AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.28
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT
dated as of March 11, 2009 (as the same may be amended, restated, supplemented
or otherwise modified from time to time hereafter, this “Agreement”), is entered
into by and between Columbia Laboratories, Inc., a Delaware corporation having
its corporate offices at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
(the “Company”), and Xxxxx Xxxx (“Executive”).
WITNESSETH:
WHEREAS, the Company wishes to employ
Executive on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Company and Executive
desire to enter into this Agreement so the rights, duties, benefits, and
obligations of each regarding Executive’s employment for and by the Company will
be fully set forth under the terms and conditions stated within this
Agreement;
NOW THEREFORE, in consideration of the
mutual promises and undertakings hereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Term. The
term of this Agreement shall commence on the date first written above and
continue through March 31, 2010, unless this Agreement is earlier terminated in
accordance with Section 6 or 8 hereof. The term shall be
automatically extended without further action of either party for additional
one-year periods, unless written notice of either party’s intention not to
extend has been given to the other party hereto at least sixty (60) days prior
to the expiration of the then effective term.
2. Title;
Duties.
(a) Executive
shall be the Senior Vice President, Chief Financial Officer, and Treasurer of
the Company. Executive will perform duties customarily associated
with such position, including, but not limited to, duties relating to the
management of the financial affairs of the Company and its affiliates, investor
relations matters, and such other duties commensurate with the job description
as may be assigned to him from time to time by the chief executive officer of
the Company (the “Company CEO”). Executive shall be employed at the
Company’s offices located in Livingston, New Jersey. Executive will
report to the Company CEO.
(b) Executive
agrees to devote his entire business time and attention to the performance of
his duties under this Agreement. He shall perform his duties to the
best of his ability and shall use his best efforts to further the interests of
the Company. Executive shall perform his duties and will be required to travel
as reasonably necessary to perform the services required of him under this
Agreement. Executive represents and warrants to the Company that he
is able to enter into this Agreement and that his ability to enter into this
Agreement and to
fully
perform his duties hereunder are not limited to or restricted by any agreements
or understandings between Executive and any other person. For the
purposes of this Agreement, the term “person” means any natural person,
corporation, partnership, limited liability partnership, limited liability
company, or any other entity of any nature. It shall not be a violation of this
Agreement for Executive to serve on corporate boards or committees (it being
agreed that in no event shall Executive serve on the board of directors or
advisory board of more than two other corporations and the acceptance of any new
directorship after the date hereof shall be subject to the approval of the
Company (which shall not be unreasonably withheld), so long as such activities
do not unreasonably interfere with the performance of Executive's
responsibilities as an employee of the Company in accordance with this
Agreement. Notwithstanding the foregoing, it is agreed and acknowledged that
Executive presently serves on advisory boards of two other
corporations,
(c) Executive
will observe the reasonable rules, regulations, policies and/or procedures which
the Company may now or hereafter establish governing the conduct of its
business, except to the extent that any such rules, regulations, policies and/or
procedures may be inconsistent with the terms of this Agreement, in which case
the terms of this Agreement shall control.
3. Employment
Contract. The Company and Executive acknowledge that the terms
of his employment are set forth in this Agreement. If Executive’s
employment terminates for any reason, Executive shall not be entitled to any
payments, benefits, damages, award or compensation other than as provided in
this Agreement, or as may otherwise be available in accordance with the
Company’s established written plans and written policies at the time of
termination.
4. Compensation.
(a) Subject
to tax withholdings and deductions to cover Executive contributions to, and
payments under, applicable executive benefit and welfare plans and programs, the
Company will pay Executive an annual base compensation of $275,000 per year to
be paid in accordance with the Company’s normal payroll practices during the
term of this Agreement (“Base Salary”). The Company’s Board of
Directors (the “Board”) or Compensation Committee of the Board (or any committee
of the Board that shall replace such committee) shall review annually
Executive’s compensation for increases during the term of this Agreement in
conjunction with the Company’s regular review of the salaries of other executive
level employees and in consultation with the Company CEO. At such
time, the Company will consider (without any obligation to implement) upward
adjustments to Executive’s compensation under this Agreement in a manner
consistent with the Company’s practices in effect from time to
time.
(b) In
addition to Base Salary, Executive also will be eligible to receive an annual
performance bonus as the Board or Compensation Committee of the Board (or any
committee of the Board that shall replace such committee) shall, in its sole
discretion, deem appropriate based upon the parameters and criteria contained in
the Company’s bonus plan and in consultation with the Company CEO. He shall be
eligible for a Target Annual Bonus of 35% of his Base Salary as then in
effect. This bonus, if any, shall be paid to the Executive no later
than March 15 following the end of each calendar year.
(c) Executive
also shall be eligible in the sole discretion of the Board or the Compensation
Committee of the Board (or any committee of the Board that shall replace such
committee) to participate in the Company’s stock option plan as is from time to
time in effect, subject to the terms and conditions of such plan. The Executive
shall receive on his first day of employment with the Company an initial grant
of 100,000 options to purchase shares of the Company’s stock which shares are to
vest at the rate of one-quarter on each of the first four anniversaries of the
grant date. The Executive shall receive on his first day of employment with the
Company an initial grant of 10,000 restricted shares of the Company’s stock
which shares are to vest upon the determination by the Compensation Committee of
the Board that the Company has obtained analyst coverage by at least two
independent or sell-side research providers to ensure that the Company has
broader market awareness.
5. Benefits.
(a) Executive
and Executive’s eligible dependents shall be eligible for all employee benefit
programs (including any pension, 401(k), group life insurance, group medical and
dental, vision, and short-term and long-term disability policies, plans, and
programs) generally available to other executive level employees of the Company
during the term of this Agreement, in accordance with the terms of those benefit
plans.
(b) Executive
shall be entitled to accrue paid time off (“PTO”) during the term of this
Agreement in accordance with the Company’s standard policy and in an amount
commensurate with other executive level employees of the Company.
(c) In
accordance with the policies of the Company in effect from time to time,
Executive will be entitled to reimbursement for approved ordinary and
necessary business expenses incurred by him during the term of this Agreement
commensurate with other executive level employees of the Company.
6. Termination.
(a) Death. Executive’s
employment shall terminate immediately upon his death.
(b) Disability. Executive’s
employment shall terminate upon Executive having a “Disability.” For
purposes of this Agreement, “Disability” means a determination by Company in
accordance with applicable law that, as a result of a physical or mental
illness, Executive is unable to perform the essential functions of his job with
or without reasonable accommodation for a period of six (6) months.
