EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
AGREEMENT
dated
October 3, 2007 by and between NexMed, Inc., a Nevada corporation (the
"Company") and Xxxxxx X. Xxx (the "Executive").
WHEREAS,
the Company desires to continue to employ Executive and to enter
into
an
agreement (the "Agreement") embodying the terms of such employment;
WHEREAS,
the Company considers it essential to its best interests and the best interests
of its stockholders to xxxxxx the continued employment of Executive by the
Company during the term of this Agreement; and
WHEREAS,
Executive is willing to accept and continue her employment on the terms
hereinafter set forth in this Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein and
for
other good and valuable consideration, the parties agree as follows:
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1.
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Term
of Employment.
Subject to earlier termination in accordance with the provisions
of
Section 6 of this Agreement, Executive shall be employed by the Company
pursuant to the terms of this Agreement for a period commencing on
June
18, 2007 (the "Effective Date") and ending on June 18, 2010 (the
"Initial
Term of Employment"); provided,
however,
that,
the term of employment under this Agreement (the "Employment Term")
shall
renew automatically for one-year terms on each successive June 19th,
unless and until either party gives at least 60 days advance written
notice to the other that the Employment Term should not be automatically
extended. The Executive shall be employed “at will” and her employment can
be terminated at any time by either the Company or the Executive,
subject
to the provisions of Section 6
below.
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2.
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Position.
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(a)
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During
the Employment Term, Executive shall be employed by the Company as
President and Chief Executive Officer, and shall have such duties,
authority, and responsibility as are commensurate with her position,
subject to the direction of the Company's Board of Directors (the
"Board").
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(b)
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During
the Employment Term, Executive shall devote all of her business time
and
attention to the performance of her duties hereunder faithfully and
to the
best of her abilities and shall not undertake employment with, or
participate in, the conduct of the business affairs of any other
person,
corporation, or entity; provided,
that,
nothing shall preclude Executive from (i) with the prior approval
of the
Board, serving as a director, trustee or member of another business
organization or (ii) participating in the affairs of any recognized
charitable organizations, or in any community affairs, of Executive's
choice.
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(c)
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Executive's
duties hereunder shall be performed for the Company worldwide, with
principle place of business at the Company's headquarters in East
Windsor,
New Jersey.
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3.
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Compensation.
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(a)
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Base
Salary.
During the Employment Term, the Company shall pay Executive a base
salary,
subject to increase at the discretion of the Board of Directors of
the
Company (the "Board"), at the annual rate of $300,000
(the "Base Salary"), payable in regular installments in accordance
with
the Company's usual payroll
practices.
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(b)
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Bonus.
With respect to each calendar year during the Employment Term, Executive
shall be eligible to earn an annual bonus award (the "Bonus") in
an amount
not to exceed 50% of Executive’s annual Base Salary. The amount of the
Bonus shall be determined by the Board, or the Compensation Committee
of
the Board (the "Compensation Committee"), in its sole discretion,
based
upon the achievement by the Company of objective performance measures
established and determined by the Board or the Compensation Committee
in
consultation with Executive no later than the end of the first month
of
such calendar year. The Bonus with respect to each calendar year
in the
Employment Term shall be paid as promptly as practicable following
the
delivery of the Company's audited financial statements for such year,
but
not later than March 15 of the calendar year following the calendar
year
in which the Bonus is earned. Unless otherwise stated herein, the
Bonus
shall not accrue until the date on which it is paid, and Executive
must be
employed on the date the Bonus is paid in order to receive the
Bonus.
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(c)
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Stock
Option Grants.
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(i)
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On
December 15, 2005, the Compensation Committee approved a grant to
Executive of an option to purchase an aggregate of 180,000 shares
of the
Company's Common Stock (the "Option") based on the closing price
of the
Company’s Common Stock on December 14, 2005, of ninety-two cents ($.92)
per share. The Option vests in three equal installments (33.33% of
the
Stock Option Shares, which represents 60,000 Stock Option Shares)
on
December 31, 2006, December 31, 2007, and December 31, 2008, respectively,
assuming continuous and uninterrupted employment until such dates.
The
Company will provide the Executive the ability to perform a cashless
exercise of all Stock Options, in accordance with the vesting
schedule.
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(ii)
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The
Option is subject to The NexMed, Inc. Stock Option and Long-Term
Incentive
Compensation Plan (the "Option Plan") and the applicable stock option
agreement.
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(iii)
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In
addition to the foregoing, the Compensation Committee may recommend
to the
Board that additional stock options be granted to Executive in accordance
with the terms and subject to the conditions of the Option
Plan.
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(iv)
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All
of Executive's outstanding but unvested stock options shall vest
immediately upon the occurrence of a Change in Control (as defined
in
Appendix A hereto).
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(d)
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Stock
Grants.
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(i)
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On
January 24, 2007, the Compensation Committee approved a grant to
Executive
of an aggregate of 150,000 shares of the Company’s Restricted Common
Stock. This Grant vests in three equal installments (33.33% of the
Stock
Grants, which represents 50,000 Stock Shares) on December 31, 2007,
December 31, 2008, and December 31, 2009, respectively, assuming
continuous and uninterrupted employment until such
dates.
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(ii)
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On
August 24, 2007 the Compensation Committee approved a grant to Executive
of an aggregate of 850,000 shares of the Company’s Common Stock. This
Grant vests in installments as follows: 100,000 Stock Shares upon
execution of this Agreement; 250,000 Stock Shares on June 18, 2008;
250,000 Stock Shares on June 18, 2009 and 250,000 Stock Shares on
June 18,
2010, assuming continuous and uninterrupted employment until such
dates.
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(iii)
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All
of Executive’s outstanding but unvested stock grants provided under this
Section shall vest immediately upon the occurrence of a Change in
Control
(as defined in Appendix A of the
Agreement).
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4.
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Employee
Benefits.
During the Employment Term, Executive shall be eligible for inclusion,
to
the extent permitted by law, as a full-time employee of the Company
or any
of its subsidiaries, in any and all of the following plans, programs,
and
policies in effect at the time: (i) pension, profit sharing, savings,
and
other retirement plans and programs, (ii) life and health (medical,
dental, hospitalization, short-term and long-term disability) insurance
plans and programs, (iii) stock option and stock purchase plans and
programs, (iv) accidental death and dismemberment protection plans
and
programs, (v) travel accident insurance plans and programs, (vi)
vacation
policy (Executive shall have six weeks of vacation per calendar year),
and
(vii) other plans and programs sponsored by the Company or any subsidiary
for employees or executives generally, including any and all plans
and
programs that supplement any or all of the foregoing types of plans
or
programs.
