EMPLOYMENT AGREEMENT
Exhibit 10.5
EMPLOYMENT AGREEMENT, dated as of December 1, 2008 (the “Agreement”), by
Liberator Medical Holdings, Inc., a Nevada corporation (the “Company”), and Xxxx Xxxxx,
(the “Executive”).
WHEREAS, the Company desires to employ the Executive as its Chief Operating Officer and to
utilize his management services as indicated herein, and the Executive has agreed to provide such
management services to the Company; and
WHEREAS, the Executive desires to accept the Company’s offer of employment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valid
consideration, the sufficiency of which is acknowledged, the parties hereto agree as follows:
1. Employment.
1.1 Term. The Company agrees to employ the Executive, and the Executive agrees to be
employed by the Company pursuant to this Agreement, for a period commencing December 8, 2008 (such
date, the “Effective Date”) and ending on the earlier of (i) the first (1st)
anniversary of the Effective Date and (ii) the termination of the Executive’s employment in
accordance with Section 3 hereof (the “Term”); provided, however, that on the first
(1st) anniversary of the Effective Date and each subsequent anniversary thereof, the
Term shall automatically be extended for one (1) year unless ninety (90) days’ written notice of
non-renewal is given by the Executive or the Company to the other party.
1.2 Duties. During the Term, the Executive shall serve as Chief Operating Officer of
the Company and in such other positions as an officer or director of the Company or its affiliates
as the Executive and the Board of Directors of the Company (the “Board”) shall mutually
agree from time to time. The Executive shall perform such duties, functions and responsibilities
commensurate with the Executive’s positions as reasonably directed by the Board, and he shall
report to the Company’s President and Chief Executive Officer.
1.3 Exclusivity. During the Term, the Executive shall devote his full time and
attention to the business and affairs of the Company, shall faithfully serve the Company, and shall
in all material respects conform to and comply with the lawful and reasonable directions and
instructions given to him by the Board, consistent with Section 1.2 hereof. During the Term, the
Executive shall use his best efforts to promote and serve the interests of the Company and shall
not engage in any other business activity, whether or not such activity shall be engaged in for
pecuniary profit, except that the Executive may sit on the boards of other companies with the
consent of the Board, which shall not be unreasonably withheld.
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2. Compensation.
2.1 Salary. As compensation for the performance of the Executive’s services
hereunder, during the Term, the Company shall pay to the Executive a salary at an annual rate of
one hundred sixty thousand dollars ($160,000) payable in accordance with the Company’s standard
payroll policies (the “Base Salary”). The Base Salary shall be reviewed annually and may be
adjusted upward by the Board (or a committee thereof) at its discretion, based on competitive data
and the Executive’s performance. No increase in Base Salary shall limit or reduce any other right
or obligation to the Executive under this Agreement and the Base Salary shall not be reduced at any
time (including after any such increase).
2.2 Annual Bonus. Beginning with the fiscal year that commenced on October 1, 2008,
for each completed fiscal year during the Term the Executive shall be eligible to receive
additional cash incentive compensation pursuant to the annual bonus plan of the Company in effect
at such time (the “Annual Bonus”). The target Annual Bonus shall be up to 10% of the
Executive’s Base Salary as in effect at the beginning of such fiscal year with the actual Annual
Bonus to be based upon such individual and/or Company performance criteria established for each
such fiscal year by the Board in consultation with the Executive. In addition, the Executive shall
be eligible to participate in distributions from the quarterly Executive Bonus plan as configured
by the President and CFO.
2.3 Equity; Stock Purchase. The Executive shall be eligible to participate in any
Company stock purchase plan and to be considered by the Board (or, if there is one, the
Compensation Committee of the Board) for grants or awards of stock, stock options or warrants under
any Company stock incentive or similar plan from time-to-time in effect.
2.4 Employee Benefits. During the Term, the Executive shall be eligible to participate
in such health and other group insurance and other employee benefit plans and programs of the
Company and its affiliates as in effect from time to time on the same basis as other senior
executives of the Company.
2.5 Vacation. During the Term, the Executive shall be entitled to paid vacation in
accordance with the Company’s vacation policy as in effect from time to time, commencing with three
weeks per year, which may not be accumulated if not used.
