EMPLOYMENT AGREEMENT
THIS
AGREEMENT, made this 1 st day of July, 2008, by RegenoCELL Therapeutics, Inc.
("Company" or "RCT"), a Florida corporation and Xxxxx X. Xxxxxxxxx, an
individual residing at 0 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx (hereinafter called
"Executive").
WITNESSETH:
Company
wishes to employ Executive, Executive wishes to enter into the employ of Company
on the terms and conditions contained in this Agreement.
WHEREAS,
Company desires to employ Executive as its President and Chief Executive Officer
("CEO") and Executive desires to be employed by the Company, upon the terms
and
conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the facts, mutual promises and covenants
contained herein and intending to be legally bound hereby, Company and Executive
agree as follows:
| 1. |
Definitions.
As used herein, the following terms shall have the meanings set forth
below unless the context otherwise requires.
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(a) "Affiliate"
shall
mean a person or entity who (i) with respect to any entity, directly or
indirectly through one or more intermediaries, controls, or is controlled by,
or
is under common control with, such entity; or (ii) with respect to Executive,
is
a parent, spouse or issue of Executive, including persons in an adopted or
step
relationship.
(b) "Base
Compensation"
shall
mean the annual rate of compensation set forth in Section 5(a), as such amount
shall be adjusted as required by Section 5(a).
(c) "Board"
shall
mean the Board of Directors of Company.
(d) "Business"
shall
mean the business conducted by Company as of the date of execution of this
Agreement, including business activities in developmental stages, business
activities which may be developed by Company, or any Subsidiary or corporate
parent thereof or entity sharing a common corporate parent with the Company,
during the period of Executive's employment by Company, and all other business
activities which flow from a commercially reasonable expansion of any of the
foregoing.
(e) "Cause"
shall
include but not be limited to any one or more of the following:
(i) Executive
materially breaches or materially neglects the material duties that Executive
is
required to perform under the terms of this Agreement, including if Executive
performs his duties in an incompetent manner;
(ii) Executive
is reasonably believed, by the majority of the Board of Directors of the
Company, to have committed a felony or a crime involving moral turpitude or
has
entered a plea of nolo contendere (or similar plea) to a charge of such an
offense if the majority of the Company’s Board of Directors believes the
commission has a material or significant impact on the Company;
(iii) Executive
is reasonably believed by the majority of the Board of Directors of the Company
to have used alcohol or any unlawful controlled substance while performing
his
duties under this Agreement if such use interferes with the performance of
Executive’s material duties under this Agreement;
(iv) Executive
commits any act of fraud or personal dishonesty which the Company reasonably
believes could damage or has damaged the Company or misappropriation relating
to
or involving Company;
(v) Executive
intentionally or negligently engages in the unauthorized disclosure of material
Confidential Information; and
(vi) With
regard to 1(e)(i), Company will give Executive written notice of the breach
or
neglect (hereinafter collectively, "Problematic Conduct"). In addition,
Executive will be given 30 days to attempt to cure the Problematic Conduct,
but
the successful result of Executive’s attempt to cure will be determined by
Company, in Company’s reasonable discretion.
(f) “Commencement
Date”
shall
have the meaning specified in Section 4 hereof.
(g) "Confidential
Information"
shall
have the meaning specified in Section 14(a) hereof.
(h) "Disability"
shall
mean Executive's inability, for a period of twelve (12) consecutive weeks,
or a
cumulative period of 120 business days (i.e., Mondays through Fridays, exclusive
of days on which Company is generally closed for a holiday) out of a consecutive
period of twelve (12) months, to perform the essential duties of Executive's
position, with any reasonable accommodation required by law, due to a mental
or
physical impairment which substantially limits one or more major life
activities.
(i) "Restricted
Area"
shall
have the meaning specified in Section 14(a) hereof.
(j) "Restricted
Period"
and
"Extended
Restricted Period"
shall
have the meaning specified in Section 14(a) and 14(b) respectively.
