting on June 30, 2008. Notwithstanding the foregoing, the Stock
Options shall terminate ninety (90) days following a termination of the
Executive for “Cause” or upon the voluntary termination of service by the
Executive that is not for “Good Reason.”
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(iii) Contemporaneous
with the execution of this Employment Agreement, the Executive shall receive
a
grant of 100,000 shares of the Company's Common Stock.
(d) Withholding
and Employment Tax.
Payment
of all compensation hereunder shall be subject to customary withholding tax
and
other employment taxes as may be required with respect to compensation paid
by
an employer/corporation to an employee.
(e) Disability.
The
Company shall provide the Executive with a policy of disability insurance
benefits of at least sixty percent (60%) of his gross Base Salary per month.
To
the extent permitted by the Company’s existing disability policy, the
Executive’s disability policy will be a portable policy. The Executive agrees to
pay for any additional premium payments resulting from providing a portable
policy (in comparison to a group policy) and further agrees to have the
additional premium payments deducted from his pay. In the event of the
Executive’s Disability (as hereinafter defined), the Executive and his family
shall continue to be covered by all of the Company’s life, medical, health and
dental plans, at the Company’s expense, to the extent such benefits can be
obtained at a reasonable cost, for the lesser of the term of such Disability
(as
hereinafter defined) or eighteen (18) months, in accordance with the terms
of
such plans.
(f) Death.
The
Company shall provide the Executive with a policy of term life insurance
benefits in the amount of at least One Million United States Dollars (US
$1,000,000). To the extent permitted by the Company’s existing life insurance
policy, the Executive’s life insurance policy will be a portable policy. The
Executive agrees to pay for any additional premium payments resulting from
providing a portable policy (in comparison to a group policy) and further agrees
to have the additional premium payments deducted from his pay. In the event
of
the Executive’s death, the Executive’s family shall continue to be covered by
all of the Company’s medical, health and dental plans, at the Company’s expense,
to the extent such benefits can be obtained at a reasonable cost, for eighteen
(18) months following the Executive’s death in accordance with the terms of such
plans.
(g) Vacation.
Executive shall receive four (4) weeks of vacation annually, administered in
accordance with the Company’s existing vacation policy.
3. Business
Expenses.
The
Company shall pay or reimburse all reasonable travel and entertainment expenses
incurred by the Executive in connection with the performance of his duties
under
this Agreement, including travel to offices and facilities in the United States
and abroad, reimbursement for attending out-of-town meetings of the Board of
Directors, and such other travel as may be required or appropriate in
Executive’s discretion, consistent with duly approved Company budgets, to
fulfill the responsibilities of his office, all in accordance with such policies
and procedures as the Company may from time to time establish for senior
officers and as required to preserve any deductions for federal income taxation
purposes to which the Company may be entitled and subject to the Company’s
normal requirements with respect to reporting and documentation of such
expenses. The Company shall also pay or reimburse Executive for all membership
fees and dues in appropriate professional associations and organizations
utilized by Executive in the course of his service for the Company, as well
as
all expenses incurred by the Executive for Executive’s cellular telephone and
portable text messaging including monthly service charges, equipment maintenance
and all other ancillary charges including, but not limited to, text messaging,
paging, and wireless communications.
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4. Termination
of Employment.
Notwithstanding
any other provision of this Agreement, Executive’s employment with the Company
may be terminated upon written notice to the other party as
follows:
(a) By
the
Company, in the event of the Executive’s death or Disability (as hereinafter
defined) or for Cause (as hereinafter defined). For purposes of this Agreement,
“Cause” shall mean either: (i) the indictment of, or the bringing of formal
charges against Executive on charges involving criminal fraud or embezzlement;
(ii) the conviction of Executive of a crime involving an act or acts of
dishonesty, fraud or moral turpitude by the Executive, which act or acts
constitute a felony; (iii) Executive negligently or knowingly having caused
the
Company to violate the Company’s Bylaws; (iv) Executive having committed acts or
omissions constituting gross negligence or willful misconduct with respect
to
the Company, including with respect to any valid contract to which the Company
is a party; (v) Executive having committed acts or omissions constituting a
breach of Executive’s duty of loyalty or fiduciary duty to the Company or any
material act of dishonesty or fraud with respect to the Company which are not
cured or substantially cured to the satisfaction of the Board of Directors
of
the Company in a reasonable time, which time shall be at least 30 days from
receipt of written notice from the Company of such material breach; (vi)
Executive having committed acts or omissions constituting a material breach
of
this Agreement which are not cured or substantially cured to the satisfaction
of
the Board of Directors of the Company in a reasonable time, which time shall
be
at least 30 days from receipt of written notice from the Company setting forth
with specificity the particulars of any such material breach as well as the
corrective actions required. A determination that Cause exists as defined in
clauses (iv), (v), or (vi) (as to this Agreement) of the preceding sentence
shall be made by at least a majority of the members of the Board of Directors.
