EMPLOYMENT AGREEMENT
Exhibit 10.2
This Employment Agreement (“Agreement”) is entered into as of August 10, 2007, between
Xcorporeal, Inc., a Delaware corporation (“Company”), and Xxxxxx Xxxxxxxxx, an individual
(“Executive”).
Recitals
A. The Company is engaged in the business of developing and marketing Hospital Artificial
Kidney (HAK), Wearable Artificial Kidney (WAK), Hospital Ultrafiltration Device (HUD) and Wearable
Ultrafiltration Device (WUD) products, including performing lab experimentation, equipment testing,
design review, verification, validation, development of prototypes and reporting, and U.S. Food &
Drug Administration and other regulatory approval processes (the “Business”).
B. The Company desires to employ the Executive as its Chief Financial Officer, and the
Executive desires to be so employed by the Company, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration thereof and of the covenants and conditions contained herein,
the parties agree as follows:
Agreement
1. Board Approval. The Company and the Executive acknowledge that this entire
Agreement is subject to approval by the Company’s Board of Directors (“Board”).
2. Employment. The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to serve as the Chief Financial Officer of the Company. The Executive agrees to
perform such lawful services customary to that office and to perform those services assigned to him
from time to time by the Company’s Executive Chairman, Chief Executive Officer, President, Chief
Operating Officer, or Board. The Executive further agrees to use his best ability and skills to
promote the interests of the Company and to devote his full business time and energies to the
business and affairs of the Company.
3. Term of Agreement. The Executive’s employment with the Company shall commence on a
date to be determined by the parties, subject to the Board’s approval of this Agreement, which date
when determined will be the “Effective Date” and provided in Section 10 below. Subject to the
terms of Sections 5 and 6 of this Agreement, the Term of this Agreement will commence on the
Effective Date for a period of three (3) years, if the Executive relocates his residence to
Southern California within one year after the Effective Date, and thereafter will renew
automatically for one (1) year terms unless either the Company or the Executive provides written
notice of non-renewal to the other party not later than ninety (90) days prior to the scheduled
expiration of the Term in effect. In the event the Executive does not relocate his residence to
Southern California within one year after the Effective Date, the Term of this Agreement will be
for a period of one (1) year, and thereafter will continue on a month-to-month basis subject to the
terms of Sections 5 and 6 of this Agreement.
4. Compensation and Other Related Matters.
(a) Salary. As compensation for services rendered hereunder, the Executive shall
receive an annual base salary (“Base Salary”) of Two Hundred Seventy-Five Thousand Dollars
($275,000.00), which salary shall be paid in accordance with the Company’s then prevailing payroll
practices. The Company shall not decrease the Executive’s Base Salary. At the Company’s sole
discretion the Executive’s Base Salary may be increased annually. Notwithstanding the foregoing,
commencing January 1, 2008 and annually thereafter, the Base Salary shall be increased by at least
the Consumer Price Index for Los Angeles, California (or a reasonable proxy thereof).
(b) Bonus. During the term of this Agreement, and in the Company’s sole discretion,
the Executive shall be eligible to receive an annual discretionary bonus of up to 50% of the
Executive’s base salary at the end of each calendar year, subject to the Executive and the Company
achieving annual performance objectives. The annual performance objectives will be agreed before
the start of each calendar year between the Executive and the Chief Operating Officer, subject to
the approval of the Company’s Board of Directors or its Compensation Committee. To receive each
annual discretionary bonus, the Executive must still be employed with the Company as of December 31
of the year for which the annual discretionary bonus is payable and not be in breach at the time
the bonus is payable. The Company agrees that the Executive shall receive a guaranteed bonus of no
less than 20% of the Executive’s Base Salary at the end of calendar year 2007 (“2007 Bonus”). The
2007 Bonus shall be calculated based on the total Base Salary actually earned by the Executive
between the Effective Date and December 31, 2007. Subject to achievement of the 2007 performance
objectives agreed upon the parties set forth in Schedule I attached hereto, and at the Company’s
sole discretion, the Executive shall be eligible to receive a discretionary bonus (in addition to
the 2007 Bonus) at the end of calendar year 2007.
(c) Stock Options.
