EMPLOYMENT AGREEMENT
Exhibit
10.4
This
Agreement (this “Agreement”),
dated
as of June 2, 2004 (sometimes the “Effective Date”), by and between BROADWAY
THERAPEUTICS, INC., a Delaware corporation with principal executive offices
at
000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000 (the “Company”),
and
XXXXXX XXXXX.,
residing at 00 Xxxxxx Xxxxxx, Xxx. #0, Xxx Xxxx, XX 00000
(the
“Executive”).
W
I T N E S S E T H:
WHEREAS,
the Company desires to employ the Executive as President and Chief Executive
Officer of the Company, and the Executive desires to serve the Company in
those
capacities, upon the terms and subject to the conditions contained in this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Employment.
(a) Services.
The
Executive will be employed by the Company as its President and Chief Executive
Officer. The Executive will report to the Board of Directors of the Company
(the
"Board") and shall perform such duties as are consistent with your position
as
President and Chief Executive Officer (the
“Services”).
The
Executive agrees to perform such duties faithfully, to devote all of his
working
time, attention and energies to the business of the Company, and while he
remains employed, not to engage in any other business activity that is in
conflict with your duties and obligations to the Company.
(b) Acceptance.
Executive hereby accepts such employment and agrees to render the
Services.
2. Term.
The
Executive's employment under this Agreement (the "Term") shall commence as
of
the Effective Date and shall continue for a term of three (3) years, unless
sooner terminated pursuant to Section 9 of this Agreement. Notwithstanding
anything to the contrary contained herein, the provisions of this Agreement
governing protection of Confidential Information shall continue in effect
as
specified in Section 6 hereof and survive the expiration or termination hereof.
This Agreement may be renewed for additional one year terms if the Company
and
the Executive agree in writing prior to the expiration or other termination
of
the Term.
3. Best
Efforts; Place of Performance.
(a) The
Executive shall devote substantially all of his business time, attention
and
energies to the business and affairs of the Company and shall use his best
efforts to advance the best interests of the Company and shall not during
the
Term be actively engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage,
that
will interfere with the performance by the Executive of his duties hereunder
or
the Executive’s availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company.
(b) The
duties to be performed by the Executive hereunder shall be performed primarily
at the office of the Company in New York, New York, subject to reasonable
travel
requirements on behalf of the Company, or
such
other place as the Board may reasonably designate. Notwithstanding the
foregoing, the Company may be relocated to another city within the United
States
with consent of the Board.
4. Directorship.
The
Company shall use its best efforts to cause the Executive to be elected as
a
member of its Board of Directors throughout the Term and shall include him
in
the management slate for election as a director at every stockholders meeting
during the Term at which his term as a director would otherwise expire. The
Executive agrees to accept election, and to serve during the Term, as director
of the Company, without any compensation therefor other than as specified
in
this Agreement.
5. Compensation.
As full compensation for the performance by the Executive of his duties under
this Agreement, the Company shall pay the Executive as follows:
(a) Base
Salary.
The
Company shall pay Executive a salary (the “Base Salary”) equal to Two Hundred
Forty Thousand Dollars ($240,000.00) per year. Payment shall be made in
accordance with the Company’s normal payroll practices.
(b) Guaranteed
Bonus.
The
Company will pay Executive $22,000.00 upon execution of this Agreement. In
addition, the Company shall pay the Executive a bonus (the “Guaranteed Bonus”)
of Fifty Thousand ($50,000.00) Dollars within 30 days following each anniversary
of the date of the Effective Date during the Term, provided that the Executive
is employed hereunder on such anniversary date.
(c) Discretionary
Bonus. At the sole discretion of the Board of Directors of the Company, the
Executive shall receive an additional annual bonus (the “Discretionary
Bonus”) in an amount equal to up to 50% of his Base Salary, based upon
his performance on behalf of the Company during the prior year. The
Discretionary Bonus shall be payable either as a lump-sum payment or in
installments as determined by the Board of Directors of the Company in its
sole
discretion. In addition, the Board of Directors of the Company shall annually
review the Bonus to determine whether an increase in the amount thereof is
warranted.
(d) Withholding.
The
Company shall withhold all applicable federal, state and local taxes and
social
security and such other amounts as may be required by law from all amounts
payable to the Executive under this Section 5.
