EXHIBIT 10.2
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Employment Agreement
between
Vyteris, Inc. and Xxxxx Xxxxxxxx
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated as of December 15, 2002,
is entered into between VYTERIS, INC., a Delaware corporation, having a place of
business at 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 ("Employer"), and
Xxxxx Xxxxxxxx, an individual residing at 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
00000 ("Employee").
WHEREAS, Employer desires to employ Employee as Vice President Business
Development of Employer; and
WHEREAS, Employee is willing to accept such employment on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, Employer and Employee hereby agree as follows:
ARTICLE I
EMPLOYMENT, POSITION DUTIES AND RESPONSIBILITIES
1.01 EMPLOYMENT. Employer agrees to, and does hereby, employ Employee, and
Employee agrees to, and does hereby accept such employment, upon the terms and
subject to the conditions set forth in this Agreement. Employee represents and
warrants to Employer that (i) Employee has the legal capacity to execute and
perform this Agreement, (ii) this Agreement is a valid and binding agreement
enforceable against Employee according to its terms, and (iii) the execution and
performance of this Agreement by Employee does not violate the terms of any
existing agreement or understanding to which Employee is a party or by which
Employee may be bound.
1.02 POSITION, DUTIES AND AUTHORITY. During the Term (as defined below),
Employee shall serve as Vice President Business Development of Employer, or
subject to provision 4.01 of this Agreement, or in such other position or
capacity as Employer shall request and shall have such responsibilities, duties
and authority as may, from time to time, be assigned by the Employer's Board of
Directors, the president of the Employer and/or the president's nominee,
including, without limitation, the duties and responsibilities set forth on
EXHIBIT A attached hereto. During the Term, Employee shall serve Employer,
faithfully and to the best of Employee's ability, and shall devote all of
Employee's business time, attention, skill and efforts exclusively to the
business and affairs of Employer (including its subsidiaries and affiliates) and
the promotion of its interests. Notwithstanding the foregoing, Employee may
engage in charitable, educational, religious, civic and similar types of
activities (all of which shall be deemed to benefit Employer) to the extent that
such activities do not inhibit or prohibit the performance of Employee's duties
hereunder or inhibit or conflict with the business of Employer, its subsidiaries
and affiliates. Employee's principal base of operation for the performance of
Employee's duties under this Agreement shall be in the State of New Jersey;
provided, however, that Employee shall perform such duties and responsibilities
at such other places as shall from time to time be reasonably necessary to
fulfill Employee's obligations under this Agreement in the discretion of
Employer.
ARTICLE II
TERM
2.01 TERM OF EMPLOYMENT. Employee's employment under this Agreement shall
commence on January 1, 2003 (the "Commencement Date") and, subject to earlier
termination pursuant to Article IV hereof, shall continue until December 31,
2005 (the "Term"); provided, however, that unless either party gives written
notice to the other at least 180 days prior to the expiration of the
then-current Term that such party elects not to renew this Agreement, the
then-current Term shall be automatically extended for additional one-year
periods. The election of Employer or the Employee not to extend the then-current
Term, as provided in this Section 2.01 shall not be deemed to a termination by
Employer under Sections 4.01(B) or 4.01(C) or by Employee for Good Reason, and
in such event Employee shall only be entitled to the compensation set forth in
Section 4.02 (ii).
ARTICLE III
COMPENSATION AND EXPENSES
3.01 COMPENSATION AND BENEFITS. For all services rendered by Employee in any
capacity during the Term, including, without limitation, services as an officer,
director or member of any committee of Employer, or any subsidiary, affiliate or
division thereof, Employee shall be compensated as follows (subject, in each
case, to the provisions of Article IV below):
(A) BASE SALARY. During the Term, Employer shall pay to Employee a
base salary at the rate of S 150,000 on an annualized basis ("Base Salary").
Employee's Base Salary shall be subject to periodic review, which shall occur at
least annually) and such periodic adjustments as the Board of Directors of
Employer ("Board") shall deem appropriate in accordance with Employer's
procedures and practices in effect from time to time regarding the salaries of
employees. The term "Base Salary" as used in this Agreement shall refer to Base
Salary as may be adjusted from time to time. Base Salary shall be payable in
accordance with the customary payroll practices of Employer, but in no event
less frequently than twice per month.
(B) BONUS. During the Term following the completion of one full
calendar year of employment, Employee shall also be entitled to an annual bonus,
in such amount as may be determined by the Board ("Discretionary Bonus").
