Exhibit 10.34
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made in Oceanport, New
Jersey as of the 21st day of May, 2001 (the "Agreement Date") between Life
Medical Sciences, Inc., a Delaware corporation (the "Company") and Xxxxxx X.
Xxxxxx, the undersigned individual ("Executive").
In consideration of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. Employment Term.
The initial term of this Agreement shall be the one-year period
commencing on May 29, 2001 (the "Employment Date") and ending on the first
anniversary of the Employment Date (as extended from time to time in accordance
with this Section 1, the "Employment Term"). However, it is understood and
agreed by the parties hereto that (i) absent prior written notice to the
Executive of the Company's intent to terminate this Agreement, such notice being
received by the Executive at least six months prior to the end of the Employment
Term or (ii) unless this Agreement has been earlier terminated in accordance
with Section 5, the Employment Term shall automatically be extended in annual
increments as of the anniversary of the Employment Date.
2. Employment.
(a) Employment by the Company. Executive shall have the title, and
report to the person or persons, specified on Exhibit I to this Agreement.
Executive shall have such duties as may be appropriate to such title. Executive,
if appointed to the Board of Directors of the Company, agrees to serve as a
director for so long as the Company shall request during the Employment Term for
the same compensation, if any, paid to other employee directors of the Company.
(b) Performance of Duties. Throughout the Employment Term, Executive
shall faithfully and diligently perform Executive's duties in conformity with
the directions of the Company and serve the Company to the best of Executive's
ability. The Company understands and agrees that the Executive's duties will not
require the Executive's full time attention and that the Executive shall be free
to pursue other activities outside the Company consistent with Section 4(a)
herein.
(c) Place of Performance. During the Employment Term, Executive
shall, subject to travel requirements on behalf of the Company, be based at the
Company's offices in Oceanport, New Jersey or such other location(s) as agreed
between the Company and the Executive.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive for
employment hereunder a base salary ("Base Salary") at the annual rate of
$180,000. The Base Salary shall be increased prospectively on each anniversary
of the Employment Date during the Employment Term, by such amount as the Board
of Directors of the Company shall determine is necessary and appropriate to give
effect to increases in the cost of living. The Base Salary shall be pay-able in
installments consistent with the Company's payroll practices then in effect.
(b) Benefits and Perquisites; Bonus. Executive shall be entitled to
participate in, to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, including medical and savings and
retirement plans, and receive the benefits and perquisites, generally provided
to (i) all employees of the Company and (ii) employees of the same level and
responsibility as Executive. Executive shall be entitled to five weeks vacation
during each twelve months of the Employment Term. Nothing in this Agreement
shall preclude the Company from terminating or amending from time to time any
employee benefit plan or program. Executive shall be eligible for bonuses, at
such times and in such amounts as shall be determined at the discretion of the
Board of Directors of the Company based on their assessment of Executive's
performance of his duties and on the financial performance of the Company. The
Company shall obtain life insurance coverage (assuming the Executive is
insurable) on the life and for the benefit of the Executive's named
beneficiaries in an amount equal to twice the amount of the Base Salary then in
effect. The Company shall be entitled to all dividends, if any, which may be
paid under the policy. The Executive represents that the Executive is currently
in good health.
(c) Travel and Business Expenses. Upon submission of itemized
expense statements with supporting receipts in the manner specified by the
Company, Executive shall be entitled to reimbursement for reasonable travel and
other reasonable business expenses duly incurred by Executive in the performance
of Executive's duties under this Agreement in accordance with the policies and
procedures established by the Company from time to time for employees of the
same level and responsibility as Executive.
(d) Grant of Option and Terms Thereof. The Company hereby agrees
that, dated as of the closing date of the Second Financing defined herein, it
will grant to Executive, pursuant to the Company's 2001 Non-Qualified Stock
Option Plan, (the "Plan"), a non-qualified option (the "Option") to purchase One
million five hundred thousand (1,500,000) shares of the Company's Common Stock
(the "Option Shares"). The exercise price for each Option Share shall be
equivalent to the transaction price of the Common Shares in the Second Financing
defined in the Series A Preferred Stock Purchase Agreement dated December 15,
2000 (the "Second Financing"). The Option will vest and become exercisable over
a two-year period commencing on the date of grant, with one-third vesting and
becoming exercisable on the date of grant and on each of the first and second
anniversaries of the date of grant, subject to termination as provided for in
the Plan, and further subject to termination in the event that Executive
breaches any term hereof. The Option will contain a net exercise provision. The
Option will
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expire as to each installment seven years from the date of vesting. The terms
(including exercisability) of the Option shall otherwise be governed by the
Plan, as well as the applicable option agreement to be entered into pursuant to
the terms of the Plan. Notwithstanding the foregoing, if, subsequent to the
Agreement Date, a Change of Control (as hereinafter defined) of the Company
occurs, then, upon such occurrence, the vesting schedule of the Option shall
accelerate so that 100% of the Option will have vested on the Agreement Date.
