EXHIBIT 10.9
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EMPLOYMENT AGREEMENT
AGREEMENT made as of January 6, 2006, by and between Xxxxxx
Pharmaceuticals, Inc., (hereinafter referred to as the "Company"), a New Jersey
corporation, having an office at 000 Xxxxxxx 00, Xxxxxxx, Xxx Xxxxxx 00000 and
Xxxx X. Xxxxx, 0000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx 000, Xxxxxxxx, Xxxxxxx,
00000 (hereinafter referred to as the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to engage the services of the Executive, and
the Executive desires to render such services;
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. Employment. The Company hereby employs the Executive as Chief Executive
Officer, and the Executive hereby accepts such employment, subject to the terms
and conditions hereinafter set forth.
2. Term. The term of the Executive's employment hereunder shall commence on
the date of execution of this Agreement and shall continue to December 31, 2008
(the "Term") unless such Term is earlier terminated in accordance with the
provisions of this Agreement.
3. Duties. The Executive agrees that the Executive will serve the Company
on a full-time basis faithfully and to the best of his ability as the Chief
Executive Officer of the Company, subject to the general supervision of the
Board of Directors of the Company. The Executive agrees that the Executive will
not, during the term of this Agreement, engage in any other business activity
which interferes with the performance of his obligations under this Agreement
and will devote Executive's entire working time to the business and affairs of
the Company; provided, however, that the foregoing shall not be construed as
precluding the Executive from (i) serving on the board of directors of any
corporation not directly competitive or competitive in any material respect with
the Company, and (ii) investing or trading in securities or other forms of
investment, in each case, so long as such activities do not materially interfere
with the performance of the Executive's duties hereunder and such investments do
not represent the ownership of five percent (5%) or more of the capital stock of
publicly traded entities. Unless otherwise determined by the Company Executive
shall have the title of Chief Executive Officer, and in such capacity shall have
such authority and duties as may be assigned by the Board of Directors.
Performance of Executive's duties hereunder shall in no event require that
Executive relocate to any location outside the New York City metropolitan area.
4. Compensation.
(a) In consideration of the services to be rendered by the Executive
hereunder, including, without limitation, any services rendered by the Executive
as director of the Company or of any parent, subsidiary or affiliate of the
Company, the Company agrees to pay the Executive, and the Executive agrees to
accept fixed base compensation (the "Base Salary") at the rate of Sixty Thousand
($60,000), subject to all required federal, state and local payroll deductions,
that shall increase on the anniversary date of January 1, 2007 and upon every
annual anniversary thereafter, at a rate equal to percentage of any increase in
the Consumer Price Index - All Consumers for the New York-Northeastern New
Jersey Region as reported by
the Bureau of Labor Statistics for the United States, as compared with the same
Consumer Price Index for the immediately preceding year.
(b) The Executive shall be entitled to 10 days vacation in 2006 and 20 days
vacation during each calendar year thereafter.
(c) The Executive shall be entitled to such holidays, personal and sick
days in accordance with and subject to the Company's policies for its own senior
executives, as in effect from time to time.
(d) The Executive shall receive medical benefits via a group health policy
established by the Company. The Company shall pay 100% of the cost of the rate
for a single insured. Should Executive opt for family or other coverage,
Executive will be responsible for paying any incremental cost.
(e) To the extent that the Executive becomes mentally or physically
disabled, Executive shall continue to receive his salary and other benefits
hereunder until the earlier of expiration of the term of this Agreement or the
termination of this Agreement pursuant to Paragraph 10 hereof; provided,
however, that such salary shall be reduced by any disability benefits Executive
receives from policies maintained and paid for by the Company.
(f) An annual cash bonus will be paid to the Executive based upon the net
sales of the Company. Such bonus, payable within one hundred and five (105) days
of the end of the Company's fiscal year, shall be equal to 2.5% of net sales in
excess of $1,000,000 in 2006 and 2007, and 4% of net sales over $6 million in
2008.
