Exhibit 10.8
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement") entered into as of July 1, 1997, by
and between Orthovita, Inc., a Pennsylvania corporation (the "Company"), and
Xxxx X. Xxxx, (Xxxx) Ph.D. an employee of the Company.
WHEREAS, the Company wishes to continue to employ Xxxx as its Vice
President of, Research and Development, and both parties desire to enter into an
employment agreement to reflect Xxxx'x position with the Company upon the terms
and conditions set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment. The Company hereby continue to employ Xxxx as its Vice
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President of Research and Development. Xxxx hereby accepts such employment and
agrees to perform his duties and responsibilities, in accordance with the terms,
conditions and provisions hereinafter set forth.
1.1 Employment Term. The term of Xxxx'x employment under this Agreement
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(the "Employment Term") shall commence as of the date hereof (the "Effective
Date") and shall continue until June 30, 2000, unless terminated prior thereto
in accordance with Section 5 or unless extended prior thereto in the event a
Change of Control in accordance with Section 6.
1.2 Duties and Responsibilities. Xxxx shall serve as the Company's Vice
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President of Research and Development and in such other senior positions, if
any, to which he may be appointed to by the President and CEO of the Company
(the "CEO") in conjunction with his direct superior during the Employment Term.
During the Employment Term, Xxxx shall perform all duties and accept all
responsibilities incident to, and not inconsistent with, such positions as may
be reasonably assigned to him.
1.3 Extent of Service. During the Employment Term, Xxxx agrees to use his
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best efforts to carry out his duties and responsibilities under Section 1.2
hereof and, consistent with the other provisions of this Agreement, to devote
substantially all his business time, attention and energy thereto except to the
extent required by Xxxx'x outside board directorships, civic or charitable
activities. Except for positions held on the date of this Agreement, Xxxx
agrees not to become engaged in any other business, civic or charitable activity
which, in the CEO's reasonable judgment, is likely to interfere materially with
his ability to discharge his duties and responsibilities to the Company.
1.4 Base Salary. For all the services rendered by Xxxx hereunder, the
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Company shall pay Xxxx a base salary ("Base Salary"), commencing on July 1,
1997, at the annual rate of $130,000. payable in installments at such times as
the Company customarily pays its other senior
level executives (but in any event no less often than monthly). Xxxx'x Base
Salary, for each fiscal year of the Company commencing after December 31, 1997,
shall be reviewed and may be appropriately increased pursuant to its normal
performance review policies for senior level executives.
1.5 Retirement and Benefit Coverages. During the Employment Term, Xxxx
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shall be entitled to participate in all employee pension and retirement plans
and programs and welfare benefit plans and programs that are available to the
Company's senior level executives as a group or to its employees generally, as
such retirement plans or benefit coverages may be in effect from time to time.
In addition, Xxxx shall be entitled to the Company's regular holiday and
vacation policy and any other executive perquisites provided by the Company to
its senior level executives.
1.6 Life Insurance. During the Employment Term, the company shall
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maintain, under an arrangement satisfactory to the Company, $1,000,000 of life
insurance on the life of Xxxx. Xxxx shall have the right to designate the
beneficiary of such insurance policy. The Company may maintain term life
insurance, whole life insurance or such other form of insurance as it deems
appropriate.
1.7 Incentive Programs. Xxxx shall be entitled to participate in any
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short-term or long-term incentive compensation programs established by the
Company for its senior level Executives generally. Payments under such programs
shall depend upon achievement of certain business and individual performance
targets specified by his direct superior and approved by the CEO. For the 1997
fiscal year, Xxxx shall receive a minimum 20% bonus based on the annual salary
in place in 1997 prorated for the 6 month short period. Xxxx shall receive a
100,000 share incentive stock option grant priced at $4.25 per share upon
execution of this agreement. These shares will vest according to the Company's
Incentive Stock Option plan in currently in place an additional vesting 12,500
shares will vest immediately in addition to the 20% immediate vesting of the
current 100,000 option grant. All shares of the new 100,000 grant that is part
of this agreement will vest immediately upon a change of control. Any prior
option grants earned by Xxxx will vest immediately upon execution of this
agreement.
