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Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT entered into as of this 22nd day of April,
1997 by and between RENEX CORP., a Florida corporation ("Company"), and ORESTES
L. LUGO ("LUGO").
R E C I T A L S:
A. The Company is a provider of kidney dialysis treatments in various
parts of the United States to individuals suffering from end stage renal disease
(the "Business"); and
B. LUGO has been in the continuous employ of the Company since August
1995 as its Vice President/Chief Financial Officer; and
C. The Company desires to continue to employ LUGO as the Company's Vice
President/Chief Financial Officer and LUGO desires to continue to be employed by
the Company in such position on the terms and conditions provided herein; and
D. The Company believes that it is in the best interest of the Company
to assure LUGO of a secure minimum compensation and to diminish the inevitable
distraction of LUGO that may result in the event of the possibility, threat or
occurrence of a change of control, by providing for certain compensation
arrangements upon a change of control.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and such other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. RECITATIONS. The above recitations are true and correct and are
incorporated herein by this reference.
2. EMPLOYMENT.
2.1. Position of Employment. The Company hereby continues the
employment of LUGO as its Vice President/Chief Financial Officer upon all of the
terms and conditions hereinafter set forth. LUGO shall perform such duties as
are usually performed by a Vice President/Chief Financial Officer of a business
similar in scope as the Business and such other reasonable additional duties as
may be prescribed from time to time by the Company's Board of Directors, taking
into account LUGO's education, experience and job responsibilities. LUGO shall
report directly to the President. All actions shall be subject and subordinate
to review and approval by the Board of Directors and any and all committees of
the Board of Directors. The precise responsibilities of LUGO may be modified
from time to time in accordance with reasonable policy established by the Board
of Directors of the Company consistent with LUGO' qualifications and experience.
2.2. Devotion of Time. During the term of LUGO' employment, LUGO
shall devote his full business time, ability and attention to the business
affairs of the Company. LUGO agrees to use his best efforts to perform
faithfully and efficiently such responsibilities. LUGO shall be permitted to (i)
serve on corporate, civic or charitable boards or committees; and (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions. All
income received from such other endeavors shall be for the exclusive benefit of
LUGO and the Company shall have no interest therein.
2.3. Working Facilities. During the term of this Agreement, the
Company shall furnish, at LUGO's principal place of employment, an office,
furnishings, secretary and such other facilities commensurate and suitable to
his position and adequate for the performance of his duties hereunder.
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2.4. Location of Employment. Unless otherwise agreed to by LUGO,
LUGO's principal place of business shall be within Dade or Broward Counties,
Florida.
3. TERM OF EMPLOYMENT
3.1. Term of Employment. The term of this Agreement shall begin on
the date hereof (the "Commencement Date") and shall end two years thereafter,
subject to earlier termination or extension as otherwise set forth in this
Agreement.
3.2. Automatic Extension. This Agreement shall be automatically
extended for successive two (2) year periods at the end of the initial or any
extended term, unless either party provides written notice of termination to the
other party at least 120 days prior to the expiration of the initial or extended
term respectively.
3.3. Termination of Employment by the Company for Cause. The
Company may terminate LUGO's employment upon fifteen (15) days written notice
for the reasons set forth in Section 3.3.1 below, if such default is not cured
within such notice period, or such additional time as is reasonably necessary to
cure such default if LUGO is using diligent efforts to cure such default. The
Company shall be entitled to terminate LUGO's employment without notice or an
opportunity to cure for the reasons set forth in Section 3.3.2 herein.
