EMPLOYMENT AGREEMENT
Exhibit
10.5
This
Agreement (this “Agreement”),
dated as of April 7, 2005 (sometimes the “Effective Date”), by and between
INNOVIVE PHARMACEUTICALS, INC., a Delaware corporation with principal executive
offices at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 (the “Company”),
and Xxxx X. Xxxxx, residing at 00 Xxxxx Xxxxxx, Xxxxxxx, XX 00000 (the
“Executive”).
W
I T N E S S E T H:
WHEREAS,
the Company desires to employ the Executive as Vice President and Chief Medical
Officer of the Company, and the Executive desires to serve the Company in
those
capacities, upon the terms and subject to the conditions contained in this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Employment.
(a) Services. The
Executive will be
employed by the Company as its Vice President and Chief Medical Officer.
The
Executive will report to the Chief Executive Officer of the Company and shall
perform such duties as are consistent with his position as Vice President
and
Chief Medical Officer (the “Services”). The Executive agrees to perform such
duties faithfully, to devote substantially all of his working time, attention
and energies to the business of the Company, and while he remains employed,
not
to engage in any other business activity that is in conflict with his duties
and
obligations to the Company without the prior written consent of the Chief
Executive Officer of the Company.
(b) Acceptance. Executive
hereby accepts
such employment and agrees to render the Services.
2. Term.
The
Executive’s employment under this Agreement (the “Term”) shall commence as of
the Effective Date and shall continue for a term of three (3) years, unless
sooner terminated pursuant to Section 8 of this Agreement. 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 5 hereof and survive the expiration or termination hereof.
This Agreement may be renewed for additional one-year terms if the Company
and
the Executive agree in writing prior to the expiration or other termination
of
the Term. The Company shall notify the Executive no less than three (3) months
before the expiration of the Term whether it desires to extend this Agreement.
If the Company provides the Executive with such notice and the Executive
is
willing to extend this Agreement, the Parties shall negotiate in good-faith
towards a mutually agreed upon extension of this Agreement.
3. Best
Efforts; Place of Performance.
(a) The
Executive shall devote substantially all of his business time, attention
and
energies to the business and affairs of the Company and shall use his best
efforts to advance the best 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 interfere with the performance by the Executive of his duties hereunder
or
the Executive’s availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company.
(b) The
duties to be performed by the Executive hereunder shall be performed primarily
at the office of the Company in New York, New York, subject to reasonable
travel
requirements on behalf of the Company, or such other place as the Board of
Directors of the Company may reasonably designate. Notwithstanding the
foregoing, the Company may be relocated to another city within the United
States
with consent of the Board of Directors of the Company.
4. Compensation. As
full compensation for
the performance by the Executive of his duties under this Agreement, the
Company
shall pay the Executive as follows:
(a) Base
Salary. The
Company, shall pay
Executive a salary (the “Base Salary”) equal to Two Hundred Forty Thousand
Dollars ($240,000.00) per year. Payment shall be made in accordance with
the
Company’s normal payroll practices and subject to annual review and adjustment
by the Chief Executive Officer in his discretion.
(b) Signing
Bonus. Within
thirty (30) days
of the commencement of the. Executive’s employment pursuant to this Agreement,
the Company shall pay the Executive a onetime bonus equal to Fifty Thousand
Dollars ($50,000).
(c) Discretionary
Bonus. At
the sole discretion of
the Chief Executive Officer of the Company, the Executive shall receive an
additional annual bonus (the “Discretionary
Bonus”)
in an amount equal to up to fifty percent (50%) of his Base Salary, based
upon
his performance on behalf of the Company during the prior year. The
Discretionary Bonus shall be payable either as a lump-sum payment or in
installments as determined by the Chief Executive Officer of the Company
in its
sole discretion. In addition, the Chief Executive Officer of the Company
shall
annually review the Bonus to determine whether an increase in the amount
thereof
is warranted.
(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
the
Executive under this Section 4.
(e) Restricted
Shares. As
additional
compensation for the services to be rendered by the Executive pursuant to
this
Agreement, the Company shall grant the Executive Ninety-Four Thousand Seven
Hundred Forty (94,740) shares of Common Stock of the Company (the “Restricted
Shares”) representing three percent (3%) of the outstanding Common Stock of the
Company. The Restricted Shares shall be held in escrow at Paramount BioCapital
Investments, LLC. On the first anniversary and each subsequent anniversary
of
this Agreement, Thirty-One Thousand Five Hundred Eighty (31,580) Restricted
Shares shall vest, subject to the terms of this Agreement, and all vested
shares
will be released from the escrow account to the Executive. No Restricted
Shares
shall vest until the first anniversary of this Agreement. In connection with
such grant, the Executive shall enter into the Company’s standard restricted
stock agreement and the escrow agreement and stock powers attached hereto
as
Exhibit “A” which will incorporate the foregoing provisions regarding the
lapsing of the risk of forfeiture with respect to such shares in accordance
with
the vesting schedule set forth above and the relevant provisions contained
in
Section 9 below. No Restricted Shares granted hereunder shall vest unless
the
Executive is a current employee of the Company, unless specifically stated
herein.
