EXHIBIT 10.10
Draft 120596
EMPLOYMENT AGREEMENT, dated as of , by and
between Niche Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxx, (the "Employee").
RECITALS
WHEREAS, the Company and the Employee desire to enter into an
employment agreement which will set forth the terms and conditions upon which
the Employee shall be employed by the Company and upon which the Company shall
compensate the Employee;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants hereinafter set forth, the parties hereto have agreed, and do
hereby agree, as follows:
1. EMPLOYMENT; TERM
The Company will employ the Employee in its business, and the
Employee will work for the Company therein, as its Chief Executive Officer,
President, Treasurer and Chairman of the Board for a term commencing as of and
terminating on ____________________________________________ (the "Employment
Period"). Such employment may be terminated by the Company at any time for
"cause". As used in this Agreement, "cause" shall include, but not necessarily
be limited to, the Employee's commission of any act in the performance of his
duties constituting common law fraud, a felony or other gross malfeasance of
duty, any misrepresentation or breach of any covenant on the Employee's part
herein set forth, or the Employee's engagement in misconduct which is materially
injurious to the Company or its subsidiaries.
2. DUTIES
During the Employment Period, the Employee shall serve as the
Company's Chief Executive Officer, President, Treasurer and Chairman of the
Board. As Chief Executive Officer, President, Treasurer and Chairman of the
Board of the Company, he shall implement executive policy, perform duties of an
executive character consisting of administrative and managerial responsibilities
on behalf of the Company, he shall preside at all
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meetings of the Board of Directors, and he shall have such further duties of an
executive character as shall, from time to time, be delegated or assigned to him
by the Board of Directors of the Company consistent with the Employee's
position.
3. DEVOTION OF TIME
During the Employment Period, the Employee shall expend all of
his working time for the Company; shall devote his best efforts, energy and
skill to the services of the Company and the promotion of its interests; and
shall not take part in activities detrimental to the best interests of the
Company.
4. COMPENSATION
4.1 For all services to be rendered by the Employee during the
Employment Period and in consideration of the Employee's representations and
covenants set forth in this Agreement, the Employee shall be entitled to the
compensation set forth in Paragraph 4.2.
4.2 The Employee shall be entitled to receive from the Company
during the Employment Period minimum compensation at the rate of One Hundred and
Twenty Thousand Dollars ($120,000) per annum. The Employee shall be entitled to
such additional increments as shall be determined from time to time by the Board
of Directors of the Company. All amounts due hereunder shall be payable in
accordance with the Company's standard payroll practices.
5. REIMBURSEMENT OF EXPENSES
The Company shall pay directly, or reimburse the Employee for,
all reasonable and necessary expenses and disbursements incurred by the Employee
for and on behalf of the Company in the performance of his duties during the
Employment Period, including, without limitation, all reasonable expenses
incurred by the Employee for food, lodging and transportation, if he is required
to perform any of his duties away from his primary place of residence. For such
purposes, the Employee shall submit to the Company, not less than once in each
calendar month, reports of such expenses and other disbursements in form
normally used by the Company. Additionally, the Company shall pay directly, or
reimburse the
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Employee for, his monthly membership dues and charges for and at the Club at
Trophy Club, Trophy Club, Texas, which shall not exceed $15,000 on an annual
basis.
6. DISABILITY
6.1 If, during the Employment Period, the Employee shall, in
the opinion of a majority of the members of the Board of Directors of the
Company (excluding the Employee), as confirmed by competent medical evidence,
become physically or mentally incapacitated to perform his duties for the
Company hereunder ("Disabled") for a continuous period, then for the first three
(3) months of such period he shall receive his full salary, and for the next
three (3) months he shall receive fifty percent (50%) of his salary. In no event
shall the Employee be entitled to receive any payments under this Paragraph 6.1
beyond the expiration or termination date of this Agreement. Effective with the
date of his resumption of full employment, the Employee shall be re-entitled to
receive his full salary. If such illness or other incapacity shall endure for a
continuous period of at least six (6) months or for at least one hundred fifty
(150) business days during any nine (9) month period, the Company shall have the
right, by written notice, to terminate the Employee's employment hereunder as of
a date (not less than five (5) days after the date of the sending of such
notice) to be specified in such notice. The Employee agrees to submit himself
for appropriate medical examination to a physician of the Company's designation
as necessary for purposes of this Paragraph 6.1.
