EMPLOYMENT AGREEMENT
BY AND BETWEEN REGENESIS HOLDINGS CORPORATION
AND
XXXXXXX XXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of February 15, 1999 by and between REGENESIS HOLDINGS CORPORATION, a Florida
corporation (the "Company") and XXXXXXX XXXXX ("Employee").
WHEREAS, the Company and Employee desire to enter into this Agreement
to assure the Company of the services of Employee and to set forth the
respective rights and duties of the parties hereto;
WHEREAS, the Company (a) is a holding company and currently has no
operating subsidiaries (b) intends to invest its available resources in one or
more new business ventures, (such activities, present and future, being
hereinafter referred to as the "Business").
NOW THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company and Employee agree
as follows:
ARTICLE I
1.1 Employment and Title. The Company hereby employs Employee, and
Employee hereby accepts such employment, as Chairman of the Board, all upon the
terms and conditions set forth herein.
1.2 Services.
(a) During the term (as hereinafter defined) hereof, Employee
agrees to perform diligently and in good faith the duties of Chairman of the
Company under the direction of the Board of Directors of the Company (the "Board
of Directors") or the Executive Committee of the Board of Directors (the
"Executive Committee"). Employee agrees to use his best efforts for the benefit
of the Company. The Company acknowledges that Employee is, and has been,
involved in various projects and activities (i.e. Attorney, Racing Team), some
of which provide indirect benefit to the Company. The Company further
acknowledges that such projects and activities have not adversely affected
Employee's performance of his duties and responsibilities; and nothing herein
shall restrict or prohibit Employee's involvement in such projects and
activities, provided that such projects and activities do not compare with, or
unduly interfere with, in the sole discretion of the Executive Committee,
Employee's duties and responsibilities hereunder. Employee shall be vested with
such authority as is generally commensurate with the position of Chairman of the
Board, as further outlined below.
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(b) Employee shall be the person primarily responsible for
insuring that the management of the Company operates within and institutes the
various directives of the Board of Directors. Employee will work and consult
with, as well as keep fully informed, the Board of Directors and the Executive
Committee as to all pertinent aspects of the Company's planning, operations, and
general business activities. As appropriate, Employee, in coordination with the
President and Chief Executive Officer, will communicate and report to the
Executive Committee and the Board of Directors on a periodic basis as to all
pertinent prospects and other such information reasonably required by the Board
of Directors to fulfill its duties to the Company's stockholders.
1.3 Location. The principal place of employment and the location of
Employee's principal office shall be in South Florida; provided, however,
Employee shall, when requested by the Board of Directors, or may, if he
determines it to be reasonably necessary, temporarily perform outside of South
Florida such services as a re reasonably required for the proper execution of
his duties under this Agreement.
1.4 Representations. Each party represents and warrants to the other
that he/it has full power and authority to enter into and perform this Agreement
and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Each party represents that
no consent or approval of any third party is required for his/its execution,
delivery and performance of this Agreement or that all consents or approvals of
any third party required for his/its execution, delivery and performance of this
Agreement have been obtained.
1.5 Sole Discretion. As the term "sole discretion" is used in this
Agreement, unless otherwise defined, it will be interpreted as the exercise of
reasonable discretion applying normal business practices to a contractual
relationship between a company and its Chairman.
ARTICLE II
Term
2.1 Term The term of Employee's employment hereunder (the "Term") shall
commence as of the date hereof (the "Commencement Date") and shall continue
through the term of the contract year following the fourth anniversary of the
Commencement Date (the "Scheduled Termination Date") unless earlier terminated
pursuant to the provisions of this Agreement.
ARTICLE III
Compensation
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3.1 Base Salary. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base a salary of not less than $140,400, which base salary shall accrue
monthly (prorated for periods less than a month) and shall be paid in equal
bi-monthly installments, in arrears. The base salary will be adjusted annually
for changes in the cost of living and will be reviewed annually, or, more
frequently, when appropriate, by the Board of Directors or the Compensation
Committee of the Board of Directors, as the case may be, in its sole discretion.