2. Confidential Information. Xxxx recognizes and acknowledges that, by
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reason of his employment by and service to the Company before, during and, if
applicable, after the Employment Term, he has had and will continue to have
access to certain confidential and proprietary information relating to the
Company's business, which may include, but is not limited to, trade secrets,
trade "know-how", customer information, supplier information, cost and pricing
information, marketing and sales techniques, strategies and programs, computer
programs and software and financial information (collectively referred to as
"Confidential Information"). Xxxx acknowledges that such Confidential
Information is a valuable and unique asset of the Company and Xxxx covenants
that he will not at any time during the course of his employment use any
Confidential Information or divulge or disclose any Confidential Information to
any person, firm or corporation except in connection with Xxxx'x good faith
belief
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as to the proper performance of his duties for the Company. Xxxx also
covenants that, at any time after the termination of his employment, directly or
indirectly, he will not use any Confidential Information for any purpose or
divulge or disclose any confidential Information to any person, firm or
corporation, unless such information is in the public domain through no fault of
Xxxx or except when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of the Company or over
Xxxx or by any administrative or legislative body (including a committee
thereof) with apparent jurisdiction to order him to divulge, disclose or make
accessible such information in which case Xxxx will inform the company in
writing promptly of such required disclosure.
3. Non-Competition: Non-Solicitation.
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(a) During his employment by the Company and for a period of two years
thereafter, or, if longer, for the period during which Xxxx receives payments
from the Company under Section 5, Xxxx will not, except with the prior written
consent of the CEO, directly or indirectly own, manage, operate, join, control,
finance or participate in the ownership management, operation, control or
financing of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with, or use or permit
his name to be used in connection with, any business or enterprise that is
engaged in any business that is competitive to a business from which the Company
or any of its affiliates derive at least five percent of its respective gross
revenues either during the Employment Term or on the date Xxxx'x employment
terminates, as applicable.
(b) The foregoing restrictions shall not be construed to prohibit the
ownership by Xxxx of less than five percent of any class of securities of any
corporation which is engaged in any of the foregoing businesses having a class
of securities registered pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), provided that such ownership represents a passive investment
and that neither Xxxx nor any group of persons including Xxxx in any way, either
directly or indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations, otherwise takes any part in its
business, other than exercising his rights as a shareholder, or seeks to do any
of the foregoing.
(c) Xxxx further covenants and agrees that, during his employment by
the Company and for the period of two years thereafter, or, if longer, for the
period during which Xxxx receives payments from the Company under Section 5,
Xxxx will not personally solicit for another business or enterprise any customer
in the business of the Company that was a customer of the Company or any of its
affiliates during the Employment Term or on the date on which Xxxx'x employment
terminates or any person who is a managerial or higher level employee of the
Company at the time of Xxxx'x termination. The foregoing covenant of Xxxx shall
not apply to any person after twelve months have elapsed subsequent to the date
on which such person's employment by the Company has terminated.
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4. Equitable Relief.
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(a) Xxxx acknowledges and agrees that the restrictions contained in
Sections 2 and 3 are reasonable and necessary to protect and preserve the
legitimate interests, properties, goodwill and business of the Company, that the
Company would not have entered into this Agreement in the absence of such
restrictions and that irreparable injury will be suffered by the Company should
Xxxx breach any of the provisions of those Sections. Xxxx represents and
acknowledges that (i) he has been advised by the Company to consult his own
legal counsel in respect of this Agreement, and (ii) he has had full
opportunity, prior to execution of this Agreement, to review thoroughly this
Agreement with his counsel.
