EMPLOYMENT AGREEMENT WITH DR. JACK KACHKAR
EMPLOYMENT
AGREEMENT WITH
DR.
XXXX XXXXXXX
This
Employment Agreement ("Agreement") is entered into as of this 1st day of
October, 2006, with October 1, 2006 being the commencement date of the Agreement
(the "Effective Date"), by and between Dr. Xxxx Xxxxxxx (the "Executive") and
Xxxxxx International, Inc., a New York corporation (the "Company” or the
“Employer”), or together the Parties.
RECITALS:
WHEREAS,
the Company desires to employ the Executive to provide personal services to
the
Company, and also wishes to provide the Executive with certain compensation
and
benefits in return for such services; and
WHEREAS,
the Executive wishes to be employed by the Company and provide personal services
to the Company in return for certain compensation and benefits.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as
follows:
1.
EMPLOYMENT
1.1.
GENERAL.
The Company hereby employs the Executive in the corporate position of Chairman
and Chief Executive Officer, for the Company. The Company may also assign other
reasonable corporate duties to the Executive from time to time. The Executive
agrees to perform and discharge such duties well and faithfully, and to be
subject to the supervision and direction of the Board of the Company. The
Executive will be based in Miami, Florida, at an office maintained by the
Company.
1.2.
CERTIFICATIONS.
Whenever the Executive is required by law, rule or regulation or requested
by
any governmental authority or by the Company or the Company's auditors to
provide certifications with respect to financial statements or filings with
the
Securities and Exchange Commission or any other governmental authority, the
Executive shall sign such certifications as may be reasonably requested by
such
officers, with such exceptions as the Executive deems necessary to make such
certifications accurate and not misleading.
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2.
COMPENSATION
AND BENEFITS
2.1.
SALARY.
At all times the Executive is employed hereunder, Employer shall pay to
Executive, and Executive shall accept, as full compensation for any and all
services rendered and to be rendered by him during such period to Employer
in
all capacities, including, but not limited to, all services that may be rendered
the Executive to any of Employer's existing subsidiaries, entities and
organizations hereafter formed, organized or acquired by Employer, directly
or
indirectly (each, a "Subsidiary" and collectively, the
"Subsidiaries"),
the
following: (i) a base salary at the annual rate of $150,000 USD, or at such
increased rate as the Board (through its Compensation Committee), in its sole
discretion, may hereafter from time to time grant to Executive, subject to
adjustments in accordance with Section 2.2 hereof (as so adjusted, the "Base
Salary"); and (ii) any additional bonus and the benefits set forth in Sections
2.3, 2.4 and 2.5 hereof. The Base Salary shall be payable in accordance with
the
regular payroll practices of Employer applicable to senior executives, less
such
deductions as shall be required to be withheld by applicable law and regulations
or otherwise.
2.2. ADJUSTMENTS
IN BASE SALARY. On each January 1st
during
the Employment Term, the Base Salary shall be increased by five percent (5%),
commencing in 2008.
2.3. BONUS.
Subject to Section 3.3 hereof, the Executive shall be entitled to an annual
bonus during the Employment Term in such amount as determined by the Board
based
on such performance criteria as it deems appropriate, including without
limitation, the Executive's performance and Employer's earnings, financial
condition, rate of return on equity and compliance with regulatory requirements.
The target amount of Executive's annual bonus shall be at least ten (10%)
percent of the Base Salary with no cap on bonus for reaching and exceeding
performance targets as set out in the Company’s annual budget. At the discretion
of the Board (through its Compensation Committee), the Executive shall also
be
entitled to additional project specific bonuses based on successfully completing
business or commercial opportunities which are accretive to the Company’s
financial performance.
2.4. STOCK
OPTIONS. The Executive shall be entitled to participate in stock option and
similar equity plans of Employer once such plans are established.
2.5.
EXECUTIVE
BENEFITS
2.5.1. EXPENSES.
Employer shall promptly reimburse the Executive for properly documented expenses
that he may reasonably incur in connection with the performance of his duties
including but not limited to, expenses for such items as entertainment, business
travel (all air travel shall be at least Business Class), hotel, meals, dues,
admission fees and initiation fees for various clubs. In the case of dues
initiation and other fees for private clubs, the amount of reimbursement under
this paragraph shall not exceed $15,000 USD for the year.
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2.5.2.