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5.
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Business
Expenses and Perquisites.
The Company shall reimburse to Executive, or pay directly, all reasonable
expenses incurred by Executive in connection with the business of
the
Company, and its subsidiaries and affiliates, including but not limited
to
business-class travel, reasonable accommodations, and entertainment,
subject to documentation in accordance with the Company's policy.
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6.
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Termination.
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(a)
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By
the Company for Cause.
The Company may, for Cause, terminate Executive's employment hereunder
at
any time by written notice to Executive. For purposes of this Agreement,
the term "Cause" shall mean Executive's (i) engaging in fraud against
the
Company or misappropriation of funds of the Company, (ii) disregard
or
failure to follow specific and reasonable directives of the Board,
(iii)
willful failure to perform her duties as President and Chief Executive
Officer of the Company, (iv) willful misconduct resulting in material
injury to the Company, (v) violation of the terms of the Confidential
Information and Intellectual Property Agreement between Executive
and
NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company,
dated
October 4, 2000 (the "Intellectual Property Agreement") attached
hereto as
Appendix "B", (vi) conviction of, or Executive's plea of guilty or
no
contest to, a felony or any crime involving as a material element
fraud or
dishonesty, or (vii) material breach (not covered by clauses (i)
through
(vi) of this paragraph) of any of the other provisions of this Agreement;
provided,
that,
in the case of subclauses (ii), (iii) or (vii), Cause shall not exist
if
the act or omission deemed to constitute Cause is cured (if curable)
by
Executive within thirty (30) days after written notice thereof to
Executive by the Company. For purposes of the foregoing, no act,
or
failure to act, on Executive's part shall be considered "willful"
unless
done, or omitted to be done, by Executive other than in good faith,
and
without reasonable belief that her action or omission was in furtherance
of the interests of the Company.
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In
the
event of the termination of Executive's employment under this Section 6(a)
for
Cause, the Employment Term shall end on the day of such termination and the
Company shall pay to Executive, no later than the payroll cycle following
Executive’s termination, in one lump sum: (i) any accrued but unpaid Base
Salary, less applicable deductions, including salary in respect of any accrued
and accumulated vacation due to Executive at the date of such termination;
and
(ii) any amounts owing, but not yet paid, pursuant to Section 5
hereof.
Except
as
specifically set forth in Section 9 hereof, the Company shall have no further
obligations to Executive under this Agreement.
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(b)
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Disability
or Death.
If Executive should suffer a Permanent Disability, the Company may
terminate Executive's employment hereunder upon ten (10) or more
days'
prior written notice to Executive. If Executive should pass away
during
the term of this Agreement, Executive’s employment shall be deemed
terminated on her date of death. For purposes of this Agreement,
a
"Permanent Disability" shall be deemed to have occurred only when
Executive has qualified for benefits (including satisfaction of any
applicable waiting period) under the Company's or a subsidiary's
long-term
disability insurance arrangement (the "LTD Policy"). In the event
of the
termination of Executive's employment hereunder by reason of Permanent
Disability or death, the Employment Term shall end on the day of
such
termination and the Company shall pay, no later than the payroll
cycle
following Executive’s termination, to Executive or Executive's legal
representative (in the event of Permanent Disability), or any beneficiary
or beneficiaries designated by Executive to the Company in writing,
or to
Executive's estate if no such beneficiary has been so designated
(in the
event of Executive's death), a single lump sum payment of: (i) any
accrued
but unpaid Base Salary, less applicable deductions, including salary
in
respect of any accrued and accumulated vacation, due to Executive
at the
date of such termination; (ii) any amounts owing, but not yet paid,
pursuant to Section 5 hereof.
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In
addition, upon a termination under this Section 6(b), and upon the satisfaction
of the conditions set forth herein: (1) Executive shall receive a pro rata
Bonus
for the calendar year in which such termination occurs, equal to the Bonus
she
would have received, to the extent all criteria for such a Bonus have been
met
(with the exception of the requirement that Executive be employed on the date
the Bonus is to be paid), for the calendar year of said termination multiplied
by a fraction, the numerator of which is the number of days in such year
preceding and including the date of termination, and the denominator of which
is
365. Said pro-rata Bonus shall be paid at the same time as the Bonus would
have
been paid had Executive remained employed by the Company through the date of
payment, but in any event, not later than March 15 of the calendar year
following the calendar year in which the Bonus is earned; (2) Executive shall
receive any unpaid Bonus for the calendar year preceding her termination, to
the
extent that all criteria for such bonus have been met (with the exception of
the
requirement that Executive be employed on the date the Bonus is to be paid).
Said Bonus shall be paid at the same time as the Bonus would have been paid
had
Executive remained employed by the Company through the date of payment; (3)
all
of Executive's outstanding but unvested stock options granted pursuant to
Section 3(c) of this Agreement shall vest immediately; and (4) all of
Executive’s outstanding but unvested restricted and common stock granted
pursuant to Section 3(d) of this Agreement shall vest immediately. The payment
of the Bonuses and the acceleration of Executive’s options and stock are
conditioned upon Executive (or her legal representative) signing a release
in
favor of the Company, as provided for in Section 6(f).
Except
as
specifically set forth in Section 9 hereof, the Company shall have no further
obligations to Executive under this Agreement.
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(c)
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By
the Company without Cause.
The Company may, without Cause, terminate Executive’s employment hereunder
at any time upon ten (10) or more days’ written notice to Executive. The
Company, in its sole discretion, may provide the Executive with ten
(10)
days’ pay in lieu of notice. In the event Executive’s employment is
terminated pursuant to this Section 6(c), the Employment Term shall
end on
the day of such termination and the Company shall pay to Executive,
no
later than the payroll cycle following Executive’s termination, in one
lump sum: (i) any accrued but unpaid Base Salary, less applicable
deductions, including salary in respect of any accrued and accumulated
vacation, due to Executive at the date of such termination, and (ii)
any
amounts owing, but not yet paid, pursuant to Section 5 hereof.
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In
addition, upon a termination under this Section 6(c) and upon the satisfaction
of the conditions set forth herein: (1) Executive shall receive a pro rata
Bonus
for the calendar year in which such termination occurs, equal to the Bonus
she
would have received, to the extent all criteria for such a Bonus have been
met
(with the exception of the requirement that Executive be employed on date the
Bonus is to be paid), for the calendar year of said termination multiplied
by a
fraction, the numerator of which is the number of days in such year preceding
and including the date of termination, and the denominator of which is 365.