For purposes of this Agreement, "Change of Control" carries the definition
referenced in the 2001 Non-Qualified Stock Option Plan. For purposes of this
Agreement, a Change of Control specifically excludes the proposed issuance of
the Company's common stock and preferred stock associated with either the
Company's purchase of certain biomaterials assets from Phairson, Ltd. or the
Second Financing (either of such transactions, a "Specified Transaction").
(e) Payment. Payment of all compensation and benefits to Executive
hereunder shall be made in accordance with the relevant Company policies in
effect from time to time, including normal payroll practices, and shall be
subject to all applicable employment and with-holding taxes.
(f) Cessation of Employment. In the event Executive shall cease to
be employed by the Company for any reason, then Executive's compensation and
benefits shall cease on the date of such event, except as otherwise provided
herein, in any applicable employee benefit plan or program or in the Company's
organizational documents.
4. Non-competition
(a) No Competition. During the period of Executive's employment with
the Company (the "Restricted Period"), Executive shall not, directly or
indirectly, own, manage, operate, join, control, participate in, invest in or
otherwise be connected or associated with, in any manner, including as an
officer, director, employee, partner, stockholder, joint venturer, lender,
consultant, advisor, agent, proprietor, trustee or investor, any Competing
Business located in the United States or in any other location where the Company
operates or sells its products or services.
(i) As used in this Agreement, the term "Competing Business"
shall mean any business or venture which engages in any business area, or
sells or provides products or services that compete or overlap with the
Company's product development activities in post-operative adhesion
prevention or cardiac anti-arrythmia during the Employment Term.
(ii) For purposes of this Section 4(b), the term "invest"
shall not preclude an investment in not more than one percent (1%) of the
outstanding capital stock of a corporation whose capital stock is listed
on a national securities exchange or included in the NASDAQ Stock Market,
so long as Executive does not have the power to control or direct the
management of, or is not otherwise associated with, such corporation.
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(b) No Solicitation. During the Restricted Period, Executive shall
not solicit or encourage any employee or consultant of the Company to leave the
employ, or cease his or her relationship with, the Company for any reason, nor
employ or retain such an individual in a Competing Business or any other
business; provided, that the Executive may so solicit Company employees or
consultants who respond to general advertisements for their services.
(c) Company Customers. Executive shall not, during the Restricted
Period, directly or indirectly, contact, solicit or do business with any
"customers" (as hereinafter defined) of the Company for the purpose of selling
or providing any post-operative adhesion prevention or cardiac anti-arrythmia
product or service then sold or provided by the Company to such customers or
being actively developed to be sold or provided to such customers during
Executive's employment by the Company or at the time of termination of
Executive's employment hereunder.
For the purposes of the provisions of this Section 4(d), "customer"
shall include any entity that purchased any post-operative adhesion prevention
or cardiac anti-arrythmia product or service from the Company within twelve
months of the termination of Executive's employment hereunder, without regard to
the reason for such termination. The term "customer" also includes any former
customer or potential customer of the Company which the Company has solicited
within twelve months of such termination, for the purpose of selling or
providing any post-operative adhesion prevention or cardiac anti-arrythmia
product or service then sold or provided, or then actively being developed to be
sold or provided, by the Company.
(d) Modification of Covenants. The restrictions against competition
set forth in this Section 4 are considered by the parties to be reasonable for
the purposes of protecting the business of the Company. However, if any such
restriction is found by any court of competent jurisdiction or the arbitrators
described in Section 9(e)(ii) to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
(e) Limitation of Restrictions. The restrictions on the Executive's
activities during the Restricted Period as defined in Sections 4(a), 4(b) and
4(c) shall not apply in the event the Executive's employment is terminated under
the circumstances described in Section 5(d).
