AMENDMENT OF EMPLOYMENT AGREEMENT
Exhibit 99.3
AMENDMENT OF EMPLOYMENT AGREEMENT
AMENDMENT dated the 13th day of March, 2006, of the Amended and Restated Employment Agreement
dated March 13, 2006 between Xxxx Pharmaceuticals, Inc. (“BPI”) and Xxxx Laboratories, Inc.
(“BLI-DE”), Delaware corporations having their principal executive offices at 000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, parties of the first part, and Xxxx Xxxxxx (the
“Employee”).
WITNESSETH:
WHEREAS, the parties amended and restated as of March 13, 2006, the employment agreement that
was entered into between the Employee and BPI’s predecessor, Xxxx Laboratories, Inc., a New York
corporation, as of October 28, 1999 and that was amended and restated as of August 16, 2002 and
October 24, 2002 (as amended and restated as of March 13, 2006, the “Employment
Agreement”), and
WHEREAS, the parties wish to further amend the Employment Agreement to reflect the Employee’s
promotion to President and Chief Operating Officer of BPI and thereby provide an inducement for him
to remain in BPI’s employ and serve in such capacity;
NOW, THEREFORE, in consideration of the mutual promises set forth in the Employment Agreement
as further amended hereby, and other good and valuable consideration receipt of which is hereby
acknowledged, BPI, BLI-DE and the Employee hereby agree that the Employment Agreement is further
amended, effective January 10, 2006, as follows:
1. The first sentence of paragraph 3(a) of the Employment Agreement is amended to read as
follows:
“(a) Throughout the term of this Agreement, the Employee agrees to remain in the
employ of the Company, and the Company agrees to employ the Employee, as the President and
Chief Operating Officer of BPI and as the President of BLI-DE, reporting to the Chairman
of the Board and Chief Executive Officer of BPI (the “CEO”). As the President and
Chief Operating Officer of BPI and President of BLI-DE, the Employee shall be responsible
for managing and supervising, and shall have responsibility for the day-to-day management
of, the business operations of BPI, BLI-DE and such other subsidiaries of BPI as BPI shall
determine from time to time, and for coordinating the activities of BPI’s proprietary and
generic pharmaceutical businesses, subject only to the authority of the CEO and the Board
of Directors of BPI (the “BPI Board”),
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and shall have all of the powers, authority, duties and responsibilities he has had
prior to the Commencement Date and all of the powers, authority, duties and
responsibilities usually incident to the position and role of President and Chief
Operating Officer in public companies that are comparable in size, character and
performance to BPI (including its interests in BLI-DE and the other Affiliates) and the
position and role of President of companies that are comparable in size, character and
performance to BLI-DE, and such other reasonable duties, consistent with the position of
such a President and Chief Operating Officer and President, respectively, as may be
lawfully assigned to him by the CEO or the BPI Board.”
2. Subparagraph 5(d)(iii) of the Employment Agreement is amended to read as follows:
“(iii) he is removed from, or not elected or reelected to, the BPI Board, the BLI-DE
Board, the board of directors of any successor to BPI or BLI-DE, or the office, title or
position of President and Chief Operating Officer of BPI or President of BLI-DE, and BPI
and its Affiliates do not have Good Cause for doing so; or”
3. Subparagraph 5(d)(vi) of the Employment Agreement is amended to read as follows:
“(vi) a Change in Control occurs and as a result thereof either (A) equity securities
of BPI cease to be publicly-traded, or (B) the Employee is not elected or designated to
serve as the sole President and Chief Operating Officer of BPI or its survivor and as the
sole President of BLI-DE or its survivor in the Change in Control; or”
4. Paragraph 13(d) of the Employment Agreement is amended by substituting the phrase
“President and Chief Operating Officer of BPI and President of BLI-DE” for the phrase “Senior Vice
President of BPI and President and Chief Operating Officer of BLI-DE” wherever the latter phrase
appears in that paragraph.
5. Except as amended above, the Employment Agreement shall remain in full force and effect and
is in all respects hereby ratified and confirmed.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above
written.
| XXXX PHARMACEUTICALS, INC. | ||||||||
| By: | /s/ [ILLEGIBLE]
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| Its: | ||||||||
[SEAL] Attest: |
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/s/ [ILLEGIBLE]
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| XXXX LABORATORIES, INC. | ||||||||
| a Delaware corporation | ||||||||
| By: | /s/ [ILLEGIBLE]
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| Its: | ||||||||
[SEAL] Attest: |
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/s/ [ILLEGIBLE]
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| /s/ [ILLEGIBLE]
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