EX-10.1
EMPLOYMENT AGREEMENT, dated July 10, 2007 (the "AGREEMENT"), between
Synovics Pharmaceuticals, Inc. (the "COMPANY"), and Xxxxx Xxxxxxx
(the "EMPLOYEE").
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The Company wishes to employ Employee, and Employee wishes to be employed
by the Company, pursuant to the terms set forth in this Agreement.
The parties desire to set forth the terms upon which the Employee will be
employed by the Company.
The parties hereby agree as follows:
1. WORKING RELATIONSHIP.
1.01. EMPLOYMENT. Commencing on the date of this Agreement (the "EFFECTIVE
DATE"), the Company shall employ the Employee, and the Employee shall serve the
Company, as Executive Vice President and Chief Financial Officer ("CFO"). In
such capacity (a) Employee shall report to, and follow the directions of, the
Board of Directors (the "BOARD") and the Chief Executive Officer of Synovics
Pharmaceuticals, Inc., a Nevada corporation (the "COMPANY"), (b) perform and
carry out such duties and responsibilities that are reasonably consistent with
Employee's position and responsibilities and this Agreement, and (c) perform and
discharge such additional duties and responsibilities as may be determined from
time to time by the Chief Executive Officer ("CEO").
1.02. FULL TIME. Commencing on the date of this Agreement, the Employee
shall devote his full and exclusive business time, as provided in Section 6.01
of this Agreement, and energies to the performance of his duties to the Company
pursuant to this Agreement, which duties shall be performed diligently and in a
professional manner. Nothing in this Agreement shall prevent the Employee from
devoting reasonable time and attention to personal, public and charitable
affairs, as long as such activities do not interfere with the effective
performance of his duties hereunder.
1.03. TERM. The Employee's employment hereunder shall commence as of the
Effective Date and except as otherwise provided in Section 5 hereof, shall
continue for three (3) years following the date hereof (the "INITIAL TERM").
Thereafter, this Agreement shall continue, together with any such subsequent
employment term(s), (being also referred to herein as the "TERM"), unless the
Employee or Company shall have provided a written notice of termination electing
not to renew the Term to the other party at least sixty (60) days prior to such
scheduled expiration. Upon the expiration or non-renewal of the Term pursuant to
this Section 1.03 or its termination pursuant to Section 5 hereof, inclusive,
the Employee shall be released from all duties hereunder (except as set forth in
Sections 5 and 6 hereof) and the obligations of Company to Employee shall be as
set forth in Section 5 hereof only.
2. SALARY AND BONUSES.
2.01. SALARY. The Company shall pay a base salary to the Employee at a rate
of US$265,000 per calendar year (pro-rated for periods of less than a full
calendar year) (the "BASE SALARY"), payable to the Employee in bi-weekly
installments in accordance with the Company's standard salary payment policies.
The Company agrees that Employee's Base Salary shall increase fifteen thousand
dollars ($15,000.00) commencing on the thirteenth (13th) month following the
Effective Date and shall increase an additional fifteen thousand dollars
($15,000.00) commencing on the twenty-fifth (25th) month following the Effective
Date. Any subsequent salary increases mutually agreed upon by the Company and
the Employee (each in their discretion) shall be documented in writing, and
shall be deemed to amend this Section 2.01.
2.02. BONUSES. (a) Following the end of each fiscal year during the Term,
wholly subject to the discretion of the Board (or any committee of the Board
delegated authority over employee compensation matters) based upon the
Employee's performance during such fiscal year and/or other criteria as the
Board may deem appropriate, including the Company's earnings, financial
condition, rate of return on equity and compliance with regulatory
requirements., the Company may award the Employee a bonus (the "BONUS") payable
in cash or in shares of common stock, par value $0.001 of the Company (the
"COMMON STOCK"), at the option of the Company, for the relevant fiscal year
(pro-rated for periods of less than a full fiscal year). If any portion of the
Bonus is paid in shares of Common Stock, the Company shall pay Employee from the
Bonus an amount in cash sufficient to cover any personal Federal, State and
local tax liability arising out of the payment of any portion of the Bonus paid
in shares of Common Stock, assuming the highest marginal tax rate payable by a
resident of the State of residence of the Employee ("TAX LIABILITY PAYMENT"), it
being understood that in no event will the Employee receive a combined payment
of cash, shares of Common Stock and Tax Liability Payment that is greater than
the amount the Employee would have otherwise received if payment of the Bonus
was made solely in cash. The Company does agree that Employee shall receive a
guaranteed minimum bonus of ten percent (10%) of Base Salary during the first
two (2) years of the Agreement. Notwithstanding anything to the contrary in this
Section 2.02 or Section 3, no annual bonus shall be deemed to have accrued or
otherwise to have become payable for the purposes of this Agreement unless this
Agreement shall not have been terminated prior to the end of the fiscal year in
respect of which such bonus was to be awarded.