5. Termination of Employment.
(a) Termination. The Company may terminate Executive's employment
for Cause (as hereinafter defined) in which case the provisions of Section 5(b)
shall apply. The Company may also terminate Executive's employment in the event
of Executive's Disability (as hereinafter defined), in which case the provisions
of Section 5(c) shall apply. The Company may also terminate the Executive's
employment for any other reason by written notice to Executive, or Executive may
terminate his employment for Good Reason (as defined below), and in each such
case the provisions of Section 5(d) shall apply. If Executive's employment is
terminated by
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reason of Executive's death, retirement or voluntary resignation without Good
Reason, the provisions of Section 5(b) shall apply.
(b) Termination for Cause; Termination by Reason of Death or
Retirement or Voluntary Resignation without Good Reason.
(1) In the event that Executive's employment hereunder is
terminated during the Employment Term (i) by the Company for Cause (as
hereinafter defined), (ii) by reason of Executive's death or retirement or (iii)
by reason of Executive's voluntary resignation without Good Reason, then the
Company shall pay to Executive, within thirty (30) days of the date of such
termination, the Base Salary through such date of termination.
(2) For purposes of this Agreement, "Cause" shall mean (i)
conviction of any crime (whether or not involving the Company) constituting a
felony in the jurisdiction involved; (ii) engaging in any act which, in each
case, subjects, or if generally known would subject, the Company to public
ridicule or embarrassment; (iii) gross neglect or willful misconduct in the
performance of Executive's duties hereunder; (iv) willful or repeated failure or
refusal to perform such duties as may be relegated to Executive commensurate
with Executive's position; or (v) material breach of this Agreement by
Executive.
(3) In the event the Company desires to terminate Executive's
employment for Cause as defined in clauses (ii), (iii), (iv) or (v) of the
definition thereof, the Company shall first attempt to resolve the matter(s) at
issue through a meeting between Executive and the Chairman of the Board for
Directors of the Company. If such meeting fails to resolve the matter(s), then
Executive will meet with the Board of Directors of the Company and attempt to
resolve the matter(s). The decision of the Board of Directors of the Company as
to the matter(s) shall be final and binding on the parties and not subject to
review or appeal by any other person.
(c) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from Executive's
duties hereunder on a full time basis for either (i) ninety (90) days within any
six-month period, or (ii) sixty (60) consecutive days, and within thirty (30)
days after written notice of prospective termination is given shall not have
returned to the performance of Executive's duties hereunder on a full time
basis, the Company may terminate Executive's employment hereunder for
"Disability". In that event, the Company shall pay to Executive, within thirty
(30) days of the date of such termination, only the Base Salary through such
date of termination. During any period that Executive fails to perform
Executive's duties hereunder as a result of incapacity due to physical or mental
illness (a "Disability Period"), Executive shall continue to receive the
compensation and benefits provided by Section 3 hereof until Executive's
employment hereunder is terminated; provided, however, that the amount of
compensation and benefits received by Executive during the Disability Period
shall be reduced by the aggregate amounts, if any, payable to Executive under
disability benefit plans and programs of the Company or under the Social
Security disability insurance program.
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(d) Termination by Company for any other Reason; Termination for
Good Reason. In the event that Executive's employment hereunder is terminated by
the Company during the Employment Term for any reason other than as provided in
Sections 5(b) or 5(c) hereof, or if the Executive terminates his employment for
Good Reason, then the Company shall pay to Executive, within thirty (30) days of
the date of such termination, the Base Salary through such date of termination
and severance pay in an amount equal to six months of Base Salary, commencing
with such date of termination at the times and in the amounts such Base Salary
would have been paid (assuming the continuation hereof); provided, however, that
in the event that Executive shall breach Section 6 hereof, in addition to any
other remedies the Company may have in the event Executive breaches this
Agreement, the Company's obligation pursuant to this Section 5(d) to continue
such payments of salary shall cease and Executive's rights thereto shall
terminate and shall be forfeited. "Good Reason" shall mean (i) the assignment to
Executive of duties inconsistent with his title, (ii) a reduction by the Company
in the Base Salary as in effect on the date hereof or as it may be increased
from time to time, (iii) the failure by the Company to continue any compensation
or benefit plan that is material to Executive's total compensation, (iv) a
Change in Control or (v) a relocation of the Company's offices where Executive
is to perform the services required hereby to an unreasonable commuting distance
from Executive's residence at 00 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx, XX.