(b) Xxxx further acknowledges and agrees that a breach of any of the
restrictions in Sections 2 and 3 cannot be adequately compensated by monetary
damages. Xxxx agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages, as
well as an equitable accounting of all earnings, profits and other benefits
arising from any violation of Sections 2 or 3 hereof, which rights shall be
cumulative and in addition to any other rights or remedies to which the Company
may be entitled. In the event that any of the provisions of Sections 2 or 3
hereof should ever be adjudicated to exceed the time, geographic, service, or
other limitations permitted by applicable law in any jurisdiction, it is the
intention of the parties that the provision shall be amended to the extent of
the maximum time, geographic, service, or other limitations permitted by
applicable law, that such amendment shall apply only within the jurisdiction of
the court that made such adjudication and that the provision otherwise be
enforced to the maximum extent permitted by law.
(c) Xxxx (i) agrees that any suit, action or other legal proceeding
arising out of this Agreement, including, without limitation, any action
commenced by the Company for preliminary and permanent injunctive relief and
other equitable relief, may be brought in the United States District Court for
the Eastern District of Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in Xxxxxxx County, Pennsylvania, (ii) consents to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
waives any objection which Xxxx may have to the laying of venue of any such
suit, action or proceeding in any such court. Xxxx also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions of Section 12
hereof.
5. Termination. The Employment Term shall terminate upon the occurrence
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of any one of the following events:
5.1 Disability. The Company may terminate the Employment Term in
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compliance with applicable law, if Xxxx is unable substantially to perform his
duties and responsibilities hereunder to the full extent required by the Board
by reason of illness, injury or incapacity for six consecutive months, or for
more than nine months in the aggregate during any period of twelve
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calendar months (a "Disability"); provided, however, that the Company shall
continue to pay Xxxx his Base Salary until the Company acts to terminate the
Employment Term. In addition, in the event Xxxx executes (and does not revoke) a
written release upon incurring a Disability (such release to be effective only
if the Company executes such release), substantially in the form attached hereto
as Annex 1, as to all claims specified in Section 5.4(b) below (the "Release"),
Xxxx shall be entitled to receive all amounts and benefits to the same extent
and at the same time as specified in Section 5.4(b), offset by any amounts Xxxx
receives under any long term disability program maintained by the Company.
Otherwise, the Company shall have no further liability or obligation to Xxxx for
compensation under this Agreement. In the event of any dispute under this
Section 5.1 and to the extent determined by the Board to be job-related and
consistent with business necessity, Xxxx shall submit to a physical examination
by a licensed physician selected by the Board and approved by Xxxx, such
approval not to be unreasonably withheld.
5.2 Death. The Employment Term shall terminate in the event of Xxxx'x
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death. In such event, the Company shall pay to Xxxx'x executors, legal
representatives or administrators, as applicable, an amount equal to the
installment of his Base Salary set forth in Section 1.4 hereof for the month in
which he dies. If Xxxx dies while an employee of the Company, (i) Xxxx'x estate
or designated beneficiary shall be entitled to receive the proceeds of the life
insurance policy described in Sections 1.6 and (ii) has been met by March 15,
1997, but the bonus described in Section 1.7(a) has not yet been paid, the
Company shall pay the bonus described in Section 1.7(a) to Xxxx'x estate.
Otherwise, the Company shall have no further liability or obligation under this
Agreement to his executors, legal representatives, administrators, heirs or
assigns or any other person claiming under or through him.