3.2 Incentive Compensation. The Company may pay Employee, during the
Term of this Agreement, a performance/incentive bonus, based upon either: (i)
the attainment of the annual sales and profits levels to be set forth in Exhibit
A, to be attached hereto upon completion, which has been prepared after review
of a report and recommendations of an independent consultant or when
appropriate, by the Board of Directors or the Compensation Committee of the
Board of Directors, as the case may be, in its sole discretion.
3.3 Non-Qualified Stock Options. Upon the execution of this Agreement,
and subject to the provisions of Section 3.6, the Company shall grant to
Employee non-qualified options to acquire Five Hundred Thousand (500,000) shares
of its common stock (the "Option Shares"), subject to the following terms and
conditions:
(a) The option price per Option Share will be $.25.
(b) The Option Shares shall vest in full upon grant.
(c) The Option Shares shall expire (unless exercised in
accordance with the terms of this Section 3.4) on December 31, 2004. Vested
Option Shares shall be exercisable by Employee, in whole or in part, on or
before such expiration date by payment in full, in cash or by check, to the
Company of the aggregate option price for the Option Shares so acquired.
3.4 Additional Compensation.
(a) S-8 Share Grants. Upon being elected as Chairman, the
Employee shall receive 300,000 S-8 Shares, to be registered in the Company's
next registration statement, and certain additional grants if any, shall be
determined by the Board of Directors or the Compensation Committee of the Board
of Directors, as the case may be, in its sole discretion.
(b) Registered Stock Grants. The Company may grant Employee,
during the Term of this Agreement, unregistered shares of its Common Stock,
which grants, if any, shall be determined by the Board of Directors, as the case
may be, in it sole discretion.
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(c) Commission. The Company will pay Employee a commission
(payable in cash or in unregistered shares of Common Stock, at the Employee's
option) for each corporate finance transaction and acquisition consummated by
the Company or any Affiliate of the Company during the Term hereof. For purposes
of this Section 3.5(b). The commissions shall be based upon the consideration
(whether such consideration is in the form of cash, stock, notes, bonds,
debentures, reserved production payments or other reserved interests or any
other thing of value, or any combination of the foregoing) actually paid or
agreed to be paid by the Company or any Affiliate of the Company in connection
with an acquisition, shall be paid to Employee within sixty (60) days of the
closing of the acquisition, and shall be in an amount not less than one percent
(1%) of the total consideration. The term "Affiliate" as used in this Agreement
includes any individual, corporation, partnership, trust, estate or other legal
entity controlling, controlled by or under common control with the Company, with
the concept of control in such context meaning the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of another, whether through the ownership or voting securities, by
contract or otherwise, and shall also include any employee, officer, director,
or agent of the Company acting for or in behalf of the Company.
3.5 Effect of Changes in Capitalization.
(a) If the number of outstanding shares of common stock of the
Company is increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Company by reason of any
merger, share exchange, consolidation, reorganization, recapitalization,
reclassification, stock split, combination of shares, exchange of shares, stock
dividend or other distribution payable in capital stock, or other increase or
decrease in such shares effected without receipt of consideration by the
Company, a proportionate and appropriate adjustment shall be made by the Company
with respect to the number of Option Shares then outstanding under Section 3.4,
so that the proportionate interest of Employee immediately following such event
shall, to the extent practicable, be the same as immediately prior to such
event. Any such adjustment in the number of Option Shares shall not change the
aggregate option price payable with respect to the then unexercised Option
Shares, but shall include a corresponding proportionate adjustment in the option
price per Option Share.
(b) Adjustments under this Section 3.6 relating to Option
Shares or securities of the Company shall be made by the Board of Directors,
whose determination in that respect shall be final and conclusive. No fractional
shares or units of other securities shall be issued pursuant to any such
adjustment and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding upward to the nearest whole share or unit.
