EMPLOYMENT AGREEMENT
BETWEEN
REMEDENT, INC.
AND
XXXX XXXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made effective as of October 12,
2005 ("Effective Date"), is entered into by and between Remedent, Inc., a Nevada
corporation (the "Company"), and Xxxx X Xxxxxxx (the "Executive"), collectively
referred to herein as the "parties."
WHEREAS, the Company wishes to employ the Executive to serve as its Vice
President-Worldwide Sales and Operations as well as to perform other lawful
duties on behalf of the Company.
NOW, THEREFORE, for and in consideration of the mutual promises and conditions
made herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows.
ARTICLE I
EMPLOYMENT AND TERM OF EMPLOYMENT
1.1. Employment and Term. The Company hereby employs Executive to render
full-time services to the Company, subject to Section 2.2 of this Agreement, and
except during vacation periods and reasonable periods of absence due to
sickness, personal injury or other disability, upon the terms and conditions set
forth below, from the Effective Date of this Agreement until the employment
relationship is terminated in accordance with the provisions of this Agreement.
This Agreement is for a term of three (3) years from the Effective Date (the
"Stated Term") unless renewed or terminated earlier as provided for herein (the
"Employment Term").
1.2 Renewal. This Agreement will be automatically renewed for an additional
one (1) year period (without any action by either party) at the end of the
Stated Term and on each anniversary thereof ("Renewal Period"), unless one party
gives to the other written notice sixty 60 days in advance of the beginning of
any of the Renewal Period that this Agreement is to be terminated.
1.3. Acceptance. Executive hereby accepts employment with the Company and
agrees to devote his full-time attention and best efforts to rendering the
services described below. The Executive shall accept and follow the reasonable
and lawful direction and authority of the Company's Board of Directors
("Board"), Chairman of the Board (Chairman") and Chief Executive Officer ("CEO")
in the performance of his duties, and shall comply with all reasonable and
lawful existing and future regulations applicable to senior management level
employees of the Company and to the Company's business.
1.4. Termination of Prior Agreements. Upon execution of this Agreement, all
prior employment and/or consultant agreements between Executive and the Company
or its subsidiaries shall be deemed terminated and there shall be no right to
severance or other related benefits thereunder; provided, however, that the
foregoing will not apply to any obligation of the Company or any of its
subsidiaries to indemnify Executive against any losses, costs, damages or
expenses.
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ARTICLE II
DUTIES OF EMPLOYEE
2.1. General Duties. Executive shall serve as Vice President-Worldwide
Sales and Operations. In such capacity, Executive shall do and perform all
lawful services, acts, or other things necessary or advisable to manage and
conduct the worldwide sales of the Company, including, but not limited to, the
supervision, direction and control of the sales force and other employees of the
Company, subject to the reasonable and lawful policies and direction of the
Chairman, CEO, and/or the Board. To the extent consistent with the Company's
Articles of Incorporation, as amended ("Articles") and Bylaws, as amended
("Bylaws"), Executive shall have all powers, duties and responsibilities
necessary to carry out his duties, and such other powers and duties as the
Chairman, CEO and/or the Board may reasonably and lawfully prescribe consistent
with the Company's Articles and Bylaws. Executive shall not become a corporate
officer or member of the Board without advance written consent by Executive.
2.2. Exclusive Services. It is understood and agreed that Executive may not
engage in any other business activity during the Employment Term, whether or not
for profit or other remuneration, without the prior written consent of the
Company in its sole and absolute discretion; provided, however, that the
Executive may (i) manage personal and family investments (ii) engage in
charitable, philanthropic, educational, religious, civic and similar types of
activities to the extent that such activities do not materially interfere with
the business of the Company or any affiliate or subsidiary of the Company, or
the performance of the Executive's duties under this Agreement and (iii) subject
to the approval of the Board, which shall not be unreasonably withheld or
delayed, serve as a director or as a member of an advisory board of another
business enterprise.