2.6 Business Expenses. The Company shall pay or reimburse the Executive for all
commercially reasonable business out-of-pocket expenses that the Executive incurs during the Term
in performing his duties under this Agreement upon presentation of documentation and in accordance
with the expense reimbursement policy of the Company as approved by the Board (or a committee
thereof) and in effect from time to time.
2.7 [Intentionally left blank.]
2.8 Life Insurance. Life insurance on the life of Executive with an
Executive-directed beneficiary in the amount of Twenty-Five Thousand Dollars ($25,000)
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3. Termination of Employment.
3.1 Generally. The Company may terminate the Executive’s employment for any reason
during the Term, and the Executive may voluntarily terminate his employment for any reason during
the Term, in each case (other than a termination by the Company for Cause (as defined herein)) at
any time upon not less than thirty (30) days’ notice to the other party. Upon the termination of
the Executive’s employment with the Company for any reason, the Executive shall be entitled to any
Base Salary earned but unpaid through the date of termination, any earned but unpaid Annual Bonus
for completed fiscal years, any unreimbursed expenses in accordance with Section 2.6 hereof and, to
the extent not theretofore paid or provided, any other amounts or benefits required to be paid or
provided under any plan, program, policy or practice or other contract or agreement of the Company
and its affiliates through the date of termination of employment (collectively, the “Accrued
Amounts”).
3.2 Certain Terminations.
a. Termination by the Company other than for Cause or Disability; Termination by the
Executive for Good Reason. If the Executive’s employment is terminated during the Term by the
Company other than for Cause or Disability, or by the Executive for Good Reason (as defined
herein), the Executive shall be entitled to: (i) the Accrued Amounts, (ii) a pro-rata bonus for the
fiscal year of termination, based on actual performance through the end of the applicable fiscal
year and the number of days that have elapsed in the fiscal year through the date of termination (a
“Pro-Rata Bonus”), (iii) payment of an amount equal to the sum of 1/12 of Base Salary and
1/12 of the target Annual Bonus each month for six (6) months following termination (the
“Severance Payments”) and (iv) continuation of medical benefits on the same terms as active
senior executives for six (6) months following termination (“Medical Continuation”). In
addition, all of the Options granted pursuant to Section 2.3 that are unvested at the time of such
termination will become fully vested at termination in accordance with this Section 3.2.a (“Option
Vesting”). Receipt of the Severance Payments, Medical Continuation and Option Vesting shall be
conditioned on the Executive’s continued compliance with his obligations under Section 4 of this
Agreement. In the event that the Executive breaches any of the material covenants set forth in
Section 4 of this Agreement, the Executive shall immediately return to the Company any portion of
the Severance Payments that have been paid to the Executive pursuant to this Section 3.2(a) and any
shares or other amounts received in respect of the Options that became vested pursuant to this
Section 3.2(a), and the Medical Continuation shall immediately terminate. Subject to Section
3.2(c), the Company will commence payment of the Severance Payments as soon as practicable
following the effectiveness of the Release. The Pro-Rata Bonus will be paid at the time the Company
ordinarily pays incentive bonuses to its executives with respect to the fiscal year in which the
termination occurs.
b. Termination upon Death or Disability. If the Executive’s employment is terminated
due to the Executive’s death or Disability, the Executive (or the Executive’s estate, if
applicable) will receive (i) the Accrued Amounts, (ii) a Pro-Rata Bonus and (iii) Option Vesting.
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c. Section 409A Specified Employee. Notwithstanding anything to the contrary contained
herein, if the Executive is a “specified employee” for purposes of Section 409A of the Internal
Revenue Code (the “Code”) and regulations and other interpretive guidance issued thereunder
(“Section 409A”), the Company shall not commence payment of the Severance Payments to the
Executive until one (1) day after the day which is six (6) months after the Executive’s termination
date (the “Delay Period”), with the first (1st) payment equaling the total of all payment
that would have been paid during the Delay Period but for the application of Section 409A to such
payments. For purposes of this Agreement, the Executive’s employment with the Company shall be
considered to have terminated when the Executive incurs a “separation from service” with the
Company within the meaning of Section 409A(a)(2)(A)(i) of the Code, and applicable administrative
guidance issued thereunder.
d. Exclusive Remedy. The foregoing payments upon termination of the Executive’s
employment shall constitute the exclusive severance payments due the Executive upon a termination
of his employment under this Agreement. The Executive acknowledges that the Medical Continuation is
in full satisfaction of the Company’s obligation under COBRA.
