EXHIBIT 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of the 25th day of June, 1997, by and
between COMMONWEALTH BIOTECHNOLOGIES, INC., a Virginia corporation (the
"Employer"), and Xxxxxxx X. Xxxx, Ph.D. (the "Executive").
In consideration of the mutual covenants contained herein, the Employer
and the Executive agree as follows:
1. Employment. The Employer agrees to employ the Executive and
the Executive agrees to enter into the employ of the Employer on the terms and
conditions hereinafter set forth.
2. Capacity. The Executive shall serve the Employer as Senior
Vice President, Chief Scientific Officer and Secretary with such powers and
duties as may be prescribed from time to time by the Employer's Board of
Directors, and shall serve the Employer in such other or additional offices in
which he may be requested to serve, subject in every case to his election by the
Board of Directors of the Employer.
3. Effective Date and Term. The commencement date of this
Agreement shall be as of June 25, 1997 (the "Commencement Date"). Subject to the
provisions of Section 6, the term of the Executive's employment hereunder shall
be for five years from the Commencement Date; provided, however, that the term
shall be extended automatically for an additional period of one year commencing
on the first anniversary of the Commencement Date and on each subsequent
anniversary thereafter, unless either the Executive or the Employer gives
written notice to the other, at least 30 days prior to the date of any such
anniversary, of such party's election not to extend the terms of this Agreement.
The Employer may not give notice of an election not to extend before December
31, 1998. The last day of such term as so extended from time to time, is herein
sometimes referred to as the "Expiration Date." The Executive shall commence
full-time work with the Employer as soon as he concludes his work for Virginia
Commonwealth University ("VCU"), and in no event later than September 1, 1997.
During the period between the Commencement Date and the date the Executive
commences full-time work for the Employer (the "Interim Period"), Section 5
shall not be in effect.
4. Compensation and Benefits. The regular compensation and
benefits payable to the Executive under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Executive
under this Agreement, the Employer shall pay the Executive a total salary at the
rate of $165,000 per year, subject to increase from time to time in accordance
with the usual practice of the Employer with respect to review of compensation
of its senior executives. The Executive's salary shall be payable in periodic
installments in accordance with the Employer's usual practice for its senior
executives. During the Interim Period, the Employer shall deduct from amounts
due to the Executive under this Section 4(a) all amounts of salary paid to the
Executive by VCU, which the Executive shall report to the Employer. For a period
of five years from the date of this Agreement, the Executive's salary shall not
materially differ from the salaries of Xx. Xxxxxxx X. Xxxxx and Xx. Xxxxxx X.
Xxxxxx, assuming equal contributions to the Employer.
(b) Annual Bonus. For each complete calendar year ending
during the term hereof, the Executive shall be entitled to a cash bonus (the
"Bonus") equal to 4.342% of the cumulative earnings before taxes ("Pre-Tax
Earnings") (as defined below) of the Employer during each complete calendar year
hereof.
(i) Calculation of Payment. The Employer shall
calculate and pay the Bonus for each year within 30 days after the Company's
receipt from its independent auditor of audited financial statements for each
calendar year (the "Audit Release Date"), should any Bonus be due. The Employer
shall provide to the Executive concurrently with the payment of the Bonus or, if
the Employer determines that no Bonus is due in respect of a year during the
term of this Agreement, then within 30 days following the Audit Release Date, a
statement of its Chief Financial Officer regarding the calculation of the Bonus
payable with respect to such year. Such statement shall provide such
computations and set forth such detail as is reasonably necessary to
substantiate the calculation of Pre-Tax Earnings and the amount of the Bonus
payable with respect to such year. Notwithstanding any other provision of this
Agreement, (i) the Executive's Bonus for the year ending December 31, 1997 shall
not be less than $43,421 (the "1997 Minimum Bonus"), with the 1997 Minimum Bonus
to be paid between December 15, 1997 and December 31, 1997 and any additional
Bonus amounts due with respect to 1997 to be paid within 30 days following the
Audit Release Date, and (ii) for any year in which the Expiration Date precedes
the end of the year, the Bonus shall be payable solely with respect to the
fiscal quarters that shall be completed on or before the 30th day after the
Expiration Date, and solely for purposes of calculating the Bonus due with
respect to such partial-year period, all references in this Section 4(b)(ii) to
year end shall be deemed to be references to the last day of the last completed
fiscal quarter.
