AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
Employment Agreement (the "Agreement"), is entered into as of January 17, 2007
(the “Effective Date”), between LEV PHARMACEUTICALS, INC., a Delaware
corporation (with its successors and assigns, referred to as the "Company"),
and
Xxxxxx Xxxxxx (referred to as "Xxxxxx").
WHEREAS,
the Company and Xxxxxx are party to an Employment Agreement dated as of November
1, 2004 (the “Original Employment Agreement”);
WHEREAS,
the Company and Xxxxxx mutually desire to amend and restate the terms of such
Original Employment Agreement upon the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree to
the
terms and conditions of this Agreement as follows:
1.
Employment
for Term.
The
Company hereby continues to employ Xxxxxx and Xxxxxx hereby accepts such
continued employment with the Company for the period beginning on the Effective
Date and ending December 31, 2010 (the "Initial Term"), or upon the earlier
termination of the Term pursuant to Section 6. This Agreement shall be
automatically renewed for additional one-year periods (the "Renewal Terms;"
together with the Initial Term, the "Term") unless either party notifies the
other in writing of its intention not to so renew this Agreement no less than
90
days prior to the expiration of the Initial Term or a Renewal Term. The
termination of Xxxxxx'x employment under this Agreement shall end the Term
but
shall not terminate Xxxxxx'x or the Company's other obligations that are
intended to survive the termination of this Agreement (including without
limitation, the payments under Section 7 and 8 and Xxxxxx’x obligations under
Section 9).
2.
Position
and Duties.
During
the Term, Xxxxxx shall serve as Chairman of the Board and Executive Vice
President of the Company, perform such duties as are consistent with his
position and report to the Board of Directors of the Company. During the Term,
Xxxxxx shall also hold such additional positions and titles as the Board of
Directors of the Company (the "Board") may determine from time to time. During
the Term, Xxxxxx shall devote as much time as is necessary to satisfactorily
perform his duties as an employee and officer of the Company. The Company shall
nominate Xxxxxx, and use its best efforts to have Xxxxxx elected, to the Board
of Directors of the Company (the “Board”) throughout the Term of this Agreement
and shall include him in the management slate for election as a director at
every stockholders meeting during the Term at which his term as a director
would
otherwise expire. Xxxxxx agrees to accept election, and to serve during the
Term, as director of the Company.
3.
Compensation.
(a)
Base
Salary.
The
Company shall pay Xxxxxx a base salary of $425,000 per annum, beginning as
of
January 1, 2007 and ending on the last day of the Term, payable at least monthly
on the Company's regular pay cycle for professional employees (as it may be
increased (but not decreased), the "Base Salary").
(b) Annual
Increases.
The
Base Salary shall be increased at the end of each year of service (commencing
at
the end of 2007) by the greater of (i) 4% or (ii) a percentage equal to the
increase, if any, in the United States Department of Labor Consumer Price Index
(or comparable index, if available) for the New York metropolitan area over
the
previous 12 months.
(c) Equity.
Pursuant to the Company's 2004 Omnibus Incentive Compensation Plan (the "Plan"),
on the Effective Date, the Company granted to Xxxxxx a nonqualified stock option
to purchase 1,600,000 shares of the Company's Common Stock at a per share
exercise price of $1.60 as determined in accordance with the Plan on the
Effective Date (the “New Options”). The New Options shall vest in equal annual
installments of 25% commencing on the first anniversary of the Effective Date
subject to Xxxxxx’x continued employment on the applicable vesting date, except
as provided below as a result of a Change in Control and in Section 7. The
New
Options shall expire on the tenth anniversary of the Effective Date subject
to
earlier expiration in the event of a termination of Xxxxxx’x employment by the
Company with Cause (as defined below) in which event the Options shall expire
immediately. In the event of a Change in Control (as defined below in Section
8), the New Options shall be deemed fully vested. The New Options shall be
evidenced by an award agreement that incorporates the terms herein.
Xxxxxx
has previously been granted a fully vested option to purchase 1,427,450 shares
at a per share exercise price of $.30 under the Plan and such option will remain
outstanding through November 1, 2014 in accordance with the applicable option
agreement.
