EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective the 1st day of December, 1994 by
and between ROYCE LABORATORIES, INC., a Florida corporation (hereinafter called
"Corporation), and Xxxxxx Xxxxx (hereinafter called "Employee").
W I T N E S S E T H:
WHEREAS, Corporation desires to obtain the services of Employee, and
Employee desires to become employed by Corporation, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT. Corporation hereby employs Employee and Employee hereby
accepts such employment upon the terms and conditions hereinafter set forth.
2. TERM OF EMPLOYMENT. The employment of Employee hereunder shall
commence on December 1, 1994 and shall terminate on November 30, 1995 unless
renewed or sooner terminated in the manner hereinafter provided. The employment
of Employee hereunder shall be automatically renewed on December 1, 1995, of
each subsequent year, unless terminated by the Corporation. Should the
corporation decide to terminate the employment of Employee, the Corporation
shall serve notice of its intention to terminate this Agreement not less than
thirty (30) days prior to such termination.
3. DUTIES OF EMPLOYEE. Employee agrees to serve the Corporation
faithfully to the best of his ability under the direction of the Board of
Directors and Officers of Corporation devoting his energies and skills, and all
of his business time to his duties hereunder. The principal place of employment
of Employee shall be at the offices of Corporation in Miami, Florida, or such
other place as the parties so designate.
It is the intention of the parties that the principal duties of
Employee shall be to serve as Executive Vice President-Sales and Marketing. In
such capacity, Employee shall perform such
1
services which are not inconsistent with his position, promote the interests of
Corporation and render such managerial, administrative and other services as are
normally associated with and incident to such position and as Corporation from
time to time may require of him.
4. REPRESENTATION BY EMPLOYEE. Employee hereby represents and warrants
to the Corporation and its shareholders as follows:
(a) There are no restrictions or covenants that the Employee is bound
to, which would preclude Employee from performing his obligations hereunder;
(b) Employee did not have a written employment agreement with his
previous employer;
(c) Employee has not entered into a non-competition agreement that
would preclude him from performing his obligations hereunder; and
(d) Employee will not unjustifiably interfere with any advantageous
contractually or business relationship that his previous employer may have; and
(e) Employee will devote his full time and use his best efforts on
behalf of the Corporation.
5. BASE SALARY. Corporation agrees to pay to Employee as compensation
for all the services to be rendered by Employee during the period from December
1, 1994 through November 30, 1995, a base salary as adjusted below ("Base
Salary") at the rate of $100,000.00 per annum, payable in accordance with the
normal payroll practices of the Corporation. Notwithstanding the foregoing, the
corporation may pay to Employee such other bonus at the sole discretion of the
Company's President.
6. BENEFITS. Employee shall be entitled to all benefits in accordance
with the normal benefit policies of the Corporation, therein, such benefits
shall include, but not be limited to, sick leave, policies of insurance covering
the life of Employee, and stock benefit plan as adopted by Corporation. In
addition, Employee shall be entitled to 3 weeks of paid vacation during each
employment year. Furthermore, Employee shall receive a car allowance in the
amount of $500.00 per month.
2
7. TERMINATION OF EMPLOYMENT.
(a) Notwithstanding anything to the contrary contained in this
Employment Agreement, the Corporation, by written notice to Employee, shall at
all times have the right to terminate this Employment Agreement and all
obligations herein, for cause. For the purposes of this Employment Agreement,
the term "Cause" shall mean any action of Employee or any failure to act on the
part of Employee which constitutes:
(i) Fraud, embezzlement or any felony in connection with the
Employee's duties as a principal employee of the Corporation or any subsidiary
or affiliate of the Corporation or willful misconduct, act or moral turpitude or
the commission of any other act which causes substantial economic or
reputational injury to the Corporation or any such subsidiary or affiliate; or
(ii) continuing conflict of interest or continuing failure to
follow reasonable directions or instructions of the Board of Directors of the
Corporation. A conflict of interest or a failure to follow directions of the
Board of Directors of the Corporation shall be deemed to be continuing if
Employee shall have received written notice thereof and shall not have
terminated the conflict or the failure within a period of thirty (30) days after
receipt of such notice.