For purposes of this Agreement, “Disability” shall mean the inability of
Executive, in the reasonable judgment of a physician jointly appointed by the
Executive and Board of Directors, to perform, even with reasonable
accommodation, his duties of employment for the Company or any of its
subsidiaries because of any physical or mental disability or incapacity, where
such disability shall exist for an aggregate period of more than 120 days in
any
365-day period or for any period of 90 consecutive days. The Company shall
by
written notice to the Executive specify the event relied upon for termination
pursuant to this Section 4(a), and Executive’s employment hereunder shall be
deemed terminated as of the date of such notice. In the event of any termination
under this Subsection 4(a), the Company shall pay all amounts then due to the
Executive under Section 2 (a) of this Agreement for any portion of the payroll
period worked but for which payment had not yet been made up to the date of
termination, and, if such termination was for Cause, the Company shall have
no
further obligations to Executive under this Agreement, and any and all options
granted hereunder shall terminate according to their terms; provided, however,
that in the event of a termination for Cause pursuant to clause (vi) above,
the
Company shall continue to pay to Executive the Base Salary (at a monthly rate
equal to the rate in effect immediately prior to such termination) for nine
(9)
months from the date of termination, when, as and if such payments would have
been made in the absence of Executive’s termination and any and all options
granted hereunder shall terminate according to their terms. In the event of
a
termination due to Executive’s Disability or death, the Company shall comply
with its obligations under Sections 2(f) and 2(g).
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(b) By
the
Company, in the absence of Cause, for any reason and in its sole and absolute
discretion, provided that in such event the Company shall, as liquidated damages
or severance pay, or both, continue to pay to Executive the Base Salary (at
a
monthly rate equal to the rate in effect immediately prior to such termination)
for the longer of (x) the remaining Term or (y) twelve (12) months from the
date
of termination (the “Termination Payments”), when, as and if such payments would
have been made in the absence of Executive’s termination. The Termination
Payments shall be made regardless of Executive’s subsequent re-employment as
long as any new employment is not in violation of Sections 5 or 6 of this
Agreement.
(c) By
the
Executive for “Good Reason,” (as the Executive shall reasonably determine in
good faith) which shall be deemed to exist: (i) if the Company’s Board of
Directors or that of any successor entity of the Company fails to appoint or
reappoint the Executive or removes the Executive from the title and/or office
of
Vice
President & Corporate Secretary of the Company or from any successor entity
operating the Company; (ii) if the Company’s Board of Directors or that of any
successor entity of the Company fails to appoint the Executive to serve on
the
Board of Directors within thirty (30) days of the Employment Date or fails
to
renominate the Executive to serve on the Board of Directors; (iii) if Executive
is assigned any duties materially inconsistent with the duties or
responsibilities of the Vice President & Corporate Secretary of the Company
as contemplated by this Agreement or any other action by the Company that
results in a material diminution in such position, authority, duties, or
responsibilities, excluding an isolated, insubstantial, and inadvertent action
not taken in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive (but not excluding changes
resulting from a sale of the Company, whether by merger, tender offer or
otherwise) provided that Executive shall act within 30 days of becoming aware
of
any such diminution in the scope of his duties, responsibilities, authority
or
position; (iv) if the Company shall breach or shall have continued to fail
to
comply with any material provision of this Agreement after a 30-day period
to
cure (if such failure is curable) following written notice to the Company of
such non-compliance; or (v) upon a change in control of the Company or within
twelve (12) months of any such change in control (for these purposes the term
“change in control” shall have the meaning set forth in Rule 405 of the
Securities Act of 1933), or within twelve (12) months of a sale of substantially
all of the assets of the Company or the merger out of existence of the Company.
In the event of any termination for “Good Reason” under this Section 4(c), the
Company shall, as liquidated damages or severance pay, or both, pay the
Termination Payments, as defined in (b) of this Section 4, to Executive,
when,
as
and if such payments would have been made in the absence of Executive’s
termination.
