EMPLOYMENT AGREEMENT WITH STEPHEN BECKMAN
EXHIBIT
10.4.11
EMPLOYMENT
AGREEMENT WITH
XXXXXXX
XXXXXXX
This
Employment Agreement (“Agreement”) is entered into as of the 1st
day
of September,
2005
(the “Effective Date”), by and between Xxxxxxx
Xxxxxxx
(the
“Executive”)
and
Inyx,
Inc.
(the
“Company”
or the
“Employer”),
or
together the Parties.
RECITALS:
Whereas,
the Company desires to employ the Executive to provide personal services
to the
Company, and also wishes to provide the Executive with certain compensation
and
benefits in return for such services; and
Whereas,
the Executive wishes to be employed by the Company and provide personal services
to the Company in return for certain compensation and benefits.
Now,
therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as
follows:
1. EMPLOYMENT
1.1. GENERAL.
The Company hereby employs the Executive in the senior position of Vice
President, Sales & Marketing and Commercial Development, whose
responsibilities include directing the specialty sales force for Intal® and
Tilade® under the Company’s strategic alliance with King Pharmaceuticals, Inc.,
and also serving as one of the Company’s three senior executives on the
six-member Alliance Management Committee of King and the Company, as well
as
assisting the Company’s overall commercial growth in the pharmaceutical
industry, and the Company may assign other reasonable corporate duties to
the
Executive from time to time. The Executive agrees to perform and discharge
such
duties well and faithfully, and to be subject to the supervision and direction
of Xxxx Xxxxxxx, Chairman and Chief Executive Officer of the Company (“CEO”),
and Xxx X. Xxxxx, Executive Vice President, or their designee or successor.
The
Executive acknowledges that this appointment involves the affairs of the
Company
and its subsidiaries in Puerto Rico, Toronto, Canada and in the United Kingdom.
Accordingly, while the executive will be operationally
based in
the Philadelphia, PA area, the Executive will be required to regularly travel
to
and conduct duties across the United States and in other countries on behalf
of
the Company and its subsidiaries, affiliates and strategic
alliances.
1.2. TIME
DEVOTED TO POSITION. The
Executive, during the Employment Term, shall devote his full business time,
attention and skills to the business and affairs of the Employer.
1.3. CERTIFICATIONS.
Whenever the Executive is required by law, rule or regulation or requested
by
any governmental authority or by the Company or the Company’s auditors to
provide certifications with respect to financial statements or filings with
the
Securities and Exchange Commission or any other governmental authority, the
Executive shall sign such certifications as may be reasonably requested by
such
officers, with such exceptions as the Executive deems necessary to make such
certifications accurate and not misleading.
2. COMPENSATION
AND BENEFITS
2.1. SALARY.
At all times the Executive is employed hereunder, Employer shall pay to
Executive, and Executive shall accept, as full compensation for any and all
services rendered and to be rendered by him during such period to Employer
in
all capacities, including, but not limited to, all services that may be rendered
by him to any of Employer’s existing subsidiaries, entities and organizations
hereafter formed, organized or acquired by Employer, directly or indirectly
(each, a “Subsidiary” and collectively, the “Subsidiaries”), the following:
(i) a base salary at the annual rate of $175,000 or at such increased
rate
as the Board (through its Compensation Committee), in its sole discretion,
may
hereafter from time to time grant to Executive, subject to adjustments in
accordance with Section 2.2 hereof (as so adjusted, the “Base Salary”); and
(ii) any additional bonus and the benefits set forth in Sections 2.3,
2.4 and 2.5 hereof. The Base Salary shall be payable in accordance with the
regular payroll practices of Employer applicable to senior executives, less
such
deductions as shall be required to be withheld by applicable law and regulations
or otherwise.
