Exhibit 11.02
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, dated as of September 26, 2003, by and between IGI,
Inc., a Delaware corporation (the "Company"), located at 000 Xxxxxxx
Xxxxxx, Xxxxx, Xxx Xxxxxx, 00000, and Xxxxxxx X. Xxxxxx, MD, Ph.D
("Xxxxxx") residing at ___________________.
WHEREAS, the Company wishes to assure itself of the services of
Xxxxxx as its Vice President of Research and Development and Chief
Scientific Officer; and
WHEREAS, Xxxxxx is willing to enter into this Employment Agreement
upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
undertakings and agreements set forth herein, the sufficiency of which is
acknowledged by the parties, the Company and Xxxxxx agree as follows:
1. Employment. The Company shall employ Xxxxxx to serve the Company
as its Vice President of Research and Development and Chief Scientific
Officer during the Term of Employment as defined in Section 2 of this
Agreement set forth below. Xxxxxx shall report to the Company's Chief
Executive Officer and/or such other person as the Company may direct.
Xxxxxx'x duties shall be consistent with his title as its Vice President of
Research and Development and Chief Scientific Officer. Xxxxxx shall devote
his best efforts and a substantial portion of his business time to
advancing the interests of the Company and in execution of his duties and
obligations to the Company as its Vice President of Research and
Development and Chief Scientific Officer. It is understood that Xxxxxx
services during the Term of Employment shall be performed primarily in the
Boston, Massachusetts and Buena, New Jersey areas or such other area in
which the
Company's offices or business operations are located, subject to such
reasonable travel outside such areas and in and outside the United States
as performance of his duties and the business of the Company may reasonably
require.
2. Term of Employment. "Term of Employment" is defined and used
herein to mean the three (3) year period beginning on the Effective Date of
this Agreement as set forth in Section 17 hereof and ending on the third
annual anniversary of such Effective Date, unless this Agreement and/or
Xxxxxx'x employment with the Company is terminated earlier thereto in
accordance with the terms of Section 4 of this Agreement.
3. Compensation and Other Benefits
(a) From the Effective Date of this Agreement through to December
31, 2003, the Company shall pay Xxxxxx a monthly gross salary
of $4,000.00, payable in equal installments in accordance with
the Company's customary payroll practices then in effect.
(b) Beginning January 1, 2004, the Company shall pay Xxxxxx a
monthly gross salary of $8,000.00, payable in equal
installments in accordance with the Company's customary payroll
practices then in effect.
(c) During the Term of Employment, Xxxxxx may participate subject
to eligibility requirements in any 401(k) or other similar
deferred compensation plan as in effect from time to time for
employees of the Company in accordance with the terms of such
plans or programs subject to modification or termination by the
Company at any time. Nothing contained in this Agreement
obligates and/or requires the Company to create, obtain and/or
otherwise maintain any such plans or programs.
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(d) During the Term of Employment, Xxxxxx shall be entitled as
provided herein to participate in any group hospitalization,
medical, health and dental insurance plans or programs of the
Company now existing or hereafter established for employees of
the Company in accordance with the terms of such plans or
programs subject to a modification or termination by the
Company ("Health Benefits"); provided, however, that Xxxxxx
shall not be entitled to receive such Health Benefits from the
Company at any time during which he is receiving or is eligible
to receive or otherwise obtain similar Health Benefits from, by
or through Boston University and/or Boston University Medical
Center in conjunction with his employment and/or other
affiliation therewith. Nothing contained in this Agreement
obligates the Company to create, obtain and/or maintain any
such Health Benefits plans or programs.
(e) The Company agrees to reimburse Xxxxxx for all reasonable
business expenses incurred by him in connection with the
performance of his duties hereunder in accordance with the
policies of the Company then in effect.
4. Termination of Employment
(a) Xxxxxx'x employment shall terminate upon his death, and may be
terminated, at the option of the Company upon written notice to
Xxxxxx (i) as a result of his "disability," as defined in
Section 4(b) below, (ii) for "cause," as defined in Section
4(c) below; and/or (iii) for "Business Reasons" defined in
Section 4(d) below. Such termination shall be
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effective five (5) days after the Company gives Xxxxxx written
notice of termination.
(b) As used herein, "disability" shall mean such physical or mental
disability or incapacity of Xxxxxx which has substantially
prevented him from performing his principal duties hereunder
during any period of 90 consecutive calendar days or for a
total of 120 calendar days (whether or not consecutive) in any
365-day period. During such period of disability and until
notice of termination is given by the Company to Xxxxxx under
Section 4(a), Xxxxxx shall continue to receive his compensation
and other benefits, if any, as set forth in Section 3 above as
in effect at such time, reduced by the amount, if any, of all
disability benefits received by Xxxxxx during this period,
including without limitation any benefits received by Xxxxxx
from the Social Security Administration or any other state or
federal governmental agency and/or benefits provided under any
policy of disability insurance covering Xxxxxx.
