EMPLOYMENT AGREEMENT
EXHIBIT 10.9
This Employment Agreement, effective as of this day of , 1999 (the “Effective Date”),
is by and among IMPAX LABORATORIES, INC., a Delaware corporation, with a business address at 00000
Xxxxxxxx Xxx., Xxxxxxx, Xxxxxxxxxx 00000 (the “Company”) and Xxxxx Xxx, Ph.D., with a mailing
address at 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (“Executive”).
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth, the
Company and Executive agree as follows:
1. Nature of Employment.
1.1 Duties and Responsibilities. Executive shall serve as the President of the Company during the
term of this Agreement, and use his best efforts to promote the interests of the Company and shall
devote his full time and efforts to its business and affairs. Executive shall have general
executive powers and active management over the property, business, and affairs of the Company,
subject always to the direction of the Board of Directors (the “Board”) or its designee.
1.2 Other Business Activities. Executive will devote his full professional time, attention and
effort to Company’s business. Notwithstanding the foregoing, Executive shall be entitled to
participate in other professional and business activities to the extent such activities are
reasonably likely to enhance Executive’s ability to perform his obligations hereunder, provided
that such activities do not compete with the business of the Company and do not unreasonably
interfere with the then performance of his duties hereunder.
1.3 Board of Directors Member. Each year during the term of this Agreement, the Board of Directors
of the Company (the “Board”) shall designate Executive as one of management’s slate of candidates
to the Board, shall recommend Executive as a Director to its shareholders, and shall otherwise use
its best efforts to have Executive elected as a Director and to have him remain as a Director
during the entire term of this Agreement, in all instances subject to satisfaction by the Board of
Directors of its fiduciary duties and obligations.
2. Compensation.
2.1 Salary. Executive’s salary shall be at an initial annual rate of One Hundred Seventy-Five
Thousand Dollars ($175,000.00), subject to withholding and further subject to discretionary
increases in accordance with
the Company’s normal review procedures and policies. The salary shall be paid in substantially
equal installments in accordance with the Company’s standard payroll practices, as in effect from
time to time.
2.2 Bonus. Subject to the achievement of certain short-term and long-term performance goals
established by the Board of Directors of the Company from time to time, Executive shall be paid
quarterly and annual bonuses, payable in stock and/or cash, to be determined by the Board of
Directors of this Company or its Compensation Committee. Each such bonus shall be paid at the same
time as, and be equal to, the bonus paid to Xxxxxxx Xxxxx, Ph.D., and Xxxxx Xxxxxxx for such
period.
2.3 Medical Insurance and Other Benefits. Executive shall be entitled to receive full health,
dental, vision, and disability insurance, as well as any other benefits customarily offered to
other senior executive officers of the Company, all upon terms no less favorable to Executive, with
all premiums and costs to be paid by the Company. The Company shall also provide to Executive, at
Company’s expense, life insurance coverage at standard premium rates having a death benefit payable
to a beneficiary selected by the Executive equal to $1,000,000 and disability insurance at standard
premium rates which provides salary replacement benefits, not to exceed $250,000 in the aggregate,
in the event Executive becomes incapacitated. Executive shall be required to undergo a yearly
physical examination, at Company’s expense, with a physician of Executive’s choosing, and upon
Company’s request, deliver a copy of such physician’s report from such examination.
2.4 Vacation. Executive shall be entitled to receive four (4) weeks of paid vacation time annually,
such vacation shall accrue daily, provided however, that in the event the total vacation accrual
ever reaches four (4) weeks, then no further vacation time will accrue until Executive has used his
current annual allotment. Executive may not receive pay rather than vacation except when Executive
leaves the Company. Executive may schedule his vacations at his discretion so long as the timing of
such vacations does not interfere with his responsibilities to the Company.
2.5 Reimbursement of Expenses. The Company shall reimburse Executive for all out-of-pocket expenses
incurred by Executive in performing his obligations hereunder within thirty (30) days after the
date on which Executive delivers to the Company an itemized statement, accompanied by appropriate
receipts to the extent available, describing the reimbursable expenses incurred. The expenses to be
reimbursed include, without limitation, telephone, fax, air freight and travel related expenses.