3.3.1. Notice. Notice or an opportunity to cure shall be
required for the following reasons:
(a) A default or breach by LUGO of any of the material
provisions of this Agreement detrimental to the Company;
(b) refusal to follow reasonable and lawful directives
of the Company's Board of Directors or any committee thereof which are
consistent with LUGO' duties and responsibility outlined in this Agreement; or
3.3.2. No Notice. No notice or an opportunity to cure shall
be required for the following:
(a) actions by LUGO constituting fraud, embezzlement
or dishonesty;
(b) the deliberate and knowing breach by LUGO of the
Company's internal financial controls;
(c) LUGO furnishing false, misleading, or omissive
information or omitting to furnish material information to the Company's Board
of Directors, or any committee thereof, in the reasonable judgment of the Board
of Directors;
(d) any action by LUGO which constitutes a breach of
the confidentiality of the Business and/or trade secrets of the Company;
(e) LUGO's gross negligence in the performance of his
duties as outlined in this Agreement;
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(f) any violation of federal or state law by LUGO which
have a material detrimental impact on the Company;
(g) at such time as LUGO shall have failed, by reason
of mental or physical disability or illness ("Disability" as hereinafter
defined), to perform his services pursuant to this Agreement for a period of
one hundred eighty (180) days. Disability shall be defined to mean the
inability of LUGO to perform his duties under this Agreement, based on injury,
illness or physical or mental conditions as determined by the Company's Board
of Directors, which determination must be supported by two licensed physicians,
one of each selected by the Company and LUGO; provided, however, if the Company
maintains a policy insuring against the disability of LUGO, Disability shall
have the meaning ascribed in such policy. Upon the Board's initial
determination of disability, LUGO will submit to mental and physical
examinations which shall be paid by the Company, unless otherwise covered by
health benefits provided by the Company to LUGO. The failure of LUGO to submit
to such reasonable examinations within fifteen (15) days of such request shall
be conclusive that such Disability exists.
3.3.3. No Additional Compensation. Upon termination for the
reasons set forth in Section 3.3 herein, the Company shall not be liable for any
further compensation or benefits following the date of termination, other than
accrued Base Salary. Notwithstanding, LUGO shall be entitled to receive all
appropriate benefits mandated by the Consolidated Budget Reconciliation Act of
1985 ("COBRA").
3.4. Termination by LUGO. LUGO may terminate this Agreement upon thirty
(30) days written notice, upon the occurrence of a material default of this
Agreement by the Company, which default is not cured within the thirty (30) day
notice period. Such notice shall set forth with particularity the facts
underlying the claimed default.
3.5. Termination without Cause. The Company shall have the right to
terminate this Agreement, without cause, upon thirty (30) days written notice to
LUGO. Notwithstanding such termination, the Company shall be obligated to pay to
LUGO as severance herein the following:
3.5.1. Prior to Change of Control. If termination without cause is
prior to a "Change of Control," LUGO shall be entitled to severance equal to the
greater of (i) the Base Salary which would have been paid for the balance of the
term of this Agreement if it were not terminated, or (ii) one (1) year's Base
Salary. The severance payment under this Section 3.5.1 shall be payable in
twelve (12) equal monthly installments commencing on the first day of the month
following termination. In addition, during such twelve (12) month period, all
benefits to LUGO set forth on Section 4.5 herein shall continue to be paid.
3.5.2. Following a Change of Control. If LUGO is terminated
without cause at any time following a Change of Control, LUGO shall be entitled
to severance equal to the greater of (i) two times the Base Salary which would
have been paid for the remainder of the term had the Agreement not been
terminated, or (ii) two times the sum of (A) one year's Base Salary then in
effect, and (B) any and all bonuses paid to LUGO in the eighteen (18) months
prior to the effective date of termination. The severance payments under this
Section 3.5.2 shall be paid 50% in cash on the effective date of termination and
the balance in twelve (12) equal monthly payments on the 1st day of each month
commencing on the 1st day of the month following termination. In addition, all
benefits set forth in Section 4.5 herein shall continue to be paid during such
twelve month period.
3.5.3. Stock Options. Notwithstanding anything herein to the
contrary, in the event that LUGO's employment is terminated in accordance with
this Section 3.5, LUGO's rights under any and all employee stock option programs
or individual stock option arrangements shall remain in effect and provide to
LUGO the ability to exercise any and all stock options vested
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as of the date of termination through the remainder of the terms of such
options, which termination dates shall not be accelerated based on the
termination of employment.