6.2 The obligations of the Company under this Paragraph 6 may
be satisfied, in whole or in part, by payments to the Employee under disability
insurance provided by the Company.
7. RESTRICTIVE COVENANT
7.1 The services of the Employee are unique and extraordinary
and essential to the business of the Company, especially since the Employee
shall have access to the Company's customer lists, trade secrets and other
privileged and confidential information essential to the Company's business.
Therefore, the Employee agrees that, if the term of his employment hereunder
shall expire or his employment shall at any time terminate for any reason
whatsoever, with or without cause, the Employee will not at any time within one
(1) year after such expiration or termination (the
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"Restrictive Covenant Period"), without the prior written approval of the
Company, directly or indirectly, anywhere in the United States of America,
whether individually or as a principal, officer, employee, partner, director,
agent of or consultant for any entity, (i) engage or participate in a business
which, as of such expiration or termination date, is similar to or competitive
with, directly or indirectly, that of the Company and shall not make any
investments in any such similar or competitive entity; (ii) cause or seek to
persuade any director, officer, employee, customer, subscriber, account, agent
or supplier of the Company to discontinue the status, employment or relationship
of such person or entity with the Company, or to become employed in any activity
similar to or competitive with the activities of the Company; (iii) cause or
seek to persuade any prospective customer, subscriber or account of the Company
(which at the date of cessation of the Employee's employment with the Company
was then actively being solicited by the Company) to determine not to enter into
a business relationship with Company; (iv) hire or retain any director, officer
or employee of the Company; or (v) solicit or cause or authorize to be
solicited, for or on behalf of him or any third party, any business which is
competitive, directly or indirectly, with the Company from (a) others who are,
or were within one (l) year prior to the cessation of his employment with the
Company, customers, subscribers or accounts of the Company, or (b) any
prospective customer, subscriber or account of the Company which at the date of
such cessation was then actively being solicited by the Company. The foregoing
restrictions set forth in this Paragraph 7.1 shall apply likewise during the
Employment Period.
7.2 (a) The Employee agrees to promptly disclose in writing to
the Board of Directors of the Company all ideas, processes, methods, devices,
business concepts, inventions, improvements, discoveries, know-how and other
creative achievements (hereinafter referred to collectively as "discoveries"),
whether or not the same or any part thereof is capable of being patented,
trademarked, copyrighted, or otherwise protected, which the Employee, while
employed by the Company, conceives, makes, develops, acquires or reduces to
practice, whether acting alone or with others and whether during or after usual
working hours, and which are related to the Company's business or interests, or
are used or usable by the Company, or arise out of or in connection with the
duties performed by the Employee. The Employee hereby transfers and assigns to
the Company all right, title and interest
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in and to such discoveries (whether conceived, made, developed, acquired or
reduced to practice on or prior to the date hereof or hereafter), including any
and all domestic and foreign copyrights and patent and trademark rights therein
and any renewals thereof. On request of the Company, the Employee will, without
any additional compensation, from time to time during, and after the expiration
or termination of, the Employment Period, execute such further instruments
(including, without limitation, applications for copyrights, letters patent,
trademarks and assignments thereof) and do all such other acts and things as may
be deemed necessary or desirable by the Company to protect and/or enforce its
right in respect of such discoveries. All expenses of filing or prosecuting any
patent, trademark or copyright application shall be borne by the Company, but
the Employee shall cooperate in filing and/or prosecuting any such application.
(b) The Employee acknowledges and agrees that, prior to his
employment by the Company, he did not conceive, make, develop, acquire or
reduce to practice any discovery which is related to the Company's business
or interests or is used or usable by the Company.
7.3 (a) The Employee represents that he has been informed that
it is the policy of the Company to maintain as secret all confidential
information relating to the Company, including, without limitation, any and all
knowledge or information with respect to secret or confidential methods,
processes, plans, materials, customer lists or data, or with respect to any
other confidential or secret aspect of the Company's activities, and further
acknowledges that such confidential information is of great value to the
Company. The Employee recognizes that, by reason of his employment with the
Company, he has acquired and will acquire confidential information as aforesaid.
