EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
July 13, 2005 (the "Agreement Date") and shall be effective as of August 15,
2005 (the "Effective Date") by and between IPEX, Inc., a Nevada corporation,
with an office located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual with a mailing address
located at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇").
WHEREAS, the Company desires to retain the services of ▇▇▇▇▇▇▇▇ as the
Company's Chairman of the Board and Chief Executive Officer and ▇▇▇▇▇▇▇▇ is
willing to be employed by the Company in such capacity.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Employment. ▇▇▇▇▇▇▇▇ is hereby employed and engaged to serve the Company as
the Chief Executive Officer of the Company or such additional titles as the
Company shall specify from time to time, and ▇▇▇▇▇▇▇▇ does hereby accept, and
▇▇▇▇▇▇▇▇ hereby agrees to such engagement and employment. At all times during
the term of ▇▇▇▇▇▇▇▇'▇ employment, he shall remain Chairman of the Board of
Directors of the Company.
2. Duties. ▇▇▇▇▇▇▇▇ shall be responsible for the overall development, operations
and corporate governance of the Company. In addition, ▇▇▇▇▇▇▇▇'▇ duties shall be
such duties and responsibilities as the Company shall specify from time to time,
and shall entail those duties customarily performed by the Chief Executive
Officer of a company with a business commensurate with that of the Company.
▇▇▇▇▇▇▇▇ shall have such authority, discretion, power and responsibility, and
shall be entitled to office, secretarial and other facilities and conditions of
employment, as are customary or appropriate to his position. ▇▇▇▇▇▇▇▇ shall
diligently and faithfully execute and perform such duties and responsibilities,
subject to the general supervision and control of the Company's Board of
Directors. ▇▇▇▇▇▇▇▇ shall be responsible and report only to the Company's Board
of Directors. The Company's Board of Directors, in its sole and absolute
discretion, shall determine ▇▇▇▇▇▇▇▇'▇ duties and responsibilities and may
assign or reassign ▇▇▇▇▇▇▇▇ to such duties and responsibilities as it deems in
the Company's best interest. ▇▇▇▇▇▇▇▇ shall devote his full-time attention,
energy, and skill during normal business hours to the business and affairs of
the Company and shall not, during the Employment Term, as that term is defined
below, be actively engaged in any other business activity, except with the prior
written consent of the Company's Board of Directors.
Nothing in this Agreement shall preclude ▇▇▇▇▇▇▇▇ from devoting reasonable
periods required for:
(a) serving as a director or member of a committee of any
organization or corporation involving no conflict of interest
with the interests of the Company;
(b) serving as a consultant in his area of expertise (in areas
other than in connection with the business of the Company), to
government, industrial, and academic panels where it does not
conflict with the interests of the Company; and
(c) managing his personal investments or engaging in any other
non-competing business; provided that such activities do not
materially interfere with the regular performance of his
duties and responsibilities under this Agreement as determined
by the Company.
3. Best Efforts of ▇▇▇▇▇▇▇▇. During his employment hereunder, ▇▇▇▇▇▇▇▇ shall,
subject to the direction and supervision of the Company's Board of Directors,
devote his full business time, best efforts, business judgment, skill, and
knowledge to the advancement of the Company's interests and to the discharge of
his duties and responsibilities hereunder. Notwithstanding the foregoing,
nothing herein shall be construed as preventing ▇▇▇▇▇▇▇▇ from investing his
assets in any business.
4. Employment Term. Unless terminated pursuant to Section 12 of this Agreement,
the term of this Agreement shall commence as of the Effective Date of this
Agreement and shall continue for a term of thirty-six (36) months (the "Initial
Term"), and shall be automatically renewed for successive twelve (12) month
terms (the "Renewal Term") unless: (a) a party hereto delivers to the other
party written notice of such party's intention not to renew at least thirty (30)
days prior to the end of the Initial Term or the applicable Renewal Term, as the
case may be; or (b) the Company and ▇▇▇▇▇▇▇▇ mutually agree on the terms of a
new employment agreement subsequent to the Initial Term. (the terms "Initial
Term" and "Renewal Term" are collectively hereinafter referred to as the
"Employment Term").