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(d) During
any period in which Executive is obligated not to compete with the Company
pursuant to Section 5 hereof (unless Executive was terminated for Cause as
defined herein), Executive and his family shall continue to be covered by the
Company’s life, medical, health and death plans. Such coverage shall be at the
Company’s expense to the same extent as if Executive were still employed by the
Company. In the event of a termination pursuant to Sections 4(b) or 4(c), the
Company shall provide to Executive the pro-rata share of his annual bonus,
to
the extent one is awarded by the Compensation Committee the consideration of
which shall be taken in good faith, giving a full month’s credit for any partial
month worked in that bonus year. Additionally, in the event of a termination
pursuant to Sections 4(b) or 4(c), the Company shall provide to Executive,
at
the Company’s expense, outplacement services of a nature customarily provided to
a senior executive. Notwithstanding the foregoing, the obligations of the
Company pursuant to this Section 4(d) shall remain in effect no longer than
the
term of the Termination Payments.
(e) In
the
event that any amounts payable and/or any benefits provided to the Executive
under the terms of this Agreement and/or under any other plan, agreement or
arrangement by which he is to receive payments or benefits in the nature of
compensation would constitute “excess parachute payments” as that term is
defined for purposes of Section 280G of the Internal Revenue Code of 1986,
as
amended (“Code”) and Treasury Regulations promulgated pursuant thereto, then the
amounts payable under the terms of this Agreement and/or under any other plan,
agreement or arrangement shall be reduced so that no payments are deemed “excess
parachute payments.” Any decisions regarding this requirement or implementation
of reductions shall be made by tax counsel selected by the Company.
(f) If
any
payment to Executive under the terms of this Agreement is determined to
constitute a payment of nonqualified deferred compensation for purposes of
Section 409A of the Code, such payment shall be delayed until the date that
is
six months after the date of Executive’s separation from service with the
Company, so as to comply with the special rule for certain “specified employees”
set forth in Code Section 409A(a)(2)(B)(i) unless it is determined that
immediate distribution is permissible (and does not trigger any additional
tax
liability pursuant to Code Section 409A(a)(1)) pursuant to Code Section
409A(a)(2)(A)(v) by reason of being payable in connection with a change in
the
ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company.
(g) The
Executive agrees that as of or following the termination of the Executive’s
employment for any reason or for no reason, he shall immediately resign as
a
member of the Company’s Board of Directors if so requested by the
Company.
5. Non-Competition.
During
the period of Executive’s employment hereunder and during the period, if any,
during which payments are required to be made to the Executive by the Company
pursuant to Sections 4(b) or 4(c), the Executive shall not, within any state
or
foreign jurisdiction in which the Company or any subsidiary of the Company
is
then providing services or products or marketing its services or products (or
engaged in active discussions to provide such services), or within a fifty
(50)
mile radius of any such state or foreign jurisdiction, directly or indirectly
own any interest in, manage, control, participate in, consult with, render
services for, or in any manner engage in any business engaged in by the Company
(unless the Board of Directors shall have authorized such activity and the
Company shall have consented thereto in writing). Investments in less than
five
percent of the outstanding securities of any class of a corporation subject
to
the reporting requirements of Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, shall not be prohibited by this Section 5.
At
the option of Executive, Executive’s obligations under this Section 5 arising
after the termination of Executive shall be suspended during any period in
which
the Company fails to pay to him Termination Payments required to be paid to
him
pursuant to this Agreement. The provisions of this Section 5 are subject to
the
provisions of Section 14 of this Agreement.
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6. Inventions
and Confidential Information.
The
parties hereto recognize that a major need of the Company is to preserve its
specialized knowledge, trade secrets, and confidential information. The strength
and good will of the Company is derived from the specialized knowledge, trade
secrets, and confidential information generated from experience with the
activities undertaken by the Company and its subsidiaries. The disclosure of
this information and knowledge to competitors would be beneficial to them and
detrimental to the Company, as would the disclosure of information about the
marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, and similar items of the Company and
its
subsidiaries. The Executive acknowledges that the proprietary information,
observations and data obtained by him while employed by the Company concerning
the business or affairs of the Company are the property of the Company. By
reason of his being a senior executive of the Company, the Executive has or
will
have access to, and has obtained or will obtain, specialized knowledge, trade
secrets and confidential information about the Company’s operations and the
operations of its subsidiaries, which operations extend throughout the United
States. For purposes of this Section 6, “Company” shall mean the Company and
each of its controlled subsidiaries. Therefore, subject to the provisions of
Section 14 hereof, the Executive hereby agrees as follows, recognizing that
the
Company is relying on these agreements in entering into this
Agreement:
(i) During
the period of Executive’s employment with the Company and thereafter, the
Executive will not use, disclose to others, or publish or otherwise make
available to any other party any inventions or any confidential business
information about the affairs of the Company, including but not limited to
confidential information concerning the Company’s products. “Confidential
Information” shall include commercial or trade secrets about Company’s products,
methods, engineering designs and standards, analytical techniques, technical
information, customer information, employee information, or financial and
business records, any of which contains proprietary information created or
acquired by the Company and which information is held in confidence by Company.