Said
pro-rata Bonus shall be paid at the same time as the Bonus would have been
paid
had Executive remained employed by the Company through the date of payment,
but
in any event, not later than March 15 of the calendar year following the
calendar year in which the Bonus is earned; (2) Executive shall receive any
unpaid Bonus for the calendar year preceding her termination, to the extent
that
all criteria for such bonus have been met (with the exception of the Executive
being employed on the date the Bonus is to be paid). Said Bonus shall be paid
at
the same time as the Bonus would have been paid had Executive remained employed
by the Company through the date of payment; (3) all of Executive’s outstanding
but unvested stock options granted pursuant to Section 3(c) of this Agreement
shall vest immediately; (4) all of Executive’s outstanding but unvested
restricted and common stock granted pursuant to Section 3(d) of this Agreement
shall vest immediately; and (5) Executive shall receive severance payments
(the
“Severance”) for twelve (12) months, following the date of termination, in an
amount equal to Executive's annual Base Salary at the time of such termination,
and payable in regular installments in accordance with the Company’s usual
payroll practices beginning thirty (30) days following Executive’s date of
termination. The payment of the Bonuses and the Severance, as well as the
acceleration of Executive’s options and stock, are conditioned upon Executive
signing a release in favor of the Company, as provided for in Section
6(f).
Except
as
specifically set forth in Section 9 hereof, the Company shall have no further
obligations to Executive under this Agreement.
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(d)
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By
Executive for Good Reason.
If any of the events described below occurs during the Employment
Term,
Executive may terminate Executive's employment hereunder for Good
Reason
by written notice to the Company identifying the event or omission
constituting Good Reason not more than one (1) month following the
occurrence of such event and, in the case of subclauses (ii), (iii),
or
(iv) below, a failure by the Company to cure such act or omission
within
thirty (30) days after receipt of such written notice. In the event
that
Executive elects to terminate employment pursuant to this Section
6(d),
the Employment Term and Executive's employment hereunder will be
terminated effective as of the later of thirty-one (31) days after
the
Company's receipt of Executive's notice of termination or thirty-one
(31)
days after the event, and Executive's termination for Good Reason
pursuant
to this Section 6(d) shall be treated for all purposes as a termination
without Cause pursuant to Section 6(c) and the provisions of Section
6(c)
shall apply to such termination. The occurrence of any of the following
events without Executive's consent shall permit Executive to terminate
Executive's employment for "Good Reason" pursuant to this Section
6(d):
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(i)
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A
"Change in Control" (as defined in Appendix A hereto) occurs;
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(ii)
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The
failure by the Company to observe or comply in any material respect
with
any of the material provisions of this
Agreement;
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(iii)
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A
material diminution in Executive's
duties;
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(iv)
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The
assignment to Executive of duties that are materially inconsistent
with
Executive’s duties or that materially impair Executive’s ability to
function as the President and Chief Executive Officer of the
Company;
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(v)
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The
relocation of Executive’s primary office from a location that is more than
50 miles from both (a) the Company’s executive offices at the time of
relocation and (b) Executive’s primary residence at the time of such
relocation; or
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(vi)
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The
Company providing Executive with a notice of non-renewal of this
Agreement
by the Company under Section 1.
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Except
as
specifically set forth in Section 9 hereof, the Company shall have no further
obligations to Executive under this Agreement.
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(e)
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By
Executive without Good Reason.
Executive may terminate the Employment Term and Executive's employment
hereunder at any time without Good Reason upon thirty (30) days advance
written notice to the Company. In the event Executive's employment
is
terminated pursuant to this Section 6(e), the Company shall pay to
Executive, no later than ten (10) days after the last day of Executive's
employment, in one lump sum, the sum of (i) any accrued but unpaid
Base
Salary, less applicable deductions, including salary in respect of
any
accrued and accumulated vacation, due to Executive at the date of
such
termination, and (ii) any amounts owing, but not yet paid, pursuant
to
Section 5 hereof.
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Except
as
specifically set forth in Section 9 hereof, the Company shall have no further
obligations to Executive under this Agreement.
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(f)
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Release.
Notwithstanding any other provision of this Agreement to the contrary,
Executive acknowledges and agrees that any and all payments and benefits
to which Executive is entitled under this Section 6(b), 6(c), or
6(d),
with the exception of accrued salary, accrued vacation payments,
and
payments pursuant to Section 5 of this Agreement, are conditioned
upon and
subject to Executive's first executing a Confidential Separation
Agreement
including a general waiver and release (and the expiration of any
associated revocation period), in such reasonable and customary form
as
shall be prepared by the Company, of all claims Executive may have
against
the Company, and related entities and individuals.
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7.
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Required
Postponement for Specified
Services.
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(a)
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Specified
Executive Delay.
Notwithstanding anything in this Agreement to the contrary, if required
by
section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”)
and if Executive is considered a Specified Executive (as defined
herein)
and payment of any amounts under this Agreement is required to be
delayed
for a period of six months after separation from service pursuant
to
Section 409A of the Code, payment of such amounts shall be delayed
as
required by section 409A, and the accumulated amounts shall be paid
in a
lump sum payment within five days after the end of the six-month
period.
If Executive dies during the postponement period prior to the payment
of
benefits, the amounts withheld on account of section 409A shall be
paid to
the personal representative of Executive’s estate within 60 days after the
date of Executive’s death.
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(b)
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“Specified
Executive”
shall mean an employee who, at any time during the 12-month period
ending
on the identification date, is a “specified employee” under section 409A
of the Code, as determined by the Compensation Committee of the Board
or
its delegate. The determination of Specified Executives, including
the
number and identity of persons considered officers and the identification
date, shall be made by the Compensation Committee or its delegate
in
accordance with the provisions of section 409A of the Code and the
regulations issued thereunder.
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8.
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No
Mitigation; Employee Benefit Plans.
Executive shall not be required to mitigate amounts payable to her
under
this Agreement by seeking other employment or otherwise, and there
shall
be no offset against amounts payable to Executive under this Agreement
on
account of Executive's subsequent employment. Amounts payable to
Executive
under this Agreement shall not be offset by any claims that the Company
may have against Executive, and such amounts payable to Executive
under
this Agreement shall not be affected by any other circumstances,
including, without limitation, any counterclaim, recoupment, defense,
or
other right that the Company may have against Executive or others.
