Contract
EMPLOYMENT
AGREEMENT
dated as
of June 29, 2005, between Xxxxxx Xxxxxx (the "Executive") and DOV
Pharmaceutical, Inc., a Delaware corporation (the "Company").
WHEREAS,
the Company and the Executive desire to enter into this Employment Agreement
to
assure the Company of the services of the Executive, to assure the Executive
of
the terms and conditions of his employment, and to set forth the duties and
compensation of the Executive, all upon the terms and conditions hereinafter
set
forth;
NOW,
THEREFORE, in consideration of the agreements and covenants contained herein,
the Executive and the Company hereby agree as follows:
ARTICLE
I
Employment
Section
1.01. Term.
The
initial term of this Employment Agreement shall commence, and the Executive
shall commence his employment, on July 28, 2005 and, unless sooner terminated
pursuant to Article III hereof, shall terminate on the date that is three
years
thereafter (the “Employment Period”). Unless sooner terminated pursuant to
Article III, the parties may by written agreement renew this Agreement for
one
year (each such one-year period hereinafter referred to as a “Renewal Period”;
the Initial Employment Period and all Renewal Periods hereinafter referred
to as
the “Employment Period”).
Section
1.02. Position.
The
Company shall employ the Executive and the Executive shall serve as chief
executive officer (“CEO”) and president during the Employment
Period.
Section
1.03. Duties.
(a)
Subject to the responsibility vested in the Board of Directors of the Company
(the “Board”) under the General Corporation Law of the State of Delaware, the
Executive shall have such responsibility and authority as are customarily
possessed and exercisable by the CEO and president of a corporation. The
Executive shall also perform such other executive and administrative duties
(not
inconsistent with the position of CEO and president) as the Executive may
reasonably be expected to be capable of performing on behalf of the Company
and
any subsidiaries and affiliates of the Company as may from time to time be
authorized or directed by the Board.
(b)
During the Employment Period, the Executive shall perform faithfully the
duties
covered by Section 1.02(a) to the best of his ability and devote his full
business time and attention to the Company's business and not engage in any
other business activities except with the approval of the Board provided
that he
may subject to Section 4.01 invest in companies not requiring his services
and
may subject to Section 1.03(a) devote reasonable time to charitable and civic
affairs.
(c)
The
Company shall provide and pay for a standard directors and officers insurance
policy insuring the Executive against liability arising out of the performance
of his duties, and shall indemnify and hold the Executive harmless from
liability arising out of his services hereunder.
ARTICLE
II
Compensation
Section
2.01. Basic
Compensation.
As
compensation for the Executive's services hereunder, the Company shall pay
to
the Executive an annual salary of $425,000 (as adjusted, "Basic Compensation"),
payable in bi-weekly installments. The Basic Compensation may be increased
from
time to time in the discretion of the Board.
Section
2.02. Incentive
Compensation.
(a) In
addition to Basic Compensation, the Executive shall together with other
executive staff be considered at least annually for incentive compensation
(“Incentive Compensation”) upon recommendation by the Compensation Committee to
the Board. Notwithstanding the foregoing, in January 2006 the Company shall
pay
the Executive as Incentive Compensation for 2005 a cash bonus of $85,000.
In
addition, notwithstanding the foregoing, the Company shall pay the Executive
as
Incentive Compensation for 2006 and subsequent years a bonus targeted at
40% of
Basic Compensation, if the Executive meets performance objectives developed
by
the Compensation Committee in consultation with the Executive, provided that
the
Compensation Committee ultimately shall have discretion to set performance
objectives, with such annual bonuses to be paid no later than February of
the
year immediately following the year for which the bonus has been earned.
Such
performance objectives may incorporate, among other items, the performance
of
the Company, increase in value of the Company and the Executive’s contribution
thereto.