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(f) Expenses.
(i) General
Expenses. The
Company shall
reimburse the Executive for all normal, usual and necessary expenses incurred
by
the Executive in furtherance of the business and affairs of the Company,
including reasonable travel and entertainment, upon timely receipt by the
Company of appropriate vouchers or other proof of the Executive’s expenditures
and otherwise in accordance with any expense reimbursement policy as may
from
time to time be adopted by the Company.
(ii) Relocation
Expenses. The
Company will also
reimburse the Executive for his relocation expenses, including any closing
costs, moving expenses, and temporary housing expenses, up to an amount of
Seventy Thousand Dollars ($70,000), provided, however, that (A) should the
Executive’s employment with the Company be terminated prior to the first
anniversary date hereof, the Executive agrees to return any amount received
from
the Company as reimbursement for such relocation; and (B) should the Executive’s
employment with the Company be terminated after the first anniversary, but
prior
to the second anniversary, hereof, the Executive agrees to return fifty percent
(50%) of the Relocation Expense to the Company.
(iii) Expenses
Associated with Immigration Services. In
addition to the
General and Relocation expenses, the Company, continuing the practice of
the
Executive’s previous employer, shall pay up to Three Thousand Dollars ($3,000)
for immigration services costs incurred by the Executive, provided however,
that
should the Executive’s employment with the Company be terminated prior to the
first anniversary date hereof, the Executive agrees to return any amount
received from the Company as reimbursement for such immigration
services.
(g) Other
Benefits. The
Executive shall be
entitled to all rights and benefits for which he shall be eligible under
any
benefit or other plans (including, without limitation, 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.
(h) Vacation. The
Executive shall,
during the Term, be entitled to a vacation of four (4) weeks per annum, in
addition to holidays observed by the Company. The Executive shall not be
entitled to carry any vacation forward to the next year of employment and
shall
not receive any compensation for unused vacation days.
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5. Confidential
Information and Inventions.
(a) The
Executive recognizes and acknowledges that in the course of his duties he
is
likely to 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 for a period of
fifteen (15) years after the Term, the Executive agrees to keep confidential
and
not disclose or make accessible to any other person or use for any other
purpose
other than in connection with the fulfillment of his 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” shall include, but shall not be
limited to, 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, casts, 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. The 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. The 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 the Executive’s duties to the Company. The Executive agrees to return
immediately all Company material 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 immediately upon termination of
employment.
(b) Except
with prior written authorization by the Company, the 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) Notwithstanding
the foregoing, Confidential and Proprietary Information shall not include
any
information or material which the Executive can establish through competent
proof: (i) is or becomes generally available to the public other than as
a
result of disclosure thereof by the Executive; (ii) is lawfully received
by the
Executive on a non-confidential basis from a third party that is not itself
under an obligation of confidentiality or non-disclosure to the Company with
respect to such information; (iii) is independently developed by Executive;
(iv)
was in the Executive’s possession at the time of disclosure by the Company and
was not acquired, directly or indirectly from the Company; or (v) is required
to
be publicly disclosed by law or by regulation; provided, however, that in
such
event Executive shall provide the Company with prompt advance notice of such
disclosure so that the Company has the opportunity if it so desires to seek
a
protective order or other
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(d) The
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. The 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 of Directors of the Company 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. The 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 the 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.
(e) The
Executive acknowledges that while performing the Services under this Agreement
the 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”). The 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 the Executive), agents
or
consultants during the Term shall be and remain the sole and exclusive property
of the Company or such affiliate and the 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.
(f) 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.
(g) The
provisions of this Section 5 shall survive any termination of this
Agreement.
6. Non-Competition,
Non-Solicitation and Non-Disparagement.
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(a) The
Executive understands and recognizes that his services to the Company are
special and unique and that in the course of performing such services the
Executive will have access to and knowledge of Confidential and Proprietary
Information (as defined in Section 6) and the Executive agrees that, during
the
Term and for a period of twelve (12) months thereafter, he shall not in any
manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity (“Person”),
enter into or engage in any business which is engaged in any business directly
or indirectly competitive with the business of the Company, either as an
individual for his own account, or as a partner, joint venturer, owner,
executive, employee, independent contractor, principal, agent, consultant,
salesperson, officer, director or shareholder of a Person in a business
competitive with the Company within the geographic area of the Company’s
business, which is deemed by the parties hereto to be worldwide. The 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 the Executive
narrowly and fairly serves such an important and critical business interest
of
the Company. For purposes of this Agreement, the Company shall be deemed
to be
actively engaged on the date hereof in the development and commercialization
of
drugs, including therapeutics and vaccines in the medical fields that are
directly related to Opiod Growth Factor, Zebularine, or any other products
acquired by the Company. Notwithstanding the foregoing, nothing contained
in
this Section 6(a) shall be deemed to prohibit the 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 four percent (4%) of any class or series of outstanding
securities of such corporation.