(c) Termination by Company for
Cause. Upon delivery of written notice of termination for
“Cause” from Company to Executive, Executive’s employment shall
terminate. Termination for “Cause” shall mean termination based on
(i) Executive’s failure or refusal to perform, in any material respect, his
duties faithfully and diligently in accordance with this
Agreement; (ii) gross negligence, recklessness or malfeasance in
the performance of Executive’s duties; (iii) Executive committing any
criminal act; (iv) Executive committing any act of fraud or other material
misconduct resulting or intending to result directly or indirectly in gain or
personal enrichment at the expense of Company; (v) Executive willfully
engaging in any conduct relating to the business of Company that could
reasonably be expected to have a materially detrimental effect on the business
or financial condition of the Company; (vi) misconduct which materially
discredits or damages Company, or violates Company’s policies or procedures,
after Company has notified Executive of the actions Company deems to constitute
non-compliance; (vii) Executive materially breaches his obligations under
Sections 9 and 10 below, relating to confidential information, non-solicitation
and non-competition.
Termination for Cause pursuant to
subsections (i), (ii), (iv), or (v) of this Paragraph (c) of Section 6 shall not
take effect unless and until the Company complies with the provisions of this
paragraph. Executive shall be given written notice by the Company of
its intention to terminate him for Cause, stating in detail the particular
act(s) or failure(s) to act that constitute the grounds on which the proposed
termination for Cause is based. That written notice shall be given to
Executive within ninety (90) days of the Company’s learning of such act(s) or
failure(s) to act. Executive shall then have thirty (30) days after
receipt of such written notice to cure such conduct, to the extent such cure is
possible. If Executive fails to cure such conduct on or before the
end of the thirty (30) day period, Executive shall be terminated for
Cause. If Executive’s conduct is not curable, no notice need be given
by the Company before terminating Executive for Cause.
(d) Resignation for Good
Reason. Executive may terminate his employment with “Good
Reason” (as defined below) upon no fewer than thirty (30) days prior written
notice to the Company specifying the reason(s) for the
termination. Upon receipt of Executive’s notice of intent to
terminate his employment for Good Reason, Company shall have a right to cure the
alleged breach or other conduct alleged by Executive to constitute Good Reason
within the thirty (30) day period. For purposes of this Agreement,
“Good Reason” shall mean the termination by Executive of Executive’s employment
with the Company and all its affiliates and subsidiaries that are considered a
single employer within the meaning of Sections 414(b) and 414(c) of the Code
which is due to (i) a material diminution of Executive’s responsibilities, or
working conditions, or duties; (ii) a material diminution in the Executive’s
base salary; (iii) a material negative change in the terms or status of this
Agreement; or (iv) a relocation, without Executive’s consent, of the Executive’s
office more than 100 miles from its location at the commencement of this
Agreement; provided, however, the Executive shall provide written notice to the
Company of the initial existence of the condition causing the change in terms or
status no more than ninety (90) days after the change in terms or status occurs
and the Company shall have thirty (30) days to resolve the issue causing the
change in terms or status. If the Company resolves such issue, then
Executive’s employment shall not be subject to the Good Reason provisions of
this Agreement as to such issue.
(e) Resignation Without Good
Reason. Executive may terminate his employment without Good
Reason upon no fewer than thirty (30) days prior written notice to the Company.
Without Good Reason as used in this Agreement refers to any reason not included
as a Good Reason in section 6(d).
(f) Termination by Company
Without Cause. Executive’s employment shall terminate thirty
(30) days after written notice delivered to Executive of Company’s termination
of Executive’s employment for reason other than Death, Disability or
Cause.
7. Compensation Upon
Termination (Other than a Change in Control)
(a) If
Executive’s employment is terminated by Company for Cause, by Death or
Disability, or if Executive resigns Without Good Reason, Executive shall be
entitled to receive:
|
(i)
|
the Base Salary
through the date of termination;
|
|
(ii)
|
reimbursement for
any previously unreimbursed business expenses properly incurred and
documented by Executive in accordance with Company policy prior to the
date of Executive’s termination; and
|
|
(iii)
|
such Employee
Benefits, if any, as to which Executive may be entitled under the employee
benefit plans of the Company.
|
(b) If
Executive’s Employment is terminated by Company without Cause or by Executive
with Good Reason, Executive shall be entitled to:
|
(i)
|
the Base Salary
through the date of termination;
|
|
|
|
|
(ii)
|
reimbursement for
any previously unreimbursed business expenses properly incurred and
documented by Executive in accordance with Company policy prior to the
date of Executive’s termination;
|
|
|
|
|
(iii)
|
if Executive elects
to continue medical, dental, and vision coverage under the health care
continuation provisions of COBRA, Company shall reimburse Executive for
the related premium cost for employess and dependent coverage for a period
of twelve (12) months following Executive's date of termination of
employment.
|
|
|
|
|
(iv)
|
if Executive elects
to continue medical, dental, and vision coverage under the health care
continuation provisions of COBRA, Company shall reimburse Executive for
the related premium
|
(c) If
Executive’s Employment is terminated as a result of Company providing written
notice to Executive pursuant to Section 1 of this Agreement of Company’s
intention not to extend the term of the Agreement, Executive shall be entitled
to:
|
(i)
|
the Base
Salary through the end of the term;
|
|
(ii)
|
reimbursement for
any previously unreimbursed business expenses properly incurred and
documented by Executive in accordance with Company policy prior to the end
of the term;
|
|
(iii)
|
receive a lump sum
payment within sixty (60) days following Executive’s termination of
employment equal to (1) one times Executive’s Annual Base Salary at the
rate immediately in effect before the end of the
term.
|
8. Change in
Control.
(a) In
the event of “Change in Control” of Company, as defined in the Executive Change
in Control Severance Agreement to be executed on the date hereof (the “Change in
Control Agreement”) between the Company and Executive and attached hereto as
Exhibit A and incorporated by reference as if fully set forth herein, Executive
shall be entitled solely to the benefits, if any, available to him pursuant to
the Change in Control Agreement, and the benefits otherwise available under this
Agreement shall not apply.
9. Restrictive
Covenants.
(a) During
Executive’s employment and for a period of one (1) year following the
termination of Executive’s employment for any reason, Executive will not compete
directly with the Company anywhere in the world by rendering services or
providing assistance for himself or on behalf of any other person or entity, in
any line of business substantially similar to, or competitive with, the business
in which the Company is engaged or has made preparations to engage, as of the
termination date of Executive’s employment with the Company.
(b) Executive
agrees that during the period stated in subsection (a) above, he will not
(i) directly solicit or encourage in any manner the resignation of any
employee of the Company or any of its subsidiaries; or (ii) directly or
indirectly solicit or divert customers, vendors, or business of the Company or
any of its subsidiaries (provided that
Executive may deal with any such customers or vendors in any manner which does
not violate the provisions of subsection (a) above); or (iii) attempt to
influence, directly or indirectly, any person or entity to cease, reduce, alter,
or rearrange any business relationship with the Company or any of its
subsidiaries.