2.2. CASH
BONUSES. Subject to Section 3.3 hereof, the Executive shall be entitled
to
an annual cash bonus of up to thirty percent (30%) of the Executive’s annual
base salary, with the bonus amount based upon performance criteria achieved
by
the Company and the Executive during a twelve (12) month period that are
mutually agreed upon by the Company and the Executive at the outset of the
12-month period. In addition, for directing increases in the annual combined
net
sales for Intal® and Tilade® above an $18,500,000 annual base line (the “Base
Line”), the Company will pay the Executive a one percent (1%) cash commission
on
the amount above the Base Line that the Company retains as its portion of
net
sales (which amounts to sixty-five percent (65%) of any sales above the Base
Line).
2.3. STOCK
OPTIONS. The Executive shall be entitled to participate in stock option and
similar equity plans of Employer. In connection herewith, the Executive will
be
granted 300,000 options to purchase shares of common stock of the Company
with
an exercise price equal to the closing price of the Company’s common stock on
September
1,
2005 on
the following basis: 100,000 options to be vested on August
31,
2006;
100,000 options to be vested on August
31,
2007;
and 100,000 options to be vested on August
31,
2008;
with all options issued on terms and conditions set forth in the Stock Option
Plan of the Company and a Stock Option Agreement with the Executive containing
these terms. The Executive shall be entitled to any additional annual stock
option grants provided at the discretion of the Board.
2.4. EXECUTIVE
BENEFITS
2.4.1. EXPENSES.
Employer
shall promptly reimburse the Executive for properly documented expenses that
he
may reasonably incur in connection with the performance of his duties including
but not limited to, expenses for such items as business entertainment, business
travel, hotel and meals that are in accordance with Company policy and approved
by the Chairman of the Board and Chief Executive Officer of the Company.
The
Company shall also pay the Executive a monthly car allowance of $1,000 and
the
Executive shall be eligible for a Blackberry cell phone for Company-related
use.
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2.4.2. RELOCATION
EXPENSE. The company shall reimburse the Executive for one-time, documented
moving expenses from Long Valley, NJ to the Philadelphia, PA area, up to
a cap
of $10,000.
2.4.3. EMPLOYER
PLANS. Executive shall be entitled to participate in such employee benefit
plans
and programs as Employer may from time to time generally offer or provide
to
executive officers of Employer or its Subsidiaries, including, but not limited
to, participation in health and accident, medical and dental plans including
any
such benefit plans offered by the Subsidiaries where applicable, and profit
sharing and retirement plans.
2.4.4. VACATION.
The
Executive shall be entitled to one
(1)
week paid vacation that can be taken between September 1, 2005 and December
31,
2005. Starting in calendar year 2006, Executive shall be entitled to
four (4)
weeks paid vacation per calendar year. Unused vacation days in any year will
have to be taken by March 31st of the following year or will continue to
accrue
for the benefit of the Executive and payable on termination of
employment.
3. EMPLOYMENT
TERM; TERMINATION
3.1. EMPLOYMENT
TERM. The Executive’s employment hereunder shall commence on September
1,
2005
and, except as otherwise provided in Section 3.2 hereof, shall continue
until August 31,
2008
(the “Initial Term”). Thereafter, this Agreement shall automatically be renewed
for successive one-year periods commencing on the 1st
day of
September
2008 and
of each subsequent year, unless either (i) Employer and Executive agree to
a new
Employment Agreement, or (ii) Executive or Employer shall have provided a
Notice
of Termination (as defined in Section 3.4.2 hereof) in respect of
its or
his election not to renew the Employment Term (in accordance with Sections
3.3.2
and 3.3.3 hereof). Upon non-renewal of the Employment Term pursuant to this
Section 3.1 or termination pursuant to Sections 3.2.1 through
3.2.5
hereof, inclusive, Executive shall be released from any duties hereunder
(except
as set forth in Section 4 hereof) and the obligations of Employer
to
Executive shall be as set forth in Section 3.3 hereof only.