Employee's target Discretionary Bonus shall be 30% of Base Salary on an
annualized basis. The Discretionary Bonus, if any, shall be determined as of the
end of each full calendar year of employment, payable within sixty days after
the last day of each such year. Qualification for the Discretionary Bonus shall
be established by the Board and shall be related to achievement of Employer's
operating plan, budgets and strategic development milestones/objectives
established by the Board from time to time.
Except as otherwise specifically set forth in Section 4.02, to be eligible to
receive any Discretionary Bonus, or any portion thereof, Employee must be
employed by Employer both at the time the amount of the Discretionary Bonus, if
any, is determined, and at the time any such bonus is to be paid.
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Exhibit B lists the current Discretionary Bonus payment milestones/objectives,
which milestones and objectives may be modified by Employer from time to time in
its sole discretion.
(C) INCENTIVE STOCK OPTION GRANTS. During the Term, Employee shall
be eligible to receive from time to time incentive stock option grants in
amounts to be approved by Employer's Compensation Committee in its sole
discretion and which shall be granted, if at all, after the close of a fiscal
year and on a date determined by the annual compensation calendar established
from time to time. Incentive stock option grants will be based upon a
combination of company performance and performance by Employee, as determined by
Employer's Compensation Committee in its sole discretion. Such stock option
grants will be subject the terms and conditions established within the Plan or
any successor stock option plan as may be in place from time to time and a
separate stock option grant agreement between Employer and Employee that sets
forth, among other things, the exercise price, expiration date and vesting
schedule of such options.
(D) BENEFITS. During the Term, Employee shall be entitled to
participate in all Employer's employee benefit plans and programs (excluding
severance plans, if any) as Employer generally maintains from time to time
during the Term for the benefit of its employees, in each case subject to the
eligibility requirements and other terms and provisions of such plans or
programs. Employer may amend, modify or rescind any employee benefit plan or
program and change employee contribution amounts to benefit costs without notice
in its discretion.
(E) VACATION SICK AND PERSONAL DAYS. During the Term, Employee shall
be entitled to paid vacation, sick and personal days in accordance with
Employer's policies with respect to such vacation, sick and personal days in
place from time to time; provided, however, that Employee shall be entitled to
no less than 3 weeks paid vacation per year.
3.02 EXPENSES. Employee shall be entitled to receive reimbursement from
Employer for all reasonable out-of-pocket expenses incurred by Employee during
the Term in connection with the performance of Employee's duties and obligations
under this Agreement, according to Employer's expense account and reimbursement
policies in place from time to time and provided that Employee shall submit
reasonable documentation with respect to such expenses.
ARTICLE IV
TERMINATION
4.01 EVENTS OF TERMINATION. This Agreement and Employee's employment
hereunder shall terminate upon the occurrence of any one or more of the
following events:
(A) DEATH. In the event of Employee's death, this Agreement and
Employee's employment hereunder shall automatically terminate on the date of
death.
(B) TERMINATION BY EMPLOYER FOR CAUSE. Employer may, at its option,
terminate this Agreement and Employee's employment hereunder for Cause (as
defined herein) upon giving notice of termination to Employee. Employee's
employment shall terminate on the date on which such notice shall be given. For
purposes hereof, "Cause" shall mean Employee's (i) conviction of, guilty plea to
or confession of guilt of a felony or act involving moral turpitude,
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(ii) commission of a fraudulent, illegal or dishonest act, (iii) willful
misconduct or gross negligence which reasonably could be expected to be
injurious in the reasonable discretion of Employer to the business, operations
or reputation of Employer or any of its affiliates or subsidiaries (monetarily
or otherwise), (iv) after a written and specific warning and a reasonable
opportunity to cure material and repeated non-performance, failure to perform
Employee's duties as assigned to Employee from time to time, or (v) other
material breach of this Agreement (including, without limitation, a breach of
Employee's obligations under Article V hereof).
(C) WITHOUT CAUSE BY EMPLOYER. Employer may, at its option, at any
time terminate Employee's employment for no reason or for any reason whatsoever
(other than for Cause) by giving thirty (30) days prior written notice (or
payment of thirty (30) days Base Salary in lieu of notice) to Employee of its
intention to terminate this Agreement and Employee's employment hereunder.