(c) Executive
acknowledges and agrees that he considers the restrictions set forth in this
Section 9 to be reasonable both individually and in the aggregate and that the
duration, geographic scope, extent and application of these restrictions are no
greater than is necessary for the protection of the Company’s legitimate
interests. It is the desire and intent of Executive and the Company
that the provisions of this Section 9 shall be enforced to the fullest extent
possible under the laws and public policies of the State of New
Jersey. The Company and Executive further agree that if any
particular provision or portion of this Section 9 shall be adjudicated to be
invalid or unenforceable, such adjudication shall apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made. The Company and Executive further agree that in
the event that any restriction herein shall be found to be void or unenforceable
but would be valid or enforceable if some part or parts thereof were deleted or
the period or area of application reduced, such restriction shall apply with
modification as may be necessary to make it valid and Executive and the Company
empower a court of competent jurisdiction to modify, reduce or otherwise reform
such provision(s) in such fashion as to carry out the parties’ intent to grant
the Company the maximum allowable protection consistent with the applicable law
and facts and the express exceptions contained herein.
(d) Without
limiting the foregoing, Executive will not be deemed to be in competition with
the Company by reason of his employment by an enterprise (“Subsequent Employer”)
whose businesses include both (i) activities that involve the Company
Technology (“Covered Business”); and (ii) activities that do not involve
the Company Technology (“Excluded Business”) upon satisfaction of the following
conditions: (A) Executive delivers to the Subsequent Employer a
copy of this Agreement or an extract thereof setting forth fully and completely
the restrictions set forth in this Section 9; (B) the Subsequent Employer
executes and delivers to the Company a written agreement in which, as a
condition to Executive’s employment, the Subsequent Employer
(1) acknowledges receipt of such restriction, (2) agrees to employ
Executive only in the Excluded Business, (3) agrees to cause the executive
in charge of the Covered Business to acknowledge such restrictions in writing
and agree that Executive will not be permitted to participate in the Covered
Business, (4) agrees to establish reasonable internal policies and
procedures to prevent violation of such restrictions or disclosure by Executive
to personnel engaged in the Covered Business, and (5) agrees that the
Company shall be entitled to enforce such agreement directly against the
Subsequent Employer; and (C) Executive and the Subsequent Employer perform
their obligations pursuant to this Agreement and such agreement.
10. Confidentiality. The Employee Proprietary
Information and Inventions Agreement dated December 6, 2006, between the Company
and Executive and attached hereto as Exhibit B and incorporated by reference as
if fully set forth herein.
11. Cooperation: Executive
agrees to cooperate on a reasonable basis in the truthful and honest prosecution
and/or defense of any claim in which the Company, its affiliates, and/or its
subsidiaries may have an interest (subject to reasonable limitations concerning
time and place), which may include without limitation making himself available
on a mutually agreed, reasonable basis to participate in any proceeding
involving the Company, its affiliates, and/or its subsidiaries, allowing himself
to be interviewed by representatives of the Company, its affiliates, and/or its
subsidiaries without asserting or claiming any privilege against the Company,
its affiliates, and/or its subsidiaries, appearing for depositions and testimony
without requiring a subpoena and without asserting or claiming any privilege
against the Company, its affiliates, and/or its subsidiaries, and producing
and/or providing any documents or names of other persons with relevant
information without asserting or claiming any privilege against the Company, its
affiliates, and/or its subsidiaries; provided that, if such services are
required after the end of any period during which he is eligible for severance
benefits, if any, the Company, its affiliates, and/or its subsidiaries shall
provide Executive with reasonable compensation for the time actually expended in
such endeavors and shall pay his reasonable expenses incurred at the prior and
specific request of the Company, its affiliates, and/or its
subsidiaries.
12. Remedies. Executive
acknowledges and agrees that the Company’s remedy at law for a breach or
threatened breach of the provisions of this Agreement would be inadequate and,
in recognition of this fact, in the event of a breach or threatened breach by
Executive of any provision of this Agreement, it is agreed that, in addition to
any available remedy at law, the Company shall be entitled to, without posting
any bond, specific performance, temporary restraining order, temporary or
permanent injunction, or any other equitable relief or remedy which may then be
available; provided, however, nothing herein shall be deemed to relieve the
Company of its burden to prove grounds warranting such relief nor preclude
Executive from contesting such grounds or facts in support
thereof. Nothing herein contained shall be construed as prohibiting
the Company from pursuing any other remedies available to it for such breach or
threatened breach hereof.
13. Applicable
Laws and Consent to Jurisdiction. The validity, construction,
interpretation, and enforceability of this Agreement shall be determined and
governed by the laws of the State of New Jersey without giving effect to the
principles of conflicts of law. For the purpose of litigating any dispute that
arises under this Agreement, the parties hereby consent to exclusive
jurisdiction of, and agree that such litigation shall be conducted in, any state
or federal court located in the State of New Jersey.
14. Severability.
The provisions of this Agreement are severable and if any one or more provisions
are determined to be illegal or otherwise unenforceable, in whole or in part,
the remaining provisions shall nevertheless be binding and
enforceable. The Parties agree that the covenants set forth herein
are reasonable. Without limiting the foregoing, it is the
intent of the parties that the covenants set forth herein be enforced to the
maximum degree permitted by applicable law. As such, the parties ask
that if any court of competent jurisdiction were to consider any provision of
this Agreement to be overly broad based on the circumstances at the time
enforcement is requested, that such court “blue pencil” the provision and
enforce the provision to the full extent that such court deems it to be
reasonable in scope.
15. Indemnification. The
Indemnification Agreement dated December 6, 2006, between the Company and
Executive, is attached hereto as Exhibit C and incorporated by reference as if
fully set forth herein.
16. Miscellaneous;
Waiver. Executive further agrees that this Agreement, together
with the Exhibits incorporated by reference as if fully set forth herein, sets
forth the entire employment agreement between the Company and Executive,
supersedes any and all prior agreements between the Company and Executive,
and shall not be amended or added to except in writing signed by the Company and
Executive. Executive understands that he may not assign his duties
and obligations under this Agreement to any other party and that the Company
may, at any time and without further action by or the consent of Executive,
assign this Agreement to any of its affiliated companies.
17. Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and the same
agreement.
18. Successors and
Assigns. This Agreement
shall be binding on the successors and heirs of Executive and shall inure to the
benefit of the successors and assigns of the Company.