3.6. Termination upon Death. This Agreement shall be terminated
immediately upon the death of LUGO. Within thirty (30) days following such
termination, the Company shall pay to LUGO' estate: (i) all accrued Base Salary
and bonuses; and (ii) a sum equal to six (6) months' Base Salary. In addition,
upon the determination of bonuses for the fiscal year in which LUGO died, the
Company shall pay to LUGO's estate, a prorated bonus based on the number of days
LUGO provided services hereunder during the year of his death.
3.7. Termination by LUGO Upon Change of Control. LUGO may terminate
this Agreement at any time within one hundred eighty (180) days following a
"Change of Control" of the Company by providing thirty (30) days written notice
of termination, which notice must be sent within the 180 day period. Upon such
termination, LUGO shall be entitled to a severance payment equal to the greater
of (i) two times the Base Salary which would have been paid for the remainder of
the term had the Agreement not been terminated, or (ii) two times the sum of (A)
one year's Base Salary then in effect, and (B) any and all bonuses paid to LUGO
in the eighteen (18) months prior to the effective date of termination. The
severance payment under this Section 3.7 shall be paid 50% in cash on the
effective date of termination and the balance in twelve (12) equal monthly
payments on the 1st day of each month commencing on the 1st day of the month
following termination. In addition, all benefits set forth in Section 4.5 herein
shall continue to be paid during such twelve month period. Notwithstanding
anything herein to the contrary, in the event that LUGO's employment is
terminated in accordance with this Section 3.7, LUGO's rights under any and all
employee stock option programs or individual stock option arrangements shall
remain in effect and provide to LUGO the ability to exercise any and all stock
options vested as of the date of termination through the remainder of the terms
of such options, which termination dates shall not be accelerated based on the
termination of employment.
3.8. Definition of Change of Control. Change of Control is defined for
the purposes of this Agreement as any of the following acts:
3.8.1. The acquisition by any person, entity or "group" within the
meaning of ss. 13(d) or 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty-five (25%) percent or more of
either the then outstanding shares of the Company's common stock or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors. Notwithstanding, any purchase by
underwriters pursuant to a firm commitment underwriting shall not constitute a
Change of Control; or
3.8.2. If the individuals who serve on the Company Board of
Directors as of the Commencement Date (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors; provided,
however, that any person who becomes a director subsequent to the Commencement
Date whose election or nomination for election by the Company's shareholders was
approved by a vote of at least a majority of the directors then compiling the
Incumbent Board shall be for purposes of this Agreement considered as if such
person was a member of the Incumbent Board; or
3.8.3. Approval by the Company's stockholders of (i) a merger,
reorganization or consolidation whereby the Company's shareholders immediately
prior to such approval do not, immediately after consummation of such
reorganization, merger or consolidation own more than 50% of the combined voting
power entitled to vote generally in the election of directors of the surviving
entity's then outstanding voting securities; or (ii) liquidation or dissolution
of the Company; or (iii) the sale of all or substantially all of the assets of
the Company.
3.9. Certain Reduction of Payments by the Company. Notwithstanding
anything in this Agreement to the contrary, in the event that it is determined
that any payment or distribution required to be made by the Company to LUGO
following a Change of Control under Sections 3.5.2 or 3.7 herein (a "Change of
Control Payment"), would be nondeductible by the Company for Federal income tax
purposes because of Section 280G of the Internal Revenue Code of 1986, as
amended, then the aggregate amounts payable or distributable pursuant to this
Agreement shall be reduced to the "Reduced Amount." The Reduced Amount shall be
the greater of (i) an amount which is the maximum amount of Change of Control
Payments possible without causing any such Change of Control Payment to be
nondeductible by the Company because of Section 280G of the Code, or (ii) the
Change of Control Payment, if the Change of Control Payments provides LUGO with
a greater after tax benefit than (i) herein. The Reduced Amount specified in
(i) above shall be expressed in present value which maximizes the aggregate
present value of Change of Control Payments without causing any Reduced Amount
to be non-deductible by the Company under Section 280G. In addition, if the
Change of Control Payments can be restructured through the provision by LUGO of
personal services or otherwise following a Change of Control, then the parties
shall in good faith attempt to agree to a change in such relationship necessary
for LUGO to receive the full benefits of the Change of Control Payment.
