EMPLOYMENT AGREEMENT WITH
XXXX XXXXXXXX
This Employment Agreement ("Agreement") is entered into as of the 1st day
of April, 2005 (the "Effective Date"), by and between XXXX XXXXXXXX (the
"EXECUTIVE") and INYX, INC. (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 Vice President and Chief Financial Officer, whose responsibilities
includes supervising the entire financial reporting and controls functions and
corporate governance compliance for the Company and its subsidiary operations,
as well as supervising the over all operations of Inyx USA, Ltd., and the
Company may 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 Xxxx Xxxxxxx,
Chairman and Chief Executive Officer of the Company ("CEO"), and Xxx X. Xxxxx,
Executive Vice President, or their designee or successor. The Executive
acknowledges that this appointment involves the affairs of the Company and its
affiliates in Puerto Rico, Toronto and in the United Kingdom. Accordingly, the
duties of the employment will require the Executive to spend a majority of his
time at the Company's new operations in Puerto Rico and the Company's operations
in the United Kingdom. In addition, the Executive will be required to travel to
and conduct duties across the United States and in other countries on behalf of
the Company and its affiliates.
1.2. TIME DEVOTED TO POSITION. The Executive, during the Employment Term,
shall devote his full 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 $200,000 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. CASH BONUS. Subject to Section 3.3 hereof, the Executive shall be
entitled to an annual cash bonus of up to fifty percent (50%) of the Executive's
annual based salary, with the bonus amount based upon performance criteria
achieved by the Company and the Executive during a twelve (12) month period that
are mutually agreed upon by the Company and the Executive at the outset of the
12-month period.
2.3. STOCK OPTIONS. The Executive shall be entitled to participate in
stock option and similar equity plans of Employer. In connection herewith, the
Executive will be granted 300,000 options to purchase shares of common stock of
the Company with an exercise price equal to the closing price of the Company's
common stock on April 1, 2005 on the following basis: 100,000 options to be
vested on March 31, 2006,; 100,000 options to be vested on March 31, 2007; and
100,000 options to be vested on March 31, 2008; with all options issued on terms
and conditions set forth in the Stock Option Plan of the Company and a Stock
Option Agreement with the Executive containing these terms. The Executive shall
be entitled to any additional annual stock option grants provided at the
discretion of the Board.
2.4. EXECUTIVE BENEFITS
2.4.1.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 business entertainment, business travel, hotel and meals
that are in accordance with Company policy and approved by the Chairman of
the Board and Chief Executive Officer of the Company. Employer shall also
reimburse Executive for reasonable home-office expenses incurred by
Executive during performance of his duties and responsibilities for the
Company, providing such expenses are approved by the CEO of the Company.
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2.4.2.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 health and
accident, medical and dental plans including any such benefit plans
offered by the Subsidiaries where applicable, and profit sharing and
retirement plans.
2.4.3.VACATION. The Executive shall be entitled to one (1) week paid
vacation that can be taken between July 1, 2005 and December 31, 2005.
Starting in calendar year 2006, Executive shall be entitled to four (4)
weeks paid vacation per calendar year. Unused vacation days in any year
will have to be taken by March 31st of the following year or will continue
to accrue for the benefit of the Executive and payable on termination of
employment.
3. EMPLOYMENT TERM; TERMINATION
3.1. EMPLOYMENT TERM. The Executive's employment hereunder shall commence
on April 1, 2005 and, except as otherwise provided in Section 3.2 hereof, shall
continue until March 31, 2006 (the "Initial Term"). Thereafter, this Agreement
shall automatically be renewed for successive one-year periods commencing on the
1st day of April of 2006 and of each subsequent year, unless either (i) Employer
and Executive agree to a new Employment Agreement, or (ii) 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 (in
accordance with Sections 3.3.2 and 3.3.3 hereof). Upon non-renewal of the
Employment Term pursuant to this Section 3.1 or termination pursuant to Sections
3.2.1 through 3.2.5 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 effective the Notice of
Termination is given, unless an extended period is agreed to by the
parties.
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 ninety (90) 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.
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3.2.4. CAUSE. Employer may, at its option, terminate the Employment
Term for "Cause" based on objective factors determined in good faith by
the Board of Directors 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, willful
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 in accordance with this Agreement and with law and good business
practice, other than a failure resulting from a Disability; or (v)
Executive is found to have been involved in regulatory violations,
criminal misconduct, dishonesty or other willful misconduct while
previously employed by other employers.