19. Notices. Any
notice required or permitted hereunder shall be in writing and shall be
sufficiently given if personally delivered or if sent by registered or certified
mail, postage prepaid, with return receipt requested, addressed: (a)
in the case of the Company, to Columbia Laboratories, Inc., 000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, attn.: General Counsel, and (b) in the
case of Executive, to Executive's last known address as reflected in the
Company's records, or to such other address as Executive shall designate by
written notice to the Company. Any notice given hereunder shall be
deemed given at the time of receipt thereof by the person to whom such notice is
given.
20. Code
Section 409A Compliance. Executive acknowledges and agrees
that he has been advised that, before entering into this Agreement, he should
consult with his financial, legal or tax adviser to determine the risk to him of
the imposition of tax under Internal Revenue Code Section
409A. Executive shall have no claim against the Company with respect
to Code Section 409A. This Agreement is intended to comply with the
requirements of Code Section 409A and the treasury regulations and other
guidance issued thereunder, as in effect from time to time. To the
extent a provision of this Agreement is contrary to or fails to address the
requirements of Code Section 409A and related treasury regulations, this
Agreement shall be construed and administered as necessary to comply with such
requirements to the extent allowed under applicable treasury
regulations.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the dates set forth below.
| EXECUTIVE | COLUMBIA LABORATORIES, INC. |
| /s/ Xxxxx X. Xxxx | /s/ Xxxxxxx X. Xxxxxx |
| Xxxxx Xxxx | Xxxxxxx X. Xxxxxx, Chairman |
| Date: March 11, 2009 | Date: March 11, 2009 |
Exhibit
A
EXECUTIVE CHANGE IN CONTROL
SEVERANCE AGREEMENT
THIS EXECUTIVE CHANGE IN CONTROL
SEVERANCE AGREEMENT dated as of March 11, 2009 (as the same may be amended,
restated, supplemented or otherwise modified from time to time hereafter, this
“Agreement”), is entered into between Columbia Laboratories, Inc., a Delaware
corporation having its corporate offices at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx (“Columbia” or the “Company”), and Xxxxx Xxxx
(“Executive”).
WITNESSETH:
WHEREAS, the Company desires to create
a greater incentive for Executive to remain in the employ of the Company,
particularly in the event of any possible change or threatened change in control
of the Company; and
NOW THEREFORE, in partial consideration
of Executive’s future services to the Company and the mutual covenants contained
herein, the parties hereby agree as follows:
1. Termination Following A
Change in Control
(a) Qualifying
Termination. Executive shall be entitled to the compensation
and benefits listed in Paragraph 1(b), in addition to compensation and benefits
to which Executive would otherwise be entitled as of the date of termination, if
Executive’s employment with the Company is terminated either (i) by the Company
for any reason other than for Cause within 90 days before a Change in Control or
within one year following the occurrence of any Change in Control or successive
Change in Control or (ii) by Executive for Good Reason within one year following
the occurrence of any Change in Control or successive Change in Control and
Executive properly executes, and does not revoke or attempt to revoke, a valid
and reasonable release of claims against the Company, its affiliates and their
employees and agents.
(b) Compensation and
Benefits. Within ten business days after a Change in Control
event (or the last day of any period during which any release may be revoked by
Executive), the Company shall make a lump sum cash payment to Executive, subject
to any mandatory tax withholding, equal to one times Executive’s Base Salary and
Bonus for the year prior to the Change in Control plus a lump sum payment equal
to the value of the Fringe Benefits provided to Executive for the year prior to
the Change in Control.
2. Definitions.
(a) Bonus. “Bonus”
shall mean the greater of (i) the bonus, if any, paid to Executive in the year
prior to the Qualifying Termination, (ii) the bonus, if any, paid to Executive
in the year prior to the Change in Control, or (iii) the Executive’s target
bonus at the time of the Change in Control.
(b) Base
Salary. “Base Salary” shall mean the greater of (i) the
annual rate of base salary in effect for Executive at the time of the Qualifying
Termination or (ii) the annual rate of base salary in effect for Executive at
the time of the Change in Control.
(c) Cause. “Cause”
shall mean termination based on (i) gross negligence, recklessness or
malfeasance in the performance of Executive’s duties; (ii) Executive
committing any criminal act; (iii) Executive committing any act of fraud or
other material misconduct resulting or intending to result directly or
indirectly in gain or personal enrichment at the expense of Company;
(iv) Executive willfully engaging in any conduct relating to the business
of Company that could reasonably be expected to have a materially detrimental
effect on the business or financial condition of the Company;
(v) misconduct which materially discredits or damages Company, or violates
Company’s policies or procedures, after Company has notified Executive of the
actions Company deems to constitute non-compliance; (vi) Executive
materially breaches Executive’s obligations relating to confidential
information, non-solicitation and non-competition.
(d) Change In
Control. “Change in Control” shall have occurred if
(a) there shall have consummated (i) any consolidation or merger of
Company in which Company is not the continuing or surviving entity or pursuant
to which shares of Company’s common stock would be converted to cash, securities
or other property, other than a merger of Company in which the holders of
Company’s common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving entity immediately
after the merger, or (ii) any sale, lease, exchange or transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the company; or (b) the stockholders of the Company
approve a plan or proposal for the liquidation or dissolution of the Company; or
(c) any person (as that term is used in Sections 13(d) and 14(d)(z) of the
Securities and Exchange Act, as amended (the “Exchange Act”)) shall become a
beneficial owner (within the meaning of Rule 13d-2 under the Exchange Act) of
40% or more of Company’s outstanding common stock; or (d) during any period
of two consecutive years, individuals who at the beginning of such period
constitute the entire Board shall cease for any reason to constitute a majority
thereof unless the election, or the nomination for election by Company’s
stockholders, of each new director was approved by a vote of at least 60% of the
directors eligible to vote who were directors at the beginning of the
period.
(e) Good
Reason. For purposes of this Agreement, “Good Reason” shall
mean the termination by Executive of Executive’s employment with the Company and
all its affiliates and subsidiaries that are considered a single employer within
the meaning of Sections 414(b) and 414(c) of the Code which is due to (i) a
material diminution of Executive’s responsibilities, or working conditions, or
duties; (ii) a material diminution in the Executive’s base salary; (iii) a
material negative change in the terms or status of this Agreement; or (iv) a
relocation, without Executive’s consent, of the Executive’s office more than 100
miles from its location at the commencement of this Agreement; provided,
however, the Executive shall provide written notice to the Company of the
initial existence of the condition causing the change in terms or status no more
than ninety (90) days after the change in terms or status occurs and the Company
shall have thirty (30) days to resolve the issue causing the change in terms or
status. If the Company resolves such issue, then Executive’s
employment shall not be subject to the Good Reason provisions of this Agreement
as to such issue.