(D) TERMINATION BY EMPLOYEE. Employee may terminate this Agreement
and Employee's employment hereunder with or without Good Reason by giving (30)
days prior written notice of termination to Employer; provided, however, that
Employer reserves the right to accept Employee's notice of termination and to
accelerate such notice and make Employee's termination effective immediately, or
on any other date prior to Employee's intended last day of work as Employer
deems appropriate, and pay Employee for the entire thirty (30) days or to the
intended date of termination of such notice. For purposes of this Agreement,
"Good Reason" shall mean, in the absence of a written consent of Employee:
(i) any action by Employer which results in a material
diminution in Employee's title, position, authority or duties from those
contemplated by Section 1.02, other than isolated actions which are remedied by
Employer promptly after receipt of written notice thereof given by Employer;
(ii) any material failure by Employer to comply with any
material provision of this Agreement, other than isolated and inadvertent
failures and which are remedied by Employer promptly after receipt of written
notice thereof given by Employee; and
(iii) the requirement by Employer that the Employee be based
in an office that is located more than 50 miles from Employee's principal place
of employment on the Commencement Date.
Notwithstanding the foregoing, placing Employee on a paid leave for up
to 90 days, pending a determination of whether is a basis to terminate Employee
for "Cause", shall not constitute a "Good Reason".
(E) DISABILITY. To the extent permitted by law, in the event of
Employee's physical or mental disability which prevents Employee from performing
Employee's duties under this Agreement for a period of at least 120 consecutive
days in any 12-month period or 150 non-consecutive days in any 12-month period,
Employer may terminate this Agreement and Employee's employment hereunder upon
at least 30 days' prior written notice to Employee.
(F) MUTUAL AGREEMENT. This Agreement and Employee's employment
hereunder may be terminated at any time by the mutual agreement of Employer and
Employee.
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(G) EXPIRATION OF TERM. This Agreement and Employee's employment
hereunder shall automatically terminate upon the expiration of the Term.
4.02 EMPLOYER'S OBLIGATIONS UPON TERMINATION.
(i) FOR CAUSE; OTHER THAN FOR GOOD REASON. If, during the
Term, Employer shall terminate this Agreement and Employee's employment
hereunder for Cause or Employee shall terminate this Agreement and Employee's
employment hereunder other than for Good Reason, Employer's sole obligation to
Employee under this Agreement shall be to (a) pay to Employee Base Salary
earned, but not yet paid to Employee, prior to the date of such termination, and
(b) reimburse Employee for any expenses incurred by Employee through the date of
termination in accordance with Section 3.02.
(ii) EXPIRATION OF TERM. Upon the expiration of the Term,
Employer's sole obligation to Employee under this Agreement shall be to (a) pay
to Employee Base Salary earned, but not yet paid to Employee, prior to the date
of such termination, (b) reimburse Employee for any expenses incurred by
Employee through the date of termination in accordance with Section 3.02, (c)
pay to Employee any Discretionary Bonus earned or awarded with respect to
performance in the calendar year(s) prior to the calendar year in which such
termination occurred, but not yet paid to Employee.
(iii) DEATH. If, during the Term, this Agreement and
Employee's employment hereunder shall terminate as a result of Employee's death,
Employer's sole obligation to Employee's estate under this Agreement shall be to
(a) pay to Employee's estate Base Salary earned, but not yet paid to Employee,
prior to the date of such termination, (b) reimburse Employee's estate for any
expenses incurred by Employee through the date of termination in accordance with
Section 3.02, (c) pay to Employee's estate any Discretionary Bonus earned or
awarded prior to the date of termination with respect to performance in the
calendar year(s) prior to the calendar year in which the date of termination
occurred, but not yet paid.
(iv) DISABILITY. If, during the Term, this Agreement and
Employee's employment hereunder shall terminate as a result of Employee's
Disability, Employer's sole obligation to Employee under this Agreement shall be
to (a) pay to Employee Base Salary earned, but not yet paid to Employee, prior
to the date of such termination, (b) reimburse Employee for any expenses
incurred by Employee through the date of termination in accordance with Section
3.02, (c) pay to Employee any Discretionary Bonus earned or awarded prior to the
date of termination with respect to performance in the calendar year(s) prior to
the calendar year in which the date of termination occurred, but not yet paid.
(v) WITHOUT CAUSE; FOR GOOD REASON. If, during the Term,
Employer shall terminate this Agreement and Employee's employment hereunder
without Cause or Employee terminates this Agreement and Employee's employment
hereunder for Good Reason, Employer's sole obligation to Employee under this
Agreement shall be to: (a) pay to Employee Base Salary earned, but not yet paid
to Employee, prior to the date of such termination, (b) reimburse Employee for
any expenses incurred by Employee through the date of termination in accordance
with Section 3.02, (c) pay to Employee any Fixed Annual Bonus or Discretionary
Bonus earned or awarded prior to the date of termination with respect to
performance in the calendar year(s). prior to the calendar year in which the
date of termination occurred, but not yet paid, (d) pay to
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Employee a pro-rata portion (based upon the date of termination) of the amount
of the Discretionary Bonus, if any, awarded by Employer for the calendar year in
which the date of termination occurred, as determined by Employer at the end of
such calendar year, payable on the date such bonus was otherwise to be paid, and
(e) pay to Employee a lump sum equal to 6 months of Employee's Base Salary.