2.3. Reporting Obligations. In connection with the performance of his
duties hereunder, the Executive shall report directly to, and take direction
from, the Chairman and the CEO of the Company. In the event that such direction
from the Chairman and CEO is materially inconsistent or contradictory on a
particular issue, Executive may follow the direction of the Board on such
issues.
ARTICLE III
COMPENSATION AND BENEFITS OF EMPLOYEE
3.1. Annual Base Salary. The Company shall pay the Executive salary for the
services to be rendered by him during the Employment Term at the rate of two
hundred and seventy-five thousand dollars ($275,000) annually (prorated for any
portion of a year), subject to increases, if any, as the Board may determine in
its sole discretion after periodic review of the Executive's performance of his
duties hereunder not less frequently than annually. Such base salary shall be
payable in periodic installments in accordance with the terms of the Company's
regular payroll practices in effect from the time during the term of this
Agreement, but in no event less frequently than once each month.
3.2. Annual Cost of Living Increase. Executive's Annual Base Salary
provided for in Section 3.1 of this Agreement shall be increased to reflect the
increase in the cost of living in the Los Angeles MSA in an amount equal to the
percentage increase in the Consumer Price Index for the Los Angeles MSA on each
anniversary of the Effective Date as published by the United States Department
of Labor, Bureau of Labor Statistics.
3.3. Bonuses. In addition to the Annual Base Salary provided for in Section
3.1 and adjusted as provided for in Section 3.2 of this Agreement and other
benefits provided to Executive hereunder, Company shall also pay the following
bonuses to Executive: Bonuses of twenty-five thousand dollars ($25,000) each
quarter shall be paid by Company to Executive within thirty (30) days of the
close of each calendar quarter (prorated for any portion of a calendar quarter)
based upon Executive's attainment of reasonable and lawful objectives during
each calendar quarter during the Employment Term. Such objectives shall be
established by the Board in good faith and delivered to Executive in writing
within thirty (30) days of the Effective Date and thirty (30) days prior to each
quarter which the performance objectives and milestones are to apply.
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3.4. Expenses. The Company shall pay or reimburse the Executive for all
reasonable, ordinary and necessary business expenses actually incurred or paid
by the Executive in the performance of Executive's services under this Agreement
in accordance with the expense reimbursement policies of the Company in effect
from time to time during the Employment Term, no later than fifteen (15) days
following Executive's presentation of proper expense statements or vouchers or
such other written supporting documents as the Company may reasonably require.
3.5. Vacation. The Executive shall be entitled to four (4) weeks paid
vacation for each calendar year (prorated for any portion of a year, as
applicable). Notwithstanding anything to the contrary in this Agreement,
vacation time shall cease to accrue beyond eight (8) weeks at any given time
during the Employment Term, and vacation time shall again accrue up to the
maximum when Executive uses up vacation time to drop the vacation accrual below
the maximum.
3.6. General Employment Benefits. Except where expressly provided for
herein, the Executive shall be entitled to participate in, and to receive the
benefits under, any pension, health, medical, life, accident and disability
insurance plans or programs and any other employee benefit or fringe benefit
plans that the Company makes available generally to its employees, and any such
benefits and/or levels of benefits available to senior management of the
Company, as the same may be in effect from time to time during the Employment
Term.
3.7. Stock Options. On the Effective Date, the Executive is herby granted
four hundred thousand (400,000) undiluted options under the Company's 2004
Incentive and Nonstatutory Stock Option Plan (the "2004 Option Plan"). The
options will be priced at $4.00 per share, being the Company's share price at
the close of business on the date the parties executed this Agreement. One third
of the options shall vest on the last day of the first, second, and third years
of the Employment Term resulting in one hundred percent (100%) vesting on the
end of the third year of the Employment Term. The options shall have a term of
no less than five (5) years from the date of each vesting within which they must
be exercised and shall be subject to other standard terms and conditions under
the applicable stock option plan of the Company, and shall contain standard
anti-dilution language and have a provision for cashless exercise. All of the
foregoing options shall be undiluted as of the date of the Effective Date. If
the number of outstanding shares of Company stock are increased or decreased, or
such shares are exchanged for a different number or kind of shares or securities
of the Company through reorganization, merger, recapitalization,
reclassification, stock dividend, stock split, combination of shares, or other
similar transaction, the aggregate number of shares of Company stock subject to
any options granted to Executive under this Agreement, or in any future grant of
options, shall be deemed proportionately adjusted. Such adjustment shall not
change the aggregate purchase price applicable to the unexercised portion of the
options but shall have a proportionate adjustment in the price for each share
covered by the option.