3.6 Employee's Legal Fees. Employee may, and the Company has encouraged
the Employee to, engage competent legal counsel for advice and guidance with
respect to this Agreement, including, without limitation, advice as the federal
income tax consequences of this Article III. The Company shall reimburse
Employee for all
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reasonable legal fees incurred by Employee in connection with the negotiation
and execution of this Agreement. Further, during the term of this Agreement, and
any extension hereof, in the event an action is filed against Employee,
individually, based upon allegations involving Employee's performance of his
duties hereunder, the Company shall reimburse Employee for all reasonable legal
fees incurred by Employee in defense thereof.
3.7 Relocation Costs. The Company agrees to reimburse Employee for
reasonable moving expenses incurred by Employee in connection with any
relocation required by the Company (including the costs of any temporary rental
accommodations), subject to requirements for acceptable documentation and any
applicable Internal Revenue Service reporting requirements. Such reimbursement
shall include the Company's purchase of Employee's residence located in Florida
as determined by the average of appraisals performed by two qualified
appraisers, one selected by the Company and one selected by the Employee.
3.8 Benefits. Employee shall be entitled, during the Term hereof, to
the same medical, hospital, dental and life insurance coverage and benefits as
are available to the Company's most senior executive officers on the
Commencement Date together with the following additional benefits:
(a) A Company automobile of a type, model and style
satisfactory to Employee;
(b) Reimbursement of all operating expenses of the Company
automobile;
(c) Comprehensive medical coverage, including dependent,
dental and disability coverage, paid fully by the Company;
(d) The Company shall purchase and maintain "Key Man" Life
insurance on Employee in an amount equal to the aggregate balance of all Company
obligations which the Employee has guaranteed plus $500,000, the beneficiary and
owner of which shall be the Company;
(e) The Company shall purchase Term Life insurance on Employee
in an amount equal to the aggregate balance of $500,000, the beneficiary and
owner of which shall be designated by Employee;
(f) Long-term disability insurance in an amount, adjusted
annually, equal to Employee's prior year base salary and incentive compensation,
if any, excluding compensation earned through Company stock options or other
securities; the beneficiary and owner of which policy shall be the Company,
which agrees that it shall continue Employee's compensation so long as the
Company receives payments or benefits from said policy, including continuation
of said compensation beyond termination of this Agreement;
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(g) All fees, dues and expenses at:
(i) Two South Florida county clubs of Employee's
choice;
(ii) Two (2) Professional Sports Programs of
Employee's choice.
(h) The Company's normal vacation allowance for all employees
who are executive officers of the Company, but not less than four (4) weeks
annually;
(i) An Officers and Directors Indemnity Agreement, in the form
to be attached hereto as Exhibit C.
3.9 Withholding. Any and all amounts payable under this
Agreement, including, without limitation, amounts payable under this Article III
and Article VII, are subject to withholding for such federal, state and local
taxes as the Company, in its reasonable judgment, determines to be required
pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities and Expenses. Employee shall be furnished with
an office at the principal executive offices of the Company, and at such other
location as agreed to by Employee and the company, and other working facilities
and secretarial and other assistance suitable to his position and reasonably
required for the performance of his duties hereunder. The Company shall
reimburse Employee for all of Employee's reasonable expenses incurred while
employed and performing his duties under and in accordance with the terms and
conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code") and applicable
regulations as are in effect from time to time.
4.2 Insurance. The Company may secure in its own name or otherwise, and
at its own expense, life disability and other insurance covering Employee or
Employee and others, and Employee shall not have any right, title or interest in
or to such insurance other than as expressly provided herein. Employee agrees to
assist the Company in procuring such insurance by submitting to the usual and
customary medical and other examination s to be conducted by such physicians(s)
as the Company or as such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance.
