Exhibit 3(12)
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and
entered into as of this __ day of May, 1998 by and between XENOTECH, INC., a
Canadian corporation (the "Company"), and Xxxxxx X. Xxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as the
President and Chief Executive Officer of the Company; and
WHEREAS, the Employee desires to serve the Company as its
President and Chief Executive Officer; and
WHEREAS, the Company and the Employee desire to enter into an
employment agreement that shall set forth their respective duties, obligations
and responsibilities;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Employee agree as set forth below.
1. EMPLOYMENT AND DUTIES. The Company agrees to and does
hereby employ the Employee, and the Employee does hereby accept employment with
the Company, as the President and Chief Executive Officer of the Company, to
operate and manage the business and operations of the Company with all the
authority customarily afforded to a chief executive officer subject to the
normal supervision and authority of the Board of Directors of the Company, and
to perform such other duties which are consistent with such position as are from
time to time delegated to the Employee by the Board of Directors of the Company.
The Employee will perform all services and acts necessary in such capacities to
properly manage the Company, and the Employee shall endeavor in good faith to
perform his duties in an efficient, faithful and businesslike manner.
2. TERM OF AGREEMENT. The provisions of this Agreement shall
remain in full force and effect and the employment of the Employee with the
Company shall continue until terminated by a written Notice of Termination (as
described in Section 5(c)) provided by either the Company or the Employee. In
addition, notwithstanding the previous sentence, this Agreement may be
terminated at any time by mutual agreement of the parties hereto or by the
Company at any time following the date on which the Employee attains age
sixty-five (65) (hereinafter termination of this Agreement by the Company after
the Employee has attained age sixty-five (65) shall be referred to as
"Retirement").
3. COMPENSATION. During the term of this Agreement, the
Employee shall be paid a base salary, payable in accordance with the Company's
normal payroll practice. The Employee's initial base salary shall be Twelve
Thousand Five Hundred Dollars ($12,500) per month. The base salary payable to
the Employee shall be reviewed annually for increase effective each July 1st
during the term of this Agreement. In addition, the Employee shall participate
in any bonus plan which is currently in effect or which may be established by
the Company (the "Bonus Plan"). Any bonus payable shall be determined under the
provisions of the Bonus Plan, and shall be payable as soon as practical after
determination of the bonus amount, but not later than seventy-five (75) days
after the end of the Company's fiscal year.
4. OTHER EMPLOYEE FRINGE BENEFITS.
a. IN GENERAL. The Company shall further provide
the Employee with health and life insurance coverage, sick leave and disability
programs, tax-qualified retirement plan contributions, stock option plans, paid
holidays and vacations, perquisites, and such other fringe benefits of
employment as the Company may provide from time to time to actively employed,
disabled, deceased, retired, or otherwise terminated, as applicable, senior
executives of the Company.
b. SUPPLEMENTAL BENEFITS. The Company shall also
provide the Employee with the following supplemental benefits:
(i) VACATION. The Employee will be
entitled to total vacation leave during the term of this Agreement of four (4)
weeks per year at such time as agreed between the Employee and the Company.
(ii) AUTOMOBILE. The Company shall lease on
behalf of the Employee during the term of this Agreement an automobile with a
retail value up to forty thousand dollars ($40,000).
(iii) SERP. The Employee will be entitled to
participate, at a level commensurate with his position and his base salary, in
any Supplemental Executive Retirement Plan (the "SERP") which is currently in
effect or which may be established by the Company. The Employee's participation
in and benefit under the SERP shall be determined in accordance with the terms
and conditions of the SERP.
(iv) STOCK OPTION PLAN. The Employee will
be entitled to participate, at a level commensurate with his position and his
base salary, in any stock option plan which is currently in effect or which may
be established by the Company (the "Stock Plan"). The Employee's participation
in the Stock Plan shall be determined in accordance with the terms and
conditions of the Stock Plan.