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3. Term and Termination.
3.1 Term. The term of this Agreement shall commence on the Effective Date and, unless terminated in
accordance with this Section 3, shall continue until the third anniversary of the Effective Date,
and thereafter shall be automatically renewed for successive periods of one year each, unless
terminated by either party by written notice of termination delivered to the other party at least
six (6) months prior to the expiration date of the initial term or any renewal term of this
Agreement (the “Term”).
3.2 Termination by the Company. The Company shall have the right to terminate this Agreement (i)
for Cause, as defined below, at any time and without prior notice, or (ii) for any other reason on
thirty (30) days written notice to Executive.
3.2.1 Termination for Cause. The phrase “Cause” means any of the following:
(i) any material breach by Executive of any provision of Sections 5, 6, 7 or 8 of this Agreement;
(ii) any material breach of any other provision of this Agreement by Executive (other than any such
breach resulting from Executive’s incapacity due to physical or mental illness, which shall be
governed by Section 3.2.2 hereof), including without limitation the failure to satisfactorily
perform his duties as provided herein, if that breach is not remedied within thirty (30) days after
written notice to Executive describing the acts alleged to constitute Cause;
(iii) any act of fraud, misappropriation, embezzlement or similar willful and malicious conduct by
Executive against the Company; or
(iv) indictment of Executive for a felony or any conviction of, or guilty plea by Executive to, a
crime involving moral turpitude if that crime of moral turpitude tends or would reasonably tend to
bring the Company into disrepute.
3.2.2 Termination for Death or Disability. For purposes hereof, the term “disability” shall mean
such physical or mental illness as shall render Executive incapable of substantially performing his
duties hereunder on a regular basis at the Company’s offices for a period of three (3) consecutive
months or for a period of six (6) months in any twelve-month period, all as determined by a
physician or psychiatrist, as the case may be, selected by the Company.
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3.3 Termination by the Executive. Executive may terminate this Agreement for any reason upon thirty
(30) days advance written notice to the Company.
4. Termination Payments.
4.1 No Payments. In the event of any termination of this Agreement by Company for Cause, or by
Executive without Good Reason, the Company shall have no further payment obligations to Executive
hereunder, except for wages and benefits accrued to date and/or provided by applicable law.
4.2 Continued Payments. If the Company terminates this Agreement for any reason other than for
Cause, or Executive terminates this Agreement for Good Reason and in accordance with Section 3.3,
then in lieu of any other payments otherwise required hereunder, the Company shall, subject to
Executive’s compliance with Sections 5, 6, 7 and 8 hereof, pay Executive, as liquidated damages and
not as a penalty, (a) within fifteen (15) days after the termination date, all accrued and unpaid
salary and benefits (including accrued but unused vacation time) through the termination date and
(b) the lesser of (i) an amount equal to his salary payments at the time of the termination, in
accordance with the Company’s then payment policy, and benefits provided for herein during the
six-month period following the termination date, and (ii) the entire amount of the salary remaining
due and payable from the date of such termination to the scheduled expiration of this Agreement;
provided, however, that if such termination occurs prior to the first anniversary of the Effective
Date, then in addition to items (a) and (b) above, Executive shall be entitled to continue to
receive, in accordance with the Company’s then payment policy, an amount equal to his salary
payments and, to the extent Executive is not otherwise employed, health benefits, until the first
anniversary of the Effective Date. In the event that this Agreement is terminated due to the death
or disability of Executive, Company shall pay to Executive a portion of any bonus otherwise payable
to Executive in accordance with Section 2.2 hereof, prorated to reflect any early termination of
this Agreement relative to the performance period to which the bonus relates.