3.2. EVENTS
OF
TERMINATION. The Employment Term shall terminate upon the occurrence of any
one
or more of the following events:
3.2.1. DEATH.
In
the event of Executive’s death, the Employment Term shall terminate on the date
of his death.
3.2.2. WITHOUT
CAUSE BY EXECUTIVE. Executive may terminate the Employment Term at any time
during such Term for any reason whatsoever by giving a Notice of Termination
to
Employer. The Date of Termination pursuant to this Section 3.2.2 shall
be
effective the Notice of Termination is given, unless an extended period is
agreed to by the parties.
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3.2.3. DISABILITY.
In the event of Executive’s Disability (as hereinafter defined), Employer may,
at its option, terminate the Employment Term by giving a Notice of Termination
to Executive. The Notice of Termination shall specify the Date of Termination,
which date shall not be earlier than thirty (30) days after the Notice of
Termination is given. For purposes of this Agreement, “Disability” means the
inability of Executive for ninety (90) days in any twelve (12) month period
to
substantially perform his duties hereunder as a result of a physical or mental
illness, all as determined in good faith by the Board.
3.2.4. CAUSE.
Employer may, at its option, terminate the Employment Term for “Cause” based on
objective factors determined in good faith by the Board of Directors as set
forth in a Notice of Termination to Executive specifying the reasons for
termination and the failure of the Executive to cure the same within thirty
(30)
days after Employer shall have given the Notice of Termination; PROVIDED,
HOWEVER, that in the event the Board in good faith determines that the
underlying reasons giving rise to such determination cannot be cured, then
the
thirty (30) day period shall not apply and the Employment Term shall terminate
on the date the Notice of Termination is given. For purposes of this Agreement,
“Cause” shall mean (i) Executive’s conviction of, guilty or no contest plea
to a felony (ii) an act or omission by Executive in connection with
his
employment that constitutes fraud, criminal misconduct, breach of fiduciary
duty, dishonesty, gross negligence, malfeasance, willful misconduct or other
conduct that is materially harmful or detrimental to Employer; (iii) a
material breach by Executive of this Agreement and the failure of the Executive
to cure the same within thirty (30) days; (iv) continuing failure
to
perform such proper duties as are assigned to Executive in accordance with
this
Agreement and with law and good business practice, other than a failure
resulting from a Disability; or (v) Executive is found to have been
involved in regulatory violations, criminal misconduct, dishonesty or other
willful misconduct while previously employed by other employers.
3.2.5. EMPLOYER
RIGHT TO TERMINATE. Employer may terminate this agreement at the end of its
Initial Term, provided that Employer shall pay Executive in accordance with
payment described in Section 3.3.2 hereof. In addition, Employer may terminate
Executive for any reason, with or without cause, prior to end of the Initial
Term, by paying Executive the payment described in Section 3.3.2 hereof.
In
consideration of such payment, and assuming all other payments required hereby
have been paid, Executive agrees to provide Employer a general release of
any
claims relating to such termination or otherwise.
3.3. CERTAIN
OBLIGATIONS OF EMPLOYER FOLLOWING TERMINATION OF THE EMPLOYMENT TERM. Following
termination of the Employment Term under the circumstances described below,
Employer shall pay to Executive or his estate, as the case may be, the following
compensation and provide the following benefits in full satisfaction and
final
settlement of any and all claims and demands that Executive now has or hereafter
may have hereunder against Employer. In connection with Executive’s receipt of
any or all monies and benefits to be received pursuant to this Section 3.3,
Executive shall not have a duty to seek subsequent employment during the
period
in which he is receiving severance payments and the Severance Amount (as
defined
in Section 3.3.2 hereof) shall not be reduced solely as a result of
Executive’s subsequent employment by an entity other than Employer.
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3.3.1. FOR
CAUSE. In the event that the Employment Term is terminated by Employer for
Cause, Employer shall pay to Executive, in a single lump-sum, an amount equal
to
any unpaid but earned Base Salary through the Date of Termination. Any payment
made in accordance with this Section 3.3.1 shall be made at a convenient
date no later than fourteen (14) days after the termination date.