6. Confidential Information.
(a) Existence of Confidential Information. The Company owns and has
developed and compiled, and will develop and compile, certain proprietary
technology, know-how and confidential information which have great value to its
business (referred to in this Agreement, collectively, as "Confidential
Information"). Confidential Information includes not only information disclosed
by the Company to Executive, but also information developed or learned by
Executive during the course or as a result of employment with the Company, which
information shall be the property of the Company. By way of example and without
limitation, Confidential Information includes any and all information developed,
obtained, licensed by or to or owned by the Company concerning trade secrets,
techniques, know-how (including research data, designs, plans, procedures,
merchandising, marketing, distribution and warehousing know-how, processes, and
research records), software, computer programs, and any other intellectual
property created, used or sold (through a license or otherwise) by the Company,
product know-how and processes, innovations, discoveries, improvements,
research, development, test results, reports, specifications, data, formats,
marketing data and plans, business plans, strategies, forecasts, unpublished
financial information, orders, agreements and other forms of documents, price
and cost information, merchandising opportunities, expansion plans, budgets,
projections, customer, supplier, licensee, licensor and subcontractor
identities, characteristics, agreements and operating procedures, and salary,
staffing and employment information. Notwithstanding the foregoing,
"Confidential Information" does not include information that (i) is or becomes
generally available to the public other than by disclosure in violation of this
Agreement, (ii) was properly within Executive's possession prior to being
furnished by the Company or (iii) becomes available to Executive on a
nonconfidential basis, such as by disclosure by third parties who have the right
to disclose the information.
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(b) Protection of Confidential Information. Executive acknowledges
and agrees that in the performance of duties hereunder Executive develops and
acquires, and the Company discloses to and entrusts Executive with, Confidential
Information which is the exclusive property of the Company and which Executive
may possess or use only in the performance of duties for the Company. Executive
also acknowledges that Executive is aware that the unauthorized disclosure of
Confidential Information, among other things, may be prejudicial to the
Company's interests, an invasion of privacy and an improper disclosure of trade
secrets. Executive shall not, directly of indirectly, use, make available, sell,
disclose or otherwise communicate to any corporation, partnership, individual or
other third party, other than in the course of Executive's assigned duties and
for the benefit of the Company, any Confidential Information, either during the
Employment Term or for five years thereafter.
(c) Delivery of Records, Etc. In the event Executive's employment
with the Company ceases for any reason, Executive will not remove from the
Company's premises without its prior written consent any records, notes,
notebooks, files, drawings, documents, equipment, materials and writings
received from, created for or belonging to the Company, including those which
relate to or contain Confidential Information, or any copies thereof. Upon
request or when employment with the Company terminates, Executive will
immediately deliver the same to the Company.
7. Invention and Patents.
(a) Executive will promptly and fully disclose to the Company any
and all inventions, discoveries, trade secrets and improvements, whether or not
patentable or whether or not they are made, conceived or reduced to practice
during working hours or using the Company's data or facilities, which Executive
shall develop, make, conceive or reduce to practice during Executive's
employment by the Company, either solely or jointly with others (collectively,
"Developments"). All such Developments shall be the sole property of the
Company, and Executive hereby assigns to the Company, without further
compensation, all his right, title and interest in and to such Developments and
any and all related patents, patent applications, copyrights, copyright
applications, trademarks and trade names in the United States and elsewhere.
(b) Executive shall keep and maintain adequate and current written
records of all Developments (in the form of notes, sketches, drawings and as may
be specified by the Company), which records shall be available to and remain the
sole property of the Company at all times.
(c) Executive shall provide reasonable assistance to the Company in
obtaining and enforcing patent, copyright and other forms of legal protection
for the Developments in any country. Upon request, Executive shall sign all
applications, assignments, instruments and papers and perform all reasonable
acts necessary or desired by the Company and to enable the Company its
successors, assigns and nominees, to secure and enjoy the full exclusive
benefits and advantages thereof.