(b) During
the Term and for a period of 12 months thereafter, the 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 of this Agreement, 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.
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(c) The
Company and the 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 the Executive breaches any provisions of Section 5 or this
Section 6 or there is a threatened breach, then, in addition to any other
rights
which the Company may have, the Company shall (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
the
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 the Executive as a result of any transaction constituting
a breach of any of the provisions of Sections 5 or 6 and the Executive hereby
agrees to account for and pay over such Benefits to the Company. The Executive
agrees that in an action pursuant to clause 6(d)(i), that if the Company
makes a
prima facie showing that the Executive has violated or apparently intends
to
violate any of the provisions of this Section 6, the Company need not prove
either damage or irreparable injury in order to obtain injunctive relief.
The
Company and the Executive agree that any such action for injunctive or equitable
relief shall be heard in a state or federal court situated in the County
and
State of New York and each of the parties hereto agrees to accept service
of
process by registered or certified mail and to otherwise consent to the
jurisdiction of such courts.
(e) Each
of the rights and remedies enumerated in Section 6(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 of the covenants
contained in this Section 6, or any part of any of them, is hereafter construed
or adjudicated to be invalid or unenforceable, the same shall not affect
the
remainder of the covenant or covenants or rights or remedies which shall
be
given full effect without regard to the invalid portions. If any of the
covenants contained in this Section 6 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 6 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 purpose, severable into diverse
and independent covenants.
(f) In
the event that an actual proceeding is brought in equity to enforce the
provisions of Section 5 or this Section 6, the Executive shall not urge as
a
defense that there is an adequate remedy at law nor shall the Company be
prevented from seeking any other remedies which may be available.
(g) The
provisions of this Section 6 shall survive any termination of this
Agreement.
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7. Representations
and Warranties by the Executive.
The
Executive hereby represents and warrants to the Company as follows:
(i) Neither
the execution or delivery of this Agreement nor the performance by the 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 tune or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which
he
is bound.
(ii) The
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 the Executive
enforceable against him in accordance with its terms. No approvals or consents
of any persons or entities are required for the Executive to execute and
deliver
this Agreement or perform his duties and other obligations
hereunder.
8. Termination. The
Executive’s
employment hereunder shall be terminated upon the Executive’s death and may be
terminated as follows:
(a) The
Executive’s employment hereunder may be terminated by the Chief Executive
Officer of the Company for Cause. Any of the following actions by the Executive
shall constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Executive to perform his duties
hereunder;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the
effect
of injuring, in a material way (whether financial or otherwise and as determined
in good-faith by the Chief Executive Officer of the Company), the business
or
reputation of the Company or any of its affiliates, including but not limited
to, any officer, director, executive or shareholder of the Company or any
of its
affiliates;
(iii) Willful
misconduct by the Executive in respect of the duties or obligations of the
Executive under this Agreement, including, without limitation, insubordination
with respect to directions received by the Executive from the Chief Executive
Officer of the Company;
(iv) The
Executive’s indictment of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea);
(v) The
determination by the Company, after a reasonable and good-faith investigation
by
the Company following a written allegation by another employee of the Company,
that the Executive engaged in some form of harassment prohibited by law
(including, without limitation, age, sex or race discrimination), unless
the
Executive’s actions were specifically directed by the Chief Executive Officer of
the Company;
8
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach
by the Executive of any of the provisions of Sections 5, 6 or 7 of this
Agreement; and
(viii) Breach
by the Executive of any provision of this Agreement other than those contained
in Sections 5, 6, or 7 which is not cured by the Executive, within thirty
(30)
days after notice thereof is given to the Executive by the Company.
(b) The
Executive’s employment hereunder may be terminated by the Chief Executive
Officer of the Company due to the Executive’s Disability. For purposes of this
Agreement, a termination for “Disability”
shall occur (i) when the Chief Executive Officer of the Company has provided
a
written termination notice to the Executive supported by a written statement
from a reputable independent physician to the effect that the Executive shall
have become so physically or mentally incapacitated as to be unable to resume,
within the ensuing twelve (12) months, his employment hereunder by reason
of
physical or mental illness or injury, or (ii) upon rendering of a written
termination notice by the Chief Executive Officer of the Company after the
Executive has been unable to substantially perform his duties hereunder for
90
or more consecutive days, or more than 120 days in any consecutive twelve
month
period, by reason of any physical or mental illness or injury. For purposes
of
this Section 8(b), the Executive agrees to make himself available and to
cooperate in any reasonable examination
by
a reputable independent physician retained by the Company.
