Exhibit 10.15


 


Execution Version


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made effective as of November 9, 2005 (“Effective Date”),
by and between IT&E International Group (“Company”) and Gene Resnick, M.D.
(“Executive”).


 


RECITALS


 


A.                                   Company
and Executive entered into an Asset Purchase Agreement, dated as of the date
hereof.


 


B.                                     Company
desires to retain the services of Executive, and Executive is willing to
provide such services to the Company.


 


C.                                     Company
and Executive desire to enter into this Agreement to provide for Executive’s
employment by the Company, upon the terms and conditions set forth herein.


 


The parties hereby agree
as follows:


 


1.                                       Duties.


 


1.1.                              Position.  Executive shall serve as Senior Vice
President of IT & E of the Company and President of the Millennix
Division of the Company and shall have the duties and responsibilities incident
to such position and such other duties as may be determined in consultation
with the Company’s Board of Directors (“Board of Directors”).  Executive shall perform faithfully,
cooperatively and diligently all of his job duties and responsibilities.


 


1.2.                              Best
Efforts.  Executive will expend his
best efforts on behalf of Company in connection with his employment and will
abide by all policies and decisions made by Company, as well as all applicable
federal, state and local laws, regulations or ordinances.


 


2.                                       Employment
Term.  The term of Executive’s
employment under this Agreement shall commence as of the Effective Date and
shall continue until that date which is twenty four (24) months after the
Effective Date (the “Employment Term”), unless earlier terminated by either the
Executive or the Company.


 


3.                                       Compensation.


 


3.1.                              Base
Salary.  As compensation for
Executive’s performance of his duties hereunder, Company shall pay to Executive
an initial base salary of Twenty Thousand Dollars ($20,000) per month, which if
annualized, would represent Two Hundred Forty Thousand Dollars ($240,000) (“Annual
Base Salary”), payable in accordance with the normal payroll practices of
Company, less required deductions for state and federal withholding tax, social
security and all other employment taxes and payroll deductions.


 


3.2.                              Annual
Bonus.  In addition to the Annual
Base Salary, Executive shall be eligible to receive an annual cash bonus in an
amount consistent with the annual cash bonus provided to the other executives
of the Company, as determined by the 


 





















 


Board of
Directors based upon the satisfaction of certain objective criteria and
performance standards established by the Board of Directors (the “Annual Bonus”).


 


3.3.                              Stock
Options.  On the Effective Date,
Executive will be granted an option to purchase One Million (1,000,000) shares
of the Company’s Common Stock pursuant to the Company’s 2005 Equity Incentive
Plan, with an exercise price equal to the fair market value of the Company’s
Common Stock on the Effective Date.  Executive
shall be eligible to receive stock options, restricted stock or other equity
incentive grants pursuant to one or more equity incentive plans offered by the
Company from time to time, subject to the approval of the Board of Directors.  Any and all stock options previously granted
to Executive by Company will continue to vest throughout the Employment Term.


 


4.                                       Health
and Welfare Benefit Plans.  The
Executive and/or the Executive’s family, as the case may be, shall be eligible
for participation in and shall receive all benefits under health and welfare
benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical prescription, dental disability, salary
continuance, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent generally applicable to employees
of the Company.


 


5.                                       Customary
Benefits.  Executive shall be
entitled to all customary and usual fringe benefits and shall be entitled to
participate in all savings and retirement plans, practices, policies and
programs generally applicable to employees of the Company and that are in
effect during the Employment Term, subject to the terms and conditions of
Company’s benefit plan documents, as applicable.  Company reserves the right to change or
eliminate the fringe benefits or plans, practices and programs on a
company-wide, prospective basis, at any time.


 


6.                                       Business
Expenses.  Executive shall be
entitled to receive prompt reimbursement for all reasonable, out-of-pocket
business expenses incurred in the performance of his duties on behalf of
Company.  To obtain reimbursement, expenses
must be submitted promptly with appropriate supporting documentation in
accordance with Company’s policies.


