EMPLOYMENT AGREEMENT
This
Employment Agreement dated as of June 8, 2007 (the “Effective
Date”)
between Velcera, Inc., a Delaware corporation (the “Company”)
with
its principal corporate offices at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
00000, and Xxxxxx X. Xxxxxxxx (“Executive”),
residing at 00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000.
The
Company and Executive are parties to an employment agreement dated April 20,
2004, whereby Executive served as President and Chief Executive Officer of
the
Company according to the terms set forth therein. That employment agreement
expired as of May 2, 2007 and Executive and the Company desire that Executive
continue to serve the Company as President and Chief Executive Officer upon
the
terms set forth herein.
The
parties hereby agree as follows:
1. Employment
(a) Services.
The
Company hereby agrees to employ Executive as its President and Chief Executive
Officer. Executive will report to the Board of Directors of the Company (the
“Board”)
and
shall be responsible for directing all daily operations of the Company,
including, but not limited to, sales, marketing, sourcing, licensing, product
development and financial affairs, and such other duties as consistent with
the
position as President and Chief Executive Officer and are otherwise directed
by
the Board (the “Services”).
(b) Acceptance.
Executive hereby accepts such employment and agrees to render the
Services.
2. Term.
Executive's
employment under this Agreement shall commence as of June 8, 2007 and shall
continue through December 31, 2007, subject to earlier termination or renewal
as
provided herein (the “Term”
or
the
“Expiration
Date”).
The
Term will automatically renew on January 1, 2008 and on each successive
anniversary date thereof for a one-year period unless written notice is given
by
the Company or Executive of its or his intention not to extend the Term at
least
60 days prior to December 31, 2007 or such subsequent anniversary date, as
the
case may be, subject in all cases to earlier termination as set forth herein.
Notwithstanding anything to the contrary contained herein, the provisions of
this Agreement governing protection of Confidential Information shall continue
in effect as specified in Section 6 hereof and survive the expiration or earlier
termination of the Term. The actual period during which Executive continues
to
be employed by the Company is referred to herein as the “Term”
and
the
actual date upon which Executive’s employment with the Company is terminated or
this Agreement expires, as the case may be, is referred to herein as the
“Expiration
Date”.
3. Best
Efforts; Place of Performance.
(a) Executive
agrees to perform the Services faithfully and to devote substantially all of
his
business time, attention and energies to the business and affairs of the Company
during the Term and shall use his commercially reasonable best efforts to
advance the interests of the Company and shall not during the Term be actively
engaged in any other business activity, whether or not such business activity
is
pursued for gain, profit or other pecuniary advantage, that will materially
interfere with the performance by Executive of his duties hereunder or
Executive's availability to perform such duties or that will adversely affect,
or negatively reflect upon, the Company. Notwithstanding the foregoing, it
is
understood and agreed that during the Term Executive shall be entitled (i)
to
continue to participate in charitable and civic activities, (ii) to maintain
his
ownership interest in Valorum Associates, Ltd., (iii) to maintain his ownership
interest in AgroSource Inc. and (iv) to purchase, hold and sell securities
of
publicly-traded corporations for his own account provided that his beneficial
ownership of any one such issuer does not exceed 2%, in each case without being
deemed to violate the provisions of this Section 3(a), provided, however, that
such activities to do not occupy more than 8 business hours per month of
Executive's time.
(b) The
duties to be performed by Executive hereunder shall be performed primarily
at an
office of the Company to be located within a thirty-minute commuting radius
of
Executive's current residence in Yardley, Pennsylvania, subject to reasonable
travel requirements on behalf of the Company, or at such other place as
Executive and the Board may mutually agree.
4. Directorship.
The
Company shall use its best efforts to cause Executive to be nominated and
elected as a member of its board of directors throughout the Term and shall
include Executive in the management slate for election as a director at every
stockholders meeting held during the Term at which his term as a director would
otherwise expire. Executive agrees to accept election, and to serve during
the
Term, as director of the Company, without any compensation other than as
specified in this Agreement.
