EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This agreement (the "AGREEMENT") is made November 1, 2003, by and
between XXXXXX HEALTH SCIENCES, INC., a Delaware corporation with principal
executive offices at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the
"COMPANY"), and XXXX X. XXX, PH.D., residing at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive as President
and Chief Executive Officer of the Company, and the Executive desires to serve
the Company in those capacities, upon the terms and subject to the conditions
contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. Employment.
The Company agrees to employ the Executive, and the Executive
agrees to be employed by the Company, upon the terms and subject to the
conditions of this Agreement.
2. Term.
The employment of the Executive by the Company as provided in
Section 1 shall be for a period of three (3) years commencing on the date
hereof, unless sooner terminated in accordance with the provisions of Section 9
below (the "TERM").
3. Duties; Best Efforts; Place of Performance.
(a) The Executive shall serve as President and Chief Executive
Officer of the Company and shall perform, subject to the direction of the Board
of Directors of the Company, such duties as are customarily performed by the
President and Chief Executive Officer. The Executive shall also have such other
powers and duties as may be from time to time prescribed by the Board of
Directors of the Company, provided that the nature of the Executive's powers and
duties so prescribed shall not be inconsistent with the Executive's position and
duties hereunder.
(b) The Executive shall devote all of his business time,
attention and energies to the business and affairs of the Company, shall use his
best efforts to advance the best interests of the Company and shall not during
the Term be actively engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage, that
will interfere with the performance by the Executive of his duties hereunder or
the Executive's availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company.
(c) The duties to be performed by the Executive hereunder
shall be performed primarily at the office of the Company in San Francisco,
California, subject to reasonable travel requirements on behalf of the Company.
4. Director.
The Company shall use its best efforts to cause the Executive to be
elected as a member of its Board of Directors throughout the Term and shall
include him in the management slate for election as a director at every
stockholders meeting during the Term at which his term as a director would
otherwise expire. The Executive agrees to accept election, and to serve during
the Term, as director of the Company, without any compensation therefor other
than as specified in this Agreement.
5. Compensation.
As full compensation for the performance by the Executive of his
duties under this Agreement, the Company shall pay the Executive as follows:
(a) Base Salary. The Company shall pay the Executive a base
salary (the "BASE SALARY") at a rate of $250,000 per annum, payable in equal
semi-monthly installments during the Term.
(b) Signing Bonus. Within 10 days of execution of this
Agreement, the Company shall pay the executive a cash bonus in the amount of
$80,000.
(c) Discretionary Bonus. At the sole discretion of the Board
of Directors of the Company, the Executive shall receive an additional annual
bonus (the "DISCRETIONARY BONUS") in an amount equal to up to 75% of his Base
Salary, based upon his performance on behalf of the Company during the prior
year. The Discretionary Bonus shall be payable, if at all, either as a lump-sum
payment or in installments as determined by the Board of Directors of the
Company in its sole discretion.
(d) Incentive Bonus. The Company shall pay the Executive a
periodic milestone based incentive bonuses (each an "INCENTIVE BONUS") as
follows:
(i) $50,000 upon the dosing of the first patient in a
Phase II clinical trial of the Company's lead compound, PT-523;
(ii) $75,000 upon the dosing of the first patient in a
Phase III clinical trial of the Company's lead compound, PT-523;
(iii) $75,000 upon the execution of a definitive license
agreement by the Company relating to a Phase II clinical compound introduced to
the Company by the Executive;
(iv) $100,000 upon the execution of a definitive license
agreement by the Company relating to a Phase III clinical compound introduced to
the Company by the Executive;
(v) $50,000 following the successful completion of an
initial public offering of the Company's common stock; and
(vi) $100,000 in the event that the Company's market
capitalization is equal to or greater than $100,000,000 for any consecutive 90
day period. (e) Withholding. The Company shall withhold all applicable federal,
state and local taxes and social security and such other amounts as may be
required by law from all amounts payable to the Executive under this Section 5.
(f) Stock Options.