3. Applicable
Laws and Consent to Jurisdiction. The validity, construction,
interpretation, and enforceability of this Agreement shall be determined and
governed by the laws of the State of New Jersey without giving effect to the
principles of conflicts of law. For the purpose of litigating any dispute that
arises under this Agreement, the parties hereby consent to exclusive
jurisdiction of, and agree that such litigation shall be conducted in, any state
or federal court located in the State of New Jersey.
4. Severability.
The provisions of this Agreement are severable and if any one or more provisions
are determined to be illegal or otherwise unenforceable, in whole or in part,
the remaining provisions shall nevertheless be binding and
enforceable.
5. Miscellaneous;
Waiver. Executive further agrees that this Agreement sets
forth the entire Agreement between the Company and Executive with respect to the
subject matter herein, supersedes any and all prior agreements between the
Company and Executive with respect to the subject matter herein, and shall not
be amended or added to except in writing signed by the Company and
Executive. Executive understands that Executive may not assign
Executive’s duties and obligations under this Agreement to any other party and
that the Company may, at any time and without further action by or the consent
of Executive, assign this Agreement to any of its affiliated
companies.
6. Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and the same
agreement.
7. Successors and
Assigns. This Agreement
shall be binding on the successors and heirs of Executive and shall inure to the
benefit of the successors and assigns of the Company.
8. Notices. Any
notice required or permitted hereunder shall be in writing and shall be
sufficiently given if personally delivered or if sent by registered or certified
mail, postage prepaid, with return receipt requested, addressed: (a)
in the case of the Company, to Columbia Laboratories, Inc., 000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, attn.: General Counsel, and (b) in the case of
Executive, to Executive's last known address as reflected in the Company's
records, or to such other address as Executive shall designate by written notice
to the Company. Any notice given hereunder shall be deemed given at
the time of receipt thereof by the person to whom such notice is
given.
9. Code
Section 409A Compliance. Executive acknowledges and agrees
that he has been advised that, before entering into this Agreement, he should
consult with his financial, legal or tax adviser to determine the risk to him of
the imposition of tax under Internal Revenue Code Section
409A. Executive shall have no claim against the Company with respect
to Code Section 409A. This Agreement is intended to comply with the
requirements of Code Section 409A and the treasury regulations and other
guidance issued thereunder, as in effect from time to time. To the
extent a provision of this Agreement is contrary to or fails to address the
requirements of Code Section 409A and related treasury regulations, this
Agreement shall be construed and administered as necessary to comply with such
requirements to the extent allowed under applicable treasury
regulations.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first set forth above.
| EXECUTIVE | COLUMBIA LABORATORIES, INC. |
| /s/ Xxxxx X. Xxxx | /s/ Xxxxxx X. Xxxxx |
| Xxxxx X. Xxxx | By: Xxxxxx X. Xxxxx |
| Its: President and Chief Executive Officer |
Exhibit
B
EMPLOYEE
PROPRIETARY INFORMATION
AND
INVENTIONS AGREEMENT
This Employee Proprietary Information
and Inventions Agreement (the "Agreement") is made as of December 6, 2006,
between Xxxxx Xxxx (referred to below as “I”, “My”, “Myself”, or “Me”) and
Columbia Laboratories, Inc., having an office at 000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, XX 00000 (referred to below together with its subsidiaries and
affiliates as the "Company").
RECITALS
A. The
Company is engaged in a continuous program of research, development, production,
distribution, and marketing with respect to its present and future business;
and
B. I
understand that My employment with the Company creates a relationship of
confidence and trust between the Company and Me with respect to any information:
(a) applicable to the business of the Company, or (b) applicable to the business
of any client or customer of the Company, that may be made known to Me by the
Company, any client or customer of the Company, or learned by Me during the
period of My employment. I understand that this information constitutes a very
valuable asset of the Company.
NOW, THEREFORE, in consideration of My
employment by the Company and the salary and other employee benefits I will
receive from the Company for My service, which in all cases are subject to
Section 10(a) of this Agreement, I hereby agree as follows:
1. Proprietary
Information. The Company possesses and will come to possess
information that has been created, discovered or developed, or has otherwise
become known to the Company (including without limitation, information created,
discovered, developed or made known by or to Me arising out of My employment by
the Company), and/or in which property rights have been assigned or otherwise
conveyed to the Company, which information has commercial value in the business
in which the Company is engaged. All of the aforementioned
information is hereinafter called "Proprietary Information." Any information
disclosed to Me or to which I have access (whether I or others originated it)
during the time I am employed by the Company, that the Company or I reasonably
consider Proprietary Information or that the Company treats as Proprietary
Information, will be presumed to be Proprietary Information.
By way of illustration, but not
limitation, Proprietary Information includes trade secrets, processes, formulae,
data and know-how, improvements, inventions, techniques, marketing plans,
strategies, forecasts, customer lists, and finance and business
systems.
(a) Company as Sole
Owner. I agree and acknowledge that all Proprietary
Information, and all Inventions (defined below in Section 6(a) of this
Agreement), shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents and trade secrets
and any other rights in connection therewith.
(b) Assignment of Rights;
Obligation of Confidentiality. I hereby assign to the Company
any rights I may have or acquire in all Proprietary Information. At
all times during My employment by the Company and at all times after termination
of such employment, I will keep in confidence and trust all Proprietary
Information and, except as I may be authorized to make disclosure in the
ordinary course of performing My duties as an employee of the Company, I will
not disclose, sell, use, lecture upon or publish any Proprietary Information or
anything relating to it without the prior written consent of the
Company.
2. No
Competition. I agree that during the period of My employment
by the Company I will not, without the Company's prior written consent, engage
in any employment or other activity for any person, company or entity engaged in
any business that is competitive with the Company's business.
3. Other Proprietary
Rights. All documents, data, records, apparatus, equipment,
chemicals, molecules, organisms, and other physical property, whether or not
pertaining to Proprietary Information, furnished to Me by the Company or
produced by Me or others in connection with My employment shall be and remain
the sole property of the Company and shall be returned promptly to the Company
as and when requested by the Company. Should the Company not so
request, I shall return and deliver all such property upon termination of My
employment by Me or the Company for any reason and I will not take with Me any
such property or any reproduction of such property upon such
termination.
4. No
Solicitation. I agree that for a period of one (1) year
following termination of My employment, I will not solicit or in any manner
encourage any employee of the Company to leave the Company's
employ.
6. Obligations Regarding
Inventions.