3.8. Location; Travel. In connection with his employment during the
Employment Term, unless otherwise agreed by the Executive in writing, the
Executive will be based in the Los Angeles Metropolitan Area... Executive will
undertake reasonable business travel on behalf of the Company, the reasonable
expenses of which will be paid by the Company pursuant to Section 3.4 of this
Agreement.
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ARTICLE IV
TERMINATION OF EMPLOYMENT
4.1. Termination. The Employment Term may be terminated earlier as provided
for in this Article IV, or extended as set forth herein. In the event of any
termination, in addition to any other obligations of Company set forth below
(e.g., Severance Benefits), Company shall pay Executive (or the designated
beneficiary as provided in Section 6.8 below, or the estate or personal
representative of Executive ) shall be promptly provided with: (a) any accrued
but unpaid salary, accrued but unused vacation time, un-reimbursed expenses
which otherwise would be reimbursed in the normal course and vested benefits
under any of the Company's benefit plans in which the Executive and/or his
dependents or beneficiaries are participants or otherwise eligible for such
benefits; (b) any quarterly or other bonus previously declared but not yet paid;
and (c) any other amounts due to Executive pursuant to this Article IV.
4.2. Termination by Company for Cause. The Company reserves the right to
terminate the Employment Term for cause upon: (a) Executive's willful and
continued failure to substantially perform his duties with the Company (other
than such failure resulting from his incapacity due to physical or mental
illness); (b) Executive's willful engagement in gross misconduct in connection
with Executive's work for Company, as determined by the Board in good faith,
which is materially and demonstrably injurious to the Company; (c) Executive's
willful breach of a material term of this Agreement, or (d) Executive's
conviction of a felony, or an act of fraud against the Company or its
affiliates; provided, however, the Company may not terminate the Executive's
employment for cause unless the Company has first provided Executive with
written notice, specifying in detail the act or acts alleged to constitute cause
and the Board's good faith investigation thereof, and provided the Executive
with a period of not less than thirty (30) calendar days to cure the failure in
the manner specified in such notice. Upon a termination for cause, Executive
shall not be entitled to any Severance Benefits (as defined below) and all stock
options of the Company granted to Executive which have not vested shall be
canceled upon termination for cause.
4.3. Termination by Company Without Cause. Notwithstanding anything to the
contrary in this Agreement, the Company reserves the right to terminate the
Employment Term at any time upon sixty (60) days' advance written notice to
Executive, without cause, subject to the express terms and provisions set forth
in Sections 4.5 and 4.6 of this Agreement.
4.4. Voluntary Termination by Executive. Notwithstanding anything to the
contrary in this Agreement, Executive may terminate this Agreement at any time
upon sixty (60) days advance written notice to the Company, subject to the terms
and provisions below.
Except in the case of a termination for "good reason", as set forth in
Section 4.6 of this Agreement, the Company shall not be obligated to pay any
Severance Benefits to Executive if Executive terminates this Agreement pursuant
to this Section 4.4 of this Agreement. Except that Executive will vest options
on a pro-rata basis for employment of less than the entire year or vesting
period.