Provided,
however,
that,
payments made to Executive as a result of the termination of Executive's
employment hereunder shall not be considered as includible compensation
with respect to any employee benefit plans maintained by the Company,
except to the extent otherwise required by law.
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9.
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Indemnification.
In the event that Executive is made a party or threatened to be made
a
party to any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (a "Proceeding"), by reason of
Executive's employment with, or serving as an officer of, the Company,
the
Company shall indemnify and hold Executive harmless, and defend Executive
to the fullest extent authorized by the laws of the state in which
the
Company is incorporated, as the same exist and may hereafter be amended,
against any and all claims, demands, suits, judgments, assessments,
and
settlements (collectively the "Claims"), including all expenses incurred
or suffered by Executive in connection therewith (excluding, however,
any
legal fees incurred by Executive for Executive's own counsel, except
as
otherwise provided in this Section 9, and excluding any Proceedings
initiated by executive), and such indemnification shall continue
as to
Executive even after Executive is no longer employed by the Company
hereunder, and shall inure to the benefit of Executive's heirs, executors,
and administrators; provided,
however,
that,
Executive promptly gives written notice to the Company of any such
Claims
(although Executive's failure to promptly give notice shall not affect
the
Company's obligations under this Section 9 except to the extent that
such
failure prejudices the Company or its ability to defend such Claims).
The
Company shall have the right to undertake, with counsel or other
representatives of its own choosing, the defense or settlement of
any
Claims. In the event that the Company shall fail to notify Executive,
within ten days of its receipt of Executive's written notice, that
the
Company has elected to undertake such defense or settlement, or if
at any
time the Company shall otherwise fail to diligently defend or pursue
settlement of such Claims, then Executive shall have the right to
undertake the defense, compromise, or settlement of such Claims,
in which
event the Company shall hold Executive harmless from any legal fees
incurred by Executive for Executive's counsel. Neither Executive
nor the
Company shall settle any Claims without the prior written consent
of the
other, which consent shall not be unreasonably withheld or delayed.
In the
event that the Company submits to Executive a bona fide settlement
offer
from the claimant of Claims (which settlement offer shall include
as an
unconditional term thereof the giving by the claimant or the plaintiff
to
Executive a release from all liability in respect of such Claims),
and
Executive refuses to consent to such settlement, then thereafter
the
Company's liability to Executive for indemnification hereunder with
respect to such Claims shall not exceed the settlement amount included
in
such bona fide settlement offer, and Executive shall either assume
the
defense of such Claims or pay the Company's attorneys' fees and other
out-of-pocket costs incurred thereafter in continuing the defense
of such
Claims. Regardless of which party is conducting the defense of any
such
Claims, the other party, with counsel or other representatives of
its own
choosing and at its sole cost and expense, shall have the right to
consult
with the party conducting the defense of such Claims and its counsel
or
other representatives concerning such Claims and Executive and the
respective counsel or other representatives shall cooperate with
respect
to such Claims. The party conducting the defense of any such Claims
and
its counsel shall in any case keep the other party and its counsel
(if
any) fully informed as to the status of such Claims and any matters
relating thereto. Executive and the Company shall provide to the
other
such records, books, documents, and other materials as shall reasonably
be
necessary for each to conduct or evaluate the defense of any Claims,
and
will generally cooperate with respect to any matters relating thereto.
This Section 9 shall remain in effect after this Agreement is terminated,
regardless of the reasons for such termination. The indemnification
provided to Executive pursuant to this Section 9 shall not supersede
or
reduce any indemnification provided to Executive under any separate
agreement, or the By-Laws of the Company; in this regard, it is intended
that this Agreement shall expand and extend Executive's rights to
receive
indemnification.
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10.
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Withholding.
The Company shall have the right to deduct and withhold from all
payments
to Executive hereunder all payroll taxes, income tax withholding
and other
federal, state and local taxes and charges which currently are or
which
hereafter may be required by law to be so deducted and withheld.
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11.
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Restrictive
Covenants.
The restrictive covenants contained in the Confidential Information
and
Intellectual Property Agreement, signed by Executive on October 5,
2000
and attached hereto as Appendix B, including but not limited to,
Section
(2) (Confidential Information); Section 3 (Non-Solicitation of Employees);
and Section 4 (Non-Compete), are incorporated by reference as if
fully set
forth herein. Executive hereby reaffirms her obligations under that
agreement.
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12.
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Non-Assignability.
Executive's rights and benefits hereunder are personal to Executive,
and
shall not be alienated, voluntarily or involuntarily assigned, or
transferred.
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13.
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Binding
Effect.
This Agreement shall be binding upon the parties hereto, and their
respective assigns, successors, executors, administrators, and heirs.
In
the event the Company becomes a party to any merger, consolidation,
or
reorganization, this Agreement shall remain in full force and effect
as an
obligation of the Company or its successor(s) in interest. None of
the
payments provided for by this Agreement shall be subject to seizure
for
payment of any debts or judgments against Executive or Executive's
beneficiary or beneficiaries, nor shall Executive or any such beneficiary
or beneficiaries have any right to transfer or encumber any right
or
benefit hereunder.
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14.
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Entire
Agreement; Modification.
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(a)
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This
Agreement supersedes all prior agreements, with the exception of
the
Confidential Information and Intellectual Property Agreement, and
all
other agreements (or portions thereof) that deal with confidentiality
or
intellectual property. This Agreement sets forth the entire understanding
among the parties hereto with respect to the subject matter hereof,
may
not be changed orally, and may be changed only by an agreement in
writing
signed by the parties hereto.
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(b)
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Executive
acknowledges that from time to time, the Company may establish, maintain
and distribute manuals, handbooks or personnel policies, and officers
or
other representatives of the Company may make written or oral statements
relating to personnel policies and procedures. Such manuals, handbooks
and
statements are intended only for general guidance. No policies, procedures
or statements of any nature by or on behalf of the Company (whether
written or oral, and whether or not contained in any manual or handbook
or
personnel policies), and no acts or practices of any nature, shall
be
construed to modify this Agreement or to create express or implied
obligations of any nature to
Executive.
|
10
|
15.
|
Notices.
All notices and communications hereunder shall be in writing, sent
by
certified or registered mail, return receipt requested, postage prepaid;
by facsimile transmission, with proof of the time and date of receipt
retained by the transmitter; or by hand-delivery properly receipted.