ARTICLE V
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Illness or Incapacity
5.1 Right to Terminate. If, during the Term of this Agreement, Employee
shall be unable to perform in his duties hereunder for a period exceeding nine
(9) consecutive months by reason of illness or incapacity, this Agreement may be
terminated by the Company in its sole discretion pursuant to Section 7.2 hereof.
5.2 Right to Replace. If Employee's illness or incapacity, whether by
physical or mental cause, renders him unable for a minimum period of ninety (90)
consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to replace
Employee temporarily in the capacity described in Article 1 hereof; provided,
however, that if Employee returns to work from such illness or incapacity within
the nine (9) month period following his inability due to such illness or
incapacity, he shall be entitled to be reinstated in the capacity described in
Article I hereof with all rights, duties and privileges attendant thereto.
5.3 Rights Prior to Termination. Employee shall be entitled to his full
remuneration and benefits hereunder during such illness or incapacity unless and
until an election is made by the Company to terminate this Agreement in
accordance with the provisions of this Article.
5.4 Determination of Illness or Incapacity. For purposes of this
Article V, the term "illness or incapacity" shall mean Employee's inability to
substantially perform his duties hereunder due to physical or mental illness as
determined by the Board of Directors, based upon medical documentation of same.
ARTICLE VI
Confidentiality
6.1 Confidentiality. During the Term of this Agreement and thereafter,
Employee agrees to maintain the confidential nature of the Company's trade
secrets, including, without limitation, development ideas, acquisition
strategies and plans, financial information, records, "know how", methods of
doing business, customer, supplier and distributor lists and all other
confidential information of the Company. Employee shall not use (other than in
connection with his employment), in any way whatsoever, such trade secrets
except as authorized in writing by the Company. Employee shall, upon the
termination of his employment, deliver to the Company any and all record, books,
documents or any other materials whatsoever (including all copies thereof)
containing such trade secrets, which shall be and remain the property of the
Company.
6.2 Non-Removal of Records. All documents, papers, materials, notes,
books, correspondence, drawings and other written and graphic records relating
to the Business
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of the Company which Employee shall prepare or use, or come into contact with,
shall be and remain the sole property of the Company and, effective immediately
upon the termination of the Employee's employment with the Company for any
reason, shall not be removed from the Company's premises without the Company's
prior written consent.
ARTICLE VII
Termination
7.1 Termination for Cause. This Agreement and the employment of
Employee may be terminated by the Company "For Cause" in any of the following
circumstances:
(a) Employee has committed any fraud, misappropriation or
similar act against the Company;
(b) Employee has been proven to have engaged in illegal
activities which, individually, or in the aggregate, have a material adverse
effect on the Company.
A Termination for Cause under this Section 7.1 shall be
effective upon the date set forth in a written notice of termination delivered
to Employee and removal of Employee's liability for any obligations of the
Company or guaranty of any Company obligations, whether such Company obligation
is non-contingent or contingent.
7.2 Termination Without Cause. This Agreement and the employment of the
Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto, provided
Employee's liability for any litigation of the Company or guaranty of any
Company obligation, whether such Company obligation is non-contingent or
contingent, has been removed; or
(b) Upon Employee's death.
A Termination Without Cause under Section 7.2(a) hereof shall
be effective upon the date set forth in a written notice of termination
delivered hereunder, which shall not be less than ninety (90) days after the
given of such notice. A Termination Without Cause under 7.2(d) hereof shall be
automatically effective upon the date of the death of the Employee.
7.3 Effect of Termination For Cause. If Employee's employment is
terminated For Cause:
(a) Employee shall be entitled to accrued base salary under
Section 3.1 through the date of termination;
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(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the provisions of
Section 4.1 hereof; and,
(c) Employee shall be entitled to any commissions on
acquisitions or agreements for acquisitions entered into prior to termination,
whether such acquisitions are consummated or are to be consummated after the
date effective termination date.
