EMPLOYMENT AGREEMENT WITH DAVID M. ZINN, CPA
EXHIBIT
10.4.13
EMPLOYMENT
AGREEMENT WITH
▇▇▇▇▇
▇. ▇▇▇▇, CPA
This
Employment Agreement (“Agreement”) is entered into as of the 15th day of May,
2006 (the “Effective Date”), by and between ▇▇▇▇▇
▇. ▇▇▇▇, CPA
(the
“Executive”)
and
Inyx,
Inc.
(the
“Company”
or
the
“Employer”),
or
together the Parties.
RECITALS:
Whereas,
the Company desires to employ the Executive to provide personal services
to the
Company, and also wishes to provide the Executive with certain compensation
and
benefits in return for such services; and
Whereas,
the Executive wishes to be employed by the Company and provide personal services
to the Company in return for certain compensation and benefits.
Now,
therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as
follows:
1. EMPLOYMENT
1.1. GENERAL.
The Company hereby employs the Executive in the senior position of Vice
President, Finance of Inyx, Inc., whose responsibilities include assisting
in
directing the financial management and internal controls of the Company,
including the Company’s financial reporting requirements to the U.S. Securities
and Exchange Commission (“SEC”), management of the Company’s commercial and
asset-based banking relationships, strategic financial planning and financial
systems development as well as being involved in other operations of the
Company
as directed by management and, whereby, the Company may assign other reasonable
management duties to the Executive from time to time. The Executive agrees
to
perform and discharge such duties well and faithfully, and to be subject
to the
supervision and direction of ▇▇▇▇ ▇▇▇▇▇▇▇, Chairman and Chief Executive Officer
of Inyx, Inc., and ▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President of Inyx, Inc.,
or
their designee or successor. The Executive acknowledges that this appointment
involves the affairs of the Company and its subsidiaries not only Puerto
Rico
and the continental United States, but also in Canada and Europe. Accordingly,
while he will be based in Miami, Florida, the Executive shall be required
to
regularly travel to and conduct duties across the United States, in Canada
and
other countries on behalf of the Company and its subsidiaries, affiliates
and
strategic alliances.
1.2. TIME
DEVOTED TO POSITION.
The Executive,
during the Employment Term, shall devote his full business time, attention
and
skills to the business and affairs of the Employer.
1.3. CERTIFICATIONS.
Whenever the Executive is required by law, rule or regulation or requested
by
any governmental authority or by the Company or the Company’s auditors to
provide certifications with respect to financial statements or filings with
the
SEC or any other governmental authority, the Executive shall sign such
certifications as may be reasonably requested by such officers, with such
exceptions as the Executive deems necessary to make such certifications accurate
and not misleading.
2. COMPENSATION
AND BENEFITS
2.1. SALARY.
At all times the Executive is employed hereunder, Employer shall pay to
Executive, and Executive shall accept, as full compensation for any and all
services rendered and to be rendered by him during such period to Employer
in
all capacities, including, but not limited to, all services that may be rendered
by him to any of Employer’s existing subsidiaries, entities and organizations
hereafter formed, organized or acquired by Employer, directly or indirectly
(each, a “Subsidiary” and collectively, the “Subsidiaries”), the following:
(i) a base salary at the annual rate of $175,000, which will be increased
to the annual rate of $200,000 on May 15, 2007; (ii) with the employment
year
commencing May 15, 2008, the $200,000 base salary will be raised to reflect
the
percentage increase in the U.S. Cost Of Living Index at that time;
(iii) benefits set forth in Sections 2.3 hereof; and (iv) any
additional compensation that the Employer, at its sole discretion, may award
the
Executive for exemplary performance. The Base Salary shall be payable in
accordance with the regular payroll practices of Employer applicable to senior
executives, less such deductions as shall be required to be withheld by
applicable law and regulations or otherwise.
2.2. STOCK
OPTIONS. The Executive shall be entitled to participate in stock option and
similar equity plans of Employer. In connection herewith, the Executive will
be
granted a total of 300,000 options to purchase shares of common stock of
the
Company with an exercise price equal to the closing price of the Company’s
common stock on May 15, 2006, with the options to be vested as follows: 150,000
options on May 14, 2007, 75,000 options on May 14, 2008 and 75,000 options
on
May 14, 2009, with all options issued on terms and conditions set forth in
the
Stock Option Plan of the Company and a Stock Option Agreement with the Executive
containing these terms. The Executive shall be entitled to any additional
annual
stock option grants provided at the discretion of the Board.