(b)
In
addition to the Incentive Compensation described in Section 2.02(a), the
Board
in its discretion may provide the Executive with additional Incentive
Compensation upon recommendation of the Compensation Committee. Any such
additional Incentive Compensation shall be paid to the Executive within 30
days
after the Board’s determination regarding same. In addition, the Executive shall
have the right to participate in the Company's other compensation and benefits
programs for the benefit of other executives and employees, including without
limitation long term compensation, in accordance with their terms and as
the
same may be amended from time to time.
Section
2.03. Other
Benefits.
(a)
During the Employment Period, the Company shall (i) provide the Executive
and
maintain on the Executive’s behalf, or reimburse the Executive for carrying
comprehensive medical insurance including the Executive’s contribution if he so
elects to the Pfizer/Pharmacia health and dental plan; (ii) reimburse the
Executive for all reasonable fees and expenses of counsel in connection with
this Agreement; and (iii) reimburse the Executive for the annual fee up to
$9,500 for his personal financial advisor. In addition, the Executive shall
have
the right to participate in the Company's other compensation and benefits
programs for the benefit of employees in accordance with their terms and
as the
same may be amended from time to time. The Executive may participate in (i)
the
Company’s pre-tax spending account plan if any and (ii) at the Company’s expense
its disability insurance and life insurance plans.
2
(b)
The
Executive shall be eligible to participate in the Company’s stock option program
and shall initially be awarded 225,000 options on the Executive’s first day of
employment with the Company. The terms of such options shall be governed
by the
present form of stock option agreement with the Company used for executive
staff, and the terms of any additional options shall be governed by the
Company’s standard stock option agreement in use at the time of grant, which for
all options held by or issued to the Executive may incorporate the terms
established by the Company’s stock option plan if any adopted subsequent to the
date of grant provided that notwithstanding such stock option terms if any
to be
adopted to the contrary the Executive’s options to the extent not vested shall
fully and immediately vest upon a termination of employment pursuant to Section
3.01(d), or Section 3.03 or Section 3.04 and be fully exercisable during
the
period 90 days thereafter (or if shorter the exercise expiration date thereof)
or during such longer post-employment period established by such terms to
be
adopted. The options granted to purchase 225,000 shares of the Company’s common
stock shall have an exercise price determined by the closing price on the
date
the options are awarded to the Executive and shall vest ratably annually
over
the 48-month period commencing on the Executive’s first day of employment with
the Company.
(c)
The
Executive shall also upon commencement of employment be granted 100,000 shares
of restricted stock of the Company, which shall vest on the same schedule
and be
subject to the same acceleration of vesting for termination by the Company
other
than for cause, or by the Executive for good reason or following a change
in
control as the options granted covered by section 2.03(b).
The
Company may from time to time award additional stock or stock options to
Executive based on the level of the Executive’s job performance.
(d)
The
Company shall pay to or on behalf of the Executive a monthly automobile
allowance of $1,000.
(e)
The
Executive shall be entitled to six weeks of paid vacation in each calendar
year.
The Executive shall also be entitled to the same standard paid holidays given
by
the Company to senior executives generally, all as determined from time to
time
by the Board or appropriate committee thereof. Vacation time shall cumulate
and
carry forward from year to year provided that the Executive shall not be
entitled to use more than ten weeks of vacation in any one year without the
permission of the Compensation Committee and provided that the Executive
shall
to the extent practicable in his discretion coordinate his vacation schedule
with other executive officers. Upon the Executive’s separation from the Company
at any time and for any reason or no reason, the Company shall pay the Executive
for any and all accrued and unused vacation days.
3
(f)
The
Company shall reimburse the Executive for travel or other expenses or
disbursements reasonably incurred or made by him in connection with the
Company's business during the Employment Period upon receipt of reasonable
documentation thereof.