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5. TERMINATION OF EMPLOYMENT.
a. TERMINATION OF EMPLOYMENT BY THE COMPANY. The
Employee's employment hereunder may be terminated by the Company without any
breach of this Agreement only under the following circumstances:
(i) DEATH, DISABILITY OR RETIREMENT. The
Employee's employment hereunder shall terminate upon his death and may be
terminated by the Company in the event of his Disability or Retirement. For
purposes of this Agreement, the term "Disability" shall mean the inability of
the Employee due to illness (mental or physical), accident, or otherwise, to
perform his duties for any period of ninety (90) consecutive days, as determined
by an independent physician selected by the Company and reasonably acceptable to
the Employee (or his legal representative), provided that the Employee does not
return to work on substantially a full-time basis within thirty (30) days after
Notice of Termination is given by the Company pursuant to the provisions of
Sections 5(c) and 5(d)(ii).
(ii) CAUSE. The Company may terminate the
Employee's employment hereunder for Cause. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Employee's employment hereunder only
upon (a) his conviction of a felony involving moral turpitude, provided that
such conviction would at the time have a material adverse effect on the Company
in the reasonable opinion of the Board of Directors of the Company, (b) gross
and willful misconduct by the Employee which is deemed, by the Company's Board
of Directors, to be injurious to the Company, (c) a finding of gross dishonesty
of the Employee, (d) willful malfeasance or gross negligence, or failure to act
involving material non-feasance, provided that in the case of such gross
negligence or material non-feasance it would at the time have a material adverse
effect on the Company in the reasonable opinion of the Board of Directors of the
Company, (e) insubordination or refusal to perform assigned duties consistent
with those contained in Section 1, or (f) the Employee's material breach of his
obligations contained in Section 8.
b. TERMINATION OF EMPLOYMENT BY EMPLOYEE. The
Employee may terminate his employment at any time. However, he shall be deemed
to have terminated his employment for "Good Reason" only if he terminated his
employment by giving Notice of Termination pursuant to Sections 5(c) and
5(d)(iii) within ninety (90) days after the occurrence of any of the following
events (provided the Company does not cure such event within thirty (30) days
following its receipt of the Employee's Notice of Termination):
(i) Without the Employee's prior written
consent, the Company assigns the Employee to duties materially inconsistent in
any respect with his position, authority, duties or responsibilities as set
forth in Section 1, or takes any other action that results in a material
diminution in such position, authority, duties, or responsibilities, including,
but not limited to, failing to re-appoint or reelect the Employee to any such
position (other than upon Retirement).
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(ii) The Employee's base salary, or his
annual or long-term Bonus Award under any Bonus Plan of the Company which is
then in effect, is reduced for any reason other than in connection with the
termination of his employment.
(iii) After a Change in Control (as defined
in Section 7), within each twelve (12) month period (as described in Section 3),
the Company increases the base salary for senior executive officers of the
Company generally without similarly increasing the base salary of the Employee.
(iv) For any reason other than in
connection with the termination of the Employee's employment, the Company
materially reduces fringe benefits provided to the Employee under Section 4,
unless the Company agrees, as evidenced by the Employee's written consent, to
fully compensate the Employee for any such material reduction.
(v) The assignment of the Employee,
without his prior written consent, to a Company office located outside of the
State of California.
(vi) The Company's failure to obtain an
agreement from any successor or assign of the Company to assume and to agree to
perform this Agreement.
(vii) The Company otherwise materially
breaches its obligations to make payments to the Employee under this Agreement.
c. NOTICE OF TERMINATION. Any termination of the
Employee's employment by the Company hereunder, or by the Employee other than
termination upon the Employee's death, shall be communicated by written Notice
of Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" means a notice that shall indicate the specific termination
provision in this Agreement relied upon, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated.
d. DATE OF TERMINATION. For purposes of this
Agreement, an applicable "Date of Termination" means:
(i) If the Employee's employment is
terminated by his death, the date of his death.
(ii) If the Employee's employment is
terminated by the Company as a result of Disability or Retirement pursuant to
Section 5(a)(i) or for Cause pursuant to Section 5(a)(ii), the date that is
thirty (30) days after Notice of Termination is given (provided that in the case
of termination for Disability, the Employee shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period).
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(iii) If the Employee terminates his
employment for Good Reason pursuant to Section 5(b), the date that is thirty
(30) days after Notice of Termination is given (provided that the Company does
not cure such event during that thirty (30) day period).
