EMPLOYMENT AGREEMENT, dated as of January 30, 2007 (the
"AGREEMENT"), between Synovics Pharmaceuticals, Inc., a Nevada
corporation (the "COMPANY"), and Xxxxxx Xxxxxx Xxxx (the
"Employee").
--------------------------------------------------------------
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 Chief Executive Officer. In such capacity (a)
Employee shall report to, and follow the directions of, the Board of Directors
(the "BOARD"), (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 Board.
1.02. FULL TIME. Commencing on the date of this Agreement, the
Employee shall devote his full and exclusive business time 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 date hereof (the "COMMENCEMENT 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 automatically be
renewed (upon the compensation terms provided herein other than option grants
which shall be negotiated with the Employee at such time) for a one (1) year
term commencing at the end of the Initial Term (the Initial Term, 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$400,000 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. 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 calendar 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 calendar 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 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 calendar year (pro-rated for periods of
less than a full calendar year). 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 calendar
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 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 calendar 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
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 Board 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.
3.03. DEFERRED OBLIGATION. The Company and the Employee agree
that the Company owes the Employee such sum as shall be agreed upon between the
parties in writing.
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 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, (ii) commission of an act of willful misconduct or gross
negligence by the Employee resulting in a material loss to the
3
Company, (ii) the Employee's willful or grossly negligent commission of an act
which constitutes a Competitive Activity, or (iv) 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; (v) 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; (vi)
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; (vii) 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, (viii) 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 (ix) 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.
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 sixty (60)
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; or
(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.
4
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 FOR 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 pay to the Employee in one lump sum the Deferred Obligation
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.
(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, 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, (iii) the Company
shall pay to the Employee in one lump sum, the Deferred Obligation and (iv) 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 an amount equal to the product of (x) multiplied
by (y), where (x) equals a fraction, the numerator of which equals the Base
Salary then in effect (annualized) and the denominator of which equals six (6),
and where (y) the number of completed years of service of Employee under this
Agreement, PROVIDED, HOWEVER, that the Severance Amount shall not be less than
the amount equal to a fraction, the numerator of which is the Base Salary then
in effect (annualized) and the denominator of which is two, and PROVIDED
FURTHER, that the Severance Amount shall not exceed the Base Salary then in
effect (annualized). 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
5
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.
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.
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
6
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. During the Term, the Employee shall not,
directly or indirectly, participate, engage or assist in any Competitive
Activities, 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.
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
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 generic drugs 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.
7
(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
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
8
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; RELEASE. 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:
If to the Employee: Xxxxxx Xxxx
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
If to the Company: Synovics Pharmaceuticals, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
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.
9
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.
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
10
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 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, 11, 12, 13, 14,
15, 16, 17, 19, 20 and this Section 21 shall survive the termination of this
Agreement (regardless of the manner or basis of termination) in accordance with
their terms.
11
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/ Xxxxxxx XxXxxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Director
EMPLOYEE:
/s/ Xxxxxx Xxxx
---------------------------------
Xxxxxx Xxxxxx Lane