2.3. EXECUTIVE
BENEFITS
2.3.1. EXPENSES.
Employer shall promptly reimburse the Executive for properly documented expenses
that he may reasonably incur in connection with the performance of his duties
including but not limited to, expenses for such items as business entertainment,
business travel, hotel and meals that are in accordance with Company policy.
The
Company shall pay the Executive a monthly car allowance of $600. The Company
shall also provide the Executive with a Blackberry cell phone and lap-top
computer for Company-related use. The Company shall also reimburse the Executive
for expenses such as Certified Public Accountant licensing and association
membership, continuing education requirements and educational seminars necessary
to meet the requirements of his position with Employer, provided such expenses
are pre-approved by the Company and shall not exceed $5,000 in any twelve
(12)
month period. Executive shall be entitled to fly business class when traveling
on the Company’s business on air flights of four (4) hours or longer, one
way.
2.3.2. EMPLOYER
PLANS. Executive shall be entitled to participate in such employee benefit
plans
and programs as Employer may from time to time generally offer or provide
to
executive officers of Employer or its Subsidiaries, including, but not limited
to, participation in health and accident, medical and dental plans including
any
such benefit plans offered by the Subsidiaries where applicable, and profit
sharing and retirement plans.
2.3.3. VACATION.
The Executive shall be entitled to one week paid vacation that can be taken
during the period of August 20 - 31, 2006, and two weeks paid vacation that
can
be taken between November 15, 2006 and May14, 2007 as long as the vacation
time
desired by the Executive is approved by Messrs. Kachkar and Green; starting
in
the employment year commencing May 15, 2007, the Executive shall be entitled
to
four weeks paid vacation during each employment year.
3.
EMPLOYMENT TERM; TERMINATION
3.1. EMPLOYMENT
TERM. The Executive’s employment hereunder shall commence on May 15, 2006 and,
except as otherwise provided in Section 3.2 hereof, shall continue until
May 14, 2009 (the “Initial Term”). Thereafter, this Agreement shall
automatically be renewed for successive one-year periods commencing on the
15th
day of May 2009 and of each subsequent year, unless either (i) Employer and
Executive agree to a new Em ployment Agreement, or (ii) Executive or Employer
shall have provided a Notice of Termination (as defined in Section 3.4.2
hereof) in respect of its or his election not to renew the Employment Term
(in
accordance with Sections 3.3.2 and 3.3.3 hereof). Upon non-renewal of the
Employment Term pursuant to this Section 3.1 or termination pursuant to
Sections 3.2.1 through 3.2.5 hereof, inclusive, Executive shall be released
from any duties hereunder (except as set forth in Section 4 hereof) and the
obligations of Employer to Executive shall be as set forth in Section 3.3
hereof only.
3.2. EVENTS
OF TERMINATION. The Employment Term shall terminate upon the occurrence of
any
one or more of the following events:
3.2.1. DEATH.
In the event of Executive’s death, the Employment Term shall terminate on the
date of his death.
3.2.2. WITHOUT
CAUSE BY EXECUTIVE. Executive may terminate the Employment Term at any time
during such Term for any reason whatsoever by giving a Notice of Termination
to
Employer. The Date of Termination pursuant to this Section 3.2.2 shall be
effective on the date given in the Notice of Termination, unless an extended
period is agreed to by the parties.
3.2.3. DISABILITY.
In the event of Executive’s Disability (as hereinafter defined), Employer may,
at its option, terminate the Employment Term by giving a Notice of Termination
to Executive. The Notice of Termination shall specify the Date of Termination,
which date shall not be earlier than thirty (30) days after the Notice of
Termination is given. For purposes of this Agreement, “Disability” means the
inability of Executive for ninety (90) days in any twelve (12) month period
to
substantially perform his duties hereunder as a result of a physical or mental
illness, all as determined in good faith by the Board.