(i) Promptly after the date hereof, and as additional
compensation for the services to be rendered by the Executive pursuant to this
Agreement, the Company shall grant the Executive non-qualified stock options
("STOCK OPTIONS") to purchase 350,000 shares of Common Stock of the Company
(representing 8% of the outstanding common stock as of the date hereof). Such
stock options shall vest ratably over a three-year period ending on the third
anniversary of the date of this Agreement, so that 116,666 shares of the
Company's Common Stock will vest on each of November 1, 2004, November 1, 2005
and November 1, 2005, subject to the provisions of Section 10 below. In
connection with such grant, the Executive shall enter into the Company's
standard stock option agreement
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which will incorporate the foregoing vesting schedule and the Stock Option
related provisions contained in Section 10 below.
(ii) Anti-dilution Protection. Until such time as the
Company has raised gross proceeds equal to $10,000,000 through the sale of its
equity securities, the Company shall issue to the Executive a number of
additional Stock Options sufficient to maintain Executive's ownership percentage
at 8%. Thereafter, and until the Company has raised gross proceeds equal to
$50,000,000 through the sale of its equity securities, the Company shall issue
to the Executive a number of additional Stock Options sufficient to maintain
Executive's ownership percentage at or greater than 5%. Once the Company has
raised $50,000,000 through the sale of its equity securities, Executive shall be
diluted pro rata along with all other holders of securities of the Company.
(g) Expenses. The Company shall reimburse the Executive for
all normal, usual and necessary expenses incurred by the Executive in
furtherance of the business and affairs of the Company, including reasonable
travel and entertainment, upon timely receipt by the Company of appropriate
vouchers or other proof of the Executive's expenditures and otherwise in
accordance with any expense reimbursement policy as may from time to time be
adopted by the Company.
(h) Other Benefits. The Executive shall be entitled to all
rights and benefits for which he shall be eligible under any benefit or other
plans (including, without limitation, dental, medical, medical reimbursement and
hospital plans, pension plans, employee stock purchase plans, profit sharing
plans, bonus plans and other so-called "fringe" benefits) as the Company shall
make available to its senior executives from time to time.
(i) Vacation. The Executive shall, during the Term, be
entitled to a vacation of four (4) non-consecutive weeks per annum. The
Executive shall not be entitled to carry any vacation forward to the next year
of employment and shall not receive any compensation for unused vacation days.
6. Confidential Information and Inventions
(a) The Executive recognizes and acknowledges that in the
course of his duties he is likely to receive confidential or proprietary
information owned by the Company, its affiliates or third parties with whom the
Company or any such affiliates has an obligation of confidentiality.
Accordingly, during and after the Term, the Executive agrees to keep
confidential and not disclose or make accessible to any other person or use for
any other purpose other than in connection with the fulfillment of his duties
under this Agreement, any Confidential and Proprietary Information (as defined
below) owned by, or received by or on behalf of, the Company or any of its
affiliates. "Confidential and Proprietary Information" shall include, but shall
not be limited to, confidential or proprietary scientific or technical
information, data, formulas and related concepts, business plans (both current
and under development), client lists, promotion and marketing programs, trade
secrets, or any other confidential or proprietary business information relating
to development programs, costs, revenues, marketing, investments, sales
activities, promotions, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Company or of any
affiliate or client of the Company. The Executive expressly acknowledges the
trade secret status of the Confidential and Proprietary Information and that the
Confidential and Proprietary Information constitutes a protectable business
interest of the Company. The Executive agrees: (i) not to use any such
Confidential and Proprietary Information for himself or others; and (ii) not to
take any Company material or reproductions (including but not limited to
writings, correspondence, notes, drafts, records, invoices, technical and
business policies, computer programs or disks) thereof from the Company's
offices at any time during his employment by the Company, except as required in
the execution of the Executive's duties to the Company. The Executive agrees to
return immediately all Company material and reproductions (including but not
limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to the Company upon request and in any event immediately upon
termination of employment.
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(b) Except with prior written authorization by the Company,
the Executive agrees not to disclose or publish any of the Confidential and
Proprietary Information, or any confidential, scientific, technical or business
information of any other party to whom the Company or any of its affiliates owes
an obligation of confidence, at any time during or after his employment with the
Company.