5. Compensation of ▇▇▇▇▇▇▇▇.
(a) Base Salary. As compensation for the services provided by ▇▇▇▇▇▇▇▇ under
this Agreement, the Company shall pay ▇▇▇▇▇▇▇▇ an annual salary of Two
Hundred Seventy-Five Thousand Dollars ($275,000) ("Base Salary"). During
the term of this Agreement, ▇▇▇▇▇▇▇▇ shall be eligible for annual and
merit increases in his Base Salary as determined in the sole discretion of
the Board of Directors. The compensation of ▇▇▇▇▇▇▇▇ under this Section
shall be paid in accordance with the Company's usual payroll procedures.
(b) Bonus. In addition to the Base Salary, ▇▇▇▇▇▇▇▇ shall be eligible to
receive an annual bonus determined by the Board of Directors based on the
performance of the Company.
(c) Stock and Stock Options.
(i) In addition to the Base Salary under Section 5(a), the Company
shall issue ▇▇▇▇▇▇▇▇ such number of shares of common stock of the Company
equal to $600,000 divided by the volume weighted average price of the
Company's common stock for the 60 trading days prior to the Agreement Date
(the "Restricted Shares"). The Base Salary and the Restricted Shares are
collectively referred to as the "Base Compensation." One-third of the
Restricted Shares shall vest on each twelve (12) month anniversary of the
Effective Date during the Initial Term, unless otherwise modified pursuant
to Sections 12(f)(i)(A), 12(f)(ii)(A) and 12(f)(iii)(A) (each such vest
date is referred to as a "Restricted Shares Vest Date"). If on a
Restricted Shares Vest Date, the volume weighted average price of the
Company's common stock for the 60 trading days prior to such Restricted
Shares Vest Date is less than the volume weighted average price of the
Company's common stock for the 60 trading days prior to the Agreement
Date, then the number of shares of common stock issuable on the Restricted
Shares Vest Date shall be adjusted to reflect such lower price.
(ii) In addition to the Base Compensation under Sections 5(a) and
5(c)(i), the Company shall issue ▇▇▇▇▇▇▇▇ options to purchase an aggregate
of 3,500,000 shares of the Company's common stock (the "Options").
One-third of the Options shall vest on each twelve (12) month anniversary
of the Effective Date during the Initial Term, unless otherwise modified
by the Companys' Stock Option Plan (each such vest date is referred to as
an "Option Vest Date"). The Options shall have an exercise price equal to
the volume weighted average price of the Company's common stock for the 60
trading days prior to the Agreement Date and shall expire ten (10) years
after the Effective Date.
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(iii) ▇▇▇▇▇▇▇▇ shall also be eligible to receive shares of the
Company's authorized stock and options to purchase shares of the Company's
authorized stock from time to time as determined by the Board of
Directors.
(iv) The Company shall supply ▇▇▇▇▇▇▇▇ at the Company's cost, tax,
legal advice and support relating to the handling of the Options described
in Section 5(c)(ii) in the most tax efficient manner for ▇▇▇▇▇▇▇▇;
provided that the cost of such tax, legal advise and support shall not
exceed $10,000. To the extent the cost of such tax, legal advice and
support exceeds $10,000, such cost shall be paid by ▇▇▇▇▇▇▇▇.
6. Benefits. ▇▇▇▇▇▇▇▇ shall also be entitled to participate in any and all
Company benefit plans, from time to time, in effect for employees of the
Company. Such participation shall be subject to the terms of the applicable plan
documents and generally applicable Company policies.
