Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement, between Xxxxxxx Pharmaceuticals, Inc., a Delaware
corporation with principal executive offices located at 000 Xxxxx 00 Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxx Xxxxxx, Ph.D.
("Employee"), is made and entered into as of this 30 day of October, 2007 (the
"Effective Date").
R E C I T A L S
WHEREAS, the Company believes that Employee has been an integral part of
the Company's management team and is and will continue to be integral to the
continued implementation of the Company's business plan and execution of its
growth strategy; and
WHEREAS, as a result of Employee's extensive knowledge and acumen
regarding the business, affairs and operations of the Company, the Company
desires assurance of the continued association and services of Employee in order
to benefit from Employee's experience, skills, abilities, background and
knowledge, and the Company is willing to engage Employee's services on the terms
and conditions set forth in this Agreement; and
WHEREAS, Employee desires to continue to render services to the Company
and to remain in the employ of the Company, and is willing to accept continued
employment from the Company on the terms and conditions set forth in this
Agreement; and
WHEREAS, the Company and Employee wish to enter into a written Employment
Agreement to supersede all other written and oral understandings and agreements
regarding Employee's employment with the Company.
NOW, THEREFORE, based on the foregoing recitals and in consideration of
the commitments set forth below, Employee and the Company agree as follows:
1. Position, Duties, Responsibilities
1.1. Position. Employee is hereby employed by the Company as the
Company's Vice President, Chief Scientific Officer effective at the Effective
Date, reporting directly to the Company's Chief Executive Officer. Employee
shall accept such duties and responsibilities as may be delegated, from time to
time, by the Company's Chief Executive Officer, including serving as an officer
and/or director of the Company's subsidiaries or affiliates; provided that such
duties and responsibilities are consistent with the duties and responsibilities
customarily assigned to an officer of similar title of a company similar to the
Company. Employee shall devote his full energies, interest, abilities and
business time to the proper, efficient, diligent and faithful performance of
these duties.
1.2. Other Activities. Without the prior written consent of the
Company's Board of Directors, Employee shall not during the Term (as hereinafter
defined) of this Agreement engage or participate, directly or indirectly, as an
employee, director, consultant, investor or otherwise, in any business, trade or
occupation, or company, other than as an investor in a company whose securities
are quoted or traded on a nationally recognized exchange, provided
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Employee holds not more than five per cent (5%) in aggregate of any class of
shares, debentures or other securities or not more than five per cent (5%) of
the economic value of the company. Nothing herein shall require Employee to
dispose of any securities currently held. Employee may serve in any capacity
with any civic, educational or charitable organization, or any governmental
entity or trade association, without seeking or obtaining the Company's
approval, provided such activities and services do not materially interfere or
conflict with the performance of his duties under this Agreement. Nothing herein
shall limit any applicable restrictions under the Company's Corporate Governance
Guidelines or other codes of conduct from time to time in effect.
1.3. Proprietary Information. Employee recognizes that his
employment with the Company will involve contact with proprietary and other
information of substantial value to the Company which is not generally known in
the trade or available in the public domain and which gives the Company an
advantage over its competitors who do not know or use such proprietary or other
information (collectively, "the Company Confidential Information"). The Employee
has signed and returned to the Company a copy of the Company's Confidentiality
Agreement. In addition, to the extent any of the Company Confidential
Information or inventions, innovations, improvements, processes or other
proprietary information is created, authored or conceived by Employee (whether
alone or with others) during the course of his employment with the Company
(collectively, "Works"), (a) Employee will promptly disclose full details of all
such Works to the Company, (b) Employee shall cause all such Works to vest
solely legally and beneficially in the Company immediately without any payment
to Employee, (c) Employee hereby assigns to the Company all of Employee's right,
title and interest in the Works, (d) Employee hereby irrevocably authorizes the
Company to be his attorney-in-fact, and to make use of his name and to sign and
execute, any documents and/ or perform any act on his behalf, for the purpose of
giving the Company full benefit of this Section 1.3 and, where permissible, to
obtain patent or other protection in respect of any of the Works in the name of
the Company or the Company's nominee and (e) Employee, both during his
employment under this Agreement and thereafter, at the request and expense of
the Company, will promptly do all things and execute all documents reasonably
necessary to obtain and/ or maintain patent or other protection in respect of
any Works in any part of the world and to vest such rights in and to any Works
in the name of the Company or the Company's nominee.