(b) PAYMENT DATES. Each bonus payable pursuant to Section 2.02(a)
shall paid on an annual basis, within seventy-five (75) days of the close of
each fiscal year, provided, however, in the event that the audited financial
statements of the Company with respect to a fiscal year are not completed within
such seventy-five (75) day period, the Board shall make a good faith estimate of
the amount owing pursuant to Section 2.02(b), if any, payable within such
seventy-five day period (the "GOOD FAITH PAYMENT"). The Good Faith Payment shall
be subject to (i) the Company's right to recover any overpayment, and (ii) the
Employee's right to receive an additional payment, each upon completion of
audited financials with respect to such fiscal year. Accordingly, in the case of
overpayment to the Employee, the Employee shall be obligated to pay the Company
an amount equal to the Good Faith Payment, less the amount owed pursuant to
Section 2.02(a), within ten (10) business days of receipt of written notice from
the
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Company of such overpayment; and, similarly, in the case of an underpayment to
the Employee, the Company shall pay the Employee an amount equal to the amount
owed pursuant to Section 2.02(a), less the Good Faith Payment, within ten (10)
business days of the Board's final acceptance of audited financial statements
from the Company's auditors.
(c) Wholly subject to the discretion of the Board (or any committee of
the Board delegated authority over employee compensation matters) based upon the
Employee's performance during such fiscal year and/or other criteria as the
Board may deem appropriate, including the Company's earnings, financial
condition, rate of return on equity and compliance with regulatory
requirements., the Company, in its sole discretion, may grant to Employee
options to purchase shares of Common Stock or other equity securities of the
Company pursuant to any equity compensation plan of the Company which the
Employee is eligible to participate.
2.03 STOCK OPTIONS. Effective upon the execution and delivery hereof, the
Company has granted to Employee options (the "OPTIONS") to acquire an aggregate
of 600,000 shares of Common Stock, exercisable for seven years at the initial
exercise price of $2.00 per share, subject to adjustment for stock splits, stock
dividends, reverse stock splits, and recapitalizations. The Options shall vest
in three equal annual installments commencing on the first anniversary of the
date of this Agreement. The shares of Common Stock issuable upon exercise of the
Options and against payment as provided therein shall be validly authorized and
issued, fully paid, and non-assessable. Notwithstanding other provisions of this
Section 2.03, if employee is Terminated Without Cause per Section 5.04(b) or
there is a Change of Control per Section 5.03 prior to the end of the third
anniversary of the Agreement, any and all remaining Options not previously
vested shall be deemed to have been vested as of that date.
3. EXPENSES; BENEFITS.
3.01. EXPENSES. The Employee shall be entitled to reimbursement by the
Company for all reasonable travel, lodging and other expenses actually incurred
by the Employee in connection with the performance of his duties, against
receipts or other appropriate written evidence of such expenditures as required
by the appropriate Internal Revenue Service regulations or by the Company and
such expenses shall be approved by the Company's Chief Executive Officer as a
condition to reimbursement thereof. The Employee acknowledges that the Company's
policies regarding the documentation of expenses for which reimbursement is
sought may change from time to time, and the Employee agrees that he will comply
with the Company's reasonable documentation requirements.
3.02. BENEFITS. The Employee shall be entitled to participate in all health
insurance and other benefit plans maintained by the Company for its employees,
subject to applicable eligibility requirements and, in the case of benefit or
incentive plans pursuant to which the grant or award of any benefit is at the
discretion of the Board or other person, to the discretion of the Board or such
other person. Nothing in the foregoing shall limit or restrict the Company's
discretion to amend, revise or terminate any benefit or plan without notice to
or consent of the Employee.