Confidential Information does not include information which: (i) becomes
generally available to the public, unless said Confidential Information was
disclosed in violation of a confidentiality agreement; or (ii) becomes available
to Executive on a non-confidential basis from a source other than the Company
or
its agents, provided that such source is not bound by a confidentiality
agreement with the Company.
(ii) During
the period of Executive’s employment with the Company and for twelve (12) months
thereafter, (a) the Executive will not directly or indirectly through another
entity induce any employee of the Company to leave the Company’s employ (unless
the Board of Directors shall have authorized such employment and the Company
shall have consented thereto in writing) or in any way interfere with the
relationship between the Company and any employee thereof or (b) tortiously
interfere with the Company’s business relationship with any customer, supplier,
licensee, licensor or other business relation of the Company.
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7. Indemnification.
The
Company will indemnify (and advance the costs of defense of) and hold harmless
the Executive (and his legal representatives) to the fullest extent permitted
by
the laws of the state in which the Company is incorporated, as in effect at
the
time of the subject act or omission, or by the Certificate of Incorporation
and
Bylaws of the Company, as in effect at such time or on the date of this
Agreement, whichever affords greater protection to the Executive, and the
Executive shall be entitled to the protection of any insurance policies the
Company may elect to maintain generally for the benefit of its executive
officers, against all judgments, damages, liabilities, costs, charges and
expenses whatsoever incurred or sustained by him or his legal representative
in
connection with any action, suit or proceeding to which he (or his legal
representatives or other successors) may be made a party by reason of his being
or having been an officer of the Company or any of its subsidiaries except
that
the Company shall have no obligation to indemnify Executive for liabilities
resulting from conduct of the Executive with respect to which a court of
competent jurisdiction has made a final determination that Executive committed
gross negligence or willful misconduct.
8. Litigation
Expenses.
In
the
event of any litigation or other proceeding between the Company and the
Executive with respect to the subject matter of this Agreement and the
enforcement of the rights hereunder, the losing party shall reimburse the
prevailing party for all of his/its reasonable costs and expenses relating
to
such litigation or other proceeding, including, without limitation, his/its
reasonable attorneys’ fees and expenses.
9. Consolidation;
Merger; Sale of Assets; Change of Control.
Nothing
in this Agreement shall preclude the Company from combining, consolidating
or
merging with or into, transferring all or substantially all of its assets to,
or
entering into a partnership or joint venture with, another corporation or other
entity, or effecting any other kind of corporate combination provided that
the
corporation resulting from or surviving such combination, consolidation or
merger, or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of the
Company hereunder. Upon such a consolidation, merger, transfer of assets or
formation of such partnership or joint venture, this Agreement shall inure
to
the benefit of, be assumed by, and be binding upon such resulting or surviving
transferee corporation or such partnership or joint venture, and the term
“Company,” as used in this Agreement, shall mean such corporation, partnership
or joint venture or other entity, and this Agreement shall continue in full
force and effect and shall entitle the Executive and his heirs, beneficiaries
and representatives to exactly the same compensation, benefits, perquisites,
payments and other rights as would have been their entitlement had such
combination, consolidation, merger, transfer of assets or formation of such
partnership or joint venture not occurred.
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10. Survival
of Obligations.
Sections
4, 5, 6, 7, 8, 9, 11, 12 and 14 shall survive the termination for any reason
of
this Agreement (whether such termination is by the Company, by the Executive,
upon the expiration of this Agreement or otherwise).
11. Executive’s
Representations.
The
Executive hereby represents and warrants to the Company that to the best of
his
knowledge: (i) the execution, delivery and performance of this Agreement by
the
Executive do not and shall not conflict with, breach, violate or cause a default
under any contract, agreement, instrument, order, judgment or decree to which
the Executive is a party or by which he is bound, (ii) the Executive is not
a
party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall
be
the valid and binding obligation of the Executive, enforceable in accordance
with its terms. The Executive hereby acknowledges and represents that he has
consulted with legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
12. Company’s
Representations.