The
Company covenants to maintain a Form S-8 Registration Statement on file with
the
SEC with respect to the equity awards made to Xxxxxx.
(d) Bonus.
Xxxxxx
shall receive a cash bonus of 60% of his base salary (at the rate in effect
on
December 31, 2006) for his 2006 performance as soon as practicable after the
Effective Date. For fiscal 2007, Xxxxxx shall be eligible to receive a bonus
targeted at 30% of Base Salary for fiscal 2007 upon his achievement of
performance measures to be mutually agreed between Xxxxxx and the Compensation
Committee of the Board on or before January 31, 2007. Xxxxxx shall be eligible
to receive a bonus in excess of the targeted amount, in the discretion of the
Compensation Committee of the Board of Directors. For future years, Xxxxxx
shall
be eligible for an annual cash bonus at the discretion of the Compensation
Committee based upon its assessment of Xxxxxx’x and the Company’s performance.
Xxxxxx is entitled to such bonus so long as he remains in the employ of the
Company through the end
of
the applicable fiscal year, except as provided below. Any such bonus for a
particular fiscal year will be paid no later than the first pay period after
the
filing of the Company’s report on Annual Report on Form 10-K or Form 10-KSB (as
the case may be) with the Securities and Exchange Commission
for the
fiscal year for such bonus.
(e)
Other
and Additional Compensation.
The
preceding sections establish the minimum compensation during the Term and shall
not preclude the Compensation Committee from awarding Xxxxxx a higher salary
or
any bonuses or stock options, restricted stock or other forms of equity awards
in the discretion of the Committee during the Term at any time. The Company
shall pay Xxxxxx a monthly car allowance of $1,000.
4.
Employee
Benefits.
During
the Term, Xxxxxx shall be entitled to participate at the same level as other
senior executive officers of the Company in any group insurance,
hospitalization, medical, health and accident, disability, fringe benefit and
tax-qualified retirement plans or programs of the Company now existing or
hereafter established to the extent that he is eligible under the general
provisions thereof. For the term of this Agreement, Xxxxxx shall be entitled
to
paid vacation at the rate of (4) weeks per annum.
5.
Expenses.
The
Company shall reimburse Xxxxxx for actual out-of-pocket expenses incurred by
him
in the performance of his services for the Company upon the receipt of
appropriate documentation of such expenses.
6.
Termination.
(a)
General.
The
Term shall end immediately upon Xxxxxx'x death. Xxxxxx’x employment may also be
terminated by the Company with or without Cause or as a result of Xxxxxx’x
Disability, as defined in Section 7 or by Xxxxxx with or without Good Reason
(as
such terms are defined below).
(b)
Notice
of Termination.
Either
party shall give written notice of termination to the other party, which shall
include a statement as to the reason for the termination.
7.
Severance
Benefits.
(a)
Cause
Defined.
"Cause"
means (i) willful malfeasance or willful misconduct by Xxxxxx in connection
with
his employment; (ii) Xxxxxx'x gross negligence in performing any of his duties
under this Agreement; (iii) Xxxxxx'x conviction of, or entry of a plea of guilty
to, or entry of a plea of nolo contendre with respect to, any crime other than
a
traffic violation or infraction which is a misdemeanor; (iv) Xxxxxx'x material
breach of any written policy applicable to all employees adopted by the Company
which is not cured to the reasonable satisfaction of the Company within thirty
(30) business days after notice thereof; or (v) material breach by Xxxxxx of
any
of his obligations in this Agreement which is not cured to the reasonable
satisfaction of the Company within thirty (30) business days after notice
thereof.
(b)
Disability
Defined.