4.3 Continued Medical Coverage. If the Company terminates this Agreement for any reason other than
for Cause, or Executive terminates this Agreement for Good Reason and in accordance with Section
3.3, then Company shall maintain, at Company’s cost, Executive’s health, dental, vision and
disability insurance described in Section 2.3 hereof until the first to occur of (i) the
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expiration of eighteen (18) months following such termination; or (ii) Executive accepts employment
which provides health insurance. If the Company terminates this Agreement for Cause, or Executive
terminates this Agreement for any reason other than Good Reason, Executive shall have the right to
maintain, at Executive’s cost, the health, dental, vision and disability insurance described in
Section 2.3 hereof, for a period not to exceed eighteen (18) months or such longer period as may be
required by applicable law, all to the extent permitted by the applicable insurance carrier.
4.4 Certain Definitions.
4.4.1 Good Reason. For purposes of this Agreement, “Good Reason” means (i) the assignment to
Executive of any duties or the substantial reduction of Executive’s duties, either of which is
inconsistent with Executive’s position as President; (ii) any change in Executive’s reporting
relationship which results in his not reporting to a member of the Board of Directors of the
Company; (iii) a material reduction in Executive’s salary or benefits not agreed to by Executive;
(iv) a requirement of Executive to relocate to an office that would increase Executive’s one-way
commute distance by more than fifty (50) miles; or (v) a Change in Control of Company, as
hereinafter defined.
4.4.2 Change in Control of Company. For purposes of this Agreement, “Change in Control of Company”
shall mean the occurrence of any of the following:
(i) Any person or entity acquires ownership or control, directly or indirectly, of securities of
the Company (or a successor to the Company) representing fifty percent (50%) or more of the
combined voting power of the then outstanding securities of the Company or such successor;
(ii) (a) a sale or disposition of assets of the Company involving fifty percent (50%) or more in
value of the assets of the Company; (b) any merger or reorganization of Company (whether or not
another entity is the survivor), in which the Company’s shareholders (immediately prior to the
transaction) do not own (immediately after the transaction), either directly or indirectly, at
least fifty-one percent (51%) of the voting power of the surviving or successor corporation; (c)
any transaction pursuant to which all of the shareholders of the Company immediately prior to the
transaction, hold (immediately after the transaction) less than fifty-one percent (51%) of the
combined voting power of the Company or any successor Company; (d) any other event or transaction
which the Board determines, in its discretion, would materially alter the structure, ownership or
control of the Company;
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provided, however, that the consummation of the transactions contemplated by the Agreement and Plan
of Merger, dated as of , 1999, between Impax, Inc., a California corporation, and
Gemstone, a Delaware corporation, shall not constitute a Change in Control.
5. Proprietary Information and Inventions. Executive acknowledges that during his employment he may
create, make, derive, produce, obtain, make known or learn about certain information which has
commercial value in the business in which the Company is engaged and which is treated by the
Company as confidential. This information may have been created, discovered or developed by the
Company or the Executive, in the course and scope of his employment, or otherwise received by the
Company from third parties subject to a duty to maintain the confidentiality of such information.
All such information is hereinafter called “Proprietary Information.”
5.1 Proprietary Information Defined. By way of illustration, but not limitation, Proprietary
Information includes trade secrets, ideas, processes, drawings, specifications, data, formulations,
computer programs, software, other original works of authorship, know-how, improvements,
discoveries, developments, designs, innovations, techniques, business development strategies,
marketing plans, strategies, forecasts, new products, unpublished financial statements, budgets,
projections, licenses, prices, costs, strategic alliances, ventures, and customer and supplier
lists. The foregoing obligations of confidentiality and non-use shall not apply to any Proprietary
Information that:
5.1.1 was known to the Executive prior to the date of disclosure pursuant to this Agreement and not
obtained or derived directly or indirectly from the Company;
5.1.2 is or becomes public or available to the general public otherwise than through the act or
default of the Executive;
5.1.3 is obtained subsequent to any disclosure under this Agreement from a third party who is
lawfully in possession of same and which information is not subject to any confidential or non-use
obligations owed to the Company or others;
5.1.4 has been furnished by the Company to a third party without similar restrictions on
disclosure; or
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5.1.5 is required to be disclosed pursuant to requirements of Federal, state or local statute,
regulation or court order, provided that Executive delivers prior written notice to Company of such
pending disclosure, and gives Company a reasonable opportunity to oppose such disclosure with the
applicable authority.