(iv) If the Employee terminates his
employment other than for Good Reason, the date that is one (1) month after
Notice of Termination is given.
(v) If the Employee's employment is
terminated by the Company other than for Cause, the date that is one (1) month
after Notice of Termination is given.
6. AMOUNTS PAYABLE UPON TERMINATION OF EMPLOYMENT OR DURING
DISABILITY.
a. DEATH OR RETIREMENT. If the Employee's employment
is terminated by his death or at Retirement, the Employee's beneficiary (in the
case of death) (as designated by the Employee in writing with the Company prior
to his death) or the Employee (in the case of Retirement) shall be entitled to
the following payments and benefits: (i) any portion of the Employee's base
salary that is accrued but unpaid, any vacation that is accrued but unused, and
any business expenses that are unreimbursed, all determined as of the Date of
Termination and payable within thirty (30) days of such date; (ii) a single lump
sum payment equal to a pro rata award under any Bonus Plan of the Company then
in effect, payable in accordance with the terms of any such Bonus Plan within
thirty (30) days of the Date of Termination and (iii) any benefits resulting
from the fringe benefits described in Section 4 upon the Employee's death or
Retirement (whichever is applicable) in accordance with the provisions of the
plan or program that provides each applicable fringe benefit. In the absence of
a beneficiary designation by the Employee, or, if the Employee's designated
beneficiary does not survive the Employee, benefits described in this Section
6(a) shall be paid to the Employee's estate.
b. DISABILITY.
(i) During any period that the Employee
fails to perform his duties hereunder as a result of incapacity due to physical
or mental illness ("Disability Period"), the Employee shall continue to receive
his base salary and any bonus under any Bonus Plan then in effect at the rate
then in effect for such period until his employment is terminated pursuant to
Section 5(a)(i); provided, however, that payments of base salary and bonus so
made to the Employee shall be reduced by the sum of the amounts, if any, that
were payable to the Employee at or before the time of any such salary or bonus
payment under any disability benefit plan or plans of the Company and that were
not previously applied to reduce any payment of base salary or bonus.
(ii) Upon his termination of employment
because of Disability (as defined in Section 5(a)(i)), the Employee shall be
entitled to the following payments and benefits:
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A. Those described in Section 6(a);
B. For a period of thirty-six (36)
months following his Date of
Termination, severance pay, paid
monthly, equal to his base salary
in effect at the Date of
Termination;
C. For a period of thirty-six (36)
months following his Date of
Termination, monthly payments
equal to one-twelfth (1/12th) of
the Employee's annual bonus,
determined under the provisions
of any Bonus Plan then in effect,
based upon his base salary at the
Date of Termination;
D. For a period of thirty-six (36)
months following his Date of
Termination, continuation of all
fringe benefits described in
Section 4, except for group
medical insurance, in effect at
the Date of Termination; and
E. For a period of forty-eight (48)
months following his Date of
Termination, continuation of the
Company's group medical insurance
for the Employee and his
dependents, as in effect at the
Date of Termination.
Notwithstanding any provision of this Section 6(b)(ii),
severance payments made to the Employee pursuant to Sections 6(b)(ii)(B) or (C)
shall be reduced by the sum of the amounts, if any, that were payable to the
Employee at or before the time of any such severance payment under any
disability benefit plan or plans of the Company and that were not previously
applied to reduce either any such severance payment or any payment of base
salary or bonus under Section 6(b)(i).