(c) The
Executive’s employment hereunder may be terminated by the Chief Executive
Officer of the Company (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, following the date hereof
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 if such person or his or its affiliate(s) do not own
in
excess of 50% of such voting power on the date of this Agreement, or (ii)
the
future 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) The
Executive’s employment hereunder may be terminated by the Executive for Good
Reason. For purposes of this Agreement, “Good
Reason”
shall mean (i) any material breach of Section 4 of this Agreement that is
not
cured by the Company within 30 days after receipt of written notice by Executive
to the Company of such material breach or (ii) upon a decision by the Company
to
relocate its corporate operations to a city other than a city located North
Carolina, Virginia, Maryland, Delaware, New Jersey, New York, Connecticut,
or
Massachusetts without the consent of the Executive, whose consent shall not
be
unreasonably withheld.
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(e) The
Executive’s employment may be terminated by the Company for any reason or no
reason.
9. Compensation
upon Termination.
(a) If
the Executive’s employment is terminated as a result of his death or Disability,
the Company shall pay to the Executive or to the Executive’s estate, as
applicable, his Base Salary and any accrued but unpaid Bonus and expense
reimbursement amounts through the date of his Death or Disability. All
Restricted Shares that are scheduled to vest on the next succeeding anniversary
of the Effective Date shall be accelerated and deemed to have vested as of
the
termination date. All Restricted Shares that have not vested (or been deemed
pursuant to the immediately preceding sentence to have vested) as of the
date of
termination shall be forfeited to the Company as of such date.
(b) If
the Executive’s employment is terminated by the Chief Executive Officer of the
Company for Cause, then the Company shall pay to the Executive his Base Salary
through the date of his termination and the Executive shall have no further
entitlement to any other compensation or benefits from the Company. All
Restricted Shares that have not vested as of the date of termination shall
be
forfeited to the Company as of such date.
(c) If
the Executive’s employment is terminated by the Company (or its successor) upon
the occurrence of a Change of Control and on the date of termination pursuant
to
Section 8(c) the fair market value of the Company’s Common Stock, in the
aggregate, as determined in good faith by the Board of Directors on the date
of
such Change of Control, is less than $50,000,000, then the Company (or its
successor, as applicable) shall continue to pay to the Executive his Base
Salary
and benefits for a period of six months following such termination as well
as
any expense reimbursement amounts owed through the date of termination. All
Restricted Shares that are scheduled to vest by the end of the calendar year
in
which such termination occurs shall be accelerated and deemed to have vested
as
of the termination date. All Restricted Shares that have not vested (or been
deemed pursuant to the immediately preceding sentence to have vested) as
of the
date of termination shall be forfeited to the Company as of such
date.
(d) If
the Executive’s employment is terminated by the Company other than as a result
of the Executive’s death or Disability and other than for reasons specified in
Sections 9(b) or (c), then the Company shall (i) continue to pay to the
Executive his Base Salary and benefits for a period of twelve months following
such termination, (ii) pay the Executive any expense reimbursement amounts
owed
through the date of termination, and (iii) all Restricted Shares that are
scheduled to vest during the Term shall be accelerated and deemed.
to
have vested as of the termination date
(e) This
Section 9 sets forth the only obligations of the Company with respect to
the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided in
Section 9.
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(f) The
provisions of this Section 9 shall survive any termination of this
Agreement.
10. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, 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 5 or 6 hereof), or regarding the interpretation thereof,
shall be finally settled by arbitration conducted in New York City 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 5 and 6 hereof, the parties hereby submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York County,
or
the United States District Court for the Southern District of New York, 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 the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and
assigns.
(d) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the 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
terms, conditions and provisions of this Agreement shall not be construed
as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver
of
any term or condition of this Agreement on the part of either party shall
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, shall be in writing and shall 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 shall 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 mail. Either party may designate another address,
for receipt of notices hereunder by giving notice to the other party in
accordance with this paragraph (g).
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(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.
[Remainder
of Page Intentionally Left Blank-Signature Page Follows]
12
IN
WITNESS WITEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
| INNOVIVE PHARMACEUTICALS, INC. | ||
| |
|
|
| By: | ||
|
Name: Xxxxxx Xxxxx |
||
| Title: President and Chief Executive Officer | ||
| EXECUTIVE | ||
| |
|
|
| By: | ||
|
Name: Xxxx X. Xxxxx |
||
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