4.5. Severance Benefits. If in the event that during the Employment Term is
terminated by the Company "without cause" (as set forth in Section 4.3 of this
Agreement), or Executive terminates his employment for "good reason" (as set
forth in Section 4.6 of this Agreement), Company shall provide Executive (or the
designated beneficiary, as provided in Section 6.8 below, or the estate or
personal representative of Executive) "Severance Benefits" as follows: (a) a
cash payment equal to nine (9) months of Executive's annual base salary as
provided for in Section 3.1 of this Agreement, or Executive's then current rate
of compensation, whichever is greater paid in nine (9) equal monthly
installments, less any taxes that must be withheld; and (b) any portion of any
of stock options granted by Company to Executive pursuant to Section 3.7 or
otherwise ("Options") that have not then vested shall immediately vest pro-rata
as of the date Executive's employment with Company terminates. For purposes of
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this Section, the term "pro-rata" means the number of months or portion thereof,
exhausted in the current contract year of Executive's employment including the
sixty (60) day notice period required by this Agreement, divided by twelve (12)
months. For example, if Company gives sixty (60) days notice of termination of
Executive's employment without cause that will be effective upon a date that is
seven (7) months into the first year of employment, then seven-twelfths (7/12)
of the options otherwise eligible for vesting that year will fully vest as of
the date of termination of employment. All vested options shall be exercisable
until and including ninety (90) days after the termination.
4.6. Termination by Executive for Good Reason. The Executive may terminate
the Employment Term for "good reason" after giving the Company written notice
thereof, if the Company shall have failed to cure the event or circumstance
constituting "good reason" within ten (10) business days after receiving such
notice. Good reason shall mean the occurrence of any of the following without
the written consent of the Executive: (a) the assignment to the Executive of
duties inconsistent with this Agreement or a change in his reporting
obligations, positions, titles or authority; (b) any failure by the Company to
comply with Article III hereof in any material way; (c) the failure of the
Company to comply with and satisfy Section 6.2 of this Agreement; (d) a Change
of Control (as defined in Section 4.7 of this Agreement) or a termination by
Employee following the commencement of any discussion with a third person that
ultimately results in a Change in Control; (e) the relocation of the principal
place where the Executive regularly performs services for the Company outside of
the Los Angeles Metropolitan Area; (f) at any time after the Company has
notified the Executive pursuant to Section 1.2 of this Agreement that the
Company does not intend to renew the Agreement and the Executive's employment at
the end of the Employment Term, including any previous renewals, rather than to
allow the Agreement automatically to renew; (g) any material breach of this
Agreement by the Company; or (h) any misrepresentation by Company to any
government or other violation of law. The Executive's continued employment shall
not constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting "good reason" hereunder.
4.7. Change of Control. In the event that during the Employment Term the
Executive is terminated by the Company or the Executive terminates his
employment for "good reason," as set forth in Section 4.6 of this Agreement,
within twelve (12) months following a "change of control" (as defined below)
occurs after the Effective Date (a "Change of Control Termination"), the
Executive shall promptly be paid (i) any accrued but unpaid salary, accrued but
unused vacation time, un-reimbursed expenses which otherwise would be reimbursed
in the normal course and vested benefits under any of the Company's benefit plan
in which the Executive is a participant, (ii) any bonus previously declared but
not yet paid, and (iii) a cash payment equal to nine (9) months of Executive's
annual base salary as provided for in Section 3.1 of this Agreement, paid in
nine (9) equal monthly installments, less any taxes that must be withheld. In
addition, upon a Change of Control Termination, any portion of any of the
Options granted but unvested shall be forfeited and the Executive shall have no
rights thereunder. Vesting for the purposes of this clause will be on a pro-rata
basis, in that if the Executive had worked for a partial year the pro-rata
amount will vest. A "Change in Control Termination" will also include a
termination of the Executive by the Company without cause or a termination by
the Executive of his employment for "good reason," as set forth in Section 4.6
of this Agreement, in either case, following the commencement of any discussion
with a third person that ultimately results in a "change in control" (as defined
below).