c. TERMINATION BY COMPANY WITHOUT CAUSE, OR
TERMINATION BY EMPLOYEE FOR GOOD REASON. In the event that the Company
terminates the Employee's employment without Cause or the Employee terminates
his employment for Good Reason, the Employee shall be entitled to the following
payments and benefits:
(i) Those described in Section 6(b)(ii);
(ii) As of his Date of Termination, the
Employee shall become fully vested in
all employee benefit programs (other
than any tax qualified retirement or
savings plan, the Employee's interest
in which shall vest in accordance with
such plan's
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terms), including, without limitation,
any stock options and awards under any
Stock Plan in effect and all benefits
under any SERP in effect, in which he
was a participant at the time of the
termination of his employment;
(iii) Reimbursement of all expenses incurred
by the Employee through the use of any
executive out-placement services to
assist him to seek other employment,
which shall include, but not be
limited to (A) secretarial services,
use of an office, phone, office
supplies and office services
comparable to the level of such
services and supplies available to the
Employee prior to the Date of
Termination and (B) all unreimbursed
travel expenses incurred by the
Employee to seek other employment up
to a maximum amount of Five Thousand
Dollars ($5,000); and
(iv) A single lump sum payment, payable
within thirty (30) days of the Date of
Termination, equal to the Employee's
non-vested interest under any tax
qualified retirement or savings plan
maintained by the Company which is
forfeited by the Employee under such
plan's terms upon his termination of
employment.
d. TERMINATION BY EMPLOYEE OTHER THAN FOR GOOD REASON
OR TERMINATION BY COMPANY FOR CAUSE. In the event that the Employee terminates
his employment other than for Good Reason or the Company terminates his
employment for Cause, the Employee shall not be entitled to any compensation
except as set forth below:
(i) Any base salary that is accrued but
unpaid, any vacation that is accrued
but unused, and any business expenses
that are unreimbursed, all as of the
Date of Termination;
(ii) In the case of termination by the
Employee other than for Good Reason, a
pro rata award under any Bonus Plan
then in effect (as described in
Section 6(a)(ii)); and
(iii) Any other rights and benefits (if any)
provided under plans and programs of
the Company, determined in accordance
with the applicable terms and
provisions of such plans and programs.
e. MITIGATION OF DAMAGES. Following any Date of
Termination, the Employee shall have no obligation to seek other employment.
However, except in cases of termination of employment after a Change in Control,
as described in Section 7, to the extent that
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the Employee becomes employed following his termination of employment with the
Company without Cause or for Good Reason, the payments and benefits described in
Section 6(c) shall be reduced as follows:
(i) Severance payments (as described in
Sections 6(b)(ii)(B) and (C)) shall be
reduced by fifty cents (50 CENTS) for
every one dollar ($1) in compensation
(either base salary or bonus) that the
Employee receives through his new
employment; provided, however, during
the first twelve (12) months following
the Employee's Date of Termination,
such severance payments shall not be
reduced pursuant to this provision by
more than fifty percent (50%); and
(ii) The fringe benefits provided by the
Company to the Employee at the Date of
Termination (as described in Sections
6(b)(ii)(D) and (E)) shall terminate
upon the earlier of (A) the Employee's
reemployment and (B) the applicable
date specified under either Section
6(b)(ii)(D) or
(E); provided, however, that the Employee's
coverage and/or the coverage of his dependents
under the Company's group medical insurance
shall continue in effect following the
Employee's reemployment with respect to claims
excluded by reason of any preexisting condition
clause in the group medical plan maintained by
the Employee's new employer until the earlier of
(1) the applicable date specified in Section
6(b)(ii)(E) or (2) the date on which such
pre-existing condition exclusion is no longer
applicable to the Employee or, to the extent
that coverage is continued pursuant to this
provision for a dependent of the Employee, such
dependent.
7. CHANGE IN CONTROL. A "Change in Control" shall mean the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more
of the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors ("Voting
Securities"); provided, however, that the following acquisitions shall not
constitute a change in control: (i) a change in the composition of a majority of
the Board of Directors of the Company within a three (3) year period, which
change shall not have been approved by a majority of the persons then surviving
as Directors who also comprised the Board of Directors of the Company
immediately prior to the commencement of such period; or (ii) the consummation
of any reorganization, merger or consolidation other than a reorganization,
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent
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(either by remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least sixty percent (60%) of the combined voting power
of the Voting Securities of the Company or such surviving entity outstanding
immediately after such reorganization, merger or consolidation; or (iii) the
consummation of a plan of complete liquidation of the Company or of an agreement
for the sale or disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company's assets.