3.2.4. CAUSE.
Employer may, at its option, terminate the Employment Term for “Cause” based on
objective factors determined in good faith by the Board of Directors as set
forth in a Notice of Termination to Executive specifying the reasons for
termination and the failure of the Executive to cure the same within thirty
(30)
days after Employer shall have given the Notice of Termination; PROVIDED,
HOWEVER, that in the event the Board in good faith determines that the
underlying reasons giving rise to such determination cannot be cured, then
the
thirty (30) day period shall not apply and the Employment Term shall terminate
on the date the Notice of Termination is given. For purposes of this Agreement,
“Cause” shall mean (i) Executive’s conviction of, guilty or no contest plea
to a felony (ii) an act or omission by Executive in connection with his
employment that constitutes fraud, criminal misconduct, breach of fiduciary
duty, dishonesty, gross negligence, malfeasance, willful misconduct or other
conduct that is materially harmful or detrimental to Employer; (iii) a
material breach by Executive of this Agreement and the failure of the Executive
to cure the same within thirty (30) days; (iv) continuing failure to
perform such proper duties as are assigned to Executive in accordance with
this
Agreement and with law and good business practice, other than a failure
resulting from a Disability; or (v) Executive is found to have been
involved in regulatory violations, criminal misconduct, dishonesty or other
willful misconduct while previously employed by other employers.
3.2.5. EMPLOYER
RIGHT TO TERMINATE. Employer may terminate this agreement at the end of its
Initial Term, provided that Employer shall pay Executive in accordance with
payment described in Section 3.3.2 hereof. In addition, Employer may terminate
Executive for any reason, with or without cause, prior to end of the Initial
Term, by paying Executive the payment described in Section 3.3.2 hereof. In
consideration of such payment, and assuming all other payments required hereby
have been paid, Executive agrees to provide Employer a general release of
any
claims relating to such termination or otherwise.
3.3. CERTAIN
OBLIGATIONS OF EMPLOYER FOLLOWING TERMINATION OF THE EMPLOYMENT TERM. Following
termination of the Employment Term under the circumstances described below,
Employer shall pay to Executive or his estate, as the case may be, the following
compensation and provide the following benefits in full satisfaction and
final
settlement of any and all claims and demands that Executive now has or hereafter
may have hereunder against Employer. In connection with Executive’s receipt of
any or all monies and benefits to be received pursuant to this Section 3.3,
Executive shall not have a duty to seek subsequent employment during the
period
in which he is receiving severance payments and the Severance Amount (as
defined
in Section 3.3.2 hereof) shall not be reduced solely as a result of
Executive’s subsequent employment by an entity other than Employer.
3.3.1. FOR
CAUSE. In the event that the Employment Term is terminated by Employer for
Cause, Employer shall pay to Executive, in a single lump-sum, an amount equal
to
any unpaid but earned Base Salary through the Date of Termination. Any payment
made in accordance with this Section 3.3.1 shall be made at a convenient
date no later than fourteen (14) days after the termination date.
3.3.2. WITHOUT
CAUSE BY EMPLOYER. In the event that the Employment Term is terminated by
Employer pursuant to Section 3.2.5 hereof, it shall pay to Executive, subject
to
Executive’s continued compliance with the terms of Section 4 hereof, any unpaid
but earned Base Salary through the effective Date of Termination PLUS, an
amount
equal to six (6) months of Base Salary in effect at such applicable time
(the
“Severance Amount”). Additionally, any Bonuses that are due to the Executive
shall be paid by Employer to Executive. HOWEVER, if termination of Executive
is
due to or after a Change of Control (as defined in Section 3.4.3 hereof)
of the
Employer, the Severance Amount is increased to twenty-four (24) months Base
Salary in effect at such applicable time, and any non-vested stock options
granted to Executive shall become fully vested at time of such termination
date.
Any payments made in accordance with this Section 3.3.2 shall be made in
a
lump-sum payment at a convenient date no later than fourteen (14) days after
the
effective termination date. In consideration of such payment, and assuming
all
other payments required hereby have been paid, Executive agrees to provide
Employer a general release of any claims relating to such termination or
otherwise.