3.3.2. WITHOUT
CAUSE BY EMPLOYER; ELECTION NOT TO RENEW BY EMPLOYER. In
the
event that the Employment Term is terminated by Employer or Employer elects
not
to renew this Agreement pursuant to Section 3.2.5 hereof, it shall pay to
Executive, subject to Executive’s continued compliance with the terms of Section
4 hereof, any unpaid but earned Base Salary through the effective Date of
Termination PLUS, an amount equal to twelve (12) months of Base Salary in
effect
at such applicable time (the “Severance Amount”). Additionally, any Bonuses that
are due to the Executive shall be paid by Employer to Executive. HOWEVER,
if
termination of Executive is due to or after a Change of Control (as defined
in
Section 3.4.3 hereof) of the Employer, the Severance Amount is increased
to
twenty-four (24) months Base Salary in effect at such applicable time, and
any
non-vested stock options granted to Executive shall become fully vested at
time
of such termination date. Any payments made in accordance with this Section
3.3.2 shall be made in a lump-sum payment at a convenient date no later than
fourteen (14) days after the effective termination date. In consideration
of
such payment, and assuming all other payments required hereby have been paid,
Executive agrees to provide Employer a general release of any claims relating
to
such termination or otherwise.
3.3.3. WITHOUT
CAUSE BY EXECUTIVE; ELECTION NOT TO RENEW BY EXECUTIVE. In
the
event that the Employment Term is terminated by Executive pursuant to
Section 3.2.2 hereof or Executive elects not to renew this Agreement
at any
time pursuant to Section 3.1 hereof, Employer shall pay to Executive
Base
Salary through the effective Date of Termination. In addition, Employer shall
pay Executive, in a single lump-sum, an amount equal to any unpaid but earned
Bonuses through the effective Date of Termination, PROVIDED that the Executive
provides Employer with ninety (90) days advance notification in writing of
the
intent to terminate or not to renew this Agreement.
3.3.4. CHANGE
OF
EXECUTIVE BASE XXXXXXXX.Xx
the
event that Employer elects to relocate Executive from operational base in
the
Philadelphia, PA and the Executive declines to relocate and decides to terminate
this Employment Agreement, Employer shall pay to Executive, subject to
Executive’s continued compliance with the terms of Section 4 hereof, any unpaid
but earned Base Salary through the effective Date of Termination PLUS, the
Severance Amount of twelve (12) months of Base Salary in effect at such
applicable time. Additionally, any Bonuses that are due to the Executive
shall
be paid by Employer to Executive, and any non-vested stock options granted
to
Executive shall become fully vested at time of termination date. Any payments
made in accordance with this Section 3.3.4 shall be made in a lump-sum payment
at a convenient date no later than fourteen (14) days after the effective
termination date. In consideration of such payment, and assuming all other
payments required hereby have been paid, Executive agrees to provide Employer
a
general release of any claims relating to such termination or
otherwise.
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3.3.5. DEATH
OR
XXXXXXXXXX.Xx
the
event that the Employment Term is terminated by reason of Executive’s Disability
pursuant to Section 3.2.3 or death pursuant to Section 3.2.1
hereof,
Employer shall pay to Executive or his estate, in a single lump sum, an amount
equal to any unpaid but earned Bonuses and Base Salary through the effective
Date of Termination.
3.3.6. POST-EMPLOYMENT
TERM BENEFITS.