The
actual date of receipt as shown by the return receipt therefore,
the
facsimile transmission sheet, or the hand-delivery receipt, as the
case
may be, shall determine the date on which (and, in the case of a
facsimile, the time at which) notice was given. All payments required
hereunder by the Company to Executive shall be sent postage prepaid,
or,
at Executive's election, shall be transferred to Executive electronically
to such bank account as Executive may designate in writing to the
Company,
including designation of the applicable electronic address. The foregoing
items (other than any electronic transfer to Executive) shall be
addressed
as follows (or to such other address as the Company and Executive
may
designate in writing from time to time):
|
To
the
Company:
NexMed,
Inc.
00
Xxxx
Xxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Fax:
000-000-0000
Attention:
Vice President of Finance and Chief Financial Officer
To
Executive:
Xxxxxx
X.
Xxx
000
Xxxxxxxxx Xxxxx
Xxxxx
000
PMB
000
Xxxx
Xxxxxxx, XX 00000
Fax:
000-000-0000
|
16.
|
Section
409A of the Code.
This Agreement is intended to comply with section 409A of the Code
and its
corresponding regulations, to the extent applicable. Notwithstanding
anything in this Agreement to the contrary, payments may only be
made
under this Agreement upon an event and in a manner permitted by section
409A of the Code, to the extent applicable. As used in the Agreement,
the
term “termination of employment” shall mean Executive’s separation from
service with the Company within the meaning of section 409A of the
Code
and the regulations promulgated thereunder. For purposes of section
409A,
the right to a series of payments under the Agreement shall be treated
as
a right to a series of separate payments. All reimbursements and
in-kind
benefits provided under the Agreement shall be made or provided in
accordance with the requirements of section 409A of the Code, including,
where applicable, the requirement that (i) any reimbursement shall
be for
expenses incurred during Executive’s lifetime (or during a shorter period
of time specified in this Agreement), (ii) the amount of expenses
eligible
for reimbursement, or in-kind benefits provided, during a calendar
year
may not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other calendar year, (iii) the
reimbursement of an eligible expense will be made on or before the
last
day of the calendar year following the year in which the expense
is
incurred, and (iv) the right to reimbursement or in-kind benefits
is not
subject to liquidation or exchange for another
benefit.
|
|
17.
|
Governing
Law; Jurisdiction.
This Agreement shall be governed by, and construed and enforced according
to, the domestic laws of the State of New Jersey without giving effect
to
the principles of conflict of laws thereof, or such principles of
any
other jurisdiction, which could cause the application of the substantive
law of any jurisdiction other than the State of New Jersey. The Company
and Executive agree that the state or federal courts of New Jersey
shall
have exclusive jurisdiction to hear and determine any dispute which
may
arise under this Agreement.
|
11
|
18.
|
Severability.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of
this Agreement, and each other provision of the Agreement shall be
severable and enforceable to the extent permitted by law.
|
|
19.
|
Headings.
The headings of the Sections hereof are provided for convenience
only and
are not to serve as a basis for interpretation or construction, and
shall
not constitute a part, of this Agreement.
|
|
20.
|
Signature
in Counterparts.
This Agreement may be signed in counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
|
IN
WITNESS WHEREOF, Executive has hereunto set her hand and the Company has caused
this Agreement to be executed in its name on its behalf, all as of the day
and
year first above written.
| /s/ Xxxxxx X. Xxx | ||
|
Xxxxxx X. Xxx
|
||
| NEXMED, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxx, III | |
|
Xxxxxx X. Xxxx, III |
||
|
Title:
Chairman Executive Compensation
Committee
of the Board of Directors
|
||
12
Appendix
A
Change
in Control
For
the
purpose of this Agreement, a "Change in Control" shall be deemed to have taken
place if:
A. Individuals
who, on the date hereof, constitute the Board (the "Incumbent Directors") cease
for any reason to constitute at least a majority of the Board, provided that
any
person becoming a director subsequent to the date hereof, whose election or
nomination for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named as a nominee
for director, without written objection to such nomination) shall be an
Incumbent Director; provided,
however,
that,
no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to directors
or
as a result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board shall be deemed
to
be an Incumbent Director;
B. Any
"Person" (as such term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934 (the "Exchange Act") and as used in Sections 13(d)(3) and 14(d)(2)
of the Exchange Act) is or becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of the Company's
then outstanding securities eligible to vote for the election of the Board
(the
"Voting Securities"); provided,
however,
that,
the
event described in this paragraph B shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (i) by the Company
or
any subsidiary of the Company in which the Company owns more than 25% of the
combined voting power of such entity (a "Subsidiary"), (ii) by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Subsidiary, (iii) by any underwriter temporarily holding the Company's Voting
Securities pursuant to a public offering of such Voting Securities, (iv)
pursuant to a Non-Qualifying Transaction (as defined in paragraph C immediately
below), (v) pursuant to any acquisition by Executive or by any Person which
is
an "affiliate" (within the meaning of 17 C.F.R. § 230.405) of Executive (an
"Excluded Person");
C. The
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or any of its Subsidiaries
that requires the approval of the Company's stockholders, whether for such
transaction or the issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business Combination: (i)
more
than 25% of the total voting power of (A) the corporation resulting from such
Business Combination (the "Surviving Corporation"), or (B) if applicable, the
ultimate parent corporation that directly or indirectly has beneficial ownership
of 100% of the voting securities eligible to elect directors of the Surviving
Company (the "Parent Corporation"), is represented by the Company's Voting
Securities that were outstanding immediately prior to such Business Combination
(or, if applicable, is represented by shares into which the Company's Voting
Securities were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same proportion
as the voting power of the Company's Voting Securities among the holders thereof
immediately prior to the Business Combination, (ii) no Person (other than (A)
any employee benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation or (B) an Excluded Person is
or
becomes the beneficial owner, directly or indirectly, of 25% or more of the
total voting power of the outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no Parent Corporation,
the
Surviving Corporation) and (iii) at least a majority of the members of the
board
of directors of the Parent Corporation (or, if there is no Parent Corporation,
the Surviving Corporation) following the consummation of the Business
Combination were Incumbent Directors at the time of the Board's approval of
the
execution of the initial agreement providing for such Business Combination
(any
Business Combination which satisfies all of the criteria specified in (i),
(ii)
and (iii) above shall be deemed to be a "Non-Qualifying Transaction");
App.
A-1
D. A
sale of
all or substantially all of the Company's assets, other than to an Excluded
Person;
E. The
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company; or
F. Such
other events as the Board may designate.