(c) As used herein, "cause" shall mean (i) willful misconduct
involving bad faith by Xxxxxx in respect of his duties and
obligations under this Agreement, which misconduct causes or
was intended by Xxxxxx to cause injury to the Company, or (ii)
commission of a crime involving moral turpitude which would
adversely affect the Company should Xxxxxx continue to serve as
an employee of the Company. "Cause" shall not include a bona
fide disagreement over a corporate policy so long as Xxxxxx
does not willfully violate on a continuing basis (three times
or more in any
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given year) directions from the Board of Directors, the
Chairman, the Chief Executive Officer and/or President and
provided such directions are consistent with the provisions of
this Agreement.
(d) As used herein "Business Reasons" shall mean that as of
December 31, 2003, thee Company and Xxxxxx have not entered
into a fully executed Exclusive License Agreement pursuant to
which Xxxxxx exclusively licenses to IGI all rights, title and
interests in and to Parathyroid Hormone Related Peptide (PTHrP)
and glycoside drugs, including all patents and patent
applications claiming the composition or methods of use thereof
and all related data and know how thereto ("the Exclusive
License Agreement"). As provided herein, if the Company and
Xxxxxx have not entered into a fully executed Exclusive License
Agreement by December 31, 2003, the Company has the right to
terminate Xxxxxx'x employment at any time on or after January
1, 2004.
(e) On the termination of Xxxxxx'x employment as a result of
death, disability, for cause or for Business Reasons, the
Company shall, within ten (10) business days of the Effective
Date of the termination as provided in Section 4(a), pay to
Xxxxxx or to his beneficiaries, personal representative or his
Estate, as the case may be, any unpaid salary accrued as of the
Effective Date of the termination.
(f) If Xxxxxx'x employment is terminated by the Company before the
expiration of the Term of Employment for any reason other than
death, disability or cause, then Xxxxxx shall be entitled to
receive, and the
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Company shall be obligated to pay to Xxxxxx, his base salary in
effect at such time as set forth in Section 3(a) or 3(b) as the
case may be for the shorter of the period of one (1) year or
the remainder of the Term of Employment, such base salary to be
paid in accordance wit the Company's customary payroll
practices on the dates it would have been paid had Xxxxxx'x
employment had not been terminated. All payments made under the
terms of this paragraph shall be in full and complete
satisfaction of any and all claims Xxxxxx may have against the
Company, its officers, directors, shareholders, employees,
attorneys, agents and representatives relating to his
employment with the Company, including without limitation, all
claims under this Agreement and under any and all claims under
applicable state or federal law.
5. Confidentiality and Restrictive Covenants
(a) Xxxxxx shall not, at any time during the Term of Employment or
for a period of three (3) years thereafter, solicit or permit
any business of which he is an owner, partner, shareholder,
member, manager or executive to solicit any employee or former
employee of the Company or any of its affiliates, to leave its
employ or join the employ of another, then or at a later time.
(b) During the Term of Employment and for a period of three (3)
years thereafter, Xxxxxx shall not, directly or indirectly,
solicit any of the current or potential customers of the
Company.
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(c) Except as required in the performance of his duties to the
Company, or as authorized in writing by the Company, Xxxxxx
shall not at any time, during or after the Term of Employment,
disclose or use, directly or indirectly, any confidential
information belonging to or used by the Company of which Xxxxxx
shall obtain knowledge by reason of his employment hereunder.
All such confidential information shall be retained by Xxxxxx
in trust in a fiduciary capacity for the sole benefit of the
Company. Such confidential information includes, but is not
limited to, information with respect to marketing, advertising
and sales presentation methods and materials, customer and
supplier lists, external and internal business forms, manuals,
corporate planning, manufacturing, distribution and marketing
processes, procedures, devices and materials utilized by the
Company in providing goods to customers, plans for expansion
into new areas or markets and information regarding internal
operations together with all written and graphic materials
relating to all or any part of the same. This restriction may
not and shall not be used by the Company to challenge any
employment of Xxxxxx following the termination of his
employment with the Company based upon information which has
become part of Xxxxxx'x general knowledge.
(d) Upon termination of the Term of Employment or at any other time
as the Board of Directors of the Company may request, Xxxxxx
shall promptly deliver to the Company all confidential data and
materials in his possession, including, but not limited to,
sales presentation materials,
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other internal and external business forms, manuals,
correspondence, notes and customer and supplier lists together
with all copies thereof, and Xxxxxx shall not make or retain
any copy or extract of any of the foregoing.
