[EXHIBIT 10.6]
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made this 16th day of FEBRUARY 2005 by and between Med Gen Inc, a
Nevada corporation (the "Company"), and Paul S. Mitchell (the "Executive").
The Company presently employs the Executive as President and Chief Operating
Officer.
The Board of Directors of the Company (the "Board) recognizes that the
executive's contribution to the growth and success of the Company during the
past nine (9) years as the President and Chief Operating Officer of the
Company has been substantial. The Board desires to provide for the
continued employment of the Executive and to make certain changes in the
Executive's employment arrangements with the Company which the Board has
determined will reinforce and encourage the continued attention and
dedication to the Company of the Executive as a member of the Company's
management, as is deemed to be in the best interest of the Company and its
shareholders. The Executive is willing to commit himself to continue to
serve the Company, on the terms and conditions herein provided. In order
to effect the foregoing, the Company and the Executive wish to enter into an
employment agreement on the terms and conditions set forth below.
Accordingly, in consideration of the promises and the respective covenants
and agreements of the parties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Employment.
-----------
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to continue to serve the Company, on the terms and conditions set
forth herein.
2. Term.
-----
The Employment of the Executive by the Company as provided in paragraph I
will commence on the date hereof and end after five (5) years on February
16, 2011 unless extended as provided in Section 8 hereof, or, unless sooner
terminated as hereinafter provided. In the event that the Company is sold,
or there is a change in ownership removing the executive from his position as
Chairman and Chief Executive Officer, the remainder of the executives salary
shall become part of the purchase price, and the executive shall receive
full payment in cash (USD) for the remainder of the term of the contract.
Should the contract, for any reason, be terminated by the Board of
Directors the remainder of the contract will, within 10 days of termination,
be paid to the executive in cash (USD).
3. Position and Duties.
--------------------
The Executive shall serve as Chairman and Chief Executive Officer of the
Company and shall have such responsibilities and authority as may from time
to time be assigned to the Executive by the Board, during the term of this
Agreement the Executive shall be a member of the Board of Directors. The
Executive shall devote substantially all his working time and efforts to
the business and affairs of the Company.
4. Place of Performance.
---------------------
In connection with the Executive's employment by the Company, the Executive
shall be based in Palm Beach or Broward Counties in Florida, except for
required travel on the Company's business to an extent substantially
consistent with present business travel obligations.
5. Compensation and Related Matters.
---------------------------------
(a) Salary. During the period of the Executive's employment hereunder the
Company shall pay to the Executive a salary at a rate of not less than
$150,000 per annum in equal installments as nearly as practicable on a
bi-weekly basis consistent with Company policy, less any salary paid to the
Executive by affiliates of the Company for services rendered to such
affiliates. This salary may be increased from time to time in
accordance with normal business practices of the Company and, if so
increased, shall not thereafter during the term of this Agreement be
decreased. Compensation of the Executive by salary payments shall not
be deemed exclusive and shall not prevent the Executive from participating
in any other compensation or benefit plan of the Company. The salary
payments (including any increased salary payments) hereunder, and no
other compensation, benefit or payment hereunder shall in any way limit
or reduce the obligation of the Company to pay the Executive's salary
hereunder. Should, for any reason, the company not pay the executives
salary, the executive can elect to accrue the unpaid salary, or direct
the company to issue the compensation in the form of stock or stock options.
Should the election be to take stock, the company shall be obligated to
incur all expenses related to that transaction, which shall include transfer
fees, attorney fees and any state or federal tax liabilities.
The adjustment of non-paid income and/or election of method that the
executive chooses to be paid may be, at the executives sole decision be
determined at anytime during the term of the contract. However, the price
of the stock and the number of shares to be issued shall be determined by
the Bid price at the time the election is made.