(ii) Pre-Tax Earnings. Pre-Tax Earnings shall
mean for any year of the Employer, the net income of the Employer for such year
determined by the Employer's auditors on a stand-alone basis in accordance with
generally accepted accounting principles consistently applied plus, to the
extent deducted in determining net income and without duplication, total income
tax expense, including for this purpose any amounts paid under a tax-sharing or
similar agreement or arrangement in lieu of such taxes; minus, to the extent
included in determining net income and without duplication, any extraordinary
gains.
(c) Regular Benefits. The Executive shall also be
entitled to participate in any and all employee benefit plans, medical insurance
plans, life insurance plans, disability income plans, retirement plans, bonus
incentive plans and other benefit plans from time to time in effect for senior
executives of the Employer. Such participation shall be subject to (i) the terms
of the applicable plan documents, (ii) generally applicable policies of the
Employer and (iii) the discretion of the Board of Directors of the Employer or
any administrative or other committee provided for in or contemplated by such
plan.
(d) Business Expenses. The Employer shall reimburse the
Executive for all reasonable travel and other business expenses incurred by him
in the performance of his duties and responsibilities, subject to such
reasonable requirements with respect to substantiation and documentation as may
be specified by the Employer.
(e) Vacation. The Executive shall be entitled to such
number of weeks of vacation per year as shall be provided for in the Employer's
employee handbook as the same shall be modified from time to time, to be taken
at such times and intervals as shall be determined by the Executive with the
approval of the Employer, which approval shall not be unreasonably withheld.
5. Extent of Service. During his employment hereunder, the
Executive shall, subject to the direction and supervision of the Board of
Directors of the Employer, devote his full business time, best efforts and
business judgment, skill and knowledge to the advancement of the Employer's
interests and to the discharge of his duties and responsibilities hereunder. He
shall not engage in any other business activity, except as may be approved by
the Board of Directors; provided, however, that this Section 5 shall not be
construed as preventing the Executive from:
(a) investing his assets in a manner not prohibited by
Section 8(a) hereof, and in such form or manner as shall not require any
material services on his part in the operations or affairs of the companies or
other entities in which such investments are made;
(b) serving on the board of directors of any company,
subject to the prohibitions set forth in section 8(a), to the extent that such
service does not impair his ability to fulfill his duties and responsibilities
under this Agreement;
(c) engaging in religious, charitable or other community
or non-profit activities which do not impair his ability to fulfill his duties
and responsibilities under this Agreement; or
(d) serving as an external affiliate of MCV-VCU, or any
other university, research institution or agency, to engage in or supervise
research or other activities, obligations or responsibilities related to
operations or affairs of the Employer or the professional standing of the
Executive, to the extent that such service does not impair his ability to
fulfill his duties and responsibilities under this Agreement; provided that (i)
such activities shall not violate any obligations of the Executive under Section
8 of this Agreement and (ii) all compensation paid to the Executive as a result
of such activities shall be paid to the Employer.
6. Termination and Termination Benefits.
Notwithstanding the provisions of Section 3, the Executive's
employment hereunder shall terminate under the following circumstances and shall
be subject to the following provisions:
(a) Death. In the event of the Executive's death during
the Executive's employment hereunder, the Executive's employment shall terminate
on the date of his death; provided, however, that the Employer shall continue to
pay an amount equal to the Executive's salary to the Executive's beneficiary
designated in writing to the Employer prior to his death (or to his estate, if
he fails to make such designation) for a period of one month after the date of
the Executive's death, at the salary rate in effect on the date of his death,
said payments to be made on the same periodic dates as salary payments would
have been made to the Executive had he not died. The Employer shall also pay to
the Executive's beneficiary or estate the Bonus solely with respect
to the fiscal quarters completed on or before the date of death, with all
references in Section 4(b)(ii) to year end being deemed to be references to the
last day of the last completed fiscal quarter.