(e) Xxxxxx acknowledges and agrees that the provisions of this
Section 5 are reasonable and necessary for the protection of
the Company and that the Company will be irrevocably damaged if
such covenants are not specifically enforced. Xxxxxx further
acknowledges and agrees that his breach of any of the
restrictive covenants contained in this Section 5 can cause
irreparable damage to the Company for which the remedy at law
would not be adequate. Accordingly, in addition to any other
remedy provided by law or equity, the Company shall be entitled
to injunctive relief restraining Xxxxxx from any actual or
threatened violation of this Section 5 or any other appropriate
decree of specific performance (without any bond or other
security being required), including, without limitation, any
injunction restraining Xxxxxx from rendering any services to
any person or entity in competition with the then business
being conducted by the Company to whom all or any part of any
confidential information and materials has been disclosed by
Xxxxxx.
(f) The provisions contained in this Section 5 as to the time
periods, scope of activities, persons or entities affected and
territories restricted shall be deemed divisible so that, if
any provision contained in this Section 5 is determined to be
invalid or unenforceable, such provisions shall be
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deemed modified so as to be valid and enforceable to the full
extent lawfully permitted.
6. Notices. Any and all notices and other communications under this
Agreement shall be given in writing and shall be sent to the addresses set
forth below, or at such other address as may be designated in writing
hereafter by Xxxxxx and/or the Company in accordance with the terms hereof.
If mailed, such notice, demand or request shall be made by certified or
registered mail, and deposited in any post office station or letter-box,
enclosed in a postage paid envelope and shall be deemed to have been made
on the third (3rd) business day following posting as aforesaid. If
commercially sent, the party giving such notice shall use a recognized,
overnight commercial courier service and notice shall be deemed to have
been made on the day following actual delivery of such notice to the
commercial carrier. If sent by facsimile transmission, the party sending
the transmission shall send it to the facsimile number, if any, set forth
below, or to such other number as a party thereto shall direct by written
notice given in accordance with this Section 6. Delivery shall be deemed
to have been made on the day that the facsimile transmission occurred if
received prior to 4:00 p.m. on a business day at the place of receipt,
otherwise on the following business day.
(a) To Xxxxxx
Xx. Xxxxxxx X. Xxxxxx
_________________
_________________
Fax no. _______________
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(b) To the Company
Xxxxx Xxxxxxx
Chairman & Chief Executive Officer
IGI, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
Fax No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx & Associates, P.C.
1776 On the Green - 8th Floor
00 Xxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Fax No.: (000) 000-0000
7. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof and
supersedes all previous proposal negotiations, representations,
commitments, writings and all other communications between the parties,
both oral and written
8. Assigns and Successors This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective heirs,
representatives, successors and permitted assignees. This Agreement shall
not be assignable except only by the Company to any corporation resulting
from the reorganization, merger or consolidation of the Company with any
other corporation or any corporation to which the Company may sell all or
substantially all of its assets.
9. Severability If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, such
determination shall not
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affect the validity or enforceability of any other part or provision of
this which shall continue in full force and effect.
10. Modification This Agreement may be amended or modified only by
a written instrument signed by both the Company and Xxxxxx.
11. Governing Law; Jurisdiction This Agreement shall be governed by
and construed in accordance with the laws of the State of New Jersey. The
parties hereto each expressly submit themselves and consent to the
jurisdiction of the state and federal courts of New Jersey with respect to
any action that may be commenced relating in any way to this Agreement.
The parties hereto each further agree that service of process with respect
to any judicial action between the parties relating to this Agreement shall
be deemed made when sent via ordinary United States mail to the parties at
addresses set forth above in Section 6. In the event either party is
required to incur legal fees and costs in seeking enforcement of this
Agreement, the prevailing party shall be entitled to recover from the other
party any and all such legal fees and costs so incurred.
12. Headings Section headings are for convenience only and shall
not be considered a part of the terms and provisions of the Agreement.
13. Waiver The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a
waiver or deprive that party of the right to thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
14. Interpretation
(a) All references in this Agreement to the plural shall also mean
the singular and to the singular shall also mean the plural
unless the context otherwise requires. The words "hereof",
"herein", "hereunder", "this Agreement", "the Agreement" and
words of similar import when used in this Agreement shall
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refer to this Agreement as a whole and not any particular
provision of this Agreement unless the context otherwise
requires. The word "including" when used in this Agreement
shall mean "including, without limitation". "And" and "or" as
used in this Agreement shall be interpreted conjunctively and
shall not be interpreted disjunctively to exclude any
information otherwise within the scope thereof.
(b) Any reference in this Agreement to any corporate and/or other
business entity shall include and extend to the benefit of such
corporate and/or other business entities' predecessors,
successors, subsidiaries, affiliates, assigns and/or any and
all of their respective past and present agents, attorneys,
representatives, officers, directors, employees,
representatives, independent contractors, accountants and
shareholders, as if same were named individually herein.
15. Neutral Construction This Agreement is the product of
negotiations between the parties and shall be construed neutrally, without
regard to the identity of the party who drew it.
16. Counterpart Execution This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
17. Effective Date The Effective Date of this Agreement is
September 26, 2003.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals
this 26th day of September 2003.
IGI, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chairman & Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx, MD, Ph.D
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Xxxxxxx X. Xxxxxx, MD, Ph.D
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