7. Vacation, Sick Leave and Holidays. ▇▇▇▇▇▇▇▇ shall be entitled to four (4)
weeks of paid vacation, with such vacation to be scheduled and taken in
accordance with the Company's standard vacation policies. In addition, ▇▇▇▇▇▇▇▇
shall be entitled to such sick leave and holidays at full pay in accordance with
the Company's policies established and in effect from time to time.
8. Business Expenses. The Company shall promptly reimburse ▇▇▇▇▇▇▇▇ for all
reasonable out-of-pocket business expenses incurred in performing ▇▇▇▇▇▇▇▇'▇
duties and responsibilities hereunder in accordance with the Company's policies,
provided ▇▇▇▇▇▇▇▇ promptly furnishes to the Company adequate records of each
such business expense.
9. Location of ▇▇▇▇▇▇▇▇'▇ Activities. ▇▇▇▇▇▇▇▇'▇ principal place of business in
the performance of his duties and obligations under this Agreement shall be in
San Diego, California at a place to be determined by the Board of Directors.
Notwithstanding the preceding sentence, ▇▇▇▇▇▇▇▇ will engage in such travel and
spend such time in other places as may be necessary or appropriate in
furtherance of his duties hereunder.
10. Confidentiality. ▇▇▇▇▇▇▇▇ recognizes that the Company has and will have
business affairs, products, future plans, trade secrets, customer lists, and
other vital information (collectively "Confidential Information") that are
valuable assets of the Company. ▇▇▇▇▇▇▇▇ agrees that he shall not at any time or
in any manner, either directly or indirectly, divulge, disclose, or communicate
in any manner any Confidential Information to any third party without the prior
consent of the Company's Board of Directors. ▇▇▇▇▇▇▇▇ will protect the
Confidential Information and treat it as strictly confidential.
11. Non-Competition. ▇▇▇▇▇▇▇▇ acknowledges that he has gained, and will gain
extensive knowledge in the business conducted by the Company and has had, and
will have, extensive contacts with customers of the Company. Accordingly,
▇▇▇▇▇▇▇▇ agrees that he shall not compete directly or indirectly with the
Company, either during the Employment Term or during the one (1) year period
immediately after the termination of ▇▇▇▇▇▇▇▇'▇ employment under Sections 12(a)
and 12(d) and shall not, during such period, make public statements in
derogation of the Company. For the purposes of this Section 11, competing
directly or indirectly with the Company shall mean engaging, directly or
indirectly, as principal owner, officer, partner, consultant, advisor, or
otherwise, either alone or in association with others, in the operation of any
entity engaged in a business similar to that of the Company's.
12. Termination. Notwithstanding any other provisions hereof to the contrary,
▇▇▇▇▇▇▇▇'▇ employment hereunder shall terminate under the following
circumstances:
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(a) Voluntary Termination by ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ shall have the right to
voluntarily terminate this Agreement and his employment hereunder at
any time during the Employment Term.
(b) Termination by ▇▇▇▇▇▇▇▇ for Cause. ▇▇▇▇▇▇▇▇ shall have the right to
terminate this Agreement and his employment hereunder for cause in
accordance with the procedures set forth in this Section 12(b).
Beginning six months after the Effective Date, if ▇▇▇▇▇▇▇▇ has a
grievance or dispute in connection with his employment hereunder,
▇▇▇▇▇▇▇▇ may deliver written notice of such grievance or dispute to
the Company's Board of Directors. Such written notice shall specify
in reasonable detail the facts and circumstances surrounding the
grievance or dispute and shall include documented evidence of such
grievance or dispute. After receipt of such notice, the Board of
Directors shall have 30 calendar days to remedy the grievance or
dispute described in the written notice to ▇▇▇▇▇▇▇▇'▇ satisfaction
(the "Remedy Period"). If the Company has not taken appropriate
steps to remedy ▇▇▇▇▇▇▇▇'▇ grievance or dispute within the Remedy
Period, then ▇▇▇▇▇▇▇▇ may terminate this Agreement and his
employment hereunder for "cause."