1.4. Covenant Not to Compete. Employee agrees that for a period of
twelve (12) months immediately following the Term of this Agreement, Employee
shall not directly or indirectly for his own benefit or the benefit of others:
(a) render services as an employee, officer, agent, broker,
consultant, partner or independent contractor for, or be
an owner or stockholder of, a competing organization in
connection with competing products, including but not
limited to organizations engaged in the provision of
dermatology, podiatry and gastroenterology
pharmaceutical products; provided, however, that
Employee may own five percent (5%) or less of the equity
securities of any publicly-traded company;
(b) hire or seek to persuade any employee of the Company to
discontinue employment or to become employed in a
competing organization or seek to persuade any
independent contractor or
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supplier to discontinue or limit its relationship with
the Company; and
(c) solicit, direct, take away or attempt to take away any
business or customers of the Company that existed or did
business with the Company at the time of termination of
Employee's employment hereunder or within six (6) months
prior thereto;
provided, however, that such restrictions shall not apply if Employee's
employment hereunder is terminated without Cause (as defined below) or Employee
terminates his employment hereunder for Good Reason (as defined below),
regardless of whether a Change of Control (as defined below) has occurred.
Employee acknowledges that there are no additional compensation
payments due him for the non-competition restrictions set forth in this Section
1.4.
2. Compensation of Employee
2.1. Salary. In consideration of the services to be rendered by
Employee under the terms of this Agreement, the Company shall pay Employee an
annual salary of $280,500, subject to standard deductions and withholdings,
payable in regular periodic payments in accordance with the Company's policies.
The Board of Directors and Compensation Committee of the Company will review
Employee's salary not less frequently than annually (with the first review to
occur in April 2008) and, in its discretion, may increase, but not decrease,
Employee's annual salary hereunder.
2.2. Stock Options. Subject to approval by the Board of Directors
and Compensation Committee of the Company, Employee shall be entitled to
receive, from time to time during the Term, such options to purchase shares of
the Company's common stock and other similar securities of the Company on such
terms and conditions as the Board of Directors and Compensation Committee of the
Company may establish.
2.3. Benefits and Perquisites. Employee shall be eligible to
participate in all of the Company's bonus, health, welfare, savings and other
benefit and fringe benefit plans, including, without limitation, the Company's
EVA Bonus Plan, 401(k) Savings Plan, health, dental and eye insurance plans,
life insurance plans and long-term disability plans, in which senior executives
of the Company are generally entitled to participate, subject, at all times, to
the terms and conditions of such plans. In addition, Employee shall receive such
other perquisites and benefits, including a leased automobile, gasoline credit
card and paid vacation days, as the Company generally makes available to its
senior executives.
2.4. Expense Reimbursement. The Company shall promptly reimburse
Employee for all reasonable and necessary business and entertainment expenses
incurred by Employee in connection with his performance of his duties hereunder
in accordance with the Company's usual reimbursement policies and procedures in
effect from time to time. In addition, the Company will pay all reasonable
out-of-pocket attorneys' fees incurred by Employee in connection with the
negotiation of this Agreement and any matters arising out of or relating to any
dispute hereunder that Employee has brought in good faith, subject to any
limitations imposed
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under Section 409A of the Internal Revenue Code of 1986, as amended, and any
guidance issued thereunder ("Section 409A of the Code").
3. Term
Employee's employment under this Agreement shall commence as of the
Effective Date and shall continue until December 6, 2008 (the "Expiration
Date"), unless sooner terminated by the Company or Employee in accordance with
this Agreement (the "Term"); provided, however, that this Agreement shall renew
automatically for an additional term of one (1) year on the Expiration Date and
each anniversary of the Expiration Date unless the Company or Employee gives
written notice to the other to the contrary at least 90 days prior thereto.