(g)
The
Company shall pay the Executive up to $75,000, incurred within 24 months
of the
date hereof, for moving expenses including brokerage on the sale of his home
from Philadelphia to a location commutable to the Company. In addition, the
Company shall also pay the Executive for expenses incurred by the Executive
for
corporate housing and travel to and from Philadelphia until the earlier of
the
Company’s relocation and December 31, 2005. After December 31, 2005, the Company
shall also pay the Executive for any expenses incurred by the Executive for
up
to four months’ corporate housing following the Company’s relocation and prior
to the Executive’s residential move.
(h)
The
benefits set forth in this Section 2.03 shall be collectively referred to
as the
“Benefits.”
ARTICLE
III
Termination
of Employment
Section
3.01. Termination
of Employment by Company
(a)
Except as otherwise provided in this Article III and in Article IV, upon
the
occurrence of any of the following events, this Agreement and the rights
and
obligations of the parties hereunder shall terminate:
(i)
"Disability"
(as defined in Section 3.05(a)) of the Executive; or
(ii)
conduct by the Executive constituting "Cause" (as defined in Section 3.05(b));
or
(b)
In
the case of termination pursuant to Section 3.01(a)(i), the Company shall
be
obligated to pay the Executive and the Executive shall be entitled to receive,
in complete and total satisfaction of the obligations of the Company hereunder,
an amount equal to Basic Compensation, Incentive Compensation and Benefits
for
the period commencing on the date of termination and ending on the date that
is
nine months after the date of termination. Basic Compensation, Incentive
Compensation and Benefits shall be paid in the manner and at the intervals
provided in Article II.
(c)
In the
case of termination pursuant to Section 3.01(a)(ii), the Company shall be
obligated to pay the Executive and the Executive shall be entitled to receive,
in complete and total satisfaction of the obligations of the Company hereunder,
an amount equal to Basic Compensation, Incentive Compensation and Benefits
through the date of such termination.
4
(d) In
the
case of termination of the Executive by the Company other than pursuant to
Section 3.01(a) or Section 3.02, or if for any reason the parties do not
renew
this Agreement, the Company shall be obligated to pay the Executive and the
Executive shall be entitled to receive, in complete and total satisfaction
of
the obligations of the Company hereunder, the greater of (i) payment to the
Executive equal to Basic Compensation commencing on the date of termination
and
ending three years from the date hereof and (ii) payment to the Executive
equal
to one year of Basic Compensation.
Section
3.02. Death.
In the
event of the death of the Executive during the Employment Period, the Employment
Period shall terminate on the date of death and the Executive's designated
beneficiary or, if none, his estate shall be entitled to receive, in complete
and total satisfaction of the Company's obligations hereunder, Basic
Compensation, Incentive Compensation and Benefits through such date of death
and
for a period of 90 days thereafter.
Section
3.03. Termination
of Employment by the Executive.
(a) If
during the Employment Period there should occur any of the following events
(each of the following being an event giving the Executive the right to resign
for "Good Reason”): (i) a change in the title and/or responsibilities of the
Executive, such that the Executive is no longer functionally the CEO or
President of the Company and no longer has such responsibilities and authorities
as are customarily exercisable by the CEO or President of a corporation or
(ii)
a failure by the Company to provide the Executive with Basic Compensation,
Incentive Compensation or Benefits, other than a failure that is not in bad
faith and is remedied by the Company within 15 days after receipt of notice
thereof given by the Executive, or (iii) a breach by the Company of a material
term of this Agreement that is not remedied by the Company within 15 days
of
notice thereof by the Executive, the Executive may elect to terminate his
employment by notice to the Company (subject to Article IV). If the Executive
exercises such election, the Employment Period shall terminate effective
upon
the later to occur of (x) receipt of such notice by the Company and (y)
expiration of the 15-day period referred to in Section 3.03(a)(ii) or
(iii).
(b)
If
the
Executive exercises his election to terminate pursuant to Section 3.03(a),
the
Company shall be obligated to pay the Executive and the Executive shall be
entitled to receive, in complete and total satisfaction of the obligations
of
the Company hereunder, the greater of (i) payment to the Executive equal
to
Basic Compensation commencing on the date of termination and ending three
years
from the date hereof and (ii) payment to the Executive equal to one year
of
Basic Compensation.