5. Compensation
As full
compensation for the performance by Executive of his duties under this
Agreement, the Company shall pay Executive as follows:
(a) Base
Salary.
The
Company shall pay Executive a salary (the “Base
Salary”)
equal
to $275,000 per year, effective as of May 1, 2007. Payment will be made in
accordance with the Company's normal payroll practices. The Board will consider
increases to the Base Salary on an annual basis.
(b) Discretionary
Bonus.
At the
sole discretion of the Board, Executive may receive an annual bonus having
an
aggregate value of up to $300,000.00, based upon his performance on behalf
of
the Company during the prior calendar year (the “Discretionary
Bonus”).
Any
Discretionary Bonus awarded by the Board for the period from the Effective
Date
through December 31, 2007 will be prorated from May 1, 2007 through December
31,
2007. The Board will consider increases to the Discretionary Bonus on an annual
basis. Factors to be considered by the Board in determining if to award a
Discretionary Bonus and the amount of any Discretionary Bonus awarded include,
but are not limited to, growth in the Company's market capitalization, product
development and sales growth, the liquidity and performance of the Company's
common stock, and financing received by the Company from third parties
introduced to the Company by Executive. The Discretionary Bonus is payable
60%
in cash (as a lump-sum payment on or before March 15th
of the
following calendar year) and 40% in common stock of the Company, unless the
Board determines, in its sole discretion, to adjust the above allocation to
include more cash. The number of shares of common stock issued hereunder will
be
determined by dividing the amount payable to Executive in common stock by the
closing price of the common stock for the trading day immediately preceding
payment of the Discretionary Bonus. If the common stock of the Company is not
then traded, the denominator for the above calculation will be the fair market
value of the common stock as determined in the sole discretion of the
Board.
(c) Additional
Bonus.
Other
than for products and technologies incorporating PromistTM
delivery
technology, Executive will receive a lump-sum cash bonus of $50,000.00 no later
than 30 days following the adoption of each new product or technology by the
Company during the Term, as approved by the Board, including, without
limitation, the adoption of a new product or technology acquired through
acquisition or in-licensing.
(d) Withholding.
The
Company shall withhold all applicable federal, state and local taxes and social
security and such other amounts as may be required by law from all amounts
payable to Executive under this Section 5.
(e) Stock
Option.
As
additional compensation for the Services, on May 25, 2007 the Company granted
Executive an option to purchase 280,000 shares of common stock of the Company
pursuant to the terms set forth in the stock option agreement between Executive
and the Company on such date.
(f) Other
Benefits.
Executive shall be entitled to all rights and benefits for which he shall be
eligible under any benefit or other plans (including, without limitation, life
insurance, dental, medical, medical reimbursement and hospital plans, pension
plans, employee stock purchase plans, profit sharing plans, bonus plans and
other so-called "fringe" benefits) as the Company shall make available to its
senior executives from time to time.
(g) Vacation.
Executive is entitled to 3 weeks per calendar year of vacation, in addition
to
holidays observed by the Company. Executive will not be entitled to carry any
vacation forward to the next year of employment and will not receive any
compensation for unused vacation days.
6. Confidential
Information and Inventions.
(a) Executive
recognizes and acknowledges that in the course of his duties he will receive
confidential or proprietary information owned by the Company, its affiliates
or
third parties with whom the Company or any such affiliates has an obligation
of
confidentiality. Accordingly, during and after the Term, Executive agrees to
keep confidential and not disclose or make accessible to any other person or
use
for any purpose other than in connection with the fulfillment of Executive’s
duties under this Agreement, any Confidential and Proprietary Information (as
defined below) owned by, or received by or on behalf of, the Company or any
of
its affiliates. “Confidential
and Proprietary Information”
means
confidential or proprietary scientific or technical information, data, formulas
and related concepts, business plans (both current and under development),
client lists, promotion and marketing programs, trade secrets, or any other
confidential or proprietary business information relating to development
programs, costs, revenues, marketing, investments, sales activities, promotions,
credit and financial data, manufacturing processes, financing methods, plans
or
the business and affairs of the Company or of any affiliate or client of the
Company. Notwithstanding the foregoing, Confidential and Proprietary Information
shall not include (i) any information to the extent it becomes generally known
to the public through no fault of Executive or (ii) any information which
Executive is required to disclose as a result of a subpoena or other legal
process, provided, however, Executive shall give prompt notice of such request
to the Company so that the Company may seek an appropriate protective order.