(k) "Subsidiary"
shall
mean any company in which Company owns directly or indirectly 50% or more of
the
Voting Stock or 50% or more of the equity; or any other venture in which it
owns
either 50% or more of the voting rights or 50% or more of the
equity.
(l) "Term
of Employment"
shall
mean the period specified in Section 4 hereof as the same may be terminated
in
accordance with this Agreement.
(m) “Voting
Stock”
shall
mean capital stock for any class or classes having general voting power under
ordinary circumstances in the absence of contingencies, to elect the Directors
of the Company.
2.
Employment.
Company
hereby employs Executive as its President and Chief Executive Officer and
Executive hereby accepts employment by Company for the period and upon the
terms
and conditions specified in this Agreement.
3.
Office
and Duties.
(a) Executive
shall be employed as its President and Chief Executive Officer. In such
capacity, Executive shall render such services as are necessary and desirable
to
protect and advance the best interests of Company, acting, in all instances,
under the supervision of and in accordance with the policies set by the Board.
(b) Executive
during the term of this Agreement, unless prevented by ill health, shall devote
at least forty (40) hours per week of his working time, energy, skill and
commercially reasonable efforts to the performance of Executive’s duties
hereunder in a manner which will faithfully and diligently further the business
and interests of the Company. The Company recognizes that the Executive also
is
and may continue to serve as President and Managing Director of the Homewood
Capital Group, LLC ("HCG") and also may continue to represent the HCG and its
predecessor business LBC Capital with other companies and business activities.
4.
Term.
Executive shall be employed by Company for an initial term of employment (the
“Initial Term”), commencing July 1, 2008 (the “Commencement Date”), and ending
on June 30, 2013, unless sooner terminated as hereinafter provided. Unless
either party elects to terminate this Agreement at the end of the Initial Term
by giving the other party written notice of such election at least one hundred
and twenty (120) days before the expiration of the Initial Term, the term of
employment shall be deemed to have been extended for an additional term of
one
(1) year (the “Additional Term”) commencing on the day after the expiration of
the Initial Term. At any time during the Additional Term, either party may
terminate this Agreement by giving the other party written notice of such
election at least one hundred and twenty (120) days prior to such termination.
5.
Compensation
and Bonus.
(a) Base
Compensation.
For all
of the services rendered by Executive to Company, Executive shall receive Base
Compensation at the gross annual rate of two hundred and fifty thousand dollars
($250,000) payable in installments in accordance with Company's regular payroll
practices in effect from time to time with the first installment at the reduced
gross annual rate of one hundred fifty thousand dollars ($150,000) due after
the
Company has raised in aggregate in equity or gross revenues five hundred
thousand dollars ($500,000) and the entire gross annual amount due after the
Company has raised in aggregate in equity or gross revenues one million dollars
($1,000,000). The Base Compensation will be increased on July 1, 2009 and each
subsequent July 1 by fifty thousand dollars ($50,000) respectively, if Executive
is actively employed by the Company on the preceding June 30.
(b) Bonus.
Executive shall be entitled to an annual bonus pursuant to terms, conditions
and
eligibility requirements of the plan, if any, adopted by the Board of Directors,
in the Board’s sole discretion.
(c) Stock
Option Awards.
The
Executive shall be eligible for stock options pursuant to and in accordance
with
the terms, conditions, restrictions and eligibility requirements of a stock
option plan, if any, adopted by the Board of Directors.
(d) Travel
and Housing.
The
Company shall reimburse Executive for all reasonable out-of-pocket expenses
incurred for travel and housing including any out of pocket expenses incurred
prior to this Employment Agreement related to the formation of RCT, due
diligence and final negotiations related to the Letter of Intent with
TheraVitae. Reimbursement shall be made on a monthly basis.
6.
Fringe
Benefits.
As an
additional inducement to Executive to commence employment hereunder, and in
consideration of Executive's covenants under this Agreement, Executive shall
be
entitled to the benefits set forth below (the “Fringe Benefits”) during the Term
of Employment:
(a) Executive
shall be eligible to participate in any health, life, accident or disability
insurance or other benefit plans or programs made available to other similarly
situated Executives of Company as long as the plans and programs are kept in
force by Company and provided that Executive meets the eligibility requirements
and other terms, conditions and restrictions of the respective plans and
programs.
