Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "AGREEMENT") by and
between Power 3 Medical Products, Inc., a New York corporation (the "COMPANY"),
and Xxxxxx X. Xxxx (the "OFFICER") is executed this 29th day of December, 2004
but shall be effective for all purposes as of May 18, 2004 (the "EFFECTIVE
DATE").
RECITALS
WHEREAS, the Company and the Officer previously entered into that certain
Employment Agreement dated as of May 18, 2004 (the "ORIGINAL AGREEMENT");
WHEREAS, the Company and the Officer have determined that the Original
Agreement did not accurately reflect the parties' mutual intent in that it did
not correctly set forth the parties' mutual understanding and agreement
regarding the restrictions applicable to the stock grants referenced therein and
the risks of forfeiture intended to be applicable to such shares of stock; and
WHEREAS, the Company and the Officer desire to enter into this Agreement
to reform the provisions of the Original Agreement to reflect the parties'
mutual understanding and intent and to restate the Original Agreement, as
amended, in its entirety.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements herein provided, the parties hereto agree as follows:
1. EMPLOYMENT TERMS
1.1 Term. The Company hereby employs the Officer, and the Officer hereby
accepts employment with the Company, all in accordance with the terms and
conditions hereof, for a term commencing on May 18, 2004 and terminating on May
17, 2009. However, the Officer shall be considered to be employed by the Company
beyond the Termination Date for purposes of receiving certain benefits conferred
under this Agreement, as described in Paragraph 3.1 hereof.
1.2 Position and Duties.
(a) The Company hereby employs the Officer, and the Officer agrees
to serve the Company, as an officer of the Company pursuant to the terms of this
Agreement. The Company has by action of its Board of Directors appointed the
Officer to the position of Chairman/Chief Executive Officer, however it may, in
the sole and unfettered discretion of the Board of Directors, amend the
Officer's title and/or duties and responsibilities, provided that the Officer
remains an officer of the Company
pursuant to the terms of this Agreement.
(b) The Officer shall be responsible for such duties as are
commensurate with the office in which he serves and as may from time to time be
assigned to the Officer by the Company's Board of Directors.
1.3 Performance of Duties.
(a) At all times prior to the Termination Date, the Officer (i)
shall devote his full business time, energies, best efforts, and attention to
the business of the Company, (ii) shall faithfully and diligently perform the
duties of his employment with the Company, (iii) shall do all reasonably in his
power to promote, develop, and extend the business of the Company, and (iv)
shall not enter into the service of, or be employed in any capacity or for any
purpose whatsoever by, any person, firm or corporation other than the Company
without the prior written consent of the Board of Directors of the Company.
(b) The Officer shall perform his duties in accordance with all
applicable laws, rules, or regulations that apply to the Company and/or its
business, assets (real or personal), or employees.
2. COMPENSATION.
2.1 Salary.
(a) For so long as Officer is employed by the Company, the
Company agrees to pay to the Officer, and the Officer shall accept from the
Company, for all of his services rendered pursuant to this Agreement, a salary
of Two Hundred Fifty Thousand Dollars ($250,000) per annum, payable semimonthly.
(b) The Company's Board of Directors, or compensation
committee of the Board of Directors (the "COMPENSATION COMMITTEE"), shall review
the Officer's salary annually and merit increases thereon shall be considered
and may be approved, in the sole and unlimited discretion of the Company's Board
of Directors, depending in part on the profits and cash flow of the Company. If
the Company's Board of Directors elects in its discretion to increase the salary
of the Officer at any time or from time to time, the new salary rate shall,
without further action by the Officer or the Company, be deemed substituted for
the amount set forth above. At such time, this Agreement shall be deemed amended
accordingly (notwithstanding the provisions of Paragraph 7.8 below), and, as so
amended, shall remain in full force and effect.
2.2 Bonuses. The Company, in the sole and unfettered discretion of
its Board of Directors or Compensation Committee, may from time to time award
cash bonuses to the Officer based upon its measure of Officer's performance.
Such bonuses may be awarded in a lump sum or may be conditioned upon the future
performance or
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employment of Officer, in the sole and unfettered discretion of the Board of
Directors of the Company.
2.3 Expenses. Upon submission of appropriate invoices or vouchers,
the Company shall pay or reimburse the Officer for all reasonable expenses
incurred by the Officer in the performance of his duties hereunder in
furtherance of the business of the Company.