(b) Notwithstanding anything to the contrary contained in this
Employment Agreement, the Corporation by written notice to the Employee shall at
all times have the right to terminate the employment of the Employee under this
Employment Agreement with one hundred eighty (180) days notice if Employee shall
experience a Total Disability. For purposes of this Employment Agreement, the
term "Total Disability" shall mean any mental or physical illness, condition,
disability or incapacity as shall:
(i) prevent executive from reasonably discharging his services
and employment duties hereunder;
(ii) be attested to in writing by a physician acceptable to the
Corporation; and
(iii) continue during any period of ninety (90) consecutive
calendar days or periods aggregating one hundred eighty (180) calendar days in
any calendar year. Total Disability shall be deemed to have occurred on the last
day of such applicable period.
3
(c) this Employment Agreement shall automatically terminate upon the
date of Employee's death.
8. REPRESENTATION AND WARRANTY OF EMPLOYEE. Employee hereby represents
and warrants that Employee is not a party to any agreement, contract or
understanding which would in any way restrict or prohibit him from undertaking
or performing any of his obligations hereunder in accordance with the terms and
conditions of this Employment Agreement.
9. REMEDIES. It is recognized and hereby acknowledged by the parties
hereto that a breach or violation by Employee of any of the provisions contained
in this Agreement will cause Corporation irreparable injury and damage, the
monetary amount of which may be virtually impossible to ascertain. By reason of
this, Employee acknowledges that Corporation shall be entitled, in addition to
any other remedies it may have at law, to the remedies of injunction, specific
performance and other equitable relief for a breach or violation by Employee of
any of the provisions of this Employment Agreement. This Paragraph 9 shall not,
however, be construed as a waiver of any of the rights which Corporation may
have for damages, or otherwise.
10. RESTRICTIVE COVENANTS; CONFIDENTIALITY.
(a) Employee acknowledges that the services rendered by him are of a
special and unusual character with a unique value to the Corporation, the loss
of which cannot adequately be compensated by damages in an action at law.
Accordingly, because of the confidential information to be obtained by or
disclosed to the Employee, and that as a material inducement to the Corporation
to enter into this Employment Agreement, Employee covenants and agrees as
follows:
(i) During Employee's employment he shall not without prior
written approval of the board of directors of corporation, directly or
indirectly engage in and shall have no interest in any business, firm,
partnership or corporation, whether as an employee, officer, director, agent,
security holder, creditor, consultant or otherwise, engage in any activity that
is the same or similar to, or competitive with any activity now engaged within
the primary business of the Corporation or which will be engaged in by the
Corporation. The foregoing will not prohibit Employee from investing in public
companies.
4
(ii) During Employee's employment he shall not without prior
written consent of the board of directors of corporation, directly or
indirectly, render services to or for any person, firm, or entity for
compensation or engage in research, developing, manufacturing, testing or
marketing or otherwise provide processing services for any drug with respect to
which the corporation has submitted an Abbreviated New Drug Application, any
dosage form of any of the drugs worked on by any employee of the Corporation
while Employee was employed by the Corporation or any drug identified by the
Corporation for future research and development.
(b) In the course of his employment, it is anticipated that Employee
shall have access to proprietary and confidential knowledge and information
pertaining to the business of the corporation and its business methods,
marketing information and methods, systems plans, policies and the functional
know-how relating to the Corporation and any other business the Corporation
becomes actively engaged in. Employee agrees that, during and after the term
hereof, he shall not (otherwise than pursuant to his duties hereunder) disclose,
to an unauthorized third party, any and all proprietary or confidential
information or trade secrets, pertaining to the Corporation and its business
methods, practices or affairs.