(c) The Executive agrees that all inventions, discoveries,
improvements and patentable or copyrightable works ("INVENTIONS") initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term shall be the sole property of the Company to the maximum extent permitted
by applicable law and, to the extent permitted by law, shall be "works made for
hire" as that term is defined in the United States Copyright Act (17 U.S.C.A.,
Section 101). The Company shall be the sole owner of all patents, copyrights,
trade secret rights, and other intellectual property or other rights in
connection therewith. The Executive hereby assigns to the Company all right,
title and interest he may have or acquire in all such Inventions. The Executive
further agrees to assist the Company in every proper way (but at the Company's
expense) to obtain and from time to time enforce patents, copyrights or other
rights on such Inventions in any and all countries, and to that end the
Executive will execute all documents necessary:
(i) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs) letters patent, copyrights
or other analogous protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of
such applications and any opposition proceedings or petitions or applications
for revocation of such letters patent, copyright or other analogous protection.
(d) The Executive acknowledges that while performing the
services under this Agreement the Executive may locate, identify and/or evaluate
patented or patentable inventions having commercial potential in the fields of
pharmacy, pharmaceutical, biotechnology, healthcare, technology and other fields
which may be of potential interest to the Company or one of its affiliates (the
"THIRD PARTY INVENTIONS"). The Executive understands, acknowledges and agrees
that all rights to, interests in or opportunities regarding, all Third-Party
Inventions identified by the Company, any of its affiliates or either of the
foregoing persons' officers, directors, employees (including the Executive),
agents or consultants during the Employment Term shall be and remain the sole
and exclusive property of the Company or such affiliate and the Executive shall
have no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company.
(e) The provisions of this Section 6 shall survive any
termination of this Agreement.
7. Non-Competition, Non-Solicitation and Non-Disparagement
(a) The Executive understands and recognizes that his services
to the Company are special and unique and that in the course of performing such
services the Executive will have access to and knowledge of Confidential and
Proprietary Information (as defined in Section 6) and the Executive agrees that,
during the Term and for a period of one year thereafter, he shall not in any
manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity ("PERSON"),
enter into or engage in any business which is engaged in any business
competitive with the business of the Company, either as an individual for his
own account, or as a partner, joint venturer, owner, executive, employee,
independent contractor, principal, agent, consultant, salesperson, officer,
director or shareholder of a Person in a business competitive with the Company
within the geographic area of the Company's business, which is deemed by the
parties hereto to be worldwide. The Executive acknowledges that, due to the
unique nature of the Company's business, the loss of any of its clients or
business flow or the improper use of its Confidential and Proprietary
Information could create significant instability and cause substantial damage to
the Company and its
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affiliates and therefore the Company has a strong legitimate business interest
in protecting the continuity of its business interests and the restriction
herein agreed to by the Executive narrowly and fairly serves such an important
and critical business interest of the Company. For purposes of this Agreement,
the Company shall be deemed to be actively engaged on the date hereof in the
development of novel application drug delivery systems for presently marketed
prescription and over-the-counter drugs and providing consulting services in
connection therewith, and in the future in any other business in which it
actually devotes substantive resources to study, develop or pursue.
Notwithstanding the foregoing, nothing contained in this Section 7(a) shall be
deemed to prohibit the Executive from acquiring or holding, solely for
investment, publicly traded securities of any corporation, some or all of the
activities of which are competitive with the business of the Company so long as
such securities do not, in the aggregate, constitute more than five percent (5%)
of any class or series of outstanding securities of such corporation.
(b) During the Term and for one year thereafter, the Executive
shall not, directly or indirectly, without the prior written consent of the
Company:
(i) solicit or induce any employee of the Company or any
of its affiliates to leave the employ of the Company or any such affiliate; or
hire for any purpose any employee of the Company or any affiliate or any
employee who has left the employment of the Company or any affiliate within one
year of the termination of such employee's employment with the Company or any
such affiliate or at any time in violation of such employee's non-competition
agreement with the Company or any such affiliate; or
(ii) solicit or accept employment or be retained by any
Person who, at any time during the term of this Agreement, was an agent, client
or customer of the Company or any of its affiliates where his position will be
related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent,
client or customer of the Company or any of its affiliates with respect to
products, services or investments similar to those provided or supplied by the
Company or any of its affiliates.
(c) The Executive agrees that both during the Term and at all
times thereafter, he shall not directly or indirectly disparage, whether or not
true, the name or reputation of the Company or any of its affiliates, including
but not limited to, any officer, director, employee or shareholder of the
Company or any of its affiliates.
(d) In the event that the Executive breaches any provisions of
Section 6 or this Section 7 or there is a threatened breach, then, in addition
to any other rights which the Company may have, the Company shall (i) be
entitled, without the posting of a bond or other security, to injunctive relief
to enforce the restrictions contained in such Sections and (ii) have the right
to require the Executive to account for and pay over to the Company all
compensation, profits, monies, accruals, increments and other benefits
(collectively "BENEFITS") derived or received by the Executive as a result of
any transaction constituting a breach of any of the provisions of Sections 6 or
7 and the Executive hereby agrees to account for and pay over such Benefits to
the Company.
(e) Each of the rights and remedies enumerated in Section 7(d)
shall be independent of the others and shall be in addition to and not in lieu
of any other rights and remedies available to the Company at law or in equity.
If any of the covenants contained in this Section 7, or any part of any of them,
is hereafter construed or adjudicated to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants or rights or
remedies which shall be given full effect without regard to the invalid
portions. If any of the covenants contained in this Section 7 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form such provision shall then be enforceable. No such holding of
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invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company's right to the relief provided in this Section 7 or otherwise
in the courts of any other state or jurisdiction within the geographical scope
of such covenants as to breaches of such covenants in such other respective
states or jurisdictions, such covenants being, for this purpose, severable into
diverse and independent covenants.
(f) In the event that an actual proceeding is brought in
equity to enforce the provisions of Section 6 or this Section 7, the Executive
shall not urge as a defense that there is an adequate remedy at law nor shall
the Company be prevented from seeking any other remedies which may be available.
The Executive agrees that he shall not raise in any proceeding brought to
enforce the provisions of Section 6 or this Section 7 that the covenants
contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 7 shall survive any
termination of this Agreement.
8. Representations and Warranties by the Executive
The Executive hereby represents and warrants to the Company as
follows:
(i) Neither the execution or delivery of this Agreement
nor the performance by the Executive of his duties and other obligations
hereunder violate or will violate any statute, law, determination or award, or
conflict with or constitute a default or breach of any covenant or obligation
under (whether immediately, upon the giving of notice or lapse of time or both)
any prior employment agreement, contract, or other instrument to which the
Executive is a party or by which he is bound.
(ii) The Executive has the full right, power and legal
capacity to enter and deliver this Agreement and to perform his duties and other
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Executive enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for the
Executive to execute and deliver this Agreement or perform his duties and other
obligations hereunder.
9. Termination. The Executive's employment hereunder shall be
terminated upon the Executive's death and may be terminated as follows:
(a) The Executive's employment hereunder may be terminated by
the Board of Directors of the Company for Cause. Any of the following actions by
the Executive shall constitute "CAUSE":
(i) The willful failure, disregard or refusal by the
Executive to perform his duties hereunder;
(ii) Any willful, intentional or grossly negligent act
by the Executive having the effect of injuring, in a material way (whether
financial or otherwise and as determined in good-faith by a majority of the
Board of Directors of the Company), the business or reputation of the Company or
any of its affiliates, including but not limited to, any officer, director,
executive or shareholder of the Company or any of its affiliates;
(iii) Willful misconduct by the Executive, including
insubordination, in respect of the duties or obligations of the Executive under
this Agreement;
(iv) The Executive's indictment of any felony or a
misdemeanor involving moral turpitude (including entry of a nolo contendere
plea);
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(v) The determination by the Company, after a reasonable
and good-faith investigation by the Company following a written allegation by
another employee of the Company, that the Executive engaged in some form of
harassment protected by law (including, without limitation, age, sex or race
discrimination);
(vi) Any misappropriation or embezzlement of the
property of the Company or its affiliates (whether or not a misdemeanor or
felony);
(vii) Breach by the Executive of any of the provisions
of Section 5 or Section 6 of this Agreement; and
(viii) Breach by the Executive of any provision of this
Agreement other than those contained in Section 5 or Section 6 which is not
cured by the Executive within thirty (30) days after notice thereof is given to
the Executive by the Company.
(b) The Executive's employment hereunder may be terminated by
the Board of Directors of the Company due to the Executive's Disability. For
purposes of this Agreement, a termination for "DISABILITY" shall occur (i) when
the Board of Directors of the Company has provided a written termination notice
to the Executive supported by a written statement from a reputable independent
physician to the effect that the Executive shall have become so physically or
mentally incapacitated as to be unable to resume, within the ensuing twelve (12)
months, his employment hereunder by reason of physical or mental illness or
injury, or (ii) upon rendering of a written termination notice by the Board of
Directors of the Company after the Executive has been unable to substantially
perform his duties hereunder for 90 or more consecutive days, or more than 120
days in any consecutive twelve month period, by reason of any physical or mental
illness or injury. For purposes of this Section 9(b), the Executive agrees to be
available and to cooperate in any reasonable examination by a reputable
independent physician retained by the Company.
(c) The Executive's employment hereunder may be terminated by
the Executive for Good Reason. For purposes of this Agreement, "GOOD REASON"
means a breach by the Company of its material obligations under Section 5 of
this Agreement which is not cured by the Company within 30 days after notice
thereof is given by the Executive to the Company.
(d) The Executive's employment hereunder may be terminated by
the Board of Directors of the Company (or its successor) upon the occurrence of
a Change of Control. For purposes of this Agreement, "CHANGE OF CONTROL" means
(i) the acquisition, directly or indirectly, following the date hereof by any
person (as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) or more of the combined voting power of the Company's then
outstanding securities if such person or his or its affiliate(s) do not own in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
10. Compensation upon Termination.
(a) If the Executive's employment is terminated as a result of
his death or Disability, the Company shall (i) pay to the Executive or to the
Executive's estate, as applicable, his Base Salary and any accrued and unpaid
Bonus and expense reimbursement amounts through the date of his death or
Disability, and (ii) for the shorter of twelve (12) months following his death
or Disability or the balance of the Term (as if such termination had not
occurred) provide continuation coverage to the members of the Executive's family
and, in the case of termination for Disability, the Executive under all major
medical and other health, accident, life or other disability plans and programs
in which such family
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members and, in the case of termination for Disability, the Executive
participated immediately prior to his death or Disability. Any Stock Options
that have not vested as of the date of the Executive's death or Disability shall
be deemed to have expired as of such date; provided, however, that and vested
Stock Options shall remain exercisable for a period of 90 days.
(b) If the Executive's employment is terminated by the Board
of Directors of the Company for Cause or by the Executive other than for Good
Reason, the Company shall pay to the Executive his Base Salary through the date
of his termination and the Executive shall have no further entitlement to any
other compensation or benefits from the Company. All Stock Options that have not
vested as of the date of any such termination shall be deemed to have expired as
of such date and, in addition, the Executive's right to exercise any vested
Stock Options shall terminate as of such date.
(c) If the Executive's employment is terminated by the Company
(or its successor) upon the occurrence of a Change of Control, the Company (or
its successor, as applicable) shall (i) continue to pay to the Executive his
Base Salary for a period of one year following such termination, and (ii) pay
the Executive any accrued and unpaid Bonus and expense reimbursement amounts
through the date of termination. The Company's obligation under clause (i) in
the preceding sentence shall be reduced, however, by any amounts otherwise
actually earned by the Executive during the one year period following the
termination of his employment. All Stock Options that have not vested as of the
date of such termination shall be accelerated and deemed to have vested as of
such date.