(i) Grant of Shares. On the Effective Date, the Executive shall be granted options
to purchase three hundred thousand (300,000) shares of common stock under the 2006 Incentive
Compensation Plan (the “Plan”). Such options will vest and be exercisable at a rate of twenty-five
percent (25%) per year commencing on the first anniversary of the date of grant and will have an
exercise price equal to the Fair Market Value, as such term is defined in the Plan, on the date of
grant.
(ii) Acceleration. Notwithstanding provision (i) above, and provided that the
Executive has already relocated to Southern California: (A) any options not vested upon
Executive’s death or the termination of the Executive’s employment because he has become Disabled
(as defined below) will immediately vest and be exercisable in accordance with the Plan; (B) if
the Company terminates the Executive without Cause (as defined below) before the end of twelve (12)
months from the Effective Date, the first tranche of twenty-five percent (25%) of the Executive’s
options will immediately vest and be exercisable in accordance with the Plan upon termination; (C)
if the Company terminates the Executive without Cause after twelve (12) months but before the end
of eighteen (18) months from the Effective Date, the second tranche of twenty-five percent (25%) of
the Executive’s options will immediately vest and be exercisable
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in accordance with the Plan; (D) if the Company terminates the Executive without Cause after
eighteen (18) months but before the end of thirty (30) months from the Effective Date, the third
tranche of twenty-five percent (25%) of the Executive’s options will immediately vest and be
exercisable in accordance with the Plan; and (E) if the Company terminates the Executive without
Cause after thirty (30) months from the Effective Date, the entire grant of three hundred thousand
(300,000) options described in 4(c)(i) will immediately vest and be exercisable in accordance with
the Plan.
(iii) Fair Market Value. In the event, at the time the Executive elects to exercise
any options, the common stock of Employer is not trading in sufficient volume to permit the
Executive to immediately sell the common stock acquired upon exercise in the open market (subject
to any then applicable securities laws), the Executive may pay the exercise price for such shares
by either (A) the surrender of that portion of the exercised option shares having a Fair Market
Value on the date of exercise equal to the aggregate exercise price of the options so exercised or
(B) the surrender of Employer’s common stock having a Fair Market Value on the date of exercise
equal to the exercise price of the options so exercised and, in the case of common stock acquired
by the Executive directly or indirectly from Employer, has been owned by the Executive for a
sufficient period to avoid a compensation expense to Employer under then applicable accounting
rules.
(iv) Change of Control.
(A) Provided the Executive has relocated to Southern California prior to the effective date
of a Change in Control, if the acquirer in the Change in Control does not adopt the Executive’s
option grant under the Plan in accordance with 26 C.F.R. 1.424-1 or offer the Executive a
substitute grant under the acquirer’s plan having similar economic value to the Executive’s option
grant under the Plan, any options granted to the Executive under the Plan that would not otherwise
be vested on the effective date of the Change in Control shall immediately vest and be exercisable
immediately prior to the effective date of the Change in Control.
(B) Provided the Executive has relocated to Southern California before the effective date of
a Change in Control, if the acquirer in the Change in Control adopts the Executive’s option grant
under the Plan in accordance with 26 C.F.R. 1.424-1, or offers the Executive a substitute grant
under the acquirer’s stock option plan having similar economic value to the Executive’s option
grant under the Plan, and (1) within six (6) months following the effective date of the Change in
Control the acquirer terminates the Executive’s employment without Cause, or (2) if within twelve
(12) months of the Effective Date and within six (6) months of the effective date of the Change in
Control if the acquirer terminates the Executive with or without cause, then to the extent that
twenty-five percent (25%) or more of the Executive’s total granted options remain unvested on the
date his employment terminates, twenty-five percent (25%) of the Executive’s total granted options
from the acquirer (by adoption or grant) shall immediately vest and be exercisable. For the
avoidance of doubt, if the acquirer does not agree to include this right in its substitute grant to
the Executive, the Executive’s option grant under the Plan shall be treated as under Section
4(c)(iv)(A) above.
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(C) If the Executive has not relocated to Southern California prior to the effective date of
the Change in Control, the Executive shall not be entitled to any acceleration in the vesting of
his options under the Plan in connection with the Change in Control.