If,
in the absence of a protective order, Executive is legally compelled to disclose
Confidential and Proprietary Information, such Confidential and Proprietary
Information (and only such Confidential and Proprietary Information) may be
disclosed in such proceeding without liability hereunder; provided, however,
that Executive shall give the Company written notice of the Confidential and
Proprietary Information to be disclosed as far in advance of its disclosure
as
is practical and, upon the Company's request and at the Company's expense,
Executive shall use all reasonable efforts to obtain assurances that
confidential treatment will be accorded to the disclosure of such Confidential
and Proprietary Information in such proceeding. Executive expressly acknowledges
the trade secret status of the Confidential and Proprietary Information and
that
the Confidential and Proprietary Information constitutes a protectable business
interest of the Company. Executive agrees: (i) not to use any such Confidential
and Proprietary Information for himself or others; and (ii) not to take any
Company material, or reproductions (including, but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof from the Company's offices at
any
time during his employment by the Company, except as required in the execution
of Executive's duties to the Company. Executive agrees to return promptly all
Company materials and reproductions (including, but not limited, to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof in his possession to the Company
upon request and in any event upon termination of employment.
(b) Except
with prior written authorization by the Company, Executive agrees not to
disclose or publish any of the Confidential and Proprietary Information, or
any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence
at
any time during or after his employment with the Company.
(c) Executive
agrees that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”)
initiated, conceived or made by him, either alone or in conjunction with others,
during the Term shall be the sole property of the Company to the maximum extent
permitted by applicable law and, to the extent permitted by law, shall be "works
made for hire" as that term is defined in the United States Copyright Act (17
U.S.C.A., Section 101). The Company shall be the sole owner of all patents,
copyrights, trade secret rights, and other intellectual property or other rights
in connection therewith. Executive hereby assigns to the Company all right,
title and interest he may have or acquire in all such Inventions; provided,
however, that the Board may in its sole discretion agree to waive the Company's
rights pursuant to this Section 6(c) with respect to any Invention that is
not
directly or indirectly related to the Company's business. Executive further
agrees to assist the Company in every proper way (but at the Company's expense)
to obtain and from time to time enforce patents, copyrights or other rights
on
such Inventions in any and all countries, and to that end Executive will execute
all documents necessary;
(i) to
apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection
in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(d) Executive
acknowledges that while performing the Services under this Agreement Executive
may locate, identify and/or evaluate patented or patentable inventions having
commercial potential in the fields of pharmacy, pharmaceutical, biotechnology,
healthcare, technology and other fields which may be of potential interest
to
the Company or one of its affiliates (the “Third
Party Inventions”).
Executive understands, acknowledges and agrees that all rights to, interests
in
or opportunities regarding, all Third-Party Inventions identified by the
Company, any of its affiliates or either of the foregoing persons' officers,
directors, employees (including Executive), agents or consultants during the
Term will remain the sole and exclusive property of the Company or such
affiliate and Executive shall have no rights whatsoever to such Third-Party
Inventions and will not pursue for himself or for others any transaction
relating to the Third-Party Inventions which is not on behalf of the
Company.
(e) Executive
agrees that he will promptly disclose to the Company, or any persons designated
by the Company, all improvements, Inventions made or conceived or reduced to
practice or learned by him, either alone or jointly with others, during the
Term.
(f) The
provisions of this Section 6 shall survive the termination of Executive’s
employment with the Company.
7. Non-Competition;
Non-Solicitation; Non-Disparagement.