"Disability" shall mean (i) Xxxxxx'x incapacity due to physical or mental
illness that results in his being substantially unable to perform his duties
hereunder for six consecutive months (or for six months out of any nine month
period) or (ii) a qualified independent physician mutually acceptable to the
Company and Xxxxxx determines that Xxxxxx is mentally or physically disabled
so
as to be unable to regularly perform the duties of his position and such
condition is expected to be of a permanent duration. During a period of
Disability, Xxxxxx shall continue to receive his Base Salary hereunder, provided
that if the Company provides Xxxxxx with disability insurance coverage, payments
of Xxxxxx'x Base Salary shall be reduced by the amount of any disability
insurance payments received by Xxxxxx due to such coverage. The Company shall
give Xxxxxx written notice of termination which shall take effect sixty (60)
days after the date it is sent to Xxxxxx unless Xxxxxx shall have returned
to
the performance of his duties hereunder during such sixty (60) day period
(whereupon such notice shall become void). In the event that the Company
terminates Xxxxxx’x employment as a result of his Disability, Xxxxxx shall be
entitled to the same benefits as if his employment had been terminated by the
Company without Cause.
(c)
Good
Reason Defined.
If the
Company (i) reassigns Xxxxxx'x base of operations outside of New York City,
(ii)
materially reduces Xxxxxx'x duties or responsibilities during the Term,
including replacing Xxxxxx as Chairman , (iii) materially breaches this
Agreement or (iv) provides notice of nonrenewal of the Agreement pursuant to
Section 1 of this Agreement or (v) any time after six months following the
occurrence of a Change in Control (each such event being “Good Reason”) then, at
his option, Xxxxxx may treat such event as a termination of the Term without
Cause by the Company unless the Company has cured the event (if susceptible
to
cure) within 30 business days of receipt of written notice from Xxxxxx.
(d)
Accrued
Compensation Defined.
Accrued
Compensation shall mean an amount which shall include all amounts earned or
accrued by Xxxxxx through the date of termination of this Agreement but not
paid
as of such date, including (i) Base Salary, (ii) reimbursement for business
expenses incurred by the Xxxxxx on behalf of the Company, pursuant to the
Company’s expense reimbursement policy in effect at such time, (iii) expense
allowance, (iv) vacation pay per Company policy, and (v) bonuses and incentive
compensation earned and awarded prior to the date of termination. Accrued
Compensation shall be paid on the first regular pay date after the date of
termination (or earlier, if required by applicable law).
(e)
Termination.
(i)
Cause; Without Good Reason. If the Company ends the Term for Cause, or if Xxxxxx
resigns as an employee of the Company for reasons other than an event of Good
Reason, then the Company shall pay to Xxxxxx the Accrued Compensation but shall
have no obligation to pay Xxxxxx any amount, whether for salary, benefits,
bonuses, or other compensation or expense reimbursements of any kind, accruing
after the end of the Term, and such rights shall, except as otherwise required
by law or pursuant to the applicable award agreement or plan (including, without
limitation, the documents evidencing the Old Options), be forfeited immediately
upon the end of the Term. For the sake of clarity, the New Options and the
Old
Options, to the extent vested on the date of resignation without Good Reason
will remain outstanding through the expiration of the original ten year
term.
(ii)
Without Cause; Good Reason; Death. In the event that the Company terminates
Xxxxxx’x employment hereunder without Cause, Xxxxxx terminates his employment
with Good Reason or his employment terminates as a result of his death, he
shall
be entitled to the Accrued Compensation and, subject to Section 21 below, the
following payments and benefits:
(A)
a
lump sum payment equal to the greater of (x) or (y):
(x)
(1)
two times his Base Salary in effect at the date of termination plus (2) two
times the greater of (the “Applicable Bonus”) the bonus paid for the fiscal year
prior to the date of termination or 60% of his Base Salary in effect at the
date
of termination plus (3) a pro rated bonus for the year of termination based
upon
the Applicable Bonus; or
(y)
(1)
Base Salary as if Xxxxxx remained in the employ of the Company through December
31, 2010 plus (2) bonus payments as if he remained in the employ of the Company
through December 31, 2010 based upon the Applicable Bonus. Such payment to
be
made no later than 10 business days from the date of termination;
;
provided, however, that in the event of the termination of Xxxxxx’x employment
as a result of his death, the lump sum payment pursuant to this Section
7(e)(ii)(A) shall be the amount provided in (x) above.