(d) If (i) the Executive's employment is terminated by the
Company other than as a result of the Executive's death or Disability and other
than for reasons specified in Sections 10(b) or (c), or (ii) the Executive's
employment is terminated by the Executive for Good Reason, the Company shall (i)
continue to pay to the Executive his Base Salary for a period of one year
following such termination and (ii) pay the Executive any accrued and unpaid
Bonus and expense reimbursement amounts through the date of termination. The
Company's obligation under clause (i) in the preceding sentence shall be
reduced, however, by any amounts otherwise actually earned by the Executive
during the one year period following the termination of his employment. All
Stock Options that have not vested as of the date of termination shall be deemed
to have expired as of such date; provided, however, that and vested Stock
Options shall remain exercisable for a period of 90 days.
(e) The continuation coverage under any major medical and
other health, accident, life or other disability plans and programs for the
periods provided in Section 10(a) shall be provided (i) at the expense of the
Company and (ii) in satisfaction of the Company's obligation under Section 4980B
of the Internal Revenue Code of 1986 (and any similar state law) with respect to
the period of time such benefits are continued hereunder. Notwithstanding
anything to the contrary contained herein, the Company's obligation to provide
such continuation coverage under such Sections shall cease immediately upon the
date any covered individual becomes eligible for similar benefits under the
plans or policies of another employer.
(f) This Section 10 sets forth the only obligations of the
Company with respect to the termination of the Executive's employment with the
Company, and the Executive acknowledges that, upon the termination of his
employment, he shall not be entitled to any payments or benefits which are not
explicitly provided in Section 10.
(g) Upon termination of the Executive's employment hereunder
for any reason, the Executive shall be deemed to have resigned as director of
the Company, effective as of the date of such termination.
(h) The provisions of this Section 10 shall survive any
termination of this Agreement.
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11. Miscellaneous.
(a) This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, without
giving effect to its principles of conflicts of laws.
(b) Any dispute arising out of, or relating to, this Agreement
or the breach thereof (other than Sections 6 or 7 hereof), or regarding the
interpretation thereof, shall be finally settled by arbitration conducted in New
York City in accordance with the rules of the American Arbitration Association
then in effect before a single arbitrator appointed in accordance with such
rules. Judgment upon any award rendered therein may be entered and enforcement
obtained thereon in any court having jurisdiction. The arbitrator shall have
authority to grant any form of appropriate relief, whether legal or equitable in
nature, including specific performance. For the purpose of any judicial
proceeding to enforce such award or incidental to such arbitration or to compel
arbitration and for purposes of Sections 6 and 7 hereof, the parties hereby
submit to the non-exclusive jurisdiction of the Supreme Court of the State of
New York, New York County, or the United States District Court for the Southern
District of New York, and agree that service of process in such arbitration or
court proceedings shall be satisfactorily made upon it if sent by registered
mail addressed to it at the address referred to in paragraph (g) below.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns.
(d) This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive. The Company may assign its
rights, together with its obligations, hereunder in connection with any sale,
transfer or other disposition of all or substantially all of its business or
assets.
(e) This Agreement cannot be amended orally, or by any course
of conduct or dealing, but only by a written agreement signed by the parties
hereto.
(f) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and such terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on the part of
either party shall be effective for any purpose whatsoever unless such waiver is
in writing and signed by such party.
(g) All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or by an overnight courier service or sent by registered or
certified mail, postage prepaid, return receipt requested, to the parties at the
addresses set forth on the first page of this Agreement, and shall be deemed
given when so delivered personally or by overnight courier, or, if mailed, five
days after the date of deposit in the United States mails. Either party may
designate another address, for receipt of notices hereunder by giving notice to
the other party in accordance with this paragraph (g).
(h) This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
(i) As used in this Agreement, "affiliate" of a specified
Person shall mean and include any Person controlling, controlled by or under
common control with the specified Person.
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(j) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(k) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
XXXXXX HEALTH SCIENCES, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Secretary
By: /s/ Xxxx X. Xxx
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Name: Xxxx Xxx, Ph.D.
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