References herein to "Term" shall include any automatic extensions pursuant to
the preceding sentence.
4. Termination of Employment
4.1. Termination by the Company for Cause. The Company may terminate
Employee's employment hereunder for "Cause" (as defined below), provided that
the Company has complied with the provisions of this Section 4.1. For purposes
of this Agreement, "Cause" shall mean any of the following:
(a) Employee's conviction for any felony;
(b) Employee's deliberate and continual refusal to perform
satisfactorily employment duties reasonably requested by
the Company as provided herein after thirty (30) days'
written notice by certified mail of such failure,
specifying that the failure constitutes Cause and the
particulars of the failure (other than as a result of
vacation, sickness, illness or injury);
(c) Employee's commission of fraud or embezzlement
determined in accordance with the Company's normal,
internal investigative procedures consistently applied
in comparable situations;
(d) Employee's gross misconduct or gross negligence having a
substantial adverse effect on the Company's business; or
(e) Employee's material breach of this Agreement.
The Company shall provide Employee notice of such termination in
accordance with Section 13 hereof.
Employee shall be considered to have been terminated for "Cause" if
the Company in good faith determines Employee engaged in an act constituting
"Cause," regardless of whether Employee voluntarily terminates his employment or
is terminated involuntarily.
If the Company terminates Employee's employment for Cause, Employee
shall be entitled to a lump sum cash payment, payable within ten (10) business
days after the date of
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termination of Employee's employment for Cause, equal to the sum of (i) any
accrued but unpaid salary as of the date of such termination, (ii) any accrued
but unpaid annual cash bonus payable under the Company's EVA Bonus Program for
any annual period ended prior to the date of such termination, and (iii) all
expenses incurred for which documentation has been or will be provided in
accordance with the Company's policies but not yet reimbursed. In the event of
the termination of Employee's employment for Cause, Employee's stock options and
any other equity awards based on the Company's securities, such as restricted
stock, restricted stock units, stock appreciation rights, performance units,
etc. shall, to the extent then vested and exercisable, remain vested and
exercisable in accordance with their terms, and any such unvested awards shall
be immediately forfeited and/or cancelled.
4.2. Termination by the Company Without Cause. The Company may
terminate Employee's employment without Cause, which termination shall be
effective upon Employee's receipt of written notice of the same in accordance
with this Agreement. Upon any termination of Employee's employment by the
Company without Cause pursuant to this Section 4.2, Employee shall be entitled
to:
(a) a lump sum cash payment, payable within ten (10)
business days after the date of termination of
Employee's employment equal to the sum of: (i) any
accrued but unpaid salary as of the date of such
termination; (ii) any accrued but unpaid annual cash
bonus payable under the Company's EVA Bonus Program for
any annual period ended prior to the date of such
termination; and (iii) all expenses incurred for which
documentation has been or will be provided in accordance
with the Company's policies but not yet reimbursed;
(b) a lump sum cash payment, payable within ten (10)
business days of the date that is six (6) months
following the date of termination (or, if Employee is
not considered a "key employee" within the meaning of
Section 409A of the Code at the time of termination, the
date Employee's employment terminates), equal to the
amount payable under the Company's EVA Bonus Program for
the annual period in which such termination occurs, as
if the Employee's employment had not been terminated,
prorated through the date of such termination;
(c) continuation of all perquisites and other
Company-related benefits to which Employee was entitled
as of the date of his termination, including, but not
limited to, those set forth in Section 2.3 above,
through the end of the second calendar year following
the year in which Employee's employment terminates, if
and to the extent the provision of such perquisites or
benefits complies with Section 409A of the Code;
(d) immediate vesting of all of Employee's stock options,
warrants and any other equity awards based on Employer's
securities, such as restricted stock, restricted stock
units, stock appreciation rights,
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performance units, etc., all of which shall remain
exercisable in accordance with the original terms on the
date of grant, or, if later, the maximum date stock
rights may be extended under Section 409A of the Code;
(e) continued participation in, and continuation by the
Company of the payment of the relevant premiums
applicable to, the life insurance and health, welfare
and medical insurance plans described in Section 2.3 or
comparable plans at the Company's expense (subject to
the terms of the applicable plans) through the end of
the second calendar year following the year in which
Employee's employment terminates, if and to the extent
the provision of continued participation and payments of
premiums complies with Section 409A of the Code;
(f) continued participation, through the end of the second
calendar year following the year in which Employee's
employment terminates, of Employee and each of his
dependents in all other Company-sponsored health,
welfare and benefit plans or comparable plans at the
Company's expense (subject to the terms of the
applicable plans) at the benefit levels in effect from
time to time and with COBRA benefits commencing
thereafter, if and to the extent the provision of
continued benefits and benefit levels complies with
Section 409A of the Code and any other applicable laws
and regulations.
