EMPLOYMENT AGREEMENT
Exhibit
10.8
Execution
Version
This
Agreement (this “Agreement”), is
entered into this 16th day of October 2009, by and between Caprius, Inc., a
Delaware corporation (the “Company”), and Xxxxxx
Xxxxxx (the “Executive”).
WHEREAS,
the Executive, prior to the execution of this Agreement, has acted as the
Chairman of the Board of Directors of the Company and served as its Chief
Executive Officer; and
WHEREAS,
the Company recognizes that the Executive’s talents and abilities are unique and
have been integral to the success of the Company and thus wishes to secure the
ongoing services of the Executive on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The
Company hereby agrees to employ the Executive as the Chief Executive Officer of
the Company, and the Executive hereby accepts such employment, on the terms and
conditions set forth below.
2. Term. The
Executive’s employment by the Company hereunder shall be for a period (the
“Employment
Period”) beginning on October 16, 2009 (the “Effective Date”) and
continuing as provided herein. The initial term of the Employment
Period shall terminate on October 31, 2010. Thereafter, the
Employment Period shall automatically renew for successive one-year terms unless
the Company or the Executive provides to the other ninety (90) days’ prior
written notice of non-renewal or this Agreement is otherwise terminated in
accordance with Section 6
herein.
3. Position and
Duties.
(a) During
the Employment Period, the Executive shall serve as the Chief Executive Officer
of the Company, with such duties, authority and responsibilities as are normally
associated with and appropriate for such position. The Executive also shall
serve as the Chief Executive Officer of the Company’s subsidiaries (the “Subsidiaries”), and,
if elected, as a director of the Company and the Subsidiaries. The
Executive shall report directly to the Board of Directors of the Company (the
“Board”).
(b) The
Executive shall devote substantially all of his working time, attention and
energies during normal business hours (other than absences due to illness or
vacation) to the performance of his duties for the Company.
4. Place of
Performance. At the time of execution of this Agreement, the
Company maintains a temporary administrative office in Paramus,
NJ. The Executive shall not be required to relocate to this location
or, during the first twelve (12) months of this Agreement, any other
location outside of the Detroit, Michigan metropolitan area, without his prior
consent. To the extent that the Company requires the Executive to
relocate during the Employment Period, the Company shall pay the Executive’s
reasonable and customary moving expenses associated therewith. During
the Employment Period, the Company shall provide the Executive with leased
office space within the Executive’s local area of residence, and/or an office
within the Executive’s residence, as mutually agreed.
5. Compensation and Related
Matters.
(a) Base
Salary. During the Employment Period, the Company shall pay
the Executive a “Base Salary” at the rate of $250,000 per year in the initial
term (“Base
Salary”) and annually thereafter at such increased amount, if any, as
shall be determined by the Board. The Executive’s Base Salary shall be paid in
approximately equal installments in accordance with the Company’s customary
payroll practices. If the Executive’s Base Salary is increased by the Company,
such increased Base Salary shall then constitute the Base Salary for all
purposes under this Agreement.
(b) Automobile. The
Company shall provide the Executive with a monthly car allowance of $1,000 which
the Executive may apply as reimbursement for his business use of a vehicle owned
or used by the Executive or for lease of a vehicle.
(c) Business, Travel and
Entertainment Expenses. During the Employment Period the
Executive is expected to undertake travel on behalf of the
Company. On airplane trips greater than four (4) hours in
scheduled time, the Executive may fly business class. The Company shall promptly
reimburse the Executive for all business, travel and entertainment expenses
directly relating to the business of the Company consistent with the Executive’s
position and duties, provided that the Executive furnish documentation in
accordance with the practices of the Company.
(d) Vacation. The
Executive shall be entitled to three (3) weeks of vacation per fiscal year
ending October 31. Vacation not taken during the applicable fiscal year (but not
in excess of 1 week) shall be carried over to the next following fiscal
year. The Company, at the end of the fiscal year, shall pay the
Executive for all unused vacation (vacation which was either not utilized or not
carried over to the next following calendar year) at a per diem rate based upon
the Base Salary for the applicable fiscal year.