(b) Expenses. During the term of the Executive's employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in performing services
hereunder, including all expenses of travel and living expenses while away
from home on business or at the request of and in the service of the
Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
2
(c) Other Benefits. The Company shall maintain in full force and effect, and
the Executive shall be entitled to continue to participate in all of its
employee benefit plans or arrangements providing the Executive with at least
equivalent benefits thereunder. The Company shall not make any changes in such
plans and arrangements which would adversely affect the executive's rights
or benefits thereunder, unless such change occurs pursuant to a program
applicable to all officers of the Company and does not result in a
proportionately greater reduction in the rights of or benefits to the
Executive as compared with any other officers of the Company. The Executive
shall be entitled to participate in or receive benefits under any employee
benefit plan or arrangement made available by the Company in the future to
its officers and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such
plans and arrangements. Nothing paid to the executive under any plan or
arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary payable to the executive pursuant to
paragraph (a) of this Section. Any payments or benefits payable to the
executive hereunder in respect of any calendar year during which the
executive is employed by the Company for less than the entire such year
shall, unless otherwise provided in the applicable plan or arrangement, be
prorated in accordance with the number of days in such calendar year during
which he is so employed.
(d) Stock Options. The Company shall authorize the grant of stock options,
under a Stock Option Plan that has been adopted by the Company, to the
Executive.
(e) Bonus. The Company shall pay Executive an annual bonus in an amount
equal to five percent (5%) of the pre-tax income or net cash-flow, whichever
is greater, of the Company and its subsidiaries on a consolidated basis
(determined in accordance with generally accepted accounting principals,
after all deductions, including depreciation, but not including any federal,
state or local income tax obligations. The Company shall pay such bonus to
Executive within ten (10) days after the date the Company receives its
audited financial statements from its accountants for the fiscal year with
respect to which the bonus is to be paid, or if audited financial statements
are not prepared for such fiscal year, within ninety (90) days of the
expiration of such calendar year. Such Bonus amount shall not be less than
twenty- percent (20%) of the Executive's annual compensation. The executive,
at his sole discretion, can wave, and lower the bonus amount based upon
the company's financial position. Once waved or lowered, the executive
would have no rights to accrue the amounts waved or lowered for future
payment.
3
<PAGE
Payments otherwise due the Executive pursuant to the Company's bonus plan
will not be made if the Executive's employment is terminated pursuant to
Section 6(c) hereof prior to the Company's fiscal year-end. If the
Executive's employment is terminated for any reason other than pursuant to
Section 6(c) hereof, the Executive shall receive his bonus prorated in
accordance with the number of days in the Company's fiscal year during
which he is employed. If the Executive's employment is terminated, for any
reason other than cause, as described in 6(c), on or after the Company's
fiscal year-end, but before actual payment of the Company's year-end bonus
in September, the Executive shall be entitled to his bonus payment Absent
written consent, after a Change in Control of the Company (as defined
below), no action or inaction by the Executive within ninety (90) days
following the occurrence of the events described in 6(d)(A)(i),
6(d)(A)(ii) or 6(d)(A)(iii) hereof shall be deemed consent to such events;
(b ) a failure by the Company to comply with any material provision of
this Agreement which has not been cured within ten (10) days after for the
previous year.
6. Termination.
------------
The Executive's employment hereunder may be terminated without any breach
of this Agreement only under the following circumstances:
(a) Death. Upon the executives death this employment agreement will be
terminated. The remainder of the contract shall be paid to the executives
heir or beneficiary as provided for in this contract Reference (7b).
(b), Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent from his
duties hereunder on a full-time basis for the entire period of six (6)
consecutive months, the Company may terminate the Executive's employment
hereunder.
(c) Cause. The Company shall have the right to terminate the employment of
Executive under this Agreement, as well as any and all compensation to
which Executive would otherwise be entitled hereunder (except for
compensation to which Executive is entitled through the date of such
termination and any benefits referred to in Section 5 hereof in which
Executive has a vested right under the terms and conditions pursuant to
which such benefits were granted), only in the manner set forth in this
Section 6 if, and only if, Executive shall have committed any of the
following acts (any such act being hereinafter referred to as an " Act
of Cause"):
4
(i) Executive, other than as a result of circumstances described in
Sections 6(a), 6(b) or 6(d) hereof, shall have repeatedly failed to
perform his material duties hereunder (other than by reason of disability)
or shall have willfully breached in any material respect his other
obligations as set forth herein; provided. however. the Company shall
first have notified Executive in writing, and in reasonable detail, as to
the manner in which Executive has so failed to perform his duties or
breached his other obligations hereunder and Executive, within thirty (30)
days thereafter, shall have failed to cure such failure or breach within
60 days.