In addition to the foregoing payments and continuation of benefits,
the Company shall pay Employee a lump sum cash payment, payable within ten (10)
business days of the date that is six (6) months following the date of
termination of Employee's employment (or, if Employee is not considered a "key
employee" within the meaning of Section 409A of the Code at the time of
termination, the date Employee's employment terminates), an amount equal to the
product of (I) two multiplied by (II) the sum of (1) Employee's then current
annual salary pursuant to Section 2.1 and (2) the average amount paid to
Employee under the Company's EVA Bonus Program with respect to the most recent
three calendar years (or such shorter period to coincide with Employee's years
of employment with the Company prior to the end of the preceding calendar year).
Notwithstanding anything in this Agreement to the contrary, if at
the time of termination, Employee is a "specified employee" or "key employee"
who has experienced a "separation from service," each within the meaning of
Section 409A of the Code, no payments or benefits pursuant to this Agreement
that are considered "deferred compensation" subject to Section 409A of the Code
shall be made prior to the date that is six (6) months after the date of
"separation from service" (or, if earlier, Employee's date of death), except as
otherwise provided in the Code, Section 409A of the Code or any regulations
promulgated thereunder. In such event, the payments subject to the six (6) month
delay will be paid in a lump sum on the earliest permissible payment date.
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4.3. Termination by Employee for Good Reason. Employee may terminate
his employment hereunder for "Good Reason." For purposes of this Agreement,
"Good Reason" shall mean, without Employee's consent, the occurrence of any of
the following circumstances unless such circumstances are fully corrected prior
to the expiration of the thirty (30) day period following receipt by the Company
of Employee's notice of the existence of circumstances that provide a basis for
Employee to terminate his employment for Good Reason, describing such
circumstances in reasonable detail:
(a) a substantial diminution or unreasonable increase in
Employee's duties, responsibilities or authority, taken
as a whole (except during periods when Employee is
unable to perform all or substantially all of Employee's
duties or responsibilities as a result of Employee's
physical or mental incapacity);
(b) a change in Employee's principal place of employment to
a location more than 50 miles from its current location;
or
(c) a material breach of this Agreement by the Company.
If Employee terminates his employment with the Company for Good
Reason, subject to the Company's right to cure as set forth above, Employee
shall be entitled to the same payments and benefits, at the same times, set
forth in Section 4.2 above for a termination by the Company without Cause.
4.4. Termination by Employee Without Good Reason. Employee shall
have the right to terminate his employment voluntarily hereunder at any time
without Good Reason upon 30 days' written notice to the Company. Upon any
voluntary termination of employment by Employee without Good Reason pursuant to
this Section 4.4, Employee shall be entitled only to such payments and benefits
as those described in Section 4.1 for a termination by the Company for Cause.
