EXHIBIT "10.03"
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BY AND BETWEEN
PAINCARE, INC.
AND
XXXXX XXXXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of August
1, 2001 (the "Commencement Date") by and between PainCare, Inc., a Nevada
corporation (the "Company"), and Xxxxx Xxxxxxxx ("Employee").
WHEREAS, the Company and Employee desire to enter into this Agreement
to memorialize their oral understanding, to assure the Company of the services
of Employee for the benefit of the Company and to set forth the respective
rights and duties of the parties hereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company and Employee agree
as follows:
ARTICLE I
Employment
1.1 Employment and Title. As of the Commencement Date, the Company
employs Employee, and Employee accepts such employment, as CEO of the Company,
all upon the terms and conditions set forth herein.
1.2 Duties. Subject to the power of the Board of Directors of Employer
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to elect and remove officers, Employee will serve as CEO and will faithfully and
diligently perform the services and functions relating to such office or
otherwise reasonable incident to such office, provided that all such services
and functions will be reasonable and within Employee's area of expertise.
Employee will during the term of this Agreement (or any extension thereof),
devote essentially his full business time, attention and skills and reasonable
best efforts to the promotion of the business of Employer. The foregoing will
not be construed as preventing Employee from managing other businesses, making
investments in other business or enterprises provided that (a) Employee agrees
not to become engaged in any other business activity that interferes with his
ability to discharge his duties and responsibilities to Employer and (b)
Employee does not violate any other provision of this Agreement.
1.3 Location. The principal place of employment and the location of
Employee's principal office shall be in Orlando, Florida; provided, however,
Employee shall, when requested by the Board of Directors, or may, if he
determines it to be reasonably necessary, temporarily perform outside of
Orlando, Florida such services as are reasonably required for the proper
execution of his duties under this Agreement.
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1.4 Representations. Each party represents and warrants to the other
that he/it has full power and authority to enter into and perform this Agreement
and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Each party represents that
no consent or approval of any third party is required for his/its execution,
delivery and performance of this Agreement or that all consents or approvals of
any third party required for his/its execution, delivery and performance of this
Agreement have been obtained.
ARTICLE II
Term
2.1 Term. The term of Employee's employment hereunder (the "Term")
shall commence as of the Commencement Date and shall continue through the fifth
anniversary of the Commencement Date (the "Scheduled Termination Date") unless
renewed or earlier terminated pursuant to the provisions of this Agreement.
Assuming all conditions of this Agreement have been satisfied and there has been
no breach of the Agreement during its initial term, Employee may extend the term
for an additional three year term at Employee's election ("Extended Term").
ARTICLE III
Compensation
3.1 Salary. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary of not less than One Hundred and Eighty Five Thousand Dollars
($185,000.00), which base salary shall accrue monthly (prorated for periods less
than a month) commencing August 1, 2001 and shall be paid in equal bi-monthly
installments, in arrears or as the Employee and the Company otherwise agree. The
base salary will be reviewed annually, or, as appropriate, by the Board of
Directors. At any time the Salary may be increased for the remaining portion of
the term if so determined by the Board of Directors of Employer after a review
of Employee's performance of his duties. Salary to be increased by minimum of
CPI plus increases based on performance, increase in earnings and revenues
approved by the compensation committee.
3.2 Bonuses. The Company shall pay the Employee an annual cash bonus
(the "Bonus") equal to 4% of "Formula Profits" of the Company. Formula Profits
shall mean for these purposes the earnings of the Company before the calculation
of other officer bonuses, interest, taxes, depreciation and amortization
("EBITDA"), as calculated utilizing generally accepted accounting principles by
the Company's independent certified public accountants. Notwithstanding the
foregoing, for purposes of determining Formula Profits: (i) there shall not be
included any non-recurring charges, losses, profits, or gains not related to the
ongoing operations of the business of the Company, including, but not limited to
discontinued operations or extraordinary items or unusual or infrequent items as
they are defined under generally accepted accounting principles, and (ii) there
shall not be included any charge related to grants or
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exercises of options pursuant to this Employment Agreement. The Bonus shall be
payable within ninety (90) days after the end of the most recent fiscal year to
which the Bonus relates.
3.3 Nonqualified Stock Options. Upon the execution of this Agreement,
and subject to the provisions of this Agreement, the Employee shall be entitled
to such nonqualified options to acquire shares of the Company's common stock
(the "Option Shares") as determined by the Company's Board of Directors.