In the
event of termination for any reason, Employer shall reimburse Executive for
any
unpaid expenses pursuant to Section 2.5.1 hereof. If Executive is
terminated after December 31, 2005, pursuant to Sections 3.2.3 or
3.2.5
hereof, Employer shall pay, on behalf of Executive, for a period equal to
three
(3) months from the effective Date of Termination (the “Benefits Period”),
subject to Executive’s continued compliance with the terms of Section 4
hereof, all medical, dental, health and accident, and disability plans and
programs other than stock options in which Executive was entitled to participate
immediately prior to the effective date of termination, PROVIDED that
Executive’s continued participation is legally possible under the general terms
and provisions of such plans and programs. In the event that Executive’s
participation in any such plan or program is barred, Employer, at its sole
cost
and expense shall use its commercially reasonable efforts to provide Executive
with benefits substantially similar to those that Executive was entitled
to
receive under such plans and programs for the remainder of the Benefits Period.
If Executive is terminated for CAUSE pursuant to Section 3.2.4 hereof,
Employer shall pay for no additional benefits after effective date of
termination.
3.3.7. STOCK
OPTIONS. Executive shall be entitled to receive the Employer stock options
set
forth in Section 2.4 hereof and detailed in the attached Stock Option
Agreement.
3.4. DEFINITIONS.
3.4.1. “NOTICE
OF TERMINATION” DEFINED. “Notice of Termination” means a written notice that
indicates the specific termination provision relied upon by Employer or
Executive and, except in the case of termination pursuant to Sections 3.2.1
or 3.2.2 hereof, that sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employment
Term
under the termination provision so indicated.
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3.4.2. “DATE
OF
TERMINATION” DEFINED. “Date of Termination” means such date as the Employment
Term is expired if not renewed or terminated in accordance with
Sections 3.1 or 3.2 hereof.
3.4.3. “CHANGE
OF CONTROL” DEFINED. A “Change of Control” of Employer means (i) the approval by
the stockholders of the Company of the sale, lease, exchange or other transfer
(other than pursuant to internal reorganization) by the Company of all or
substantially all of its respective assets to a single purchaser or to a
group
of associated purchasers; (ii) the first purchase of shares of equity securities
of the Company pursuant to a tender offer or exchange offer (other than an
offer
by the Company) for at least fifty (50%) percent of the equity securities
of the
Company; (iii) the approval by the stockholders of the Company of an agreement
for a merger or consolidation in which the Company shall not survive as an
independent, publicly-owned corporation; (iv) the acquisition (including
by
means of a merger) by a single purchaser or a group of associated purchasers
of
securities of the Company from the Company or any third party representing
fifty
(50%) percent or more of the combined voting power of the Company’s then
outstanding equity securities in one or a related series of transactions
(other
than pursuant to an internal reorganization or transfers of the Executive’s
interests).
4. CONFIDENTIALITY
AND NONSOLICITATION; PROPERTY RIGHTS
4.1. “CONFIDENTIAL
INFORMATION” DEFINED. “Confidential Information” means any and all information
(oral or written) relating to Employer or any Subsidiary or any entity
controlling, controlled by, or under common control with Employer or any
Subsidiary or any of their respective activities, including, information
not
previously disclosed to the public or to the trade by the Company’s management,
or otherwise in the public domain, with respect to the Company’s products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information, business
plans, prospects or opportunities, but shall exclude any information which
(i) is or becomes available to the public or is generally known in
the
industry or industries in which the Company operates other than as a result
of
disclosure by the Executive in violation of his agreements under this Section
or
(ii) the Executive is required to disclose under any applicable laws,
regulations or directives of any government agency, tribunal or authority
having
jurisdiction in the matter or under subpoena or other process of law. The
Executive confirms that all restrictions in this Section are reasonable and
valid and waives all defenses to the strict enforcement thereof.
4.2. NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION. The Executive shall not at any time (other than
as
may be required or appropriate in connection with the performance by him
of his
duties hereunder), directly or indirectly, use, communicate, disclose or
disseminate any Confidential Information in any manner whatsoever (except
as may
be required under legal process by subpoena or other court order).