 


7.                                       Vacation.  Executive shall be entitled to an aggregate
of twenty nine (29) days of paid vacation and sick days each calendar year in
accordance with the Company’s plans, policies and programs then in effect.


 


8.                                       Severance
Package Upon Termination of Employment Other Than for Cause.  If the Company terminates Executive’s
employment without Cause or Executive resigns as an employee of the Company for
Good Reason, Company agrees to provide Executive with the Severance Package
described in section 8.1 below in accordance with the payment schedule set
forth in section 8.2 below, provided Executive agrees to comply with all
of the conditions set forth in section 8.3 below.


 


8.1.                              Description
of Severance Package.  The “Severance
Package” will consist of:


 


(a)                                  all
Accrued Obligations (defined below);


 


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(b)                                 a
“Severance Payment” equal to the greater of: (i) the amount of Executive’s
then in effect Base Salary that would have been payable to Executive if
Executive had been employed by the Company from the Date of Termination through
the end of the Employment Term, or (ii) an amount equal to one (1) year
of Executives then in effect Base Salary; and


 


(c)                                  Upon
termination of employment, the Executive will be allowed to continue in the
Company’s group health insurance plan at the Executive’s own expense for up to
eighteen (18) months, in accordance with applicable law (COBRA).  However, if the Executive elects COBRA
coverage, the Company will pay the first twelve (12) months of COBRA coverage.


 


8.2.                              Payment
Schedule.  The Severance Package will
be paid less required deductions for state and federal withholding tax, social
security and all other employment taxes as required by law.  The Accrued Obligations described in section 8.1(a) will
be paid within fifteen (15) days after the Date of Termination, unless
otherwise required by law.  The Severance
Payment described in section 8.1(b) will be payable in equal
installments in accordance with the normal payroll practices of the Company
from the Date of Termination through the end of the Employment Term or one (1) year
after the Date of Termination, whichever is applicable (the “Severance Period”),
with the first installment to be paid on the payroll date immediately following
the later of the Date of Termination or the date Executive executes the General
Release (as defined herein).  The
payments to be made under Section 8.1(c) above shall be made in
accordance with the terms of the applicable plan or policy.


 


8.3.                              Conditions
to Receive Severance Package. 
Executive will receive the Severance Package described above only if he
complies with all of the following conditions and continues to comply with the
following for the duration of the Severance Period:


 


(a)                                  Executive
executes a full general release in favor of the Company (the “General Release”)
in the form attached hereto as Exhibit A;


 


(b)                                 Executive
reaffirms in writing and complies with the Non-Competition and Non-Solicitation
Agreement between Executive and the Company (the “Non-Competition Agreement”)
in accordance with the terms thereof.


 


(c)                                  Executive
complies with the Company’s then in effect trade secrets policies and any
inventions and proprietary information agreement between Executive and the
Company (the “Confidentiality Agreement”) in accordance with the terms thereof.


 


The Company’s obligation
to make payments under this Section 8 shall cease if at any time Executive
is not in compliance with any of the foregoing agreements.


 


9.                                       Nonqualified
Deferred Compensation Plan.  To the
extent any amount payable under a “nonqualified deferred compensation plan” (as
defined in Section 409A of the U.S. Internal Revenue Code) following a “separation
from service” (as defined in Section 409A of the U.S. Internal Revenue
Code), then, notwithstanding any other provision of this Agreement to the
contrary, such payment will not be made until the date that is six (6) months
following


 


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Executive’s
separation from service, but only if the Executive is then deemed to be a “specified
employee” under Section 409A of the U.S. Internal Revenue Code.


 


10.                                 Definitions.


 


10.1.                        Accrued
Obligations.  For purposes of this
Agreement, “Accrued Obligations” shall mean: 
(i) payment of Executive’s Annual Base Salary through the Date of
Termination to the extent not theretofore paid; and (ii) payment of any
compensation previously deferred by Executive (together with any accrued
interest thereon) and not yet paid by Company and any accrued vacation pay not
yet paid by Company.