(e) Equity.
(i) Restricted
Shares.
As
additional compensation for the services to be rendered by the Executive
pursuant to this Agreement, the Company shall grant the Executive 158,000
shares
of Common Stock of the Company (the "Restricted Shares") representing five
percent (5%) of the outstanding Common Stock of the Company. The Restricted
Shares shall be held in escrow at Paramount BioCapital Investments, LLC.
On each
of the first two (2) anniversaries of this Agreement, Fifty-Two Thousand
Six
Hundred Sixty-Six (52,666) Restricted Shares shall vest, subject to the terms
of
this Agreement, and all vested shares will be released from the escrow account
to the Executive. On the third anniversary of this Agreement the remaining
Fifty-Two Thousand Six Hundred Sixty-Eight (52,668) Restricted Shares shall
vest, subject to the terms of this Agreement, and all vested shares will
be
released from the escrow account to the Executive. No Restricted Shares shall
vest until the first anniversary of this Agreement. In connection with such
grant, the Executive shall enter into the Company’s standard restricted stock
agreement and the escrow agreement and stock powers attached hereto as Exhibit
“A” which will incorporate the foregoing provisions regarding the lapsing of
the
risk of forfeiture with respect to such shares and the relevant provisions
contained in Section 10 below. No Restricted Shares granted hereunder shall
vest
unless the Executive is a current employee of the Company, unless specifically
stated herein.
(ii)
Anti-dilution protection. Until such time as the Company has
raised gross proceeds equal to Ten Million Dollars ($10,000,000) from the
issuance and sale of Equity Securities (as defined below), the Company shall
issue to the Executive a number of additional employee stock options (the
“Stock
Options”) sufficient to maintain Executive’s ownership percentage (if such
options were exercised) at least equal to five percent (5%) of the outstanding
Common Stock of the Company on a fully diluted basis. Once the Company has
raised Ten Million Dollars ($10,000,000) through the sale of its Equity
Securities, Executive shall be diluted pro rata along with all other holders
of
securities of the Company. As used herein “Equity Securities” shall mean shares
of Common Stock, preferred stock, options, warrants or other rights to purchase
Common Stock or securities or evidences of indebtedness convertible into
or
exchangeable for shares of Common Stock. The Stock Options shall be governed
by
the Company’s Employee Stock Option Plan and shall vest, if at all, in equal
proportions on each anniversary of this Agreement at the time of grant remaining
in the Term, subject in each case to the provisions of Section 10 below.
The
Stock Options shall be exerciseable for 10 years and shall have an exercise
price equal to the fair market value of the Common Stock upon the date of
each
applicable grant as determined by the Board in good faith. In connection
with
such grant, the Executive shall enter into the Company’s standard stock option
agreement which will incorporate the foregoing vesting schedule and the Stock
Option related provisions contained in Section 10
below.
(iii)
Equity Bonus. During the Term, if (i) the Executive is an
employee of the Company; (ii) the Company is traded on a recognized national
exchange or NASDAQ; and the market capitalization of the Company is in excess
of
Five Hundred Million Dollars ($500,000,000) for 3 consecutive trading days,
the
Company shall grant the Executive additional Stock Options in an amount equal
to
two percent (2%) of the then outstanding Common Stock of the Company at an
exercise price equal to the then current market price as determined in good
faith by the Board.
(f) Expenses.
The
Company shall reimburse the Executive for all normal, usual and necessary
expenses incurred by the Executive in furtherance of the business and affairs
of
the Company, including reasonable travel and entertainment, upon timely receipt
by the Company of appropriate vouchers or other proof of the Executive’s
expenditures and otherwise in accordance with any expense reimbursement policy
as may from time to time be adopted by the Company.
(g) Other
Benefits.
The
Executive shall be entitled to all rights and benefits for which he shall
be
eligible under any benefit or other plans (including, without limitation,
dental, medical, medical reimbursement and hospital plans, pension plans,
employee stock purchase plans, profit sharing plans, bonus plans and other
so-called "fringe" benefits) as the Company shall make available to its senior
executives from time to time.