However, any restructuring of the relationship shall not require LUGO to be
employed by the Company or be subject to a non-competition agreement. The
determinations required herein shall be made by the independent certified
public accounting firm which was engaged by the Company to audit the Company's
financial statements for the fiscal year preceding the year in which the Change
of Control occurs. LUGO shall have the right to contest such determination.
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4. COMPENSATION AND BENEFITS
4.1. Salary. Subject to the provisions of Section 4.2 herein, the
Company shall pay to LUGO, a base salary at a total annual rate of $102,500 (the
"Base Salary") payable in cash. Base Salary shall be paid in regular payroll
intervals consistent with payroll policy established by the Company from time to
time. Base Salary shall be automatically increased to $155,000 per year on the
earlier of (i) the date the Company's registration statement of its
initial public offering is declared effective by the Securities and Exchange
Commission; or (ii) a Change of Control.
4.2. Cost of Living Increase. On each anniversary date of this
Agreement during the term hereof or any extension, Base Salary shall be
increased by the greater of (i) six (6%) percent of then existing Base Salary,
or (ii) the percentage increase, if any, of the consumer price index for Urban
Wage Earners and Clerical Workers (Greater Metropolitan Miami area; all items)
issued by the Bureau of Labor Statistics of the U.S. Department of Labor. The
Company's Board of Directors shall have the discretion to grant increases in
Base Salary in excess of the amounts provided herein.
4.3. Bonus. Prior to the commencement of each fiscal year, the Board of
Directors or its compensation committee, if any, shall establish in good faith a
reasonable and justifiable incentive bonus plan for LUGO for such fiscal year.
The incentive bonus plan shall provide LUGO the ability to earn a bonus based
upon certain goals and objectives to be established in such incentive bonus
plan. Such bonus, if any, shall be payable within thirty (30) days following the
completion of the Company's audit for such fiscal year by its independent
auditors.
4.4. Stock Options. LUGO shall be eligible from time to time to receive
grants of stock options, under stock option plans or otherwise, in such amounts
and at such times as determined by the Board of Directors or any committee
thereof. All options granted to LUGO shall:
(a) have a minimum term of five (5) years within which to
exercise such options;
(b) have a vesting schedule of no worse than twenty-five (25%)
percent as of the date of grant and twenty-five (25%) on each anniversary date
of such grant thereafter;
(c) vesting shall be accelerated upon a change of control of the
Company;
(d) have an exercise price no greater than the market price of the
underlying securities as of the date of grant; and
(e) such other terms and conditions as are customary for similar
types of options.
4.5. Additional Benefits.
4.5.1. Vacation. LUGO shall be entitled to a reasonable number of
discretionary paid vacation days consistent with his level of employment, duties
and seniority during each twelve-month period during the term of this Agreement,
but in no event less than fifteen (15) days during each period. Vacation time
may be accumulated for a period of not longer than two (2) years. LUGO shall not
receive compensation for days not used.
4.5.2. Automobile Expenses. During the term of this Agreement, the
Company shall pay to LUGO an automobile allowance of $600 per month, which shall
be inclusive of all expenses associated with the operation of such automobile,
including depreciation, gasoline, insurance, repairs and maintenance.