3.3.3. WITHOUT
CAUSE BY EXECUTIVE. In the event that the Employment Term is terminated by
Executive pursuant to Section 3.2.2 hereof, Employer shall pay to Executive
Base Salary through the effective Date of Termination. In addition, Employer
shall pay Executive, in a single lump-sum, an amount equal to any unpaid
but
earned Bonuses through the effective Date of Termination.
3.3.4. DEATH
OR
DISABILITY. In
the event that the Employment Term is terminated by reason of Executive’s
Disability pursuant to Section 3.2.3 or death pursuant to
Section 3.2.1 hereof, Employer shall pay to Executive or his estate, in a
single lump sum, an amount equal to any unpaid but earned Bonuses and Base
Salary through the effective Date of Termination.
3.3.5. POST-EMPLOYMENT
TERM BENEFITS.
In the event of termination for any reason, Employer shall reimburse Executive
for any unpaid expenses pursuant to Section 2.5.1 hereof. If Employment
Term is terminated, pursuant to Sections 3.2.3 or 3.2.5 hereof, Employer
shall pay, on behalf of Executive, for a period equal to six (6) months from
the
effective Date of Termination (the “Benefits Period”), subject to Executive’s
continued compliance with the terms of Section 4 hereof, all medical,
dental, health and accident, and disability plans and programs other than
stock
options in which Executive was entitled to participate immediately prior
to the
effective date of termination, PROVIDED that Executive’s continued participation
is legally possible under the general terms and provisions of such plans
and
programs. In the event that Executive’s participation in any such plan or
program is barred, Employer, at its sole cost and expense shall use its
commercially reasonable efforts to provide Executive with benefits substantially
similar to those that Executive was entitled to receive under such plans
and
programs for the remainder of the Benefits Period. If Executive is terminated
for CAUSE pursuant to Section 3.2.4 hereof, Employer shall pay for no
additional benefits after effective date of termination.
3.3.6. STOCK
OPTIONS. Executive shall be entitled to receive the Employer stock options
set
forth in Section 2.2 hereof and detailed in the Executive’s Stock Option
Agreement.
3.4. DEFINITIONS.
3.4.1. “NOTICE
OF TERMINATION” DEFINED. “Notice of Termination” means a written notice that
indicates the specific termination provision relied upon by Employer or
Executive and, except in the case of termination pursuant to Sections 3.2.1
or 3.2.2 hereof, that sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employment
Term
under the termination provision so indicated.
3.4.2.
“DATE OF TERMINATION” DEFINED. “Date of Termination” means such date as the
Employment Term is expired if not renewed or terminated in accordance with
Sections 3.1 or 3.2 hereof.
3.4.3. “CHANGE
OF CONTROL” DEFINED. A “Change of Control” of Employer means (i) the approval by
the stockholders of the Company of the sale, lease, exchange or other transfer
(other than pursuant to internal reorganization) by the Company of all or
substantially all of its respective assets to a single purchaser or to a
group
of associated purchasers; (ii) the first purchase of shares of equity securities
of the Company pursuant to a tender offer or exchange offer (other than an
offer
by the Company) for at least fifty (50%) percent of the equity securities
of the
Company; (iii) the approval by the stockholders of the Company of an agreement
for a merger or consolidation in which the Company shall not survive as an
independent, publicly-owned corporation; (iv) the acquisition (including
by
means of a merger) by a single purchaser or a group of associated purchasers
of
securities of the Company from the Company or any third party representing
fifty
(50%) percent or more of the combined voting power of the Company’s then
outstanding equity securities in one or a related series of transactions
(other
than pursuant to an internal reorganization or transfers of the Executive’s
interests).
4. CONFIDENTIALITY
AND NONSOLICITATION; PROPERTY RIGHTS
4.1.
“CONFIDENTIAL INFORMATION” DEFINED. “Confidential Information” means any and all
information (oral or written) relating to Employer or any Subsidiary or any
entity controlling, controlled by, or under common control with Employer
or any
Subsidiary or any of their respective activities, including, information
not
previously disclosed to the public or to the trade by the Company’s management,
or otherwise in the public domain, with respect to the Company’s products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information, business
plans, prospects or opportunities, but shall exclude any information which
(i) is or becomes available to the public or is generally known in the
industry or industries in which the Company operates other than as a result
of
disclosure by the Executive in violation of his agreements under this Section
or
(ii) the Executive is required to disclose under any applicable laws,
regulations or directives of any government agency, tribunal or authority
having
jurisdiction in the matter or under subpoena or other process of law. The
Executive confirms that all restrictions in this Section are reasonable and
valid and waives all defenses to the strict enforcement thereof.