3.4 Benefits. Employee shall be entitled, during the Term hereof, to
the same medical, hospital, pension, profit sharing, dental and life insurance
coverage and benefits as are available to the Company's most senior executive
officers on the Commencement Date together with the following additional
benefits:
(a) An automobile allowance of $1,000.00 per month, plus insurance,
gas, and maintenance.
(b) The Company's normal vacation allowance for all employees who are
executive officers of the Company, but not less than four (4) weeks
annually, with the option to carry over unused vacation days. Employee
shall have the option to be paid for unused vacation days, either at the
end of each year hereunder or at the end of the Term hereof.
(c) The Employee will be entitled to participate in any benefit plan
or program of the Employer which may currently be in place or implemented
in the future.
(d) The Company will provide Employee with a split dollar life
insurance policy in an amount of not less than $1,000,000 with Employer as
the owner thereof.
(e) During the Term, Employee will be entitled to receive, in addition
to and not in lieu of base salary, bonus or other compensation, such as
other benefits as Employer may provide for its officers in the future.
3.5 Withholding. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article III and
Article VII, which are subject to withholding for such federal, state and local
taxes as the Company, in its reasonable judgment, determines to be required
pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities and Expenses. Employee shall be furnished with
an office at the principal executive offices of the Company, or at such other
location as agreed to by Employee and the Company, and other working facilities
and secretarial and other assistance suitable to his position and reasonably
required for the performance of his duties hereunder. The Company shall
reimburse Employee for all of Employee's reasonable expenses incurred while
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employed and performing his duties under and in accordance with the terms and
conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code") and applicable
regulations as are in effect from time to time.
4.2 Insurance. The Company may secure in its own name or otherwise,
and at its own expense, life, disability and other insurance covering Employee
or Employee and others, and Employee shall not have any right, title or interest
in or to such insurance other than as expressly provided herein. Employee agrees
to assist the Company in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s)
as the Company or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance.
ARTICLE V
Illness or Incapacity
5.1 Right to Terminate. If, during the Term of this Agreement,
Employee shall be unable to perform in all material respects his duties
hereunder for a period exceeding six (6) consecutive months by reason of illness
or incapacity, this Agreement may be terminated by the Company in its reasonable
discretion pursuant to Section 7.2 hereof.
5.2 Right to Replace. If Employee's illness or incapacity, whether by
physical or mental cause, renders him unable for a minimum period of sixty (60)
consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to replace
Employee temporarily in the capacity described in Article I hereof; provided,
however, that if Employee returns to work from such illness or incapacity within
the six (6) month period following his inability due to such illness or
incapacity, he shall be entitled to be reinstated in the capacity described in
Article I hereof with all rights, duties and privileges attendant thereto.
5.3 Rights Prior to Termination. Employee shall be entitled to his
full remuneration and benefits hereunder during such illness or incapacity
unless and until an election is made by the Company to terminate this Agreement
in accordance with the provisions of this Article.
5.4 Determination of Illness or Incapacity. For purposes of this
Article V, the term "illness or incapacity" shall mean Employee's inability to
perform his duties hereunder substantially on a full-time basis due to physical
or mental illness as determined by a physician selected by the Company and the
Employee.
ARTICLE VI
Confidentiality
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6.1 Confidentiality. During the Term of this Agreement and thereafter,
Employee shall not divulge, communicate, use to the detriment of the Company, or
for the benefit of any other business, firm, person, partnership or corporation,
or otherwise misuse, any "Confidential Information", pertaining to the Company
including, without limitation, all (i) data or trade secrets, including secret
processes, formulas or other technical data; (ii) production methods; (iii)
customer lists; (iv) personnel lists; (v) proprietary information; (vi)
financial or corporate records; (vii) operational, sales, promotional and
marketing methods and techniques; (viii) development ideas, acquisition
strategies and plans; (ix) financial information and records; (x) "know-how" and
methods of doing business; and (xi) computer programs, including source codes
and/or object codes and other proprietary, competition-sensitive or technical
information or secrets developed with or without the help of Employee. Employee
acknowledges that any such information or data he may have acquired was received
in confidence and by reason of his relationship to the Company. Confidential
Information, data or trade secrets shall not include any information which: (a)
at the time of disclosure is within the public domain; (b) after disclosure
becomes a part of the public domain or generally known within the industry
through no fault, act or failure to act, error, effort or breach of this
Agreement by Employee; (c) is known to the recipient at the time of disclosure;
(d) is subsequently discovered by Employee independently of any disclosure by
the Company; (e) is required by order, statute or regulation, of any
governmental authority to be disclosed to any federal or state agency, court or
other body; or (f) is obtained from a third party who has acquired a legal right
to possess and disclose such information.