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4. VACATION AND PERSONAL DAYS. The Employee shall, upon reasonable notice
to the Company, be entitled to up to twenty (20) business days of paid vacation
and personal days during each calendar year, pro rated for periods of less than
a full calendar year; PROVIDED, that the timing and duration of any particular
vacation or personal day shall not interfere with the business of the Company or
the effective performance of the Employee's duties hereunder, as reasonably
determined in good faith by the Company's Chief Executive Officer or the Board.
5. TERMINATION OF AGREEMENT. The Employee's employment shall terminate upon
the occurrence of any one or more of the following events:
5.01 DEATH. In the event of Employee's death, Employee's employment shall
terminate on the date of his death.
5.02 TERMINATION BY THE COMPANY. The Company may, at its option, terminate
Employee's Employment for any reason, including for "Cause" or no reason
whatsoever by giving a written notice to the Employee that indicates the
specific reasons for termination relied upon by the Company. Such notice shall
specify the date of termination, which date shall not be earlier than thirty
(30) days after such notice is given. For purposes of this Agreement, "CAUSE"
shall mean (i) the Employee's indictment of a felony or a crime involving
dishonesty, act of moral turpitude, fraud (including securities fraud) or
embezzlement, (i) commission of an act of willful misconduct or gross negligence
by the Employee resulting in a material loss to the Company, (ii) the Employee's
willful or grossly negligent commission of an act which constitutes a
Competitive Activity, or (iii) a material breach by the Employee of any covenant
or obligation under this Agreement or written policy of the Company (unless such
policy conflicts with this Agreement), unless cured within thirty (30) days
following the delivery of written notice thereof to the Employee; (iv) the
Employee's habitual or willful neglect or disregard of directives of the Board
of Directors, unless cured within thirty (30) days following the delivery of
written notice thereof to the Employee; (v) unauthorized appropriation of a
material business opportunity of the Company by the Employee, including securing
any personal profit in connection with any transaction entered into on behalf of
the Company; (vi) misappropriation by the Employee of the Company's funds or
property that has a material adverse affect on the business or operations of the
Company; (vii) any finding by the Securities and Exchange Commission pertaining
to the Employee which could reasonably be expected to impair or impede Company's
ability to maintain itself as a publicly-traded company; or (viii) any material
misstatement is provided by the Employee for inclusion in any regulatory report
or public filing of the Company. For purposes hereof, whether or not the
Employee has committed an act of the type referred to in clauses (i) through
(ix) above will be determined by the Board in its reasonable, good faith
discretion; PROVIDED, HOWEVER, that Employee will be given reasonable notice and
the opportunity to be heard prior to any such Board determination. Any
termination by the Company of the Employee's employment with the Company that
does not meet the criteria set forth in this definition (determined as set forth
in the immediately preceding sentence) shall be deemed to be without Cause for
purposes of this Agreement.
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5.03 EMPLOYEE TERMINATION. The Employee may, at his option, terminate his
employment for any reason, including for "Good Reason" or no reason whatsoever
by giving a written notice to the Company that indicates the specific reasons
for termination relied upon by the Employee. Such notice shall specify the date
of termination, which date shall not be earlier than thirty (30) days after such
notice is given. For purposes of this Agreement, "GOOD REASON" shall mean (i)
any material breach by the Company of this Agreement that is not cured by the
Company within thirty (30) days after written notice specifying in reasonable
detail the nature of such material breach is provided to the Company by the
Employee or (ii) a Change of Control. For purposes hereof, whether or not the
Employee has Good Reason to terminate his employment by the Company pursuant to
clause (i) above will be determined by the Board in its reasonable, good faith
discretion, based upon the facts known to the Board at the relevant time. Any
termination by the Employee of his employment with the Company that does not
meet the criteria set forth in this definition (determined as set forth in the
immediately preceding sentence) shall be deemed to be without Good Reason for
purposes of this Agreement. For purposes of this Agreement, "CHANGE OF CONTROL"
shall mean (i) the acquisition of Company pursuant to a consolidation of Company
with, or merger of Company with or into, any other person or entity with the
result of which the holders of the Company's voting stock immediately prior to
such transaction hold less than fifty (50%) percent of the combined voting power
after giving effect to such transaction; (ii) the sale of all or substantially
all of the assets or capital stock of Company to any other person or entity;
(iii) securities of Company representing greater than fifty (50%) percent of the
combined voting power of Company's then outstanding voting securities are
acquired by a person or entity, or group of related persons or entities, in a
single transaction or series of related transactions, or (iv) the voting in of
an independent slate of Directors for the Board of Directors, not put forth by
the existing Board, which results in a change in the majority and gives
effective control of Directors on the Board by the new independent slate.