For purposes of this Agreement, a "change of control" shall mean an event
involving one transaction or a series of related transactions in which (a) the
Company issues securities representing more than fifty percent (50%) of the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended ("the "Exchange Act"), or any
successor provision) of the outstanding voting power of the then outstanding
securities entitled to vote generally in the election of directors ("Voting
Stock") of the Company to any individual, firm, partnership, or other entity,
including a "group" within the meaning of Section 13(d)(3) of the Exchange Act;
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(b) the Company issues securities representing more than fifty percent (50%)
voting stock of the Company in connection with a merger, consolidation or other
business combination (other than for purposes of reincorporation); (c) the
Company is acquired in a merger or other business combination transaction in
which the Company is not the surviving corporation (other than a
reincorporation); (d) more than fifty percent (50%) of the Company's Voting
Stock, consolidated assets or earning power are sold or transferred; or (e) the
Board of the Company determines, in its sole and absolute discretion, that there
has been a change in control of the Company; provided, however, that clauses
(b), (c) and (d), above, will constitute a "change in control" only if all or
substantially all of the individuals and entities who were the beneficial owners
of Voting Stock of the Company immediately prior to such merger, consolidation
or other business combination or sale or transfer of earning power or assets
(each, a "Business Combination") beneficially own less than 50% of the combined
voting power of the then outstanding shares of Voting Stock of the entity
resulting from such Business Combination (including, without limitation, an
entity which as a result of such transaction owns the Company or all or
substantially all of the Company's earning power or assets either directly or
through one or more subsidiaries).
4.8. Disability. If Executive becomes permanently and totally disabled,
this Agreement shall be terminated. Executive shall be deemed permanently and
totally disabled if he is unable to engage in the activities required by this
Agreement by reason of any medically determinable physical or mental impairment,
as confirmed by three independent physicians, which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months. Upon termination due to disability, any
portion of any of the Options granted to the Executive that is not then vested
shall vest and all Options shall be exercisable by Executive until ninety (90)
days after the termination. This Section 4.8 will not limit the entitlement of
the Executive to any other rights or benefits then available to the Executive
under any plan or program of the Company or under applicable law.
4.9. Death. If Executive dies during the Employment Term, the Employment
shall be terminated on the last day of the calendar month of his death and any
portion of any of the Options granted to the Executive that is not then vested
shall become vested and all Options shall be exercisable by the designated
beneficiary, as provided in Section 6.8 below, the estate or personal
representative of Executive until ninety (90) days after death. This Section 4.9
will not limit the entitlement of the Executive's estate, personal
representative or beneficiaries to any death or other benefits then available to
the Executive under any life insurance, stock ownership, stock options, or other
benefit plan or policy that is maintained by the Company for the Executive's
benefit.
4.10. Effect of Termination. Except as expressly provided for in this
Agreement, the termination of employment shall not impair any obligation that
accrued prior to termination, nor shall it excuse the performance of any
obligation which is required or contemplated hereunder to be performed after
termination, and any such obligation shall survive the termination of employment
and this Agreement.
ARTICLE V
COVENANTS AND REPRESENTATIONS
5.1. Unfair and Non-Competition. The Executive acknowledges that he will
have access at the highest level to, and the opportunity to acquire knowledge
of, the Company's customer lists, customer needs, business plans, trade secrets
and other confidential and proprietary information from which the Company may
derive economic or competitive advantage, and that he is entering into the
covenants and representations in this Article V in order to preserve the
goodwill and going concern value of the Company, and to induce the Company to
enter into this Agreement. The Executive agrees not to compete with the Company
or to engage in any unfair competition with the Company during the Employment
Term. For purposes of this Agreement, the phrase "compete with the Company," or
the substantial equivalent thereof, means that Executive, either alone or as a
partner, member, director, employee, shareholder or agent of any other business,
or in any other individual or representative capacity, directly or indirectly
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owns, manages, operates, controls, or participates in the ownership, management,
operation or control of, or works for or provides consulting services to, or
permits the use of his name by, or lends money to, any business or activity
which is or which becomes, at the time of the acts or conduct in question,
directly or indirectly competitive with the development, financing and/or
marketing of the products, proposed products or services of the Company. During
the Employment Term, Executive shall not directly or indirectly acquire any
stock or interest in any corporation, partnership, or other business entity that
competes, directly or indirectly, with the business of the Company without
obtaining the prior written consent of the Company. Notwithstanding the
foregoing, this Section 5.1 shall not apply to the ownership or acquisition of
stock or an interest representing less than a 5% beneficial interest in a
corporation that is obligated to file reports with the Securities and Exchange
Commission pursuant to the Exchange Act.