7.4 Effect of Termination Without Cause. If Employee's employment is
terminated Without Cause:
(a) Employee shall be entitled to compensation under Section 3
through the date of termination;
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the provisions of
Section 4.1 hereof;
(c) Employee shall be entitled to receive a one-time, lump sum
severance payment equal to two and nine point nine tenths (2.99) times the total
amount of the annual base salary payable under Section 3.1 hereof, which amount
shall be paid upon termination;
(d) Employee shall be entitled to receive all benefits as
would have been awarded under Section 3.8 hereof through the Scheduled
Termination Date, which benefits shall be awarded as and when the same would
have been awarded under the Agreement had it not been terminated;
(e) Employee shall be entitled to any commissions on
acquisitions or agreements for acquisitions entered into prior to termination,
whether such acquisitions are consummated or are to be consummated after the
date effective termination date; and
(f) Except as provided in Article XI, this Agreement shall
thereupon be of no further force or effect.
7.5 Termination Upon Change of Control. Upon a "Change of Control" (as
such term is defined in Section 7.6 herein) of the Company during the Term
hereof, Employee may, at his sole discretion, declare this Agreement terminated
and receive a one-time, lump sum severance payment equal to two and ninety-nine
hundreds (2.99) times the total amount of the annual base salary payable under
the terms of Section 3.1 of this Agreement upon the date of such Change of
Control, if within three (3) years of the Change of Control.
(a) Employee's employment hereunder is terminated prior to the
Scheduled Termination Date Without Cause; or
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(b) Employee elects to terminate his employment with the
Company in the event (i) he is removed from the office of Chairman of the
Company or (ii) the Company fails to afford Employee the power and authority
generally commensurate with the position o f Chairman or (iii) the Company
requires Employee to relocate his residence; and
(c) Employee's liability for any obligation of the Company or
guaranty of any Company obligation, whether such Company obligation is
non-contingent or contingent, has been removed.
7.6 Change of Control. For purposes of this Section 7.5 of this
Agreement, a Change of Control shall be deemed to have occurred in the event of:
(a) The acquisition by any person or entity, or group thereof
acting in concert, of "beneficial" ownership (as such term is defined in
Securities and Exchange Commission Act of 1934, as amended) (the "Exchange
Act"), of securities of the Company which, together with securities previously
owned, confer upon such person, entity or group the voting power, on any matters
brought to a vote of shareholders, of twenty-five percent (25%) or more of the
then outstanding shares of capital stock of the Company; or
(b) The sale, assignment or transfer of assets of the Company
or any subsidiary or subsidiaries, in a transaction or series of transactions,
if the aggregate consideration received or to be received by the Company or any
such subsidiary in connection with such sale, assignment or transfer is greater
than twenty-five percent (25%) of the book value, determined by the Company in
accordance with generally accepted accounting principles, of the Company's
assets determined on a consolidated basis immediately before such transaction or
the first of such transactions; or
(c) The merger, consolidation, share exchange or
reorganization of the Company (or one or more subsidiaries of the Company) as a
result of which the holders of all of the shares of capital stock of the Company
as a group would receive less than twenty-five percent (25%) of the voting power
of the capital stock or other interests of the surviving or resulting
corporation or entity; or
(d) The adoption of a plan of liquidation or the approval of
the dissolution of the Company; or
(e) The commencement (within the meaning of SEC Rule 14d-2
under the Exchange Act) of a tender or exchange offer which, if successful,
would result in a change of control of the Company; or
(f) A determination by the Board of Directors of the Company,
in view of then current circumstances or impending events, that a Change of
Control of the Company has occurred or is imminent, which determination shall be
made for the specific purpose of triggering the operative provisions of this
Agreement.