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(d) Executive understands that Executive's obligations under this
section will continue after the termination of his employment with the Company
and that Executive shall perform such obligations without further compensation,
except (i) for reimbursement of expenses incurred at the request of the Company
and (ii) that after the termination of Executive's employment with the Company
and notwithstanding anything in this Section 7 to the contrary, Executive shall
not be required to provide assistance to the Company in accordance with this
Section 7 or Section 9(l) for more than 50 hours during any twelve-month period.
If the Company desires assistance beyond such 50-hour limitation, such
assistance shall be subject to Executive's consent, not to be unreasonably
withheld, and the Company will compensate Executive on a per diem basis at a per
diem rate that is determined by dividing the Base Salary in effect when the
Employment Term was terminated by 250 days.
8. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company to, any purchaser of all or
substantially all of the Company's business or assets, any successor to the
Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such purchase, succession or assignment had taken
place.
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment or otherwise, and
any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to
Executive hereunder shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
9. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that
neither Executive's employment with the Company nor Executive's performance of
Executive's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other agreements to which Executive is or has been a party
or with any other obligations, legal or otherwise, which Executive may have.
(b) Nondisclosure; Prior Employers. Executive will not disclose to
the Company, or use, or induce the Company to use, any proprietary information,
trade secrets or confidential business information of others. Executive
represents and warrants that Executive has returned all property, proprietary
information, trade secrets and confidential business information belonging to
all prior employers.
(c) Cooperation. Following termination of employment with the
Company, Executive shall cooperate with the Company, as requested by the
Company, to effect a transition
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of Executive's responsibilities and to ensure that the Company is aware of all
matters being handled by Executive. As compensation for such cooperation, the
Company shall pay the Executive on a mutually-agreed upon per diem basis. Such
compensation shall be over and above any payments due the Executive as defined
herein.
(d) Governing Law; Arbitration.
(i) Governing Law. This Agreement, including the validity,
interpretation, construction and performance of this Agreement, shall be
governed by and construed in accordance with the laws of the State of New
Jersey applicable to agreements made and to be performed in such state
without regard to such states conflicts of law principles.
(ii) Arbitration. Subject to Section 9(j) hereof, any
controversy or claim which arises out of or relating to this Agreement, or
the breach thereof shall be settled by arbitration in accordance with the
Rules of the American Arbitration Association then in effect. The
controversy or claim shall be submitted to three arbitrators, one of whom
shall be chosen by the Employee, one of whom shall be chosen by the
Company, and one of whom shall be chosen by the two so selected. The party
desiring arbitration shall give written notice to the other party of its
desire to arbitrate the particular matter in question, naming the
arbitrator selected by it. If the other party shall fail within a period
of 15 days after such notice shall have been given to reply in writing
naming the arbitrator chosen as above provided, or if the two arbitrators
selected by the parties shall fail within 15 days after their selection to
agree upon the third arbitrator, then either party may apply to the
American Arbitration Association for the appointment of an arbitrator to
fill the place so remaining vacant. The decision of any two of the
arbitrators shall be final and binding upon the parties hereto. Judgment
upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The proceedings shall be held in New York,
New York. The arbitrators shall have no power to award punitive or
exemplary damages or to ignore or vary the terms of this Agreement (except
as contemplated by Section 4(e) and 9(g)), and shall be bound to apply
controlling law. Arbitration shall be binding and the remedy for the
settlement of the controversy or claims (except as set forth in the
preceding paragraph of this Section).
(e) Entire Agreement. This Agreement (including the Exhibits hereto)
contains the entire agreement and understanding between the parties hereto in
respect of the subject matter hereof and supersedes, cancels and annuls any
prior or contemporaneous written or oral agreements, understandings, commitments
and practices between them respecting the subject matter hereof, including all
prior employment agreements, if any, between the Company and Executive, which
agreement(s) hereby are terminated and shall be of no further force or effect.
(f) Amendment. This Agreement may be amended only by a writing which
makes express reference to this Agreement as the subject of such amendment and
which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
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(g) Severability. If any term, provision, covenant or condition of
this Agreement or part thereof, or the application thereof to any person, place
or circumstance, shall be held to be invalid, unenforceable or void, the
remainder of this Agreement and such term, provision, covenant or condition
shall remain in full force and effect, and any such invalid, unenforceable or
void term, provision, covenant or condition shall be deemed, without further
action on the part of the parties hereto, modified, amended and limited to the
extent necessary to render the same and the remainder of this Agreement valid,
enforceable and lawful. In this regard, Executive acknowledges that the
provisions of Sections 4 and 6 are reasonable and necessary for the protection
of the Company.