b. TERMINATION OF EMPLOYMENT. If, at any time within
two (2) years following a Change in Control, the Company terminates the
Employee's employment without Cause or the Employee terminates his employment
for Good Reason, the provisions of this Section 7(b) shall be applicable,
instead of the provisions of Section 6(c). To the extent that the provisions of
this Section 7(b) are applicable, the Employee shall be entitled to the
following payments and benefits without any mitigation under Section 6(e)
hereof:
(i) Those described in Section 6(a),
provided all cash payments required
under such section shall be made
within five (5) days of the Date of
Termination;
(ii) Continuation of fringe benefits, as
described in Sections 6(b)(ii)(D) and
(E);
(iii) A single lump sum payment, payable
within five (5) days of the Date of
Termination, equal to the sum of (A)
twice the Employee's base salary in
effect upon the Date of Termination,
plus (B) twice the Employee's target
annual bonus, determined under any
Bonus Plan of the Company then in
effect, based upon the Employee's base
salary at the Date of Termination,
plus (C) the maximum three-year bonus
payment possible under the terms of
any Bonus Plan minus amounts already
paid to the Employee with respect to
such three-year period.
(iv) Those described in Sections 6(c)(iii)
and (iv); and
(v) Reimbursement for any excise tax
incurred by the Employee under Section
4999 of the Internal Revenue Code due
to any payment under this section,
plus reimbursement for any additional
income taxes incurred by the Employee
resulting from the reimbursement by
the Company of such excise tax.
8. CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE.
(a) The Employee hereby agrees that, during the term
of the Agreement and thereafter, he will not disclose to any person or otherwise
use or exploit any of the
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proprietary or confidential information, including, without limitation, trade
secrets, processes, records of research, proposals, programming, budgets or
customer lists, regarding the Company, its business, properties, or affairs
obtained by him at any time prior to or subsequent to the execution of this
Agreement, except to the extent required by his performance of assigned duties
for the Company.
(b) The Employee hereby agrees that during the term
hereof and, unless his employment is terminated by the Company without Cause or
is terminated by the Employee for Good Reason, for a period of two (2) years
after his termination of employment (including upon Retirement), he will not:
(i) authorize his name to be used by any
person, partnership, corporation or
other business entity; or
(ii) engage in or carry on, directly or
indirectly, whether as advisor,
principal, agent, partner, officer,
director, employee, stockholder,
associate or consultant of any person,
partnership, corporation or other
business entity
which is in material competition with any business carried on, directly or
indirectly (through one or more subsidiaries or otherwise), by the Company prior
to the date hereof or hereafter conducted by the Company during the term of this
Agreement, directly or indirectly (through one or more subsidiaries or
otherwise) in any county of the State of California or any other county of any
state in the United States or municipality of a foreign country where business
is then carried on or conducted by the Company.
The Employee shall be deemed to be engaged or
concerned with a duty or pursuit which is contrary to any provision of this
Agreement only if he receives written notice to such effect, setting forth with
reasonable specificity the basis of such claim, from the Company. If, within
thirty (30) days from the date of his receipt of any such written notice, the
Employee shall take such steps as shall eliminate his engagement in or concern
with such duties or pursuits as are specified in such notice as being contrary
to this Agreement, the Employee shall not be deemed to have breached any of the
provisions of this Agreement in connection therewith or with respect thereto.
(c) The Employee agrees that the remedy at law for
any breach by him or any of the covenants and agreements set forth in this
Section 8 will be inadequate and that in the event of any such breach, the
Company may, in addition to the other remedies which may be available to it at
law, obtain injunctive relief prohibiting him (together with all those persons
associated with him) from the breach of such covenants and agreements.
(d) The parties hereto agree that the duration and
area for which the covenant not to compete is set forth in subparagraph (b)
above is to be effective are reasonable. In the event that any court determines
that the time period and/or the area covered thereby are
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unreasonable and that such covenant is to that extent unenforceable, the parties
hereto agree that the covenant shall remain in full force and effect would not
render it unenforceable. The parties intend that this covenant shall be deemed
to be a series of separate covenants, one for each and every county of each and
every state within the United States of America and one for each municipality of
any foreign country where this covenant is intended to be effective.
(e) The Employee will sign separate agreements,
policies or certifications regarding Intellectual Property, Ethical Business
Practices and Conflicts of Interest, on such forms as are adopted by the Company
from time to time for its executives.