In addition to the payments and benefits set forth in this Section 4.02, amounts
which are vested benefits or which Employee is otherwise entitled to receive
under any plan, program, policy or practice (with the exception of those
relating to severance) on the date of termination, shall be payable in
accordance with such plan, policy, practice or agreement. Except with respect to
Base Salary earned through the date of termination, but not yet paid, and
unreimbursed expenses incurred through the date of termination, Employer shall
not be required to make the payments and provide the benefits specified in this
Section 4.02 unless Employer executes and delivers to Employer a general release
in favor of Employer, its affiliates and their respective officers, directors
and employees from all liability (other than the payments and benefits under
this Agreement) in a form reasonably satisfactory to Employer.
ARTICLE V
CONFIDENTIALITY, ASSIGNMENT OF INVENTIONS, NON-COMPETITION,
NON-SOLICITATION AND OTHER COVENANTS
5.01 CONFIDENTIALITY. While working or performing services for Employer or
otherwise, Employee may develop or acquire knowledge in Employee's work or from
directors, officers, employees, agents or consultants of Employer and its
affiliates (collectively, the "Company") or otherwise of Confidential
Information relating to the Company, its business, potential business or that of
its clients and customers. "CONFIDENTIAL INFORMATION" includes all trade
secrets, know-how, show-how, theories, technical, operating, financial, and
other business information, whether or not reduced to writing or other medium
and whether or not marked or labeled confidential, proprietary or the like,
specifically including, but not limited to, information regarding source codes,
software programs, computer systems, algorithms, formulae, apparatus, concepts,
creations, costs (including, without limitation, manufacturing costs), plans,
materials, enhancements, tolerances, research, specifications, works of
authorship, techniques, documentation, models and systems, sales and pricing
techniques, designs, inventions, discoveries, products, improvements,
modifications, methodology, processes, concepts, records, files, memoranda,
reports, plans, proposals, price lists, client, customer, supplier,
collaborator/partner or distributor information, product development and project
procedures. Confidential Information does not include general skills, experience
or information that is generally available to the public, other than information
which has become generally available as a result of Employee's direct or
indirect act or omission.
With respect to Confidential Information of the Company and its
clients and customers:
(A) Employee will use Confidential Information only in the
performance of Employee's duties for Employer. Employee will not use
Confidential Information at any time (during or after Employee's employment with
Employer) for Employee's personal benefit, for the
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benefit of any other individual or entity, or in any manner adverse to the
interests of the Company and its clients and customers;
(B) Employee will not disclose Confidential Information at any time
(during or after Employee's employment with Employer) except to authorized
Employer personnel, unless Employer consents in advance in writing or unless the
Confidential Information indisputably becomes of public knowledge or enters the
public domain (other than through Employee's direct or indirect act or
omission);
(C) Employee will safeguard the Confidential Information by all
reasonable steps and abide by all policies and procedures of Employer in effect
from time to time regarding storage, copying and handling of documents; and
(D) Employee will return all materials, substances, models,
software, prototypes and the like containing and/or relating to Confidential
Information, together with all other property of the Company (all of which shall
remain the exclusive property of the Company) and its clients and customers, to
Employer when Employee's employment relationship with Employer terminates or
otherwise on demand and, at that time Employee will certify to Employer, in
writing and under oath, in the form attached hereto as EXHIBIT [B], that
Employee has complied with this Agreement. Employee shall not retain any copies
or reproductions of correspondence, memoranda, reports, notebooks, drawings,
photographs, databases, diskettes, or other documents or electronically stored
information of any kind relating in any way to the business, potential business
or affairs of the Company and its clients and customers.