The Employee confirms that it is reasonably necessary to protect the Company's
goodwill, and, accordingly, hereby agrees that he will not, directly or
indirectly (except where authorized by the Board of Directors of the Company for
the benefit of the Company), at any time during the term of this Agreement or
thereafter divulge to any person, or use, or cause or authorize any person, firm
or other entity to use, any such confidential information.
(b) The Employee agrees that he will not, at any time, remove
from the Company's premises any drawings, notebooks,
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data or other confidential information relating to the business and procedures
heretofore or hereafter acquired, developed and/or used by the Company, except
where necessary in the fulfillment of his duties hereunder.
(c) The Employee agrees that, upon the expiration
or termination of this Agreement for any reason whatsoever, he shall promptly
deliver to the Company any and all drawings, notebooks, data and other documents
and material, including all copies thereof, in his possession or under his
control relating to any confidential information or discoveries, or which is
otherwise the property of the Company.
(d) For purposes hereof, the term "confidential
information" shall mean all information given to the Employee, directly or
indirectly, by the Company and all other information relating to the Company
otherwise acquired by the Employee during the course of his employment with the
Company, other than information which (i) was in the public domain at the time
furnished to, or acquired by, the Employee, or (ii) thereafter enters the public
domain other than through disclosure, directly or indirectly, by the Employee or
others in violation of an agreement of confidentiality or nondisclosure.
7.4 For purposes of this Paragraph 7, the term "Company" shall
mean and include any and all subsidiaries, parents and affiliated entities of
the Company in existence from time to time.
8. VACATIONS
The Employee shall be entitled to reasonable vacations during
the Employment Period, the time and duration thereof to be determined by mutual
agreement between the Employee and the Company.
9. PARTICIPATION IN EMPLOYEE BENEFIT PLANS
The Employee and any beneficiary of the Employee shall be
accorded the right to participate in and receive benefits under and in
accordance with the provisions of any pension, profit sharing, insurance, bonus,
deferred compensation, medical and dental insurance or reimbursement or other
plan or program of the
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Company either in existence as of the date hereof or hereafter adopted for the
benefit of its executive employees.
10. SERVICE AS OFFICER OF SUBSIDIARIES; SERVICE AS DIRECTOR
During the Employment Period, the Employee shall, if elected
or appointed, serve as (a) an officer of any subsidiaries of the Company in
existence or hereafter created or acquired and (b) a Director of the Company
and/or any such subsidiaries of the Company, in each case without any additional
compensation for such services.
11. EARLIER TERMINATION
The Employee's employment hereunder shall automatically
terminate upon his death and may terminate at the option of the Company upon:
(a) the Employee's incapacity in accordance with the provisions
set forth in Paragraph 6.l hereof;
(b) one (1) day's prior written notice to the Employee
in the event the Company terminates his employment
hereunder for cause as set forth in Paragraph 1 hereof;
(c) the Employee's voluntarily leaving the employ
of the Company.
Upon the termination of the Employee's employment, the Employment Period shall
be deemed to have ended.
12. INJUNCTIVE RELIEF
The Employee acknowledges and agrees that, in the event he shall
violate any of the restrictions of Paragraph 3 or 7 hereof, the Company will be
without an adequate remedy at law and will therefore be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief in any
court of competent jurisdiction without the necessity of proving damages and
without prejudice to any other remedies which it may have at law or in equity.
The Employee acknowledges and agrees that, in addition to
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any other state having proper jurisdiction, any such relief may be sought in,
and for such purpose the Employee consents to the jurisdiction of, the courts of
the State of Texas.
13. NO RESTRICTIONS
The Employee hereby represents that neither the execution of
this Agreement nor his performance hereunder will (a) violate, conflict with or
result in a breach of any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under
the terms, conditions or provisions of any contract, agreement or other
instrument or obligation to which the Employee is a party, or by which he may be
bound, or (b) violate any order, judgment, writ, injunction or decree applicable
to the Employee. In the event of a breach hereof, in addition to the Company's
right to terminate this Agreement, the Employee shall indemnify the Company and
hold it harmless from and against any and all claims, losses, liabilities and
expenses (including reasonable attorneys' fees) incurred or suffered in
connection with or as a result of the Company's entering into this Agreement or
employing the Employee hereunder.