4.5 Termination in Connection with a Change in Control. For purposes
of this Agreement, a "Change in Control" shall mean:
(a) The acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership of
any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) 50% or more of either (x) the then-outstanding
shares of common stock of the Company (the "Outstanding
Company Common Stock") or (y) subject to Section 4.5(d),
the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for
purposes of this subsection (a), the following
acquisitions shall not constitute a Change of
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Control Event: (A) any acquisition directly from the
Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security
exercisable for, convertible into or exchangeable for
common stock or voting securities of the Company, unless
the Person exercising, converting or exchanging such
security acquired such security directly from the
Company or an underwriter or agent of the Company), (B)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (C) any
acquisition by any corporation pursuant to a Business
Combination (as defined below) which complies with
clauses (x) and (y) of subsection (c) of this
definition; or
(b) Subject to Section 4.5(d), such time as the Continuing
Directors (as defined below) do not constitute a
majority of the Board of Directors of the Company, where
the term "Continuing Director" means at any date a
member of the Board (x) who was a member of the Board on
the date hereof or (y) who was nominated or elected
subsequent to such date by at least a majority of the
directors who were Continuing Directors at the time of
such nomination or election or whose election to the
Board was recommended or endorsed by at least a majority
of the directors who were Continuing Directors at the
time of such nomination or election; provided, however,
that there shall be excluded from this clause (y) any
individual whose initial assumption of office occurred
as a result of an actual or threatened election contest
with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or
consents, by or on behalf of a person other than the
Board; or
(c) The consummation of a merger, consolidation,
reorganization, recapitalization or share exchange
involving the Company or a sale or other disposition of
all or substantially all of the assets of the Company (a
"Business Combination"), unless, immediately following
such Business Combination, each of the following two
conditions is satisfied: (x) all or substantially all of
the individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly
or indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting power of
the then-outstanding securities entitled to vote
generally in the election of directors, respectively, of
the resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns
the Company or substantially all of the Company's assets
either directly or through one or more subsidiaries)
(such resulting or acquiring corporation is referred to
herein as the
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"Acquiring Corporation") in substantially the same
proportions as their ownership of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities, respectively, immediately prior to such
Business Combination and (y) no Person (excluding the
Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or
by the Acquiring Corporation) beneficially owns,
directly or indirectly, 50% or more of the
then-outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the
then-outstanding securities of such corporation entitled
to vote generally in the election of directors (except
to the extent that such ownership existed prior to the
Business Combination).
(d) During the period in which Xxxxxx Xxxxxxxx and his
affiliates own or control a majority of the Company's
Class B Common Stock entitled to elect the majority of
the Company's Board of Directors, a "Change of Control"
shall not be deemed to have occurred if Xx. Xxxxxxxx and
his affiliates caused, either by their action or
inaction, the circumstances contemplated in either
Sections 4.5(a)(y) or 4.5(b) to occur.
If a Change in Control occurs during the Term, and if, during the
Term and within twelve months after the date on which the Change in Control
occurs, Employee's employment is terminated by the Company without Cause or by
Employee for any reason, then Employee will be entitled to the payments and
benefits, at the same times, described in Section 4.2 for a termination by the
Company without Cause. Additionally, immediately prior to a Change of Control,
all outstanding options to purchase the Company's securities shall become fully
vested.
In addition, to the extent that any payment or distribution of any
type to or for Employee by the Company (which for purposes of this Section 4.5
includes any parent, subsidiary or affiliate of the Company), whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (including, without limitation, any accelerated vesting of stock
options or other equity awards based on the Company's securities granted
pursuant to this Agreement or otherwise) (collectively, the "Total Payments") is
or will be subject to the excise tax ("Excise Tax") imposed under Section 4999
of the Code (or any successor to such Section), the Company shall pay to
Employee, prior to the time any Excise Tax is payable with respect to any of
such Total Payments (through withholding or otherwise), an additional amount (a
"Gross-Up Payment") that, after the imposition of all income, employment, excise
and other taxes, penalties and interest thereon, is equal to the sum of (i) the
Excise Tax on such Total Payments plus (ii) any penalty and interest assessments
associated with such Excise Tax. The determination of whether any portion of the
Total Payments is subject to an Excise Tax and, if so, the amount and time of
any Gross-Up Payment pursuant to this Section 4.5, shall be made by an
independent auditor (the "Auditor") jointly selected by Employee and the Company
and paid by the Company. If Employee and the Company cannot agree on the firm to
serve as the Auditor, then they shall each select an accounting firm and those
two firms shall jointly select the accounting firm to serve as the Auditor.