(B)
continued participation in the health and welfare plans (or comparable plans)
provided by the Company to Xxxxxx at the time of termination for a period equal
to the greater of two years from the date of termination and December 31, 2010
or, if earlier until he is eligible for comparable coverage with a subsequent
employer. Xxxxxx shall give the Company prompt notice of his eligibility of
comparable coverage.
(C)
the
New Options shall be deemed fully vested on the date of termination and any
restrictions thereon shall lapse and the options shall remain outstanding
through the expiration of the original ten year term.
(D)
Liquidated
Damages.
Xxxxxx
acknowledges that the payment in full of all amounts and benefits due to him
under this Section 7(d)(ii)(A)-(C) resulting from a termination of the Term
by
the Company without Cause or by Xxxxxx for Good Reason (as such terms are
defined above) are in lieu of any and all claims that Xxxxxx may have against
the Company or any of its affiliates (including, without limitation, any
discrimination claims under Title VII of the Civil Rights Act of 1964, the
Age
Discrimination in Employment Act and similar federal and state laws and
regulations) other than benefits under the Company's employee benefit plans
that
by their terms survive termination of employment, benefits under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and rights
to indemnification as set forth below and under the Company’s charter and
by-laws), and represent liquidated damages (and not a penalty). The Company
may
request that Xxxxxx confirm such acknowledgment in writing prior to the receipt
of such benefits.
8.
Change
in Control Payment.
The
provisions of this paragraph 8 set forth the terms of an agreement reached
between Xxxxxx and the Company regarding Xxxxxx'x rights and obligations upon
the occurrence of a "Change in Control" (as hereinafter defined) of the Company
during the Term. These provisions are intended to assure and encourage in
advance Xxxxxx'x continued attention and dedication to his assigned duties
and
his objectivity during the pendency and after the occurrence of any such Change
in Control. The following provisions shall apply in the event of a Change in
Control, in addition to any payment or benefit that may be required pursuant
to
Section 7.
(a) Equity.
Upon
the
occurrence of a Change in Control, all stock options and other stock-based
grants (including, without limitation, the New Options) to Xxxxxx by the Company
or that may be granted in the future shall, irrespective of any provisions
of
his award agreements, immediately and irrevocably vest and become exercisable.
In addition, six months after a Change in Control, Xxxxxx may resign without
Good Reason and receive the same payments and benefits as if his employment
were
terminated by the Company without Cause.
(b)
Gross
Up Payment.
(1)
Excess
Parachute Payment.
If
Xxxxxx incurs the tax (the "Excise Tax") imposed by Section 4999 of the Internal
Revenue Code of 1986 (the "Code") on "Excess Parachute Payments" within the
meaning of Section 28OG(b)(1) of the Code, the Company will pay to Xxxxxx an
amount (the "Gross Up Payment") such that the net amount retained by Xxxxxx,
after deduction of any Excise Tax on both the Excess Parachute Payment and
any
federal, state and local income tax (together with penalties and interest)
as
well as the Excise Tax upon the payment provided for by this subparagraph
8(b)(1), will be equal to the Change in Control Amount.
(2)
Applicable
Rates.
For
purposes of determining the amount of the Gross Up Payment, Xxxxxx will be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross Up Payment is to be
made
and state and local income taxes at the highest marginal rates of taxation
in
the state and locality where taxes thereon are lawfully due, net of the maximum
reduction (if any) in federal income taxes that could be obtained from deduction
of deductible state and local taxes.
(3)
Determination
of Gross Up Payment Amount.
The
determination of whether the Excise Tax is payable and the amount thereof will
be based upon the opinion of tax counsel selected by Xxxxxx and reasonably
approved by the Company, which approval will not be unreasonably withheld or
delayed. If such opinion is not finally accepted by the Internal Revenue Service
(or state and local taxing authorities), then appropriate adjustments to the
Excise Tax will be computed and additional Gross Up Payments will be made in
the
manner provided by this subparagraph (b).
(4)
Payment.