(c) Voluntary Termination by the Company. The Company shall have the
right to voluntarily terminate this Agreement and ▇▇▇▇▇▇▇▇'▇
employment hereunder at any time after the Employment Term.
Termination of ▇▇▇▇▇▇▇▇'▇ employment pursuant to this Section 12(c)
shall not be effective unless the Company shall have first given
▇▇▇▇▇▇▇▇ a written notice thereof at least ninety (90) days prior to
the annual anniversary of ▇▇▇▇▇▇▇▇'▇ employment under this
Agreement.
(d) Termination by the Company for Cause. The Company shall have the
right to terminate this Agreement and ▇▇▇▇▇▇▇▇'▇ employment
hereunder at any time for cause. As used in this Section 12(d),
"cause" shall mean refusal by ▇▇▇▇▇▇▇▇ to implement or adhere to
lawful policies or directives of the Company's Board of Directors,
breach of this Agreement, ▇▇▇▇▇▇▇▇'▇ conviction of a felony, other
conduct of a criminal nature that may have a material adverse impact
on the Company's reputation, breach of fiduciary duty or the
criminal misappropriation by ▇▇▇▇▇▇▇▇ of funds from or resources of
the Company. Cause shall not be deemed to exist unless the Company
shall have first given ▇▇▇▇▇▇▇▇ a written notice thereof specifying
in reasonable detail the facts and circumstances alleged to
constitute "cause" and ninety (90) days after such notice such
conduct has, or such circumstances have, as the case may be, not
entirely ceased and not been entirely remedied.
(e) Termination Upon Death or for Disability. This Agreement and
▇▇▇▇▇▇▇▇'▇ employment hereunder, shall automatically terminate upon
▇▇▇▇▇▇▇▇'▇ death or upon written notice to ▇▇▇▇▇▇▇▇ and
certification of ▇▇▇▇▇▇▇▇'▇ disability by a qualified physician or a
panel of qualified physicians if ▇▇▇▇▇▇▇▇ becomes disabled beyond a
period of twelve (12) months and is unable to perform the duties
contain in this Agreement.
(f) Effect of Termination.
(i) In the event that this Agreement and ▇▇▇▇▇▇▇▇'▇ employment is
voluntarily terminated by ▇▇▇▇▇▇▇▇ pursuant to Section 12(a),
or in the event the Company terminates this Agreement for
cause pursuant to Section 12(d), all obligations of the
Company and all duties, responsibilities and obligations of
▇▇▇▇▇▇▇▇ under this Agreement shall cease. Upon such
termination, the Company shall (A) pay ▇▇▇▇▇▇▇▇ all accrued
Base Compensation through the date of termination plus all
accrued vacation pay and bonuses, if any; (B) the Company
shall obtain the release of any assets that have been pledged
by ▇▇▇▇▇▇▇▇ as collateral (the "▇▇▇▇▇▇▇▇ Collateral") on the
Company's behalf and if the Company is not able to obtain such
release then the Company shall replace such assets (the
"Replacement Assets"); provided, however, in the event that
the ▇▇▇▇▇▇▇▇ Collateral is returned to ▇▇▇▇▇▇▇▇, then the
Replacement Assets shall be returned to the Company; and (C)
all Restricted Shares which are not issuable under Section
12(f)(i)(A) hereof and all Options granted to ▇▇▇▇▇▇▇▇
pursuant to Section 5 which have not vested as of the
termination date shall be cancelled.