(a) Executive
understands and recognizes that his services to the Company are special and
unique and that in the course of performing such services Executive will have
access to and knowledge of Confidential and Proprietary Information (as defined
in Section 6) and Executive agrees that, during the Term and for an additional
period of 12 months thereafter (such period, the “Restricted
Period”),
he
shall not in any manner, directly of indirectly, on behalf of himself or any
person, firm, partnership, joint venture, corporation or other business entity
(“Person”),
engage in any business which is directly or indirectly competitive with the
business of the Company within the geographic area of the Company's business,
which is worldwide. Executive acknowledges that, due to the unique nature of
the
Company's business, the loss of any of its clients or business flow or the
improper use of its Confidential and Proprietary Information could create
significant instability and cause substantial damage to the Company and its
affiliates and therefore the Company has a strong legitimate business interest
in protecting the continuity of its business interests and the restriction
herein agreed to by Executive narrowly and fairly serves such an important
and
critical business interest of the Company. For purposes of this Agreement,
the
Company will be deemed to be actively engaged on the date hereof in the
development and commercialization of (i) drug delivery systems for animals,
and
(ii) in the future of any other business in which it actually devotes
substantive resources to study, develop or pursue. Notwithstanding the
foregoing, nothing contained herein shall be deemed to prohibit Executive from
(i) acquiring, or holding, solely for investment, publicly traded securities
of
any corporation, some or all of the activities of which are competitive with
the
business of the Company so long as such securities do not, in the aggregate,
constitute more than 4% of any class or series of outstanding securities of
such
corporation,
(b) During
the Term and thereafter during the Restricted Period, if any, Executive shall
not, directly or indirectly, without the prior written consent of the
Company;
(i) solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any such affiliate; or hire for any purpose any
employee of the Company or any affiliate or any employee who has left the
employment of the Company or any affiliate within one year of the termination
of
such employee's employment with the Company or any such affiliate or at any
time
in violation of such employee's non-competition agreement with the Company
or
any such affiliate; or
(ii) solicit
or accept employment or be retained by any Person who, at any time during the
Term, was an agent, client or customer of the Company or any of its affiliates
where his position will be related to the business of the Company or any such
affiliate; or
(iii) solicit
or accept the business of any agent, client or customer of the Company or any
of
its affiliates with respect to products, services or investments similar to
those provided or supplied by the Company or any of its affiliates.
(c) The
Company and Executive each agree that both during the Term and at all times
thereafter, neither party shall directly or indirectly disparage, whether or
not
true, the name or reputation of the other party or any of its affiliates,
including but not limited to, any officer, director, employee or shareholder
of
the Company or any of its affiliates.
(d) In
the
event that Executive breaches any provision of Section 6 or this Section 7
or
there is a threatened breach, then, in addition to any other rights which the
Company may have, the Company will (i) be entitled, without the posting of
a
bond or other security, to injunctive relief to enforce the restrictions
contained in such Sections and (ii) have the right to require Executive to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments and other benefits (collectively “Benefits”)
derived or received by Executive as a result of any transaction constituting
a
breach of any of the provisions of Sections 6 or 7 and Executive hereby agrees
to account for and pay over such Benefits to the Company.
(e) Each
of
the rights and remedies enumerated in Section 7(d) shall be independent of
the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any covenant contained
in this Section 7 is hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the remainder of the covenants or
rights or remedies, which will be given full effect without regard to the
invalid portions. If any covenant contained in this Section 7 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and
in
its reduced form such provision shall then be enforceable. No such holding
of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company's right to the relief provided in this Section 7 or otherwise
in the courts of any other state or jurisdiction within the geographical scope
of such covenants as to breaches of such covenants in such other respective
states or jurisdictions, such covenants being, for this propose, severable
into
diverse and independent covenants.
(f) In
the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 6 or this Section 7, Executive shall not urge as a defense that
there
is an adequate remedy of law nor shall the Company be prevented from seeking
any
other remedies which may be available. Executive agrees that he shall not raise
in any proceeding brought to enforce the provisions of Section 6 or this Section
7 that the covenants contained in such Sections limit his ability to earn a
living.