The
Company will pay the estimated amount of the Gross Up Payment in cash to Xxxxxx
at the time specified in this Agreement. Xxxxxx and the Company agree to
reasonably cooperate in the determination of the actual amount of the Gross
Up
Payment. Further, Xxxxxx and the Company agree to make such adjustments to
the
estimated amount of the Gross Up Payment as may be necessary to equal the actual
amount of the Gross Up Payment, which in the case of the Company will refer
to
refunds of prior overpayments by the Company and in the case of Xxxxxx will
refer to additional payments to Xxxxxx to make up for prior underpayments.
(c)
Definitions.
For
purposes of this paragraph 8, the following terms shall have the following
meanings:
"Change
in Control" shall mean any of the following:
(1)
the
acquisition by any individual, entity, or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (the "Acquiring Person"), other than
the Company, or any of its Subsidiaries or any Excluded Group (as defined
herein), of beneficial ownership (within the meaning of Rule 13d-3- promulgated
under the Exchange Act) of 35% or more of the combined voting power or economic
interests of the then outstanding voting securities of the Company entitled
to
vote generally in the election of directors; provided however, that any transfer
from Xxxxxx Xxxxxx or Xxxxxx Xxxxxx (the "Excluded Group") will not result
in a
Change in Control if such transfer was part of a series of related transactions
the effect of which, absent the transfer to such Acquiring Person by the
Excluded Group, would not have resulted in the acquisition by such Acquiring
Person of 35% or more of the combined voting power or economic interests of
the
then outstanding voting securities; or
(2)
during any period of 12 consecutive months after the date of this Amendment,
the
individuals who at the beginning of any such 12-month period constituted a
majority of the Directors (the "Incumbent Non-Investor Majority") cease for
any
reason to constitute at least a majority of such Directors; provided that (i)
any individual becoming a director whose election, or nomination for election
by
the Company's stockholders, was approved by a vote of the stockholders having
the right to designate such director and (ii) any director whose election to
the
Board or whose nomination for election by the stockholders of the Company was
approved by the requisite vote of directors entitled to vote on such election
or
nomination in accordance with the Restated Certificate of Incorporation of
the
Company, shall, in each such case, be considered as though such individual
were
a member of the Incumbent Non-Investor Majority, but excluding, as a member
of
the Incumbent Non-Investor Majority, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company (as such terms
are used in Rule 14a-2 of Regulation 14A promulgated under the Exchange Act)
and
further excluding any person who is an affiliate or associate of an Acquiring
Person having or proposing to acquire beneficial ownership of 25% or more of
the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors; or
(3)
the
consummation by the Company of a reorganization, merger or consolidation, in
each case, with respect to which all or substantially all of the individuals
and
entities who were the respective beneficial owners of the voting securities
of
the Company immediately prior to such reorganization, merger, or consolidation
do not, following such reorganization, merger, or consolidation, beneficially
own, directly or indirectly, more than 50% of the combined voting power of
the
then outstanding voting securities entitled to vote generally in the election
of
directors of the Company resulting from such reorganization, merger, or
consolidation; or
(4)
the
sale or other disposition of assets representing 50% or more of the assets
of
the Company in one transaction or series of related transactions not initiated
or commenced by any person within the Excluded Group; or
(5)
a
"Fundamental Change in Business" as hereinafter defined; or
(6)
a
"Hostile Takeover" as hereinafter defined is declared.
"Fundamental
Change in Business" shall mean that the Company, at any time, no longer spends
at least fifty percent (50%) of its annual budget on activities related to
biotechnology or pharmaceuticals.
"Hostile
Takeover" shall mean any Change in Control which at any time is declared by
at
least a majority of the Board, directly or indirectly, to be hostile or not
in
the best interests of the Company, or in which an attempt is made (irrespective
of whether successful) to wrest control away from the incumbent management
of
the Company, or with respect to which the Board makes any effort to resist.
9.
Confidentiality,
Ownership, and Covenants.
(a)
"Company
Information" and "Inventions" Defined.