(ii) Executive shall have committed gross negligence in the performance of
his duties or obligations hereunder which shall have resulted in a material
loss to the Company;
(iii) Executive shall have been convicted of any felony or have committed
any material act of proven dishonesty against the Company;
(iv) Executive shall have breached Sections 10 or 11 hereof in any material
respect.
In the event the Company elects to terminate Executive's employment
hereunder as set forth above, the Company shall give written notice to such
effect to Executive, which notice shall describe in reasonable detail the
actions of Executive constituting the Act of Cause, and Executive's
employment under this Agreement shall thereupon terminate as of a date to be
specified in such notice, which date shall not be less than fifteen (30)
days after the delivery of such notice. In no event shall the termination
be caused by failure or discrepancies due to compliance issues contained
within the Sarbanes-Oxley Act and the certification required by
the Executive.
(d) Termination by the Elective. The Executive may terminate his employment
hereunder (A) for Good Reason or (B) if his health should become impaired to
an extent that makes his continued performance of his duties hereunder
hazardous to his physical or mental health or his life, provided that the
Executive shall have furnished the Company with a written statement from a
qualified doctor to such effect and provided, further, that, at the
Company's request, the Executive shall submit to an examination by a doctor
selected by the Company and such doctor shall have concurred in the
conclusion of the Executive's doctor.
For purposes of this Agreement, "Good Reason" shall mean (a) a Change in
Control of the Company (as defined below), or (b) a material breach by the
Company of any of the Executive's rights hereunder, including (i) a
decrease in the total amount of the Executive's base salary below the level
set forth in Section 5(a), or a decrease in the bonus percentage to which
the Executive is entitled under Section 5(e), (ii) a reduction in the
responsibility and authority of the Executive without the Executive's
consent, as determined by the Executive in his reasonable
5
discretion, (iii) a geographical relocation of the Executive without his
consent; or (iv) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination satisfying the
requirements of paragraph (e) hereof (and for purposes of this Agreement
no such purported termination shall be effective). Absent written consent,
no action or inaction by the Executive following the occurrence of the
events described in the definition of Good Reason shall be deemed consent
to such events.
For purposes of this Agreement, a "Change in Control of the Company" shall
be deemed to have occurred if(Y) any "person" as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act for 1934 (the
"Exchange Act"), other than a current holder of 10% of the Company's
outstanding Common Stock, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly , of
securities of the Company representing 25% or more of the combined voting
power of the Company's then outstanding securities, or (Z) during any
period of two consecutive years during the term of the Agreement,
individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least
two-thirds of the directors then in office who were directors at the
beginning of the period.
(e) Notice of Termination. Any termination of the Executive's employment by
the Company or by the Executive ( other than termination pursuant to
subsection (a) above) shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
(f) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death,
(ii) if the Executive's employment is terminated pursuant to subsection
(b) above, thirty (30) days after Notice of Termination is given (provided
that the Executive shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), (iii) if the
Executive's employment is terminated pursuant to subsection (c) above, the
date specified in the Notice of Termination, and (iv) if the Executive's
employment is terminated for any other reason, the d-ate on which a Notice
of Termination is given, provided that if within thirty (30) days after any
Notice of Termination is given the party receiving such Notice of
Termination, notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute
is finally determined, either by mutual written agreement of the parties,
by a binding and final arbitration award
6
or by a formal judgment, order or decree of a court of competent jurisdiction
(the time for appeal therefrom having expired and no appeal having been
perfected).