5.04 OBLIGATIONS OF COMPANY FOLLOWING TERMINATION OF THE TERM. Following
termination of Employee's employment under the respective circumstances
described below, Company shall pay to Employee 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
Employee now has or hereafter may have hereunder against Company. The Employee
acknowledges that any non-renewal or expiration of this Agreement shall not be
deemed an event of termination that would trigger any obligations of Company
pursuant to this Section 5.
(a) TERMINATION FOR CAUSE BY THE COMPANY OR TERMINATION BY EMPLOYEE
FOR ANY REASON OTHER THAN GOOD REASON. In the event that Employee's employment
is terminated by Company for Cause pursuant to Section 5.02 or the Employee
terminates his employment with the Company for any reason pursuant to Section
5.03, (i) the Company shall pay to the Employee, payable in accordance with the
Company's regular payroll practices, an amount equal to any unpaid but earned
Base Salary through the date of termination, (ii) the Company shall reimburse
Employee for any unpaid expenses pursuant to Section 3.01 hereof; PROVIDED, THAT
the Employee has provided the Company within forty-five (45) days of the date of
termination receipts or other appropriate written evidence of such expenditures
as required by the
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appropriate Internal Revenue Service regulations or by the Company and such
expenses had been approved by the Company's Chief Executive Officer, and (iii)
any unpaid Bonus approved by the Board (or any committee of the Board delegated
authority over employee compensation matters).
(b) TERMINATION WITHOUT CAUSE BY THE COMPANY OR DEATH OF THE EMPLOYEE
OR TERMINATION BY THE EMPLOYEE FOR GOOD REASON. In the event that Employee's
employment is terminated by Company pursuant to Section 5.02 hereof for any
reason other than for "Cause" or by reason of Employee's death pursuant to
Section 5.01 hereof or by the Employee for "Good Reason" pursuant to Section
5.03, (i) the Company shall pay to the Employee, subject to the Employee's
continued compliance with the terms of Sections 6 hereof, and delivery of a
Release (as provided below), the Severance Amount, (ii) the Company shall pay to
the Employee, payable in accordance with the Company's regular payroll
practices, an amount equal to any unpaid but earned Base Salary through the date
of termination and (iii) the Company shall reimburse Employee for any unpaid
expenses pursuant to Section 3.01 hereof; PROVIDED, THAT the Employee has
provided the Company within forty-five (45) days of the date of termination
receipts or other appropriate written evidence of such expenditures as required
by the appropriate Internal Revenue Service regulations or by the Company and
such expenses had been approved by the Company's Chief Executive Officer. For
purposes hereof, "SEVERANCE AMOUNT" shall mean the Base Salary in effect for a
period of twelve months. Any payments made in accordance with this Section
5.04(b) shall be made in accordance with Company's regular payroll practices and
shall be subject to Employee's compliance with Section 6 of this Agreement. The
breach by Employee of any provision of Section 6 shall result in a forfeiture of
any unpaid portion of the Severance Amount. It shall be a condition to payment
of the Severance Amount that the Employee (or his estate) shall execute and
deliver a release, in form and upon terms satisfactory to the Company, of any
claims and causes of action against the Company (the "RELEASE"), and that all
time periods imposed by law permitting cancellation or revocation of such
release by the Employee shall have passed or expired.
5.05 OTHER REMEDIES. Nothing in this Section 5 shall limit or restrict
Company from pursuing or obtaining any other remedies that may be available to
it in law, contract or otherwise, in addition to the remedies set forth herein,
in response to any improper conduct of the Employee, or conduct in violation of
the parties' agreements.
5.06 TERMINATION OF COMPENSATION. Except as otherwise required by
non-waivable provisions of applicable law, the Employee's right to compensation
payable pursuant to Sections 2, 3 and 5 shall, except with respect to amounts
which have accrued and are payable pursuant to Sections 2 and 3 as of the
termination of this Agreement, terminate upon termination of this Agreement, and
no further amounts shall accrue or be payable under this Agreement pursuant to
such Sections.