(h)
Vacation. The Executive shall, during the Term, be entitled to a
vacation of three (3) weeks per annum, in addition to holidays observed by
the
Company. The Executive shall not be entitled to carry any vacation forward
to
the next year of employment and shall not receive any compensation for unused
vacation days.
6. Confidential
Information and Inventions.
(a) The
Executive recognizes and acknowledges that in the course of his duties he
is
likely to receive confidential or proprietary information owned by the Company,
its affiliates or third parties with whom the Company or any such affiliates
has
an obligation of confidentiality. Accordingly, during and after the Term,
the
Executive agrees to keep confidential and not disclose or make accessible
to any
other person or use for any other purpose other than in connection with the
fulfillment of his duties under this Agreement, any Confidential and Proprietary
Information (as defined below) owned by, or received by or on behalf of,
the
Company or any of its affiliates. “Confidential and Proprietary Information”
shall include, but shall not be limited to, confidential or proprietary
scientific or technical information, data, formulas and related concepts,
business plans (both current and under development), client lists, promotion
and
marketing programs, trade secrets, or any other confidential or proprietary
business information relating to development programs, costs, revenues,
marketing, investments, sales activities, promotions, credit and financial
data,
manufacturing processes, financing methods, plans or the business and affairs
of
the Company or of any affiliate or client of the Company. The Executive
expressly acknowledges the trade secret status of the Confidential and
Proprietary Information and that the Confidential and Proprietary Information
constitutes a protectable business interest of the Company. The Executive
agrees: (i) not to use any such Confidential and Proprietary Information
for
himself or others; and (ii) not to take any Company material or reproductions
(including but not limited to writings, correspondence, notes, drafts, records,
invoices, technical and business policies, computer programs or disks) thereof
from the Company’s offices at any time during his employment by the Company,
except as required in the execution of the Executive’s duties to the Company.
The Executive agrees to return immediately all Company material and
reproductions (including but not limited, to writings, correspondence, notes,
drafts, records, invoices, technical and business policies, computer programs
or
disks) thereof in his possession to the Company upon request and in any event
immediately upon termination of employment.
(b) Except
with prior written authorization by the Company, the Executive agrees not
to
disclose or publish any of the Confidential and Proprietary Information,
or any
confidential, scientific, technical or business information of any other
party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after his employment with the Company.
(c) The
Executive agrees that all inventions, discoveries, improvements and patentable
or copyrightable works (“Inventions”)
initiated, conceived or made by him, either alone or in conjunction with
others,
during the Term shall be the sole property of the Company to the maximum
extent
permitted by applicable law and, to the extent permitted by law, shall be
“works
made for hire” as that term is defined in the United States Copyright Act (17
U.S.C.A., Section 101). The Company shall be the sole owner of all patents,
copyrights, trade secret rights, and other intellectual property or other
rights
in connection therewith. The Executive hereby assigns to the Company all
right,
title and interest he may have or acquire in all such Inventions; provided,
however, that the Board of Directors of the Company may in its sole discretion
agree to waive the Company’s rights pursuant to this Section 6(c) with respect
to any Invention that is not directly or indirectly related to the Company’s
business. The Executive further agrees to assist the Company in every proper
way
(but at the Company’s expense) to obtain and from time to time enforce patents,
copyrights or other rights on such Inventions in any and all countries, and
to
that end the Executive will execute all documents necessary:
(i) to
apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection
in
any country throughout the world and when so obtained or vested to renew
and
restore the same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(d) The
Executive acknowledges that while performing the services under this Agreement
the Executive may locate, identify and/or evaluate patented or patentable
inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which
may
be of potential interest to the Company or one of its affiliates (the “Third
Party Inventions”). The Executive understands, acknowledges and agrees that all
rights to, interests in or opportunities regarding, all Third-Party Inventions
identified by the Company, any of its affiliates or either of the foregoing
persons’ officers, directors, employees (including the Executive), agents or
consultants during the Employment Term shall be and remain the sole and
exclusive property of the Company or such affiliate and the Executive shall
have
no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company.
(e) Executive
agrees that he will promptly disclose to the Company, or any persons designated
by the Company, all improvements, Inventions made or conceived or reduced
to
practice or learned by him, either alone or jointly with others, during the
Term.
(f) The
provisions of this Section 6 shall survive any termination of this
Agreement.
7. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) The
Executive understands and recognizes that his services to the Company are
special and unique and that in the course of performing such services the
Executive will have access to and knowledge of Confidential and Proprietary
Information (as defined in Section 6) and the Executive agrees that, during
the
Term and for a period of twelve (12) months thereafter, he shall not in any
manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity
(“Person”), enter into or engage in any business which is
engaged in any business directly or indirectly competitive with the business
of
the Company, either as an individual for his own account, or as a partner,
joint
venturer, owner, executive, employee, independent contractor, principal,
agent,
consultant, salesperson, officer, director or shareholder of a Person in
a
business competitive with the Company within the geographic area of the
Company’s business, which is deemed by the parties hereto to be worldwide. The
Executive acknowledges that, due to the unique nature of the Company’s business,
the loss of any of its clients or business flow or the improper use of its
Confidential and Proprietary Information could create significant instability
and cause substantial damage to the Company and its affiliates and therefore
the
Company has a strong legitimate business interest in protecting the continuity
of its business interests and the restriction herein agreed to by the Executive
narrowly and fairly serves such an important and critical business interest
of
the Company. For purposes of this Agreement, the Company shall be deemed
to be
actively engaged on the date hereof in the development and commercialization
of
drugs, including therapeutics and vaccines for the treatment of humans.
Notwithstanding the foregoing, nothing contained in this Section 7(a) shall
be
deemed to prohibit the Executive from (i) acquiring or holding, solely for
investment, publicly traded securities of any corporation, some or all of
the
activities of which are competitive with the business of the Company so long
as
such securities do not, in the aggregate, constitute more than four percent
(4%)
of any class or series of outstanding securities of such
corporation.
(b) During
the Term and for a period of 12 months thereafter, the Executive shall not,
directly or indirectly, without the prior written consent of the
Company:
(i) solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any such affiliate; or hire for any purpose any
employee of the Company or any affiliate or any employee who has left the
employment of the Company or any affiliate within one year of the termination
of
such employee’s employment with the Company or any such affiliate or at any time
in violation of such employee’s non-competition agreement with the Company or
any such affiliate; or
(ii) solicit
or accept employment or be retained by any Person who, at any time during
the
term of this Agreement, was an agent, client or customer of the Company or
any
of its affiliates where his position will be related to the business of the
Company or any such affiliate; or
(iii) solicit
or accept the business of any agent, client or customer of the Company or
any of
its affiliates with respect to products, services or investments similar
to
those provided or supplied by the Company or any of its affiliates.
(c) The
Company and the Executive each agree that both during the Term and at all
times
thereafter, neither party shall directly or indirectly disparage, whether
or not
true, the name or reputation of the other party or any of its affiliates,
including but not limited to, any officer, director, employee or shareholder
of
the Company or any of its affiliates.
(d) In
the
event that the Executive breaches any provisions of Section 6 or this Section
7
or there is a threatened breach, then, in addition to any other rights which
the
Company may have, the Company shall (i) be entitled, without the posting
of a
bond or other security, to injunctive relief to enforce the restrictions
contained in such Sections and (ii) have the right to require the Executive
to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments and other benefits (collectively “Benefits”)
derived or received by the Executive as a result of any transaction constituting
a breach of any of the provisions of Sections 6 or 7 and the Executive hereby
agrees to account for and pay over such Benefits to the Company.
(e) Each
of
the rights and remedies enumerated in Section 7(d) shall be independent of
the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any of the covenants
contained in this Section 7, or any part of any of them, is hereafter construed
or adjudicated to be invalid or unenforceable, the same shall not affect
the
remainder of the covenant or covenants or rights or remedies which shall
be
given full effect without regard to the invalid portions. If any of the
covenants contained in this Section 7 is held to be invalid or unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power
to
reduce the duration and/or area of such provision and in its reduced form
such
provision shall then be enforceable. No such holding of invalidity or
unenforceability in one jurisdiction shall bar or in any way affect the
Company’s right to the relief provided in this Section 7 or otherwise in the
courts of any other state or jurisdiction within the geographical scope of
such
covenants as to breaches of such covenants in such other respective states
or
jurisdictions, such covenants being, for this purpose, severable into diverse
and independent covenants.