 


10.2.                        Cause.  For purposes of this Agreement, “Cause” shall
mean: (i) any willful, material violation of any law or regulation
applicable to the business of the Company or any subsidiary of the Company; (ii) conviction
for, or guilty plea to, a felony or a crime involving moral turpitude, or any
willful perpetration of a common law fraud; (iii) commission of an act of
personal dishonesty which involves personal profit in connection with the Company
or any subsidiary of the Company, or any other entity having a business
relationship with the Company or any subsidiary of the Company; (iv) any
material breach of any provision of any agreement or understanding between the Company
or any subsidiary of the Company and Executive regarding the terms of Executive’s
service as an employee, officer, director or consultant to the Company or any
subsidiary of the Company, including without limitation, the willful and
continued failure or refusal to perform the material duties required of Executive
as an employee, officer, director or consultant of the Company or any
subsidiary of the Company (other than as a result of disability) or a breach of
any applicable creative works assignment and confidentiality agreement or
similar agreement between the Company or any subsidiary of the Company and
Executive; (v) disregard of the policies of the Company or any subsidiary
of the Company, so as to cause material loss, damage or injury to the property,
reputation or employees of the Company or any subsidiary of the Company if
Executive has been given a reasonable opportunity to comply with such policy or
cure his failure to comply; (vi) any breach of the Non-Competition
Agreement; or (vii) any other misconduct by Executive which is materially
injurious to the financial condition or business reputation of, or is otherwise
materially injurious to, the Company or any subsidiary of the Company.


 


10.3.                        Disability.  For purposes of this Agreement, “Disability”
shall mean if Executive is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a continuous
period of not less than twelve (12) months, as determined by a physician
selected by Company or its insurers and acceptable to Executive or Executive’s
legal representative (such agreement as to acceptability not to be withheld
unreasonably or delayed).


 


10.4.                        Good
Reason.  For purposes of this
Agreement, “Good Reason” shall mean:


 


(a)                                  A
substantial diminution in Executive’s position, authority, duties or
responsibilities as contemplated by Section 1 of this Agreement, excluding
non-substantial changes in title or office, and excluding any isolated,
insubstantial and inadvertent action not


 


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taken in bad faith and which is remedied by Company
promptly after receipt of written notice thereof given by Executive;


 


(b)                                 Any
failure by Company to comply with any of the provisions of Section 3 of
this Agreement, other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by Company promptly after
receipt of written notice thereof given by Executive; or


 


(c)                                  The
Company requiring Executive to be based or spend a material amount of time at any
office or location other than Purchase, New York.


 


11.                                 Notice
of Termination.  Any termination by
Company for Cause or by Executive for Good Reason shall be communicated by a “Notice
of Termination” to the other party hereto given in accordance with Section 16.6
of this Agreement. For purposes of this Agreement, a “Notice of Termination”
means a written notice which:  (i) indicates
the specific termination provision in this Agreement relied upon; (ii) to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s employment
under the provision so indicated; and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen (15) days after the
giving of such notice).  The failure by
Executive or Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause, as the
case may be, shall not waive any right of Executive or Company hereunder or preclude
Executive or Company from asserting such fact or circumstance in enforcing
Executive’s or Company’s rights hereunder. 
Any termination by Company without Cause or by Executive without Good
Reason must be preceded by thirty (30) days’ advance written notice in accordance
with the terms of Sections 11 and 16.6 of this Agreement.


 


12.                                 Date
of Termination.  “Date of Termination”
means the date of death, Disability or the date of delivery of the Notice of
Termination or any later date specified therein, as the case may be; provided,
however, that if Executive’s employment is terminated by Company other than for
Cause or Executive resigns without Good Reason, the Date of Termination shall
be at least thirty (30) days after the date of the applicable Notice of
Termination.


 


13.                                 Confidentiality
and Proprietary Rights.  Executive
agrees to continue to abide by the Confidentiality Agreement, which is attached
to this Agreement as Exhibit B.