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(ii) In the event that this Agreement and ▇▇▇▇▇▇▇▇'▇ employment is
terminated by ▇▇▇▇▇▇▇▇ for cause pursuant to Section 12(b),
all obligations of the Company and all duties,
responsibilities and obligations of ▇▇▇▇▇▇▇▇ under this
Agreement shall cease. Upon such termination, the Company
shall (A) pay ▇▇▇▇▇▇▇▇ (x) all accrued Base Compensation
through the date of termination plus all accrued vacation pay
and bonuses, if any, plus (y) as severance compensation, an
amount equal to six (6) months of ▇▇▇▇▇▇▇▇'▇ Base Compersation
and bonus (at the highest rate in effect during the Employment
Term of this Agreement); (B) provide ▇▇▇▇▇▇▇▇ continued health
insurance benefits at the Company's expense pursuant to COBRA
for six months after the termination date; (C) the Company
shall obtain the release of any ▇▇▇▇▇▇▇▇ Collateral and if the
Company is not able to obtain such release then the Company
shall provide ▇▇▇▇▇▇▇▇ with Replacement Assets; provided,
however, in the event that the ▇▇▇▇▇▇▇▇ Collateral is returned
to ▇▇▇▇▇▇▇▇, then the Replacement Assets shall be returned to
the Company; and (D) all Restricted Shares which are not
issuable under Section 12(f)(ii)(A)(x) hereof and all Options
granted to ▇▇▇▇▇▇▇▇ pursuant to Section 5 which have not
vested as of the termination date shall be cancelled.
(iii) In the event that this Agreement and ▇▇▇▇▇▇▇▇'▇ employment is
voluntarily terminated by the Company pursuant to Section
12(c), all obligations of the Company and all duties,
responsibilities and obligations of ▇▇▇▇▇▇▇▇ under this
Agreement shall cease. Upon such termination, the Company
shall (A) pay ▇▇▇▇▇▇▇▇ (x) all accrued Base Compensation
through the date of termination plus all accrued vacation pay
and bonuses, if any, plus (y) as severance compensation, an
amount equal to the greater of (I) eighteen (18) months of
▇▇▇▇▇▇▇▇'▇ Base Compensation and bonus (at the highest rate in
effect during the Employment Term of this Agreement), or (II)
▇▇▇▇▇▇▇▇'▇ then Base Compensation and bonus for the remaining
Employment Term of this Agreement; (B) provide ▇▇▇▇▇▇▇▇
continued health insurance benefits at the Company's expense
pursuant to COBRA until the greater of (I) eighteen (18)
months, (II) the remaining Employment Term of the Agreement,
or (III) such time as ▇▇▇▇▇▇▇▇ acquires health insurance
benefits provided by another employer; (C) the Company shall
obtain the release of any ▇▇▇▇▇▇▇▇ Collateral and if the
Company is not able to obtain such release then the Company
shall provide ▇▇▇▇▇▇▇▇ with Replacement Assets; provided,
however, in the event that the ▇▇▇▇▇▇▇▇ Collateral is returned
to ▇▇▇▇▇▇▇▇, then the Replacement Assets shall be returned to
the Company; and (D) all Restricted Shares and Options granted
to ▇▇▇▇▇▇▇▇ pursuant to Section 5 which have not vested as of
the termination date shall be immediately vested.
(iv) In the event this Agreement is terminated upon the death or
disability of ▇▇▇▇▇▇▇▇ pursuant to Section 12(e), (A) ▇▇▇▇▇▇▇▇
shall be entitled to all compensation pursuant to Section 5
for the period between the effective termination date to the
end of the Initial Term pursuant to Section 4; and (B) the
Company shall obtain the release of any ▇▇▇▇▇▇▇▇ Collateral
and if the Company is not able to obtain such release then the
Company shall provide ▇▇▇▇▇▇▇▇ with Replacement Assets;
provided, however, in the event that the ▇▇▇▇▇▇▇▇ Collateral
is returned to ▇▇▇▇▇▇▇▇, then the Replacement Assets shall be
returned to the Company. Payment will be made to ▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇'▇ appointed trustee. In the event of a merger,
consolidation, sale, or change of control, the Company's
rights hereunder shall be assigned to the surviving or
resulting company, which company shall then honor this
Agreement with ▇▇▇▇▇▇▇▇.