5.02 ASSIGNMENT OF DEVELOPMENTS. Employee will disclose promptly and fully to
Employer and to no one else: (i) all inventions, ideas, improvements,
discoveries, works modifications, processes, software programs, works of
authorship, documentation, formulae, techniques, designs, methods, trade
secrets, technical specifications and technical data, know-how and show-how,
concepts, expressions or other developments whatsoever or any interest therein
(whether or not patentable or registrable under copyright, trademark or similar
statutes or subject to analogous protection) made, authored, devised, developed,
discovered, reduced to practice, conceived or otherwise obtained by Employee
("Developments"), solely or jointly with others, during the course of Employee's
employment with Employer which (a) are related to the business of the Company or
any of the products or services being researched, developed, distributed,
manufactured or sold by the Company or which may be used in relation therewith
or (b) result from tasks assigned to Employee by the Company; (ii) any
Development which is related to the business of the Company and in which
Employee had an assignable interest at the time of Employee's first employment
by Employer; or (iii) any Development made using the time, materials or
facilities of the Company, even if such Development does not relate to the
business of the Company. The determination as to whether a Development is
related to the business of the Company shall be made solely by an authorized
representative of Employer. Any Development relating to the business of the
Company and disclosed to the Company within one year following the termination
of Employee's employment with Employer shall be deemed to fall within the
provisions of this Section 5.02. The "business of the Company" as used in this
Section 5.02 includes the actual business currently conducted by the Company, as
well as any business in which the Company proposes to engage at any time during
the period of Employee's employment. Employee agrees that all such Developments
listed above and the benefits thereof are and shall immediately become the sole
and absolute property of Employer from conception,
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as "works made for hire" (as that term is used under the U.S. Copyright Act of
1976, as amended) or otherwise. Employee shall have no interest in any
Developments. To the extent that title to any Developments or any materials
comprising or including any Developments does not, by operation of law, vest in
Employer, Employee hereby irrevocably assigns to Employer all of Employee's
right, title and interest, including, without limitation, tangible and
intangible rights such as patent rights, trademarks and copyrights, that
Employee may have or may acquire in and to all such Developments, benefits
and/or rights resulting therefrom, and agrees promptly to execute any further
specific assignments related to such Developments, benefits and/or rights at the
request of Employer. Employee also hereby assigns to Employer, or waives if not
assignable, all of Employee's "moral rights" in and to all such Developments,
and agrees promptly to execute any further specific assignments or waivers
related to moral rights at the request of Employer.
Employee agrees to assist Employer without charge for so long as
Employee is an employee of Employer and for as long thereafter as may be
necessary provided it does not unreasonably interfere with employment (but at
Employer's expense including reasonable compensation to Employee if Employee is
no longer an employee of Employer): (1) to apply, obtain, register and renew
for, and vest in, Employer's benefit alone (unless Employer otherwise directs),
patents, trademarks, copyrights, mask works, and other protection for such
Developments in all countries, and (2) in any controversy or legal proceeding
relating to Developments. In the event that Employer is unable to secure
Employee's signature after reasonable effort in connection with any patent,
trademark, copyright, mask work or other similar protection relating to a
Development, Employee hereby irrevocably designates and appoints Employer and
its duly authorized officers and agents as Employee's agent and
attorney-in-fact, to act for and on Employee's behalf and stead to execute and
file any such application and to do all other lawfully permitted acts to further
the prosecution and issuance of patents, trademarks, copyrights, mask works or
other similar protection thereon with the same legal force and effect as if
executed by Employee.
5.03 OBLIGATIONS TO OTHER PERSONS. Except for those described below (if any),
Employee does not have any non-disclosure or other obligations to any other
individual or entity (including without limitation, any previous employer)
concerning proprietary or confidential information that Employee learned of
during any previous employment or associations. Employee shall not disclose to
the Company or induce the Company to use any secret or confidential information
or material belonging to others, including, without limitation, Employee's
former employers, if any. Except for those described below, if any, Employee
does not have any non-competition agreements, non-solicitation agreements or
other restrictive covenants with any previous employer or other individual or
entity. Employee has provided to Employer copies of each of the agreements
described below.
[If none, write "None". If any, list] NONE
5.04 COVENANT AGAINST COMPETITION AND SOLICITATION.
(A) Employee acknowledges and understands that, in view of the
position that Employee holds or will hold as an employee of Employer, Employee's
relationship with Employer will afford Employee extensive access to Confidential
Information of the Company. Employee therefore agrees that during the course of
Employee's employment with Employer and
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for a period of 12 months after termination of Employee's employment with
Employer (for any reason or no reason) (collectively, "RESTRICTED PERIOD"),
Employee shall not: (i) anywhere within the United States of America or any
other country in which the Company then conducts or proposes to conduct
business, either directly or indirectly, as an owner, stockholder, member,
partner, joint venturer, officer, director, consultant, independent contractor,
agent or employee, engage in any business or other commercial activity which is
engaged in or is seeking to engage in a "competitive business." As used in this
Agreement, the term "competitive business" shall mean any individual or
enterprise engaged in the development, research, marketing, distribution or sale
of electronically enhanced transdermal drug delivery technologies or systems.