3.2.5. EMPLOYER RIGHT TO TERMINATE. Employer may terminate this
agreement at the end of its Initial Term, provided that Employer shall pay
Executive in accordance with payment described in Section 3.3.2 hereof. In
addition, Employer may terminate Executive for any reason, with or without
cause, prior to end of the Initial Term, by paying Executive the payment
described in Section 3.3.2 hereof. In consideration of such payment, and
assuming all other payments required hereby have been paid, Executive
agrees to provide Employer a general release of any claims relating to
such termination or otherwise.
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.
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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. Any payment made in accordance with this Section
3.3.1 shall be made at a convenient date no later than fourteen (14) days
after the termination date.
3.3.2. WITHOUT CAUSE BY EMPLOYER; ELECTION NOT TO RENEW BY
EXECUTIVE. In the event that the Employment Term is terminated by Employer
or Employer elects not to renew this Agreement pursuant to Section 3.2.5
hereof, 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 effective Date of Termination PLUS, an amount equal to
three (3) months Base Salary in effect at such applicable time (the
"Severance Amount") increased by 1 month for each additional year of
service up to a maximum of six (6) months.. Additionally, any Bonuses that
are due to the Executive shall be paid by Employer to Executive. In the
event that the Employment Term is terminated by Employer without cause
prior to the termination date of this Agreement pursuant to Section 3.2.5
hereof, it shall pay to the Executive, subject to the Executive's
continued compliance with the terms of Section 4 hereof, , any unpaid but
earned Base Salary through the effective Date of Termination PLUS, an
amount equal to six (6) months of Base Salary in effect at such applicable
time (the "Severance Amount"), increased by 1 month for each additional
year of service up to a maximum of twelve (12) months. Additionally, any
Bonuses that are due to the Executive shall be paid by Employer to
Executive. HOWEVER, if termination of Executive is due to or after a
Change of Control (as defined in Section 3.4.3 hereof) of the Employer,
the Severance Amount is increased to twenty-four (24) months Base Salary
in effect at such applicable time, and any non-vested stock options
granted to Executive shall become fully vested at time of such termination
date. 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 effective termination date. In consideration of such
payment, and assuming all other payments required hereby have been paid,
Executive agrees to provide Employer a general release of any claims
relating to such termination or otherwise.
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 Base Salary through the effective Date of
Termination. In addition, Employer shall pay Executive, in a single
lump-sum, an amount equal to any unpaid but earned Bonuses through the
effective Date of Termination, PROVIDED that the Executive provides
Employer with ninety (90) days advance notification in writing of the
intent to terminate or not to renew this Agreement.
3.3.4.DEATH OR DISABILITY. In the event that the Employment Term is
terminated by reason of Executive's Disability pursuant to Section 3.2.3
or death pursuant to Section 3.2.1 hereof, Employer shall pay to Executive
or his estate, in a single lump sum, an amount equal to any unpaid but
earned Bonuses and Base Salary through the effective Date of Termination.
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3.3.5. POST-EMPLOYMENT TERM BENEFITS. In the event of termination
for any reason, Employer shall reimburse Executive for any unpaid expenses
pursuant to Section 2.5.1 hereof. If Executive is terminated after
December 31, 2005, pursuant to Sections 3.2.3 or 3.2.5 hereof, Employer
shall pay, on behalf of Executive, for a period equal to three (3) months
from the effective Date of Termination (the "Benefits Period"), subject to
Executive's continued compliance with the terms of Section 4 hereof, all
medical, dental, health and accident, and disability plans and programs
other than stock options in which Executive was entitled to participate
immediately prior to the effective 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. If Executive is terminated for CAUSE
pursuant to Section 3.2.4 hereof, Employer shall pay for no additional
benefits after effective date of termination.
3.3.6.STOCK OPTIONS. Executive shall be entitled to receive the
Employer stock options set forth in Section 2.4 hereof and detailed in the
attached Stock Option Agreement.
3.4. DEFINITIONS.
3.4.1."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.
3.4.2."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.
3.4.3. "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).
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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 defenses 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 one (1) year 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 one (1) year 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. Nothing herein shall prohibit Executive from being a passive owner
of less than 1% of any publicly-traded class of capital stock of any entity
directly engaged in a competing business.
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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 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 defense 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:
Inyx, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chairman and Chief Executive Officer
Facsimile No.: 000-000-0000
If to Executive, to:
Xxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx Xxxxx, XX 00000
Facsimile No.: 000-000-0000
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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.
5.6. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be wholly performed therein, without regard to principles of conflicts of
laws.
5.7. 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.
5.8. 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.
5.9. 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.
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5.10. 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.
5.11. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively in arbitration
conducted in New York, New York 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.
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/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Executive Vice President
XXXX XXXXXXXX
/s/ Xxxx Xxxxxxxx
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