In addition, Executive and the Company each agree to treat each other
respectfully and professionally and Executive and Company agrees not disparage
each other (or the Company's party's officers or directors) in any manner likely
to be harmful to each other or its business, business reputation or personal
reputation. Furthermore, the Executive and company agrees not to interfere with
any of the Company's contractual obligations.
5.2. Confidential Information. During the Employment Term and thereafter,
Executive agrees to keep secret and to retain in the strictest confidence all
material confidential matters which relate to the Company or its "affiliate" (as
that term is defined in the Exchange Act), including, without limitation,
customer lists, client lists, trade secrets, pricing lists, business plans,
financial projections and reports, business strategies, internal operating
procedures, and other confidential business information from which the Company
derives an economic or competitive advantage, or from which the Company might
derive such advantage in its business whether or not it is labeled "secret" or
"confidential" or some similar term, and not to intentionally disclose any such
information to anyone outside of the Company, whether during or after the
Employment Term, except in connection with pursuing in good faith the interests
and business of the Company. The foregoing restrictions and obligations under
this Section 5.2 will not apply: (a) to any confidential information that is or
becomes generally available to the public or generally known to persons engaged
in businesses similar to or related to that of the Company, other than as a
result of an unauthorized disclosure by Executive; (b) if the Executive is
required by law to make disclosure; or (c) the disclosure to any director of the
Company. The Company may waive application of the foregoing restrictions and
obligations in its sole discretion from time to time. The Executive will use
only such confidential information for purposes of performing its duties under
this Agreement.
5.3. Non-Solicitation of Customers. During the Employment Term, the
Executive will have access to confidential records and data pertaining to the
Company's customers, their needs, and the relationship between the Company and
its customers. Such information is considered secret and is disclosed during the
Employment Term in confidence. Accordingly, during the Employment Term and for a
period of nine (9) months thereafter, Executive and any entity controlled by him
or with which he is associated (as the terms "control" and "associate" are
defined in the Exchange Act) shall not, directly or indirectly: (a) solicit for
a competitive purpose, interfere with, induce or entice away any person or
entity that is or was a client, customer or agent of the Company or its
affiliates (as the term "affiliate" is defined in the Exchange Act); or (b) in
any manner persuade or attempt to persuade any such person or entity (A) to
discontinue its business relationship with the Company or its affiliates, or (B)
to enter into a business relationship with any other entity or person the loss
of which the Executive should reasonably anticipate would be detrimental to the
Company or its affiliates in any respect.
5.4. Non-Solicitation of Employees. The Executive and any entity controlled
by him or with which he is associated (as the terms "control" and "associate"
are defined in the Exchange Act) shall not, during the Employment Term and for a
term of eighteen (18) months thereafter, directly or indirectly solicit,
interfere with, offer to hire or induce any person who is or was an officer or
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employee of the Company or any affiliate (as the term "affiliate" is defined in
the Exchange Act) (other than secretarial personnel) to discontinue his or her
relationship with the Company or an affiliate of the Company, in order to accept
employment by, or enter into a business relationship with, any other entity or
person. (These acts are hereinafter referred to as the "prohibited acts of
solicitation.") The foregoing restriction, however, shall not apply to any
business with which Executive may become associated after the Employment Term.