5.07 TERMINATION OF EMPLOYMENT; RESIGNATION OF AUTHORITY. The Employee's
employment by the Company shall terminate simultaneously with the termination of
this Agreement for any reason. Effective as of the termination of employment for
any reason, the Employee shall resign, in writing, from all other positions then
held by the Employee with the Company and its affiliates, if any.
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5.08 RETURN OF PROPERTY. Promptly following the termination of this
Agreement by any party for any reason, the Employee and his legal or personal
representatives shall promptly return to the Company at its principal offices
any and all information, documents and other materials relating to or containing
Proprietary Information (as defined in Section 6) which are, and any and all
other property of the Company which is, in the Employee's possession, care or
control, regardless of whether such materials were created or prepared by the
Employee and regardless of the form of, or medium containing, such property,
information, documents or other materials.
6. COVENANTS OF EMPLOYEE.
6.01 DEVOTION TO DUTIES. The Employee shall devote his full time and
energies to the business, operations and activities of the Company and shall not
engage in outside business interests or activities if such activities materially
interfere with the performance of his duties.
6.02 NON-DISCLOSURE AND ASSIGNMENT OF PROPRIETARY INFORMATION. The Employee
acknowledges that all Proprietary Information is the exclusive property of the
Company or the party that disclosed or delivered such information to the
Company. The Employee shall not use or disclose any Proprietary Information,
directly or indirectly, except as authorized by the Company in writing, or as
needed in connection with the Employee's assigned duties, and the Employee shall
promptly notify the Company of any unauthorized release of Proprietary
Information. The Employee agrees that all Proprietary Information developed as a
direct or indirect result of his efforts on behalf of the Company during any
period of the Employee's employment with the Company shall be and shall remain
the exclusive property of the Company, and that the Employee shall have no
ownership interests therein. To the extent the Employee may have any interest in
such developed Proprietary Information, the Employee agrees to assign, and
hereby does assign and transfer, any such rights, title and interest to the
Company. The Employee agrees to cooperate fully with the Company in taking such
actions as may be necessary to allow the Company to secure patent, copyright,
trademark, trade name or other protections for any such Proprietary Information.
6.03 NON-COMPETITION.
(a) During the Term, the Employee shall not, directly or indirectly,
participate, engage or assist in any Competitive Activities.
(b) From the end of the Term until the first anniversary of the end of the
Term, the Employee shall not, directly or indirectly, participate, engage or
assist in any Competitive Activities in the United States of America; provided
that if the Company does not renew the Term beyond the Initial Term or any
subsequent Term, then this Section 6.03(b) shall not apply.
6.04 NON-SOLICITATION. Prior to the first anniversary of the end of the
Term, the Employee shall not directly or indirectly solicit, recruit or hire any
(a) Person employed or retained as consultants or other independent contractors
by the Company or its subsidiaries or affiliates, (b) customers, clients,
strategic partners, vendors or suppliers of the Company or any of its
subsidiaries or affiliates, or (c) any other Person with whom or which the
Company or any of its subsidiaries or affiliates maintains a commercial
relationship, or encourage any such Person or entity described above to
terminate or adversely alter their relationship with the Company
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6.05 NON-DETRIMENTAL CONDUCT. Prior to the first anniversary of the end of
the Term, the Employee shall not, directly or indirectly, engage in any action,
activity or course of conduct (including the making of any unprivileged oral or
written statement) which is, or is reasonably likely to be, detrimental in any
material respect to the business, operations, activities or reputation of the
Company.
6.06 DEFINITIONS. For purposes of this Section 6 the following terms shall
have the following definitions:
(a) "COMPETITIVE ACTIVITIES" means the following activities or
businesses: (i) developing, producing, marketing, selling or distributing drugs
of any type or dietary supplements or services that compete with the business,
operations or activities of the Company or any of its subsidiaries or
affiliates; (ii) actively soliciting or endeavoring to cause any Person who or
which is or was a customer, supplier, service provider or vendor of the Company
or any of its subsidiaries or affiliates at any time during the Term to
terminate or adversely alter the volume or nature of their business relationship
with the Company or any of its subsidiaries or affiliates (including without
limitation, to use any products or services that compete with the business,
operations or activities of the Company or any of its subsidiaries or affiliates
if offered by anyone other than the Company or any of its subsidiaries or
affiliates); and (iii) causing or assisting any Person or entity in any way to
do, or attempt to do, anything prohibited by clauses (i) or (ii) above, directly
or indirectly.