5. Business Expenses.
Executive is authorized to incur, and the Company shall pay and reimburse
him for, all reasonable and necessary business expenses incurred in the
performance of his duties hereunder in accordance with guidelines adopted by the
Board of Directors. The Company will pay and reimburse Employee for all such
reasonable expenses upon the presentation by Employee, from time to time, of an
itemized account of such reasonable expenditures and proper documentation
thereof as evidence that such expenses have been incurred.
6. Termination by the Company for Cause.
(a) The Company may terminate Executive's employment hereunder at any time
for Cause by following the procedures required by this Section 6. Termination by
the Company of the Executive's employment for cause (herein referred to as "for
Cause"), shall mean termination upon:
i. the willful and continued failure by the Executive to
substantially perform the Executive's material duties with the
Company (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to the
Executive by the Board, which demand specifically identifies the
material duties that the Board believes that the Executive has
not substantially performed, or
ii. the willful engaging by the Executive in conduct that is
demonstrably and
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materially injurious to the Company, monetarily or otherwise. For
purposes of this Paragraph 6, no act, or failure to act, on the
Executive's part, shall be deemed "willful" unless done, or
omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive's action or omission
was in the best interest of the Company, or the conviction of the
Executive of a felony (or a plea of guilty or nolo contendre),
limited solely for a crime related to the business operations of
the Company, or that results in the Executive being unable to
substantially carry out his duties as set forth in this
Agreement, or
iii. the commission of any act by the Executive against the Company
that may be construed as the crime of embezzlement, larceny,
and/or grand larceny.
Any other provision in this paragraph to the contrary notwithstanding, the
Executive shall not be deemed to have been terminated for Termination for Cause
unless and until the Board duly adopts a resolution by the affirmative vote of
no less than two-thirds (2/3) of the entire membership of the Board, at a
meeting of the Board called and held for such purpose (after reasonable notice
to the Executive and an opportunity for the Executive, together with the
Executive's counsel, to be heard before the Board), finding that in the good
faith opinion of the Board, the Executive was guilty of conduct described in
Subparagraphs (i), (ii) or (iii) of this paragraph and specifying the
particulars thereof in detail and a certified copy of such resolution is
delivered to the Executive. Upon a termination of the Executive for Cause, the
Company shall have no further obligations whatsoever to the Executive, and the
Executive will not be entitled to any further payments, compensation or other
benefits from the Company.
(b) In the event that the Executive's employment is terminated for Cause
pursuant to Section 6(a) hereof, the Company shall pay within thirty (30) days
the following amounts to the Executive:
i. any accrued but unpaid Base Salary for services rendered to the
date of termination;
ii. any accrued but unpaid vacation pay; and
iii. any unpaid expense reimbursement owed to him for periods through
the date of termination.
7. Termination by the Company Without Cause. If the Company terminates
Executive's employment other than for Cause pursuant to Section 6 or on account
of death or disability pursuant to Section 9 or 10, the Company shall pay or
provide the Executive with, within thirty (30) days of the date of termination:
(i) any unpaid salary earned under this Agreement prior to the date of
termination; (ii) any accrued but unused vacation prior to the date of
termination; (iii) any unpaid bonus actually earned with respect to the fiscal
year ending on or preceding the date of termination; (iv) a one-time lump sum
payment equal to four week's Base Salary, and (v) any unpaid expense
reimbursement owed to him for periods through the date of termination.
8. Termination by the Executive. The Executive may terminate his employment
hereunder for "Good Reason," within ninety (90) days of the occurrence of any of
the following events: (i) a material breach of this Agreement by the Company;
(ii) any failure to pay, within a
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reasonable amount of time, any part of the Executive's compensation (including
Base Salary and bonus) or to provide the benefits contemplated herein; (iii) any
material reduction or diminution (except temporarily during any period of
physical or mental impairment) in the Executive's titles or primary job
responsibilities with the Company; or (iv) a change in control of the Company.