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7.7 Limitations on Change of Control Compensation. In the event that
the lump-sum payment payable to Employee under Section 7.5 hereof ("Severance
Benefits"),or any other payments or benefits received by Employee from the
Company (whether payable pursuant to the terms of this Agreement, or any other
plan, agreement or arrangements with the Company or any corporation affiliated
with the Company within the meaning of Section 1504 of the Code, in the opinion
of tax counsel selected by the Company acceptable to Employee, constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the Code and
the present value of such "parachute payments" equals or exceeds three times the
average of the annual compensation payable to Employee by the Company (or an
Affiliate) and includable in Employee's gross income for federal income tax
purposes for the five (5) calendar years preceding the year in which a change in
ownership or control (as hereinafter defined) of the Company occurred ( "Base
Amount"), such Severance Benefits shall be reduced to an amount the present
value of which (when combined with the present value of any other payments or
benefits otherwise received or to be received by Employee from the Company (or
an Affiliate) that are deemed "parachute payments" is equal to 2.99 times the
Base Amount, notwithstanding any other provision to the contrary in this
Agreement. The Severance Benefits shall not be reduced if (i) Employee shall
have effectively waived his receipt of enjoyment of any such payment or benefit
which triggered the applicability of this Section 7.7 or (ii) in the opinion of
such tax counsel, the Severance Benefits (in their full amount or as partially
reduced, as the case may be) plus all other payments or benefits which
constitute "parachute payments" within the meaning of Section 280G(b)(2) of the
Code are reasonable compensation for the services actually rendered, within the
meaning of Section 280G(b)(4) of the Code and such payments are deductible by
the Company. The Base Amount shall include every type and form of compensation
includable in Employee's gross income in respect of his employment by the
Company (or an Affiliate), except to the extent otherwise provided in temporary
or final regulations promulgated under Section 280G(b) of the Code. For purposes
of this Section 7.7, a "change in ownership or control" shall have the meaning
set forth in Section 280G(b) of the Code and any temporary or final regulations
promulgated thereunder. The present value of any non-cash benefit or any
deferred cash payment shall be determined by the Company's independent auditors
in accordance with the principles of Section 280G of the Code.
Employee shall have the right to request that the Company obtain a
ruling from the Internal Revenue Service ("IRS") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the IRS,
"parachute payments" under Section 280G. If a ruling is sought pursuant to
Employee's request, no Severance Benefits payable under this Agreement in excess
of the Section 280G limitations shall be made to Employee until after fifteen
(15) days from the date of such ruling, however, Severance Benefits shall
continue to be paid during the time up to the amount of that limitation. For
purposes of this Section 7.7, Employee and the Company shall agree to be bound
by the IRS's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the IRS declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control and the period during
which the Severance Benefits may be deferred shall be extended
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to a date fifteen (15) days from the date of the IRS's notice indicating that no
ruling would be forthcoming.
In the event that Section 280G, or any successor statute is repealed,
this Section 7.7 shall cease to be effective on the effective date of such
repeal. The parties to this Agreement recognize that final regulations under
Section 280G of the Code may affect the amounts that may be paid under this
Agreement and agree that, upon issuance of such final regulations, this
Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modification shall not be unreasonably withheld.
ARTICLE VIII
Non-Competition and Non-Interference
8.1 Non-Competition. Employee agrees that during the Term hereof and,
in the case of a Termination For Cause, for a period of six (6) months
thereafter, Employee will not, directly, indirectly, or as an agent on behalf of
or in conjunction with any person, firm, partnership, corporation or other
entity, own, manage, control, join, or participate in the ownership, management,
operation, or control of, or be financially interested in or advise, lend money
to , or be employed by or provide consulting services to, or be connected in any
manner with any similar business in which the Company is engaged as of the date
of termination and which is located within 50 miles of any Company facility or
operation within the United States of America.
8.2 Non-Interference. Employee agrees that during the Term hereof and,
in the case of a Termination For Cause, for a period of six (6) months
thereafter, Employee will not, directly, indirectly or as an agent on behalf of
or in conjunction with any person, firm, partnership, corporation or other
entity, induce or entice any employee of the Company to leave such employment or
cause anyone else to do so.