(b) "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or any other entity, including a
governmental entity or any department, agency or political subdivision thereof.
(c) "PROPRIETARY INFORMATION" means any information of a confidential
or proprietary nature pertaining to the Company or any of its subsidiaries or
affiliates, or to the business, operations or activities of the Company or any
of its subsidiaries or affiliates, whether or not reduced to writing, that the
Employee, during the Term, knows of, has access to or develops in whole or in
part and includes, without limitation, the following: (i) any patents,
copyrights, trademarks, trade names, trade secrets, know-how, inventions or
discoveries (whether patentable or not), or any application or license for any
of the foregoing, whether acquired on or prior to the Effective Date or
subsequently thereafter; (ii) any plans, strategies (including economic and
market research selection and analysis strategies and data), processes, tactics,
techniques, policies and resolutions; (iii) any information regarding litigation
or negotiations; (iv) any financial information, cost and performance data and
any debt arrangements, equity ownership or securities transaction information;
(v) any technical information, technical drawings and designs, computer
software, source and object code; (vi) any personnel information, personnel
lists, resumes, personnel data, organizational structure, compensation and
performance evaluations; (vii) any customer, vendor or supplier information;
(viii) any information regarding the existence or terms of any agreement or
relationship between the Company or any of its subsidiaries or affiliates and
any other party; (ix) any other information or material relating to the business
or activities of the Company which is not generally known to others engaged in
similar businesses or activities; and (x) any of the information or material
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described herein that is the property of any other Person or firm which has
revealed or delivered such information or material to the Company or any of its
subsidiaries or affiliates pursuant to a relationship (contractual or otherwise)
with the Company or any of its subsidiaries or affiliates. "Proprietary
Information" shall not include any information or material of the type described
herein to the extent that such information or material (A) is or becomes
publicly known through no act on your part in violation of this Agreement, (B)
is required to be used or disclosed by applicable law or governmental order or
process, or (C) is known to or developed by the Employee prior to his employment
by the Company. The failure to xxxx any of the Proprietary Information as
confidential shall not affect its status as Proprietary Information.
6.07 IRREPARABLE HARM. The Employee acknowledges the valuable and unique
nature of the Proprietary Information and Company's relationships with its
customers, prospective customers and employees, and admits that a breach of any
of the covenants contained in this Section 6 may cause the Company irreparable
harm, for which money damages may be inadequate or difficult or impossible to
ascertain. The Employee therefore waives (and is estopped from asserting in a
court of law or equity) any argument that the breach, or threatened breach, of
any of the covenants contained in this Section 6 does not constitute irreparable
harm for which an adequate remedy at law is unavailable. Nothing contained in
this Section 6 or elsewhere in this Agreement shall be construed as prohibiting
the Company from pursuing any other remedies available at law or in equity for a
breach, or threatened breach, by the Employee of any of the covenants contained
in this Section 6.
7. SECTION 409A. Notwithstanding any provision of this Agreement to the
contrary, if the Employee is a "specified employee" as defined in Section 409A
of the Internal Revenue Code of 1986, as amended and the regulations issued or
to be issued by the Department of the Treasury thereunder ("SECTION 409A"), the
Employee shall not be entitled to any payments upon a termination of employment
until the earlier of (i) the date which is six months after the termination of
employment for any reason other than death or (ii) the date of Employee's death
and the first such payment shall equal the sum of all payments that would have
been made from the date of termination to the date of such first payment were it
not for the delay in payment for Section 409A purposes.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement among the
parties with respect to the matters set forth herein, and supersedes all prior
agreements or understandings among the parties with respect to such matters.
9. DESCRIPTIVE HEADINGS. Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
10. NOTICES. All notices, requests and other communications to any party
hereunder shall be in writing, and shall be sufficient if delivered personally
or sent by telecopy (with confirmation of receipt) or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
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If to the Employee: Xxxxxx Xxxxxxx
Xxxx 00,
00 Xxxxxx Xxxx,
Xxxxxx, Xxxxxxx X00 0XX
Facsimile: ___________
If to the Company: Synovics Pharmaceuticals, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 602-508-0112
With a copy to: Reitler Xxxxx & Xxxxxxxxxx LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
Each such notice, request or communication shall be effective when received or,
if given by mail, when delivered at the address specified in this Section 10 or
on the fifth business day following the date on which such communication is
posted, whichever occurs first.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
12. BENEFITS OF AGREEMENT. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This Agreement is for the
sole benefit of the parties hereto and not for the benefit of any third party.