3.3 Resignation from All Positions. Upon the termination of the Executive’s employment
with the Company for any reason, the Executive shall be deemed to have resigned, as of the date of
such termination, from all positions he then holds as an officer, director, employee and member of
the Board (and any committee thereof) and the board of directors (and any committee thereof) of any
of the Company’s affiliates.
3.4 Cooperation. Following the termination of the Executive’s employment with the
Company for any reason, the Executive agrees to reasonably cooperate with the Company upon
reasonable request of the Board and to be reasonably available to the Company with respect to
matters arising out of the Executive’s services to the Company and its subsidiaries and affiliates.
The Company shall pay the Executive a reasonable fee for any such services and promptly reimburse
the Executive for expenses reasonably incurred in connection with such matters.
4. Unauthorized Disclosure; Non-Competition; Non-Solicitation; Interference with Business Relationships; Proprietary Rights.
4.1 Unauthorized Disclosure. The Executive agrees and understands that in the
Executive’s position with the Company, the Executive will be exposed to and will receive
information relating to the confidential affairs of the Company and its affiliates, including,
without limitation, technical information, intellectual property, business and marketing plans,
strategies, customer information, software, other information concerning the products, promotions,
development, financing, expansion plans, business policies and practices of the Company and its
affiliates and other forms of information considered by the Company and its affiliates to be
confidential or in the nature of trade secrets (including, without limitation, ideas, research and
development, know-how, formulas, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information and business and marketing plans and proposals)
(collectively, the “Confidential Information”). The Executive agrees that at all times
during the Executive’s employment with the Company and thereafter, the Executive shall not disclose
such Confidential Information, either directly or indirectly, to any
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individual, corporation, partnership, limited liability company, association, trust or other entity
or organization, including a government or political subdivision or an agency or instrumentality
thereof (each a “Person”) other than in connection with the Executive’s employment with the
Company without the prior written consent of the Company and shall not use or attempt to use any
such information in any manner other than in connection with his employment with the Company,
unless required by law to disclose such information, in which case the Executive shall provide the
Company with written notice of such requirement as far in advance of such anticipated disclosure as
possible. This confidentiality covenant has no temporal, geographical or territorial restriction.
Upon termination of the Executive’s employment with the Company, the Executive shall promptly
supply to the Company all property, keys, notes, memoranda, writings, lists, files, reports,
customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data
and any other tangible product or document which has been produced by, received by or otherwise
submitted to the Executive during the Executive’s employment with the Company, and any copies
thereof in his (or capable of being reduced to his) possession; provided, however, that the
Executive may retain his full rolodex or similar address and telephone directories.
4.2 Non-Competition. By and in consideration of the Company entering into this
Agreement and the payments made and the benefits provided hereunder, and in further consideration
of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the
Executive agrees that the Executive shall not, during the Executive’s employment with the Company
and for eighteen (18) months thereafter (the “Restriction Period”), directly or indirectly,
own, manage, operate, join, control, be employed by, or participate in the ownership, management,
operation or control of, or be connected in any manner with, including, without limitation, holding
any position as a stockholder, director, officer, consultant, independent contractor, employee,
partner, or investor in, any Restricted Enterprise (as defined below); provided, that in no event
shall ownership of one percent (1%) or less of the outstanding securities of any class of any
issuer whose securities are registered under the Securities Exchange Act of 1934, as amended,
standing alone, be prohibited by this Section 4.2, so long as the Executive does not have, or
exercise, any rights to manage or operate the business of such issuer other than rights as a
stockholder thereof. For purposes of this paragraph, “Restricted Enterprise” shall mean any
Person that is actively engaged in any geographic area in any business which is either (i) in
competition with the business of the Company or any of its subsidiaries or affiliates or (ii)
proposed to be conducted by the Company or any of its subsidiaries or affiliates in their
respective business plans as in effect at that time. During the Restriction Period, upon request of
the Company, the Executive shall notify the Company of the Executive’s then-current employment
status.