(c) The provisions of this Paragraph 10 (b) shall survive the
termination or expiration of this Employment Agreement.
(d) Employee agrees and acknowledges that the restrictions contained
herein are reasonable in scope and that adherence to same will not preclude
Employee from meaningful employment.
11. EMPLOYEE'S INVENTIONS. Employee acknowledges and agrees that all
inventions, patents, patent applications, copyrights, research, development and
formulas ("Inventions") related to the present or planned business of
Corporation, which are conceived or reduced to practice by Employee during the
period of Employee's employment or during a period of one hundred twenty (120)
days after termination of such employment, whether or not done during Employee's
regular working hours, are the sole property of Corporation. Moreover, Employee
agrees that he will disclose promptly and in writing to Corporation all
Inventions which are covered by this Agreement, and Employee hereby assigns and
agrees to assign to Corporation or its nominee all of her right, title, and
interest in and to such Inventions. Employee agrees not to disclose any of these
Inventions to others without the express consent of Corporation.
5
Employee agrees, at any time during or after his employment, on
request of Corporation, to execute specific assignments in favor of Corporation
or its nominee of Employee's interest in any of the Inventions covered by this
Agreement, as well as to execute all papers, render all assistance, and perform
all lawful acts which Corporation considers necessary or advisable for the
preparation, filing, prosecution, issuance, procurement, maintenance or
enforcement of patent applications and patents of the United States and foreign
countries for these Inventions, and for the transfer of any interest Employee
may have. employee will execute any and all papers and documents required to
vest title in Corporation or its nominee in the Inventions.
12. COMPLETE AGREEMENT. This Employment Agreement constitutes the
complete understanding among the parties hereto, and supersedes any and all
prior agreements, memoranda, writings or oral understandings among the parties
hereto with respect to the Subject matter hereof, and no alteration, amendment
or modification of any of the terms and provisions hereof shall be valid unless
made pursuant to an instrument in writing signed by all of said parties.
13. SUCCESSORS AND ASSIGNS. All of the terms and provisions of this
Employment Agreement shall inure to the benefit of and be binding upon the
heirs, successors, personal representatives and assigns of the respective
parties hereto. It is the intention of the parties that this agreement shall
remain in effect in the event that Corporation is merged into another company,
or is sold in a stock or asset sale.
14. GOVERNING LAW. This Employment Agreement has been made in and shall
be construed and enforced in accordance with the laws of the State of Florida.
15. NOTICES. All notices and other communications to be made, served or
given pursuant to the terms of this Employment Agreement shall be in writing and
shall be sent by registered or certified mail, return receipt requested, postage
prepaid, or personally delivered to the party to whom same is intended to be
delivered as follows:
If to Corporation: Royce Laboratories, Inc.
0000 X.X. 000 Xxxxxx
Xxxxx, Xxxxxxx 00000
6
If to Employee: Xxxxxx Xxxxx
0000 X.X. 000 Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such different address as such party previously may have specified to the
other by a notice sent in accordance with this paragraph 16.
16. PARAGRAPH HEADINGS. The Paragraph headings set forth in this
Employment Agreement are for reference purposes only and shall not be considered
as part of this Employment Agreement in any respect nor shall they in any way
affect the substance of any provisions contained in this Employment Agreement.
17. SEVERABILITY. If any provision or portion thereof of this Employment
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision, or portion thereof, shall be of no force
and effect, but the illegality or unenforceability of such provision, or portion
thereof, shall be of no force and effect, but the illegality or unenforceability
of such provision, or portion thereof, shall have no effect upon and shall not
impair the enforceability of any other provision of this Employment Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Employment Agreement the 5th day of December 1994.
CORPORATION:
ROYCE LABORATORIES, INC. EMPLOYEE:
By: /s/ XXXXXXX X. XxXXXXX /s/ XXXXXX XXXXX
----------------------------------- -------------------------------
XXXXXXX X. XxXXXXX XXXXXX XXXXX
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
7