5.3 Cause. The Company may terminate the Employment Term at any time for
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"cause" upon 30 days' written notice to Xxxx, in which event all payments under
this Agreement shall cease, except for (i) Base Salary to the extent already
earned and a payment equal to any unused vacation, which shall be paid in a
single lump sum on the day the Employment Term terminates, and (ii) any other
benefits in accordance with the terms of any applicable plans and programs of
the Company. For purposes of this Agreement, Xxxx'x employment may be
terminated for "cause" if (i) Xxxx is convicted of a felony, (ii) in the
reasonable determination of the Board, Xxxx has committed an intentional act of
fraud, embezzlement, or theft in connection with Xxxx'x duties in the course of
his employment with the Company, or engaged in gross mismanagement or gross
negligence in the course of his employment with the Company or (iii) Xxxx
intentionally breached his obligations under this Agreement, including
inattention to or neglect of duties and shall not have remedied such breach
within 30 days after receiving written notice from the Board specifying the
details thereof; provided, however, that in any case under this clause (iii),
the act or failure to act by Xxxx is materially harmful to the business of the
Company. For purposes of this Agreement, an act or omission on the part of Xxxx
shall be deemed "intentional" only if it was done by Xxxx in bad faith, not
merely an error in judgment, and without reasonable belief that the act or
omission was in the best interest of the Company.
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5.4 Termination Without Cause.
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(a) The Company may remove Xxxx, at any time, without cause, from the
position in which he is employed hereunder (in which case the Employment Term
shall be deemed to have ended) upon not less than 30 days' prior written notice
to Xxxx; provided, however, that, in the event that such notice is given, Xxxx
shall be under no obligation to render any additional services to the Company
and shall be allowed to seek other employment. Upon any such removal, except as
provided in Section 5.4(b) below, Xxxx shall be entitled to receive as
liquidated damages for the failure of the Company to continue to employ Xxxx,
only the amount due to Xxxx under the Company's then-current severance pay plan
for employees and (i) Base Salary to the extent already earned and a payment
equal to any unused vacation, which shall be paid in a single lump sum on the
day the Employment Term ends, and (ii) any other benefits in accordance with the
terms of any applicable plans and programs of the Company. No other payments or
benefits shall be due under this Agreement to Xxxx, but Xxxx shall be entitled
to any other benefits in accordance with the terms of any applicable plans and
programs of the Company.
(b) Notwithstanding the foregoing, upon such removal, in the event
that Xxxx executes (and does not revoke) the Release as to any and all claims
against the Company and all related parties with respect to all matters arising
out of Xxxx'x employment by the Company (other than any indemnification rights,
or all entitlements under the terms of this Agreement or under any other plans
or programs of the Company in which he participated and under which he has
accrued a benefit or continues to have rights), and the termination thereof,
Xxxx shall be entitled to receive, commencing on the eighth day following the
execution of the Release by Xxxx, in lieu of the payment described in subsection
(a) hereof, which Xxxx agrees to waive, as liquidated damages for the failure of
the Company to continue to employ Xxxx, (i) continuation for two years of Xxxx'x
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Base Salary in accordance with Section 1.4 (without regard to Xxxx'x removal),
(ii) any other amounts earned, vested, or owing but not yet paid under Section 1
above, (iii) a pro-rata portion of any incentive compensation to the extent such
amount would have been earned in accordance with the terms of such programs
specified in Section 1.7 above for the then current fiscal year of the Company,
(iv) a payment equal to any unused vacation, and (v) any other benefits in
accordance with the terms of any applicable plans and programs of the Company.
The Company shall have no further liability or obligation to Xxxx for
compensation under this Agreement.
5.5 Constructive Termination Without Cause.
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(a) Resignation by Xxxx for good reason ("Constructive Termination
Without Cause") shall mean a termination of Xxxx'x employment at his initiative
following the occurrence, without Xxxx'x written consent, of (i) a material
diminution in Xxxx'x duties, responsibilities, authority, or status, or a
failure of Xxxx to have a position reporting directly to the Senior Vice
President, Operations, (ii) a reduction in any amount of Xxxx'x Base Salary,
(iii) the assignment to Xxxx of duties or obligations which are materially
inconsistent with the duties,
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responsibilities, authority, or status of his position as defined in Section 1.2
above or which materially impair Xxxx'x ability to function in his then current
position, or (iv) a failure of the Company to comply with any of the material
terms of this Agreement.