4.3. CERTAIN
ACTIVITIES. The Executive shall not, while employed by the Company and for
a
period of one (1) year following the Date of Termination, directly or
indirectly, hire, offer to hire, entice away or in any other manner persuade
or
attempt to persuade any officer, employee, agent, lessor, lessee, licensor,
licensee or supplier of Employer or any of its Subsidiaries to discontinue
or
alter his or its relationship with Employer or any of its
Subsidiaries.
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4.4. NON-COMPETITION.
The Executive shall not, while employed by the Company and for a period of
one
(1) year following the Date of Termination, engage or participate, directly
or
indirectly (whether as an officer, director, employee, partner, consultant,
shareholder, lender or otherwise), in any business that manufactures, markets
or
sells products that directly competes with any product of the Employer that
is
significant to the Employer’s business based on sales and/or profitability of
any such product as of the Date of Termination. Nothing herein shall prohibit
Executive from being a passive owner of less than 1% of any publicly-traded
class of capital stock of any entity directly engaged in a competing
business.
4.5. PROPERTY
RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to information, inventions
and
discoveries or any interest in any copyright and/or other property right
developed, made or conceived of by Executive, either alone or with others,
at
any time during his employment by Employer and whether or not within working
hours, arising out of such employment or pertinent to any field of business
or
research in which, during such employment, Employer is engaged or (if such
is
known to or ascertainable by Executive) is considering engaging, Executive
hereby agrees:
(a) that
all
such information, inventions and discoveries or any interest in any copyright
and/or other property right, whether or not patented or patentable, shall
be and
remain the exclusive property of the Employer;
(b) to
disclose promptly to an authorized representative of Employer all such
information, inventions and discoveries or any copyright and/or other property
right and all information in Executive’s possession as to possible applications
and uses thereof;
(c) not
to
file any patent application relating to any such invention or discovery except
with the prior written consent of an authorized officer of Employer (other
than
Executive);
(d) that
Executive hereby waives and releases any and all rights Executive may have
in
and to such information, inventions and discoveries, and hereby assigns to
Executive and/or its nominees all of Executive’s right, title and interest in
them, and all Executive’s right, title and interest in any patent, patent
application, copyright or other property right based thereon. Executive hereby
irrevocably designates and appoints Employer and each of its duly authorized
officers and agents as his agent and attorney-in-fact to act for him and
on his
behalf and in his stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance and enforcement
of
any such patent, patent application, copyright or other property right with
the
same force and effect as if executed and delivered by Executive;
and
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(e) at
the
request of Employer, and without expense to Executive, to execute such documents
and perform such other acts as Employer deems necessary or appropriate, for
Employer to obtain patents on such inventions in a jurisdiction or jurisdictions
designated by Employer, and to assign to Employer or its designee such
inventions and any and all patent applications and patents relating
thereto.
4.6. INJUNCTIVE
RELIEF. The parties hereby acknowledge and agree that (a) Employer
will be
irreparably injured in the event of a breach by Executive of any of his
obligations under this Section 4; (b) monetary damages will
not be an
adequate remedy for any such breach; (c) Employer will be entitled
to
injunctive relief, in addition to any other remedy which it may have, in
the
event of any such breach; and (d) the existence of any claims that
Executive may have against Employer, whether under this Agreement or otherwise,
will not be a defense to the enforcement by Employer of any of its rights
under
this Section 4.
4.7. NON-EXCLUSIVITY
AND SURVIVAL. The covenants of the Executive contained in this Section 4
are in addition to, and not in lieu of, any obligations that Executive may
have
with respect to the subject matter hereof, whether by contract, as a matter
of
law or otherwise, and such covenants and their enforceability shall survive
any
termination of the Employment Term by either party and any investigation
made
with respect to the breach thereof by Employer at any time.
5. MISCELLANEOUS
PROVISIONS.