(c)
If
the Executive terminates this Employment Agreement for any reason other than
those contained in Section 3.03(a), the rights and obligations of the parties
hereunder shall terminate immediately (except as otherwise provided in Article
IV) and the Employment Period shall terminate immediately except that the
Executive shall be entitled to receive, in complete and total satisfaction
of
the obligations of the Company hereunder, his Basic Compensation, Incentive
Compensation and Benefits through the date of such termination.
5
Section
3.04. Change
of Control.
(a) In
the event there is a Change of Control (as defined in Section 3.05), the
Executive shall have the right in his sole discretion to terminate his
employment within six months after such Change of Control and receive the
additional compensation and benefits set forth in this Section 3.04.
Specifically, if the Executive terminates his employment within six months
after
a Change of Control, the Company shall be obligated to pay the Executive,
and
the Executive shall be entitled to receive in complete and total satisfaction
of
the obligations of the Company hereunder, the greater of (i) payment to the
Executive equal to Basic Compensation commencing on the date of termination
and
ending three years from the date hereof; and (ii) payment to the Executive
equal
to one year of Basic Compensation plus Incentive Compensation Granted for
the
preceding year.
(b)
If at
any time it shall be determined that any payment or distribution by the Company
to the Executive or for his benefit, whether paid or payable or distributed
or
distributable pursuant to the terms of this Agreement or any other plan,
arrangement or otherwise (the “Payment”), is or would be subject to an excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(“Code”) or any other provision of the Code, or constitutes or would constitute
an “excess parachute payment” within the meaning of Section 280G of the Code,
then the Company shall pay the Executive an additional amount (the “Gross-Up
Payment”) such that the net amount retained by the Executive after deduction of
any excise tax imposed under Section 4999 of the Code (or any other provision
of
the Code), and any federal, state and local income and employment tax and
excise
tax imposed upon the Gross-Up Payment, shall be equal to the Payment. For
purposes of determining the amount of the Gross-Up Payment, the Executive
shall
be deemed to pay federal income tax and employment taxes at the highest marginal
rate of federal income and employment taxation in the calendar year in which
the
Gross-Up Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Executive’s residence
(or, if greater, the state and locality in which the Executive is required
to
file a nonresident income tax return with respect to the Payment) on the
date of
Payment, net of the maximum reduction in federal income taxes that may be
obtained from the deduction of such state and local taxes.
(c)
All
determinations to be made under this Section shall be made by the Company’s
independent public accountant (the “Accounting Firm”) at the Company’s sole
expense. The Accounting Firm shall provide its determinations and any supporting
calculations both to the Company and the Executive within thirty (30) days
of
the Executive’s separation from the Company. Any such determination by the
Accounting Firm shall be binding upon the Company and the Executive. Within
five
(5) days after the Accounting Firm’s determination, the Company shall pay (or
cause to be paid) or distribute (or cause to be distributed) to or for the
benefit of the Executive such amounts as are then due to the Executive under
this Section.
6
(d)
The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of
the Gross-Up Payment. Such notification shall be given as soon as practicable
but no later than fifteen (15) business days after the Executive knows
of such
claim and shall apprise the Company of the nature of such claim and the
date on
which such claim is requested to be paid. The Executive shall not pay such
claim
prior to the expiration of the thirty (30) day period following the date
on
which the Executive gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim
is due).
If the Company notifies the Executive in writing prior to the expiration
of such
period that it desires to contest such claim, the Executive shall: (1)
give the
Company any information reasonably requested by the Company relating to
such
claim; (2) take such action in connection with contesting such claim as
the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by
an attorney reasonably selected by the Company; (3) reasonably cooperate
with
the Company in good faith in order to effectively contest such claim; and
(4)
permit the Company to participate in any proceedings relating to such claim.
The
Company shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any
excise
tax, income tax or employment tax, including interest and penalties, with
respect thereto, imposed as a result of such representation and payment
of costs
and expenses. Without limitation on the foregoing provisions, the Company
shall
control all proceedings taken in connection with such contest and, at its
sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim.
The
Company’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall
be
entitled to settle or contest, as the case may be, any other issue raised
by the
Internal Revenue Service or any other taxing authority.
(e)
Any
and all of the fees and expenses of the Accounting Firm in performing the
determinations referred to in this Section shall be borne solely by the Company.
In addition, in the event the Executive seeks any accounting, financial or
legal
services in connection with this Section, any and all fees and expenses by
such
accountants, financial advisors or counsel shall be fully reimbursed by the
Company.
(f)
If it
any time it appears that an excise tax may become due and owing under this
Section 3.04, then the Company and the Executive shall consult with each
other
to determine if there is a mutually agreeable method of reducing such excise
tax.
Section
3.05. Definitions
of Certain Terms.
(a)
"Disability" shall mean any physical or mental condition of the Executive
that
renders the Executive incapable of performing any substantial portion of
the
services contemplated hereby (as confirmed by competent medical evidence)
and
that has continued for at least 90 consecutive business days in any 12-month
period or a total of six months during any 12-month period.
7
(b)
The
following shall constitute conduct entitling the Company to terminate the
Executive's employment for "Cause": (i) the Executive's willful refusal to
perform or substantial disregard of the Executive’s duties to the Company that
is not cured within fifteen (15) days of written notice (specifying the failure)
thereof from the Board, (ii) the commission by the Executive of a willful
and
material breach of Article IV, (iii) the conviction of any felony by the
Executive (or the equivalent thereof under the laws of any state), (iv) the
commission of any act constituting financial dishonesty against the Company
(which act would be chargeable as a crime under applicable law), (v) the
Executive‘s engaging in any other act of dishonesty, fraud, intentional
misrepresentation, moral turpitude, illegality or harassment that, as determined
in good faith by the Board, would (A) materially adversely affect the business
or reputation of the Company with its current or prospective customers,
suppliers, lenders and/or other third parties with whom it does or might
do
business or (B) expose the Company to a risk of civil or criminal legal damage,
liabilities or penalties, (vi) the repeated failure by the Executive to follow
the directives of the Board that is not cured within fifteen (15) days of
written notice (specifying the failure) thereof from the Board, or (vii)
any
material misconduct by the Executive in connection with the business affairs
of
the Company that is not cured within fifteen (15) days of written notice
(specifying the failure) thereof from the Board.
It
shall
be presumed that any termination of the Executive by the Company is without
Cause, and such presumption may only be overcome by clear and convincing
evidence that the termination of the Executive’s employment can properly be
construed as for Cause. If the issue of “Cause” is litigated in a proceeding in
any court or through any means of alternative dispute resolution and such
issue
is resolved in the Executive’s favor, the Company shall reimburse the Executive
for all reasonable attorney’s fees, costs and expenses incurred by the Executive
in such proceeding.
(c)
”Change
of Control“ shall mean: (i) a merger or consolidation of the Company with or
into another corporation other than a transaction (A) in which the Company
is
the surviving Corporation (except where such other merger or consolidation
party
is controlled by or under common control with another corporation) or (B)
merging or consolidating the Company with any corporation controlling,
controlled by or under common control with the Company (in which case the
surviving corporation shall be deemed the ”Company“ for purposes of this
Agreement), or (ii) the sale of all or substantially all the assets of the
Company to any corporation or entity, other than a sale to any corporation
or
entity controlling, controlled by or under common control with the Company
prior
to such transaction (in which case the surviving corporation shall be deemed
the
”Company“ for purposes of this Agreement).
ARTICLE
IV
Non-Competition;
Confidential Information
Section
4.01 Non-Competition.
(a)
Subject to Sections 4.01(b) and 4.01(c), the Executive shall not engage in
any
activities, whether as employer, proprietor, partner, stockholder (other
than as
the holder of less than 5% of the stock of a corporation listed on a national
securities exchange or in the National Association of Securities Dealers,
Inc.
Automated Quotation System (such a corporation being hereinafter referred
to as
a "Public Corporation")), director, employee, consultant or otherwise, of
any
company with substantially the same business as or that competes directly
with
the Company in the United States during the following periods:
8
(i)
the
Employment Period; and
(ii)
during any period after the termination of this Agreement pursuant to Article
III for which the Executive is being or has been paid Basic Compensation,
Incentive Compensation and Benefits.
(b)
The
Executive shall not be deemed to be in breach of this Agreement by reason
of
services performed for a subsidiary or affiliate of the Company.
(c)
Notwithstanding anything to the contrary contained herein, if the Company
finds
that the Executive has violated any covenants contained in Section 4.01,
4.02 or
4.03, the Company shall be obligated to pay any amounts due to the Executive
("Escrow Amount") to Xxxxxxx Procter LLP, as escrow agent ("Escrow Agent"),
at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Escrow Agent shall hold the
Escrow Amount in escrow until a court or agency legally empowered to enforce
the
covenants contained in Section 4.01, 4.02 and 4.03 reaches a final determination
whether the Executive has violated any such covenants or until mutually
instructed by the parties. Escrow Agent shall disburse the Escrow Amount
in
accordance with such court or agency's final determination or pursuant to
such
party instructions.
Section
4.02 Non-Interference.
During
the Employment Period and the period of non-competition as determined pursuant
to Section 4.01(a), the Executive:
(a)
shall
not publicly disparage any of the products, services or actions of the Company
or any of the Company's subsidiaries or affiliates; and
(b)
shall
not, whether for his own account or for the account of any other individual,
partnership, firm, corporation or other business organization, solicit, endeavor
to entice away from the Company, or otherwise interfere with the relationship
of
the Company with any person or entity who is, or was within the then most
recent
12-month period, a customer or client of the Company.
Section
4.03. Trade
Secrets.
The
Executive shall not, at any time during the Employment Period or thereafter,
use
(except for the sole benefit of the Company, the Company's subsidiaries and
affiliates) or, without the written consent of the Board, divulge to any
person
(other than, during the Employment Period, an executive of the Company or
any of
the Company's subsidiaries or other person to whom disclosure is reasonably
necessary or appropriate or legally required in connection with the Executive's
duties hereunder) any trade secrets or other confidential information of
the
Company or any of its subsidiaries or affiliates, except to the extent that
(a)
such information becomes a matter of public record, or is published in a
newspaper, magazine or other periodical available to the general public,
in each
case, through no violation of this Agreement by the Executive or (b) such
disclosure is required by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process provided that the Executive shall immediately notify the Company
of the
existence, terms and circumstances surrounding such a request so that it
may
seek an appropriate protective order. When the Executive ceases to be employed
by the Company, the Executive shall surrender to the Company all records
and
documents in any form obtained by him or entrusted to him during the course
of
his employment hereunder (together with all copies thereof) that pertain
to the
business of the Company or its subsidiaries or affiliates or that were paid
for
by the Company or any of the Company's subsidiaries or affiliates provided
that
the Executive may retain copies of such documents as may be necessary for
the
Executive's personal records for federal income tax purposes or, with the
approval of the Board, for other purposes relating to the Executive's legal
affairs, which approval shall not be unreasonably withheld.
9
Section
4.04. Survival
of Terms.
The
covenants contained in Sections 4.01, 4.02 and 4.03 shall survive the
termination of the Executive's employment.
ARTICLE
V
Miscellaneous
Section
5.01. Services
as Officer or Director.
