EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”)
is
made and entered into as of August 7, 2007 (the“Effective
Date”),
by and
among MODIGENE
INC.,
a
Nevada corporation (the “Company”),
and
Xxxxxx
X.
Xxxxx
(the
“Executive”).
RECITALS
WHEREAS,
the
Company desires the expertise the Executive can provide in connection with
the
certain accounting and financial areas; and
WHEREAS,
the
Executive desires to be employed by the Company on a part-time basis and the
Company desires to employ the Executive on a part-time basis, to serve as the
Company’s Chief Financial Officer, all upon the terms and conditions hereinafter
set forth; and
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENTS
1.
Employment
and Term.
(a) The
Company hereby agrees to employ the Executive and the Executive hereby accepts
such employment upon the terms and subject to the conditions contained in this
Agreement. Executive’s employment shall commence as of the Effective Date and
shall continue at will until terminated pursuant to Section 5 hereof (the period
of such employment, the “Employment
Period”).
(b) The
Company and the Executive acknowledge and agree that the Executive’s employment
shall at all times be “at will”.
2.
Services.
(a) The
Company shall employ the Executive during the Employment Period as its Chief
Financial Officer, and the Executive shall serve as the Company’s Chief
Financial Officer on a part-time basis, with such duties and responsibilities
that are of the type customarily performed by an employee in such position
as
shall be established from time to time by the Board of Directors of the Company
or such other persons as the Board of Directors may from time to time designate
to expand or limit such duties and responsibilities. Without limiting the
foregoing, during the Employment Period, the Executive shall provide the
following services (collectively, the “Services”):
serving
as the Company’s designated “Principal Financial Officer,” creating
and maintaining sound accounting policies and procedures, preparing and signing
quarterly and annual financial statements, preparing and reviewing certain
of
the Company’s quarterly and annual filings with the Securities and Exchange
Commission (the “SEC”),
including reviewing such financial statements and filings, as well as the
Company’s financial and disclosure controls and procedures are in compliance
with the Xxxxxxxx-Xxxxx Act of 2002 as promulgated by the SEC.
(b) During
the Employment Period, the Executive shall report to the Company’s Chief
Executive Officer and President and shall devote his best efforts to providing
the Services. The Executive shall perform his duties, responsibilities and
functions on behalf of the Company and its subsidiaries hereunder to the best
of
his abilities in a diligent, trustworthy, professional and efficient manner
and,
subject to the provisions of Section 2(c) below, shall comply with the Company’s
and its subsidiaries’ policies and procedures in all material
respects.
(c) The
Company agrees and acknowledges that during the Employment Period, the Executive
will be employed by the Company on a part-time basis, and in connection
therewith, the Company agrees and acknowledges that the Executive will be
required to perform services that may at times interfere with his ability to
devote his full business time and attention to the Company and its subsidiaries,
provided that the Executive shall in all cases devote sufficient time to
performing the Services are required by Section 2(a).
3. Compensation. In
consideration for the Services to be provided under Section 2(a),
the
Company agrees to pay to the Executive during the Employment Period monthly
compensation of Three Thousand Six Hundred Sixty Six and 67/100 U.S. Dollars
($3,666.67) (each, the “Monthly
Salary Payment”),
which
Monthly Salary Payment shall be payable within thirty (30) days following the
end of each calendar month following the Executive’s provision of an invoice. In
the event that, pursuant to Section 5 hereof, the Executive terminates his
employment or is terminated by the Company prior to the end of a calendar month,
any Monthly Salary Payment with respect to the month in which such termination
occurs shall be pro-rated based on the period of time the Executive was employed
during such calendar month.
4. Expenses.
If
in
connection with the performance of services hereunder at the request of the
Company, the Executive incurs reasonable out-of-pocket costs for expenses for
travel or other reasonable expenses of a type for which other providers of
professional services to the Company would be reimbursed by the Company, the
Executive shall be entitled to reimbursement therefor by the Company in
accordance with the reasonable standards and procedures established by the
Company and communicated to the Executive.
5. Termination
of Agreement. This
Agreement is AT
WILL.
Accordingly, this Agreement and the Employment Period established hereunder
shall terminate immediately upon the occurrence of any of the following events:
(i) the Executive’s material breach of the Executive’s obligations under Section
2
and, if
such breach is curable, the Executive’s subsequent failure to substantially cure
such breach after notice of such breach within thirty (30) days; (ii) the
Executive’s voluntary termination of this Agreement for any reason, upon thirty
(30) days written notice to the Company; and (iii) in the event of no material
breach of the Executive’s obligations under Section 2 and subsequent failure to
cure the same, the Company’s voluntary termination of this Agreement for any
reason, upon thirty (30) days written notice to the Executive. In the event
of a
termination of this Agreement in accordance with this Section 5, the Company
shall have no further obligations hereunder other than with respect to the
payment of any Monthly Salary Payment and reimburseable expenses to which the
Executive is entitled through the effective date of such termination. Nothing
in
this Agreement shall be construed as conferring upon the Executive any rights
to
continue in the employ of the Company after the termination of the Executive’s
employment pursuant to this Agreement. The provisions of Section 6 shall survive
the termination of this Agreement.
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6. Confidential
Information.
The
Executive shall maintain Confidential Information (as defined below) in strict
confidence and secrecy and shall not at any time, directly or indirectly, use,
publish, make lists of, communicate, divulge or disclose to any person or
business entity or use for any purpose any Confidential Information or assist
any third parties in doing so, except on behalf of and for the benefit of the
Company. The Executive agrees, upon demand by the Company, to promptly return
all Confidential Information (including any copies, extracts thereof or
materials reflecting any such information) which is in the Executive’s
possession.