 


14.                                 Nondisparagement.  Executive agrees not to disparage, defame or
make any negative or critical public statements, whether verbally or in
writing, regarding the personal or business reputation, technology, products,
practices or conduct of Company or any of Company’s officers or directors.  In addition, except as required by law,
Executive shall not make any public statements regarding Company without the
prior written approval of the Board of Directors.  Additionally, the Company agrees not to
disparage, defame or make any negative or critical public statements, whether verbally
or in writing, regarding the personal or business reputation of Executive.


 


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15.                                 Injunctive
Relief.  Executive acknowledges that
Executive’s breach of the covenants contained in sections 8.3, 13 and 14 of
this Agreement would cause irreparable injury to Company and agrees that in the
event of any such breach, Company shall be entitled to seek temporary,
preliminary and permanent injunctive relief without the necessity of proving
actual damages or posting any bond or other security.


 


16.                                 General
Provisions.


 


16.1.                        Successors
and Assigns.  The rights and
obligations of Company under this Agreement shall inure to the benefit of and
shall be binding upon the successors and assigns of Company.  Executive shall not be entitled to assign any
of Executive’s rights or obligations under this Agreement.


 


16.2.                        Waiver.  The rights and remedies of the parties to
this Agreement are cumulative and not alternative.  Neither the failure nor any delay by any
party in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege; and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power
or privilege or the exercise of any other right, power or privilege.  To the maximum extent permitted by applicable
law, (i) no claim or right arising out of this Agreement or the documents
referred to in this Agreement can be discharged by one party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (ii) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and (iii) no
notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this Agreement
or the documents referred to in this Agreement.


 


16.3.                        Severability.  In the event any provision of this Agreement
is found to be unenforceable, invalid or illegal by an arbitrator or court of
competent jurisdiction, such provision shall be deemed modified to the extent
necessary to allow enforceability of the provision as so limited, it being
intended that the parties shall receive the benefit contemplated herein to the
fullest extent permitted by law.  If a
deemed modification is not satisfactory in the judgment of such arbitrator or
court, the unenforceable, invalid or illegal provision shall be deemed deleted,
and the legality, validity and enforceability of the remaining provisions shall
not be affected thereby.


 


16.4.                        Interpretation;
Construction.  The headings set forth
in this Agreement are for convenience only and shall not be used in
interpreting this Agreement.  This
Agreement has been drafted by legal counsel representing the Company, but
Executive has participated in the negotiation of its terms.  Furthermore, Executive acknowledges that
Executive has had an opportunity to review the Agreement and has had it
reviewed and negotiated by legal counsel acting on his/her behalf, and,
therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.


 


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16.5.                        Governing
Law.  This Agreement will be governed
by and construed in accordance with the laws of the United States and the State
of New York, without reference to its conflicts of laws principles.


 


The Executive hereby agrees to submit to binding
arbitration before the American Arbitration Association (which means A WAIVER
OF THE EXECUTIVE’S RIGHT TO SUE IN COURT AND PROCEED BY A JUDGE OR JURY TRIAL)
of all disputes and claims arising out of this Agreement.  The Executive further understands and agrees
that the Executive shall execute the Company’s standard agreement to arbitrate,
which is separate from this Agreement and may be contained in the Company’s
Employee Handbook.  This Agreement will
be the exclusive method to resolve all disputes or controversies that the
Executive or the Company may have, whether or not arising out of the Executive’s
employment or termination of that employment with the Company, except as
provided in Section 15 hereof.  THE
AGREEMENT TO ARBITRATE CONSTITUTES A WAIVER OF ANY RIGHT THAT THE EXECUTIVE OR
THE COMPANY MAY HAVE TO LITIGATE ANY CLAIM IN COURT IN A JUDGE OR JURY
TRIAL.