(b) In the event of a Constructive Termination Without Cause, if Xxxx
executes (and does not revoke) the Release as to all claims specified in Section
5.4(b), Xxxx shall be entitled to receive all amounts and benefits to the same
extent and at the same time as specified in Section 5.4(b). In the event Xxxx
refuses to execute the Release (or revokes the Release), he shall receive only
the amounts and benefits to the same extent and at the same time as specified in
Section 5.4(a).
(c) Prior to resigning under this Section, Xxxx shall give written
notice to the Board and offer a 30-day period for the Company to cure. If no
cure has been effected by the end of the applicable cure period, Xxxx may resign
immediately in accordance with the provisions of subsections (a) and (b) above.
5.6 Voluntary Termination. Xxxx may voluntarily terminate the Employment
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Term upon 30 days' prior written notice for any reason. In such event, Xxxx
shall be entitled only to (i) Base Salary to the extent already earned and a
payment equal to any unused vacation, which shall be paid in a single lump sum
on the day the Employment Term terminates, and (ii) any other benefits in
accordance with the terms of any applicable plans and programs of the Company.
A voluntary termination under this Section 5.6 shall not be deemed a breach of
this Agreement.
5.7 Termination at June 30, 2000. Notwithstanding Section 5.6, if (i) the
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Employment Term shall not have been terminated prior to December 31, 1999
pursuant to the foregoing provisions of this Section 5 and Xxxx and the Company
cannot reach a mutually acceptable agreement in respect of the continuation of
Xxxx'x employment after Jun 30, 2000, (ii) Xxxx voluntarily terminates his
employment with the Company at June 30, 2000, and (iii) Xxxx executes (and does
not revoke) the Release described in Section 5.4(b), the Company shall pay to
Xxxx as severance compensation the amounts described in Section 5.4(b), but with
Xxxx'x Base Salary to continue under Section 5.4(b)(i) for one year after
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termination of employment. The payments under this Section 5.7 shall be made in
lieu of the payments described in Section 5.6, which Xxxx agrees to waive. In
the event Xxxx refuses to execute the Release (or revokes the Release), Xxxx
shall receive only amounts and benefits to the same extent and at the same time
as specified in Section 5.6.
6. Change of Control.
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(a) If a Change of Control (as defined below) occurs during the
Employment Term, the Employment Term shall automatically be extended to the date
that is two years after the effective date of the Change of Control, subject to
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the provisions of subsection (b) below.
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(b) Notwithstanding anything in this Agreement to the contrary, if it
shall be determined that any payment or distribution by the Company to or for
the benefit of Xxxx pursuant to the terms of this Agreement or otherwise (a
"Payment") would constitute an "excess parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and
that it would be economically advantageous to the Company to reduce the Payment
to avoid or reduce the taxation of excess parachute payments under Section 4999
of the Code, the aggregate present value of the amounts payable or distributable
to or for the benefit of Xxxx pursuant to this Agreement (such payments or
distributions pursuant to this Agreement are hereinafter referred to as
"Agreement Payments") shall be reduced (but not below zero) to the Reduced
Amount. The "Reduced Amount" shall be an amount expressed in present value
which maximizes the aggregate present value of Agreement Payments without
causing any Payment to be subject to taxation under Section 4999 of the Code.
For purposes of this Section 6, present value shall be determined in accordance
with Section 280G(d)(4) of the Code. The calculations under this Section 6(b)
shall be made as follows:
(i) All determinations to be made under this Section 6(b) shall
be made by the Company's independent public accounting firm as in effect
immediately prior to the Change of Control (the "Accounting Firm"), which firm
shall provide its determinations and any supporting calculations to the Company
and Xxxx within 10 days of the event that gives rise to the "excess parachute
payment." Any such determination by the Accounting Firm shall be binding upon
the Company and Xxxx. Xxxx shall in his sole discretion determine which and how
much of the Agreement Payments shall be eliminated or reduced consistent with
the requirements of this Section 6(b). Within five days after Xxxx'x
determination, the Company shall pay (or cause to be paid) or distribute (or
cause to be distributed) to or for the benefit of Xxxx such amounts as are then
due to Xxxx under this Agreement.