(g) Notwithstanding
anything to the contrary in this Section 7, (i) it is understood and agreed
that
Executive's performance of his obligations pursuant to this Section 7 during
the
Restricted Period, if any, are subject to the Company's performance of its
obligations to Executive in connection with the termination of his employment
pursuant to Section 10 below and (ii) it is understood and agreed that the
Company's performance of its obligations pursuant to Section 10 during the
Restricted Period, if any, are subject to Executive’s performance of his
obligations to the Company in connection this Section 7.
(h) The
provisions of this Section 7 shall survive the termination of Executive’s
employment with the Company.
8. Representations
and Warranties by Executive.
Executive
hereby represents and warrants to the Company as follows:
(a) Neither
the execution or delivery of this Agreement nor the performance by Executive
of
his duties and other obligations hereunder violate or will violate any statute,
law, determination or award, or conflict with or constitute a default or breach
of any covenant or obligation under (whether immediately, upon the giving of
notice or lapse of time or both) any prior employment agreement, contract,
or
other instrument to which Executive is a party or by which he is
bound.
(b) Executive
has the full right, power and legal capacity to enter and deliver this Agreement
and to perform his duties and other obligations hereunder. This Agreement
constitutes the legal, valid and binding obligation of Executive enforceable
against him in accordance with its terms. No approvals or consents of any
persons or entities are required for Executive to execute and deliver this
Agreement or perform his duties and other obligations hereunder.
9. Termination.
Executive's employment hereunder will be terminated upon Executive's death
and
may be terminated as follows:
(a) Executive's
employment hereunder may be terminated by the Board for Cause (as defined
below). Any of the following actions by Executive shall constitute “Cause”;
(i) Executive's
commission of embezzlement, theft or other dishonest or fraudulent acts of
a
material nature, provided that the Company gives notice thereof identifying
the
conduct alleged and allows Executive and his representatives to present his
position to the Board prior to such termination;
(ii) Executive's
conviction of a felony, whether or not committed in the course of his employment
by the Company;
(iii) Executive's
willful malfeasance or gross negligence which has a material adverse effect
on
the Company or its business, provided that the Company gives notice thereof
identifying the conduct alleged and, if such action is capable of cure, gives
Executive 10 business days to cure;
(iv) persistent
inattention or failure by Executive to discharge his duties and responsibilities
due to alcohol or drug abuse, provided that the Company gives notice thereof
identifying the conduct alleged and, if such action is capable of cure, give
Executive 10 business days to cure;
(v) a
violation of the Company's policy regarding discrimination or harassment in
the
workplace which is deemed by a majority of the disinterested members of the
Board acting in good faith to warrant the termination of Executive's employment
hereunder provided that, if such action is capable of cure, the Board gives
Executive 10 business days to cure unless there is a serious claim filed by
a
Company employee which is sustainable in the judgment of the Company's outside
counsel and, in any event after Executive and his representative have been
given
a reasonable opportunity to present his position; and
(vi) a
willful
disregard or failure to perform a written lawful directive of the Board
consistent with Executive's duties as President and Chief Executive
Officer;
(vii) the
material breach by Executive of this Agreement, which breach remains uncured
for
10 business days after written notice of such breach.
(b) In
the
event Executive, by reason of physical or mental disability (excluding
infrequent and temporary absences due to ordinary transitory illnesses), is
unable for more than 2 months in the consecutive 12 month period to perform
the
Services, or in the event Executive is permanently disabled, a termination
of
this Agreement for “Disability”
will
occur at the end of the month following the month in which the Company gives
notice to Executive of its intention to terminate the Agreement because of
such
Disability.