(a) I
will promptly disclose to the Company, or any persons designated by it, and will
not use Myself or disclose to anyone else at any time during or after My
employment without the prior written consent of the Company, all improvements,
inventions, formulae, processes, techniques, know-how and data (whether or not
they can be patented, trademarked or copyrighted), made, conceived, reduced to
practice or learned by Me, either alone or jointly with others, during the
period of My employment, which are related to or useful in the business of the
Company, or which the Company would be interested in, or result from tasks
assigned to Me by the Company, or result from use of any premises owned, leased
or contracted for by the Company (all said improvements, inventions, formulae,
processes, techniques, know-how, and data initiated or developed during My
employment shall be collectively hereinafter called "Inventions"); such
disclosure shall continue after termination of My employment with the Company
with respect to any Invention, which in all cases are subject to Section 6(c) of
this Agreement.
(b) Company Sole Owner of Patent
Rights. I will promptly and fully disclose the existence and
describe the nature of any such Invention to the Company in writing and without
request. I agree that all Inventions shall be the sole property of the Company
and its assigns, and the Company and its assigns shall be the sole owner of all
patents, copyrights, trade secrets, and other intellectual property rights
(collectively, "Patent Rights") in connection therewith. I will, with respect to
any such Invention, keep current, accurate and complete records that will belong
to the Company and will be kept stored on the Company premises while I am
employed by the Company and shall be turned over to the Company immediately upon
termination of My employment.
(c) Assignment of Inventions and
Patent Rights; Duty to Cooperate. I hereby assign to the
Company any rights I may have or acquire in all Inventions. I further
agree as to all Inventions and Proprietary Information to assist the Company in
every proper way (but at the Company's expense) to obtain and from time to time
enforce Patent Rights regarding the Inventions or Proprietary Information in any
and all countries, and to that end I will execute all documents for use in
applying for and obtaining such patents or copyrights thereon and enforcing
same, as the Company may desire, together with any assignments thereof to the
Company or entities or persons designated by it. I agree further that
these obligations to assist the Company in obtaining and enforcing Patent Rights
in any and all countries shall continue beyond the termination of My employment,
in return for which assistance after termination the Company shall
compensate Me at a reasonable rate for time actually spent by Me at the
Company's request on such assistance.
6. Prior Inventions
List. [Please
initial one of the following two entries.]
_____ As
a matter of record, I have attached hereto a complete list of all inventions or
improvements relevant to the subject matter of My employment by the Company
which have been made or conceived or first reduced to practice by Me alone or
jointly with others prior to My employment by the Company which I desire to
remove from the operation of this Agreement; and I warrant that such list is
complete.
__JM_ No
such list is attached to this Agreement, and I represent that I have made no
such inventions or improvements at the time of signing this
Agreement.
7. No Breach of
Confidentiality. I represent that My performance of all terms
of this Agreement and that My employment by the Company does not and will not
breach any obligation of confidentiality that I have to others, which existed
prior to My employment by the Company. I have not brought or used,
and will not bring with Me to the Company or use any equipment, supplies,
facility or trade secret information of any former employer or any other person,
which information is not generally available to the public, unless I have
obtained written authorization for their possession and use, and promptly
provided such written authorization to the Company. I have not
entered into, and I agree I will not enter into, any agreement either written or
oral in conflict with this Agreement.
8. Injunctive
Relief. I acknowledge and agree that the Company’s remedy at
law for a breach or threatened breach of any of the provisions of this Agreement
would be inadequate and, in recognition of that fact, in the event of any such
breach or threatened breach, I agree that, in addition to its remedy at law, the
Company shall be entitled to equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy that may then be available. Nothing herein
contained shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach.
9. Not Debarred. I
warrant and represent that I have never been, and am not currently an individual
who has been, debarred by the United States Food and Drug Administration (“FDA”)
pursuant to 21 U.S.C. §336a (a) or (b) (“Debarred Individual”) from providing
services in any capacity to a person that has an approved or pending drug
product application. I further warrant and represent that I have no
knowledge of any FDA investigations of, or debarment proceedings against, Me or
any person or entity with which I am, or have been, associated, and I will
immediately notify the Company if I become aware of any such investigations or
proceedings during the term of My employment with the Company.
10. Miscellaneous
Provisions.
(a) Employment. Nothing
in this Agreement shall alter My at will employee status or be construed to
create a specific term of employment or a promise of continued employment.
Either I or the Company may terminate the employment relationship for any reason
at any time, with or without notice.
(b) Enforceability. If
one or more of the provisions contained in this Agreement shall, for any reason,
be held to be excessively broad as to scope, activity, subject or otherwise, so
as to be unenforceable at law, such provision or provisions shall be construed
by the appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with then applicable law. If any
provision of this Agreement shall be declared invalid, illegal or unenforceable,
such provision shall be severed and all remaining provisions shall continue in
full force and effect.
(c) Assignment. This
Agreement is not assignable by Me without the written consent of the Company,
which consent may be withheld for any reason or no reason. In light
of the very personal and critical nature of this Agreement, I recognize that it
is unlikely such consent would ever be granted.
(d) Entire
Agreement. This Agreement contains the entire agreement
between Me and the Company with respect to the subject matter of this Agreement
and supersedes all prior or contemporaneous oral or written agreements,
statements, representations, or understandings between Me and the Company, or
any employee of the Company. This Agreement may be amended only by a written
instrument signed by Me and the Company.
(e) Effective
Date. This Agreement shall be effective as of the first day of
My employment by the Company, as affirmed or reaffirmed by my signature
below.
(f) Binding
Effect. This Agreement shall be binding upon Me, My heirs,
executors, assigns and administrators and shall inure to the benefit of the
Company, its successors and assigns.
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without regard to its rules
on conflicts of law.
| COLUMBIA LABORATORIES, INC. | EMPLOYEE |
| By: /s/ Xxxxxx X. Xxxxx | /s/ Xxxxx X. Xxxx |
| Signature | |
| Name: Xxxxxx X. Xxxxx | |
| Xxxxx X. Xxxx | |
| Title: President & Chief Executive Officer | |
Exhibit
C
INDEMNIFICATION
AGREEMENT
This Agreement is made and entered into
this 6th day of
December, 2006 (“Agreement”) by and between Columbia Laboratories, Inc., a
Delaware corporation (“Corporation”) and Xxxxx Xxxx (“Indemnitee”).