6.2 Records. All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the Company which Employee shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Employee's employment with the
Company for any reason, shall not be removed from the Company's premises without
the Company's prior written consent and any such documents, papers, materials,
notes, books, correspondence, drawings and other written and graphic records
upon request shall be returned to the Company.
ARTICLE VII
Termination
7.1 Termination For Cause. This Agreement and the employment of
Employee may be terminated by the Company "For Cause" under any one of the
following circumstances:
(a) Employee has committed any material act of fraud, misappropriation
or theft against the Company.
(b) Employee's default breach of any material provision of this
Agreement; provided, that Employee shall not be in default hereunder unless
(i) he shall have failed to cure such default or breach within thirty (30)
days of written notice thereof by the Company
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to Employee or (ii) Employee shall have duly received notice of at least
three (3) prior instances of such breach or default (whether or not cured
by Employee).
(c) Employee engages in willful misconduct in the performance of his
duties hereunder; provided, that Employee shall not be in default hereunder
unless (i) he shall have failed to cure such default or breach within
fifteen (15) days of written notice thereof by the Company to Employee, or
(ii) Employee shall have duly received notice of at least three (3) prior
instances of such breach or default (whether or not cured by Employee).
(d) At the election of the Employee.
A termination For Cause under this Section 7.1 shall be effective upon
the date set forth in a written notice of termination delivered to Employee.
7.2 Termination Without Cause. This Agreement and the employment of
the Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto.
(b) At the election of the Company by its giving not less than sixty
(60) days prior written notice to Employee in the event of an illness or
incapacity described in Article 5.1.
(c) Upon the removal of Employee from the office of CEO of the Company
or in the event the Company fails to afford Employee the power and
authority generally commensurate with the position of CEO.
(d) Upon Employee's death.
A termination Without Cause under Section 7.2(b) hereof shall be
effective upon the date set forth in a written notice of termination delivered
in accordance with the notice provisions of such sections. A termination Without
Cause under Sections 7.2(a) or (d) shall be automatically effective upon the
date of mutual agreement or the date of death of the Employee, as the case may
be. A termination Without Cause under Section 7.2(c) shall be automatically
effective upon the date such event takes place.
7.3 Effect of Termination For Cause. If Employee's employment is
terminated "For Cause":
(a) Employee shall be entitled to accrued base salary under Section
3.1 hereof through the date of termination.
(b) Employee shall be entitled to accrued bonuses under Section 3.2
hereof through the date of termination.
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(c) Employee shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions of
Section 4.1 hereof.
(e) All unvested Option Shares granted to Employee shall be forfeited.
(f) Except as provided in Article XI, this Agreement shall thereupon
terminate and cease to be of any further force or effect.
7.4 Effect of Termination Without Cause. If Employee's employment is
terminated "Without Cause":
(a) Employee shall be entitled to the greater of (i) an amount equal
to the annual base salary for the remainder of the term, or (ii) one year's
base salary.
(b) Employee shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions of
Section 4.1 hereof.
(c) Employee shall be entitled to receive all amounts of additional
bonuses under Section 3.2 hereof through the expiration of the Term hereof,
which amounts shall be paid upon termination.
(d) Employee shall be entitled to receive all benefits as would have
been awarded under Section 3.7 hereof through the expiration of the Term
hereof, which benefits shall be awarded as and when the same would have
been awarded under the Agreement had it not been terminated.
(e) All unvested Option Shares granted to Employee shall immediately
vest in full.
(f) Except as provided in Article XI, this Agreement shall thereupon
terminate and cease to be of any further force or effect.