(b) Termination by the Employer for Cause. The
Executive's employment hereunder may be terminated without further liability on
the part of the Employer effective immediately by a two-thirds vote of the Board
of Directors of the Employer for Cause by written notice to the Executive
setting forth in reasonable detail the nature of such Cause. Only the following
shall constitute "Cause" for such termination:
(i) gross incompetence, gross negligence,
willful misconduct in office or breach of a material fiduciary duty owed to the
Employer or any subsidiary or affiliate thereof, it being agreed that the
Executive's pursuit of activities provided for in Section 5(d) does not
constitute a breach of a material fiduciary duty;
(ii) conviction of a felony, a crime of moral
turpitude or commission of an act of embezzlement or fraud against the Employer
or any subsidiary or affiliate thereof;
(iii) any material breach by the Executive of a
material term of this Agreement, including without limitation material failure
to perform a substantial portion of his duties and responsibilities hereunder;
or
(iv) deliberate dishonesty of the Executive with
respect to the Employer or any subsidiary or affiliate thereof.
(c) Termination by the Executive. The Executive may
terminate his employment hereunder with or without Good Reason (as defined
below) and he shall not be required to render any further services to the
Employer. In the event of termination with Good Reason, the Executive shall give
written notice of the event or circumstances constituting Good Reason to the
Board of Directors of the Employer. If such event or circumstances shall remain
unremedied for a period of 30 days after receipt of such notice by the Board of
Directors, the Executive may then terminate his employment hereunder for Good
Reason by written notice effective immediately. In the event of termination for
Good Reason, the Executive shall be entitled to the benefits specified in
Section 6(e). Upon termination of employment by the Executive without Good
Reason, the Executive shall be entitled to no further compensation or benefits
under this Agreement. "Good Reason" shall be the material breach by the Employer
of any material provision of this Agreement.
(d) Termination by the Employer Without Cause. The
Executive's employment with the Employer may be terminated without Cause by a
two-thirds vote of the Board of Directors of the Employer effective immediately
by written notice to the Executive.
(e) Certain Termination Benefits. Except as expressly
provided in this Section 6(e), or in Section 6(a) with respect to death or
Section 7 with respect to disability, or as may be required by applicable law,
the Executive shall not be entitled to any benefits in connection with the
termination of this Agreement. In the event of termination by the Employer
without Cause and
other than for death or disability (as defined in Section 7), or by the
Executive with Good Reason, the Executive shall be entitled to the following
benefits:
(i) For the period subsequent to the date of
termination until the Expiration Date, the Employer shall continue to pay the
Executive a salary and Bonus in accordance with Sections 4(a) and 4(b), said
payments to be made on the same periodic dates as salary and Bonus payments
would have been made to the Executive had he not been terminated.
(ii) For the period subsequent to the date of
termination until the Expiration Date, the Executive shall continue to receive
medical, dental and life insurance benefits pursuant to plans made available by
the Employer to its employees at the expense of the Employer to substantially
the same extent the Executive received such benefits on the date of termination
(it being acknowledged that the post-termination plans may be different from the
plans in effect on the date of termination). For purposes of application of such
benefits, the Executive shall be treated as if he had remained in the employ of
the Employer, and service credits will continue to accrue during such period as
if the Executive had remained in the employ of the Employer.
(iii) If, in spite of the provisions of Section
6(e)(ii) above, benefits or service credits under any medical, dental or life
insurance plan shall not be payable or provided under any such plan to the
Executive, or to the Executive's dependents, beneficiaries or estate, because
the Executive is no longer deemed to be an employee of the Employer, the
Employer shall pay or provide for payment of equivalent benefits, taking into
account service credits for such benefits to the Executive, or to the
Executive's dependents, beneficiaries or estate.
(iv) The Employer's obligation to provide the
Executive with medical or dental insurance pursuant to subsections 6(e)(ii) and
6(e)(iii) hereof shall terminate with respect to each particular type of
insurance in the event the Executive becomes employed and has made available to
him in connection with such employment at the expense of the employer that
particular type of insurance, so long as such insurance is substantially similar
to the insurance provided by the Employer.
(v) In the event the Executive becomes employed
and has made available to him in connection with such employment at the expense
of the employer life insurance which is substantially similar to the life
insurance provided by the Employer pursuant to Subsections 6(e)(ii) and
6(e)(iii) hereof, the Employer shall be required to provide the Executive with
life insurance pursuant to such subsections only in an amount equal to the
excess, if any, of the amount of life insurance which would be provided by the
Employer pursuant to such subsections if the Executive had not been provided
with life insurance in connection with his new employment over the amount of
life insurance provided by the Executive's new employer.