(D) For purposes of this Agreement, a “Change in Control” shall be defined as (1) the
acquisition of the Company by another entity by means of a transaction or series of related
transactions (including, without limitation, any reorganization, merger, stock purchase or
consolidation) or (2) the sale, transfer or other disposition of all or substantially all of the
Company’s assets.
(v) In all other respects, the stock options granted under this paragraph 4(c) shall be
subject to the Plan.
(vi) In addition to the stock options described above, the Executive will be eligible to
receive stock, stock options, or other securities of the Company under plans that are provided to
other similar executives of the Company. Future grants, if any, will vest according to the terms
at time of grant.
(d) Other Benefits. The fringe benefits, perquisites, and other benefits of
employment to be provided to the Executive shall be equivalent to such benefits and perquisites as
are provided to other similar executives of the Company as amended from time to time. The
Executive’s Paid Time Off is defined and will accrue pursuant to the Paid Time Off provisions of
the Company’s Employee Handbook, except that the Executive will be entitled to vacation of four (4)
weeks during each year of employment, which may be taken by the Executive upon prior notice in
accordance with the Company’s policies applicable to Company executives. In addition, the
Executive will be provided with accidental death and disability and long-term disability insurance
in amounts each no less than the Executive’s annual Base Salary then in effect, or reimbursed for
the reasonably equivalent cost of a private disability policy up to $1000 per month. If necessary,
the Company will reimburse the Executive for COBRA coverage until such time as the Executive is
covered under the Company’s group medical and dental plans.
(e) Equipment. Company will provide Executive with a suitable notebook computer and
related equipment to enable Executive to conduct business from his New York home office. The
Company agrees to provide other personal computer equipment necessary for the Executive to perform
his duties upon submission of request by the Executive and approval by the Company. All equipment
provided will remain the Company’s property and the Executive agrees to provide the Company access
to the equipment immediately upon request due to regulatory requirements or any other reason.
(f) Expenses. The Executive will be reimbursed for all reasonable and customary
out-of-pocket expenses actually incurred by him in the furtherance of his duties under this
Agreement. Such expenses shall be reimbursed upon submission to the Company of invoices containing
original receipts for all such expenditures, and upon review by the Company with respect to the
reasonable nature and amount thereof. Reasonable expenses include reimbursement for telephone
charges for business-related calls from the Executive’s New York home office and mobile phone
charges for business-related calls, provided that itemized invoices
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are submitted within thirty (30) days of the Executive’s receipt of the statement for those
charges.
(g) Commuting Expenses. The Company shall reimburse the Executive for reasonable
commuting expenses, consistent with the Travel Policy in the Company’s Employee Handbook, between
the Executive’s Irvington, New York, residence and the Company’s Los Angeles, California offices
for a period of up to twelve (12) months from the Effective Date.
(h) Presence in LA Office. Executive agrees to spend at least one week per month at
the Company’s Los Angeles office located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, 00000.
(i) Moving Expenses. Within twelve (12) months from the Effective Date, Executive
will have the opportunity to relocate his and his immediate family’s one residence to Southern
California. The Company agrees to reimburse the Executive for the reasonable expenses incurred in
transporting his and his immediate family’s one household and belongings from Irvington, New York
to Los Angeles, California. The Company further agrees to reimburse the Executive for the closing
costs incurred by the Executive with respect to the sale of his New York residence and the purchase
of his new residence in California. The Executive agrees to provide the Company with an estimate
of the cost for approval before the move, and after the move, the Company will reimburse the
Executive the actual costs paid.