(e) Welfare and Other Benefit
Plans. During the Employment Period, the Executive (and his
eligible spouse and dependents) shall be covered by medical and dental plans in
which he is a participant as of the Effective Date or by a comparable plan, and
he shall be entitled to participate in all other medical and welfare benefit
plans and programs maintained by the Company from time to time for the benefit
of its senior executives. In addition, during the Employment Period, the
Executive shall be eligible to participate in all pension, retirement, savings
and other employee benefit plans and programs, including stock option and other
equity plans, maintained from time to time by the Company for the benefit of its
senior executives, other than any annual cash incentive plan.
(f) Director’s and Officer’s
Insurance.
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(i) During
the Employment Period, the Company shall provide and maintain a director’s and
officer’s liability insurance policy with the Executive named as an insured
party, which policy shall be consistent with prior policies covering the Board,
provided that such insurance or comparable insurance is available on
commercially reasonable terms. The Executive shall not required to
contribute towards the premium of this insurance or its
deductible. The insurance policy shall include, but is not limited
to, coverage for fiduciary liability, employment practices law, entity
securities, and A-side coverage.
(ii) Executive
agrees that, consistent with Executive’s business and personal affairs, during
and after his employment by the Company, he will assist the Company in the
defense of any claims or potential claims that may be made or threatened to be
made against it in any action suit, or proceeding, whether, civil, criminal,
administrative, or investigative (a “Proceeding”) and will
assist the Company in the prosecution of any claims that may be made by the
Company in any Proceeding, to the extent that such claims may relate to
Executive’s services provided under this Agreement. The Company agrees to
reimburse Executive for all of Executive’s reasonable out-of-pocket expenses
with such assistance which occurs subsequent to the Employment Period, including
travel expenses and any attorney’s fees.
(g) Bonus. For
each full fiscal year (or part thereof) during the Employment Period, with the
first fiscal year being the 13 months ending October 31, 2010, the
Executive shall be eligible to receive an annual cash bonus, if any, in such
amount as shall be determined by the Compensation Committee of the Board (the
“Compensation
Committee”) (the “Annual
Bonus”). The Annual Bonus, if any, shall be based on the
achievement by the Company of performance goals established by the Compensation
Committee for each such fiscal year, which may, for example, include targets
related to the obtaining of debt or equity financing for the Company,
operational restructuring, product manufacturing restructuring, and or financial
metrics, such as earnings before interest, taxes, depreciation and amortization
of the Company. The Compensation Committee shall, at its sole and absolute
discretion, establish objective criteria to be used to determine the extent to
which performance goals have been satisfied and the amount of the Annual Bonus
to be paid.
(h) Accrued
Obligations. The Company acknowledges that the Executive has
certain accrued compensation and benefits (the “Accrued Obligations”)
for his services to the Company for periods prior to commencement of the
Employment Period in the aggregate amount of $117,884.53 and agrees that such
Accrued Obligations remain due and owing to the Executive as of the date
hereof.
6. Termination. The
Executive’s employment hereunder may be terminated during the Employment Period
under the following circumstances:
(a) Death. The
Executive’s employment hereunder shall terminate upon his death.
(b) Disability. If,
as a result of the Executive’s incapacity due to physical or mental illness as
determined by a physician selected by the Company, and reasonably acceptable to
the Executive, with the examination to take place in the city where the
Executive is then residing, the Executive shall have been substantially unable
to perform his duties hereunder for three (3) consecutive months, or for an
aggregate of 120 days during any period of twelve (12) consecutive months,
the Executive shall not have returned to the substantial performance of his
duties on a full-time basis, the Company shall have the right to terminate the
Executive’s employment hereunder for “Disability”.
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(c) Cause. The
Company shall have the right to terminate the Executive’s employment for
“Cause.” For purposes of this Agreement, the Company shall have “Cause” to
terminate the Executive’s employment only upon the Executive’s:
(i) conviction
of a felony or a crime involving moral turpitude,
(ii) commission
of any other substantial act or omission involving dishonesty, disloyalty or
fraud with respect to the Company,
(iii) repeated
failure to perform duties as reasonably directed by the Board,
(iv) acts
of gross negligence or willful misconduct with respect to the
Company,
(v) failure
to observe policies or standards approved by the Board regarding employment
practices, nondiscrimination and sexual harassment as the Board may address in
writing from time to time; provided, however, that such
failure shall not be deemed to constitute Cause if Executive takes appropriate
action (as determined by the Board) within thirty (30) days following written
notice from the Board to remedy such failure,
(vi) engaging
in any business or activity that competes with the business or activities of the
Company,
(vii) suffering
from habitual intoxication or dependence on any illegal narcotic or other
controlled substance, or
(viii) any
other material breach of the Agreement.
For
purposes of this Section 6(c), no
act or failure to act by the Executive shall be considered “willful” if such act
is done by the Executive in the good faith belief that such act is or was to be
beneficial to the Company or one or more of its businesses, or such failure to
act is due to the Executive’s good faith belief that such action would be
materially harmful to the Company or one of its businesses. “Cause”
shall not exist unless and until the Company has delivered to the Executive a
copy of a resolution duly adopted by the Board setting forth the good faith
determination of the Board that “Cause” exists (excluding the Executive if he is
then a member of the Board) at a meeting of the Board called and held for such
purpose on not less than five (5) days’ notice to the Executive, and an
opportunity for the Executive and his counsel to be heard before the Board at
such meeting.
(d) Good
Reason. The Executive may terminate his employment for “Good
Reason” after giving the Company detailed written notice thereof, if the Company
shall have failed to cure the event or circumstance constituting “Good Reason”
within thirty (30) days after receiving such notice. Good Reason shall mean
the occurrence of any of the following without the written consent of the
Executive:
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(i) a
change in Executive’s status, title, position or reporting responsibilities
which does not represent a promotion from his status, title, position or
reporting responsibilities as in effect immediately prior thereto, or the
assignment to the Executive of duties inconsistent with this Agreement;
or
(ii) any
material breach of this Agreement by the Company, provided that any breach by
the Company of Section 5 shall be deemed material.
(e) Without
Cause. The Company shall have the right to terminate the
Executive’s employment hereunder without Cause by providing the Executive with a
Notice of Termination.
(f) Without Good
Reason. The Executive shall have the right to terminate
his employment hereunder without Good Reason by providing the Company
with a Notice of Termination.
(g) Termination Due to Change of
Control. If the Executive’s employment hereunder is terminated
in connection with a Change of Control (as defined below), such termination
shall be deemed to be a termination without Cause.
“Change of Control”
shall mean (i) the consummation of a merger or consolidation of the Company with
or into another entity or any other corporate reorganization, if more than fifty
percent (50%) of the combined voting power of the continuing or surviving
entity’s securities outstanding immediately after such merger, consolidation or
other reorganization is owned by persons who were not equity holders of the
Company immediately prior to such merger, consolidation or other reorganization,
(ii) the sale, transfer or other disposition of all or substantially all of the
Company’s assets, (iii) the Board or the holders of equity securities of the
Company having approved any plan of liquidation, dissolution or bankruptcy of
such entity, or (iv) any “person” or “group” (as such terms are used in
Sections 13(d)(3)
and 14(d)(2) of
the Exchange Act or any successor provisions to either of the foregoing),
becoming, after the date of this Agreement, the “beneficial owner” (as such term
is defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of twenty
five percent (25%) or more of the voting power of the Company.
Neither a
going-private transaction with respect to the Company nor
a transaction involving Vintage Capital Group, LLC or any of its
affiliates shall be deemed to constitute a Change of Control for the purposes
hereof.
7. Termination
Procedure. Any termination of the Executive’s employment by
the Company or by the Executive during the Employment Period (other than
pursuant to Section 6(a))
shall be communicated by written Notice of Termination to the other party. For
purposes of this Agreement, a “Notice of Termination” shall mean a notice
indicating the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment under that
provision.
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8. Compensation Upon
Termination or During Disability. In the event the Executive
is disabled or his employment terminates during the Employment Period, the
Company shall provide the Executive with the payments and benefits set forth
below. The Executive acknowledges and agrees that the payments set forth in this
Section 8
constitute liquidated damages for termination of his employment during the
Employment Period.
(a) Termination By Company
without Cause or By Executive for Good Reason. If the
Executive’s employment is terminated by the Company without Cause (other than
Disability) or by the Executive for Good Reason:
(i) the
Company shall pay to the Executive, in addition to Base Salary and
reimbursements earned or accrued by Executive as of the date of termination, an
aggregate amount equal to the Executive’s then-current Base Salary, which amount
shall be paid on a monthly basis over the course of twelve (12) months
following his date of termination.
(ii) the
Company shall continue to provide the Executive and his eligible spouse and
dependents for a period equal to one (1) year following the Date of
Termination, the medical and welfare programs then provided for in Section 5(e), as
if he had remained employed; provided, that if the
Executive, his spouse or his dependents cannot continue to participate in the
Company programs providing such benefits, the Company shall arrange to provide
the Executive and his spouse and dependents with the economic equivalent of the
benefits they otherwise would have been entitled to receive under such plans and
programs; and provided, further, that such
benefits shall terminate on the date or dates the Executive becomes eligible to
receive equivalent coverage and benefits under the plans and programs of a
subsequent employer at an equivalent cost to the Executive (such coverage and
benefits to be determined on a coverage-by-coverage, or benefit-by-benefit,
basis);
(iii) until
the third anniversary of the Date of Termination, the Company shall continue to
provide the Executive with the benefits set forth in Section 5(f);
and
(iv) the
Executive shall be entitled to any other rights, compensation and/or benefits as
may be due to the Executive in accordance with the terms and provisions of any
stock option agreements, plans or programs of the Company (other than any
severance-based plan or program) to which the Executive is a party.
(b) Cause, By Executive Without
Good Reason, Disability or Death. If the Executive’s
employment is terminated by the Company for Cause, by the Executive other than
for Good Reason, for Disability or for death, then the Company shall provide the
Executive (or his estate) with Base Salary and reimbursements earned or accrued
by the Executive as of the date of termination, and shall have no further
obligation to the Executive hereunder.
9. Confidential Information;
Non-Competition and Non-Solicitation.
(a) Confidential
Information.
(i) The
Executive shall enter into, and fully comply with, an Employee Proprietary
Information and Invention Agreement, in form and substance satisfactory to the
Company, in connection with, and as a condition of, the parties entering into
this Agreement.
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(ii) Except
as may be required or appropriate in connection with his carrying out
his duties under this Agreement, the Executive shall not, without the prior
written consent of the Company or as may otherwise be required by law or any
legal process, or as is necessary in connection with any adversarial proceeding
against the Company (in which case the Executive shall cooperate with the
Company in obtaining a protective order at the Company’s expense against
disclosure by a court of competent jurisdiction), communicate, to anyone other
than the Company and those designated by the Company or on behalf of the Company
in the furtherance of its business or to perform his duties
hereunder, any trade secrets, confidential information, knowledge or data
relating to the Company and its businesses and investments, obtained by the
Executive during the Executive’s employment by the Company that is not generally
available public knowledge (other than by acts by the Executive in violation of
this Agreement).
(b) Non-Competition. During
the Employment Period and (i) for a period of one (1) year following
the termination of his employment by the Company without Cause or by Executive
for Good Reason or (ii) for a period of two (2) years following the
termination of his employment by the Company for Cause, the Executive shall not
engage in or become associated with any Competitive Activity in the United
States. For purposes of this Section 9(b), a
“Competitive Activity” shall mean any business or other endeavor within the
United States that directly competes with all or any substantial part of the
Company’s business as of the date of termination; provided, however, that the
Executive shall not be prohibited from owning less than one percent (2%) of any
publicly traded corporation, whether or not such corporation is in competition
with the Company.
(c) Non-Solicitation. During
the Employment Period, and for (i) a period of one (1) year after the
Executive’s date of termination if the Executive’s employment is terminated by
the Company without Cause or if the Executive terminates his employment for Good
Reason, and (ii) a period of two (2) years after the Executive’s date
of termination if the Executive’s employment is terminated by the Company for
Cause or if the Executive terminates his employment without Good Reason, the
Executive will not, directly or indirectly, solicit for employment any person
(other than any personal secretary or assistant hired to work directly for the
Executive) employed by the Company or its affiliated companies, nor will the
Executive, directly or indirectly, solicit for employment any person known by
the Executive (after reasonable inquiry) to be employed by the Company or its
affiliated companies or induce or attempt to induce any customer or supplier of
the Company to cease doing business with the Company.
(d) Injunctive
Relief. In the event of a breach or threatened breach of this
Section 9,
the Executive agrees that the Company shall be entitled to injunctive relief in
a court of appropriate jurisdiction to remedy any such breach or threatened
breach, the Executive acknowledging that damages would be inadequate and
insufficient.
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10. Indemnification.
(a) General. The
Company agrees that if the Executive is made a party or is threatened to be made
a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by
reason of the fact that the Executive is or was a trustee, employee, director or
officer of the Company or any of its Subsidiaries, or any of their affiliates,
or is or was serving at the request of the Company or any of their affiliates as
a trustee, director, officer, member, employee or agent of another corporation
or a partnership, joint venture, limited liability company, trust or other
enterprise, including, without limitation, service with respect to employee
benefit plans, whether or not the basis of such Proceeding is alleged action in
an official capacity as a trustee, director, officer, member, employee or agent
while serving as a trustee, director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the Company to the fullest
extent authorized by Delaware law, as the same exists or may hereafter be
amended, against all Expenses incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if the Executive has ceased to be an officer, director, trustee
or agent, or is no longer employed by the Company and shall inure to the benefit
of his heirs, executors and administrators.
(b) Expenses. As
used in this Agreement, the term “Expenses” shall include, without limitation,
damages, losses, judgments, liabilities, fines, penalties, excise taxes,
settlements, and reasonable costs, attorneys’ fees, accountants’ fees, and
disbursements and costs of attachment or similar bonds, investigations, and any
expenses of establishing a right to indemnification under this
Agreement.
(c) Partial
Indemnification. If the Executive is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Executive for the portion of such
Expenses to which the Executive is entitled.
(d) Advances of
Expenses. Expenses incurred by the Executive in connection
with any Proceeding shall be paid by the Company in advance upon request of the
Executive that the Company pay such Expenses, but only in the event that the
Executive shall have delivered in writing to the Company (i) an undertaking to
reimburse the Company for Expenses with respect to which the Executive is not
entitled to indemnification and (ii) a statement of his good faith belief
that the standard of conduct necessary for indemnification by the Company has
been met.
(e) Notice of
Claim. The Executive shall give to the Company notice of any
claim made against him for which indemnification will or could be sought under
this Agreement. In addition, the Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
the Executive’s power.
(f) Defense of
Claim. With respect to any Proceeding as to which the
Executive notifies the Company of the commencement thereof:
(i) The
Company will be entitled to participate therein at its own expense;
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(ii) Except
as otherwise provided below, to the extent that it may wish, the Company will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
the Executive, which in the Company’s sole discretion may be regular counsel to
the Company and may be counsel to other officers and directors of the Company or
any subsidiary. The Executive also shall have the right to employ his own
counsel in such action, suit or proceeding if he reasonably concludes that
failure to do so would involve a conflict of interest between the Company and
the Executive, and under such circumstances the fees and expenses of such
counsel shall be at the expense of the Company.
(iii) The
Company shall not be liable to indemnify the Executive under this Agreement for
any amounts paid in settlement of any action or claim effected without its
written consent. The Company shall not settle any action or claim in any manner
which would impose any penalty that would not be paid directly or indirectly by
the Company or limitation on the Executive or not include a full release of the
Executive, without the Executive’s written consent. Neither the Company nor the
Executive will unreasonably withhold or delay their consent to any proposed
settlement.
(g) Non-Exclusivity. The
right to indemnification and the payment of expenses incurred in defending a
Proceeding in advance of its final disposition conferred in this Section 10 shall
not be exclusive of any other right which the Executive may have or hereafter
may acquire under any statute or certificate of incorporation or by-laws of the
Company or any subsidiary, agreement, vote of shareholders or disinterested
directors or trustees or otherwise.
11. Legal Fees and Agreement to
Arbitrate.
(a) Fees.
(i) In
any action, suit or other proceeding between the parties seeking enforcement of
any of the terms or provisions of this Agreement, the prevailing party in such
action, suit or other proceeding shall be entitled to, and shall be awarded, in
addition to damages, injunctive or other relief, its reasonable costs and
expenses, including, without limitation, court costs and reasonable attorneys’
fees, costs and expenses.
(ii) Each
party to this Agreement shall pay its own expenses in connection with the
negotiation and documentation hereof.
(b) Arbitration. Except
to the extent expressly provided otherwise herein, all controversies, claims,
disputes, and matters in question arising out of, or relating to, this
Agreement, or the breach hereof, or the Executive’s employment or the
termination thereof, shall be decided by arbitration, while shall be held in the
city where the Company then has its principal executive office, under the rules
of the American Arbitration Association. The Executive understands
and agrees that he is waiving his rights to bring any such claims to court,
including his right to a jury trial. Any references herein to “court”
shall mean arbitration proceeding.
12. Successors; Binding
Agreement.
(a) Company’s
Successors. No rights or obligations of the Company under this
Agreement may be assigned or transferred, except that the Company shall require
any successor (whether direct or indirect, by purchase, merger, consolidation,
or otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place and the Executive agrees to be bound by
the provisions hereof. As used in this Agreement, “Company” shall
include any successor to its business and/or assets (by merger, purchase, change
of control as defined herein, or otherwise) which executes and delivers the
agreement provided for in this Section 12 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
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(b) Executive’s
Successors. No rights or obligations of the Executive under
this Agreement may be assigned or transferred by the Executive other than his
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon the Executive’s death, this
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive’s beneficiary or beneficiaries, personal
or legal representatives, or estate, to the extent any such person succeeds to
the Executive’s interests under this Agreement. If the Executive should die
following the date of termination while any amounts would still be payable to
him hereunder if he had continued to live, all such amounts unless otherwise
provided herein shall be paid in accordance with the terms of this Agreement to
such person or persons so appointed in writing by the Executive, or otherwise to
his legal representatives or estate.
13. Notice. For
the purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered either personally or by United States certified
or registered mail, return receipt requested, postage prepaid, or by recognized
express courier, or by facsimile or electronic mail addressed as
follows:
If to the
Executive:
At his
residence address most recently filed with the Company.
|
Facsimile:
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(000)
000-0000
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E-Mail:
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xxxxxxx@xxxxxxx.xxx
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If to the
Company:
Caprius,
Inc.
00 Xxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxx Xxxxxx 00000
|
Attention:
|
Board
of Directors
|
|
Facsimile:
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(000)
000-0000
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E-Mail:
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xxxxxxxx@xxxxxxx.xxx
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with a
copy to:
Xxxxxx,
Xxxxxxx & Xxxxxxx, LLP
0 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
|
Attention:
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Xxxxx
X. Xxxx
|
|
Facsimile:
|
(000)
000-0000
|
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E-Mail:
|
xxxx@xxx.xxx
|
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or to
such other address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
14. Miscellaneous. No
provisions of this Agreement may be amended, modified, or waived unless such
amendment or modification is agreed to in writing signed by the Executive and by
a duly authorized officer, or the Director who represents the Compensation
Committee, and such waiver is set forth in writing and signed by the party to be
charged. No waiver by either party hereto at any time of any breach by the other
party hereto of any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of
the parties hereunder of this Agreement shall survive the Executive’s
termination of employment and the termination of this Agreement to the extent
necessary for the intended preservation of such rights and
obligations. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware without regard to its conflicts of law principles.
15. Validity. The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
16. Counterparts. This
Agreement may be executed in one or more counterparts, including by facsimile or
electronic mail, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
17. Entire
Agreement. This Agreement, the Employee Proprietary
Information and Invention Agreement of even date herewith, and the
November 17, 2008 Stock Option Agreement between the Company and the
Executive, set forth the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto in respect of such subject matter. Any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
18. Withholding and Section
409A. The Company and the Executive intend that this Agreement
will be administered in accordance with Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and the rules
and regulations promulgated thereunder (collectively, “Section
409A”). If any provision of this Agreement would cause the
Executive to incur any additional tax or interest under Section 409A of the
Code, the Company shall, after consulting with and obtaining the consent of the
Executive, modify such provision to comply with the requirements of Section 409A
of the Code; provided, that the
Company agrees to make only such changes as are necessary to bring such
provisions into compliance with Section 409A of the Code and to maintain,
to the maximum extent practicable, the original intent and economic benefit to
the Executive of the applicable provision without violating the provisions of
Section 409A of the Code. In the event of any failure to comply
with Section 409A of the Code, the Company shall not be responsible for any
additional tax or interest that may be incurred by the Executive as a result of
such failure.
11
All
payments hereunder shall be subject to any required withholding of federal,
state and local taxes pursuant to any applicable law or regulation.
19. Section
Headings. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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CAPRIUS,
INC.
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|
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By:
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/s/Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
Title:
Director /Compensation
Committee
|
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EXECUTIVE
|
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/s/Xxxxxx Xxxxxx
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Xxxxxx
X. Xxxxxx
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