EMPLOYER
PLANS. Executive shall be entitled to participate in such employee benefit
plans
and programs as Employer may from time to time generally offer or provide to
executive officers of Employer or its Subsidiaries, including, but not limited
to, participation in life insurance, health and accident, medical and dental
plans including any such benefit plans offered by the Subsidiaries where
applicable, and profit sharing and retirement plans.
2.5.3. VACATION.
Executive shall be entitled to four (4) weeks of paid vacation per calendar
year, prorated for any partial year. Unused vacation days will continue to
accrue for the benefit of the Executive and payable on termination of
employment.
2.5.4. TRANSPORTATION.
Employer shall provide Executive with an automobile allowance of $2,000 USD
per
month together with all associated operating expenses and parking garage
expense. During the Employment Term, in accordance with the directives of the
Compensation Committee, the Executive shall be provided with reasonable
transportation for business purposes while working at each of the Company’s
office or business locations.
2.5.5.
PERSONAL
FINANCIAL AND TAX CONSULTING. The Company shall reimburse the Executive for
annual expense he incurs for personal financial and tax counselling, provided
that the amount of such reimbursement for any year shall not exceed $10,000
USD.
2.5.6.
PERSONAL
LEGAL CONSULTING. Upon presentation of an invoice, the Company shall reimburse
the Executive for any legal fees and expenses incurred in the negotiation of
this Agreement, provided that the amount of such reimbursement shall not exceed
$5,000 USD.
2.5.7.
LIFE
INSURANCE. Employer shall obtain a term life insurance policy, the premiums
of
which shall be borne by Employer and the death benefits of which shall be
payable to Executive's estate, or as otherwise directed by the Executive, in
the
amount equal to $1,000,000 USD.
3.
EMPLOYMENT
TERM; TERMINATION
3.1.
EMPLOYMENT
TERM. The Executive's employment hereunder shall commence on October 1, 2006
and, except as otherwise provided in Section 3.2 hereof, shall continue until
October 1, 2011 (the "Initial Term"). Thereafter, this Agreement shall
automatically be renewed for successive one-year periods commencing on the
fifth
(5th.)
anniversary of the date of this Agreement (with the Initial Term and any such
subsequent employment period(s), being referred to herein as the "Employment
Term"), unless Executive or Employer shall have provided a Notice of Termination
(as defined in Section 3.4.2 hereof) in respect of its or his election not
to
renew the Employment Term to the other party at least ninety (90) days prior
to
such termination. Upon non-renewal of the Employment Term pursuant to this
Section 3.1 or termination pursuant to Sections 3.2.1 through 3.2.6 hereof,
inclusive, Executive shall be released from any duties hereunder (except as
set
forth in Section 4 hereof) and the obligations of Employer to Executive shall
be
as set forth in Section 3.3 hereof only.
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3.2.
EVENTS
OF
TERMINATION. The Employment Term shall terminate upon the occurrence of any
one
or more of the following events:
3.2.1.
DEATH.
In
the event of Executive's death, the Employment Term shall terminate on the
date
of his death.
3.2.2.
WITHOUT
CAUSE BY EXECUTIVE. Executive may terminate the Employment Term at any time
during such Term for any reason whatsoever by giving a Notice of Termination
to
Employer. The Date of Termination pursuant to this Section 3.2.2 shall be sixty
(60) days after the Notice of Termination is given.
3.2.3.
DISABILITY.
In the event of Executive's Disability (as hereinafter defined), Employer may,
at its option, terminate the Employment Term by giving a Notice of Termination
to Executive. The Notice of Termination shall specify the Date of Termination,
which date shall not be earlier than thirty (30) days after the Notice of
Termination is given. For purposes of this Agreement, "Disability" means the
inability of Executive for 180 days in any twelve (12) month period to
substantially perform duties hereunder as a result of a physical or mental
illness, all as determined in good faith by the Board.
3.2.4.
CAUSE.