(f) In
the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 6 or this Section 7, the Executive shall not urge as a defense
that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available. The Executive agrees that
he
shall not raise in any proceeding brought to enforce the provisions of Section
6
or this Section 7 that the covenants contained in such Sections limit his
ability to earn a living.
(g) The
provisions of this Section 7 shall survive any termination of this
Agreement.
8. Representations
and Warranties by the Executive.
The
Executive hereby represents and warrants to the Company as follows:
(i) Neither
the execution or delivery of this Agreement nor the performance by the Executive
of his duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant or obligation under (whether immediately, upon
the
giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which
he
is bound.
(ii) The
Executive has the full right, power and legal capacity to enter and deliver
this
Agreement and to perform his duties and other obligations hereunder. This
Agreement constitutes the legal, valid and binding obligation of the Executive
enforceable against him in accordance with its terms. No approvals or consents
of any persons or entities are required for the Executive to execute and
deliver
this Agreement or perform his duties and other obligations
hereunder.
9. Termination.
The
Executive’s employment hereunder shall be terminated upon the Executive’s death
and may be terminated as follows:
(a) The
Executive’s employment hereunder may be terminated by the Board of Directors of
the Company for Cause. Any of the following actions by the Executive shall
constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Executive to perform his duties
hereunder;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the
effect
of injuring, in a material way (whether financial or otherwise and as determined
in good-faith by a majority of the Board of Directors of the Company), the
business or reputation of the Company or any of its affiliates, including
but
not limited to, any officer, director, executive or shareholder of the Company
or any of its affiliates;
(iii) Willful
misconduct by the
Executive in respect of the duties or obligations of the Executive under
this
Agreement, including, without limitation, insubordination with respect to
directions received by the Executive from the Board of Directors of the
Company;
(iv) The
Executive’s indictment of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea);
(v) The
determination by the
Company, after a reasonable and good-faith investigation by the Company
following a written allegation by another employee of the Company, that the
Executive engaged in some form of harassment prohibited by law (including,
without limitation, age, sex or race discrimination), unless the Executive’s
actions were specifically directed by the Board of Directors of the
Company;
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach
by the Executive
of any of the provisions of Sections 6, 7 or 8 of this Agreement;
and
(viii) Breach
by the Executive
of any provision of this Agreement other than those contained in Sections
6, 7
or 8 which is not cured by the Executive within thirty (30) days after notice
thereof is given to the Executive by the Company.
(b) The
Executive’s employment hereunder may be terminated by the Board of Directors of
the Company due to the Executive’s Disability. For purposes of this Agreement, a
termination for “Disability”
shall
occur (i) when the Board of Directors of the Company has provided a written
termination notice to the Executive supported by a written statement from
a
reputable independent physician to the effect that the Executive shall have
become so physically or mentally incapacitated as to be unable to resume,
within
the ensuing twelve (12) months, his employment hereunder by reason of physical
or mental illness or injury, or (ii) upon rendering of a written termination
notice by the Board of Directors of the Company after the Executive has been
unable to substantially perform his duties hereunder for 90 or more consecutive
days, or more than 120 days in any consecutive twelve month period, by reason
of
any physical or mental illness or injury. For purposes of this Section 9(b),
the
Executive agrees to make himself available and to cooperate in any reasonable
examination by a reputable independent physician retained by the
Company.
(c) The
Executive’s employment hereunder may be terminated by the Board of Directors of
the Company (or its successor) upon the occurrence of a Change of Control.
For
purposes of this Agreement, “Change
of Control”
means
(i) the acquisition, directly or indirectly, following the date hereof by
any
person (as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding securities if such person or his or its affiliate(s) do not own
in
excess of 50% of such voting power on the date of this Agreement, or (ii)
the
future disposition by the Company (whether direct or indirect, by sale of
assets
or stock, merger, consolidation or otherwise) of all or substantially all
of its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
(d) The
Executive’s employment hereunder may be terminated by the Executive for Good
Reason. For purposes of this Agreement, “Good
Reason”
shall
mean any material breach of Section 5 of this Agreement that is not cured
by the
Company within 30 days after receipt of written notice by Executive to the
Company of such material breach.
(e) The
Executive’s employment may be terminated by the Company for any reason or no
reason.