5. Termination.
(a) Employment At-Will. Executive’s employment with the Company is at-will, which
means that either the Executive or the Company can terminate it at any time, without notice, for
any cause, or no cause. For purposes of this Agreement, a termination shall be for “Cause” if
Executive, in the good faith opinion of the Company’s Board,:
(i) Commits an act of fraud, moral turpitude, misappropriation of funds or embezzlement in
connection with his duties;
(ii) Materially breaches the Executive’s fiduciary duty to the Company, including, but not
limited to, acts of self-dealing (whether or not for personal profit);
(iii) Materially breaches this Agreement, provided, however, that (A) no termination shall
occur on that basis unless, if the breach is curable, the Company first provides the Executive with
written notice to cure (the notice to cure shall reasonably specify the acts or omissions that
constitute the Executive’s material breach), (B) the Executive shall have a reasonable opportunity
(not to exceed 30 days after the date of notice to cure) to cure the breach and (C) termination
shall be effective as of the date of notice to cure;
(iv) Materially breaches the Confidentiality Agreement or the Company’s written Codes of
Ethics as adopted by the Board;
(v) Materially violates any provision of Company’s written Employee Handbook, or any
applicable state or federal law or regulation;
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(vi) Except during a Disability Period, defined below, fails or refuses to comply with all
relevant and material obligations, assumable and chargeable to an executive of his corporate rank
and responsibilities, under the Xxxxxxxx-Xxxxx Act and the regulations of the Securities and
Exchange Commission promulgated thereunder;
(vii) Fails or refuses to comply with the lawful directives of the Company in the performance
of his duties under this Agreement (except during a Disability Period);
(viii) Engages in willful misconduct that is materially injurious to the Company;
(ix) Uses illegal substances, or excessively uses alcohol to a point of substantially
impairing his faculties, senses, or judgment, while on Company premises or performing Company
Business;
(x) Is convicted of, or enter a plea of guilty or no contest to, a felony or misdemeanor under
state or federal law, other than a traffic violation or misdemeanor not involving dishonesty or
moral turpitude; or
(xi) Commits an act of gross neglect or gross misconduct which the Company reasonably deems to
be good and sufficient cause.
(b) Good Reason. For purposes of this Agreement, a resignation shall be for “Good
Reason” if tendered by the Executive within thirty (30) days of any of the following actions by or
involving the Company:
(i) Assignment to the Executive of duties materially inconsistent with the Executive’s status,
or a substantial reduction in the nature or status of the Executive’s responsibilities;
(ii) After the Executive’s relocation to Los Angeles, the relocation of the Executive’s site
of employment outside a 30 mile radius of Los Angeles without the Executive’s consent, except for
reasonably required travel on Company’s Business;
(iii) Failure to cause any acquiring or successor entity following a Change in Control to
assume the Company’s obligations under this Agreement, unless such assumption occurs by operation
of law;
(iv) Material breach of this Agreement by the Company including failure to timely pay to the
Executive any amount due under Section 3, which continues after written notice and reasonable
opportunity to cure (not to exceed 30 days after the date of notice); or
(v) Demand by the Company, Board, or any other senior executive that the Executive violate any
relevant and material obligations, assumable and chargeable to an executive of his corporate rank
and responsibilities, under the Xxxxxxxx-Xxxxx Act and the regulations of the Securities and
Exchange Commission promulgated thereunder.
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(c) Long Term Disability. If the Executive becomes Disabled, the Company may
terminate his employment if he becomes Disabled upon thirty (30) days prior written notice to the
Executive. “Disabled” means the Executive is: (i) unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment, as diagnosed by a
reputable, independent physician, which can be expected to result in death or can be expected to
last for a continuous period of not less than six (6) months, or (ii) by reason of any medically
determinable physical or mental impairment, as diagnosed by a reputable, independent physician,
which can be expected to result in death or can be expected to last for a continuous period of not
less than six (6) months.
(d) Death. The Executive’s employment shall terminate immediately upon the death of
the Executive.
6. Compensation Upon Termination or Death, or During Disability.
(a) Cause. If the Company terminates the Executive’s employment for Cause, the
Company shall continue to pay the Executive the Base Salary at the rate set forth in Section 4(a)
through the date of termination of the Executive’s employment, together with any benefits accrued
under Section 4 through the date of termination including, but not limited to, payment for accrued
vacation days and reimbursement for expenses (collectively, “Accrued Obligations”). Thereafter,
the Company shall have no further obligation to the Executive under this Agreement.