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(v) (A) In the event that the Board of Directors changes the
duties and title of ▇▇▇▇▇▇▇▇ such that these duties and title
are substantially different; or (B) if the Company is acquired
and the duties and title of ▇▇▇▇▇▇▇▇ change such that these
duties and title are substantially different, ▇▇▇▇▇▇▇▇ shall
have the right to terminate this Agreement and such
termination shall be treated as if the Company voluntarily
terminated the Agreement under Section 12(c).
13. Resignation as Officer. In the event that ▇▇▇▇▇▇▇▇'▇ employment with the
Company is terminated for any reason whatsoever, ▇▇▇▇▇▇▇▇ agrees to immediately
resign as an Officer of the Company and any related entities. Notwithstanding
the foregoing, in the event ▇▇▇▇▇▇▇▇'▇ employment with the Company is terminated
and such termination is not for "cause" (as defined in Section 12(d)), ▇▇▇▇▇▇▇▇
may remain a Director of the Company or Chairman of the Board at the sole
discretion of the Board of Directors. For the purposes of this Section 13, the
term the "Company" shall be deemed to include subsidiaries, parents, and
affiliates of the Company.
14. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of California without
giving effect to any applicable conflicts of law provisions.
15. Business Opportunities. During the Employment Term ▇▇▇▇▇▇▇▇ agrees to bring
to the attention of the Company's Board of Directors all written business
proposals that come to ▇▇▇▇▇▇▇▇'▇ attention and all business or investment
opportunities of whatever nature that are created or devised by ▇▇▇▇▇▇▇▇ and
that relate to areas in which the Company conducts business and might reasonably
be expected to be of interest to the Company or any of its subsidiaries.
16. Employee's Representations and Warranties. ▇▇▇▇▇▇▇▇ hereby represents and
warrants that he is not under any contractual obligation to any other company,
entity or individual that would prohibit or impede ▇▇▇▇▇▇▇▇ from performing his
duties and responsibilities under this Agreement and that he is free to enter
into and perform the duties and responsibilities required by this Agreement.
▇▇▇▇▇▇▇▇ hereby agrees to indemnify and hold the Company and its officers,
directors, employees, shareholders and agents harmless in connection with the
representations and warranties made by ▇▇▇▇▇▇▇▇ in this Section 16.
17. Indemnification.
(a) The Company agrees that if ▇▇▇▇▇▇▇▇ is made a party, or is
threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director,
officer or employee of the Company or is or was serving at the
request of the Company as a director, officer, member, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is ▇▇▇▇▇▇▇▇'▇
alleged action in an official capacity while serving as a director,
officer, member, employee or agent, ▇▇▇▇▇▇▇▇ shall be indemnified
and held harmless by the Company to the fullest extent permitted or
authorized by the Company's certificate of incorporation or bylaws
or, if greater, by the laws of the State of California, against all
cost, expense, liability and loss (including, without limitation,
attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or
suffered by ▇▇▇▇▇▇▇▇ in connection therewith, and such
indemnification shall continue as to ▇▇▇▇▇▇▇▇ even if he has ceased
to be a director, member, employee or agent of the Company or other
entity and shall inure to the benefit of ▇▇▇▇▇▇▇▇'▇ heirs, executors
and administrators. The Company shall advance to ▇▇▇▇▇▇▇▇ to the
extent permitted by law all reasonable costs and expenses incurred
by him in connection with a Proceeding within 20 days after receipt
by the Company of a written request, with appropriate documentation,
for such advance. Such request shall include an undertaking by
▇▇▇▇▇▇▇▇ to repay the amount of such advance if it shall ultimately
be determined that he is not entitled to be indemnified against such
costs and expenses.
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(b) Neither the failure of the Company (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any proceeding concerning
payment of amounts claimed by ▇▇▇▇▇▇▇▇ that indemnification of
▇▇▇▇▇▇▇▇ is proper because he has met the applicable standard of
conduct, nor a determination by the Company (including its Board of
Directors, independent legal counsel or stockholders) that ▇▇▇▇▇▇▇▇
has not met such applicable standard of conduct, shall create a
presumption that ▇▇▇▇▇▇▇▇ has not met the applicable standard of
conduct.