"Company Information" means all information, knowledge or data of or pertaining
to (i) the Company, its employees and all work undertaken on behalf of the
Company, and (ii) any other person, firm, Company or business organization
with
which the Company may do business during the Term, that is not in the public
domain (and whether relating to methods, processes, techniques, discoveries,
pricing, marketing or any other matters). "Inventions" collectively refers
to
any and all inventions, trade secrets, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how, improvements,
research, discoveries, developments, designs, and techniques regarding any
of
the foregoing.
(b)
Confidentiality.
Xxxxxx
hereby recognizes that the value of all trade secrets and other proprietary
data
and all other information of the Company not in the public domain disclosed
by
the Company in the course of his employment with the Company may be attributable
substantially to the fact that such confidential information is maintained
by
the Company in strict confidentiality and secrecy and would be unavailable
to
others without the expenditure of substantial time, effort or money. Xxxxxx,
therefore, except as provided in the next two sentences, covenants and agrees
that all Company Information shall be kept secret and confidential at all times
during or after the Term and shall not be used or divulged by him outside the
scope of his employment as contemplated by his Agreement, except as the Company
may otherwise expressly authorize by action of the Board. In
the
event that Xxxxxx is requested in a judicial, administrative or governmental
proceeding to disclose any of the Company Information, Xxxxxx will promptly
so
notify the Company so that the Company may seek a protective order of other
appropriate remedy and/or waive compliance with this Agreement. If disclosure
of
any of the Company Information is required, Xxxxxx may furnish the material
so
required to be furnished, but Xxxxxx will furnish only that portion of the
Company Information that legally is required.
(c)
Ownership
of Inventions, Patents and Technology.
Xxxxxx
hereby assigns to the Company all of Xxxxxx'x rights (including patent rights,
copyrights, trade secret rights, and all other rights throughout the world),
title and interest in and to Inventions, whether or notpatentable or registrable
under copyright or similar statutes, made or conceived or reduced to practice
or
learned by Xxxxxx, either alone or jointly with others, during the course of
the
performance of services for the Company. Xxxxxx shall also assign to, or as
directed by, the Company, all of Xxxxxx'x right, title and interest in and
to
any and all Inventions, the full title to which is required to be in the United
States government of any of its agencies. The Company shall have all right,
title and interest in all research and work product produced by Xxxxxx as an
employee of the Company, including, but not limited to, all research materials
and lab books.
(d)
Non-Competition.
During
his employment with the Company and for a period of one year after the
termination of such employment for any reason, Xxxxxx agrees that he will not
enter into or become associated with or engage in any other business (whether
as
a partner, officer, director, shareholder, employee, consultant, or otherwise),
which
business is in direct competition with the Company (a “Competitive Business”).
For purposes of this Agreement, the Company shall be deemed to be actively
engaged (a) on the date hereof in the development and commercialization of
therapeutic products for the treatment of hereditary angioedema and (b) in
the
future during the Term of this Agreement in any other material business in
which
the Company actually devotes substantive resources to study, develop or pursue
and in which Executive is directly and actively involved. Notwithstanding the
foregoing, (x) the ownership by Xxxxxx of less than five percent of the shares
of any publicly held corporation shall not violate the provisions of this
Article VII, and (y) Xxxxxx shall not be required to comply with any provision
of this Section 9(d) following termination of this Agreement if the amounts
required to be paid under Sections 7 or 8 of this Agreement are not timely
paid.
(e)
Remedies.
Xxxxxx
hereby acknowledges that the covenants and agreements contained in Section
9
(the “Restrictive Covenants”) are reasonable and valid in all respects and that
the Company is entering into this Agreement, inter alia, on such
acknowledgement. If Xxxxxx breaches, or threatens to commit a breach, of any
of
the Restrictive Covenants, the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to
the
Company under law or in equity: (i) the right and remedy to have the Restrictive
Covenants specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company; (ii) the right and remedy to require Xxxxxx
to account for and pay over to the Company such damages as are recoverable
at
law as the result of any transactions constituting a breach of any of the
Restrictive Covenants; (iii) if any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the remainder
of
the Restrictive Covenants shall not thereby be affected and shall be given
full
effect, without regard to the invalid portions; and (iv) if any court construes
any of the Restrictive Covenants, or any part thereof, to be unenforceable
because of the duration of such provision or the area covered thereby, such
court shall have the power to reduce the duration or area of such provision
and,
in its reduced form, such provision shall then be enforceable and shall be
enforced.