7. Compensation Upon Termination or During Disability.
---------------------------------------------------
(a) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("disability period"), the Executive shall continue to receive his full
salary at the rate then in effect for such period until his employment
is terminated pursuant to Section 6(b ), or Section 6( d)(B) hereof,
provided that payments so made to the Executive during the first 180 days
of the disability period shall be reduced by the sum of the amounts, if any,
payable to the Executive at or prior to the time of any such payment under
disability benefit plans of the Company and which were not previously
applied to reduce any such payment. The Executive's year-end bonus shall
be paid in a pro rata amount to compensate the Executive proportionately
for days worked prior to the beginning of his disability period.
(b) In the event the Executive's employment is terminated by his death, the
Company shall pay to the Executive's spouse, or if he leaves no spouse, to
his estate, commencing on the next succeeding bi-weekly pay day, and
bi-weekly thereafter until a total of twenty-six (26) payments has been
made, an amount on each payment date equal to the bi-weekly salary
payment payable to the Executive pursuant to Section 5(a) hereof at the
time of his death. If the Executive dies before payment of the Company's
year-end bonus for any year in which Executive has worked, the bonus
payment to which the Executive is entitled will be made directly to the
Executive's spouse, or if he leaves no spouse, to his estate. Any bonus
payment made pursuant to this Section shall be paid pro rata based on the
number of days in the fiscal year that the Executive worked prior to his
death.
(c) If the Executive's employment shall be terminated for Cause, the Company
shall pay the Executive his full salary through the date of delivery to him
of a Notice of Termination at the rate in effect at the time Notice of
Termination is given, and the Company shall have no further obligations to
the Executive under this Agreement.
( d) If (A) in breach of this Agreement, the Company shall terminate the
Executive's employment other than pursuant to Section 6(b) or 6(c) hereof
(it being understood that a purported termination pursuant to Section 6(b)
or 6(c) hereof which is disputed and determined not to have been proper
shall be a termination by the Company in breach of this Agreement) or (B)
the Executive shall terminate his employment for Good" Reason:
(i) the Company shall pay the Executive his full salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given.
7
(ii) in lieu of any further salary payments to the Executive for periods
subsequent to the Date of Termination, the Company shall pay as severance
to the Executive an amount equal to the product of (A) the Executive's
annual compensation pursuant to Section 5 hereof, in effect as of the
date of Termination, multiplied by (b) five (5) such payments, in a lump
sum on or before the fifth day following the Date of Termination.
(iii) if termination of the Executive's employment arises out of a breach
by the Company of this Agreement, the Company shall pay all other damages
to which the Executive may be entitled as a result of such breach,
including damages for any and all loss of benefits to the Executive
under the Company's employee benefits plans which the Executive would have
received if the Company had not breached this Agreement and had the
Executive's employment continued for the full term provided in Section 2
hereof at the rate of compensation specified herein, and including all
legal fees and expenses incurred by him as a result of such termination.
(e) I.R.C. Section 28OG. Notwithstanding any provision in this Agreement to
the contrary , if all or any portion of the payments or benefits received
or realized by Executive either alone or together with other payments or
benefits which Executive receives or realizes or is then entitled to
receive or realize from the Company or any of its affiliates would constitute
a "parachute payment' within the meaning of Section 28OG of the Internal
Revenue Code of 1986, as amended ( or any successor section), and the
regulations promulgated thereunder (the "Code"), and/or any corresponding
and applicable state law provision, such payments or benefits provided to
Executive shall be reduced by reducing the amount of payments or
benefits payable to Executive pursuant to Section 7 of this Agreement to
the extent necessary so that no portion of such payments shall be subject
to the excise tax imposed by Section 4999 of the Code and any corresponding
and/or applicable state law provision; provided, however, that such
reduction shall only be made if, by reason of such reduction, Executive's
net after-tax benefit shall exceed the net after tax benefit if such
reduction were not made. For purposes of this section 7( e), "net after-tax
benefit" shall mean the sum of (i) the total amount received or realized by
Executive pursuant to this Agreement that would constitute a "parachute
payment" within the meaning of Section 280G of the Code and any
corresponding and applicable state law provision, plus (ii) all other
payments or benefits which Executive receives or realizes or is then
entitled to receive or realize from the Company and -any of its affiliates
that would constitute a "parachute payment" within the meaning of Section
28OG of the Code and any corresponding and applicable state law provision,
less (iii) the amount of federal or state income taxes payable with respect
to the payments or benefits described in (i) and (ii) above calculated at
the maximum marginal individual income tax rate for each year in which
payments or benefits shall be realized by Executive (based upon the rate in
8
effect for such year as set forth in the Code at the time of the first
receipt or realization of the foregoing), less (iv) the amount of excise
taxes imposed with respect to the payments or benefits described in
(i) and (ii) above by Section 499.9 of the Code and any corresponding
and applicable state law provision.