The Executive shall give the Company written notice of any proposed termination
for Good Reason and the Company shall have thirty (30) days from receipt of such
written notice to cure any ground of termination for Good Reason, as set forth
in this Section. In the event Executive terminates his employment for Good
Reason, he shall not be considered to be in breach of this agreement. In the
event of Termination by Executive for Good Reason, Company shall be obligated to
pay to Executive that compensation due as if Company had terminated Executive
Without Cause pursuant to Section 7 of this Agreement.
9. Termination Due to Death. In the event of the Executive's death during
the Term of this Agreement, the Executive's employment hereunder shall
immediately and automatically terminate, and the Company shall have no further
obligation or duty to the Executive or his estate or beneficiaries other than
for (a) all earned but unpaid compensation through the date of termination and
(b) any accrued but unpaid vacation pay, other than as required by applicable
law.
10. Termination Due to Disability. The Company may terminate the
Executive's employment hereunder, upon written notice to the Executive, in the
event that the Executive becomes disabled during the Term through any condition
of either a physical or psychological nature and, as a result is, with
reasonable accommodation, unable to perform the essential functions of the
services contemplated hereunder for a period of one hundred eighty (180) days
during any twelve (12) month period during the Term. Any such termination shall
become effective upon mailing or hand delivery of notice, while the Executive
continues to be unable to perform the essential functions of the services
contemplated hereunder, that the Company has elected to exercise its right to
terminate under this Section 10, and the Company shall have no further
obligation or duty to the Executive other than for all earned but unpaid
compensation through the date of termination, and other than as required by
applicable law. For purposes of determining the Executive's disability, the
existence or nonexistence of a disability shall be conclusively determined by a
physician to be selected by the Executive and the Company in good faith.
Executive shall cooperate in such determination by making himself available.
11. Non-Disclosure of Confidential Information and Non- Solicitation
(a) The Executive acknowledges that the Executive has been informed that it
is the policy of the Company to maintain as secret and confidential all
information
(i) relating to the products, processes, designs and/or systems used
by the Company and its Affiliates and
(ii) relating to the customers and employees of the Company and its
Affiliates (all such information hereafter referred to as
"confidential information"), and the Executive further
acknowledges that such confidential information is of great value
to the Company.
For purposes of this Agreement, "Affiliates" means any person or entity or
group of persons or entities acting together that, directly or indirectly,
through one or more intermediaries controls, or is controlled by or is under
common control with the Company.
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The parties recognize that the services to be performed by the Executive
are special and unique, and that by reason of his employment by the Company, the
Executive has and will acquire confidential information as aforesaid. The
parties confirm that it is reasonably necessary to protect the Company's (and
its Affiliates') goodwill, and accordingly the Executive does agree that the
Executive will not directly or indirectly (except where authorized by the Board
of Directors of the Company for the benefit of the Company):
A. At any time during his employment by the Company or after the Executive
ceases to be employed by the Company, divulge to any persons, firms or
corporations (hereinafter referred to collectively as "third parties"), other
than the Company, its officers, directors, consultants, lawyers, accountants,
agents and representatives, or use or allow or cause or authorize any third
parties to use, any such confidential information; and
B. At any time during his employment by the Company and for a period of two
(2) years after the Executive ceases to be employed by the Company, solicit or
cause or authorize directly or indirectly to be solicited, for or on behalf of
the Executive or third parties, any business from persons, firms, corporations
or other entities who were at any time within two (2) years prior to the
cessation of his employment hereunder, customers of the Company or its
affiliates with respect to any competing business; and
C. At any time during his employment by the Company and for a period of two
(2) years after the Executive ceases to be employed by the Company, accept or
cause or authorize directly or indirectly to be accepted, for or on behalf of
the Executive or third parties, any business from any such customers of this
Company or its affiliates with respect to any competing business; and
D. At any time during his employment by the Company and for a period of two
(2) years after the Executive ceases to be employed by the Company, solicit or
cause or authorize directly or indirectly to be solicited for employment, for or
on behalf of the Executive or third parties, any persons (excluding any
individuals residing in the same immediate primary residence as the Executive,
and/or the Executive's immediate family) who were at any time within one year
prior to the cessation of his employment hereunder, employees of the Company or
its affiliates; and
E. At any time during his employment by the Company and for a period of two
(2) years after the Executive ceases to be employed by the Company, employ or
cause or authorize directly or indirectly to be employed, for or on behalf of
the Executive or third parties, any such employees of the Company or its
affiliates.