WHEREAS the Board of Directors (the
“Board”) has determined that the best interests of the Corporation require that
persons serving as directors of, and in other capacities for, the Corporation
receive better protection from the risk of claims and actions against them
arising out of their service to and activities on behalf of such corporations;
and
WHEREAS, this Agreement is a supplement
to and in furtherance of Article VI of the amended and restated by-laws of the
Corporation, any rights granted by the Certification of Incorporation of the
Corporation and any resolutions adopted pursuant thereto and shall not be deemed
to be a substitute therefore nor to diminish or abrogate any rights of the
Indemnitee thereunder; and
WHEREAS, Indemnitee is willing to
serve, continue to serve and take on additional service for or on behalf of the
Corporation on the condition that Indemnitee be indemnified according to the
terms of this Agreement;
NOW, THEREFORE, in consideration of the
premises and the covenants contained herein, the Corporation and Indemnitee do
hereby covenant and agree as follows:
Section
1. Definitions.
For purposes of this
Agreement:
(a) “Change
in Control” shall be deemed to have occurred if (a) there shall have
consummated (i) any consolidation or merger of Company in which Company is
not the continuing or surviving entity or pursuant to which shares of Company’s
common stock would be converted to cash, securities or other property, other
than a merger of Company in which the holders of Company’s common stock
immediately prior to the merger have the same proportionate ownership of common
stock of the surviving entity immediately after the merger, or (ii) any
sale, lease, exchange or transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the company; or
(b) the stockholders of the Company approve a plan or proposal for the
liquidation or dissolution of the Company; or (c) any person (as that term
is used in Sections 13(d) and 14(d)(z) of the Securities and Exchange Act, as
amended (the “Exchange Act”)) shall become a beneficial owner (within the
meaning of Rule 13d-2 under the Exchange Act) of 40% or more of Company’s
outstanding common stock; or (d) during any period of two consecutive
years, individuals who at the beginning of such period constitute the entire
Board shall cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by Company’s stockholders, of each new
director was approved by a vote of at least 50% of the directors eligible to
vote who were directors at the beginning of the period.
(b) “Disinterested
Director” means a director of the Corporation who is not and was not a party to
the Proceeding in respect of which indemnification is sought by
Indemnitee.
(c) “Effective
Date” means the date first written above.
(d) “Expenses”
mean all reasonable attorneys’ fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other
disbursements and expenses of the type customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(e) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Corporation or
Indemnitee in any other matter material to either such party, or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Corporation or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(f) “Proceeding”
means an action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative, except one initiated by an Indemnitee
pursuant to Section 11 of this Agreement to enforce Indemnitee’s rights under
this Agreement.
Section
2. Services by Indemnitee.
Indemnitee agrees to serve as an
officer or director of the corporation, and, at its request, as a director,
officer, employee, agent or fiduciary of certain other corporations and
entities. Indemnitee may at any time and for any reason resign from
any such position (subject to any other contractual obligation or any obligation
imposed by operation of law).
Section
3. Indemnification - General.
The Corporation shall indemnify, and
advance Expenses to, Indemnitee as provided in this Agreement to the fullest
extent permitted by applicable law in effect on the date hereof and to such
greater extent as applicable law may thereafter from time to time
permit. The rights of Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in the
other Sections of this Agreement.
Section
4. Proceeding Other Than Proceedings by or in the Right of the
Corporation.
Indemnitee shall be entitled to the
rights of indemnification provided in this Section if, by reason of Indemnitee’s
employment or service as an officer or director, Indemnitee is, or is threatened
to be made, a party to any threatened, pending or completed Proceeding, other
than a Proceeding brought by or in the right of the Corporation to procure a
judgment in its favor. Pursuant to this Section, Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and amounts paid in
settlement, actually and reasonable incurred by Indemnitee or on Indemnitee’s
behalf in connection with any such Proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal Proceeding,
had no reasonable cause to believe Indemnitee’s conduct was
unlawful.
Section
5. Proceedings by or in the Right of the
Corporation.
Indemnitee shall be entitled to the
rights of indemnification provided in this Section if, by reason of his
Corporate Status, Indemnitee is, or is threatened to be made, a party to any
threatened, pending or completed Proceeding brought by or in the right of the
Corporation to procure a judgment in its favor. Pursuant to this
Section, Indemnitee shall be indemnified against Expenses, judgments, penalties,
fines and amounts paid in settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with any such Proceeding if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the
Corporation. Notwithstanding the foregoing, no indemnification
against such Expenses shall be made in respect of any claim, issue or matter in
any such Proceeding as to which Indemnitee shall have been adjudged to be liable
to the Corporation if applicable law prohibits such indemnification unless the
Court of Chancery of the State of Delaware, or the court in which such
Proceeding shall have been brought or is pending, shall determine that
indemnification against Expenses may nevertheless be made by the
Corporation.
Section
6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful.
Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s
employment or service as an officer or director, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Corporation shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection with each successfully resolved claim, issue or
matter. For the purposes of this Section and without limiting the
foregoing, the termination of any claim, issue or matter in any such Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
Section
7. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s
employment or service as an officer or director, a witness in any Proceeding,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
Section
8. Advancement of Expenses.
The Corporation shall advance all
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within thirty (30) days after the receipt by the
Corporation of a statement or statement from Indemnitee requesting such advance
or advances from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses.
Section
9. Procedure for Determination of Entitlement to
Indemnification.
(a) To
obtain indemnification under this Agreement in connection with any Proceeding,
and for the duration thereof, Indemnitee shall submit to the Corporation a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly
upon receipt of any such request for indemnification, advise the board in
writing that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to Section 9(a)
hereof, a determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in such
case: (i) if a Change in Control shall have occurred, by
Independent Counsel (unless Indemnitee shall request that such determination be
made by the Board or the stockholders in the manner provided for in clauses (ii)
or (iii) or this Section 9(b)) in written opinion to the Board, a copy of which
shall be delivered to Indemnitee; (ii) if a Change of Control shall not
have occurred, (A) by the Board by a majority vote of a quorum consisting
of Disinterested Directors, or (B) if a quorum of the Board consisting of
Disinterested Directors is not obtainable, or even if such quorum is obtainable,
if such quorum of Disinterested Directors so directs, either (x) by
Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee, or (y) by the stockholders of the Corporation, as
determined by such quorum of Disinterested Directors, or a quorum of the Board,
as the case may be; or (iii) as provided in Section 10(b) of this
Agreement. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within thirty (30) days
after such determination. Indemnitee shall cooperate with the persons
or entity making such determination with respect to Indemnitee’s entitlement to
indemnification, including providing to such persons or entity upon request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including
attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with
the persons or entity making such determination shall be borne by the
Corporation (irrespective of the determination as to Indemnitee’s entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) If
required, Independent Counsel shall be selected as
follows: (i) if a Change of Control shall not have occurred,
Independent Counsel shall be selected by the Board by a majority vote of a
quorum consisting of Disinterested Directors and the Corporation shall give
written notice to Indemnitee advising Indemnitee of the identity of Independent
Counsel so selected; or (ii) if a Change of Control shall have occurred,
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall
request that such selection be made by the Board, in which event (i) shall
apply), and Indemnitee shall give written notice to the Corporation advising it
of the identity of Independent Counsel so selected. In either event,
Indemnitee or the Corporation, as the case may be, may, within seven (7) days
after such written notice of selection shall have been given, deliver to the
Corporation or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that
Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 1 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such
written objection is made, Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has determined that such objection
is without merit. If, within twenty (20) days after submission by
Indemnitee of a written request for indemnification pursuant to Section 9(a)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Corporation or Indemnitee may petition the Court of Chancery of the
State of Delaware, or any court in the State of New Jersey in which such
petition would be cognizable, for resolution of any objection which shall have
been made by the Corporation or Indemnitee to the other’s selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by such court or by such other person as such court shall
designate, and the person with respect to whom an objection is so resolved or
the person so appointed shall act as Independent Counsel under Section 9(b)
hereof. The Corporation shall pay any and all reasonable fees and
expenses incurred by such Independent Counsel in connection with its actions
pursuant to this Agreement, and the Corporation shall pay all reasonable fees
and expenses incident to the procedures of this Section 9(c) regardless of the
manner in which such Independent Counsel was selected or
appointed. Upon the due commencement date of any judicial proceeding
pursuant to Section 11(a)(iii) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then
prevailing).