5.2 Ownership of Proprietary Information. Executive acknowledges that all Proprietary Information
shall be the sole property of the Company and its assignees (or, in some cases, its clients,
suppliers or customers), and the Company and its assignees (or, in some cases, its clients,
suppliers or customers) shall be the sole owner of all patents, copyrights, trade secrets, and all
other intellectual property rights in connection therewith (collectively “Intellectual Property
Rights”). The Company’s ownership includes any and all modifications, corrections, updates,
changes, improvements, derivatives and enhancements to the Proprietary Information and the
Intellectual Property Rights therein.
5.3 Non-Disclosure. At all times, both during Executive’s employment and after his termination,
Executive shall keep in strictest confidence and trust all Proprietary Information, and shall not
reproduce or disclose any Proprietary Information, or use such Proprietary Information for his own
account or the account of any third party, without the written consent of the Company, except as
may be necessary in the ordinary course of performing duties as an employee of the Company.
5.4 Assignment of Inventions. Executive hereby assigns and transfers to the Company, Executive’s
entire right, title and interest, now or hereafter acquired, in and to all Proprietary Information
and Intellectual Property Rights therein, discovered, originated, made or conceived or learned by
Executive either alone or jointly with others, during the period of Executive’s employment which
result, directly or indirectly, from (i) the use of premises or equipment owned, leased or
contracted for by the Company or supplies or Proprietary Information of the Company, or (ii) work
conducted on the time of the Company, or (iii) work performed for the Company. Executive further
acknowledges that all original works of authorship which are made by Executive (solely or jointly
with others) within the scope of and during the period of his employment with the Company and which
are protectible by copyright are “works made for hire,” as that term is defined in the United
States Copyright Act. Executive understands and agrees that the decision whether or not to
commercialize or market any invention developed by him solely or jointly with others is within the
Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to him
as a result of the Company’s efforts to commercialize or market any such invention. Executive
hereby waives
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all moral rights which he may have or hereafter acquire in any Proprietary Information and any
Intellectual Property Rights therein. Executive will, at the Company’s request, promptly execute a
written assignment of title to the Company for any Proprietary Information and Intellectual
Property Rights therein, and a written waiver of all moral rights therein, and Executive will
preserve all such Proprietary Information as confidential information of the Company.
5.5 Notice of Inventions; Execution of Documents. Executive agrees to give Company prompt written
notice of his acquisition or creation of any Proprietary Information. Executive further agrees as
to all Proprietary Information to assist the Company in every proper way (but at the Company’s
expense) to obtain and from time to time enforce patents, copyrights and other rights and
protections relating to inventions in any and all countries, and to that end agrees to execute all
documents for use in applying for and obtaining such patents, copyrights and other rights and
protections on and enforcing inventions as the Company may desire, together with any assignments
thereof to the Company or persons designated by it. Executive’s obligations to assist the Company
in obtaining and enforcing patents, copyrights and other rights and protections relating to
Proprietary Information in any and all countries shall continue beyond the termination of
employment, but the Company shall compensate Executive at a reasonable rate after such termination
for time actually spent, at the Company’s request, on such assistance. In the event the Company is
unable, after reasonable effort, to secure signatures on any documents needed to effect any
assignment hereunder or to apply for or prosecute any patent, copyright or other right or
protection relating to an invention, whether because of physical or mental incapacity or for any
other reason whatsoever, Executive hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as his agent and attorney-in-fact, to act for and in his behalf
and stead, to execute and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents, copyrights or similar
protections thereon with the same legal force and effect as if executed by him.
5.6 Return of Proprietary Information. All Proprietary Information, including, without limitation,
all written materials, records and documents or other tangible materials made by Executive or
coming into his possession as a result of his employment with Company concerning the business or
affairs of Company shall be the sole property of Company; and, upon the termination of his
employment with Company or upon the request of Company, Executive shall promptly deliver the same
to Company.