(b) Executive
shall be entitled to four (4) weeks paid vacation during each year, as well
as
the usual Company holidays and sick time days, subject to Company's generally
applicable policies relating to paid time off. Unused time will not be paid
upon
separation but, up to a maximum of ten days of paid time off (holiday, sick
and
vacation time) can be carried over to the next contract year.
(c) Company
will reimburse Executive for all reasonable and necessary expenses incurred
by
Executive in connection with the performance of Executive’s duties hereunder
upon receipt of documentation therefor in accordance with Company’s regular
reimbursement procedures and practices in effect from time to time.
(d) The
Company agrees to allow Executive to maintain one seat on the Board of the
Company throughout Executive’s active employment with the Company. Subject to
any agreement with TheraVitae, Inc., Executive may appoint one additional member
when the number of directors is increased from one (1) to three (3) and two
if
the number of directors is further increased to five (5).
7.
Stock.
Executive shall receive fifteen million (15,000,000) restricted common shares
of
the Company’s stock.
8.
Disability.
If
Executive suffers a Disability, Company may terminate Executive’s employment
relationship with Company at any time thereafter by giving Executive ten (10)
days written notice of termination. Thereafter, Company shall have no obligation
to Executive for Base Compensation, Bonus, Fringe Benefits or any other form
of
compensation or benefit to Executive, except as otherwise required by law or
by
benefit plans provided at Company expense, other than (a) amounts of Base
Compensation accrued through the date of termination, (b) a prorated portion
of
the Bonus, if any, and (c) reimbursement of appropriately documented expenses
incurred by Executive before the termination of employment, to the extent that
Executive would have been entitled to such reimbursement but for the termination
of employment. Any compensation Executive receives from any Company sponsored
or
Company paid for insurance, benefit plan or policy under which the Executive
was
covered at the time of his inability, due to his disability, including but
not
limited to workers’ compensation payments and payments from a Company disability
plan will be deducted from the Company’s prorated Bonus payment, if any, to
Executive.
9.
Death.
If
Executive dies during the Term of Employment, the Term of Employment and
Executive's employment with Company shall terminate as of the date of
Executive's death.
Company
shall have no obligation to Executive or Executive's estate for Base
Compensation, Bonus, Fringe Benefits or any other form of compensation or
benefit, except as otherwise required by law or by benefit plans provided at
Company expense, other than (a) amounts of Base Compensation that have accrued
through the date of Executive's death, (b) a prorated portion of the Bonus
(if
any) and (c) reimbursement of appropriately documented expenses incurred by
Executive before the termination of employment, to the extent that Executive
would have been entitled to such reimbursement but for the termination of
employment.
10.
Termination
for Cause.
(a) Company
may terminate Executive's employment relationship with Company at any time
for
Cause. Upon termination of Executive under this Section 10, Company shall have
no obligation to Executive for Base Compensation, Bonus, Fringe Benefits, or
any
other form of compensation or benefits other than (a) amounts of Base
Compensation accrued through the date of termination, and (b) reimbursement
of
appropriately documented expenses incurred by Executive before the termination
of employment, to the extent that Executive would have been entitled to such
reimbursement but for the termination of employment.
(b) Any
and
all disputes regarding whether an Executive’s discharge is with or without
Cause, as defined by this Agreement, will be resolved by arbitration to be
held
in Boston, Massachusetts, in accordance with the Employment Dispute Resolution
Rules of the American Arbitration Association then in effect.
(c) Executive
will be bound by the confidentiality, non-competition and trade secret
provisions stated in Sections 13 and 14 below.
11.
Termination
without Cause.