8.3 Severability. If any covenant or provision contained in Article
VIII is determined to be void or unenforceable in whole or in part, it shall not
be deemed to affect or impair the validity of any other covenant or provision.
If, in any arbitral or judicial proceeding, a tribunal shall refuse to enforce
al of the separate covenants deemed included in this Article VIII, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
ARTICLE IX
Remedies
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9.1 Equitable Remedies. Employee and the Company agree that the
services to be rendered by Employee pursuant to this Agreement, and the rights
and interests granted and the obligations to be performed by Employee to the
Company pursuant to this agreement, are of a special, unique, extraordinary and
intellectual character, which gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in any action at law,
and that a breach by Employee of any of the terms of this Agreement will cause
the Company great and irreparable injury and damage. Employee hereby expressly
agrees that the Company shall be entitled to the remedies of injunction,
specific performance and other equitable relief to prevent a breach of Articles
VI and VIII of this Agreement, both pendente lite and permanently, against
Employee, as such breach would cause irreparable injury to the Company and a
remedy at law would be inadequate and insufficient. Therefore, the Company may,
in addition to pursuing its other remedies, obtain an injunction from any court
having jurisdiction in the matter restraining any further violation.
9.2 Rights and Remedies Preserved. Nothing in this Agreement except
Section 10.11 shall limit any right or remedy the Company or Employee may have
under this Agreement or pursuant to law for any breach of this Agreement by the
other party. The rights granted to the parties herein are cumulative and the
election of one shall not constitute a waiver of such party's right to assert
all other legal remedies available under the circumstances.
ARTICLE X
Miscellaneous
10.1 No Waivers. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
10.2 Notices. Any notice to be given to the Company and Employee under
the terms of this Agreement may be delivered personally, by telecopy, telex or
other form of written electronic transmission, or by registered or certified
mail, postage prepaid, and shall be addressed as follows:
If to the Company: Regenesis Holdings Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Employee: Xxxxxxx Xxxxx
0000 X. Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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AND a Copy to: Xxxxxxx X. Xxxxx, Esquire
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 Severability. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 Successors and Assigns. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
10.5 Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
10.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
10.7 Section Headings. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
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10.8 Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
10.9 Gender. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
10.10 Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall be deemed one original.
10.11 Arbitration. the parties hereto agree that any dispute concerning
or arising out of the provisions of the Agreement shall be resolved by
arbitration in accordance with the rules of the American Arbitration
Association. Such arbitration shall be held in Broward County, Florida and the
decision of the arbitrator(s) shall be conclusive and binding on the partes and
shall be enforceable in any court of competent jurisdiction. The arbitrator may,
in his or her discretion, award attorneys' fees and costs to such party as he or
she sees fit in rendering his or her decision. Notwithstanding the foregoing, if
any dispute arises hereunder as to which the Company desires to exercise any
rights or remedies under Section 9.1 hereof, the Company may, in its discretion,
in lieu of submitting the matter to arbitration, bring an action thereon in any
court of competent jurisdiction in Florida, which court may grant any and all
relief available in equity or at law. In any such action, the prevailing party
shall be entitled to reasonable attorneys' fees and costs as may be awarded by
the court.
ARTICLE XI
Survival
11.1 Survival. The provisions of Articles III {3.5(c)}, VI, VII, VIII,
IX and X, of this Agreement shall survive the termination of this Agreement
whether upon, or prior to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
ATTEST: REGENESIS HOLDINGS CORPORATION,
a Florida corporation,
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Title: DIRECTOR/PRESIDENT
____________________________
Secretary
WITNESS: EMPLOYEE
____________________________ /s/ Xxxxxxx X. Xxxxx
------------------------------------
XXXXXXX X. XXXXX
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