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5.7 Third Party Information. Executive recognizes that the Company has received and in the future
will receive from third parties their confidential or proprietary information subject to a duty on
the Company’s part to maintain the confidentiality of such information and to use it only for
certain limited purposes. Executive agrees that Executive owes the Company and such third parties,
during the term of this Agreement and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the services for the Company
consistent with the Company’s agreement with such third party.
6. Prior Inventions. Executive understands that all inventions, if any, patented or unpatented,
which Executive made prior to Executive’s employment are excluded from the scope of this Agreement.
To preclude any possible uncertainty, Executive has set forth on item 1 of Exhibit A attached
hereto a complete list of all of Executive’s prior inventions, including numbers of all patents and
patent applications, and a brief description of all unpatented inventions which are not the
property of a previous employer. Executive represents and covenants that the list is complete and
that, if no items are on the list, Executive has no such prior inventions. Executive agrees to
notify the Company in writing before Executive makes any disclosure or performs any work on behalf
of the Company which appears to threaten or conflict with proprietary rights which Executive claims
in any invention or idea. Executive agrees that if in the course of performing services hereunder,
Executive incorporates into the Company’s Proprietary Information or otherwise utilizes any
invention, improvement, development, concept, discovery or other proprietary information owned by
Executive or in which Executive has an interest, the Company is hereby granted and shall have a
non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify,
use and sell such item as part of or in connection with such Proprietary Information.
7. Conflicting Obligations.
7.1 Trade Secrets of Others. Executive represents that he has not brought, and will not bring with
him to Company, disclose to Company, or use in the performance of his responsibilities, any
devices, materials or documents of a former employer or other party that are proprietary or are not
generally available to the public, unless he has obtained express written authorization from such
party for their possession and use. The only devices, materials or documents of a former employer
or other party that are proprietary or are not
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generally available to the public that Executive will bring to the Company, if any, are identified
on item 2 of Exhibit A attached hereto, and as to each such item, Executive represents that
Executive has obtained express written authorization for their possession and use and has delivered
a copy of such written authorization to the Company.
7.2 Conflicting Confidentiality Agreements. Executive agrees that during this employment, Executive
will not breach any obligation of confidentiality Executive has to former employers, clients, and
others. Executive represents that Executive’s performance under the terms of this Agreement, as
Executive to the Company, does not and will not breach any agreement to keep in confidence
proprietary information acquired by Executive in confidence or in trust. Executive has neither
entered into, nor shall enter into, any agreement, either written or oral, in conflict herewith.
8. Covenant Not to Compete; Non-Interference.
8.1 During the term of this Agreement, Executive shall not, directly or indirectly, engage or
participate in any business, which is in competition with any business in which the Company
conducts or pursues during the term of this Agreement. Moreover, in view of Executive’s access to
the Company’s trade secrets and proprietary information and know-how, Executive further agrees that
Executive will not, without the Company’s prior written consent, design or develop identical or
substantially similar designs as those developed for the Company during his employment for himself
or any third party during the term of this Agreement and for a period of twelve (12) months
following the termination of this Agreement.
8.2 Executive covenants and agrees that he will not, during the term of this Agreement and
continuing until the second anniversary of the termination of this Agreement, whether for his own
account or for the account of any other person, interfere with the relationship of the Company
with, or endeavor to entice away from the Company, any person who at any time during the term of
Executive’s engagement with the Company was an employee of the Company. Furthermore, Executive
covenants and agrees that he will not, whether during the term of this Agreement or thereafter,
whether for his own account or for the account of any other person, interfere with the relationship
of the Company with, or endeavor to entice away from the Company, any person who at any time during
the term of Executive’s engagement with the Company was a customer, supplier or business partner of
the Company.