(c) Executive's
employment hereunder may be terminated by the Board (or its successor) upon
the
occurrence of a Change of Control. For purposes of this Agreement, “Change
of Control”
means
(i) the acquisition, directly or indirectly by any person (as such term is
defined in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as
amended), in one transaction or a series of related transactions, of securities
of the Company representing in excess of fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities or (ii)
the
disposition by the Company (whether direct or indirect, by sale of assets or
stock, merger, consolidation or otherwise) of all or substantially all of its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
(d) Executive's
employment hereunder may be terminated by Executive for Good Reason. For
purposes of this Agreement, “Good
Reason”
means
(i) failure by the Company to continue Executive in his executive position
as
President and Chief Executive Officer of the Company; (ii) material reduction
in
the nature or scope of Executive's responsibilities, duties, power or authority,
in each case as set forth in Section 1 above; (iii) material reduction by the
Company of Executive's benefits (unless such benefits are similarly reduced
for
all employees); (iv) failure of Executive to be nominated to serve as a member
of the Board at each stockholders meeting of the Company held during the Term
(and such current Board members will be obligated to vote shares in favor of
Executive), or (v) a material breach by the Company of any provision of this
Agreement that is not cured within 10 business days following delivery of
written notice of such material breach by Executive to the Board.
(e) Executive’s
employment may be terminated by the Board without Cause, and for any reason,
upon 30 days advance written notice to Executive. Executive may terminate his
employment with the Company for any reason upon 30 days advance written notice
to the Company.
10. Compensation
upon Termination.
(a) If
Executive’s employment is terminated as a result of Executive’s death or
Disability, the Company shall pay to Executive or to Executive's estate, as
applicable, (i) his accrued but unpaid Base Salary, (ii) any Discretionary
Bonus, if any, which has been earned but is unpaid, and (iii) expense
reimbursement amounts, in each case through the date of Executive’s death or
Disability.
(b) If
Executive’s employment is terminated by the Company for Cause, then the Company
shall pay to Executive (i) accrued but unpaid Base Salary in accordance with
normal payroll practices and (ii) expense reimbursement amounts, in each case
through the date of termination. In the event of a termination for Cause,
Executive will have no further entitlement hereunder to any other compensation
or benefits from the Company except to the extent otherwise provided by law.
(c) Termination
upon Change of Control.
(i) In
the
event Executive’s employment is
terminated by the Company prior to and as a result of, or within one year
following, a Change of Control resulting in the Company or its stockholders
receiving at least $50,000,000 in value, then the Company shall pay to Executive
on the effective date of such termination (i) one year's Base Salary in a lump
sum, (ii) his expense reimbursement amounts, in each case through the date
of
the Change of Control, (iii) $300,000 in cash, and (iv) an additional amount
in
cash equal to $822.00 multiplied by the number of days the Company employed
Executive under this Agreement during the then current calendar year. In
addition, at the request of Executive, the Board of Directors will reasonably
consider releasing Executive from the Non-Competition obligations described
in
section 7.
(ii) In
the
event Executive’s employment is
terminated by the Company prior to and as a result of, or within one year
following, a Change of Control resulting in the Company or its stockholders
receiving less than $50,000,000 in value, then the Company shall pay to
Executive on the effective date of such termination (i) 6 months Base Salary
in
a lump sum, (ii) his expense reimbursement amounts, in each case through the
date of the Change of Control, and (iii) an additional amount in cash equal
to
$822.00 multiplied by the number of days the Company employed Executive under
this Agreement during the then current calendar year. In addition, at the
request of Executive, the Board will reasonably consider releasing Executive
from the covenants set forth in Section 7.
(d) If
Executive terminates his employment with the Company for Good Reason or is
terminated by the Company other than as a result of Executive's death or
Disability and other than for reasons specified in Sections 10(b) or 10(c),
then
the Company shall (i) continue to pay to Executive his Base Salary for a period
of 12 months following such termination in accordance with normal payroll
practices; provided that, if on March 15th
of the
calendar year following the date of termination, the required amount has not
been paid in full, the Company shall pay the remainder on such date, (ii) pay
Executive in a lump sum on the date of termination any expense reimbursement
amounts owed through the date of termination, and (iii) pay Executive an
additional amount in cash equal to $822.00 multiplied by the number of days
the
Company employed Executive under this Agreement during the then current calendar
year.
(e) This
Section 10 sets forth all of the obligations of the Company with respect to
the
termination of Executive’s employment. Executive acknowledges that, upon the
termination of his employment, he will not be entitled to any payments or
benefits which are not explicitly provided for in this Section 10 except as
otherwise provided by law.