(a) Company
may terminate Executive’s employment relationship with Company at any time
without Cause. Notwithstanding termination of Executive under this Section
11,
Company shall continue to pay Executive’s Base Compensation, as such amounts
would have accrued through the five year Initial Term of the Agreement and
any
Additional Term so long as Executive (i) executes and does not revoke a
Separation Agreement and General Release, (ii) the termination is without Cause
and (iii) Executive complies with Section 14 of this Agreement which deals
with
confidentiality, non-competition and trade secrets and which extends the
non-competition provision to the period of time Company pays Executive his
Base
Compensation following Executive’s actual termination date. However, the maximum
time of the non-compete is thirty-six (36) months from separation and the
minimum is twelve (12) months. The Base Compensation, if payable, will be paid
out in installments in accordance with the Company’s regular payroll practices.
Executive also will be paid a prorated portion of his Bonus, if any, for the
portion of the last year he worked
(b) Executive
may terminate his employment with Company for any or no reason, upon ninety
(90)
days written notice. If such notice is provided by Executive, Company, in its
sole discretion, may waive the notice period or any portion thereof, without
pay
(Base Compensation, Bonuses, etc.) or Fringe Benefits to Executive for the
remaining notice period. The Company shall then consider the Executive’s
employment terminated on the date on which Executive last receives Base
Compensation as an Executive. Upon termination by Executive of his employment
under the provisions of this Subsection 11(b), the Company shall have no
obligation to Executive for Base Compensation, Bonus, Fringe Benefits or any
other form of compensation or benefits other than (a) amounts of Base
Compensation accrued through the date of his termination, and (b) reimbursement
of appropriately documented expenses incurred by Executive before the
termination of employment, to the extent that Executive would have been entitled
to such reimbursement but for his termination of his employment.
(c) Termination
of Executive’s employment pursuant to Sections 8 through 11 shall release the
Company of all its liabilities and obligations under this Agreement, except
as
expressly provided in Sections 8 through 11 and except for federal and state
law
requirements. Termination of Executive’s employment pursuant to this Section
shall not, however, release Executive from Executive’s obligations and
restrictions as stated in Sections 13 and 14 of this Agreement.
(d) Executive
shall not be entitled to any payment or benefit under any Company severance
plan, practice or policy, if any, in effect at or after the time of Executive’s
termination, pursuant to Sections 8 through 11, since this Agreement supersedes
all such plans, practices and policies.
(e) Executive
will not be required to offset or mitigate compensation lost due to the
termination of his employment by Company without Cause.
12.
Indemnification.
(a) The
Company agrees that if Executive is or becomes a party, or is threatened to
be
made a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
brought by or in the right of the Company or otherwise ("Proceeding"), by reason
of the fact that (whether before or after the Effective Date) he is or was
a
director, officer, or employee of the Company or is or was serving at the
request of the Company as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including (without limitation) service with respect to employee benefit plans,
so long as the basis of such Proceeding is Executive’s alleged action in an
official capacity while serving as a director, officer, member, employee or
agent, Executive shall be indemnified and held harmless by the Company to the
fullest extent legally permitted or authorized by the Company or, if greater,
by
laws of the State of Delaware or any other applicable state or organization
or
formation, against all cost, expense, liability or loss (including, without
limitation, attorneys’ fees, judgments, costs of appearance, fines, excise taxes
or penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by Executive in connection therewith, and such indemnification
shall
continue as to Executive even if he has ceased to be a director, member,
employee or agent of the Company or other entity and shall inure to the benefit
of Executive’s heirs, executors and administrators. In this Section 12, (i) each
reference to "the Company") (other than for the purpose of any notice) shall
include, without limitation, all entities that are subsidiaries and affiliates
of the Company, and (ii) all obligations of the Company shall be joint and
several as to entities included in such definition of "the Company". Executive
agrees to repay any and all monies paid by Company under this provision if
it
shall ultimately be determined by Company that Executive is not entitled to
be
indemnified against such costs and expenses.