(f)
Jurisdiction.
The
parties intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope
of
such Covenants. If the courts of any one or more such jurisdictions hold the
Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the parties that such determination
not bar or in any way affect the Company's right to the relief provided above
in
the courts of any other jurisdiction, within the geographical scope of such
Covenants, as to breaches of such Covenants in such other respective
jurisdiction such Covenants as they relate to each jurisdiction being, for
this
purpose, severable into diverse and independent covenants.
10.
Successors
and Assigns.
(a)
Xxxxxx.
This
Agreement is a personal contract, and the rights and interests that the
Agreement accords to Xxxxxx may not be sold, transferred, assigned, pledged,
encumbered, or hypothecated by him. All rights and benefits of Xxxxxx shall
be
for the sole personal benefit of Xxxxxx, and no other person shall acquire
any
right, title or interest under this Agreement by reason of any sale, assignment,
transfer, claim or judgement or bankruptcy proceedings against Xxxxxx. Except
as
so provided, this Agreement shall inure to the benefit of and be binding upon
Xxxxxx and his personal representatives, distributes and legatees.
(b)
The
Company.
This
Agreement shall be binding upon the Company and inure to the benefit of the
Company and of its successors and assigns, including (but not limited to) any
Company that may acquire all or substantially all of the Company's assets or
business or into or with which the Company may be consolidated or merged. In
the
event that the Company sells all or substantially all of its assets, merges
or
consolidates, otherwise combines or affiliates with another business, dissolves
and liquidates, or otherwise sells or disposes of substantially all of its
assets, then this Agreement shall continue in full force and effect. The
Company's obligations under this Agreement shall cease, however, if the
successor to, the purchaser or acquirer either of the Company or of all or
substantially all of its assets, or the entity with which the Company has
affiliated, shall assume in writing the Company's obligations under this
Agreement (and deliver and executed copy of such assumption to Xxxxxx), in
which
case such successor or purchaser, but not the Company, shall thereafter be
the
only party obligated to perform the obligations that remain to be performed
on
the part of the Company under this Agreement.
11.
Entire
Agreement.
This
Agreement (together with the equity award agreements referred to herein)
represents the entire agreement between the parties concerning Xxxxxx'x
employment with the Company and supersedes all prior negotiations, discussions,
understanding and agreements, whether written or oral, between Xxxxxx and the
Company relating to the subject matter of this Agreement (including, without
limitation, the Original Employment Agreement (other than with respect to the
option referenced therein, as amended).
12.
Amendment
or Modification, Waiver.
No
provision of this Agreement may be amended or waived unless such amendment
or
waiver is agreed to in writing signed by Xxxxxx and by a duly authorized officer
of the Company. No waiver by any party to this Agreement or any breach by
another party of any condition or provision of this Agreement to be performed
by
such other party shall be deemed a waiver of a similar or dissimilar condition
or provision at the same time, any prior time or any subsequent time.
13.
Notices.
Any
notice to be given under this Agreement shall be in writing and delivered
personally or sent by overnight courier or registered or certified mail, postage
prepaid, return receipt requested, addressed to the party concerned at the
address indicated below, or to such other address of which such party
subsequently may give notice in writing:
|
If
to Xxxxxx:
|
to
the address specified in the payroll records of the
Company
|
|
If
to the Company:
|
000
Xxxx 00xx
Xxxxxx
|
|
|
Xxxxx
0000
|
|
Xxx
Xxxx, XX 00000
|
Any notice delivered personally or by overnight courier shall be deemed given on the date delivered and any notice sent by registered or certified mail, postage prepaid, return receipt requested, shall be deemed given on the date mailed.
14.
Severability.