4.3 Non-Solicitation of Employees. During the Restriction Period, the Executive shall
not directly or indirectly contact, induce or solicit (or assist any Person to contact, induce or
solicit) for employment any person who is, or within twelve (12) months prior to the date of such
solicitation was, an employee of the Company or any of its subsidiaries or affiliates.
4.4 Interference with Business Relationships. During the Restriction Period (other
than in connection with carrying out his responsibilities for the Company and its affiliates), the
Executive shall not directly or indirectly contact, induce or solicit (or assist any Person to
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contact, induce or solicit) any customer or client of the Company or its subsidiaries or affiliates
to terminate its relationship or otherwise cease doing business in whole or in part with the
Company or its subsidiaries or affiliates, or directly or indirectly interfere with (or assist any
Person to interfere with) any material relationship between the Company or its subsidiaries or
affiliates and any of its or their customers or clients so as to cause harm to the Company or its
affiliates.
4.5 Extension of Restriction Period. The Restriction Period shall be tolled for any
period during which the Executive is in breach of any of Sections 4.2, 4.3 or 4.4 hereof.
4.6 Proprietary Rights. The Executive shall disclose promptly to the Company any and
all inventions, discoveries, and improvements (whether or not patentable or registrable under
copyright or similar statutes), and all patentable or copyrightable works, initiated, conceived,
discovered, reduced to practice, or made by him, either alone or in conjunction with others, during
the Executive’s employment with the Company and related to the business or activities of the
Company and its affiliates (the “Developments”). Except to the extent any rights in any
Developments constitute a work made for hire under the U.S. Copyright Act, 17 U.S.C. § 101 et seq.
that are owned ab initio by the Company and/or its applicable affiliate, the Executive assigns all
of his right, title and interest in all Developments (including all intellectual property rights
therein) to the Company or its nominee without further compensation, including all rights or
benefits therefor, including without limitation the right to xxx and recover for past and future
infringement. The Executive acknowledges that any rights in any Developments constituting a work
made for hire under the U.S. Copyright Act, 17 U.S.C § 101 et seq. are owned upon creation by the
Company and/or its applicable affiliate as the Executive’s employer. Whenever requested to do so by
the Company, the Executive shall execute any and all applications, assignments or other instruments
which the Company shall deem necessary to apply for and obtain trademarks, patents or copyrights of
the United States or any foreign country or otherwise protect the interests of the Company and its
affiliates therein. These obligations shall continue beyond the end of the Executive’s employment
with the Company with respect to inventions, discoveries, improvements or copyrightable works
initiated, conceived or made by the Executive while employed by the Company, and shall be binding
upon the Executive’s employers, assigns, executors, administrators and other legal representatives.
In connection with his execution of this Agreement, the Executive has informed the Company in
writing of any interest in any inventions or intellectual property rights that he holds as of the
date hereof as set forth on Exhibit B hereto (the “Existing Inventions”). Notwithstanding
anything to the contrary herein, the Developments shall not include any Existing Inventions. If the
Company is unable for any reason, after reasonable effort, to obtain the Executive’s signature on
any document needed in connection with the actions described in this Section 4.6, the Executive
hereby irrevocably designates and appoints the Company and its duly authorized officers and agents
as the Executive’s agent and attorney in fact to act for and on the Executive’s behalf to execute,
verify and file any such documents and to do all other lawfully permitted acts to further the
purposes of this Section 4.6 with the same legal force and effect as if executed by the Executive.
4.7 Confidentiality of Agreement. Other than with respect to information required to
be disclosed by applicable law, the parties hereto agree not to disclose the terms of this
Agreement to any Person; provided the Executive may disclose this Agreement and/or any of its
terms to the Executive’s immediate family, financial advisors and attorneys, so long as the
Executive instructs every such Person to whom the Executive makes such disclosure not to disclose
the terms of this Agreement further.
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4.8 Remedies. The Executive agrees that any breach of the terms of this Section 4
would result in irreparable injury and damage to the Company for which the Company would have no
adequate remedy at law; the Executive therefore also agrees that in the event of said breach or any
threat of breach, the Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any
and all Persons acting for and/or with the Executive, without having to prove damages, in addition
to any other remedies to which the Company may be entitled at law or in equity, including, without
limitation, the obligation of the Executive to return any Severance Payments made by the Company to
the Company. The terms of this Section 4.8 shall not prevent the Company from pursuing any other
available remedies for any breach or threatened breach hereof, including, without limitation, the
recovery of damages from the Executive. The Executive and the Company further agree that the
provisions of the covenants contained in this Section 4 are reasonable and necessary to protect the
businesses of the Company and its affiliates because of the Executive’s access to Confidential
Information and his material participation in the operation of such businesses.