(f) Unless the Executive is terminated for Cause, the Company shall
maintain in full force and effect for the continued benefit of the
Executive for five (5) years all employee benefit plans and programs
in which the Executive was entitled to participate immediately prior
to the Date of Termination, provided that the Executive's continued
participation is possible under the general terms and provisions
of such plans and programs. In the event that the Executive's participation
in any such plan or program is barred, the Company shall arrange to provide
the Executive with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under such plans
and programs from which his continued participation is barred.
However, in no event will the Executive receive from the Company the
employee benefits contemplated by this Section 7(f) if the Executive
receives comparable benefits from any other source, other than the
Company's parent company, affiliate, or successor corporations.
8. Renewal of Term of Agreement.
-----------------------------
At the end of each full year this Agreement is in effect, the Agreement
shall be automatically renewed for an additional five (5) years, unless
the Company notifies the Executive that he is in default of any of the
provisions of this agreement; such notice to be delivered at least ninety
days prior to the end of the full year. Upon notice of non-renewal, the
Executive will be entitled to the protection of this Agreement for the
remaining term of the Agreement, subject to all other provisions of this
Agreement.
The provisions of this Agreement shall survive any merger, acquisition or
change of control (as defined in this agreement).
9. Counsel Fees and Indemnification.
---------------------------------
(a) The Company shall pay, or reimburse to Executive, the reasonable fees
and expenses of Executive's personal counsel for their professional services
rendered to Executive in connection with this Agreement and the matters
related thereto.
(b) In the event that either party hereto shall assert a default in the
performance by the other party of any obligations hereunder, in addition
to any and all other rights or remedies which the prevailing party may
obtain in any arbitration and/or litigation, the prevailing party shall
also be entitled to receive all arbitration and/or court costs and
reasonable attorneys' fees incurred by such party in enforcing or defending
his or its rights hereunder .
9
(c) The Company shall indemnify Executive to the full extent permitted by
Section 145 of the Nevada General Corporation Law, as amended from time to
time ("DGCL "). The Company shall advance fees and expenses to Executive to
the full extent permitted by Section 145 of the DGCL, provided that
Executive provides an undertaking reasonably acceptable to the Company's
board of directors to repay such advancement if Executive is ultimately
determined not to be entitled to indemnification. The provision of this
Section 9 shall survive the termination of this Agreement. The Company
shall indemnify and hold Executive harmless to the maximum extent permitted
by law against judgments, fees, amounts paid in settlement and reasonable
expenses, including attorney's fees incurred by Executive, in connection
with the defense of, or as a result of any action or proceeding ( or any
appeal from any action or proceeding) in which Executive is made or is
threatened to be made a party by reason of the fact that he is or was an
officer of the Company, regardless of whether such action or proceeding is
one brought by or in the right of the Company, to procure a judgment in its
favor (or other than by or in the right of the Company).
The undertakings of sub-paragraphs (a) and (b) above are independent of,
and shall not be limited or prejudiced by the undertakings of this
subparagraph (c). ( d) The Company further represents and warrants: (i) that
the Company shall endeavor to obtain directors and officers liability
insurance coverage, if it is available at reasonable rates, and that
Executive shall be covered and insured up to the maximum limits provided
by such insurance which the Company obtains and maintains and (ii) that the
Company will exert its best efforts to maintain such insurance in effect
throughout the term of Executive's employment. (e) The Company hereby
warrants and represents that the undertakings of payment, indemnification
and maintenance of insurance covering Executive set out in Section (a),
(b), (c) and (d) above are not in conflict with the articles of
incorporation or bylaws of the Corporation or with any validly existing
agreement or other proper corporate action of the Company.