2.4 Benefits. The Company extends to the Officer the right to
participate in whatever employee benefit plans (excluding any employee benefit
plan covered separately in this Agreement) may be in effect from time to time,
to the extent the Officer is eligible under the terms of the plans. However, no
employee benefits other than those specifically conferred by the terms of this
Agreement have been promised to the Officer in connection with this employment.
The adoption of one or more employee benefit plans, the terms of the plans, and
the Officer's participation in the plans, if any, are in the sole discretion of
the Company and may be changed by the Company at any time and from time to time.
2.5 Stock Grant.
(a) To induce the Officer to accept the position of Chief
Executive Officer, and subject to the terms of this Paragraph 2.5, the Officer
is hereby granted by the Company, effective upon the Effective Date of this
Agreement, Thirteen Million Two Hundred Fifty Thousand (13,250,000) shares of
the Company's common stock (the "COMMON SHARES") and One Million Five Hundred
Thousand (1,500,000) shares of Series B preferred stock to be designated by the
Company (the "SERIES B SHARES"; and collectively with the Common Shares, the
"RESTRICTED STOCK"). The grant of the Restricted Stock shall be subject to the
following terms and conditions:
(i) If at any time before May 18, 2006, the Officer's
employment with the Company shall cease or terminate for any reason, including
but not limited to, termination by reason of death or disability, termination
by the Company with or without cause and whether or not in breach of the
Agreement, or termination by the Officer for any reason, voluntarily or
otherwise, then the Officer shall forfeit all of such Restricted Stock to the
Company, and the Officer shall have no claim or right, either express or
implied, against the Company for any compensation, payment or benefit in lieu of
the Restricted Stock so forfeited or otherwise. In addition, unless and until
the Officer's rights in the foregoing Restricted Stock become nonforfeitable by
virtue of the satisfaction of the foregoing condition, the Officer shall have no
right to, and the Officer hereby agrees that he shall not, sell, pledge, assign,
hypothecate, encumber, give, grant or otherwise transfer such Restricted Stock
or alienate his then-current or expected future rights to such Restricted Stock,
and the certificates representing all of such Restricted Stock shall prominently
bear appropriate legends reflecting these restrictions and the Company's stock
register shall likewise reflect these restrictions.
(ii) Upon issuance of the Restricted Stock, except for
the
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restrictions set forth in this Paragraph 2.5, the Officer shall have all rights
of a shareholder of the Company with respect to such Restricted Stock including
the right to vote such Restricted Stock and to receive all dividends and other
distributions paid with respect to such Restricted Stock; provided, however,
dividends, if any, paid or distributed on the Restricted Stock shall not be paid
by the Company to the Officer unless and until such time as the Restricted Stock
becomes nonforfeitable.
(iii) In the event of a Change in Control (as herein
defined), the Company may waive in whole or in part any and all remaining
restrictions on the Restricted Stock. For purposes hereof, a Change of Control
shall mean, and shall be deemed to have occurred:
(A) if any person, other than any benefit plan of
the Company or the Officer and Xxx Xxxxxxxxx, as holders of the Series B
Preferred Stock, directly or indirectly, becomes the beneficial owner (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) of
securities representing 51% or more of the combined voting power of the
Company's then-outstanding securities, but excluding any such acquisition
pursuant to a merger, consolidation or similar business combination involving
the Company; or
(B) upon the consummation of a merger,
consolidation, or similar business combination involving the Company, other than
any such transaction which results in at least 75% of the total voting power
represented by the voting securities of the surviving entity (or the parent
entity thereof) outstanding immediately after such transaction being
beneficially owned by at least 75% of the holders of the outstanding voting
securities of the Company immediately prior to the transaction with the voting
power of each such continuing holder relative to other such continuing holders
not being substantially altered in the transaction; or
(C) upon the Board of Directors or the
shareholders of the Company approving a plan of complete or substantially
complete liquidation of the Company; or
(D) upon the consummation of the sale, lease, or
disposition by the Company of 50% or more of the total assets of the Company in
one or a series of related transactions (provided that a license, sublicense or
similar transaction involving the Company's intellectual property rights shall
not be considered as a Change of Control); or
(E) upon the individuals who constitute the Board
as of the Effective Date (the "INCUMBENT BOARD") ceasing for any reason to
constitute at least a majority of the members of the Board, provided that any
person becoming a director after the Effective Date whose election, or
nomination for election by the Company's shareholders, was approved by a vote of
at least two-thirds of the directors then comprising the Incumbent Board (other
than any individual whose initial assumption of office occurs as a result of
either (a) an actual or threatened election
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contest or (b) an actual or threatened solicitation of proxies or consents by or
on behalf of a person other than the Board) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board.
(v) The Common Shares shall have demand registration
rights or piggyback registration rights (neither of which, however, shall be
effective unless and until, after May 18, 2006, the Officer's rights to such
shares have ceased to be subject to the risks of forfeiture as provided herein).
(b) The Officer agrees to pay in a timely manner deemed
suitable by the Company, and to indemnify and hold harmless the Company from,
any and all taxes (including all penalties and interest, if any, thereon),
resulting from the grant and/or transfer of the above-referenced Restricted
Stock for which ultimate responsibility is assigned to or asserted against the
Officer under applicable law. For purposes of this provision, all withholding
obligations of the Company in respect of the aforementioned taxes (including any
and all taxes, penalties and interest imposed on or asserted against the Company
for failure to properly withhold and remit any such amounts in a timely manner)
shall be considered the responsibility of the Officer and, accordingly, the
Officer agrees to pay in a timely manner deemed suitable by the Company, and to
indemnify and hold harmless the Company from, any and all of such obligations.
2.6 Vacation; Sick Leave. The Company's vacation and sick leave
policy has been established by the Company and may be changed by the Company at
any time and from time to time. Said policy is published in separate data files
accessible to the Officer. The Officer will not be entitled to receive payment
for any unused sick leave either during employment or upon termination of
employment.
2.7 Withholding. The Company may withhold from any amounts payable
under this Agreement any and all federal, state, city, or other taxes or other
amounts required to be withheld by any applicable law.
3. TERMINATION.
3.1 Termination Upon 30 Days Notice.
(a) Either party may terminate the Officer's employment under
this Agreement for any reason whatsoever, either with or without cause, upon
giving the other party no less than thirty (30) days prior written notice of
such termination ( the "NOTICE DATE"). The effective date of a termination
pursuant to this Paragraph 3.1 shall be such termination date as stated on the
notice, provided that the termination date can be no earlier than the 31st day
following the day the notice becomes effective pursuant to Paragraph 5.4 below
(the "TERMINATION DATE").
(b) Until the expiration of the contract on May 17, 2009
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("TRANSITION PERIOD"), unless terminated for "Cause" as defined in Paragraph 3.4
or if the Officer resigns from his position or duties, the Officer will continue
to be considered as an employee of the Company only for the purpose of receiving
the compensation and benefits awarded in Paragraphs 2.1, 2.2, and 2.4 hereof.
More specifically, for the duration of Transition Period the Officer (i) shall
continue to receive his salary at the rate in effect as of the Notice Date, (ii)
shall continue to be considered an employee of the Company for purposes of
determining eligibility to receive any contingent or deferred bonuses awarded to
the Officer prior to the Termination Date, (iii) shall continue to be considered
an officer of the Company for purposes of vesting in any stock options granted
to Officer (but not for purposes of the forfeiture restrictions applicable to
the Restricted Stock as set forth in Paragraph 2.5), and (iv) shall, to the
extent allowed by such plan, remain eligible to participate in any benefit plan
of the Company in which the Officer participates as of the Notice Date.
(c) Notwithstanding any provision herein to the contrary,
however, the Officer will not be entitled to act as, or represent himself to be,
an officer or employee of the Company following the Termination date and will
not be entitled to receive or participate in any bonus, incentive, or benefit
program, involving stock or otherwise, that is established following the
Termination Date.
3.2 Termination by Mutual Consent. The Officer and the Company may
at any time terminate the employment of the Officer under this Agreement by
mutual consent in writing upon the terms and conditions stated in such writing.
3.3 Termination Upon Death. If the Officer dies, his employment
shall immediately terminate automatically as of the date of his death. In such
event, the Officer shall be treated as if he had terminated his employment with
the Company under the terms of Paragraph 3.1 above, with the date of his death
serving as both the Notice Date and the Termination Date.