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9. Key Man Insurance. The Company may, in its sole discretion, at any time after the date hereof,
apply for and procure as owner for its benefit, life insurance on Executive, in such amount and in
such form or forms as the Corporation may determine. Executive shall, at the Company’s request,
subject to such medical examinations, supply such information and execute such documents as may be
required by the insurance company or companies to whom the Company has applied for such insurance.
10. General Provisions.
10.1 Mediation and Arbitration.
10.1.1 Mediation. No party to this Agreement may initiate litigation or arbitration with regard to
any dispute with respect to this Agreement until after all remedies set forth in this Section have
been exhausted. In the event of any dispute arising over this Agreement, any party shall have the
right by giving written notice to the other parties hereto (the “Mediation Notice”) to initiate
non-binding mediation to be conducted by a mediator mutually agreed to by the parties or, in the
event the parties are unable to reach such agreement within thirty (30) days following the delivery
of the Mediation Notice, by a mediator appointed by the American Arbitration Association (“AAA”) in
accordance with the rules and regulations of the AAA, or by any other body mutually agreed upon by
the parties. Mediation shall take place at Hayward, California or any other location mutually
agreeable to the parties. In the event the parties resolve their dispute in mediation, they shall
enter into a written agreement, which shall be binding on all parties thereto.
10.1.2 EXCEPT AS PROVIDED IN SECTIONS 10.1 AND 10.10 HEREOF, EXECUTIVE AND COMPANY AGREE THAT ANY
DISPUTE OR CONTROVERSY ARISING OUT OF, OR RELATING TO THIS AGREEMENT SHALL BE SETTLED BY
ARBITRATION TO BE HELD IN ALAMEDA COUNTY, CALIFORNIA, IN ACCORDANCE WITH THE EMPLOYMENT DISPUTE
RESOLUTION RULES THEN IN EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR MAY GRANT
INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY. THE DECISION OF THE ARBITRATOR SHALL BE
FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE
ARBITRATOR’S DECISION IN ANY COURT HAVING JURISDICTION.
10.1.3 THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE
RELATIONSHIP (EXCEPT AS PROVIDED IN SECTION 7 HEREOF), INCLUDING, WITHOUT LIMITATION, THE FOLLOWING
CLAIMS:
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10.1.3(a) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT, BREACH OF CONTRACT, EXPRESS OR
IMPLIED, BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, NEGLIGENT OR INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS, MISREPRESENTATION, INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE, DEFAMATION AND LIBEL;
10.1.3(b) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR MUNICIPAL STATUTE, INCLUDING,
WITHOUT LIMITATION, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE
AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR
LABOR STANDARDS ACT; AND
10.1.3(c) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT
OR EMPLOYMENT DISCRIMINATION.
10.1.4 EXECUTIVE UNDERSTAND THAT EACH PARTY’S COVENANT TO RESOLVE DISPUTES BY ARBITRATION, AS
OPPOSED TO THE JUDICIAL SYSTEM IS CONSIDERATION FOR THE OTHER PARTY’S PROMISE. EXECUTIVE FURTHER
UNDERSTANDS THAT HE HAS BEEN OFFERED EMPLOYMENT BY THE COMPANY IN CONSIDERATION OF HIS PROMISE TO
ARBITRATE DISPUTES.
10.2. Notification of New Employer. In the event that Executive leaves the employ of the Company,
Executive hereby consents to notification by the Company to Executive’s new employer about his
rights and obligations under this Agreement.
10.3 Notices. Except as expressly provided herein, all notices, requests or other communications
required hereunder shall be in writing and shall be given personal delivery, national overnight
courier service, or by U.S. mail, certified or registered, postage prepaid, return receipt
requested, addressed to the respective party at the applicable address set forth above, or to any
party at such other addresses as shall be specified in writing by such party to the other parties
in accordance with the terms and conditions of this Section. All notices, requests or
communications shall be deemed effective upon personal delivery, or five (5) days following deposit
in the United States mail, or two (2) business days following deposit with any national overnight
courier service.