4.5.3. Professional Education. During each calendar year during
the term of this Agreement, the Company shall pay for the cost of 40 hours of
continuing professional education ("CPE") credits necessary for LUGO to maintain
his certified public accounting license. Such CPE costs shall include LUGO's
attendance at one national out-of-town CPE class of his choice during each
calendar year, up to a maximum of $3,000 for such attendance, which expenses
shall include the cost of the CPE credits, travel, hotel accommodations and
other reimbursement of expenses consistent with normal Company travel policy.
4.5.4. Reimbursement of Expenses. LUGO shall be reimbursed by the
Company, upon presentation of adequate receipts, for all business expenses which
are reasonably
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incurred by LUGO in the performance of his duties under this Agreement,
including but not limited to travel, cellular phone and similar expenses. All
travel expenses shall be incurred in accordance with reasonable policy
established by the Board of Directors.
4.5.5. Participation in Employee Benefit Plans. LUGO shall be
entitled to participate, subject to eligibility and other terms generally
established by the Company's Board of Directors, in any group hospitalization,
health, dental care, profit sharing and pension, and other benefit plans, as may
be adopted or amended by the Company from time to time as affecting employees of
similar status. The Company shall provide health insurance for LUGO and his
dependents and shall pay all premiums incurred thereby.
5. REPRESENTATIONS. LUGO hereby represents to the Company that he is
in good health, he is physically and mentally capable of performing his duties
hereunder and he has no knowledge of any present or past physical or mental
condition which would cause an insurance company to reject an application by
LUGO for life insurance or for accident, sickness or disability insurance. LUGO
represents and warrants that to the best of his knowledge he is not subject to
any restrictive covenants under any other agreements prohibiting his performance
in full hereunder, or which would subject the Company to any valid claims for
tortious interference.
6. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
6.1. Confidentiality. LUGO shall not, during the term of this
Agreement or at any time thereafter, divulge, furnish or make accessible to
anyone without the Company's prior written consent, any knowledge or information
with respect to any aspect of the Business, including but not limited to: the
Company's costs; fees or models; physician or patient names; provider names;
referral sources; addresses and telephone numbers of patients and referral
sources; billing procedures, prices and terms; its business techniques, computer
programs and printouts; identity of prospective patients, providers or referral
sources; information disclosed by the Company's patients to the Company; or
other information concerning the Business or its employees. All information
given to LUGO in connection with his employment shall be considered confidential
and proprietary.
6.2. Ownership of Information. LUGO recognizes that all records;
patient lists; provider lists; referral lists; material cost data; fees or
models; files and correspondence with patients, referral services, physicians,
and providers of services; computer printouts; contracts; reports; notes;
business plans; compilations of other recorded matter; and copies or
reproductions thereof, relating to the Company's operations and activities made
or received by LUGO in the course of his employment are the exclusive property
of the Company and LUGO holds and uses same as trustee for the Company and
subject to the Company's sole control and will deliver same to the Company at
the termination of his employment, or earlier if so requested. All of such
information, which if used by LUGO outside the scope of his employment, could
cause irreparable and continuing injury to the Business for which there may not
be an adequate remedy at law.
7. RESTRICTIVE COVENANT. As an inducement to cause the Company to
enter into this Agreement, LUGO covenants and agrees that during his employment,
and for a period of one (1) year after he ceases to be employed by the Company,
regardless of the manner or cause of termination:
7.1. Non-Competition. LUGO will not be an employee, agent,
director, stockholder or owner (except of not more than 1% of the securities of
any publicly traded entity), partner, consultant, financial backer, creditor or
be otherwise directly or indirectly connected with or participate in the
management, operation or control of any business, firm, proprietorship,
corporation, partnership, association, entity or venture engaged in the
provision of services similar to the Company's business as of termination (a
"Competing Business") within 100 miles of any office, center, clinic or other
location of the Company, or any of its subsidiaries or affiliates;
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7.2. Solicitation of Business. LUGO will not contact, call upon,
solicit business from, sell or render services to any patient, provider,
insurer, HMO, managed care company or contract party of the Company, or any of
its affiliates with respect to a Competing Business or purchase from any
supplier or potential supplier any materials for same and LUGO shall not
directly or indirectly aid or assist any other person, firm or corporation to do
any of the aforesaid acts; or
7.3. Solicitation of Employees. LUGO will not directly or
indirectly, as principal, agent, owner, partner, stockholder, officer, director,
employee, independent contractor or consultant or in any individual or
representative capacity for himself or on behalf of any business, firm,
corporation, partnership, association or proprietorship enter into any
agreements with, solicit, or directly or indirectly cause others to solicit the
employment of any officer, sales person, agent, or other employee of the
Company, or any of its subsidiaries or affiliates for the purpose of causing
said officer, sales person, agent or other employee to terminate employment with
the Company.