7.5 Termination upon Change of Control. Upon a "Change of Control" (as
such term is defined in Section 7.5 hereof) of the Company during the Term
hereof, Employee may, at his sole discretion, declare this Agreement terminated
and receive a one-time, lump sum severance payment equal to two and nine-tenths
(2.9) times the total amount of the annual base salary payable under the terms
of Section 3.1 of this Agreement upon the date of such Change of Control, if
within three (3) years of the Change of Control:
(a) Employee's employment hereunder is terminated prior to the
expiration of the Term hereof "Without Cause"; or
(b) Employee elects to terminate his employment with the Company in
the event (i) he is removed from the office of CEO of the Company or (ii)
the Company fails to afford Employee the power and authority generally
commensurate with the position of CEO
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or (iii) the Company requires Employee to relocate his residence outside of
Orlando, Florida.
7.6 Change of Control. For purposes of Section 7.5 of this Agreement,
a Change of Control shall be deemed to have occurred in the event of:
(a) The acquisition by any person or entity, or group thereof acting
in concert, of "beneficial" ownership (as such term is defined in
Securities and Exchange Commission ("SEC") Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) (the "Exchange Act"), of securities of
the Company which, together with securities previously owned, confer upon
such person, entity or group the voting power, on any matters brought to a
vote of shareholders, of thirty percent (30%) or more of the then
outstanding shares of capital stock of the Company; or
(b) The sale, assignment or transfer of assets of the Company or any
subsidiary or subsidiaries, in a transaction or series of transactions, if
the aggregate consideration received or to be received by the Company or
any such subsidiary in connection with such sale, assignment or transfer is
greater than fifty percent (50%) of the book value, determined by the
Company in accordance with generally accepted accounting principles, of the
Company's assets determined on a consolidated basis immediately before such
transaction or the first of such transactions; or
(c) The merger, consolidation, share exchange or reorganization of the
Company (or one or more subsidiaries of the Company) as a result of which
the holders of all of the shares of capital stock of the Company as a group
would receive less than fifty percent (50%) of the voting power of the
capital stock or other interests of the surviving or resulting corporation
or entity; or
(d) The adoption of a plan of liquidation or the approval of the
dissolution of the Company; or
(e) The commencement (within the meaning of SEC Rule 14d-2 under the
Exchange Act) of a tender or exchange offer which, if successful, would
result in a Change of Control of the Company; or
(f) A determination by the Board of Directors of the Company, in view
of then current circumstances or impending events, that a Change of Control
of the Company has occurred or is imminent, which determination shall be
made for the specific purpose of triggering the operative provisions of
this Agreement.
7.7 Limitations on Change of Control Compensation. In the event that
the lump-sum payment payable to Employee under Section 7.5 hereof ("Severance
Benefits"), or any other payments or benefits received or to be received by
Employee from the Company (whether payable pursuant to the terms of this
Agreement, or any other plan, agreement or arrangement with the Company or any
corporation affiliated with the Company within the meaning of Section 1504 of
the Code, in the opinion of tax counsel selected by the Company acceptable to
Employee, constitute
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"parachute payments" within the meaning of Section 280G(b)(2) of the Code and
the present value of such "parachute payments" equals or exceeds three times the
average of the annual compensation payable to Employee by the Company (or an
Affiliate) and includable in Employee's gross income for federal income tax
purposes for the five (5) calendar years preceding the year in which a change in
ownership or control (as hereinafter defined) of the Company occurred ("Base
Amount"), such Severance Benefits shall be reduced to an amount the present
value of which (when combined with the present value of any other payments or
benefits otherwise received or to be received by Employee from the Company (or
an Affiliate) that are deemed "parachute payments" is equal to 2.99 times the
Base Amount, notwithstanding any other provision to the contrary in this
Agreement. The Severance Benefits shall not be reduced if (i) Employee shall
have effectively waived his receipt or enjoyment of any such payment or benefit
which triggered the applicability of this Section 7.7 or (ii) in the opinion of
such tax counsel, the Severance Benefits (in their full amount or as partially
reduced, as the case may be) plus all other payments or benefits which
constitute "parachute payments" within the meaning of Section 280G(b)(2) of the
Code are reasonable compensation for the services actually rendered, within the
meaning of Section 280G(b)(4) of the Code and such payments are deductible by
the Company. The Base Amount shall include every type and form of compensation
includable in Employee's gross income in respect of his employment by the
Company (or an Affiliate), except to the extent otherwise provided in temporary
or final regulations promulgated under Section 280G(b) of the Code. For purposes
of this Section 7.7, a "change in ownership or control" shall have the meaning
set forth in Section 280G(b) of the Code and any temporary or final regulations
promulgated thereunder. The present value of any non-cash benefit or any
deferred cash payment shall be determined by the Company's independent auditors
in accordance with the principles of Section 280G of the Code.