3.4 Termination for Cause. This Agreement may be terminated for
Cause by either party for the following reasons, only:
3.4.a.1 Commission of a criminal offense by either party in the
course of performance of the Agreement shall entitle the other to
effect immediate termination upon giving written notice;
3.4.a.2 If either party becomes insolvent or makes a general
assignment for the benefit of creditors or if petition in bankruptcy
is filed against the defaulting party and is not discharged or
disputed within five (5) working days of such filing or of the agent
is adjudicated bankrupt or insolvent;
3.4.a.3 The election of one party (the "AGGRIEVED PARTY") to
terminate this Agreement upon (1) the actual breach or actual
default by the other party in the reasonable performance of the
defaulting party's obligations and
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duties under this Agreement and (2) the failure of the defaulting
party to cure the same within fifteen (15) days (the "cure period")
after receipt by the defaulting party of a good faith written notice
from the aggrieved party specifying such breach or default and (3)
provided that the defaulting party has not cured the default and the
aggrieved party may then give written notice to defaulting party of
his or its election to terminate ten (10) days after expiration of
the cure period.
3.5 Transition. Officer shall make a good faith effort to aid in the
transition of management necessitated by the termination of his employment
pursuant to this Agreement. To the extent feasible and/or practical, Officer
shall devote the time and energy necessary to effect said goal of a smooth
transition for the successor chairman and/or chief executive officer. The salary
payable to Officer by the Company pursuant to Paragraph 2.1(a) of this contract
shall continue to be paid to Officer during such transition period.
4. PROPRIETARY INFORMATION AND ITEMS.
4.1 Acknowledgments. The Officer acknowledges that (a) the Officer has or
will be afforded access to Proprietary Information of the Company or its
affiliates; (b) public disclosure of such Proprietary Information could have an
adverse effect on the Company and its affiliates; and (c) the provisions of this
Section 4 are reasonable and necessary to prevent the improper use or disclosure
of such Proprietary Information.
4.2 Non-Disclosure and Non-Use of Proprietary Information. During the
Officer's employment by the Company and for a period of five (5) years
thereafter, the Officer covenants and agrees that the Officer (a) shall not
disclose to others or use for the benefit of himself or others, any of the
Company's Proprietary Information, except that the Officer may disclose such
information (i) in the course of and in furtherance of the Officer's employment
with the Company to the extent necessary for the benefit of the Company, (ii)
with the prior specific written consent of the Board of Directors of the
Company, or (iii) to the extent required by law; and (b) shall take all measures
reasonably necessary to preserve the confidentiality of all Proprietary
Information of the Company known to the Officer, shall cooperate fully with the
Company's or its affiliates' enforcement of measures intended to preserve the
confidentiality of all Proprietary Information, and shall notify the Board of
Directors immediately upon receiving any request for, or making any disclosure
of, any Proprietary Information from or to any person other than an officer or
employee of the Company or of one of its affiliates who has a need to know such
information.
4.3 Proprietary Information. For purposes of this Agreement, "PROPRIETARY
INFORMATION" means trade secrets, secret or confidential information or
knowledge pertaining to, or any other nonpublic information pertaining to the
business or affairs of the Company or any of its affiliates, including without
limitation, medical imaging software programs (including source code and object
code) and design documentation; identities, addresses, backgrounds, or other
information regarding licensors, suppliers,
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customers, sublicensees, potential customers and sublicensees, employees,
contractors, or sources of referral; marketing plans or strategies, business or
personnel acquisition plans; pending or contemplated projects, ventures, or
proposals; financial information (including historical financial statements;
financial, capital, or operating budgets, plans or projections; historical or
projected sales, royalties and license fees, and the amounts of compensation
paid to employees and contractors); trade secrets, know-how, technical
processes, or research projects; and notes, analysis, compilations, studies,
summaries, and other material prepared by or for the Company containing or
based, in whole or in part, on any information included in the foregoing, except
information that is generally known in the industry (other than as a result of a
disclosure by the Officer).
4.4 Proprietary Items. Upon termination or expiration of the Officer's
employment by the Company for any reason or by either party, or upon the request
of the Company during such tenure, the Officer will immediately return to the
Company all Proprietary Items in the Officer's possession or subject to the
Officer's control, and the Officer shall not retain any copies, abstracts,
sketches, or other physical embodiment of any Proprietary Items. For purposes of
this Agreement, "PROPRIETARY ITEMS" means all documents and tangible items
(including all customer lists, memoranda, books, papers, records, notebooks,
plans, models, components, devices, or computer software or code, whether
embodied in a disk or in any other form) provided to the Officer by the Company,
created by the Officer, or otherwise coming into the Officer's possession for
use in connection with is engagement with the Company or otherwise containing
Proprietary Information (whether provided or created during the term of this
agreement or prior thereto).