14. ARBITRATION
14.1 Except with regard to Paragraph 12 hereof and any other
matters that are not a proper subject of arbitration, all disputes between the
parties hereto concerning the performance, breach, construction or
interpretation of this Agreement or any portion thereof, or in any manner
arising out of this Agreement or the performance thereof, shall be submitted to
binding arbitration, in accordance with the rules of the American Arbitration
Association, which arbitration shall be carried out in the manner hereinafter
set forth.
14.2 Within twenty (20) days after written notice by one party
to the other of its demand for arbitration, which demand shall set forth the
name and address of its arbiter, the other party shall select its arbiter and so
notify the demanding party. Within twenty (20) days thereafter, the two arbiters
so selected shall select the third arbiter. The decision of any two (2) arbiters
shall be binding upon the parties. In default of either side naming its arbiter
as aforesaid or in default of the selection
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of the said arbiter as aforesaid, the American Arbitration Association shall
designate such arbiter upon the application of either party. The arbitration
proceeding shall take place at a mutually agreeable location in Dallas, Texas or
such other location as agreed to by the parties.
14.3 A party who files a notice of demand for arbitration must
assert in the demand all claims then known to that party on which arbitration is
permitted to be demanded. When a party fails to include a claim through
oversight, inadvertence or excusable neglect, or when a claim has matured or
been acquired subsequently, the arbitrators may permit amendment. A demand for
arbitration shall be made within a reasonable time after the claim has arisen,
and in no event shall it be made after the date when institution of legal or
equitable proceedings based on such claim would be barred by the applicable
statute of limitations.
14.4 The award rendered by the arbitrators shall be final,
binding and conclusive, and judgment may be entered upon it in accordance with
applicable law in the appropriate court in the State of Texas, with no right of
appeal therefrom.
14.5 Each party shall pay its or his own expenses of
arbitration, and the expenses of the arbitrators and the arbitration proceeding
shall be equally shared; provided, however, that, if, in the opinion of a
majority of the arbitrators, any claim or defense was unreasonable, the
arbitrators may assess, as part of their award, all or any part of the
arbitration expenses of the other party (including reasonable attorneys' fees)
and of the arbitrators and the arbitration proceeding against the party raising
such unreasonable claim or defense.
15. ASSIGNMENT
This Agreement, as it relates to the employment of the Employee,
is a personal contract and the rights and interests of the Employee hereunder
may not be sold, transferred, assigned, pledged or hypothecated.
16. NOTICES
Any notice required or permitted to be given pursuant to this
Agreement shall be deemed to have been duly given when
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delivered by hand or sent by certified or registered mail, return receipt
requested and postage prepaid, overnight mail or telecopier as follows:
If to the Employee:
Xxxxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
If to the Company:
Niche Pharmaceuticals, Inc.
000 Xxxxx Xxx
X.X. Xxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxx, Executive Vice President
Telecopier Number: (000) 000-0000
with a copy to:
Certilman Balin Xxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx ll554
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier Number: (000) 000-0000
or at such other address as any party shall designate by notice to the other
party given in accordance with this Paragraph 16.
17. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Texas applicable to agreements made
and to be performed entirely in Texas.
18. WAIVER OF BREACH; PARTIAL INVALIDITY
The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of
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any subsequent breach. If any provision, or part thereof, of this Agreement
shall be held to be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision and not in any way affect
or render invalid or unenforceable any other provisions of this Agreement, and
this Agreement shall be carried out as if such invalid or unenforceable
provision, or part thereof, had been reformed, and any court of competent
jurisdiction or arbiters, as the case may be, are authorized to so reform such
invalid or unenforceable provision, or part thereof, so that it would be valid,
legal and enforceable to the fullest extent permitted by applicable law.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties and there are no representations, warranties or commitments except as
set forth herein. This Agreement supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral, of the
parties hereto relating to the transactions contemplated by this Agreement. This
Agreement may be amended only by a writing executed by the parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year above written.
NICHE PHARMACEUTICALS, INC.
By:__________________________________
Xxx X. Xxxx,
Executive Vice President
__________________________________
XXXXXXX X. XXXXXXX
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