(f) Set-off. The Employer shall be entitled to set off on
a monthly basis against any cash compensation to be provided to the Executive
under Section 6(e)(i) above one-half of the amount of any cash compensation
received by the Executive from other employment during the period in which the
Executive receives cash compensation under Section 6(e)(i). The Executive shall
inform the Employer of any such amounts of cash compensation and upon request
shall
provide the Employer with reasonably satisfactory evidence thereof, and shall
refund to the Employer any amounts which the Employer has paid which exceed the
amounts due from the Employer after application of the set-off provided for in
this section. Notwithstanding the foregoing and any other provision of this
Agreement, the Executive shall be under no obligation to seek or accept any
employment after termination of employment with the Employer for any reason.
(g) Litigation and Regulatory Cooperation. During the
term of this Agreement and the period in which the Executive is subject to the
obligations in Section 8, the Executive shall cooperate fully with the Employer
in the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Employer which relate
to events or occurrences that transpired while the Executive was employed by the
Employer. The Executive's full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Employer at mutually convenient times. The Executive shall also cooperate
fully with the Employer in connection with any examination or review of any
federal or state regulatory authority as any such examination or review relates
to events or occurrences that transpired while the Executive was employed by the
Employer. If such cooperation is required after the Executive ceases to receive
cash compensation from the Employer under Section 4 or Section 6, the Employer
shall pay the Executive for such cooperation a fee of one hundred dollars
($100.00) per hour, payable monthly in arrears, and will reimburse the Executive
for any reasonable out-of-pocket expenses incurred in connection therewith.
7. Disability. If, due to physical or mental illness, the
Executive shall be disabled so as to be unable to perform substantially all of
his duties and responsibilities hereunder, which disability lasts for an
uninterrupted period of at least 90 days or a total of at least 180 days in any
calendar year (as determined by the opinion of an independent physician selected
by the Board of Directors of the Employer), the Employer, acting through its
Board of Directors, may designate another executive to act in his place during
the period of such disability. Notwithstanding any such designation, the
Executive shall continue to receive his full salary and benefits under Section 4
of this Agreement until he becomes eligible for disability income under the
Employer's disability income plan. While receiving disability income payments
under such plan, the Executive shall receive the difference between such
payments and his salary under Section 4(a) (but not any Bonus, except as accrued
through the date of determination of disability) and shall continue to
participate in the Employer's benefit plans and to receive other benefits as
specified in Section 4 until the Expiration Date.
8. Noncompetition and Confidential Information.
(a) Noncompetition. During:
(i) a period of three years following the date
of termination of the Executive's employment with the Employer (x) by the
Employer for Cause pursuant to Section 6(b) hereof, or (y) by the Executive in
the event that such termination is not for Good Reason, and
(ii) the period during which the Employer
continues to provide benefits to the Executive pursuant to Section 6(e)(i)-(iii)
hereof;
the Executive will not, directly or indirectly, whether individually or as an
owner, partner, shareholder, consultant, agent, employee, co-venturer of or to
any business the principal purpose of which is to provide analytical services to
others, or through any such Person (as defined in Section 10), compete in any
state within the United States of America in which the Company conducts business
as of the date of termination, with the Employer's business of providing
analytical services to the biotechnology, pharmaceutical and agricultural
industries or any other business conducted by the Employer during the period of
his employment hereunder, nor will he attempt to hire any employee of the
Employer, assist in or recommend such hiring by any other Person, encourage any
such employee to terminate his or her relationship with the Employer, or solicit
or encourage any customer of the Employer to terminate its relationship with the
Employer or to conduct with any other Person any business or activity which such
customer conducts or could conduct with the Employer. This Section 8 shall not
preclude the Executive from owning not more than 5% of the outstanding stock of
any company that has securities registered under Section 12 of the Securities
Exchange Act of 1934, as amended.