4.5 Ownership Rights. The Officer recognizes that, as between the Company
and the Officer, all of the Proprietary Information and all of the Proprietary
Items, whether or not developed by the Officer, are the exclusive property of
the Company. The Officer agrees that all intellectual property of every kind,
including without limitation copyright, patent, trademarks, trade secrets, and
similar rights, created or developed or realized in connection with the
Officer's performance of any duties or functions as an Officer of the Company
(collectively, the "INTELLECTUAL PROPERTY") shall be the exclusive property of
the Company and shall constitute Proprietary Information. The Officer hereby
assigns unto the Company all rights, title, and interest that the Officer may
have to such Intellectual Property and each and every derivative work thereof,
and agrees to execute, acknowledge, and deliver to the Company as assignment to
the Company of any right, title, or interest of the Officer in any and all such
Intellectual Property, in such form as may be reasonably requested by the
Company.
4.6 Disputes of Controversies. The Officer recognizes that, should a
dispute or controversy arising from or relating to this portion of the Agreement
(Section 4) be submitted for adjudication to any court, arbitration panel, or
other third party, the preservation of the secrecy of Proprietary Information
may be jeopardized. The Officer agrees that he will use best efforts to ensure
that all pleadings, documents, testimony, and records relating to any such
adjudication will be maintained in secrecy.
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5. NON-INTERFERENCE; COMPLIANCE WITH LAW; COOPERATION
5.1 Non-Interference. During the Officer's employment with the Company and
for a period of five (5) years following termination or expiration of such
tenure, the Officer covenants and agrees that the Officer shall not, directly or
indirectly, for the benefit of the Officer or another (a) persuade or attempt to
persuade any employee, independent contractor, consultant, agent, supplier,
licensor, or distributor of the Company or of any affiliate of the Company to
discontinue such person's relationship with the Company or the affiliate; (b)
hire away or solicit to hire away from the Company or from any of its affiliates
any employee; (c) otherwise engage or seek to engage any employee or independent
contractor of the Company or of any of its affiliates in a business relationship
that would or might conflict with such employee's or independent contractor's
obligations to the Company or affiliate; (d) interfere with the Company's or any
of its affiliates' relationship with any governmental or business entity,
including payor, supplier, licensor, lender, or contractor of the Company or the
affiliate; or (e) disparage the Company or any of its affiliates or any of the
shareholders, directors, officers, employees, or agents of any of them.
5.2 Cooperation. During the Officer's Employment with the Company and for
a period of five (5) years following the termination or expiration of such
tenure, the Officer agrees to cooperate with the Company and its affiliates in
connection with any litigation or investigation involving the Company or any of
its affiliates or any of the shareholders, directors, officers, employees, or
agents of any of them and shall furnish such information and assistance as may
be lawfully requested by the Company.
6. NON-COMPETITION
During the Officer's employment by the Company and for a period of two (2)
years following the termination or expiration of such tenure, the officer
covenants and agrees to refrain from carrying on or engaging in a business
similar to that of the Company, and from soliciting customers of the Company,
within the North America, so long as the Company carries on a like business
therein. It is further stipulated that as forbearance for this contract term,
Company has provided Officer with separate and distinct consideration consisting
of 25,000 shares of common stock. Such shares are included in the Common Shares
described in Paragraph 2.5 and shall be subject to the restrictions set forth
therein.
Each word of the foregoing provision is severable.
7. GENERAL PROVISIONS
7.1 Indemnification. The Company hereby agrees to indemnify and hold
harmless the Officer from and against any and all losses, claims, damages,
expenses
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and/or liabilities which may incur arising out of the normal course of business
in carrying out the duties and responsibilities associated with the position of
Chief Executive Officer arising from the Officer's reliance upon and approved
use of information, reports and data furnished by and representations made by
the Company, with respect to itself, where the Officer in turn distributes and
conveys such information, reports and data to the public in the normal course of
representing the Company. Such indemnification shall include, but not be limited
to, expenses (including all attorney's fees), judgments, and amounts paid in
settlement actually and reasonably incurred by Officer in connection with an
action, suit or proceeding brought against the Company or Officer.
7.2 Injunctive Relief. The Officer acknowledges that the injury that would
be suffered by the Company as a result of a breach of the provisions of this
Agreement would be largely irreparable and that an award of monetary damages to
the Company for such a breach would be an inadequate remedy. The Company will
have the right, in addition to any other rights it may have (including the right
to damages that the Company may suffer), to obtain injunctive relief to restrain
any breach or threatened breach or otherwise to specifically enforce any
provision of this Agreement, and the Company will not be obligated to post bond
or other security in seeking such relief. The Officer agrees to request neither
bond nor security in connection with any such injunction. The Officer agrees
that if he breaches this Agreement, the Officer shall be liable for any
attorney's fees and costs incurred by the Company in enforcing its rights under
this Agreement.