(f) Upon
termination of Executive’s employment for any reason by either party, Executive
shall be deemed to have resigned as director of the Company, effective as of
the
date of such termination.
(g) The
provisions of this Section 10 shall survive the termination of Executive’s
employment with the Company.
11. Indemnification.
The
Company agrees to indemnify, defend and hold Executive harmless from and against
all loss, liability and expense (including, but not limited to, reasonable
attorneys' fees) arising out of, relating to or incurred by Executive in
connection with the performance of the Services or his duties as a director
of
the Company to the maximum extent permitted by the laws of the State of Delaware
as in effect from time to time, except to the extent such loss, liability and
expense arises out of the fraud or willful misconduct of Executive. In addition,
the Company agrees to advance expenses to Executive in connection with the
defense of any claim brought against Executive for which Executive is entitled
to be indemnified by the Company in advance of a final decision on the merits,
subject to Executive's undertaking to reimburse the Company in the event that
Executive is finally judicially determined to have failed to meet the applicable
standard of conduct, to the maximum extent permitted by the laws of the State
of
Delaware as in effect from time to time. The provisions of this Section 11
shall
survive the termination of Executive’s employment with the Company.
12. Miscellaneous.
(a) This
Agreement is governed by, and construed and interpreted in accordance with,
the
laws of the Commonwealth of Pennsylvania, without giving effect to its
principles of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Sections 6 or 7 hereof), or regarding the interpretation hereof,
will be finally settled by arbitration conducted in Philadelphia, Pennsylvania
in accordance with the rules of the American Arbitration Association then in
effect before a single arbitrator appointed in accordance with such rules.
Judgment upon any award rendered therein may be entered and enforcement obtained
thereon in any court having jurisdiction. The arbitrator shall have authority
to
grant any form of appropriate relief, whether legal or equitable in nature,
including specific performance. For the purpose of any judicial proceeding
to
enforce such award or incidental to such arbitration or to compel arbitration
and for purposes of Sections 6 and 7 hereof, the parties hereby submit to the
non-exclusive jurisdiction of the state and federal courts having jurisdiction
over Philadelphia, Pennsylvania, and agree that service of process in such
arbitration or court proceedings shall be satisfactorily made upon it if sent
by
registered mail addressed to it at the address referred to in paragraph (g)
below. The costs of such arbitration shall be borne proportionate to the finding
of fault as determined by the arbitrator. Judgment on the arbitration award
may
be entered by any court of competent jurisdiction.
(c) This
Agreement shall be binding upon and inure to this benefit of the parties hereto,
and their respective heirs, legal representatives, successors and
assigns.
(d) This
Agreement, and Executive's rights and obligations hereunder, may not be assigned
by Executive. The Company may assign its rights, together with its obligations,
hereunder in connection with any sale, transfer or other disposition of all
or
substantially all of its business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing,
but
only by a written agreement signed by the parties hereto.
(f) The
failure of either party to insist upon the strict performance of any of the
teams, conditions and provisions of this Agreement shall not be construed as
a
waiver or relinquishment of future compliance, and such terms, conditions and
provisions shall remain in full force and effect. No waiver of any term of
this
Agreement on the part of either party will be effective for any purpose
whatsoever unless such waiver is in writing and signed by such
party,
(g) All
notices, requests, consents and other communications, required or permitted
to
be given hereunder, will be in writing and will be delivered personally or
by an
overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth
on
the first page of this Agreement, and will be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date
of
deposit in the United States mails. Either party may designate another address,
for receipt of notices hereunder by giving notice to the other party in
accordance with this paragraph (g).
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise, or inducement has been made by either party
that is not embodied in this Agreement, and neither party shall be bound by
or
liable for any alleged representation, promise or inducement not so set
forth.
(i) As
used
in this Agreement, "affiliate" of a specified Person shall mean and include
any
Person controlling, controlled by or under common control with the specified
Person.
(j) The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts. each of which shall
constitute an original, but all of which together shall constitute one and
the
same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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By:
/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx
X. Xxxx
Title: CFO
|
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X.
Xxxxxxxx
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