Notwithstanding
the foregoing, a Change in Control of the Company shall not be deemed to occur
solely because any person acquires beneficial ownership of more than 25% of
the
Company's Voting Securities as a result of the acquisition of the Company's
Voting Securities by the Company which reduces the number of the Company's
Voting Securities outstanding; provided,
that,
if
after such acquisition by the Company such person becomes the beneficial owner
of additional Company Voting Securities that increases the percentage of
outstanding Company Voting Securities beneficially owned by such person, a
Change in Control of the Company shall then occur.
App.
A-2
Appendix
B
CONFIDENTIAL
INFORMATION AND
INTELLECTUAL
PROPERTY AGREEMENT
AGREEMENT
made as
of this 4th
day of
October 2000, by and between NEXMED
(U.S.A.), INC.,
a
Delaware corporation (the “Company”) and Xxxxxx Xxx (the
“Employee”).
WHEREAS:
(1) The
Employee is employed or about to be employed by the Company and the Company
requires that all of its employees, as a condition of employment by the Company,
enter into this Confidential Information and Intellectual Property Agreement
(the “Agreement”) or similar agreement, and would not be willing to employ the
Employee unless Employee enters into this Agreement; and
(2) The
Employee is willing to enter into this Agreement and to strictly adhere to
its
terms.
NOW,
THEREFORE,
in
consideration of the employment or the continuation of the employment of
the
Employee by the Company, the parties hereto agree as follows:
1. Representations.
Warranties and Acknowledgment of Employee.
(a) The
Employee hereby represents to the Company that, except to the extent
contemplated hereby or that the Employee has disclosed to the Company in
writing, the Employee is not bound by any agreement or any other previous
or
existing business relationship which conflicts with or prevents the full
performance of the Employee’s duties and obligations to the Company (including
the Employee’s duties and obligations under this or any other agreement with the
Company) during the Employee’s employment.
App.
B-1
(b) The
Employee understands that the Company does not desire to acquire from the
Employee any trade secrets, know-how or confidential business information
the
Employee may have acquired from others. Therefore, the Employee agrees during
his employment with the Company, the Employee will not improperly use or
disclose any proprietary information or trade secrets of any former or
concurrent employer, or any other person or entity with whom the Employee
has an
agreement or to whom the Employee owes a duty to keep such information in
confidence.
2. Confidential
Information.
(a) For
purposes of this Agreement, “Confidential Information” means all information,
heretofore or hereafter developed or used by the Company (whether or not
reduced
to written, electronic, magnetic or other tangible form) acquired in any
way by
the Employee during the course of the Employee’s employment with the Company and
which is proprietary to the Company or which relates to any third party for
which the Company is under an obligation to keep confidential, concerning
the
scientific, medical and pharmaceutical research, product development, products,
operations, marketing and business plans, activities, employees, consultants,
licensors, licensees, customers, business affairs of the Company or the
Company’s licensees, distributors, business partners or customers, including,
without limitation, (i) all information concerning trade secrets of the Company,
including computer programs, system documentation, special hardware, product
hardware, related software development, computer systems, source code, object
code, manuals, formulae, processes, methods, machines, compositions, ideas,
improvements or inventions of the Company; (ii) all sales and financial
information concerning the Company; (iii) all customer and supplier lists;
(iv)
all drawings, sketches, models, samples, data, technology, methodologies,
techniques, distribution plans, contractual arrangements, profits, sales,
pricing policies, operational methods, technical processes, other business
affairs and methods, plans for future developments and other technical and
business information relating to the business of the Company or the Company’s
licensees, distributors, business partners or customers and all trademarks,
domain names, copyrights and patents and applications thereof, all inventions,
processes, studies, reports, research records, market surveys and know-how
and
technical papers; and (v) all information in any way concerning the business
or
affairs of the Company or the Company’s licensees, distributors, business
partners or customers which was furnished to Employee by the Company or by
the
Company’s licensees, distributors, business partners or customers or otherwise
discovered by Employee during Employee’s employment with the
Company.
App.
B-2
(b) The
Employee acknowledges that it is the policy of the Company to maintain as
secret
and confidential all Confidential Information. The parties hereto recognize
that, by reason of Employee’s employment by the Company, the Employee has
acquired or will acquire access to Confidential Information. The Employee
recognizes that all such Confidential Information is and shall remain the
sole
property of the Company as its sole owner, free of any rights of the Employee
and acknowledges that the Company has a vested interest in assuring that
all
such Confidential Information remains secret and confidential. Therefore,
the
Employee agrees to exercise all reasonable precautions to protect the integrity
and confidentiality of Confidential Information in Employee’s possession and the
Employee agrees that at all times from and after the date hereof, Employee
will
not, directly or indirectly, without the prior written consent of the Company,
disclose to any person, firm, company or other entity any Confidential
Information, except to the extent that (i) any such Confidential Information
becomes generally available to the public or trade, other than as a result
of a
breach by the Employee of this Section 2(b), or (ii) any such Confidential
Information becomes available to the Employee on a non-confidential basis
from a
source other than the Company or any of its employees or advisors; provided,
that such source is not known by the Employee to be bound by a confidentiality
agreement with, or other obligation of secrecy to, the Company or another
party.
In addition, it shall not be a breach of the confidentiality obligations
hereof
if the Employee is required by law or legal process to disclose any Confidential
Information; provided, that in such case, the Employee shall (i) give the
Company the earliest notice possible that such disclosure is or may be required,
and (ii) cooperate with the Company, at the Company’s expense, in protecting, to
the maximum extent legally permitted, the confidential or proprietary nature
of
the Confidential Information which must be so disclosed. The obligations
of the
Employee under this Section 2(b) shall survive any termination of the Employee’s
employment by the Company.
(c) Upon
termination of the Employee’s employment with the Company, Employee covenants
and agrees to promptly return to the Company all items constituting or
containing Confidential Information (including all copies) including, without
limitation, all reports, data, documents, studies, notes, specifications,
or
information, and will not retain any copies of such items. Employee further
covenants and agrees to immediately return to the Company all equipment,
devices
or other property, which belong to the Company.
App.
B-3
3. Non-Solicitation
of Employees.
Employee
recognizes and acknowledges that it is essential for the proper protection
of
the business of the Company that Employee be restricted during the term of
Employee’s employment and for a one-year period following the termination of
Employee’s employment with the Company from soliciting or inducing any employee
of the Company to leave the employ of the Company or to encourage any other
business entity to solicit or seek to hire any employee of the Company.