(ii) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments will have been
made by the Company which should not have been made ("Overpayment") or that
additional Agreement Payments which have not been made by the Company could have
been made ("Underpayment"), in each case, consistent with the calculations
required to be made hereunder. Within two years after the event that gives rise
to the "excess parachute payment," the Accounting Firm shall review the
determination made by it pursuant to the preceding paragraph. If the Accounting
Firm determines that an Overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan to Xxxx which Xxxx shall repay to the
Company, together with interest at the applicable Federal rate provided for in
Section 7872(f)(2) of the Code (the "Federal Rate"); provided, however, that no
amount shall be payable by Xxxx to the Company if and to the extent such payment
would not reduce the amount which is subject to taxation under Section 4999 of
the Code. In the event that the Accounting Firm determines that an Underpayment
has occurred, any such Underpayment shall be promptly paid by the Company to or
for the benefit of Xxxx, together with interest at the Federal Rate.
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(iii) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (i) and (ii) above
shall be borne solely by the Company. The Company agrees to indemnify and hold
harmless the Accounting Firm from any and all claims, damages and expenses
resulting from or relating to its determinations pursuant to subsections (i) and
(ii) above, except for claims, damages or expenses resulting from the gross
negligence or willful misconduct of the Accounting Firm.
(iv) The limitations of this Section 6(b) shall only apply if
payments under this Agreement are subject to Section 280G at the time of the
Change of Control. If payments under this Agreement would not be subject to
Section 280G if the shareholders of the Company approved the payments, the
Company shall use its best efforts to procure the necessary shareholder approval
of the payments in a timely manner. If the shareholders approve the payments so
that Section 280G does not apply, the Company shall make payments under this
Agreement without regard to this Section 6(b).
(c) A "Change of Control" shall be deemed to have occurred under this
Agreement if:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than a person who is a shareholder of the
Company as of the effective date of this Agreement) is or becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than 50% of the
voting power of the then outstanding securities of the Company; or
(ii) The shareholders of the Company approve (or, if shareholder
approval is not required, the Board approves) an agreement providing for (i) the
merger or consolidation of the Company with another corporation where the
shareholders of the Company, immediately prior to the merger or consolidation,
will not beneficially own, immediately after the merger or consolidation, shares
entitling such shareholders to more than 50% of all votes to which all
shareholders of the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote), (ii) the sale or other disposition of all
or substantially all of the assets of the Company, or (iii) a liquidation or
dissolution of the Company.
7. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of Xxxx'x employment and the Employment
Term to the extent necessary to the intended preservation of such rights and
obligations.
8. Mitigation and Offsets. Xxxx shall not be required to mitigate the
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amount of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise and there shall be offset against amounts due Xxxx under
this Agreement on account of any remuneration attributable to any subsequent
employment that he may obtain. The Company's obligations to make payments under
this Agreement and otherwise to perform its obligations
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hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against Xxxx or others.
9. Arbitration; Expenses. In the event of any dispute under the
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provisions of this Agreement other than a dispute in which the primary relief
sought is an equitable remedy such as an injunction, the parties shall be
required to have the dispute, controversy or claim settled by arbitration in the
City of Philadelphia, Pennsylvania in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association, before a panel of three arbitrators, two of whom shall be selected
by the Company and Xxxx, respectively, and the third of whom shall be selected
by the other two arbitrators. Any award entered by the arbitrators shall be
final, binding and nonappealable and judgment may be entered thereon by either
party in accordance with applicable law in any court of competent jurisdiction.
This arbitration provision shall be specifically enforceable. The arbitrators
shall have no authority to modify any provision of this Agreement or to award a
remedy for a dispute involving this Agreement other than a benefit specifically
provided under or by virtue of the Agreement. If Xxxx prevails on any material
issue which is the subject of such arbitration or lawsuit, the Company shall be
responsible for all of the fees of the American Arbitration Association and the
arbitrators and any expenses relating to the conduct of the arbitration as well
as Xxxx'x reasonable legal fees and expenses. The arbitrators shall, in any
other event, determine who shall pay Xxxx'x legal fees and expenses.