5. Representation. The Executive and the Company each represents and warrants that (i) he
or it is not subject to any contract, arrangement, policy or understanding, or to any statute,
governmental rule or regulation, that in any way limits his or its ability to enter into and fully
perform his or its obligations under this Agreement and (ii) he or it is not otherwise unable to
enter into and fully perform his or its obligations under this Agreement.
6. Non-Disparagement. From and after the Effective Date and following termination of the
Executive’s employment with the Company, the Executive agrees not to make any statement (other than
statements made in connection with carrying out his responsibilities for the Company and its
subsidiaries and affiliates) that is intended to become public, or that should reasonably be
expected to become public, and that criticizes, ridicules, disparages or is otherwise derogatory of
the Company or any of its subsidiaries, affiliates, employees, officers, directors or stockholders.
The Company and its affiliates shall cause their officers and directors not to make any such
statement regarding the Executive.
7. Withholding. The Company may withhold from any amounts payable under this Agreement such
Federal, state local or foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation. The Executive shall be solely responsible for the payment of all
taxes relating to the payment or provision of any amounts or benefits hereunder.
8. Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
8.1 “Cause” means termination upon (i) the willful and continued failure by Executive
to substantially perform his duties with the Company or the oral or written instructions of the
Company’s President, CEO, and/or the Board of Directors (other than any such failure
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resulting from Executive’s incapacity due to physical or mental illness) after an oral or written
demand for substantial performance is delivered to Executive by the President, CEO or Board of
Directors, which demands specifically identifies the manner in which the President, CEO or the
Board believes that Executive has not substantially performed his duties or complied with an
instruction from the President, CEO, or the Board; (ii) the willful engaging by Executive in conduct that is
demonstrably and materially injurious to the Company; (iii)failure to observe material policies
generally applicable to officers or employees of the Company; (iv) failure to cooperate with any
internal investigation of the Company or any of its affiliates; (v) commission of any act of fraud,
theft or financial dishonesty with respect to the Company or any of its affiliates or indictment or
conviction of any felony; or (vi) material violation of the provisions of this Agreement.
8.2 “Disability” shall mean the Executive is entitled to receive long-term disability
benefits under the long-term disability plan of the Company or its affiliates in which Executive
participates, or, if there is no such plan, the Executive’s inability, due to physical or mental
ill health, to perform the essential functions of the Executive’s job, with or without a reasonable
accommodation, for 180 days during any 365 day period irrespective of whether such days are
consecutive.
8.3 “Good Reason” shall mean (i) a material and adverse change in the Executive’s
duties or responsibilities; (ii) a reduction in the Executive’s Base Salary or target Annual Bonus;
(iii) a relocation of the Executive’s principal place of employment by more than fifty (50) miles;
or (iv) breach by the Company of any material provision of this Agreement; provided, that the
Executive must give notice of termination for Good Reason within sixty (60) days of the occurrence
of the first event giving rise to Good Reason.
9. Miscellaneous.
9.1 Indemnification. The Company shall indemnify the Executive to the fullest extent
provided under the Company’s By-Laws. The Company shall also maintain director and officer
liability insurance in such amounts and subject to such limitations as the Board shall, in good
faith, deem appropriate for coverage of directors and officers of the Company.
9.2 Amendments and Waivers. This Agreement and any of the provisions hereof may be
amended, waived (either generally or in a particular instance and either retroactively or
prospectively), modified or supplemented, in whole or in part, only by written agreement signed by
the parties hereto; provided, that, the observance of any provision of this Agreement may be waived
in writing by the party that will lose the benefit of such provision as a result of such waiver.
The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a further or continuing waiver of such breach or as a waiver of any other or
subsequent breach, except as otherwise explicitly provided for in such waiver. Except as otherwise
expressly provided herein, no failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in respect hereof at law
or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.