Therefore, during the term of the Employee’s employment with the Company and for
a period of one (1) year following the termination of such employment, Employee
agrees that Employee shall not, directly or indirectly, hire or seek to hire
any
employee of the Company or assist or influence any business entity to hire
or
solicit for employment or take any other action which would encourage any
such
employee to terminate such employee’s employment by the Company. For purposes of
this Section 3, “employee” shall include any former employee of the Company
whose employment with the Company terminated less than one (1) year prior
to the
termination of the employment with the Company of the Employee.
4. Non-Compete.
In
order
to insure the protection of the Company’s interest in maintaining the
confidentiality of its Confidential Information and to otherwise provide
for the
proper protection of the business of the Company, the parties hereto agree
as
follows:
(a) Employee
acknowledges that the nature of the Company’s business renders it highly likely
that disclosure of the Employer’s Confidential Information, whether intentional
or inadvertent, will occur if Employee becomes employed by a competitor of
the
Company. Employee further acknowledges and agrees that Employee’s
responsibilities with respect to the Company’s business operations and
Employee’s access to the Confidential Information would render the Employee a
potentially formidable competitor throughout the world because the Employer’s
technology and trade secrets have worldwide application.
App.
B-4
(b) By
reason
of the foregoing, Employee agrees that during the term of Employee’s employment
by the Company and for a period of one (1) year following the termination
of
Employee’s employment with the Company, Employee will not, anyplace in the
world, own, become employed by or participate in (whether as an employee,
consultant, officer, director, agent, or in any other capacity which calls
for
the rendering of personal services, advice, acts of management, operation
or
control) any corporation, business, firm, or partnership, which competes,
directly or indirectly, with the Company (including, without limitation,
which
competes with respect to any products or services sold or marketed by the
Company) at the time of the termination of the Employee’s employment with the
Company. The foregoing shall not prohibit the Employee from owning in the
aggregate less than 2% of the common stock of any such competing company
that is
subject to the reporting obligation of the Securities and Exchange Act of
1934,
as amended. While the parties acknowledge that the restrictions set forth
in
this Section 4 are reasonable, in the event that a Court determines that
any of
the covenants or provisions of this Agreement are unenforceable by reason
of
duration, extent, geographical scope or otherwise, the parties contemplate
and
agree that the Court making such determination shall reduce or modify the
applicable provision and shall enforce such reduced or modified provision
to the
maximum extent deemed reasonable by the Court.
5. Intellectual
Property.
(a) The
Employee shall disclose and hereby assigns to the Company or its nominee
any and
all of his right, title and interest in any inventions, know-how, discoveries,
improvements, original works of authorship, designs, software, source code,
object code, programs, formulas, processes, developments, trade secrets,
trademarks, copyrights, service marks, logos and related proprietary information
and materials, whether patentable, copyrightable, subject to trademark
registration, or not (collectively referred to as the “Innovations”), which,
during the term of the Employee’s employment by the Company (the “Employment
Period”), the Employee may make or conceive either solely or jointly with others
and which:
| (i) | were made using equipment, supplies, facilities or trade secret information of the Company, or |
App.
B-5
| (ii) | were developed at least in part on the Company’s time, or |
|
(iii)
|
relate
at the time of conception or reduction to practice either to the
business
of the Company or to the Company’s or any of its affiliate’s actual or
demonstrably anticipated research or development,
or
|
|
(iv)
|
results
from any work the Employee performs or performed for the
Company.
|
All
such
Innovations and the benefits thereof shall be owned exclusively in perpetuity
by
the Company, free of any claims of the Employee.
(b) In
order
to allow the Company to claim rights in those Innovations which it owns or
owns
an interest in, the Employee shall promptly and fully disclose in writing
to the
Company the subject matter of every Innovation made or conceived by the
Employee, either solely or jointly with others, and all copyright, trademark,
domain name and patent applications naming the Employee as an author, co-author,
owner, co-owner, inventor or a co-inventor during the Employment Period whether
or not the same are required by this Agreement to be assigned to the Company.
Upon the request of the Company, the Employee shall make all reasonable efforts
to provide further disclosure of the aforesaid Innovations in which the Company
may reasonably claim ownership or for which the Company requires additional
information in order to determine its ownership rights. The Company shall
maintain in confidence all disclosures made hereunder of Innovations owned
by
the Employee.
App.
B-6
(c) An
Innovation shall be deemed to have been made during the Employment Period
if
during such period the Innovation was conceived, first actually reduced to
practice or otherwise put in a tangible form, and any patent application,
trademark application, domain name application or copyright application
reasonably relating to the business of the Company filed within six months
after
termination of the Employment Period shall be presumed to relate to an
Innovation which was made during the Employment Period unless the Employee
can
provide satisfactory evidence to the contrary.
(d) With
respect to any Innovations in which the Company owns an interest pursuant
to
this Section 5, the Employee agrees, during and after the Employment Period
and
upon the Company’s reasonable request, to execute, acknowledge, and deliver all
such further documents (which shall be prepared and paid for by the Company)
including applications for letters patent, trademark, domain name and/or
copyright registration, as may be necessary or, in the opinion of the Company,
advisable, to obtain letters patent and/or trademark, domain name or copyright
registration for Innovations in the United States and in any other country,
and
the right to claim priority based on the first filed patent application anywhere
in the world, and to vest title thereto in the Company and its successors,
assigns or nominees. The Company shall have the sole and exclusive right
to seek
copyright and/or patent and/or trademark, domain name or trade name protection
in its own name, as applicable, for any of the foregoing Innovations, and
to
seek any extensions or renewals thereof.
(e) Upon
the
termination of Employee’s employment with the Company, the Employee shall not
(a) take any of the Company’s property including, but not limited to, new
product information, blueprints, drawings, sketches, notebooks, computer
programs, formulas, data, listings, specifications and documents, or copies
thereof, and any items relating to or exhibiting the Company’s trade secrets or
Confidential Information or (b) use for any purpose the residuals resulting
from
access to or work with those items set forth in clause (a) hereof. The term
“residuals” means information in non-tangible form, including ideas, concepts,
know-how or techniques which may be retained in the mind of the Employee,
even
if the Employee made no effort to refresh the Employee’s recollection in
anticipation of or in conjunction with the use of said residuals. Further,
the
Employee shall not intentionally memorize the information so as to reduce
it to
a non-tangible form for the purpose of creating a residual.