During
the Employment Period, the Executive shall subject to shareholder election
serve
as a director of the Company and as an officer and director of all current
and
future subsidiaries and affiliates of the Company without any additional
compensation for such services provided that the Executive shall be provided
with reasonable and customary directors and officers insurance if any such
corporation is or becomes publicly held and further provided that the Company
shall cause any such subsidiary and affiliate to save the Executive harmless
from any and all liability arising out of the performance of the Executive’s
duties as director and officer.
Section
5.02. Right
to Change Business.
This
Agreement and any rights or privileges granted to the Executive hereunder
shall
not prevent the Company or any of the Company's subsidiaries from exercising
its
corporate powers to modify the business operations or activities of such
entity.
Section
5.03. Notices.
Any
notice or request required or permitted to be given under this Employment
Agreement shall be sufficient if in writing and delivered personally or sent
by
registered mail, return receipt requested, to the addresses set forth below
or
to any other address designated by either party by notice similarly given.
Such
notice shall be deemed to have been given upon the personal delivery thereof
or
three days after the date of such mailing thereof, as the case may
be.
If
to the
Executive, to:
Xxxxxx
Xxxxxx
c/o
XXX
Pharmaceutical, Inc.
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
10
If
to the
Company, to:
DOV
Pharmaceutical, Inc.
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention
of the General Counsel
Section
5.05. Assignment
and Succession.
The
Executive acknowledges that the services to be rendered by him hereunder
are
unique and personal. Accordingly, the Executive may not assign any of his
rights
or delegate any of his duties or obligations under this Agreement. The rights
and obligations of the Company under this Agreement shall inure to the benefit
of and be binding upon its successors and assigns.
Section
5.06. Headings.
The
headings contained in this Agreement are for convenience of reference only
and
shall not define or limit the provisions hereof.
Section
5.07. Applicable
Law.
This
Agreement shall be interpreted in accordance with the laws of the State of
New
Jersey, without regard to conflict of law rules. Each party hereby irrevocably
consents and submits to the in personam
jurisdiction of any court of general jurisdiction in the State of New Jersey,
which shall serve as the sole and exclusive forum in any suit, action or
proceeding arising out of or in connection with this Agreement.
Section
5.08. Withholding
Taxes.
The
Company may withhold from any amounts payable under this Agreement such federal,
state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulations.
Section
5.9. Entire
Agreement; Amendments.
This
Agreement contains the entire understanding of the parties hereto with regard
to
the subject matter contained herein, and supersedes all prior agreements
including the employment agreement offer letter dated June 13, 2005, or
understandings between the parties hereto or any related parties. This Agreement
may be amended only pursuant to a writing signed by both parties
hereto.
Section
5.10. Waivers.
Any
term or provisions of this Agreement may be waived, or the time for its
performance may be extended, by the party or parties entitled to the benefits
thereof but only to the extent evidenced by a writing executed by such party.
The failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any
way to affect the validity of this Agreement or any part hereof or the right
of
any party thereafter to enforce each and every such provision. No waiver
of any
breach of this Agreement shall be held to constitute a waiver of any other
or
subsequent breach.
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Section
5.11. Partial
Invalidity.
Each
provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law, but in case any one or more of the provisions
contained herein is for any reason held to be unenforceable in any respect,
such
unenforceability shall not affect any other provisions of this Agreement,
and
this Agreement shall be construed as if such unenforceable provision or
provisions had never been contained herein unless the deletion of such provision
or provisions would result in such a material change as to cause the remaining
terms hereof to be unreasonable.
Section
5.12. Execution
of Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
considered an original instrument, but all of which shall be considered one
and
the same agreement, and shall become binding when one or more counterparts
have
been signed by each of the parties and delivered to the other. A facsimile
signature on this Agreement shall have the same force and effect as an original
signature.
IN
WITNESS WHEREOF the Company has caused this Agreement to be signed by its
duly
authorized officer and the Executive has signed this Agreement as of the
day and
year first above written.
DOV
Pharmaceutical, Inc.
By:
/s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx, CEO and Chairman of the Board of Directors
XXXXXX
XXXXXX
By:
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx
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