Employer may, at its option, terminate the Employment Term for "Cause" based
on
objective factors determined in good faith by a majority of the Board
as
set
forth in a Notice of Termination to Executive specifying the reasons for
termination and the failure of the Executive to cure the same within thirty
(30)
days after Employer shall have given the Notice of Termination; PROVIDED,
HOWEVER, that in the event the Board in good faith determines that the
underlying reasons giving rise to such determination cannot be cured, then
the
thirty (30) day period shall not apply and the Employment Term shall terminate
on the date the Notice of Termination is given. For purposes of this Agreement,
"Cause" shall mean: (i) Executive's conviction of, guilty or no contest plea
to
a felony (ii) an act or omission by Executive in connection with his employment
that constitutes fraud, criminal misconduct, breach of fiduciary duty,
dishonesty, gross negligence, malfeasance, wilful misconduct or other conduct
that is materially harmful or detrimental to Employer; (iii) a material breach
by Executive of this Agreement and the failure of the Executive to cure the
same
within thirty (30) days; or (iv) continuing failure to perform such proper
duties as are assigned to Executive by in accordance with this Agreement and
with law and good business practice, other than a failure resulting from a
Disability.
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3.2.5.
EMPLOYER'S
MATERIAL BREACH. Executive may, at his option, terminate the Employment Term
upon Employer's material breach of this Agreement and the continuation of such
breach for more than ten (10) days after written demand for cure of such breach
is given to Employer by Executive (which demand shall identify the manner in
which Employer has materially breached this Agreement). Employer's material
breach of this Agreement shall mean: (i) the failure of Employer to make any
payment that it is required to make hereunder to Executive when such payment
is
due or within two (2) business days thereafter; (ii) the assignment to
Executive, without Executive's express written consent, of duties inconsistent
with his positions, responsibilities and status with Employer, or a change
in
Executive's reporting responsibilities, titles or offices or any plan, act,
scheme or design to constructively terminate the Executive, or any removal
of
Executive from his positions with Employer, except in connection with the
termination of the Employment Term by Employer for Cause, without Cause or
Disability or as a result of Executive's death or voluntary resignation or
by
Executive other than pursuant to this Section 3.2.6; or (iii) a reduction by
Employer in Executive's Base Salary.
3.3. CERTAIN
OBLIGATIONS OF EMPLOYER FOLLOWING TERMINATION OF THE EMPLOYMENT TERM. Following
termination of the Employment Term under the circumstances described below,
Employer shall pay to Executive or his estate, as the case may be, the following
compensation and provide the following benefits in full satisfaction and final
settlement of any and all claims and demands that Executive now has or hereafter
may have hereunder against Employer. In connection with Executive's receipt
of
any or all monies and benefits to be received pursuant to this Section 3.3,
Executive shall not have a duty to seek subsequent employment during the period
in which he is receiving severance payments and the Severance Amount (as defined
in Section 3.3.2 hereof) shall not be reduced solely as a result of Executive's
subsequent employment by an entity other than Employer.
3.3.1.
FOR
CAUSE. In the event that the Employment Term is terminated by Employer for
Cause, Employer shall pay to Executive, in a single lump-sum, an amount equal
to
any unpaid but earned Base Salary through the Date of Termination.
3.3.2.
WITHOUT
CAUSE BY EMPLOYER; MATERIAL BREACH BY EMPLOYER; ELECTION NOT TO RENEW BY
EMPLOYER. In the event that the Employment Term is terminated by Executive
pursuant to Section 3.2.6 hereof or Employer elects not to renew this Agreement
at any time pursuant to Section 3.1 hereof, or if
such
termination is effective at any time after a Change of Control (as defined
in
Section 3.4.1 hereof) of the Employer, it shall pay to Executive, subject to
Executive's continued compliance with the terms of Section 4 hereof, any unpaid
but earned Base Salary through the Date of Termination PLUS an amount equal
to
two (2) times annual Base Salary in effect at such applicable time (the
"Severance Amount"). Additionally, any bonuses that are due to the Executive
shall be paid by Employer to Executive. Any payments made in accordance with
this Section 3.3.2 shall be made in a lump sum payment at a convenient date
no
later than fourteen (14) days after the termination date.
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3.3.3
WITHOUT
CAUSE BY EXECUTIVE; ELECTION NOT TO RENEW BY EXECUTIVE. In the event that the
Employment Term is terminated by Executive pursuant to Section 3.2.2 hereof
or
Executive elects not to renew this Agreement at any time pursuant to Section
3.1
hereof, Employer shall pay to Executive, in a single lump-sum, an amount equal
to any unpaid but earned bonuses and Base Salary through the Date of
Termination plus
any
additional compensation mutually agreed upon by Employer and Executive, at
the
Employer’s discretion, as approved by the Employer’s Compensation
Committee.
3.3.4. DISABILITY.
In the event that the Employment Term is terminated by reason of Executive's
Disability pursuant to Section 3.2.3 hereof, Employer shall pay to Executive,
subject to, in the case of Disability, Executive's continued compliance with
the
terms of Section 4 hereof, the Severance Amount, payable in accordance with
Section 3.3.2 hereof.
3.3.5.
POST-EMPLOYMENT
TERM BENEFITS. In the event that the Executive is terminated pursuant to
Sections 3.2.1 through 3.2.6 hereof, inclusive, or either Employer or Executive
elects not to renew this Agreement pursuant to Section 3.1 hereof, Employer
shall reimburse Executive for any unpaid expenses pursuant to Section 2.5.1
hereof and if Executive is terminated pursuant to Sections 3.2.3 or 3.2.5 hereof
or Employer elects not to renew this Agreement pursuant to Section 3.1 hereof,
Employer shall pay, on behalf of Executive, for a period equal to six (6) months
from the Date of Termination (the "Benefits Period"), subject to Executive's
continued compliance with the terms of Section 4 hereof, all life insurance,
medical, dental, health and accident, and disability plans and programs in
which
Executive was entitled to participate immediately prior to the Date of
Termination; PROVIDED, that Executive's continued participation is legally
possible under the general terms and provisions of such plans and programs.
In
the event that Executive's participation in any such plan or program is barred,
Employer, at its sole cost and expense shall use its commercially reasonable
efforts to provide Executive with benefits substantially similar to those that
Executive was entitled to receive under such plans and programs for the
remainder of the Benefits Period.
3.3.6.
STOCK
OPTIONS
(a)
If,
within twelve (12) months following a Change of Control (as defined in Section
3.4.1 hereof) of Employer, the Employment Term is terminated other than for
Cause, then Executive (or his estate) shall have six (6) months from the date
of
such event to exercise such stock options; PROVIDED, that the such stock options
shall not have otherwise expired in accordance with the terms thereof. In
connection there with, Employer agrees to use commercially reasonable efforts
to
amend Executive's Stock Option Agreements if necessary to effectuate the
provisions of this Section 3.3.6(a).
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(b)
In
the event the Employment Term is terminated (i) by Employer pursuant to Section
3.2.4 hereof and the reason for such termination is not related to the
performance of Executive in his duties with respect to Employer, or (ii) by
Executive pursuant to Section 3.2.5 hereof, then all stock options theretofore
granted to Executive shall thereupon vest and Executive shall have twelve (12)
months from such date to exercise such options; PROVIDED, that the relevant
stock option plan remains in effect and such stock options shall not have
otherwise expired in accordance with the terms thereof. In connection therewith,
Employer agrees to use commercially reasonable efforts to amend Executive's
Stock Option Agreements if necessary to effectuate the provisions of this
Section 3.3.6(b).
3.4.
DEFINITIONS
3.4.1.
"CHANGE
OF CONTROL" DEFINED. A "Change of Control" of Employer means (i) the approval
by
the stockholders of the Company of the sale, lease, exchange or other transfer
(other than pursuant to internal reorganization) by the Company of all or
substantially all of its respective assets to a single purchaser or to a group
of associated purchasers; (ii) the first purchase of shares of equity securities
of the Company pursuant to a tender offer or exchange offer (other than an
offer
by the Company) for at least fifty (50%) percent of the equity securities of
the
Company; (iii) the approval by the stockholders of the Company of an agreement
for a merger or consolidation in which the Company shall not survive as an
independent, publicly-owned corporation; (iv) the acquisition (including by
means of a merger) by a single purchaser or a group of associated purchasers
of
securities of the Company from the Company or any third party representing
fifty
(50%) percent or more of the combined voting power of the Company's then
outstanding equity securities in one or a related series of transactions (other
than pursuant to an internal reorganization or transfers of the Executive’s
interests).
3.4.2.
"NOTICE
OF TERMINATION" DEFINED. "Notice of Termination" means a written notice that
indicates the specific termination provision relied upon by Employer or
Executive and, except in the case of termination pursuant to Sections 3.2.1
or
3.2.2 hereof, that sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employment Term under the
termination provision so indicated.
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3.4.3.
"DATE OF TERMINATION" DEFINED. "Date of Termination" means such date as the
Employment Term is expired if not renewed or terminated in accordance with
Sections 3.1 or 3.2 hereof.
4.
CONFIDENTIALITY
AND NONSOLICITATION; PROPERTY RIGHTS
4.1.
"CONFIDENTIAL
INFORMATION" DEFINED. "Confidential Information" means any and all information
(oral or written) relating to Employer or any Subsidiary or any entity
controlling, controlled by, or under common control with Employer or any
Subsidiary or any of their respective activities, including, information not
previously disclosed to the public or to the trade by the Company’s management,
or otherwise in the public domain, with respect to the Company’s products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information, business
plans, prospects or opportunities, but shall exclude any information which
(i)
is or becomes available to the public or is generally known in the industry
or
industries in which the Company operates other than as a result of disclosure
by
the Executive in violation of his agreements under this Section or (ii) the
Executive is required to disclose under any applicable laws, regulations or
directives of any government agency, tribunal or authority having jurisdiction
in the matter or under subpoena or other process of law. The Executive confirms
that all restrictions in this Section are reasonable and valid and waives all
defences to the strict enforcement thereof.
4.2.
NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION. The Executive shall not at any time (other than
as
may be required or appropriate in connection with the performance by him of
his
duties hereunder), directly or indirectly, use, communicate, disclose or
disseminate any Confidential Information in any manner whatsoever (except as
may
be required under legal process by subpoena or other court order).
4.3.
CERTAIN
ACTIVITIES. The
Company acknowledges that the Executive is currently employed by Inyx, Inc.,
an
affiliated Company in the capacity of Chairman and Chief Executive Officer,
and
as such majority of his time is devoted to that entity.
4.4.
INTENTIONALLY
LEFT BLANK.
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4.5.
PROPERTY
RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to information, inventions and
discoveries or any interest in any copyright and/or other property right
developed, made or conceived of by Executive, either alone or with others,
at
any time during his employment by Employer and whether or not within working
hours, arising out of such employment or pertinent to any field of business
or
research in which, during such employment, Employer is engaged or (if such
is
known to or ascertainable by Executive) is considering engaging, Executive
hereby agrees:
(a)
that
all such information, inventions and discoveries or any interest in any
copyright and/or other property right, whether or not patented or patentable,
shall be and remain the exclusive property of the Employer;
(b)
to
disclose promptly to an authorized representative of Employer all such
information, inventions and discoveries or any copyright and/or other property
right and all information in Executive's possession as to possible applications
and uses thereof;
(c)
not
to file any patent application relating to any such invention or discovery
except with the prior written consent of an authorized officer of Employer
(other than Executive);
(d)
that
Executive hereby waives and releases any and all rights Executive may have
in
and to such information, inventions and discoveries, and hereby assigns to
the
Company and/or its nominees all of Executive's right, title and interest in
them, and all Executive's right, title and interest in any patent, patent
application, copyright or other property right based thereon. Executive hereby
irrevocably designates and appoints Employer and each of its duly authorized
officers and agents as his agent and attorney-in-fact to act for him and on
his
behalf and in his stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement
of
any such patent, patent application, copyright or other property right with
the
same force and effect as if executed and delivered by Executive;
and
(e)
at
the request of Employer, and without expense to Executive, to execute such
documents and perform such other acts as Employer deems necessary or
appropriate, for Employer to obtain patents on such inventions in a jurisdiction
or jurisdictions designated by Employer, and to assign to Employer or its
designee such inventions and any and all patent applications and patents
relating thereto.
4.6. INJUNCTIVE
RELIEF. The parties hereby acknowledge and agree that: (a) Employer will be
irreparably injured in the event of a breach by Executive of any of his
obligations under this Section 4; (b) monetary damages will not be an adequate
remedy for any such breach; (c) Employer will be entitled to injunctive relief,
in addition to any other remedy which it may have, in the event of any such
breach; and (d) the existence of any claims that Executive may have against
Employer, whether under this Agreement or otherwise, will not be a defence
to
the enforcement by Employer of any of its rights under this Section
4.
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4.7.
NON-EXCLUSIVITY
AND SURVIVAL. The covenants of the Executive contained in this Section 4 are
in
addition to, and not in lieu of, any obligations that Executive may have with
respect to the subject matter hereof, whether by contract, as a matter of law
or
otherwise, and such covenants and their enforceability shall survive any
termination of the Employment Term by either party and any investigation made
with respect to the breach thereof by Employer at any time.
5.
MISCELLANEOUS PROVISIONS.
5.1.
SEVERABILITY.
If, in any jurisdiction, any term or provision hereof is determined to be
invalid or unenforceable, (a) the remaining terms and provisions hereof shall
be
unimpaired; (b) any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction; and (c) the invalid or unenforceable term or provision shall,
for
purposes of such jurisdiction, be deemed replaced by a term or provision that
is
valid and enforceable and that comes closest to expressing the intention of
the
invalid or unenforceable term or provision.
5.2.
EXECUTION
IN COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and
by the different parties hereto in separate counterparts, each of which shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement (and all signatures need not appear on any one
counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered to
each
of the other parties hereto.
5.3.
NOTICES.
All notices, requests, demands and other communications hereunder shall be
in
writing and shall be deemed duly given upon receipt when delivered by hand,
overnight delivery or telecopy (with confirmed delivery), or three (3) business
days after posting, when delivered by registered or certified mail or private
courier service, postage prepaid, return receipt requested, as
follows:
If
to
Employer, to:
Xxxxxx
International, Inc.
000
Xxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx, 00000
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If
to
Executive, to:
Xxxx
Xxxxxxx
Unit
#
1210, 000 Xxxxx Xxx Xxxxx
Xxx
Xxxxxxxx, Xxxxxxx 00000
or
to
such other address(es) as a party hereto shall have designated by notice in
writing to the other parties hereto.
5.4. AMENDMENT.
No provision of this Agreement may be modified, amended, waived, or discharged
in any manner except by a written instrument executed by both the Employer
and
the Executive.
5.5.
ENTIRE
AGREEMENT. This Agreement and, with respect to Section 3.3.6 hereof, Executive's
Stock Option Agreements and the governing stock option plans, constitute the
entire agreement of the parties hereto with respect to the subject matter
hereof, and supersede all prior agreements and understandings of the parties
hereto, oral or written. In the event of any conflict between Section 3.3.6
hereof and Executive's Stock Option Agreements and the governing stock option
plans, Section 3.3.6 shall govern.
5.6.
APPLICABLE
LAW. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida applicable to contracts made and to be wholly
performed therein.
5.7.
INTENTIONALLY
LEFT BLANK.
5.8.
HEADINGS.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
5.9.
BINDING
EFFECT; SUCCESSORS AND ASSIGNS. The Executive may not delegate any of his duties
or assign his rights hereunder. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Employer shall require any
successor (whether direct or indirect and whether by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Employer, by an agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform if no such succession had taken place.
5.10.
WAIVER,
ETC. The failure of either of the parties hereto to, at any time, enforce any
of
the provisions of this Agreement shall not be deemed or construed to be a waiver
of any such provision, nor to in any way affect the validity of this Agreement
or any provision hereof or the right of either of the parties hereto thereafter
to enforce each and every provision of this Agreement. No waiver of any breach
of any of the provisions of this Agreement shall be effective unless set forth
in a written instrument executed by the party against whom or which enforcement
of such waiver is sought, and no waiver of any such breach shall be construed
or
deemed to be a waiver of any other or subsequent breach.
5.11.
CAPACITY,
ETC. Executive and Employer hereby represent and warrant to the other that,
as
the case may be: (a) he or it has full power, authority and capacity to execute
and deliver this Agreement, and to perform his or its obligations hereunder;
(b)
such execution, delivery and performance shall not (and with the giving of
notice or lapse of time or both would not) result in the breach of any
agreements or other obligations to which he or it is a party or he or it is
otherwise bound; and (c) this Agreement is his or its valid and binding
obligation in accordance with its terms.
5.12.
ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively in arbitration conducted in Miami, Florida in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any court having
jurisdiction. Punitive damages shall not be awarded. In any arbitration
proceeding, the party determined to be the prevailing party shall be entitled
to
receive, in addition to any other award, its attorneys’ fees and expenses of the
proceeding.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto as of the date first above written.
Xxxxxx
International, Inc.
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By:
/s/ Xxx X. Xxxxx
|
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Name:
Xxx X. Xxxxx
|
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Title:
Executive Vice President
|
|
EXECUTIVE
|
|||
|
/s/
Dr. Xxxx Xxxxxxx
|
|||
|
Dr.
Xxxx Xxxxxxx
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13
of 13
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