(b) Confidential Information. The Executive agrees and
acknowledges that, by reason of his employment by and service to the Employer,
he has had and will have access to confidential information of the Employer (and
its affiliates, vendors, customers, and others having business dealings with it)
including, without limitation, information and knowledge pertaining to products
and services, sales and profit figures, customer and client lists and
information related to relationships between the Employer and its affiliates,
customers, vendors, and others having business dealings with it (collectively,
the "Confidential Information"). The Executive acknowledges that the
Confidential Information is a valuable and unique asset of the Employer (and its
affiliates, vendors, customers, and others having business dealings with it) and
covenants that, both during and after the term of his employment by the
Employer, he will not disclose any Confidential Information to any person or use
any Confidential Information (except as his duties as an employee of the
Employer may require) without the prior written authorization of the Board of
Directors of the Employer. The Executive further agrees that all files, computer
programs and files, letters, memoranda, reports, records, data, sketches,
drawings, program listings or other written, photographic, or other tangible
material containing Confidential Information, whether created by the Executive
or others, which shall come into his custody or possession, shall be and are the
exclusive property of the Employer to be used by the Executive only in the
performance of his duties for the Employer. All such records or copies thereof
and all tangible property of the Employer in the custody or possession of the
Executive shall be delivered to the Employer, upon the earlier of (i) a request
by the Employer or (ii) termination of the Executive's employment. After such
delivery, the Executive shall not retain any such records or copies thereof or
any such tangible property. The obligation of confidentiality imposed by this
Section shall not apply to information that is required by law, regulation or
judicial or governmental authorities to be disclosed or that otherwise becomes
part of the public domain by means not involving a breach of a convenant of
confidentiality owed to the Employer.
(c) Rights and Remedies Upon Breach. If the Executive
breaches, or threatens to commit a breach of, any of provisions of Section 8
hereof (collectively, the "Restrictive Covenants"), the Employer 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 Employer under law or in equity:
(i) Specific Performance. The Executive
recognizes and agrees that the violation of the Restrictive Covenants may not be
reasonably or adequately compensated in damages and that, in addition to any
other relief to which the Employer may be entitled by reason of such violation,
it shall also be entitled to permanent and temporary injunctive and equitable
relief and, pending determination of any dispute with respect to such violation,
no bond or security shall be required in connection therewith. Without limiting
the generality of the foregoing, the Executive specifically acknowledges that
showing by the Employer of any breach of any provision of any Restrictive
Covenant shall constitute, for the purposes of all judicial determinations of
the issue of injunctive relief, conclusive proof of all of the elements
necessary to entitle the Employer to interim and permanent injunctive relief
against the Executive with respect to such breach. If any dispute arises with
respect to this Section 8, without limiting in any way any other rights or
remedies to which the Employer may be entitled, the Executive agrees that the
Restrictive Covenants shall be enforceable by a decree of specific performance.
(ii) Accounting. The Employer shall have the
right and remedy to require the Executive to account for and pay over to the
Employer all compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by the Executive as the
result of any transactions constituting a breach of any of the Restrictive
Covenants, and the Executive shall account for and pay overall such Benefits to
the Employer.
(d) Severability of Covenants. If any of the Restrictive
Covenants, or any part thereof, or any of the other provisions of this Section 8
is held by a court of competent jurisdiction or any other governmental authority
to be invalid, void, unenforceable or against public policy for any reason, the
remainder of the Restrictive Covenants or such other provisions shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and such court or authority shall be empowered to substitute, to the extent
enforceable, provisions similar thereto or other provisions so as to provide to
the Employer to the fullest extent permitted by applicable law, the benefits
intended by such provisions.
(e) Enforceability in Jurisdictions. The parties intend
to and hereby confer jurisdiction to enforce the Restrictive Covenants and the
other provision of this Section 8 upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants or other provisions, as the
case may be. If the courts of any one or more of such jurisdictions hold the
Restrictive covenants or other provisions, as the case may be, wholly invalid or
unenforceable by reason of the breadth or scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
the Employer's right to the relief provided above in the courts of any other
jurisdiction within the geographical scope of such Restrictive Covenant or other
provisions, as
the case may be, as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
(f) Definition and Survival. For purposes of this
Section 8 only, the term "Employer" shall mean Commonwealth Biotechnologies,
Inc. and any of its subsidiaries and affiliates. All provisions of this Section
8 shall survive termination of this Agreement.
9. Conflicting Agreements. The Executive hereby represents and
warrants that the execution of this Agreement and the performance of his
obligations hereunder will not breach or be in conflict with any other agreement
to which he is a party or by which he is bound, and that he is not subject to
any covenants against competition or similar covenants which would affect the
performance of his obligations hereunder.
10. Definition of "Person". For all purposes of this Agreement,
the term "Person" shall mean an individual, a corporation, an association, a
partnership, an estate, a trust and any other entity or organization.