7.4. Non-Enforcement of Restrictive Covenant: Notwithstanding
anything herein to the contrary, if this Agreement is terminated (a) by LUGO as
a result of the material breach of this Agreement by the Company, (b) if the
Company fails to make any severance payment required herein within ten (10) days
after such payment is due, or (c) in accordance with Sections 3.5.2 or 3.7
herein, then in such event the Restrictive Covenants contained in this Section 7
shall thereafter be unenforceable by the Company. Notwithstanding termination of
the restrictive covenants, the Company will still be obligated to pay the
remaining severance due.
8. ACKNOWLEDGMENT. LUGO HEREBY ACKNOWLEDGES AND UNDERSTANDS THIS
AGREEMENT INHIBITS LUGO'S ABILITY TO WORK FOR THE SAME OR SIMILAR KIND OF
BUSINESS FOR A PERIOD OF ONE (1) YEAR AFTER THE END OF LUGO' EMPLOYMENT WITH THE
COMPANY. LUGO acknowledges and confirms that the length of the term and
geographic restrictions contained in this Agreement are fair and reasonable and
not the result of overreaching, duress or coercion of any kind. LUGO further
acknowledges and confirms that his full, uninhibited and faithful observance of
each of the covenants contained in this Agreement will not cause any undue
hardships, financial or otherwise and that enforcement of this Agreement will
not impair LUGO's ability to obtain employment commensurate with LUGO's
abilities and on terms fully acceptable to LUGO. LUGO acknowledges that LUGO
will be receiving significant information regarding the Business which LUGO has
not previously received and would not receive without being employed by the
Company. LUGO acknowledges and confirms that such information would cause the
Company serious injury and loss if used by LUGO for the benefit of a competitor.
9. MATERIAL VIOLATION. A violation of Sections 6 or 7 shall constitute
a material and substantial breach of this Agreement and shall result in the
imposition of the Company's remedies contained in Section 11. LUGO acknowledges
that compliance with the provisions of Sections 6 and 7 are necessary to protect
the goodwill and proprietary interests of the Company and is a material
condition of employment. LUGO acknowledges and agrees that proof of one such
personal solicitation by LUGO of a patient, referral source, HMO, managed care
company, insurance company, supplier or employee, shall constitute absolute and
conclusive evidence that LUGO has substantially and materially breached the
provisions of this Agreement.
10. MATERIAL COVENANTS. It is understood by and between the parties
that the foregoing covenants set forth in Sections 6 and 7 are essential
elements of this Agreement, and that but for the agreement of LUGO to comply
with such covenants, the Company would not have entered into this Agreement.
Such covenants by LUGO shall be construed as agreements independent of any other
provision of this Agreement and the existence of any claim or cause of action
LUGO may have against the Company whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
these covenants.
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11. REMEDIES. LUGO hereby acknowledges, covenants and agrees that in
the event of a material default or breach under this Agreement:
(a) the Company will suffer irreparable and continuing
damages as a result of such breach and its remedy at law will be inadequate.