Employee shall have the right to request that the Company obtain a
ruling from the Internal Revenue Service ("IRS") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the IRS,
"parachute payments" under Section 280G. If a ruling is sought pursuant to
Employee's request, no Severance Benefits payable under this Agreement in excess
of the Section 280G limitations shall be made to Employee until after fifteen
(15) days from the date of such ruling, however, Severance Benefits shall
continue to be paid during the time up to the amount of that limitation. For
purposes of this Section 7.7, Employee and the Company shall agree to be bound
by the IRS's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the IRS declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the IRS's notice indicating that no ruling would be
forthcoming.
In the event that Section 280G, or any successor statute is repealed,
this Section 7.7 shall cease to be effective on the effective date of such
repeal. The parties to this Agreement recognize that final regulations under
Section 280G of the Code may affect the amounts that may be paid under this
Agreement and agree that, upon issuance of such final regulations, this
Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modification shall not be unreasonably withheld.
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ARTICLE VIII
Non-Competition and Non-Interference
8.1 Non-Competition. Employee agrees that during the Term of this
Agreement and, in the case of a termination "Not For Cause", for a period of one
(1) year thereafter, (and in the case of a termination "For Cause", for a period
of Two (2) years thereafter Employee will not, directly, indirectly, or as an
agent on behalf of or in conjunction with any person, firm, partnership,
corporation or other entity, own, manage, control, join, or participate in the
ownership, management, operation, or control of, or be financially interested in
or advise, lend money to, or be employed by or provide consulting services to,
or be connected in any manner with any person engaged in Business within a 60
mile radius of any area within the United States of America which the Company is
engaging in its Business or has immediate plans to engage in its Business.
8.2 Non-Interference. Employee agrees that during the Term of this
Agreement and, in the case of a termination "Not For Cause", for a period of one
(1) year thereafter (and in the case of a termination "For Cause", for a period
of two (2) years thereafter), Employee will not, directly, indirectly or as an
agent on behalf of or in conjunction with any person, firm, partnership,
corporation or other entity, induce or entice any employee of the Company to
leave such employment or cause anyone else to do so.
8.3 Severability. If any covenant or provision contained in Article
VIII is determined to be void or unenforceable in whole or in part, it shall not
be deemed to affect or impair the validity of any other covenant or provision.
If, in any arbitral or judicial proceeding, a tribunal shall refuse to enforce
all of the separate covenants deemed included in this Article VIII, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
ARTICLE IX
Indemnification
9.1. Indemnification. The Employer shall to the full extent permitted
by law indemnify, defend and hold harmless Employee from and against any and all
claims, demands, liabilities, damages, losses and expenses (including reasonable
attorney's fees, court costs and disbursements) arising out of the performance
by him of his duties hereunder except in the case of his willful misconduct and
will carry directors and officers' insurance of $10,000,000 with $250,000
deductible.
ARTICLE X
Board of Directors
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10.1 Election as Chairman of the Board. As a condition to Employee's
obligations hereunder, he will be elected to the Company's Board of Directors
and serve as the Chairman. The Company will cause the Employee to be nominated
to serve in such capacities.
ARTICLE XI
Miscellaneous
11.1 No Waivers. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
11.2 Notices. Any notice to be given to the Company and Employee under
the terms of this Agreement may be delivered personally, by telecopy, telex or
other form of written electronic transmission, or by registered or certified
mail, postage prepaid, and shall be addressed as follows:
If to the Company: 00 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Employee: 00 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
11.3 Severability. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
11.4 Successors and Assigns. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
11.5 Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible
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as evidence (whether in any arbitration or court of law) in any proceeding which
involves the interpretation of any provisions of this Agreement.
11.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
11.7 Section Headings. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
11.8 Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
11.9 Gender. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "he" or "his" or "it" or "its" whenever applicable.
Words in the singular shall be read and construed as though in the plural and
words in the plural shall be read and construed as though in the singular in all
cases where they would so apply.
11.10 Counterparts. This Agreement may be executed in counterparts,
all of which taken together shall be deemed one original.
ARTICLE XII
Survival
12.1 Survival. The provisions of Articles VI, VII, VIII, and X, of
this Agreement shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PainCare, Inc.,
a Nevada Corporation,
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title:Chief Financial Officer
-----------------------
EMPLOYEE
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
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