(b) Termination Without Cause by the Company. If the Company terminates the
Executive’s employment without Cause as defined in Section 5(a) of this Agreement, the Company
shall pay the Executive an amount equal to twelve (12) months of the Executive’s Base Salary at the
rate in effect at the date of termination of the Executive’s employment plus all Accrued
Obligations. In addition to any rights under COBRA, the term for continued medical benefits
provided by the Company to the Executive and his family shall continue for a period of twelve (12)
months from the date of termination without Cause, provided that coverage will terminate sooner if
the Executive becomes eligible for coverage under another employer’s plan. Thereafter, the Company
shall have no further obligation to the Executive under this Agreement.
(c) Termination for Good Reason by the Executive. If the Executive terminates the
Executive’s employment with Good Reason as defined in Section 5(b) of this Agreement, the Company
shall pay the Executive an amount equal to twelve (12) months of the Executive’s Base Salary at the
rate in effect at the date of termination of the Executive’s employment plus all Accrued
Obligations. In addition to any rights under COBRA, the term for continued medical benefits
provided by the Company to the Executive and his family shall continue for a period of twelve (12)
months from the date of termination for Good Reason, provided that coverage will terminate sooner
if the Executive becomes eligible for coverage under another employer’s plan. Thereafter, the
Company shall have no further obligation to the Executive under this Agreement.
(d) Disability. During any period that the Executive fails to perform his full-time
duties with the Company as a result of becoming Disabled (the “Disability Period”), the Executive
shall continue to receive his Base Salary at the rate set forth in Section 4(a) of this
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Agreement and all Accrued Obligations, less any compensation payable to the Executive under the
applicable disability insurance plan of the Company during such period until this Agreement is
terminated pursuant to Section 5(c). Thereafter, the Executive’s benefits shall be determined
under the Company’s insurance and other compensation programs then in effect in accordance with the
terms of such programs and the Company shall have no further obligation to the Executive under this
Agreement.
(e) Death. In the event of the Executive’s death, the Executive’s beneficiary shall
be entitled to receive the Base Salary at the rate set forth in Section 4(a) until the date of his
death plus all Accrued Obligations. Thereafter, the Executive’s benefits shall be determined under
the Company’s insurance and other compensation programs then in effect in accordance with the terms
of such programs and the Company shall have no further obligation to the Executive or the
Executive’s beneficiary under this Agreement.
7. Confidentiality.
(a) The Executive will execute the Company’s standard Executive Innovation, Proprietary
Information and Confidentiality Agreement (“Confidentiality Agreement”), which is incorporated
herein by reference.
(b) No Solicitation of Employees. During employment with Company and for one (1) year
thereafter the Executive will not encourage or solicit any other employee of Company to terminate
his or her employment or independent contractor who was involved in a project related to the
Business, for any reason, nor will the Executive assist others to do so. General advertisements
and employment fairs shall not be construed as solicitation for purposes of this Section.
(c) No Solicitation of Customers. During employment with Company and for one (1) year
thereafter the Executive will not, directly or indirectly call on, or otherwise solicit, business
from any actual customer or potential customer known by the Executive to be targeted by Company,
nor will he assist others in doing so.
(d) Disclosure of Confidential Information: Executive shall not accept employment
with any direct competitor of Company for a period of one (1) year where it would be impossible for
Executive to perform his new job without using or disclosing trade secrets or confidential
information.
8. Insurance and Indemnification.
(a) The Company shall provide the Executive with officers and directors’ insurance, or other
liability insurance, consistent with its usual business practices, to cover the Executive against
all insurable events related to his employment with the Company.
(b) The Company shall indemnify, hold harmless and pay the cost of defending the Executive to
the fullest extent permitted by applicable law in connection with any claim, action, suit,
investigation or proceeding arising out of or relating to performance by the Executive of services
for, or action of the Executive as an officer or employee of the Company, or of any other person or
enterprise at the request of the Company. The Company shall also pay
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all judgments, awards, settlement amounts and fines associated with the foregoing. Reasonable
legal cost and expenses incurred by the Executive relating to the performance of his duties and
responsibilities as an executive officer of the Company and/or in defending a claim, action, suit
or investigation or criminal proceeding shall be paid by the Company in a timely manner upon the
receipt by the Company of an undertaking by or on behalf of the Executive to repay said amount if
it shall ultimately be determined that the Executive is not entitled to be indemnified by the
Company for such legal fees and related costs; provided, however, that this arrangement shall not
apply to a non-derivative action commenced by the Company against the Executive. The foregoing
shall be in addition to any indemnification rights the Executive may have by law, charter, by-law
or otherwise. If the Company assumes responsibility for the defense of an action brought against
the Executive (i) the Company may not agree to any settlement without the Executive’s prior written
approval (which shall not be unreasonably withheld) and (ii) the Executive will fully cooperate
with the Company’s efforts in defense of the matter.