(B) Employee further agrees that, during the Restricted Period,
Employee shall not, directly or indirectly, either on Employee's own behalf or
on behalf of any other individual or commercial enterprise: (i) contact,
communicate, solicit or transact any business with or assist any third party in
contacting, communicating, soliciting or transacting any business with (A) any
of the customers or clients of the Company, (B) any prospective customers or
clients of the Company being solicited at the time of Employee's termination, or
(C) any individual or entity who or which was within the most recent twelve (12)
month period a customer or client of Company, for the purpose of inducing such
customer or client or potential customer or client to be connected to or benefit
from any competitive business or to terminate its or their business relationship
with the Company; (ii) solicit, induce or assist any third party in soliciting
or inducing any individual or entity who is then (or was at any time within the
preceding 12 months) an employee, consultant, independent contractor or agent of
Company) to leave the employment of the Company or cease performing services for
the Company; (iii) hire or engage or assist any third party in hiring or
engaging, any individual or entity that is or was (at any time within the
preceding 12 months) an employee, consultant, independent contractor or agent of
the Company, or (iv) solicit, induce or assist any third party in soliciting or
inducing any other person or entity (including, without limitation, any
third-party service provider or distributor) to terminate its relationship with
the Company or otherwise interfere with such relationship.
5.05 NON-DISPARAGEMENT. Employee will not at any time (during or after
Employee's employment with Employer) disparage the reputation of Employer, its
affiliates and their respective clients, customers and its or their respective
officers, directors, agents or employees.
5.06 COOPERATION. Employee agrees to cooperate both during and after
Employee's employment with Employer, at Employer's sole cost and expense, with
the investigation by the Company involving the Company or any employee or agent
of the Company.
5.07 REASONABLE RESTRICTIONS/DAMAGES INADEQUATE REMEDY. Employee acknowledges
that the restrictions contained in this Article V are reasonable and necessary
to protect the legitimate business interests of the Company and that any breach
by Employee of any provision contained in this Article V will result in
immediate irreparable injury to the Company for which a remedy at law would be
inadequate. Employee further acknowledges that the restrictions contained in
this Article V will not prevent Employee from earning a livelihood during the
Restricted Period. Accordingly, Employee acknowledges that Company shall be
entitled to temporary or permanent injunctive or other equitable relief against
Employee in the event of any breach or threatened breach by Employee of the
provisions of this Article V, in addition to any other remedy that may be
available to the Company whether at law or in equity.
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5.08 [INTENTIONALLY OMITTED]
5.09 SEPARATE COVENANTS. In the event that any court of competent
jurisdiction shall determine that any one or more of the provisions contained in
this Article V shall be unenforceable in any respect, then such provision shall
be deemed limited and restricted to the extent that the court shall deem the
provision to be enforceable. It is the intention of the parties to this
Agreement that the covenants and restrictions in this Article V be given the
broadest interpretation permitted by law. The invalidity or unenforceability of
any provision of this Article V shall not affect the validity or enforceability
of any other provision hereof. The covenants and restrictions contained in this
Article V shall be deemed a series of separate covenants and restrictions one
for each of the fifty states of the United States of America. If, in any
judicial or arbitration proceedings, a court of competent jurisdiction or
arbitration panel should refuse to enforce all of the separate covenants and
restrictions in this Article V, then such unenforceable covenants and
restrictions shall be eliminated from the provisions of this Agreement for the
purpose of such proceeding to the extent necessary to permit the remaining
separate covenants and restrictions to be enforced in such proceeding.
5.10 SURVIVAL. Article V shall survive the termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.01 BENEFIT OF AGREEMENT AND ASSIGNMENT. This Agreement shall inure to the
benefit of the Company and its successors and assigns (including, without
limitation, the purchaser of all or substantially all of its assets) and shall
be binding upon Employer and its successors and assigns. This Agreement shall
also inure to the benefit of and be binding upon Employee and Employee's heirs,
administrators, executors and assigns. Employee may not assign or delegate
Employee's duties under this Agreement, without the prior written consent of
Employer.
6.02 NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be sufficiently given if personally delivered or if sent by
telecopier, overnight delivery service or by registered or certified mail,
postage prepaid, with return receipt requested, addressed in the case of the
Company to:
Vyteris, Inc. with a copy to:
00-00 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx PC
Fair Lawn, New Jersey 07410 00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xx Xxxxxx Attn: Xxxxx Xxxxxxxxx
President
and in the case of Employee to: Xxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
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Any party may notify the other party in writing of the change in address by
giving notice in the manner provided in this Section 6.02. Service of process in
connection with any suit, action or proceeding (whether arbitration or
otherwise) may be served on each party hereto anywhere in the world by the same
methods as are specified for the giving of notices under this Agreement.
6.03 ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties hereto with respect to the terms and conditions of Employee's employment
during the Term and activities following termination of this Agreement and
supersedes any and all prior agreements and understandings, whether written or
oral, between the parties with respect to the subject matter of this Agreement.