(b) Neither
the failure of the Company (including, without limitation), its board of
directors, independent legal counsel or stockholders) to have made any
determination that indemnification of Executive is proper because he has met
the
applicable standard of conduct, nor a determination by the Company (including,
without limitation, its board of directors, independent legal counsel or
stockholders) that Executive has not met such applicable standard of conduct,
shall create a presumption that Executive has not met the applicable standard
of
conduct or shall be a defense to any action or proceeding to enforce the
Company’s indemnification or expense-defense to any action or proceeding to
enforce the Company’s indemnification or expense-advancement obligations. The
Company shall have the burden of proof in establishing that Executive has not
met the applicable standard of conduct. Where Executive is entitled to
indemnification under this Section 12 for a portion of the indemnifiable
liabilities described in Section 12(a), but not for the total amount of
liabilities of that kind, the Company shall nevertheless indemnify Executive
for
such portion of the indemnifiable liabilities to which Executive is entitled.
(c) Executive’s
rights provided in this Section 12 shall not be exclusive of any other rights
of
indemnification or advancement of expenses (or any similar rights) that
Executive may have against the Company or under any liability insurance covering
Executive.
(d) The
Company agrees to continue and maintain one or more directors’ and officers’
liability insurance policies that cover Executive (with reputable and
financially sound insurers) at a level that is commercially reasonable (in
light
of the Company’s business and the risks of litigation or claims), and otherwise
to the fullest extent the Company provides such coverage for any of its other
executive officers.
(e) Without
limiting the generality of Section 12 hereof, the right of indemnity in favor
of
Executive in this Section 12 shall continue and survive any expiration or
termination of this Agreement or Executive’s ceasing to be a director, officer
or employee of the Company.
13.
Company
Property.
All
sales, accounting, pricing, marketing, manufacturers’ and other materials or
articles or information, including without limitation data processing reports,
computer programs, software, customer information and records, business records,
price lists or information, samples, or any other materials or data of any
kind
furnished to Executive by Company or developed by Executive on behalf of Company
or at Company’s direction or for Company’s use or otherwise in connection with
Executive’s employment hereunder, are and shall remain the sole property of
Company, including in each case all copies thereof in any medium, including
computer tapes and other forms of information storage. If Company requests
the
return of such materials at any time during or at or after the termination
of
Executive’s employment, Executive shall deliver all copies of the same to
Company immediately.
14.
Non-competition,
Trade Secrets, Etc.
Executive hereby acknowledges that, during and solely as a result of his
employment by Company, Executive will have access to confidential information
and business and professional contacts. In consideration of such special and
unique opportunities afforded by Company to Executive as a result of Executive's
employment and the other benefits referred to within this
Agreement;
(a) Executive
agrees that if Executive terminates his own employment or if Executive’s
employment is terminated by the Company for Cause, from the date hereof until
five (5) years following the termination of Executive’s employment with Company.
(“Restricted Period”) Executive shall not, for his own benefit or the benefit of
any third party; (i) directly or indirectly engage in (as a principal,
shareholder, partner, director, officer, agent, Executive, consultant or
otherwise) or be financially interested in any business operating within a
country to which the Company is exclusively licensed to use or sell the
Bio-
Cybernetic
Cardio-Diagnostic System (the "Restricted Area"), which is the same as, similar
to or in competition with the Business, or with any business activities being
definitely planned by Company at the time of the termination of Executive’s
employment (provided however nothing contained in this Section 14 shall prevent
Executive from holding for investment less than five percent (5%) of any class
of equity securities of a company whose securities are publicly traded on a
national securities exchange or in a national market system) or (ii) directly
or
indirectly, induce or attempt to influence any employee, customer, client,
independent contractor or supplier of Company to terminate employment or any
other relationship with Company.
(b) Executive
agrees that if Executive is terminated by Company without Cause and executes
a
General Release, Executive will be bound by the non-competition provision in
14(a) for the greater of one (1) year from Executive’s termination date or the
remaining time under the Initial Term of this Agreement during which Executive
is being paid by the Company ("Extended Restricted Period"). However, in no
event will Executive be bound by Section 14 (a) above for more than three (3)
years from Executive’s termination date.