(h) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not strictly
for or against the Company or Executive. The use herein of the word "including,"
when following any general provision, sentence, clause, statement, term or
matter, shall be deemed to mean "including, without limitation". As used herein,
"Company" shall mean the Company and its subsidiaries and any purchaser of,
successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law. As used herein, the words "day" or "days" shall mean a calendar day or
days.
(i) Nonwaiver. Neither any course of dealing nor any failure or
neglect of either party hereto in any instance to exercise any right, power or
privilege hereunder or under law shall constitute a waiver of any other right,
power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(j) Remedies for Breach. The parties hereto agree that Executive is
obligated under this Agreement to render personal services during the Employment
Term of a special, unique, unusual, extraordinary and intellectual character,
thereby giving this Agreement peculiar value, and, in the event of a breach or
threatened breach of any covenant of Executive herein, the injury or imminent
injury to the value and the goodwill of the Company's business could not be
reasonably or adequately compensated in damages in an action at law.
Accordingly, Executive expressly acknowledges that the Company shall be entitled
to specific performance, injunctive relief or any other equitable remedy against
Executive, without the posting of a bond, in the event of any breach or
threatened breach of any provision of this Agreement by Executive (including
Sections 4 and 6 hereof). Without limiting the generality of the foregoing, if
Executive breaches Sections 4 or 6 hereof, such breach will entitle the Company
to enjoin Executive from disclosing any Confidential Information to any
Competing Business, to enjoin such Competing Business from receiving Executive
or using any such Confidential Information and/or to enjoin Executive from
rendering personal services to or in connection with such Competing Business.
The rights and remedies of the parties hereto are cumulative and shall not
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be exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations and
duties of the other under this Agreement, and the enforcement of one or more of
such rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
(k) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when sent by certified or registered mail,
return receipt requested, with postage prepaid, to Executive's residence (as
reflected in the Company's records or as otherwise designated by Executive on
thirty (30) days' prior written notice to the Company) or to the Company's
principal executive office, attention: Chairman of the Board (with copies to the
General Counsel), as the case may be. All such notices, requests, consents and
approvals shall be effective upon being deposited in the United States mail,
return receipt. However, the time period in which a response thereto must be
given shall commence to run from the date of receipt on the return receipt of
the notice, request, consent or approval by the addressee thereof. Rejection or
other refusal to accept, or the inability to deliver because of changed address
of which no notice was given as provided herein, shall be deemed to be receipt
of the notice, request, consent or approval sent.
(l) Assistance in Proceedings, Etc. Executive shall, without
additional compensation (other than reimbursement of expenses incurred at the
request of the Company), during the Employment Term, upon reasonable notice,
furnish such information and proper assistance to the Company as may reasonably
be required by the Company in connection with any legal or quasi-legal
proceeding, including any external or internal investigation, involving the
Company or any of its affiliates or in which any of them is, or may become, a
party, unless Executive is adverse to the Company in such proceeding or unless
Executive and the Company are both defendants in such proceeding and assisting
the Company may impair Executive's ability to defend himself in such proceeding.
After the Employment Term Executive shall provide the same assistance under the
same conditions, except that Executive shall not be required to provide
assistance to the Company in accordance with this Section or Section 7 for more
than 50 hours during any twelve-month period. If the Company desires assistance
beyond such 50-hour limitation, such assistance shall be subject to Executive's
consent, not to be unreasonably withheld, and the Company will compensate
Executive on a per diem basis at a per diem rate that is determined by dividing
the Base Salary in effect when the Employment Term was terminated by 250 days.
(m) Survival. Sections 4, 6 and 7 shall not terminate upon, and
shall remain in full force and effect following, expiration of the Employment
Term and all rights and obligations of the parties hereto as and to the extent
provided herein shall survive such expiration.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
LIFE MEDICAL SCIENCES, INC.
By: /s/ XXXX X. XXXXXXXX
------------------------------------
Name: Xxxx X. xxXxxxxx, MD
Date:
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, MD
Date:
EXECUTIVE
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Date:
- 12 -
EXHIBIT I
Title: Chairman, President, CEO & CFO
Report to: Board of Directors
- 13 -