11. Withholding. All payments made by the Employer under this
Agreement shall be net of any tax or other amounts required to be withheld by
the Employer under applicable law.
12. Arbitration of Disputes. Any controversy or claim arising out
of or relating to the employment relationship between the Executive and the
Employer, this Agreement or any breach thereof, other than a controversy or
claim relating to Section 8 of this Agreement, shall be settled by arbitration
in accordance with the laws of the Commonwealth of Virginia by three
arbitrators, one of whom shall be appointed by the Employer, one by the
Executive and the third by the first two arbitrators. If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator shall be appointed by the American Arbitration Association in
the City of Richmond. Such arbitration shall be conducted in the City of
Richmond in accordance with the rules of the American Arbitration Association,
except with respect to the selection of arbitrators which shall be as provided
in this Section 12. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The party against whom the
arbitrators shall render an award shall pay the other party's reasonable
attorneys' fees and other reasonable costs and expenses in connection with the
enforcement of its rights under this Agreement (including the enforcement of any
arbitration award in court), unless and to the extent the arbitrators shall
determine that under the circumstances recovery by the prevailing party of all
or a part of any such fees and costs and expenses would be unjust.
13. Assignment; Successors and Assigns, etc. Neither the Employer
nor the Executive may make any assignment of this Agreement or any interest
herein, by operation of law or otherwise, without the prior written consent of
the other party; provided, however, that the Employer may assign its rights
under this Agreement without the consent of the Executive in the event that the
Employer shall hereafter effect a reorganization, consolidate with or merge into
any other Person, or transfer all or substantially all of its properties or
assets to any other Person. This Agreement shall inure to the benefit of and be
binding upon the Employer and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns. In the event of the
Executive's death prior to the completion by the Employer of all payments due
him under this Agreement, the Employer shall continue such payments to the
Executive's beneficiary designated in writing to the Employer prior to his death
(or to his estate, if he fails to make such designation).
14. Enforceability. If any portion or provision of this Agreement
shall to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
15. Waiver. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. The failure of any party
to require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
16. Notices. Any notices, request, demands and other
communications provided for by this Agreement shall be sufficient if in writing
and delivered in person or sent by registered or certified mail, postage prepaid
(in which case notice shall be deemed to have been given on the third day after
mailing), or by overnight delivery by a reliable overnight courier service (in
which case notice shall be deemed to have been given on the day after delivery
to such courier service) to the Executive at the last address the Executive has
filed in writing with the Employer or, in the case of the Employer, at its main
offices, attention of the Board of Directors.
17. Entire Agreement; Amendment. This Agreement may be amended or
modified only by a written instrument approved by each of the Board of Directors
of the Employer and the Compensation Committee thereof, signed by the Executive
and by a duly authorized representative of the Employer who is the Chairman of
the Board or President or an Executive Vice President of the Employer and who is
not the Executive. This Agreement, together with the Executive Severance
Agreement of even date herewith entered into between the parties hereto,
constitutes the entire agreement between the parties with respect to the subject
matter hereof and no agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement or in the Executive
Severance Agreement.
18. Governing Law. This is a Virginia contract and shall be
construed under and be governed in all respects by the laws of the Commonwealth
of Virginia, without giving effect to the choice of law principles of any state.
19. Legal Counsel. This Agreement has been prepared by XxXxxxx
Xxxx, A Professional Corporation, as counsel to the Company, after full
disclosure of its representation of the Company and with the consent of the
Executive. The Executive has reviewed the contents of this Agreement and fully
understands its terms. The Executive acknowledges that he is fully aware of his
right to the advice of counsel independent from that of the Company, that
XxXxxxx Xxxx, A Professional Corporation, has advised him of such right and
disclosed to
him the risks in not seeking such independent advice, and that he understands
the potentially adverse interests of the parties with respect to this Agreement.
The Executive further acknowledges that no representations have been made with
respect to the income or estate tax or other consequences of this Agreement to
him and that he has been advised of the importance of seeking independent advice
of counsel with respect to such consequences.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by the
Executive, as of the date first above written.
COMMONWEALTH
BIOTECHNOLOGIES, INC.
By:--------------------------------
Title:-----------------------------
Date: June 25, 1997
-----------------------------------
Xxxxxxx X. Xxxx, Ph.D.
Date: June 25, 1997
Address:---------------------------
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