Unless Employee agrees otherwise in writing, the Auditor shall be a nationally
recognized United States public accounting firm that has not during the two
years preceding the date of its selection,
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acted in any way on behalf of the Company. Employee and the Company shall
cooperate with each other in connection with any proceeding or claim relating to
the existence or amount of any liability for Excise Tax. All reasonable expenses
relating to any such proceeding or claim (including attorneys' fees and other
expenses incurred by Employee in connection therewith) shall be paid by the
Company promptly upon demand by Employee, and any such payment shall be subject
to a Gross-Up Payment under this Section 4.5 in the event that Employee is
subject to Excise Tax on it.
4.6 Death or Disability. In the event of Employee's death or
"Disability" (as defined below) during the Term, Employee's employment shall
automatically cease and terminate as of the date of Employee's death or the
effective date of the Company's written notice to Employee of its decision to
terminate his employment by reason of his Disability, as the case may be. In the
case of termination of Employee's employment by reason of his death, Employee's
estate, or in the case of termination of Employee's employment by reason of his
Disability, Employee shall be entitled to the same payments and benefits, as
applicable, at the same times, as described in Section 4.2 for a termination of
employment by the Company without Cause; provided, however, for purposes of this
Section 4.6, the multiple referred to in the second paragraph of Section 4.2
shall be one (1). Any vested stock options and other equity awards held by
Employee at the time of his termination of employment due to death or Disability
shall remain exercisable in accordance with the original terms on the date of
grant through the maximum date stock rights may be extended under Section 409A
of the Code. Notwithstanding the foregoing or any provision of Section 4.6, the
Company's obligation to pay Employee the amounts called for in this Section 4.6
following termination of his employment by reason of his Disability, shall be
subject to offset and shall be reduced by any and all amounts paid to Employee
under any disability insurance policy paid or provided for by the Company. For
purposes of this Agreement, "Disability" shall mean the inability of Employee to
perform substantially all of his duties hereunder for any period of at least 180
consecutive days by reason of any physical or mental incapacity, provided that
for purposes of any payments made to Employee pursuant to this Section 4.6,
"Disability" shall have the meaning set forth in Section 409A of the Code or, to
the extent applicable, any more restrictive definition under the plan or policy
providing for the benefit in question.
5. No Duty to Mitigate
Employee shall have no obligation to seek other employment or to
otherwise mitigate the Company's obligations to him arising from the termination
of his employment, and no amounts paid or payable to Employee by the Company
hereunder shall be subject to offset for any remuneration to which Employee may
become entitled from any other source after his employment with the Company
terminates, whether attributable to subsequent employment, self-employment or
otherwise.
6. Termination Obligations
Employee hereby acknowledges and agrees that all books, manuals,
records, reports, notes, software, computer code, contracts, lists, blueprints,
and other documents, or materials, or copies thereof, and equipment (including
computers, keys, credit cards, cellular telephones, etc.) furnished to or
prepared by Employee in the course of or incident to Employee's
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employment, belong to the Company and shall be promptly returned to the Company
upon termination of Employee's employment.
7. Indemnification
The Company shall indemnify Employee and hold him harmless to the
fullest extent permitted by the Company's charter and by-laws in respect to any
and all actions, suits, proceedings, claims, demands, judgments, losses, damages
and reasonable out-of-pockets costs and expenses (including reasonable
out-of-pocket attorney's fees and expenses) resulting from Employee's good faith
performance of his duties and obligations with the Company or as a fiduciary of
any benefit plan of the Company. To the extent permitted by applicable laws, the
Company shall, within 30 days of presentation of invoices, reimburse Employee
for all reasonable out-of-pocket legal fees and disbursements reasonably
incurred by Employee in connection with such indemnifiable matter. In addition,
Directors' and Officers' insurance coverage for the benefit of Employee shall
cover Employee in respect of acts or omissions committed by Employee in good
faith in the performance of his duties and obligations during his employment
hereunder, whether claims are made during or within the period of six years
after the termination of Employee's employment hereunder.