F. "competing business" shall mean (x) any entity (other than the Company
or any of its affiliates) that then engages, directly or indirectly, in any
business which the Company is then conducting or which is then covered in a
written proposal or business plan in any place in which the Company does
business.
(b) The Executive agrees that, upon the expiration of his employment by the
Company for any reason, the Executive shall forthwith deliver to the Company any
and all records, drawings, notebooks, keys and other documents and material, and
copies thereof in his possession or under his control which is the property of
the Company or which relate to any confidential information or any discoveries
of the Company.
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(c) The Executive agrees that any breach or threatened breach by the
Executive of any provision of this Section 11 shall entitle the Company, in
addition to any other legal remedies available to it, to enjoin such breach or
threatened breach through any court of competent jurisdiction. The parties
understand and intend that each restriction agreed to by the Executive herein
above shall be construed as separable and divisible from every other
restriction, and that the unenforceability, in whole or in part, of any
restriction will not affect the enforceability of the remaining restrictions,
and that one or more or all of such restrictions may be enforced in whole or in
part as the circumstances warrant.
(d) For the purposes of this Section, the term "Company" shall mean and
include any and all subsidiaries, parents and affiliated corporations of the
Company in existence from time to time, for which the Company has operational
control.
12. Successors; Binding Agreement.
Neither this Agreement nor any right or interest hereunder shall be
assignable by the Executive, nor shall it be subject to attachment, execution,
pledge or hypothecation, but this Agreement if Executive shall die shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representative, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die during the term of this
Agreement, except to the extent otherwise provided in Section 9 hereof, no
amounts shall be paid to the Executive's devisee, legatee or other designee or,
if there is no such designee, to the Executive's estate. The rights and
obligations of the Company hereunder will be binding upon and run in favor of
the successors and assigns of the Company who acquire all or substantially all
of the business of the Company.
13. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are not set forth in
this Agreement. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law.
14. Severance and Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
15. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
16. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or terminated orally. No
change, termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party to be bound; provided,
however, that the Executive's compensation and benefits may be increased at any
time by the Company without in any way affecting any of the other terms and
conditions of this Agreement, which in all other respects shall remain in full
force and effect.
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17. Negotiated Agreement. This Agreement has been negotiated and shall not
be construed against the party responsible for drafting all or parts of this
Agreement.
18. Notices. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally, against written
receipt therefrom, or received by United States registered or certified mail,
return receipt requested, postage prepaid, or by nationally recognized overnight
delivery service providing for a signed return receipt, addressed to the
Executive at the Executive's home address set forth in the Company's records and
to the Company at the address set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Board with a copy to counsel to the Company, at Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxxxx X. Xxxxxxxxx, Esq., or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
19. Governing Law and Resolution of Disputes. All matters concerning the
validity and interpretation of and performance under this Agreement shall be
governed by the laws of the State of New Jersey. Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Newark, New Jersey in accordance with the rules of the
American Arbitration Association ("AAA") then in effect. Arbitration will take
place before a single experienced employment arbitrator licensed to practice law
in New Jersey and selected in accordance with the Employment Dispute Resolution
Rules of the American Arbitration Association. The arbitrator may not modify or
change this Agreement in any way. Any judgment rendered by the arbitrator as
above provided shall be final and binding on the parties hereto for all purposes
and may be entered in any court having jurisdiction. In any arbitration pursuant
to this Section 19, each party shall be responsible for the fees and expenses of
its own attorney and witnesses, and the fees and expenses of the arbitrator
shall be divided equally between the Company and the Executive. Nothing in this
Section 19 shall be construed to limited the availability of injunctive relief
in the form of a court ordered injunction in connection with an actual or
threatened violation of Section 11 hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXX X. XXXXX XXXXXX PHARMACEUTICALS, INC.
_____________________________ By:___________________________
Date:_________________________ Title:________________________
Date:_________________________
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