If any
provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances other than those to which it is so determined to be invalid and
unenforceable shall not be affected, and each provision of this Agreement shall
be validated and shall be enforced to the fullest extent permitted by law.
If
for any reason any provision of this Agreement containing restrictions is held
to cover an area or to be for a length of time that is unreasonable or in any
other way is construed to be too broad or to any extent invalid, such provision
shall not be determined to be entirely null, void and of no effect; instead,
it
is the intention and desire of both the Company and Xxxxxx that, to the extent
that the provision is or would be valid or enforceable under applicable law,
any
court of competent jurisdiction shall construe and interpret or reform this
Agreement to provide for a restriction having the maximum enforceable area,
time
period and such other constraints or conditions (although not greater than
those
contained currently contained in this Agreement) as shall be valid and
enforceable under the applicable law.
15.
Survivorship.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
16.
Headings.
All
descriptive headings of sections and paragraphs in this Agreement are intended
solely for convenience of reference, and no provision of this Agreement is
to be
construed by reference to the heading of any section or paragraph.
17.
Withholding
Taxes.
All
salary, benefits, reimbursements and any other payments to Xxxxxx under this
Agreement shall be subject to all applicable payroll and withholding taxes
and
deductions required by any law, rule or regulation of and federal, state or
local authority.
18.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together constitute one and same
instrument.
19.
Applicable
Law; Arbitration.
The
validity, interpretation and enforcement of this Agreement and any amendments
or
modifications hereto shall be governed by the laws of the State of New York,
as
applied to a contract executed within and to be performed in such State. The
parties agree that any disputes shall be definitively resolved by binding
arbitration before the American Arbitration Association in New York, New York
and consent to the jurisdiction to the federal courts of the Southern District
of New York or, if there shall be no jurisdiction, to the state courts located
in New York County, New York, to enforce any arbitration award rendered with
respect thereto. Each party shall choose one arbitrator and the two arbitrators
shall choose a third arbitrator. All costs and fees related to such arbitration
(and judicial enforcement proceedings, if any) shall be borne by the Company
unless Xxxxxx’x claim is deemed to be frivolous by the arbitrator(s) or judge.
The Company shall pay the reasonable legal fees and expenses of counsel
(collectively, the “Fees”) incurred by Xxxxxx in the event there is a dispute
hereunder as follows: if such dispute is settled, the Company shall pay the
Fees
or, in the event that it is resolved by binding arbitration or a judgment,
the
Company shall pay the Fees unless the arbitrator or judge finds that Xxxxxx’x
claim was frivolous.
20. Legal
Fees.
The
Company shall reimburse Xxxxxx for the reasonable expenses of his counsel in
drafting and negotiating this Agreement on an after tax basis.
21. Section
409A.
The
payments provided for herein are intended to comply with the terms of Section
409A of the Internal Revenue Code. In the event, however, that any such payments
are determined to be subject to 409A, then the Company will make such
adjustments as are reasonably required to comply with such section, including
delaying any such payments that would have been required to be paid to Xxxxxx
pursuant to this Agreement during the first six months following the termination
of Xxxxxx’x employment until the end of such six-month period in accordance with
the requirements of Section 409A.
22. Indemnification.
The
Company shall, to the maximum extent permitted by law, indemnify and hold Xxxxxx
harmless against, and shall purchase director and officer indemnity insurance
on
behalf of Xxxxxx for, expenses, including reasonable attorneys fees (the
attorney to be selected by Xxxxxx), judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any proceeding
or
claim (or threatened proceeding or claim) arising by reason of Xxxxxx’x
employment by the Company. The Company shall advance to Xxxxxx any expense
incurred in defending any such proceeding or claim (or threatened proceeding
or
claim) to the maximum extent permitted by law.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
| Lev Pharmaceuticals, Inc. | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxx | |
|
Xxxx X. Xxxxxxx |
||
| Chairman of the Compensation Committee | ||
| Employee | ||
| |
|
|
| /s/ Xxxxxx Xxxxxx | ||
|
Xxxxxx Xxxxxx |
||
| Employee | ||