4.2. NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION. The Executive shall not at any time (other than
as
may be required or appropriate in connection with the performance by him
of his
duties hereunder), directly or indirectly, use, communicate, disclose or
disseminate any Confidential Information in any manner whatsoever (except
as may
be required under legal process by subpoena or other court order).
4.3. CERTAIN
ACTIVITIES. The Executive shall not, while employed by the Company and for
a
period of one (1) year following the Date of Termination, directly or
indirectly, hire, offer to hire, entice away or in any other manner persuade
or
attempt to persuade any officer, employee, agent, lessor, lessee, licensor,
licensee or supplier of Employer or any of its Subsidiaries to discontinue
or
alter his or its relationship with Employer or any of its
Subsidiaries.
4.4. NON-COMPETITION.
The Executive shall not, while employed by the Company and for a period of
one
(1) year following the Date of Termination, engage or participate, directly
or
indirectly (whether as an officer, director, employee, partner, consultant,
shareholder, lender or otherwise), in any business that manufactures, markets
or
sells products that directly competes with any product of the Employer that
is
significant to the Employer’s business based on sales and/or profitability of
any such product as of the Date of Termination. Nothing herein shall prohibit
Executive from being a passive owner of less than 1% of any publicly-traded
class of capital stock of any entity directly engaged in a competing
business.
4.5. PROPERTY
RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to information, inventions
and
discoveries or any interest in any copyright and/or other property right
developed, made or conceived of by Executive, either alone or with others,
at
any time during his employment by Employer and whether or not within working
hours, arising out of such employment or pertinent to any field of business
or
research in which, during such employment, Employer is engaged or (if such
is
known to or ascertainable by Executive) is considering engaging, Executive
hereby agrees:
(a) that
all such information, inventions and discoveries or any interest in any
copyright and/or other property right, whether or not patented or patentable,
shall be and remain the exclusive property of the Employer;
(b) to
disclose promptly to an authorized representative of Employer all such
information, inventions and discoveries or any copyright and/or other property
right and all information in Executive’s possession as to possible applications
and uses thereof;
(c) not
to file any patent application relating to any such invention or discovery
except with the prior written consent of an authorized officer of Employer
(other than Executive);
(d) that
Executive hereby waives and releases any and all rights Executive may have
in
and to such information, inventions and discoveries, and hereby assigns to
Executive and/or its nominees all of Executive’s right, title and interest in
them, and all Executive’s right, title and interest in any patent, patent
application, copyright or other property right based thereon. Executive hereby
irrevocably designates and appoints Employer and each of its duly authorized
officers and agents as his agent and attorney-in-fact to act for him and
on his
behalf and in his stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement
of
any such patent, patent application, copyright or other property right with
the
same force and effect as if executed and delivered by Executive;
and
(e) at
the request of Employer, and without expense to Executive, to execute such
documents and perform such other acts as Employer deems necessary or
appropriate, for Employer to obtain patents on such inventions in a jurisdiction
or jurisdictions designated by Employer, and to assign to Employer or its
designee such inventions and any and all patent applications and patents
relating thereto.
4.6. INJUNCTIVE
RELIEF. The parties hereby acknowledge and agree that (a) Employer will be
irreparably injured in the event of a breach by Executive of any of his
obligations under this Section 4; (b) monetary damages will not be an
adequate remedy for any such breach; (c) Employer will be entitled to
injunctive relief, in addition to any other remedy which it may have, in
the
event of any such breach; and (d) the existence of any claims that
Executive may have against Employer, whether under this Agreement or otherwise,
will not be a defense to the enforcement by Employer of any of its rights
under
this Section 4.
4.7. NON-EXCLUSIVITY
AND SURVIVAL. The covenants of the Executive contained in this Section 4
are in addition to, and not in lieu of, any obligations that Executive may
have
with respect to the subject matter hereof, whether by contract, as a matter
of
law or otherwise, and such covenants and their enforceability shall survive
any
termination of the Employment Term by either party and any investigation
made
with respect to the breach thereof by Employer at any time.