This Agreement may not be changed or modified except by an instrument in
writing, signed by both the president of Employer and Employee.
6.04 NO ATTACHMENT. Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect; provided, however, that nothing in this Section 6.04 shall
preclude the assumption of such rights by executors, administrators or other
legal representatives of Employer or her estate and their assigning any rights
hereunder to the person or persons entitled thereto.
6.05 SOURCE OF PAYMENT. All payments provided for under this Agreement shall
be paid in cash from the general funds of Employer. Employer shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if Employer shall make any investments to aid it
in meeting its obligations hereunder, Employee shall have no right, title or
interest whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship, between Employer and Employee or any other person.
To the extent that any person acquires a right to receive payments from Employer
hereunder, such right, without prejudice to rights which employees may have,
shall be no greater than the right of an unsecured creditor of Employer.
6.06 LIMITATION AS TO AMOUNTS PAYABLE. In the event that any payment,
coverage or benefit provided under this Agreement would, in the opinion of
counsel for Employer, not be deemed to be deductible in whole or in part in the
calculation of the Federal income tax of Employer, or any other person making
such payment or providing such coverage or benefit, by reason of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), the aggregate
payments, coverages or benefits provided under this Agreement shall be reduced
to the "safe harbor" level under Section 280G so that the entire amount which is
paid to Employee shall be deductible notwithstanding the provisions of Section
280G of the Code.
6.07 NO WAIVER. The waiver by other party of a breach of any provision of
this Agreement shall not operate or be construed as a continuing waiver or as a
consent to or waiver of any subsequent breach hereof.
6.08 HEADINGS. The Article and Section headings in this Agreement are for the
convenience of reference only and do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
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6.09 GOVERNING LAW AND DISPUTE RESOLUTION. Any and all actions or
controversies arising out of this Agreement or Employee's employment, including,
without limitation, tort claims, shall be construed and enforced in accordance
with the internal laws of the State of New Jersey, without regard to the choice
of law principles thereof. Except with respect to the Company's and Employee's
right to seek injunctive or other equitable relief (including, without
limitation, pursuant to Article V), any dispute, controversy or claim based on,
arising out of or relating to the interpretation and performance of this
Agreement, Employee's employment or any termination hereof or thereof or any
matter relating to the foregoing shall be solely submitted to and finally
settled by arbitration by a single arbitrator in accordance with the
then-current rules of the American Arbitration Association ("AAA"), including
without limitation any claims for discrimination under any applicable federal,
state or local law or regulation. Any such arbitration shall be conducted in the
New Jersey office of the AAA located closest to Employer's New Jersey office.
The single arbitrator shall be appointed from the AAA's list of arbitrators by
the mutual consent of the parties or, in the absence of such consent, by
application of any party to the AAA. A decision of the arbitrator shall be final
end binding upon the parties. The parties agree that this Section 6.09 shall be
grounds for dismissal of any court action commenced by either party with respect
to this Agreement, other than (i) post-arbitration actions seeking to enforce an
arbitration award and (ii) actions seeking appropriate equitable or injunctive
relief , including, without limitation, pursuant to Article V hereof. Employer
shall pay the pay the fees of the arbitrator and each party shall be responsible
for its own legal fees, costs of its experts and expenses of its witnesses. The
arbitrator's remedial authority shall equal the remedial power that a court with
competent jurisdiction over the parties and their dispute would have. Any award
rendered shall be final, binding and conclusive (without the right to an appeal,
unless such appeal is based on fraud by the other party in connection with the
arbitration process) upon the parties and any judgment on such award may be
enforced in any court having jurisdiction, unless otherwise provided by law.
Employer and Employee acknowledge that it is the intention of the parties that
this Section 6.09 shall apply to all disputes, controversies and claims,
including, without limitation, any rights or claims Employee may have under the
Age Discrimination in Employment Act of 1967, the Americans with Disabilities
Act, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the New
Jersey Law Against Discrimination, the Conscientious Employee Protection Act and
all other federal, state or local laws, rules or regulations relating to
employment discrimination or otherwise pertaining to this Agreement, Employee's
employment or termination thereof. Employer and Employee knowingly and
voluntarily agree to this arbitration provision and acknowledge that arbitration
shall be instead of any civil litigation, meaning that Employee and Employer are
each WAIVING ANY RIGHTS TO A JURY TRIAL.
6.10 VALIDITY. The invalidity or enforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision or provisions of this Agreement, which shall remain in full
force and effect.