9. GENERAL PROVISIONS.
(a) NOTICES. Any notice to be given pursuant to this
Agreement shall be in writing and shall be deemed duly given three (3) days
after deposit in the mail, certified mail, return receipt requested, to the
party to receive such notice at the address specified below:
If to the Company, to:
Xenotech, Inc.
Suite 0/00 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, 0000
Xxxxxxx Xxxxxxxxx
Fax: 000-00-00-000-0000
If to the Employee, to:
Xx. Xxxxxx X. Xxxxx
Suite 0/00 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, 0000
Xxxxxxx Xxxxxxxxx
Fax: 000-00-00-000-0000
Either party may change its name and/or address for purposes of this
Section by giving the other written notice of the new name and/or address in the
manner set forth above.
(b) ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
executors, administrators, heirs, personal representatives, successors and
assigns, but neither this Agreement nor any right hereunder may be assigned or
transferred by either party hereto, any beneficiary or any other person, nor be
subject to alienation, anticipation, sale, pledge, encumbrance, execution, levy
or other legal process of any kind against the Employee, his beneficiary, or any
other person. Notwithstanding the foregoing, the Company will assign this
Agreement to any corporation or other business entity succeeding to
substantially all of the business and assets of the Company by merger,
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consolidation, sale of assets, or otherwise and shall obtain the assumption of
this Agreement by such successor.
(c) WAIVER OF BREACH. The waiver by the Company or
the Employee of a breach of any provision of this Agreement by the other shall
not operate or be construed as a waiver of any subsequent breach by the other.
(d) NONEXCLUSIVITY OF RIGHTS. Nothing in this
Agreement shall prevent or limit the Employee's continuing or future
participation in any incentive, fringe benefit, deferred compensation, or other
plan or program provided by the Company and for which the Employee may qualify,
nor shall anything herein limit or reduce such rights as the Employee may have
under any other agreements with the Company. Amounts that are vested benefits or
that the Employee is otherwise entitled to receive under any plan or program of
the Company at or after the Date of Termination, shall be payable in accordance
with such plan or program.
(e) ENTIRE AGREEMENT/MODIFICATION. This Agreement,
shall supersede any and all other agreements, either oral or written, between
the parties hereto with respect to the employment of the Employee by the
Company. Each party to this Agreement acknowledges that no other
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party or anyone acting on behalf of any party, and that no
other agreement, statement or promise with respect to the employment of the
Employee by the Company not contained in this Agreement shall be valid or
binding. Any modification of this Agreement will be effective only if it is in
writing, signed by the party to be charged.
(f) PARTIAL INVALIDITY. If any provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
(g) GOVERNING LAW. The validity of this Agreement
and the interpretation and performance of all of its terms shall be governed by
the laws of Canada.
(h) ARBITRATION. Any controversy, claim or dispute
between the parties directly or indirectly concerning this Agreement or the
breach hereof, or the subject matter hereof (except in instances where only
injunctive relief is sought by the Company), shall be finally settled by
arbitration held in the State of California. Any legal expenses incurred by the
Company in connection with any such claim or dispute shall be paid by the
Company. To the extent that the Employee prevails in any claim or dispute to
enforce or defend his rights under this Agreement, any legal expenses incurred
by the Employee in such claim or dispute shall be paid by the Company; provided
that, in addition, if the Employee does not prevail in any claim or dispute to
enforce or defend his rights under this Agreement following a Change in Control,
the Company shall nevertheless pay fifty percent (50%) of any legal expenses
incurred by the Employee in such claim or dispute.
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(i) CAPTIONS. The captions in this Agreement are for
convenience and for identification purposes only, are not an integral part of
this Agreement and are not to be considered in the interpretation of any part
hereof.
(j) COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but
together which shall constitute one and the same document.
IN WITNESS WHEREOF, Xenotech, Inc., has caused this Agreement
to be executed by an appropriate officer and the Employee has executed the same
as of the day and year first above written.
XENOTECH, INC.
a Canadian corporation
By:
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Xxxx X. Xxxxxxxx
Chairman of the Board of Directors
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Xxxxxx X. Xxxxx
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