Section
10. Presumptions and Effects of Certain
Proceedings.
(a) If
a Change in Control shall have occurred, in making a determination with respect
to entitlement to indemnification hereunder, the person or persons or entity
making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 9(a) of this Agreement, and the
Corporation shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any determination
contrary to that presumption.
(b) The
person or entity empowered or selected under Section 8 of this Agreement shall
make the determination of whether Indemnitee is entitled to indemnification as
soon as practicable after receipt by the Corporation of the request
therefore.
(c) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Indemnitee to indemnification or create
a presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was unlawful.
Section
11. Remedies of Indemnitee.
(a) In
the event that (i) a determination is made pursuant to Section 9 or 10 of
this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 8 of this Agreement, (iii) the determination of entitlement to
indemnification is made by Independent Counsel pursuant to Section 9 of this
Agreement and such determination shall not have been made and delivered in a
written opinion within ninety (90) days after receipt by the Corporation of the
request for indemnification, (iv) or (iv) payment of indemnification
is not made within thirty (30) days after such determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to
have been made pursuant to Sections 9 or 10 of this Agreement, Indemnitee shall
be entitled to an adjudication in an appropriate court of the State of Delaware
or the State of New Jersey , of Indemnitee’s entitlement to such indemnification
or advancement of Expenses. Indemnitee shall commence such proceeding
seeking an adjudication or an award within one hundred eighty (180) days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 11(a).
(b) In
the event that a determination shall have been made pursuant to Section 9 of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section shall be conducted in all respects
as a de novo trial and
Indemnitee shall not be prejudiced by any reason of that adverse
determination. If a Change of Control shall have occurred, in any
judicial proceeding commenced pursuant to this Section the Corporation shall
have the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If
a determination shall have been made or deemed to have been made pursuant to
Section 9 or 10 of this Agreement that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section, absent (i) a
misstatement by Indemnitee or Indemnitee’s representative of a material fact, or
an omission of any material fact necessary to make Indemnitee’s or Indemnitee’s
representative’s statement not materially misleading, in connection with the
request for indemnification, or (ii) prohibition of such indemnification
under applicable law.
(d) The
Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to this Section that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall stipulate in any such
court that the Corporation is bound by all the provisions of this
Agreement.
(e) In
the event that Indemnitee, pursuant to this Section, seeks a judicial
adjudication of Indemnitee’s rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the Corporation and
shall be indemnified by the Corporation against, any and all expenses (of the
kinds described in the definition of Expenses) actually and reasonably incurred
by Indemnitee in such judicial adjudication, but only if Indemnitee prevails
therein. If it shall be determined that Indemnitee is entitled to
receive part but not all of the indemnification or advancement of expenses
sought, the expenses incurred by Indemnitee in connection with such judicial
adjudication shall be appropriately prorated.
Section
12. Non-Exclusivity; Survival of Rights; Insurance
Subrogation.
(a) The
rights of indemnification and to receive advancement of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the certificate of
incorporation or by-laws of the Corporation, any agreement, a vote of
stockholders or resolution of directors or otherwise. No amendment,
alteration or repeal of this Agreement or any provision hereof shall be
effective as to any Indemnitee with respect to any action taken or omitted by
such Indemnitee in Indemnitee’s employment or service as an officer or director
prior to such amendment, alteration or repeal.
(b) To
the extent that the corporation maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, agents or
fiduciaries of the corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person
serves at the request of the Corporation, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for any such director, officer, employee, agent or
fiduciary under such policy or policies.
(c) In
the event of any payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
(d) The
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee
has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
Section
13. Duration of Agreement.
This Agreement shall continue until and
terminate upon the later of: (a) ten (10) years after the date
that Indemnitee shall have ceased to serve as a director, officer, employee,
agent or fiduciary of the Corporation or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which Indemnitee
served at the request of the Corporation; (b) the final termination of all
pending Proceedings in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by Indemnitee pursuant to Section 11 of this
Agreement. This Agreement shall be binding upon the Corporation and
its successors and assigns and shall inure to the benefit of Indemnitee and
Indemnitee’s heirs.
Section
14. Severability.
If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal
unenforceable) shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section
15. Exception to Right of Indemnification or Advancement of
Expenses.
Except as provided in Section 11(e),
Indemnitee shall not be entitled to indemnification or advancement of Expenses
under this Agreement with respect to any Proceeding, or any claim therein,
brought or made by Indemnitee against the Corporation. For the
purposes of this Section 15, a Proceeding in the right of the Corporation shall
not be deemed to constitute a Proceeding brought or made by the
Corporation.
Section
16. Identical Counterparts.
This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Section
17. Headings.
The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction
thereof.
Section
18. Modification and Waiver.
No supplement, modification or
amendment to this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
Section
19. Notice by Indemnitee.
Indemnitee agrees promptly to notify
the Corporation in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
| COLUMBIA LABORATORIES, INC. | |
| /s/ Xxxxx X. Xxxx | By: /s/ Xxxxxx X. Xxxxx |
| Xxxxx X. Xxxx, Indemnitee | Name: Xxxxxx X. Xxxxx |
| Title: President, and Chief Executive Officer |
I,
Xxxxxxx XxXxxxx, Secretary, certify that the Board of Directors has authorized
the Corporation to enter into this Agreement by a resolution adopted at a
meeting on November 30, 2006.
/S/ Xxxxxxx
XxXxxxx
Xxxxxxx XxXxxxx
Secretary