8. Entire Agreement
The terms of this Agreement are intended by the parties to be the
final and exclusive expression of their agreement with respect to the subject
matter hereof and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement. This
Agreement supersedes any and all prior agreements, written or oral, between
Employee and the Company relating to the subject matter hereof, and all such
prior agreements are hereby terminated and of no further effect, including
without limitation that certain Change of Control Agreement, dated December 6,
2005, by and between Employee and the Company.
9. Amendments, Waivers
This Agreement may not be modified, amended, or terminated except by
an instrument in writing, signed by Employee and by a duly authorized
representative of the Company other than Employee. No failure to exercise and no
delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy or power provided
herein or by law or in equity.
10. Binding Agreement; Assignment
This Agreement shall inure to the benefit of and shall be binding
upon the Company, its successors and assigns and Employee and his heirs and
representatives. Neither party may assign any of its rights or obligations under
this Agreement without the prior written consent of the other party.
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11. Severability; Enforcement
If any provision of this Agreement, or the application thereof to
any person, place, or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this
Agreement and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect. Such court shall have the
authority to modify or replace the invalid or unenforceable term or provision
with one which most accurately represents the parties' intention with respect to
the invalid or unenforceable term or provision.
12. Governing Law and Remedies
The validity, interpretation, enforceability, and performance of
this Agreement shall be governed by and construed in accordance with the laws of
the State of New Jersey, without giving effect to New Jersey's choice of law
rules. Employee hereby irrevocably submits to the jurisdiction of the federal
and state courts within New Jersey for the determination of all disputes, suits
or proceedings arising out of or relating to this Agreement.
Employee acknowledges that a remedy at law for the breach or
threatened breach by Employee of the provisions of Section 1.3 and 1.4 would be
inadequate, and that such a breach would cause irreparable harm to the Company.
Employee therefore agrees that the Company shall be entitled to injunctive
relief in case of any such breach or threatened breach.
13. Notices
All notices or demands of any kind required or permitted to be given
by the Company or Employee to the other under this Agreement shall be given in
writing, addressed to the Company at the address set forth in the Preamble to
this Agreement and to Employee at his address as listed on the Company's payroll
and shall be personally delivered, telecopied or delivered by hand by a
nationally recognized courier service guaranteeing overnight delivery (in each
case receipted for), or mailed by certified mail, return receipt requested,
postage prepaid. Any such written notice shall be deemed received when
personally delivered or three (3) business days after its deposit in the United
States mail as specified above. Either party may change its address for notices
by giving notice to the other party in the manner specified in this Section.
14. Representations and Warranties
Each of Employee and the Company represents and warrants that he/it
is not restricted or prohibited, contractually or otherwise, from entering into
and performing his/its terms and covenants contained herein, and that his/its
execution and performance of this Agreement will not violate or breach any other
agreement between Employee and the Company, as the case may be, and any other
person or entity.
15. Section 409A of the Code
Employee and the Company hereby agree that it is the intention that
any payments or benefits provided under this Agreement comply in all respects
with Section 409A of the Code, and this Agreement shall be interpreted
accordingly. Employee and the Company hereby agree that, upon the Company's
initiative or upon Employee's reasonable request, the parties will amend
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this Agreement in accordance with Section 9 solely to the extent necessary and
appropriate to avoid adverse tax consequences pursuant to Section 409A of the
Code. Notwithstanding anything in this Agreement to the contrary, the Company
does not guarantee the tax treatment of any payments or benefits hereunder,
including without limitation pursuant to the Code, federal, state or local laws.
16. Counterparts
This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
XXXXXXX PHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
EMPLOYEE
/s/ Xxxxx Xxxxxx, Ph.D.
--------------------------------------------
Name: Xxxxx Xxxxxx, Ph.D.
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