 


16.6.                        Notices.  All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (i) delivered by hand (with written confirmation
of receipt); (ii) sent by facsimile (with written confirmation of
receipt); or (iii) when received by the addressee, if sent by a nationally
recognized overnight delivery service, return receipt requested, in each case
to the appropriate addresses and facsimile numbers set forth below or on the
signature pages hereto (or to such other address as a party may designate
by notice to the other parties):


 


	
  If to IT&E:

  	
  IT&E
  International Group

  
	
   

  	
  Attention: Peter
  Sollenne, Chief Executive Officer and

  Dave Vandertie, Chief Financial Officer

  
	
   

  	
  505 Lomas Santa
  Fe Drive, Suite 200

  
	
   

  	
  Solana Beach,
  California 92075

  
	
   

  	
  Telephone: (858)
  777-1644

  
	
   

  	
  Facsimile: (858)
  366-0961

  
	
   

  	
   

  
	
  with a required
  copy to:

  	
  Foley &
  Lardner LLP

  
	
   

  	
  Attention:
  Kenneth D. Polin, Esq.

  
	
   

  	
  402 West
  Broadway, Suite 2300

  
	
   

  	
  San Diego,
  California 92101

  
	
   

  	
  Telephone: (619)
  234-6655

  
	
   

  	
  Facsimile: (619)
  234-3510

  
	
   

  	
   

  
	
  If to Executive:

  	
  Gene Resnick,
  M.D.

  
	
   

  	
  Telephone: 

  
	
   

  	
  Facsimile: 

  



 


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  With a required
  copy to:

  	
  Herrick,
  Feinstein LLP

  
	
   

  	
  Attention: John
  Goldman, Esq.

  
	
   

  	
  2 Park Avenue

  
	
   

  	
  New York, New
  York

  
	
   

  	
  Telephone: (212)
  592-1400

  
	
   

  	
  Facsimile: (212)
  592-1500

  



 


or to such other address as either party shall have
furnished to the other in writing in accordance herewith.


 


16.7.                        Counterparts;
Facsimile.  This Agreement may be
executed in one or more counterparts, all of which when fully executed and
delivered by all parties hereto and taken together shall constitute a single
agreement, binding against each of the parties. 
To the maximum extent permitted by law or by any applicable governmental
authority, any document may be signed and transmitted by facsimile with the
same validity as if it were an ink-signed document.  Each signatory below represents and warrants
by his or her signature that he or she is duly authorized (on behalf of the
respective entity for which such signatory has acted) to execute and deliver
this instrument and any other document related to this transaction, thereby
fully binding each such respective entity.


 


16.8.                        Survival.  Sections 8 (“Separation Package Upon
Termination of Employment Other than for Cause”), 10 (“Definitions”), 13 (“Confidentiality
and Proprietary Rights”), 14 (“Nondisparagement”), 15 (“Injunctive Relief”), 16
(“General Provisions”) and 17 (“Entire Agreement”) of this Agreement shall
survive Executive’s employment by Company.


 


17.                                 Entire
Agreement.  This Agreement, including
the Confidentiality Agreement attached as Exhibit A, constitutes the
entire agreement between the parties relating to this subject matter and
supersedes all prior or simultaneous representations, discussions,
negotiations, and agreements, whether written or oral.  This Agreement may be amended or modified
only with the written consent of Executive and the Company.  No oral waiver, amendment or modification
will be effective under any circumstances whatsoever.


 


[Remainder of Page Intentionally Left Blank]


 


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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING
AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN.
WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.


 


 


	
  Dated:

  	
  November 9, 2005

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ Gene Resnick

  	
   

  
	
   

  	
  Gene Resnick,
  M.D.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
  November 9, 2005

  	
   

  	
  IT&E
  International Group

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Sollenne

  	
   

  
	
   

  	
   

  	
  Peter Sollenne,
  Chief Executive Officer

  
						



 





















 


EXHIBIT A


 


FORM OF GENERAL RELEASE


 


A-1





















 


EXHIBIT B


 


CONFIDENTIALITY AGREEMENT


 


B-2