5.1. SEVERABILITY.
If, in any jurisdiction, any term or provision hereof is determined to be
invalid or unenforceable, (a) the remaining terms and provisions hereof
shall be unimpaired; (b) any such invalidity or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction; and (c) the invalid or unenforceable term or provision
shall, for purposes of such jurisdiction, be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing
the
intention of the invalid or unenforceable term or provision.
5.2. EXECUTION
IN COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and
by the different parties hereto in separate counterparts, each of which shall
be
deemed to be an original but all of which taken together shall constitute
one
and the same agreement (and all signatures need not appear on any one
counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the parties hereto and delivered
to each
of the other parties hereto.
5.3. NOTICES.
All notices, requests, demands and other communications hereunder shall be
in
writing and shall be deemed duly given upon receipt when delivered by hand,
overnight delivery or telecopy (with confirmed delivery), or three (3) business
days after posting, when delivered by registered or certified mail or private
courier service, postage prepaid, return receipt requested, as
follows:
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If
to
Employer, to:
Inyx,
Inc.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Chairman
and Chief Executive Officer
Facsimile
No.: 000-000-0000
If
to
Executive, to:
Xxxxxxx
Xxxxxxx
000
Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxx,
XX 00000
Facsimile
No.: 000-000-0000
Or
to
such other address(es) as a party hereto shall have designated by notice
in
writing to the other parties hereto.
5.4. AMENDMENT.
No provision of this Agreement may be modified, amended, waived, or discharged
in any manner except by a written instrument executed by both the Employer
and
the Executive.
5.5. ENTIRE
AGREEMENT. This Agreement and, with respect to Section 3.3.6 hereof,
Executive’s Stock Option Agreements and the governing stock option plans,
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersede all prior agreements and understandings
of
the parties hereto, oral or written.
5.6. APPLICABLE
LAW. This Agreement shall be governed by and construed in accordance with
the
laws of the State of New York applicable to contracts made and to be wholly
performed therein, without regard to principles of conflicts of
laws.
5.7. HEADINGS.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
5.8. BINDING
EFFECT; SUCCESSORS AND ASSIGNS. The Executive may not delegate any of his
duties
or assign his rights hereunder. This Agreement shall inure to the benefit
of,
and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Employer shall require
any
successor (whether direct or indirect and whether by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Employer, by an agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform if no such succession had taken place.
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5.9. WAIVER,
ETC. The failure of either of the parties hereto to, at any time, enforce
any of
the provisions of this Agreement shall not be deemed or construed to be a
waiver
of any such provision, nor to in any way affect the validity of this Agreement
or any provision hereof or the right of either of the parties hereto thereafter
to enforce each and every provision of this Agreement. No waiver of any breach
of any of the provisions of this Agreement shall be effective unless set
forth
in a written instrument executed by the party against whom or which enforcement
of such waiver is sought, and no waiver of any such breach shall be construed
or
deemed to be a waiver of any other or subsequent breach.
5.10. CAPACITY,
ETC. Executive and Employer hereby represent and warrant to the other that,
as
the case may be: (a) he or it has full power, authority and capacity
to
execute and deliver this Agreement, and to perform his or its obligations
hereunder; (b) such execution, delivery and performance shall not
(and with
the giving of notice or lapse of time or both would not) result in the breach
of
any agreements or other obligations to which he or it is a party or he or
it is
otherwise bound; and (c) this Agreement is his or its valid and binding
obligation in accordance with its terms.
5.11. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively in arbitration conducted in New York, New York
in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any court having
jurisdiction. Punitive damages shall not be awarded. In any arbitration
proceeding, the party determined to be the prevailing party shall be entitled
to
receive, in addition to any other award, its attorneys’ fees and expenses of the
proceeding.
IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the parties
hereto as of the date first above written.
| INYX, INC. | |||
| By: /s/ Xxx X. Xxxxx | |||
|
Xxx
X. Xxxxx
Executive
Vice President
|
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|
By:
/s/ Xxxxxxx Xxxxxxx
|
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|
XXXXXXX XXXXXXX |
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