10. Non-Competition Review.
-----------------------
(a) During the term of this Agreement and, if the Executive's employment is
terminated pursuant to 6(b), 6(c), or 6(d) hereof and the Executive receives
all compensation to which he is entitled under this Agreement, for three
years after such termination, Executive will not, without prior written
approval of the Board of Directors of the Company, become an officer,
employee, agent, partner, or director of any business enterprise in
substantial direct competition ( as defined below) with the Company.
10
10 (a) This same restriction shall apply if the Executive receives, for
whatever reason, such compensation as is contemplated by Section 7(d) of
this Agreement.
(b) For the purposes of this paragraph 10, a business enterprise with which
Executive becomes associated as an officer, employee, agent, partner, or
director shall be considered in "substantial direct competition" with the
Company if it is engaged in the pharmaceutical business, or any other
business in which the Company is doing business at the date of termination,
anywhere in the continental United States.
( c) In the event that any court of competent jurisdiction determines
that any provision of this Section 10 is invalid or unenforceable under
applicable law, then the parties hereto agree that such court shall enforce
such provision to the maximum extent permitted by applicable law.
11. Confidentiality .
-----------------
The Executive acknowledges that, in and as a result of his employment
hereunder he will be making use of, acquiring and/or adding to confidential
information of special and unique nature and value relating to such matters
as the Company's trade secrets, systems, procedures, manuals, confidential
reports and lists of clients, as well as the nature and type of services
rendered by the Company, and the equipment and methods used by the Company.
As a material inducement to the Company to enter into this Agreement, and
to pay to the Executive the compensation refereed to in this Agreement,
Executive covenants and agrees that he shall not, at any time during or
following the term of his employment hereunder, directly or indirectly,
divulge or disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to him as a result of
his employment by the Company.
In the event of a breach or threatened breach by the Executive of any of the
provisions of this paragraph 11, the Company, in addition to and not in
limitation of any other rights, remedies or damages available to the Company
at law or in equity, shall be entitled to a permanent injunction in order
to prevent or to restrain any such breach by Executive, or by Executive's
partners, agents, representatives, servants, employers, employees and/or any
and all persons directly or indirectly acting for or with him.
12. Successors: Binding Agreement.
------------------------------
(a) This Agreement shall be binding upon and shall inure to the - benefits
of the parties hereto and their successors and assigns. The Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such
11
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as he would be entitled to
hereunder, if he terminated his employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
As used in this Agreement, "Company" shall mean the Company as herein before
determined and any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this paragraph 12
or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b ) This Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legalees. If the Executive should die while any amounts would
still be payable to him hereunder, if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legalee, or other
designee or, if there be no such designee, to the Executive's estate.
13. Notice.
-------
For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt
requested, postage prepaid" addressed as follows:
If to the Executive:
Paul B. Kravitz
4320 NW 101 DR.
Coral Springs, FL 33065
If to the Company:
Med Gen Inc.
7284 W. Palmetto Park Rd.
Boca Raton, FL 33433
12
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
14. Miscellaneous.
--------------
No provisions of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company. No waiver by either party hereto at any time of
any breach by the other hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth expressly in
this Agreement. This Agreement hereby supercedes all previous agreements.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Florida.
15. Validity.
---------
The validity or un-enforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
16. Counterparts.
-------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute
one and the same instrument.
17. Arbitration.
------------
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitration, in Boca Raton, Florida, 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;
provided, however, that the Company shall be entitled to seek a restraining
order or injunction in any court of competent jurisdiction to prevent any
continuation of any violation of paragraph 11 herein, and the Executive
hereby consents that such restraining order or injunction may be granted
without the necessity of the Company posting any bond. The expense of such
arbitration shall be borne by the Company.
13
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Med Gen Inc. WITNESS: DATE:
____________________________________________________________________
Paul B. Kravitz, Chairman/CEO
EXECUTIVE:
____________________________________________________________________
Paul S. Mitchell
14