9. Miscellaneous.
(a) Capacity. The Executive represents and warrants that he is not a party to any
agreement that would prohibit the Executive from entering into this Agreement or fully performing
the Executive’s obligations hereunder.
(b) Notice. All notices of termination and other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or
mailed by United States registered mail, return receipt requested, addressed as follows:
If to the Company:
Xcorporeal, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
With a copy to:
Xxxxxx Xxxxx & Xxxxx LLP
1620 26th Street, Xxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
1620 26th Street, Xxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
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If to the Executive:
Xxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
With a copy to:
Ellenoff Xxxxxxxx & Schole, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
or to such other address as either party may designate by notice to the other, which notice shall
be deemed to have been given upon receipt.
(c) Severability. The invalidity or unenforceability of any provisions under
particular facts and circumstances will not affect the validity or enforceability either of other
provisions or, under other facts and circumstances, of such provisions. In addition, such
provisions will be reformed to be less restrictive if under such facts and circumstances they would
then be valid and enforceable.
(d) Governing Law. The validity, construction and performance will be governed by the
laws, without regard to the laws as to choice or conflict of laws, of the State of California.
(e) Arbitration. Any dispute, controversy or claim arising out of or relating to this
Agreement, or the Executive’s relationship with the Company or its affiliates, including without
limitation any claims of wrongful termination or employment discrimination (whether based on age,
gender, race, color, religion or any other protected class), and the issue of arbitrability of any
claims, will be submitted to and resolved by final and binding arbitration before a retired judge
at Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or its successor in Santa Monica,
California, under applicable JAMS rules. To the maximum extent permitted by applicable law, the
prevailing party will be awarded its arbitration, attorney and expert witness fees, costs and
expenses. Judgment on any interim or final award of the arbitrator may be entered in any court of
competent jurisdiction.
(f) Headings. The sections and other headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or interpretation of this
Agreement.
(g) Waiver. No waiver by either party of a breach of any provision will be construed
as a waiver of any subsequent or different breach, and no forbearance by a party to seek a remedy
for noncompliance or breach by the other party will be construed as a waiver of any right or remedy
with respect to such noncompliance or breach. All waivers shall be in writing and signed by the
party to be charged therewith.
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(h) Amendment. This Agreement may be amended, modified or supplemented only by a
writing executed by Executive and the Chairman, President or CEO of the Company.
(i) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
(j) Entire Agreement. This Agreement and Schedule I hereto are the only agreement and
understanding between the parties, and supersedes all prior and contemporaneous agreements,
summaries of agreements, descriptions of compensation packages, discussions, negotiations,
understandings, representations or warranties, whether verbal or written, between the parties
pertaining to such subject matter.
(k) Authority. The Company hereby represents and warrants to the Executive that the
Company has full corporate power and authority to execute and deliver this Agreement and to perform
the transactions contemplated hereby and thereby. The execution, delivery, and performance by the
Company of the Agreement have been duly authorized and approved by all requisite corporate action
on the part of the Company.
(l) Attorney Fees. The Company hereby agrees to reimburse the Executive up to ten
thousand dollars ($10,000) for all reasonable legal fees and costs incurred by the Executive in the
negotiation and preparation of this Agreement regardless of whether this
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Agreement is executed by the parties.
10. Effective Date. The parties agree that the Effective Date shall be
August , 2007, or on the date as soon thereafter as the Board approves this Agreement.
Agreed to:
| Executive: | XCORPOREAL, INC. | |||
| By: | ||||
Xxxxxx Xxxxxxxxx
|
Xxxxxx X. Xxxxxxxxxx President & Chief Operating Officer |
|||
BOARD APPROVAL DATE: August 10, 2007
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