10.4 Jurisdiction, Venue and Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California (regardless of that jurisdiction or
any other jurisdiction’s choice of law principles). To the extent permitted by law and except as
otherwise provided in Section 10.1 hereof, the parties hereto agree that all actions or proceedings
arising in connection herewith, shall be litigated in the
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state and federal courts located in the State of California, and each party hereby waives any right
it may have to assert the doctrine of Forum Non Conveniens or to object to venue. The parties each
hereby stipulate that the state and federal courts located in the County of Alameda, State of
California, shall have personal jurisdiction and venue over each party for the purpose of
litigating any such dispute, controversy or proceeding arising out of or related to this Agreement.
To the extent permitted by law, service of process sufficient for personal jurisdiction in any
action against either party may be made by registered or certified mail, return receipt requested.
10.5 No Assignment. This Agreement is personal to Executive, and Executive may not assign any
rights or delegate any responsibilities hereunder without the prior approval of the Company.
10.6 Entire Agreement. This Agreement, including the exhibit which is referenced herein and
incorporated by this reference, is the entire agreement between the Company and Executive with
respect to the subject matter hereof and cancels and supersedes any and all prior agreements
regarding the subject matter hereof between the parties, including without limitation that certain
Employment Agreement, dated September 30, 1996, between Impax Pharmaceuticals, Inc., and Executive.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors, heirs and permitted assigns. This Agreement may not be altered, modified, changed or
discharged except in writing signed by both the parties.
10.7 Survival. Sections 4.2, 4.3, 5, 6, 7, 8 and 10, each inclusive, shall survive termination or
expiration of this Agreement.
10.8 Validity. If any one or more of the provisions (or any part thereof) of this Agreement shall
be held to be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions (or any part thereof) shall not in any way be affected
or impaired thereby.
10.9 No Waiver of Rights. The delay or failure of either party to enforce at any time any provision
of this Agreement shall in no way be considered a waiver of any such provision, or any other
provision, of this Agreement. No waiver of, or delay or failure to enforce any provision of this
Agreement shall in any way be considered a continuing waiver or be construed as a subsequent waiver
of any such provision, or any other provision of this Agreement.
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10.10 Equitable Remedies. Employee specifically acknowledges that any violation of Section 5, 6, 7
or 8 of this Agreement could cause irreparable injury to Company and its business and property.
Employee, therefore, agrees that in the event of his breach of any of the terms and conditions of
Section 5, 6, 7 or 8 of this Agreement, Company shall be entitled, if it so elects, to institute
and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, to
enjoin him from further violation of such provisions. The remedies provided herein shall be
cumulative and in addition to any and all other remedies which either party may have at law or in
equity.
10.11 Attorneys’ Fees. The prevailing party shall be entitled to recover from the losing party its
attorneys’ fees and costs incurred in any action or proceeding, including arbitration, brought to
interpret this Agreement or to enforce any right arising out of this Agreement. For purposes of
this Section, the prevailing party shall be that party that most closely obtains the relief sought
by it.
10.12 EXECUTIVE ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH THE ADVISOR OF HIS
CHOICE AND THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below.
| IMPAX LABORATORIES, INC. |
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Date:
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By: | ||||||||||||
| (Print Name and Title) | |||||||||||||
Date: |
/s/ Xxxxx Xxx, Ph.D. | ||||||||||||
| Xxxxx Xxx, Ph.D. | |||||||||||||
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EXHIBIT A
IMPAX LABORATORIES, INC.,
a Delaware corporation
00000 Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
Dear Sir or Madam:
1. The following is a complete list of all inventions or improvements relevant to the subject
matter of my employment with Impax Laboratories, Inc., a Delaware corporation (the “Company”), that
have been made or conceived or first reduced to practice by me, alone or jointly with others, prior
to my engagement by the Company:
o No inventions or improvements.
o See below:
o Additional sheets attached.
2. I propose to bring to my employment (or consulting, if applicable) the following devices,
materials and documents of a former employer or other party that are proprietary or are not
generally available to the public, which materials and documents may be used in my employment
pursuant to the express written authorization of my former employer or other party (a copy of which
is attached hereto):
o No materials.
o See below:
