Exhibit 10.4.5
Inyx, Inc.
EMPLOYMENT AGREEMENT WITH
XXX XXXXX
This Employment Agreement ("Agreement") is entered into as of this 1st day of
December, 2003 (the "Effective Date"), by and between Xxx X. Xxxxx (the
"Executive") and Inyx, Inc., a Nevada corporation (the "Company" or the
"Employer"), or together the Parties.
R E C I T A L S:
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 officer
position of Executive Vice President and Director of Corporate Development &
Relations for the Company, whose responsibilities include directing strategic
planning and investor/public relations. 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 Chief Executive of the Company.
The Executive will be based in New York at an office maintained by the Company.
1.2. TIME DEVOTED TO POSITION. The Executive, during the Employment Term, shall
devote substantially all of his business time, attention and skills to the
business and affairs of the Employer.
1.3. 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.
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 by him 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 2005.
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. In connection herewith, the
Executive has been granted options to purchase 500,000 shares of common stock of
the Company, with an exercise price of $1.50 per share on terms and conditions
set forth in the Stock Option Agreement with the Company. The Executive shall be
entitled to any additional annual stock option grants provided at the discretion
of the Board.
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. Where appropriate the Executive's spouse shall be permitted to travel
with the Executive and the Executive shall be similarly reimbursed for the cost
of his spouse's travel. In the case of dues initiation and other fees for
private clubs, the amount of reimbursement under this paragraph shall not exceed
$25,000 USD for the year. In addition to being reimbursed for properly
documented expenses that the Executive may incur on behalf of the Company, the
Executive shall be reimbursed for any discretionary expenses which shall not
exceed $25,000 USD in each year during the Agreement Term.
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 $500 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 $5,000 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 (PROVIDED, that Executive qualifies
on a non-rated basis) 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
December 1, 2003 and, except as otherwise provided in Section 3.2 hereof, shall
continue until December 31, 2008 (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.
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 his 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; (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.
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; (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.
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).
(b) In the event the Employment Term is terminated (i) by Employer pursuant to
Section 3.2.3 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 3.2.6 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.
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 Executive shall not, while employed by the Company
and for a period of two (2) years following the Date of Termination, directly or
indirectly, hire, offer to hire, entice away or in any other manner persuade or
attempt to persuade any officer, employee, agent, lessor, lessee, licensor,
licensee or supplier of Employer or any of its Subsidiaries to discontinue or
alter his or its relationship with Employer or any of its Subsidiaries.
4.4. NON-COMPETITION. The Executive shall not, while employed by the Company and
for a period of three (3) years following the Date of Termination, engage or
participate, directly or indirectly (whether as an officer, director, employee,
partner, consultant, shareholder, lender or otherwise), in any business that
manufactures, markets or sells products that directly competes with any product
of the Employer that is significant to the Employer's business based on sales
and/or profitability of any such product as of the Date of Termination, unless
the Employment Term is terminated by Employer pursuant to Section 3.3.2 or by
the Executive pursuant to Section 3.2.5 hereof. Nothing herein shall prohibit
Executive from being a passive owner of any publicly-traded class of capital
stock of any entity directly engaged in a competing business.
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 Executive 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.
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:
Inyx, Inc.
000 Xxxxxxxx, 0xx Xxxxx,
Xxxxx, XX 00000
Attention: Vice President - Finance and Treasurer
Telecopy No.: (000) 000-0000
If to Executive, to:
Xxx X. Xxxxx
000 Xxxx Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
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]
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
INYX, INC.
By:
/s/ Xxxx Xxxxxxx
-------------------------------
Name: Dr. Xxxx Xxxxxxx
Title: Chairman
/s/ Xxx X. Xxxxx
-------------------------------
Xxx X. Xxxxx