(c) The Company agrees to continue and maintain a directors' and
officers' liability insurance policy covering ▇▇▇▇▇▇▇▇ to the extent
the Company provides such coverage for its other executive officers.
(d) Promptly after receipt by ▇▇▇▇▇▇▇▇ of notice of any claim or the
commencement of any action or proceeding with respect to which
▇▇▇▇▇▇▇▇ is entitled to indemnity hereunder, ▇▇▇▇▇▇▇▇ shall notify
the Company in writing of such claim or the commencement of such
action or proceeding, and the Company shall (i) assume the defense
of such action or proceeding, (ii) employ counsel reasonably
satisfactory to ▇▇▇▇▇▇▇▇, and (iii) pay the reasonable fees and
expenses of such counsel. Notwithstanding the preceding sentence,
▇▇▇▇▇▇▇▇ shall be entitled to employ counsel separate from counsel
for the Company and from any other party in such action if ▇▇▇▇▇▇▇▇
reasonably determines that a conflict of interest exists which makes
representation by counsel chosen by the Company not advisable. In
such event, the reasonable fees and disbursements of such separate
counsel for ▇▇▇▇▇▇▇▇ shall be paid by the Company to the extent
permitted by law.
(e) After the termination of this Agreement and upon the request of
▇▇▇▇▇▇▇▇, the Company agrees to reimburse ▇▇▇▇▇▇▇▇ for all
reasonable travel, legal and other out-of-pocket expenses related to
assisting the Company to prepare for or defend against any action,
suit, proceeding or claim brought or threatened to be brought
against the Company or to prepare for or institute any action, suit,
proceeding or claim to be brought or threatened to be brought
against a third party arising out of or based upon the transactions
contemplated herein and in providing evidence, producing documents
or otherwise participating in any such action, suit, proceeding or
claim. In the event ▇▇▇▇▇▇▇▇ is required to appear after termination
of this Agreement at a judicial or regulatory hearing in connection
with ▇▇▇▇▇▇▇▇'▇ employment hereunder, or ▇▇▇▇▇▇▇▇'▇ role in
connection therewith, the Company agrees to pay ▇▇▇▇▇▇▇▇ a sum, to
be mutually agreed upon by ▇▇▇▇▇▇▇▇ and the Company, per diem for
each day of his appearance and each day of preparation therefore.
18. Notices. All demands, notices, and other communications to be given
hereunder, if any, shall be in writing and shall be sufficient for all purposes
if personally delivered, sent by facsimile or sent by United States mail to the
address below or such other address or addresses as such party may hereafter
designate in writing to the other party as herein provided.
Company: ▇▇▇▇▇▇▇▇:
IPEX, Inc. ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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19. Entire Agreement. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement,
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties. This Agreement may be modified or amended, if
the amendment is made in writing and is signed by both parties. This Agreement
is for the unique personal services of ▇▇▇▇▇▇▇▇ and is not assignable or
delegable, in whole or in part, by ▇▇▇▇▇▇▇▇. This Agreement may be assigned or
delegated, in whole or in part, by the Company and, in such case, shall be
assumed by and become binding upon the person, firm, company, corporation or
business organization or entity to which this Agreement is assigned. The
headings contained in this Agreement are for reference only and shall not in any
way affect the meaning or interpretation of this Agreement. If any provision of
this Agreement shall be held to be invalid or unenforceable for any reason, the
remaining provisions shall continue to be valid and enforceable. The failure of
either party to enforce any provision of this Agreement shall not be construed
as a waiver or limitation of that party's right to subsequently enforce and
compel strict compliance with every provision of this Agreement. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument
and, in pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
IPEX, INC.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- -------------------------------
Name: ▇▇▇▇▇▇ "▇▇▇▇" ▇▇▇▇, III ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
9