7.3 Essential, Independent, and Surviving Covenants.
(a) The parties agree that the covenants by the Officer in Sections
4, 5, and 6 are essential elements of this Agreement, and without the Officer's
agreement to comply with such covenants, the Company would not have entered into
this Agreement.
(b) The Officer's covenants in Sections 4, 5, and 6 are independent
covenants and the existence of any claim by the officer against the Company
under this Agreement or otherwise will not excuse the Officer's breach of any
covenant in Section 4, 5, or 6.
(c) After the Officer's employment by the Company is terminated,
this Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of the Officer in Sections
4, 5, and 6.
7.4 Binding Effect; Benefits; Assignment. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives. Insofar as the
Officer is concerned, this contract, being personal, cannot be assigned other
than by will or the laws of descent and distribution.
7.5 Notices. All notices and other communications which are required or
permitted hereunder shall be in writing and shall be sufficient if mailed by
certified mail, postage prepaid, and shall be effective three days after such
mailing or upon delivery,
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whichever is earlier, to the following addresses or such other address as the
appropriate party may advise each other party hereto:
If to the Officer:
Xxxxxx Xxxx
00 Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
If to the Company:
Power 3 Medical Products, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Copy to:
Xxxxxxxx and Solomon, PLLC
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxxxx
7.6 Entire Agreement. This Agreement contains the entire agreement between
the parties hereto and supersedes all prior agreements and understandings, oral
or written, between the parties hereto with respect to the subject matter hereof
including, without limitation, the Original Agreement.
7.7 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Company, the Officer, and
their respective successors and permitted assigns, other than as expressly set
forth in this Agreement.
7.8 Amendments and Waivers. Except as set forth in Paragraph 2.1(b) above,
this Agreement may not be modified or amended except by an instrument or
instruments in writing signed by the party against whom enforcement of any such
modification or amendment sought. Either party hereto may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Agreement on the part of such other party hereto to be performed or complied
with. The waiver by any party hereto of a breach of any term or provision of
this Agreement shall not be construed as a waiver of any subsequent breach. No
delay or failure by either party in exercising any right under this Agreement,
and no partial or single exercise of that right, shall constitute a waiver of
that or any other right.
7.9 Headings. The paragraph headings contained in this Agreement are for
reference purposes only and shall not be deemed to be a part of this Agreement
or to control or affect the meaning or construction of any provision of this
Agreement.
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7.10 Construction. The language used in this Agreement will be deemed to
be the language chosen by the Company and the Officer to express their mutual
intent, and no rule of strict construction shall be applied against either
party.
7.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.12 Severability. If any term or provision of this Agreement is held or
deemed to be invalid or unenforceable, in whole or in part, by a court of
competent jurisdiction, this Agreement shall be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement.
7.13 Expenses and Attorney's Fees. In the event that a dispute arises
under this Agreement that results in litigation or arbitration, the prevailing
party, as determined by the decision of a court or forum of competent and final
jurisdiction, shall be entitled to court costs and reasonable attorney's fees. A
court or forum of "final" jurisdiction shall mean a court of forum from which no
appeal may be taken or from whose decree, decision, judgment, or order no appeal
is taken or prosecuted.
7.14 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to the conflict
of laws principles thereof.
7.15 Agreement Preparation. The Officer acknowledges that this Agreement
has been prepared by counsel for the Company, and the Officer has not relied on
any representation made by the Company's attorneys. The Officer has engaged an
attorney of his choice to review this agreement on his behalf. By signing this
employment agreement, officer is hereby certifying that officer (a) received a
copy of this agreement for review and study before executing it; (b) read this
agreement carefully before signing it; (c) had sufficient opportunity before
signing the agreement to ask any questions officer had about the agreement and
received satisfactory answers to all such questions; and (d) understands
officer's rights and obligations under the agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Employment
Agreement as of the date first written above but to be effective as of the
Effective Date.
OFFICER:
/s/ Xxxxxx Xxxx
-----------------------------------
Xxxxxx Xxxx
COMPANY:
Power 3 Medical Products, Inc.
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------
Xxx X. Xxxxxxxxx, Ph.D.
Chief Scientific Officer
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