5.5. Return of Property. Upon termination of employment, and at the request
of the Company, the Executive agrees to promptly deliver to the Company all
Company or affiliate memoranda, notes, records, reports, manuals, drawings,
designs, computer files in any media, and any other documents (including
extracts and copies thereof) relating to the Company or its affiliates, and all
other property of the Company. Upon termination, the Executive shall cease to
use all such materials and information set forth under Section 5.2.
5.6. Inventions. All processes, inventions, patents, copyrights,
trademarks, and other intangible rights that may be conceived or developed by
the Executive, either alone or with others, during the Employment Term, whether
or not conceived or developed during Executive's working hours, and with respect
to which the equipment, supplies, facilities or trade secret information of the
Company was used, or that relate at the time of conception or reduction to
practice of the invention to the business of the Company, or to the Company's
actual or demonstrably anticipated research or development, or that result from
any work performed by Executive for the Company, shall be the sole property of
the Company. Upon the request of the Company, Executive shall disclose to the
Company all inventions or ideas conceived during the Employment Term, whether or
not the property of the Company under the terms of this provision, provided that
such disclosure shall be received by the Company in confidence. Upon the request
of the Company, Executive shall execute all documents, including patent
applications and assignments, required by the Company to establish the Company's
rights under this provision.
5.7. Representations. The Executive represents and warrants to the Company
that he has full power and authority to enter into this Agreement and perform
his duties hereunder, and that he has no outstanding agreement, whether oral or
written or any obligation that is or may be in conflict with any of the
provisions of this Agreement or that would preclude Executive from complying
with the provisions of this Agreement, including but not limited to any such
arrangement with Discus Dental; and the performance of his duties shall not
result in a breach of, or constitute a default under, any agreement , whether
oral or written, including, without limitation, any restrictive covenant or
confidentiality agreement, to which he is a party or by which he may be bound,
including but not limited to any such agreement with Discus Dental. Executive
further represents and warrants that he has not misappropriated any confidential
information and/or trade secrets of any third party that he intends to use in
the performance of his duties under this Agreement. Company and the individual
signing this Agreement on behalf of Company each represent and warrant that they
each have full power and authority to enter into this Agreement, that there are
no agreements whether oral or written, or legal requirements, that conflict with
any provisions of this Agreement, and that the performance of this Agreement
shall not result in a breach of, or constitute a material default, under, any
such agreement or legal requirement.
5.8. Indemnities.
(a) Executive-Executive shall indemnify and hold harmless the Company from
and against any losses, claims, damages or liabilities which arise out of any
breach of Executive's representations and warranties set forth in Section 5.7 of
this Agreement as determined in a court of law and made part of a final judgment
after exhaustion of, or the time has lapsed for, any appeal thereof.
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(b) Company- shall defend, indemnify and hold Executive harmless from and
against any losses, claims, damages or liabilities which arise out of any: (a)
action or inaction taken or not taken by him in the ordinary course of Company's
business or as directed by the Chairman, CEO or the Board; and (b) any legal
action taken by Discus Dental or its affiliates (e.g., claims for unfair
competition, etc. unless a court of law determines that Executive has breached
the Executive's representations and warranties set forth in Section 5.7 of this
Agreement as part of a final judgment after exhaustion of, or the time has
lapsed for, any appeal thereof
5.9. Non-Payment Upon Non-Compliance. Should Executive breach any one of
the covenants set forth in this Article V, the Company shall have no obligation
to make the payments or to provide Executive the benefits described in Sections
4.5 above, in addition to all other rights and remedies the Company may have
available at law or in equity. The Company shall provide written notice to
Executive, fifteen (15) days prior to an expected payment, of the breach of a
covenant and the ensuing non-payment thereof; provided, however, that if the
Company learns of the breach without sufficient time to provide fifteen (15)
days notice, the Company shall provide written notice as soon thereafter as
practicable.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. Notices. All notices to be given by either party to the other shall be
in writing and may be transmitted by personal delivery, facsimile transmission,
overnight courier or mail, registered or certified, postage prepaid with return
receipt requested; provided, however, that notices of change of address or telex
or facsimile number shall be effective only upon actual receipt by the other
party. Notices shall be delivered at the following addresses, unless changed as
provided for herein.