10. No Attachment. Except as required by law, no right to receive
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payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that nothing in this Section
shall preclude the assumption of such rights by executors, administrators or
other legal representatives of Xxxx or his estate and their assigning any rights
hereunder to the person or persons entitled thereto.
11. Source of Payment. All payments provided for under this Agreement
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shall be paid in cash from the general funds of the Company. The Company shall
not be required to establish a special or separate fund or other segregation of
assets to assure such payments, and, if the Company shall make any investments
to aid it in meeting its obligations hereunder, Xxxx shall have no right, title
or interest whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship, between the Company and Xxxx or any other person.
To the extent that any person acquires a right to receive payments from the
Company hereunder, such right, without prejudice to rights which employees may
have, shall be no greater than the right of an unsecured creditor of the
Company.
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12. Notices. All notices and other communications required or permitted
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hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when hand delivered or mailed by
registered or certified mail, as follows (provided that notice of change of
address shall be deemed given only when received):
If to the Company, to:
Orthovita, Inc.
00 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
If to Xxxx, to:
Xxxx X. Xxxx, Ph.D.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
or to such other names or addresses as the Company or Xxxx, as the case may be,
shall designate by notice to each other person entitled to receive notices in
the manner specified in this Section.
13. Contents of Agreement; Amendment and Assignment.
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(a) This Agreement supersedes the July 5, 1995 agreement and other all
prior agreements and sets forth the entire understanding between the parties
hereto with respect to the subject matter hereof and cannot be changed,
modified, extended or terminated except as provided herein or upon written
amendment approved by the Company and executed on its behalf by a duly
authorized officer and by Xxxx.
(b) All of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective heirs,
executors, administrators, legal representatives, successors and assigns of the
parties hereto, except that the duties and responsibilities of Xxxx hereunder
are of a personal nature and shall not be assignable or delegatable in whole or
in part by Xxxx. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Company, by agreement
in form and substance satisfactory to Xxxx, expressly to assume and agree to
perform this Agreement in the same manner and to the extent the Company would be
required to perform if no such succession had taken place.
14. Severability. If any provision of this Agreement or application
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thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision or application in any
other jurisdiction. If any provision is held void, invalid or unenforceable
with respect to
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particular circumstances, it shall nevertheless remain in full
force and effect in all other circumstances.
15. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
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this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by a party in exercising any right, remedy or power hereunder
or existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by such party from time to time and
as often as may be deemed expedient or necessary by such party in its sole
discretion.
16. Beneficiaries/References. Xxxx shall be entitled, to the extent
------------------------
permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Xxxx'x death by giving the Company written notice thereof. In the event of
Xxxx'x death or a judicial determination of his incompetence, references in this
Agreement to Xxxx shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
17. Miscellaneous. All section headings used in this Agreement are for
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convenience only. This Agreement may be executed in counterparts, each of which
is an original. It shall not be necessary in making proof of this Agreement or
any counterpart hereof to produce or account for any of the other counterparts.
18. Withholding. The Company may withhold from any payments under this
-----------
Agreement all federal, state and local taxes as the Company is required to
withhold pursuant to any law or governmental rule or regulation. Xxxx shall
bear all expense of, and be solely responsible for, all federal, state and local
taxes due with respect to any payment received hereunder.
19. Governing Law. This Agreement shall be governed by and interpreted
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under the laws of the Commonwealth of Pennsylvania without giving effect to any
conflict of laws provisions.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
ORTHOVITA, INC.
By:\s\Xxxxx X. Xxxxxx \s\Xxxx X. Xxxx, Ph.D.
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Xxxxx X. Xxxxxx Xxxx X. Xxxx, Ph.D.
President & CEO
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