For
purposes of this Agreement, “Confidential
Information”
shall
include, but not be limited to, materials, records, data or trade secrets
regarding the assets, condition, business, financial information, business
affairs, business matters or other matters related to the Company and to its
direct and indirect subsidiaries and affiliates which the Executive has
knowledge of as a result of the Executive’s services for the Company.
Confidential Information shall not include information that becomes generally
available to the public other than as a result of disclosure by the Executive.
Nothing in this Agreement modifies or reduces the Executive’s obligations to
comply with applicable laws related to trade secrets, confidential information
or unfair competition.
7. No
Other Payments.
The
Company shall not be obligated to compensate the Executive in any manner other
than paying the Executive the Monthly Salary Payment described in Section 3
above and reimbursing expenses as provided in Section 4 above. Notwithstanding
anything else contained in this Agreement to the contrary, the Company shall
have no obligation to compensate the Executive following the termination of
the
Employment Period.
The
Company shall not be required to provide the Executive with any insurance or
other benefits generally made available to full time employees of the
Company.
8. Federal
and State Withholding.
The
Company shall deduct from the amounts payable to the Executive pursuant to
this
Agreement the amount of all required federal, state and local withholding and
employment taxes.
9. Successors
and Assigns.
This
Agreement will inure to the benefit of and be binding upon the Executive, the
Executive’s legal representatives and testate or intestate distributees, and the
Company, and its successors and assigns, including, in the case of the Company,
any successor by merger or consolidation or a statutory receiver or any other
person or firm or corporation to which all or substantially all of the
respective assets and business of the Company may be sold or otherwise
transferred. The Executive may not assign any of his rights under this Agreement
without the prior written consent of the Company. Except as expressly provided
herein, nothing in this Agreement shall be construed to give any person other
than the parties to this Agreement any legal or equitable right, remedy or
claim
under or with respect to this Agreement or any provision of this
Agreement.
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10. Waiver.
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power or privilege under this Agreement or the documents referred to
in
this Agreement will operate as a waiver of such right, power or privilege,
and
no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or
the
exercise of any other right, power or privilege.
11. Modification.
This
Agreement may only be amended by a written agreement executed by both
parties.
12. Notices.
All
notices and other communications under this Agreement must be in writing and
will be deemed to have been duly given if delivered by hand or by nationally
recognized overnight delivery service (receipt requested) or mailed by certified
mail (return receipt requested) with first class postage prepaid:
(a) if
to the
Company, to:
0000
Xxxxxx Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
President
with
a
copy to:
Xxxxxxxx
Xxxx Xxxxx, Esq.
Barack
Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000
X.
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
(b)
if
to the
Executive, to:
Xxxxxx
X.
Xxxxx
Windy
City, Inc.
0000
Xxxxxx Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
Xxxxxxxx 00000
or
to
such other person or place as either party shall furnish to the other in
writing. Except as otherwise provided herein, all such notices and other
communications shall be effective: (x) if delivered by hand, when delivered
(or, if delivery is refused by the recipient, upon such refusal); (y) if
mailed in the manner provided in this Section, upon confirmed receipt or
confirmed refusal of the recipient to accept delivery; or (z) if delivered
by overnight express delivery service, upon confirmation of such delivery or
upon a confirmed refusal of the recipient to accept such delivery.
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13. Entire
Agreement.
This
Agreement and any documents executed by the parties pursuant to this Agreement
and referred to herein constitute a complete and exclusive statement of the
entire understanding and agreement of the parties hereto with respect to their
subject matter and supersede all other prior agreements and understandings,
written or oral, relating to such subject matter between the parties.
14. Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. Without limiting the generality of
the
foregoing, if the scope of any provision contained in this Agreement is too
broad to permit enforcement to its full extent, but may be made enforceable
by
limitations thereon, such provision shall be enforced to the maximum extent
permitted by law, and the Executive hereby agrees that such scope may be
judicially modified accordingly.
15. Counterparts.
This
Agreement and any amendments hereto may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
16. Compliance
with Internal Revenue Code Section 409A.
To
the
extent applicable, this Agreement is intended to comply in all respects with
Internal Revenue Code Section 409A.
17. Governing
Law; Venue.
All
questions concerning the construction, validity and interpretation of this
Agreement, and the performance of the obligations imposed by this Agreement
shall be governed by the internal laws of the State of Virginia applicable
to
contracts made and wholly to be performed in such state without regard to
conflicts of laws. The parties: (x) agree that any suit, action or legal
proceeding relating to this Agreement may be brought in any federal court
located in the State of Virginia, County of Fairfax, if federal jurisdiction
is
available, and, otherwise, in any local court located in the State of Virginia,
County of Fairfax; (y) consent to the jurisdiction of each such court in any
such suit, action or proceeding; and (z) waive any objection which they may
have
to the laying of venue in any such suit, action or proceeding in either such
court.
18. Construction.
The
subject matter and language of this Agreement have been the subject of
negotiations between the parties and their respective counsel, and this
Agreement has been jointly prepared by their respective counsel. Accordingly,
this Agreement shall not be construed against either party on the basis that
this Agreement was drafted by such party or its counsel.
IN
WITNESS WHEREOF, each
of
the parties hereto has caused this Agreement to be executed, all as of the
day
and year first above written.
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By: /s/
Xxxx Xxxxx
Its: President
/s/
Xxxxxx X. Xxxxx
XXXXXX
X. XXXXX
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