To the Executive: Xxxx Xxxxxxx
000 Xxxxx Xxxxxxx Xxx
Xxxxxxx Xxxxx, XX
00000 XXX
Facsimile: (000) 000-0000
With a copy to: Xxxx X. Xxxxxx
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
00000 Xxxxxxxx Xxxx., Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
To the Company: Board of Directors
Remedent, Inc.
Xxxxxx xx Xxxxxxxx 00
0000 Xxxxxx, Xxxxxxx
Facsimile: 011-32-9-321-7090
With a copy to: Xxxxx X. Xxxxxx
Bullivant|Xxxxxx|Xxxxxx PC
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile (000) 000-0000
9
6.2. No Assignment, In General. Except as provided below, this Agreement,
and the rights and obligations of the parties, may not be assigned by either
party without the prior written consent of the other party.
6.3. Entire Agreement. This Agreement and the documents delivered pursuant
hereto supersedes any and all other agreements or understandings of the parties,
either oral or written, with respect to the employment of the Executive by the
Company, and contains the complete and final agreement and understanding of the
parties with respect thereto. The Executive acknowledges that no representation,
inducements, promises, or agreements, oral or otherwise, have been made by the
Company or any of its officers, directors, employees or agents, which are not
expressed herein, and that no other agreement shall be valid or binding on the
Company.
6.4. Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto.
6.5. Withholding Taxes. All amounts payable under this Agreement to
Executive, whether such payment is to be made in cash or other property,
including without limitation stock of the Company, shall be subject to
withholding for Federal, state and local income taxes, employment and payroll
taxes, and other legally required withholding taxes and contributions to the
extent appropriate in the good faith determination of the Company, and the
Executive agrees to report all such amounts on his personal income tax returns
and for all other purposes, as called for.
6.6. Severability. If any provision of this Agreement is held to be invalid
or unenforceable by any judgment of a tribunal of competent jurisdiction, the
remaining provisions and terms of this Agreement shall not be affected by such
judgment, and this Agreement shall be carried out as nearly as possible
according to its original terms and intent and, to the full extent permitted by
law, any provision or restrictions found to be invalid shall be amended with
such modifications as may be necessary to cure such invalidity, and such
restrictions shall apply as so modified, or if such provisions cannot be
amended, they shall be deemed severable from the remaining provisions and the
remaining provisions shall be fully enforceable in accordance with law.
6.7. Effect of Waiver. The failure of either party to insist on strict
compliance with any provision of this Agreement by the other party shall not be
deemed a waiver of such provision, or a relinquishment of any right thereunder,
or to affect either the validity of this Agreement, and shall not prevent
enforcement of such provision, or any similar provision, at any time.
6.8. Designation of Beneficiary. If the Executive shall die before receipt
of all payments and benefits to which he is entitled under this Agreement,
payment of such amounts or benefits in the manner provided herein shall be made
to such beneficiary as he shall have designated in writing filed with the
Secretary of the Company or, in the absence of such designation, to his estate
or personal representative.
6.9. Attorneys Fees. In any proceeding brought to enforce any provision of
this Agreement, or to seek damages for a breach of any provision hereof, or when
any provision hereof is validly asserted as a defense, the prevailing party will
be entitled to receive from the other party all reasonable attorney's fees and
costs in connection therewith.
6.10. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflict of laws principles. The venue for any lawsuit between the parties shall
be in a court located in Los Angeles County, California.
10
6.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which, shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. For the purpose of
proving the authenticity of this Agreement, facsimile signature shall be treated
the same as original signatures.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
COMPANY: REMEDENT, INC.
By: /s/ Xxxxx List
---------------------------
Xxxxx List, President
EXECUTIVE: /s/ Xxxx X Xxxxxxx
---------------------------
Xxxx X Xxxxxxx