The
Company hereby represents and warrants to the Executive that (i) the execution,
delivery and performance of this Agreement by the Company do not and shall
not
conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Company is a party or by
which it is bound; (ii) upon the execution and delivery of this Agreement by
the
Executive, this Agreement shall be the valid and binding obligation of the
Company, enforceable in accordance with its terms; and (iii) the Company’s
representations made by the Board of Directors and members of senior management
to the Executive prior to the execution of this Agreement regarding the science,
business or fiscal propriety of the Company are accurate in all material
respects.
13. Enforcement.
Because
the Executive’s services are unique and because the Executive has access to
confidential information concerning the Company, the parties hereto agree that
money damages would not be an adequate remedy for any breach of this Agreement.
Therefore, in the event of a breach of this Agreement, the Company may, in
addition to other rights and remedies existing in its favor, apply to any court
of competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violations of, the provisions hereof
(without posting a bond or other security).
14. Severability.
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In
case
any one or more of the provisions or part of a provision contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect in any jurisdiction, such invalidity, illegality or
unenforceability shall be deemed not to affect any other provision or part
of a
provision of this Agreement, nor shall such invalidity, illegality or
unenforceability affect the validity, legality or enforceability of this
Agreement or any provision or provisions hereof in any other jurisdiction;
and
this Agreement shall be reformed and construed in such jurisdiction as if such
provision or part of a provision held to be invalid or illegal or unenforceable
had never been contained herein and such provision or part reformed so that
it
would be valid, legal and enforceable in such jurisdiction to the maximum extent
possible. In furtherance and not in limitation of the foregoing, the Company
and
the Executive each intend that the covenants contained in Sections 5 and 6
shall
be deemed to be a series of separate covenants, one for each and every state
of
the United States and any foreign country set forth therein. If, in any judicial
proceeding, a court shall refuse to enforce any of such separate covenants,
then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit
the
remaining separate covenants to be enforced in such proceedings. If, in any
judicial proceeding, a court shall refuse to enforce any one or more of such
separate covenants because the total time, scope or area thereof is deemed
to be
excessive or unreasonable, then it is the intent of the parties hereto that
such
covenants, which would otherwise be unenforceable due to such excessive or
unreasonable period of time, scope or area, be enforced for such lesser period
of time, scope or area as shall be deemed reasonable and not excessive by such
court.
15. Entire
Agreement: Amendment.
This
Agreement sets forth the entire agreement and understanding of the parties
hereto with respect to the matters covered hereby and supersedes any prior
agreement or understanding. This Agreement may not be amended, waived, changed,
modified or discharged except by an instrument in writing executed by or on
behalf of the party against whom enforcement of any amendment, waiver, change,
modification or discharge is sought. No course of conduct or dealing shall
be
construed to modify, amend or otherwise affect any of the provisions
hereof.
16. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given: if physically delivered,
upon delivery; if delivered by express mail or other expedited service, upon
delivery; or if mailed, postage prepaid, via certified mail, return receipt
requested, upon receipt; addressed as follows:
|
(a)
|
To
the Company:
|
(b)
|
To
the Executive:
|
|
InovaChem
c/o
Polymed
|
Xxxxxxxx
Xx
c/o
Polymed
|
||
|
0000
Xxxx Xxx Xxxx. #0000
Xxxxxxx,
XX 00000
|
0000
Xxxx Xxx Xxxx. #0000
Xxxxxxx,
XX 00000
|
.
10
and
/ or
to such other persons and addresses as any party shall have specified in writing
to the other pursuant to this provision
17. Assignability.
This
Agreement shall not be assignable by either party and shall be binding upon,
and
shall inure to the benefit of, the heirs, executors, administrators, legal
representatives, successors and assigns of the parties. In the event that all
or
substantially all of the business of the Company is sold or transferred, then
this Agreement shall be binding on the transferee of the business of the Company
whether or not this Agreement is expressly assigned to the
transferee.
18. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Texas.
19. Waiver
and Further Agreement.
Any
waiver of any breach of any terms or conditions of this Agreement shall not
operate as a waiver of any other breach of such terms or conditions or any
other
term or condition, nor shall any failure to enforce any provision hereof operate
as a waiver of such provision or of any other provision hereof. Each of the
parties hereto agrees to execute all such further instruments and documents
and
to take all such further action as the other party may reasonably require in
order to effectuate the terms and purposes of this Agreement.
20. Headings
of No Effect.
The
paragraph headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Agreement.
11
IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as
of the date first above written.
| COMPANY: | ||
| INOVACHEM, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxx | |
|
Xxxxxxx Xxx, Chairman & Chief Executive Officer |
||
| EXECUTIVE: | ||
| |
|
|
| By: | /s/ Xxxxxxxx Xx | |
|
Xxxxxxxx Xx |
||
12