5. MISCELLANEOUS
PROVISIONS.
5.1. SEVERABILITY.
If, in any jurisdiction, any term or provision hereof is determined to be
invalid or unenforceable, (a) the remaining terms and provisions hereof
shall be unimpaired; (b) any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction; and (c) the invalid or unenforceable term or provision
shall, for purposes of such jurisdiction, be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing
the
intention of the invalid or unenforceable term or provision.
5.2. EXECUTION
IN COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and
by the different parties hereto in separate counterparts, each of which shall
be
deemed to be an original but all of which taken together shall constitute
one
and the same agreement (and all signatures need not appear on any one
counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered
to each
of the other parties hereto.
5.3. NOTICES.
All notices, requests, demands and other communications hereunder shall be
in
writing and shall be deemed duly given upon receipt when delivered by hand,
overnight delivery or telecopy (with confirmed delivery), or three (3) business
days after posting, when delivered by registered or certified mail or private
courier service, postage prepaid, return receipt requested, as
follows:
If
to
Employer, to:
Inyx,
Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chairman and Chief Executive Officer
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
If
to
Executive, to:
▇▇▇▇▇
▇.
▇▇▇▇, CPA
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Or
to
such other address(es) as a party hereto shall have designated by notice
in
writing to the other parties hereto.
5.4. AMENDMENT.
No provision of this Agreement may be modified, amended, waived, or discharged
in any manner except by a written instrument executed by both the Employer
and
the Executive.
5.5. ENTIRE
AGREEMENT. This Agreement and, with respect to Section 3.3.6 hereof,
Executive’s Stock Option Agreements and the governing stock option plans,
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersede all prior agreements and understandings
of
the parties hereto, oral or written.
5.6. APPLICABLE
LAW. This Agreement shall be governed by and construed in accordance with
the
laws of the State of New York applicable to contracts made and to be wholly
performed therein, without regard to principles of conflicts of
laws.
5.7. HEADINGS.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
5.8. BINDING
EFFECT; SUCCESSORS AND ASSIGNS. The Executive may not delegate any of his
duties
or assign his rights hereunder. This Agreement shall inure to the benefit
of,
and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Employer shall require
any
successor (whether direct or indirect and whether by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Employer, by an agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform if no such succession had taken place.
5.9. WAIVER,
ETC. The failure of either of the parties hereto to, at any time, enforce
any of
the provisions of this Agreement shall not be deemed or construed to be a
waiver
of any such provision, nor to in any way affect the validity of this Agreement
or any provision hereof or the right of either of the parties hereto thereafter
to enforce each and every provision of this Agreement. No waiver of any breach
of any of the provisions of this Agreement shall be effective unless set
forth
in a written instrument executed by the party against whom or which enforcement
of such waiver is sought, and no waiver of any such breach shall be construed
or
deemed to be a waiver of any other or subsequent breach.
5.10. CAPACITY,
ETC. Executive and Employer hereby represent and warrant to the other that,
as
the case may be: (a) he or it has full power, authority and capacity to
execute and deliver this Agreement, and to perform his or its obligations
hereunder; (b) such execution, delivery and performance shall not (and with
the giving of notice or lapse of time or both would not) result in the breach
of
any agreements or other obligations to which he or it is a party or he or
it is
otherwise bound; and (c) this Agreement is his or its valid and binding
obligation in accordance with its terms.
5.11. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively in arbitration conducted in New York, New York
in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any court having
jurisdiction. Punitive damages shall not be awarded. In any arbitration
proceeding, the party determined to be the prevailing party shall be entitled
to
receive, in addition to any other award, its attorneys’ fees and expenses of the
proceeding.
IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the parties
hereto as of the date first above written.
INYX,
INC.
By:
/s/
▇▇▇ ▇.
▇▇▇▇▇
▇▇▇
▇.
▇▇▇▇▇
Executive
Vice President
▇▇▇▇▇
▇.
▇▇▇▇, CPA
/s/
▇▇▇▇▇ ▇. ▇▇▇▇,
CPA