LUGO agrees that in the event of a violation or breach of this Agreement, in
addition to any other remedies available to them, the Company shall be entitled
to an injunction restraining any such default or any other appropriate decree of
specific performance, without any requirement to prove actual damages or to post
any bond or any other security and to any other equitable relief the court deems
proper; and
(b) Any and all of the Company's remedies described in
this Agreement shall not be exclusive and shall be in addition to any other
remedies which the Company may have at law or in equity including, but not
limited to, the right to monetary damages.
12. INDEMNIFICATION. The Company agrees to indemnify LUGO for any and
all liabilities to which he may be subject as a result of his service to the
Company as an officer, director, or agent or of any other enterprise in which he
serves at the request of the Company, or otherwise as a result of his employment
hereunder, including all expenses, including legal fees and costs incurred as a
result of any proceedings brought or threatened against LUGO, to the fullest
extent permitted by law. Counsel's fees, to the fullest extent permitted by law,
shall be paid by the Company in advance of any final disposition of a proceeding
upon receipt of an undertaking by LUGO that he will repay such fees if it is
ultimately determined by a court of competent jurisdiction that he is not
entitled to indemnification. The Company will use its best efforts to obtain and
keep in force adequate director and officer liability insurance during the term
of this Agreement and for six (6) years thereafter, if available at a reasonable
cost.
13. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections, subdivisions, subparagraphs, paragraphs
or articles contained in this Agreement shall not affect the enforceability of
the remaining portions of this Agreement or any part thereof, all of which are
inserted conditionally on their being legally valid. In the event that one or
more of the words, phrases, sentences, clauses, sections, subdivisions,
subparagraphs, paragraphs or articles are determined to be unenforceable and if
such invalidity shall be caused by the length of any period of time or the size
of any area set forth in any part hereof, such period of time or such area, or
both, shall be considered to be reduced to a period or area which would cure
such invalidity.
14. NOTICE. Any notices or other communications to any party pursuant
to or relating to this Agreement must be in writing and shall be deemed to have
been given or delivered when hand-delivered, mailed through the U.S. Postal
Service via certified mail, return receipt requested, postage prepaid, through a
nationally recognized overnight courier, or via facsimile to the party at their
addresses below:
Company: Renex Corp.
2100 Ponce de Leon Boulevard, Suite 950
Coral Gables, Florida 33134
Attention: President
with a copy to: Bryan W. Bauman, Esq.
Wallace, Bauman, Fodiman & Shannon, P.A.
2222 Ponce de Leon Boulevard, Sixth Floor
Coral Gables, Florida 33134
LUGO: 1900 Sunset Harbor Drive, Unit 1102
Miami Beach, FL
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or such other address given by such party to the other party at any time
hereafter.
15. ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement between the parties with respect to the subject matter hereof and
supersedes any and all other prior written or oral agreements between them as to
such subject matter.
16. AMENDMENT. No amendment, waiver or modification of this Agreement
or any provisions of this Agreement shall be valid unless in writing and duly
executed by both parties.
17. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective heirs, legal representatives,
successors and assigns.
18. WAIVER. Any waiver by any party of any breach of any provision of
this Agreement shall not be considered as or constitute a continuing waiver or
waiver of any other breach of any provision of this Agreement.
19. ASSIGNMENT. No party may assign their rights hereunder without the
prior written consent of the other, except that the Company may assign its
rights to any affiliate or successor entity without the consent of LUGO subject
to the provisions of Section 3.7 herein.
20. CAPTIONS. Captions contained in this Agreement are inserted only as
a matter of convenience or for reference and in no way defines, limits, extends,
or describes the scope of this Agreement or the intent of any provisions of this
Agreement.
21. ATTORNEYS' FEES. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover its attorneys' fees
and costs, including attorneys' fees and costs incurred on appeal.
22. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
RENEX CORP., a Florida corporation
By: /s/ James P. Shea
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Name: James P. Shea
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Title: President
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/s/ Orestes L. Lugo
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ORESTES L. LUGO
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