10. Compensation
upon Termination.
(a) If
the Executive’s
employment is terminated as a result of his death or Disability, the Company
shall pay to the Executive or to the Executive’s estate, as applicable, his
Base Salary and any accrued but unpaid Bonus and expense reimbursement amounts
through the date of his Death or Disability. All Restricted Shares and Stock
Options that are scheduled to vest on the next succeeding anniversary of
the
Effective Date shall be accelerated and deemed to have vested as of the
termination date. All Restricted Shares and Stock Options that have not vested
(or been deemed pursuant to the immediately preceding sentence to have vested)
as of the date of termination shall be forfeited to the Company as of such
date.
Stock Options that have vested as of the Executive’s termination shall remain
exercisable for 90 days following such termination.
(b) If
the Executive’s
employment is terminated by the Board of Directors of the Company for Cause,
then the Company shall pay to the Executive his Base Salary through the date
of
his termination and the Executive shall have no further entitlement to any
other
compensation or benefits from the Company. All Restricted Shares and Stock
Options that have not vested as of the date of termination shall be forfeited
to
the Company as of such date. Stock Options that have vested as of the
Executive’s termination shall remain exercisable for 90 days following such
termination.
(c) If
the Executive’s
employment is terminated by the Company (or its successor) upon the occurrence
of a Change of Control and on the date of termination pursuant to this Section
10(c) the fair market value of the Company’s Common Stock, in the aggregate, as
determined in good faith by the Board on the date of such Change of Control,
is
less than $40,000,000, then the Company (or its successor, as applicable)
shall
continue to pay to the Executive his Base Salary and benefits for a period
of
six months following such termination as well as any expense reimbursement
amounts owed through the date of termination All Restricted Shares and Stock
Options that are scheduled to vest by the end of the calendar year in which
such
termination occurs shall be accelerated and deemed to have vested as of the
termination date. All Restricted Shares and Stock Options that have not vested
(or been deemed pursuant to the immediately preceding sentence to have vested)
as of the date of termination shall be forfeited to the Company as of such
date.
Stock Options that have vested as of the Executive’s termination shall remain
exercisable for 90 days following such termination.
(d) If
the Executive’s
employment is terminated by the Company other than as a result of the
Executive’s death or Disability and other than for reasons specified in Sections
10(b) or (c), then the Company shall (i) continue to pay to the Executive
his
Base Salary for a period of twelve months following such termination, (ii)
pay
the Executive any expense reimbursement amounts owed through the date of
termination, and (iii) ) all Restricted Shares and Stock Options that are
scheduled to vest during the Term shall be accelerated and deemed to have
vested
as of the termination date. The Company’s obligation under clauses (i) and (ii)
in the preceding sentence shall be subject to offset by any amounts otherwise
received by the Executive from any employment during the one year period
following the termination of his employment. All Stock Options that are
scheduled to vest during the Term shall be accelerated and deemed to have
vested
as of the termination date. Any Stock Options that have vested as of the
date of
the Executive’s termination shall remain exercisable for a period of 90
days.
(e) This
Section 10 sets forth the only obligations of the Company with respect to
the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided in
Section 10.
(f) Upon
termination of the Executive’s employment hereunder for any reason, the
Executive shall be deemed to have resigned as director of the Company, effective
as of the date of such termination.
(g) The
provisions of this Section 10 shall survive any termination of this
Agreement.
11. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Sections 6 or 7 hereof), or regarding the interpretation thereof,
shall be finally settled by arbitration conducted in New York City in accordance
with the rules of the American Arbitration Association then in effect before
a
single arbitrator appointed in accordance with such rules. Judgment upon
any
award rendered therein may be entered and enforcement obtained thereon in
any
court having jurisdiction. The arbitrator shall have authority to grant any
form
of appropriate relief, whether legal or equitable in nature, including specific
performance. For the purpose of any judicial proceeding to enforce such award
or
incidental to such arbitration or to compel arbitration and for purposes
of
Sections 6 and 7 hereof, the parties hereby submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York County,
or
the United States District Court for the Southern District of New York, and
agree that service of process in such arbitration or court proceedings shall
be
satisfactorily made upon it if sent by registered mail addressed to it at
the
address referred to in paragraph (g) below. The
costs
of such arbitration shall be borne proportionate to the finding of fault
as
determined by the arbitrator. Judgment on the arbitration award may be entered
by any court of competent jurisdiction.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and
assigns.
(d) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign its rights, together with
its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing,
but
only by a written agreement signed by the parties hereto.
(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed
as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver
of
any term or condition of this Agreement on the part of either party shall
be
effective for any purpose whatsoever unless such waiver is in writing and
signed
by such party.
(g) All
notices, requests, consents and other communications, required or permitted
to
be given hereunder, shall be in writing and shall be delivered personally
or by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth
on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date
of
deposit in the United States mails. Either party may designate another address,
for receipt of notices hereunder by giving notice to the other party in
accordance with this paragraph (g).
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject
matter
hereof, including the Employment Agreement dated June 1, 2004 between the
Parties. No representation, promise or inducement has been made by either
party
that is not embodied in this Agreement, and neither party shall be bound
by or
liable for any alleged representation, promise or inducement not so set
forth.
(i) As
used
in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified
Person.
(j) The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and
the
same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
| BROADWAY THERAPEUTICS, INC. | ||
| |
|
|
| By: | ||
|
Name: Xxxxxxx Xxxxxx, M.D., Ph.D. |
||
| Title: President | ||
| EXECUTIVE | ||
| |
|
|
| By: | ||
|
Name: Xxxxxx Xxxxx |
||
AMENDMENT,
dated
June 1, 2005 (this “Amendment”),
to
the Employment Agreement dated June 2, 2004 (the “Employment
Agreement”),
by
and between Innovive Pharmaceuticals, Inc. (f/k/a Broadway Therapeutics,
Inc.),
a Delaware corporation (the “Company”)
and
Xxxxxx Xxxxx (the “Executive”).
WHEREAS,
the
Executive and the Company desire to amend the Executive’s Employment Agreement
with respect to (i) the vesting of the Executive’s Restricted Shares (as defined
in the Employment Agreement) pursuant to Section 5(e)(i) in the Employment
Agreement and (ii) the Executive’s compensation upon termination pursuant to
Section 10 of the Employment Agreement, as specifically set forth in this
Amendment.
NOW,
THEREFORE,
it is
therefore hereby agreed by and between the parties as follows:
1. Equity.
Notwithstanding
anything to the contrary contained in Section 5(e)(i) of the Employment
Agreement, all Restricted Shares held by the Executive shall vest as of
the date
of the first anniversary of the Employment Agreement.
2. Compensation
upon Termination.
Sections
10(c) and 10(d) of the Employment Agreement are hereby deleted in their
entirety.
3. Acknowledgement
by the Executive.
The
Executive hereby acknowledges that the terms and provisions contained in
this
Amendment represent a valuable right being given to the Executive by the
Company
and constitute a material portion of the consideration received by the
Executive
in exchange for the non-competition, non-solicitation and non-disparagement
provisions set forth in Section 7 of the Employment Agreement, which remain
in
full force and effect.
4. Effectiveness.
This
Amendment shall become effective as of the date hereof.
5. No
Other Amendments.
Except
as
expressly set forth herein, the Employment Agreement remains in full force
and
effect in accordance with its terms and nothing contained herein shall
be deemed
to be a waiver, amendment, modification or other change of any term, condition
or provision of the Employment Agreement.
6. References
to the Employment Agreement.
From
and
after the date hereof, all references in the Employment Agreement and any
other
documents to the Employment Agreement shall be deemed to be references
to the
Employment Agreement after giving effect to this Amendment.
7. Headings.
The
headings used herein are for convenience of reference only and shall not
affect
the construction of, nor shall they be taken into consideration in interpreting,
this Amendment.
8. Counterparts.
This
Amendment may be executed in any number of separate counterparts, each
of which
shall be an original and all of which taken together shall constitute one
and
the same instrument. Facsimile counterpart signatures to this Amendment
shall be
acceptable and binding.
9. Applicable
Law.
This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
[SIGNATURE
PAGE FOLLOWS]
*
*
*
IN
WITNESS WHEREOF,
the
parties have duly executed this Amendment as of the date first above written.
|
By:
/s/
Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Secretary
|
EXECUTIVE
By:
/s/
Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
|