6.11 EMPLOYEE WITHHOLDINGS AND DEDUCTIONS. All payments to Employee hereunder
shall be subject to such withholding and other employee deductions as may be
required by law.
6.12 COUNTERPARTS. This Agreement may be executed in one more counterparts;
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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6.13 AGREEMENT TO TAKE ACTIONS. Each party to this Agreement shall execute
and deliver such documents, certificates, agreements and other instruments, and
shall take all other actions, as may be reasonably necessary or desirable in
order to perform his/her or its obligations under this Agreement.
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement as of the date first written above.
EMPLOYER:
VYTERIS, INC.
BY: Xxxxxxx Xx Xxxxxx
-----------------
1/22/2003
EMPLOYEE:
BY: Xxxxx Xxxxxxxx
--------------
1/22/2003, individually
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EXHIBIT [B]
FORM OF ACKNOWLEDGMENT
My employment with Vyteris, Inc. ("Employer") is terminated. I have
reviewed my Employment Agreement with Employer dated ___________________,
_______, ("Agreement"), and I swear, under oath, that:
1. I have complied and will continue to comply with all provisions
of Article V.
2. I understand that all property and documents of Employer and its
subsidiaries and affiliates (collectively "Company"), including all copies of
them, and all other tangible property, including property stored or maintained
in an electronic format, made by or made available to me in the course of my
employment with Employer, whether or not they contain Confidential Information
(as defined in the Agreement), are and remain the property of Employer. I have
delivered to Employer all such property, documents and materials, including any
copies, summaries, compilations or excerpts of them and other materials in my
possession.
3. I have assigned and confirm the assignment to the Company of any
and all right, title, and interest that I have or have had in any and all
Developments (as defined in the Agreement) and all other property (tangible and
intangible), documents and materials, relating in any way to my service for
Employer and/or its affiliates, and further agree to take such action and
execute such further documents, instruments and agreements, at Employer's
expense, as may be requested by the Company to effect the foregoing.
4. I understand and acknowledge that all of the Confidential
Information (as defined in the Agreement) of the Company, its clients and
customers and potential clients and customers that I have learned, contributed
to or that has been disclosed, to me during my employment with the Company is
the property of the Company and may not be used or copied by me or by others or
disclosed to others. I understand that the misappropriation of the Confidential
Information, Developments or tangible property of the Company is punishable by
law.
5. I am now providing services to the following ______________ and
my provision of services to those individuals or entities will not conflict with
my Agreement with Employer.
_________________________________
(Signature)
Name:____________________________
Address:_________________________
Subscribed and sworn to before me this ____ day of _____, _____,
_________________________________
(Notary Public)
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EXEMPT POSITION DESCRIPTION
---------------------------------------- ------------------------ --------------
POSITION TITLE INCUMBENT BAND
---------------------------------------- ------------------------ --------------
Vice President, Business Development Xxxxx Xxxxxxxx N/A
---------------------------------------- ------------------------ --------------
DEPARTMENT LOCATION
---------------------------------------- ---------------------------------------
Business Development/Marketing Fair Lawn
---------------------------------------- ---------------------------------------
DIVISION DATE
---------------------------------------- ---------------------------------------
N/A 08/16/02
---------------------------------------- ---------------------------------------
GENERAL FUNCTION
--------------------------------------------------------------------------------
The Vice President of Business Development will report to the President and be
responsible for identifying and generating new business within the
pharmaceutical, biotechnology drug delivery and healthcare industries.
--------------------------------------------------------------------------------
RESPONSIBILITY
--------------------------------------------------------------------------------
ESSENTIAL DUTIES AND RESPONSIBILITIES INCLUDE THE FOLLOWING. OTHER DUTIES MAY BE
ASSIGNED
o Managing the prospecting, lead generation and collaboration
activities within business development; assessing partner
requirements; and negotiating development, licenses and supply
contracts.
o Maintaining responsibility for the ongoing management of new
corporate partner arrangements post successful competition of
licensing efforts.
o As a member of and in concert with the Senior Management team,
develop a strategic direction/strategy for the company including
product and technology portfolio decisions, business strategies
and marketing plans to support the growth of the enterprise.
o Working in tandem with appropriate groups such as R & D,
Finance, Regulatory and other areas of the organization,
participating in project alignment with the setting and
employing of company goals.
o Maintaining a current knowledge base of biotechnology and
pharmaceutical industry leaders, trends marketed products, and
clinical-stage pipeline products to make specific
recommendations on specific products or collaborative
opportunities. Participate in the development of sound business
cases based on in-depth analyses of market size, financial
opportunity, unmet customer needs, competitive landscape, and
the company's competitive advantages and ability to
differentiate its value offering.
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