(c) Executive
agrees that from the date hereof and forever, regardless of the cause or lack
of
cause of his separation of employment from the Company:
(i) Executive
shall not use for Executive's personal benefit, or disclose, communicate or
divulge to, or use for the direct or indirect benefit of any person, firm,
association or company other than Company, any "Confidential Information" which
term shall mean any information regarding the business methods, business
policies, policies, procedures, techniques, research or development projects
or
results, historical or projected financial information, budgets, trade secrets,
or other knowledge or processes of or developed by Company or any names and
addresses of customers or clients or any data on or relating to past, present
or
prospective Company customers or clients or any other confidential information
relating to or dealing with the business operations or activities of Company,
made known to Executive or learned or acquired by Executive while in the employ
of Company. Confidential Information shall not include information otherwise
lawfully known generally by or readily accessible to the trade or the general
public. All memoranda, notes, lists, records, files, documents and other papers
and other like items (and all copies, extracts and summaries thereof) made
or
compiled by Executive or made available to Executive concerning the business
of
Company shall be Company's property and shall be delivered to Company promptly
upon the termination of Executive's employment with Company or at any other
time
on request. The foregoing provisions of this Subsection (c) shall apply during
and after the period when Executive is an Executive of Company and shall be
in
addition to (and not a limitation of) any legally applicable protections of
Company's interest in confidential information, trade secrets and the like.
At
the termination of Executive's employment with Company, Executive shall return
to Company all copies in his possession of the Company’s Confidential
Information in any medium, including computer tapes and other forms of data
storage.
(ii) Any
and
all writings, inventions, improvements, processes, procedures and/or techniques
which Executive may make, conceive, discover or develop, either solely or
jointly with any other person or persons, at any time when Executive is an
Executive of Company, whether or not during working hours and whether or not
at
the request or upon the suggestion of Company, which relate to or are useful
in
connection with the Business or with any business now or hereafter carried
on by
Company during the Executive’s employment, including developments or expansions
of its present fields of operations, shall be the sole and exclusive property
of
Company. Executive shall make full disclosure to Company of all such writings,
inventions, improvements, processes, procedures and techniques, and shall do
everything necessary or desirable to vest the absolute title thereto in Company.
(d) Executive
acknowledges that the restrictions contained in the foregoing Subsections (a),
(b), and (c), in view of the nature of the business in which Company is engaged,
are reasonable and necessary in order to protect the legitimate interests of
Company, that their enforcement will not impose a hardship on Executive or
significantly impair Executive's ability to earn a livelihood, and that any
violation thereof would result in irreparable injuries to Company. Executive
therefore acknowledges that, in the event of Executive's violation of any of
these restrictions, Company shall be entitled to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief as well
as
damages and an equitable accounting of all earnings, profits and other benefits
arising from such violation, which rights shall be cumulative and in addition
to
any other rights or remedies to which Company may be entitled.
(e) If
the
Restricted Period or the Restricted Area specified in Section 14(a) or the
Extended Restricted Period in Section 14(b) above should be adjudged
unreasonable in any proceeding, then the period of time shall be reduced by
such
amount or the area shall be reduced by the elimination of such portion or both
such reductions shall be made so that such restrictions may be enforced for
such
time and in such area as is adjudged to be reasonable. If Executive violates
any
of the restrictions contained in the foregoing Subsection (a), (b) or (c),
the
relevant Restricted Period or Extended Restricted Period, respectively, shall
be
extended by a period equal to the length of time from the commencement of any
such violation until such time as such violation shall be cured by Executive
to
the commercially reasonable satisfaction of Company. The Company shall have
the
right and remedy to require Executive to account for and pay over to either
Company all compensation, profits, monies, accruals, increments or other
benefits derived or received by Executive as the result of any transactions
constituting a breach of this Section 14, and Executive shall account for
and pay over such amounts upon request therefor. Executive hereby expressly
consents to the jurisdiction of any court within Massachusetts to enforce the
provisions of this Section 14, and agrees to accept service of process by mail
relating to any such proceeding. The Company may supply a copy of Section 14
of
this Agreement to any future or prospective employer of Executive or to any
person to whom Executive has supplied information if the Company determines
in
good faith that there is a reasonable likelihood that Executive has violated
or
will violate such Section.
15.
Prior
Agreements.