(f) The
Employee agrees that any copyrightable works made by the Employee (solely
or
jointly with others) during the Employment Period that are otherwise covered
by
the terms hereof and that are prosecutable by copyright, shall be deemed
to be
“works made for hire,” as that term is defined in the United States Copyright
Act (17 U.S.C. section 101). Accordingly, the Company shall be the sole and
exclusive author and owner of all such copyrightable works and all right,
title
and interest therein and thereto, including, without limitation, all copyrights
(and all renewals and extensions thereof). To the extent that any of such
works
are not determined to be a work for hire, the Employee hereby irrevocably,
permanently, exclusively and absolutely assigns and grants to the Company
all
title, right and interest in and to such works, including, without limitation,
all copyrights therein (and all renewals and extensions thereof). The Company
shall have the sole and exclusive right to use and exploit such works, in
whole
or in part, in any media or technology known or hereafter devised, in
perpetuity. The Company’s rights in and to such works may be assigned and
licensed without limitation, and any such assignment or license shall be
binding
on the Employee and shall inure to the benefit of such assignee or licensee.
The
Employee shall have no rights of consultation and/or approval with respect
to
the Company’s exploitation, revision and/or use of such works. Moreover, the
Employee hereby waives, forfeits, relinquishes and abandons all “moral rights”
(as said term is commonly understood) and all rights of attribution and
integrity that the Employee may otherwise have had with respect to such works
through the universe, and all rights the Employee might otherwise have had
under
the Visual Artists Rights Act of 1990.
App.
B-7
(g) As
to any
Innovations in which the Employee owns an interest and the Company does not,
whether or not invented, created or acquired prior to the date hereof, the
Employee will not without the express written consent of the Company,
incorporate or use, or participate in the incorporation or use, of any such
Innovations into any products or services of the Company, and upon discovery
that any such Innovations have been, or are being, or are about to be,
incorporated or used in the Company’s products or services or a product or
service being designed or planned for or by the Company in violation of any
rights the Employee may claim, the Employee shall give the Company written
notice of that fact, together with such detail as is then known, within three
(3) days of such discovery. The Employee agrees that if, in breach of these
provisions, the Employee incorporates or uses, or participates in the
incorporation or use, of any such Innovations in any products or services
of the
Company, or upon discovery that such Innovations have been, are being or
are
about to be incorporated or used in a product or service of the Company,
or a
product or service being designed or planned for or by the Company, and/or
the
Employee does not give the Company written notice of that fact, together
with
such detail as is then known, within three (3) days of such discovery, then
to
that extent, the Company shall have a royalty-free, transferable, nonexclusive
license to make, have made, reproduce, use and sell and otherwise practice
any
such Innovations.
6. Power
of Attorney.
The
Employee, by execution of this Agreement, irrevocably constitutes and appoints
the Company with full power of substitution, to be the Employee’s true and
lawful attorney to execute, acknowledge, swear and file all instruments and
documents, and to take any action which shall be deemed to be necessary,
appropriate or desirable to effectuate this Agreement. The power of attorney
granted herein shall be deemed to be coupled with an interest and shall be
irrevocable and survive the occurrence of the death, disability or bankruptcy
of
the Employee.
7. Remedies
For Employee Violations.
Employee
acknowledges and agrees that the Company would be irreparably harmed if the
Employee violated any of the covenants and agreements set forth in this
Agreement or if any of such covenants and agreements were not specifically
enforced. Employee further agrees that the breach or threatened breach of
any of
the covenants or agreements set forth in Sections 2, 3, 4, or 5 of this
Agreement will result in continuing and irreparable harm to the Company for
which the Company would not have an adequate remedy at law. Therefore, the
Employee acknowledges and agrees that, in addition to any other remedy which
the
Company may have at law or in equity, the Company shall be entitled to
injunctive relief or other equitable remedies in the event of any such breach
or
threatened breach. The Employee further acknowledges and agrees that monetary
damages would be insufficient to compensate the Company in the event of a
breach
or threatened beach by the Employee of any of such covenants and agreements,
and
that the Company shall be entitled to specific performance of the Employee’s
obligations pursuant to such covenants or agreements.
App.
B-8
8.
Company’s
Affiliates
The
parties hereto acknowledge and agree that, for purposes of Sections 2, 3,
4, 5,
and 7 of this Agreement, the “Company” shall also refer to the Company’s
affiliated corporations, including, without limitation, NexMed (Holdings),
Inc.
9. Company’s
Telecommunications Systems
Employee
acknowledges and agrees that the Employee is being provided access to the
Company’s telecommunications, networking or information processing systems
(including without limitation, stored computer files, e-mail messages, and
voice
messages) for the Company’s business purposes and that Employee has no
expectation of privacy with respect to Employee’s use of any of such systems.
The Company may, without notice and in its sole discretion, monitor or review
Employee’s use of such systems (and any other Company-supplied systems or
equipment) and any files or messages created by or received by Employee through
use of such systems.
10. Employment
At Will.
The
parties hereto acknowledge that this Agreement is not an employment agreement
and that Employee is employed on an “at will” basis and that either Employee or
the Company may terminate Employee’s employment at any time, with or without
cause.
11. Miscellaneous.
This
Agreement:
(a) is
binding upon and shall inure to the benefit of the parties hereto, their
respective affiliates, heirs, executors, assigns, administrators, and
successors;
App.
B-9
(b) shall
be
governed by, and construed in accordance with, the internal laws of the State
of
New Jersey, without regard to the conflicts of laws provisions thereof;
(c) may
not
be amended or modified, except by a written instrument signed by the parties
hereto; and
(d) supersedes
and voids any and all prior understandings and agreements, whether written
or
oral, between the Company and the Employee relating to the subject matter
of
this Agreement, which contains the entire understanding of the parties relating
to such subject matter.
12. Jurisdiction.
Each of
the parties hereto consents and agrees to the jurisdiction of the New Jersey
Superior Court, Xxxxxx County, for the adjudication of any disputes as to
the
parties’ respective rights and obligations under this Agreement.
13. Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of the other provisions of this Agreement,
which shall remain in full force and effect.
IN
WITNESS WHEREORF,
the
parties hereto have executed this Agreement as of the date first above
written.
| Dated: | 10/5/2000 | /s/ Xxxxxx X. Xxx | |
| EMPLOYEE | |||
| Dated: | 10/4/2000 | NEXMED (U.S.A.), INC. | |
| By: /s/ Xxxxxx Xxxxxxxxx | |||
|
XXXXXX
XXXXXXXXX, VICE PRESIDENT
|
App.
B-10