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9.3 Assignment; No Third-Party Beneficiaries. This Agreement, and the Executive’s
rights and obligations hereunder, may not be assigned by the Executive, and any purported
assignment by the Executive in violation hereof shall be null and void. Nothing in this Agreement
shall confer upon any Person not a party to this Agreement, or the legal representatives of such
Person, any rights or remedies of any nature or kind whatsoever under or by reason of this
Agreement.
9.4 Notices. Unless otherwise provided herein, all notices, requests, demands, claims
and other communications provided for under the terms of this Agreement shall be in writing. Any
notice, request, demand, claim or other communication hereunder shall be sent by (i) personal
delivery (including receipted courier service) or overnight delivery service, (ii) facsimile during
normal business hours, with confirmation of receipt, to the number indicated, (iii) reputable
commercial overnight delivery service courier or (iv) registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth below:
If to the Company:
|
Liberator Medical Holdings, Inc. | |
| 0000 XX Xxxx Xxxx Xxx | ||
| Xxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
With a copy to:
|
Xxxxxxxx X. Xxxxxxx | |
| Siegel, Lipman, Xxxxx, Xxxxxxx & Xxxxxx, LLP | ||
| 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000 | ||
| Xxxx Xxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
If to the Executive:
|
Xxxx Xxxxx, at his principal office at the | |
| Company (during the Term), and at all times to | ||
| his principal residence as reflected in the records | ||
| of the Company. |
All such notices, requests, consents and other communications shall be deemed to have been given
when received. Either party may change its facsimile number or its address to which notices,
requests, demands, claims and other communications hereunder are to be delivered by giving the
other parties hereto notice in the manner then set forth.
9.5 Governing Law. This Agreement shall be construed and enforced in accordance with,
and the rights and obligations of the parties hereto shall be governed by, the laws of the State of
Florida, without giving effect to the conflicts of law principles thereof.
9.6 Severability. Whenever possible, each provision or portion of any provision of
this Agreement, including those contained in Section 4 hereof, will be interpreted in such manner
as to be effective and valid under applicable law but the invalidity or unenforceability of any
provision or portion of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or
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enforceability of this Agreement, including that provision or portion of any provision, in any
other jurisdiction. In addition, should a court or arbitrator determine that any provision or
portion of any provision of this Agreement, including those contained in Section 4 hereof, is not
reasonable or valid, either in period of time, geographical area, or otherwise, the parties hereto
agree that such provision should be interpreted and enforced to the maximum extent which such court
or arbitrator deems reasonable or valid.
9.7 Entire Agreement. From and after the Effective Date this Agreement shall
constitute the entire agreement between the parties hereto, and supersede all prior
representations, agreements and understandings (including any prior course of dealings), both
written and oral, between the parties hereto with respect to the subject matter hereof.
9.8 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts shall together constitute one and
the same instrument.
9.9 Binding Effect. This Agreement shall inure to the benefit of, and be binding on,
the successors of each of the parties, including, without limitation, the Executive’s heirs and the
personal representatives of the Executive’s estate and any successor to all or substantially all of
the business and/or assets of the Company.
9.10 General Interpretive Principles. The name assigned this Agreement and headings of
the sections, paragraphs, subparagraphs, clauses and subclauses of this Agreement are for
convenience of reference only and shall not in any way affect the meaning or interpretation of any
of the provisions hereof. Words of inclusion shall not be construed as terms of limitation herein,
so that references to “include,” “includes” and “including” shall not be limiting and shall be
regarded as references to non-exclusive and non-characterizing illustrations.
9.11 Mitigation. Notwithstanding any other provision of this Agreement, (i) the
Executive will have no obligation to mitigate damages for any breach or termination of this
Agreement by the Company, whether by seeking employment or otherwise and (ii) the amount of any
payment or benefit due the Executive after the date of such breach or termination will not be
reduced or offset by any payment or benefit that the Executive may receive from any other source.
9.12 Section 409A Compliance. This Agreement is intended to comply with Section 409A
(to the extent applicable) and, to the extent it would not adversely impact the Company, the
Company agrees to interpret, apply and administer this Agreement in the least restrictive manner
necessary to comply with such requirements and without resulting in any diminution in the value of
payments or benefits to the Executive.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| LIBERATOR MEDICAL HOLDINGS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx, President | ||||
| EXECUTIVE: |
||||
| /s/ Xxxx Xxxxx | ||||
| Xxxx Xxxxx | ||||
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