Executive represents to the Company that there are no restrictions, agreements
or understandings, oral or written, to which Executive is a party or by which
Executive is bound that prevent or make unlawful Executive's execution or
performance of this Agreement.
16.
Miscellaneous.
(a) Indulgences,
Etc.
Neither
the failure nor any delay on the part of either party to exercise any right,
remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver
of
such right, remedy, power or privilege with respect to any other occurrence.
No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(b) Controlling
Law.
This
Agreement and all questions relating to its validity, interpretation,
performance and enforcement (including, without limitation, provisions
concerning limitations of actions), shall be governed by and construed in
accordance with the laws of Florida.
(c) Notices.
All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing and shall be deemed to have been duly given,
made and received only when personally delivered, on the day specified for
delivery when deposited with a recognized national or regional courier service
for delivery to the intended addressee or two (2) days following the day when
deposited in the United States mails, first class postage prepaid, addressed
as
set forth below:
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(i)
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If
to Executive:
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Xxxxx
X. Xxxxxxxxx
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0
Xxxxx Xxxx
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Xxxxxx,
Xxxxxxxxxxxxx 00000
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(ii)
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If
to RegenoCELL Therapeutics, Inc.:
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RegenoCELL
Therapeutics, Inc.
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0000
Xxxxx Xxxx Xxxxxx Xxxx
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Xxxxxxxxxx,
Xxxxxxx 00000
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Attention:
The Corporation Trust Company
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In
addition, notice by mail shall be by air mail if posted outside of the
continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this Section for the giving of
notice.
(d) Binding
Nature of Agreement.
This
Agreement shall be binding upon Company and shall inure to the benefit of
Company, its present and future Subsidiaries, Affiliates, successors and assigns
including any transferee of the business operation, as a going concern, in
which
Executive is employed and shall be binding upon Executive, Executive's heirs
and
personal representatives. None of the rights or obligations of Executive
hereunder may be assigned or delegated, except that in the event of Executive's
death or Disability, any rights of Executive hereunder shall be transferred
to
Executive's estate or personal representative, as the case may be. Company
may
assign its rights and obligations under this Agreement in whole or in part
to
any one or more Affiliates or successors, but no such assignment shall relieve
Company of its obligations to Executive if any such assignee fails to perform
such obligations.
(e) Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
(f) Provisions
Separable.
The
provisions of this Agreement are independent of and separable from each other,
and no provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part.
(g) Entire
Agreement.
This
Agreement contains the entire understanding among the parties hereto with
respect to the employment of Executive by Company and supersedes all prior
and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/or usage of
the
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing. Notwithstanding
the
foregoing, nothing herein shall limit the application of any generally
applicable policy, practice, plan or the terms of any manual or handbook
applicable to the executives generally of Company, if provided to Executive
prior to being applicable, except to the extent the foregoing directly conflict
with this Agreement, in which case the terms of this Agreement shall
prevail.
(h) Section
Headings.
The
Section headings in this Agreement are for convenience only; they form no part
of this Agreement and shall not affect its interpretation.
(i) Number
of Days.
Except
as otherwise provided herein, in computing the number of days for purposes
of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls
on a
Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not
a
Saturday, Sunday or such holiday.
(j) Gender,
Etc.
Words
used herein, regardless of the number and gender specifically used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context indicates is
appropriate.
(k) Survival.
All
provisions of this agreement which by their terms survive the termination of
Executive’s employment with Company including without limitation the covenants
of Executive set forth in Sections 13 and 14 and the obligations of Company
to
make any post-termination payments under this Agreement, shall survive
termination of Executive's employment by Company and shall remain in full force
and effect thereafter in accordance with their terms.
IN
WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
on
this 1 st day of July, 2008.
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RegenoCELL
Therapeutics, Inc.
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/s/
Xxxxx X. Xxxxxxxxx
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By:
/s/ Xxxxx Xxxxxx
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XXXXX
X. XXXXXXXXX
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Name:
Xxxxx Xxxxxx
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Title:
President and Chief Executive
Officer
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