13. AMENDMENTS AND WAIVERS. No modification, amendment or waiver of any
provision of, or consent required by, this Agreement, nor any consent to any
departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which it is
given.
14. ASSIGNMENT. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable without the prior written consent of the
Company. Any instrument purporting to make an assignment in violation of this
Section 14 shall be void and of no effect.
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15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAWS PROVISIONS).
16. CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL COURT OR STATE
COURT OF NEW YORK LOCATED IN NEW YORK CITY AND IRREVOCABLY AGREES THAT ALL
ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LITIGATED EXCLUSIVELY IN SUCH COURTS.
EACH OF THE PARTIES HERETO AGREES NOT TO COMMENCE ANY LEGAL PROCEEDING RELATED
HERETO EXCEPT IN SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
OBJECTION WHICH HE OR IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING IN ANY SUCH COURT AND HEREBY FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT HE OR IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO
HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT HE OR IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 17.
18. WITHHOLDING. The payment of any amount pursuant to this Agreement,
including, without limitation, pursuant to Sections 2, 3 and 5, shall be subject
to any applicable withholding and payroll taxes, which may be deducted by the
Company in its sole discretion.
19. ADVICE OF COUNSEL. The Employee represents and warrants that he has had
full opportunity to seek advice and representation by independent counsel of his
own choosing in connection with the interpretation, negotiation and execution of
this Agreement.
20. ENFORCEABILITY. It is the desire and intent of the parties hereto that
the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if
11
any particular provision of this Agreement shall be adjudicated to be invalid or
unenforceable, then such provision shall be deemed amended to delete therefrom
the portion thus adjudicated to be invalid or unenforceable, such deletion to
apply only with respect to the operation of such provision in the particular
jurisdiction in which such adjudication is made.
21. EMPLOYMENT REPRESENTATIONS AND WARRANTIES. The Employee hereby
represents, warrants and acknowledges to, and agrees with, the Company as
follows: (a) the Employee is not presently subject to any employment or other
agreement with any other person or entity (whether or not engaged in the
securities or investment advisory business) which will limit or restrict his
ability to carry out the terms of this Agreement and to devote his business
energies on a full-time basis to the Company under this Agreement; (b) the
Company has not solicited the Employee to leave his prior employment, and
Employee first contacted the Company to offer it his services; (c) the Employee
is not now and has not been subject to any orders, findings, or judgments of any
securities industry or other regulatory body and knows of no prior, threatened
or pending investigatory or disciplinary action against him by any such body;
(d) the Employee is not subject to any claims or arbitration proceedings against
him arising from any prior securities activities; (e) the Employee has had
sufficient experience and knowledge in the intended activities to undertake and
perform his obligations under this Agreement; (f) the execution and delivery by
the Employee of this Agreement, and the Employee's performance of his duties to
the Company pursuant hereto, will not breach the terms of, or require the giving
of notice under, any other agreement to which the Employee is a party or is
bound; (g) the Employee shall not violate any non-competition, non-solicitation
or non-disclosure covenant by which the Employee is bound, or use or disclose
any confidential or proprietary information obtained in connection with the
Employee's employment by any previous employer, in connection with his
employment by the Company; (h) the Employee has disclosed to the Company in full
detail all non-competition, non-solicitation and non-disclosure covenants by
which the Employee is bound as of the commencement of this Agreement.
22. SURVIVAL OF PROVISIONS. Notwithstanding anything to the contrary in
this Agreement, the provisions of Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 17, 19, 20, 21 and this Section 22 shall survive the termination of this
Agreement (regardless of the manner or basis of termination) in accordance with
their terms.
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IN WITNESS WHEREOF, the parties hereto have executed, or have caused
their duly authorized representative to execute, this Employment Agreement as of
the date first written above.
SYNOVICS PHARMACEUTICALS, INC.
By: /s/ XXXXXX X. XXXX
-----------------------------
Xxxxxx Xxxxxx Lane, Ph.D.
Chief Executive Officer
EMPLOYEE:
/s/ XXXXX XXXXXXX
-----------------------------
Xxxxx Xxxxxxx
