EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of the 1st day of June,
1997, between FLEMINGTON PHARMACEUTICAL CORPORATION, a New Jersey corporation
(together with its successors and assigns referred to herein as the
"Corporation"), with principal executive offices located at 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 and XXXX X. XXXXXXX, residing at 00 Xxxxx Xxxxx,
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000 (the "Executive").
W I T N E S S E T H
WHEREAS, the Corporation desires to employ Executive as the
Corporation's Chairman of the Corporation's Board of Directors to engage in such
activities and to render such services under the terms and conditions hereof and
has authorized and approved the execution of this Agreement; and
WHEREAS, Executive desires to be employed by the Corporation under the
terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, the parties agree as follows:
1. Employment, Duties and Acceptance.
1.1 Services. During employment hereunder, Executive shall
be Chairman of the Corporation's Board of Directors (the "Board"), shall have
the powers and duties set forth in the Corporation's By-laws and normally held
by an executive holding such a position and shall report directly to the Board
of which Executive shall be a member. Executive shall devote Executive's
business time, attention, knowledge and skills faithfully, diligently and to the
best of Executive's ability in furtherance of the business and activities of
the Corporation (the "Services"). The principal place of performance by
Executive of services hereunder shall be at the Executive's home office at the
address above. The Executive shall devote to the Corporation the amount of time
mutually agreed upon by the Executive and the Board. In determining the amount
of time the Executive shall devote to the Corporation, the Board shall consider
the Executive's business interests beyond that of the Corporation, including his
obligations to Landmark Financial Corp., a New Jersey corporation ("Landmark").
The Services provided by the Executive will focus on the development of the
Immediate Delivery System, as defined in Section 10.2.
1.2 Acceptance. Executive hereby accepts such employment
and agrees to render the Services.
1.3 Acknowledgment of Other Employment. The Corporation
hereby acknowledges that the Executive has, and will continue to engage in,
business interests beyond that of the Corporation, including that the Executive
is the sole shareholder and an employee of Landmark. The Corporation
acknowledges that Landmark and/or the Executive provide consulting services to
companies which engage in the same or similar businesses as that of the
Corporation, including but not limited to the health care and pharmaceutical
industries. The Corporation agrees that that the Executive may conduct such
business interests, provided, however, that: (i) that the Executive does not
become an employee (but may become a Director) of any company other than
Landmark; (ii) that (except as permitted by this Agreement) the Executive's
outside business interest is not with a Competitive Businesses as defined in
Section 10.2; and (iii) that in the event the Executive or Landmark engages or
proposes to provide services to a Competitive Business, the Executive shall
proceed in the manner described in Section 10.4. Notwithstanding anything to th
contrary in this Agreement, the Executive may conduct any outside business and
has no obligation to seek approval of the Corporation for participating in an
outside business interest where (a) the Proposed Engagement is not a Competitive
Business, or (b) where the Executive's participation in the Proposed Engagement
does not materially focus on significant projects in development by the
Corporation, as such terms are defined in Section 10 hereof.
2. Term of Employment.
2.1 Term. The Executive's employment under this Agreement (the
"Term") shall commence as of the Effective Date (as hereinafter defined) and
shall continue for a term of three (3) years, unless sooner terminated pursuant
to Sections 5 or 9 of this Agreement. Notwithstanding anything to the contrary
contained herein, the provisions of this Agreement governing Confidentiality
shall continue in effect as specified in Section 10.1 hereof and survive the
expiration or termination hereof.
2.2 Effective Date. The effective date of this Agreement (the
"Effective Date") shall be the date of the closing of the Corporation's initial
public offering of equity securities (the "IPO").
3. Base Salary and Expense Reimbursement.
3.1 Base Salary. The Corporation shall pay Executive a salary
(the "Base Salary") at the rate of $150,000 per year for the first year of
employment under this Agreement. Payment shall be made monthly, on the last day
of each calendar month. For each subsequent calendar year of employment, the
Base Salary shall be increased by the greater of the "cost of living increase"
(as defined below) or seven and one-half percent (7 1/2%).
3.2 Expense Reimbursement. All travel and other expenses
reasonably incurred by Executive incidental to the rendering of Services to the
Corporation hereunder shall be paid by the Corporation or reimbursed to
Executive upon receipt and approval of expense reports on the Corporation forms
supported by appropriate documentation. From time to time, Executive shall
submit, and obtain approval for, proposed expense budgets. All unbudgeted
expenses in excess of $1,000.00 (individually, or collectively if in connection
with a single, related subject or project within a given month) shall require
advance approval.
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3.3 Bonuses. In connection with the Executive's employment,
the Executive and the Corporation shall negotiate the terms of any increases in
the Executive's compensation (beyond that provided for in Section 3.1), cash
bonuses and other compensation in the form of stock, stock options, life
insurance, disability insurance or other property based upon the Corporation's
performance.
3.4 Cost of Living Increase. For purposes of this Agreement,
"cost of living increase" means the annual percentage increase of the U.S.
Department of Labor, BLS, Consumer Price Index (CPI-W) (Philadelphia-New Jersey)
during the twelve month period ending on the date of the most recently available
data as of the respective dates of adjustment.
4. Stock Options.
In connection with this Agreement, the Corporation has granted
Executive nonqualified stock options (outside of the Corporation's stock option
plans) to purchase 300,000 shares of the Corporation's common stock, at an
exercise price of $1.84 per share (the "Nonplan Options"). The Nonplan Options
may be exercised by Executive at any time during the ten (10) years following
the date of grant and, notwithstanding the status of Executive as an employee of
the Corporation, can not be terminated or revoked by the Corporation.
5. Severance and Change in Control.
5.1 Executive's Termination for Good Reason. In the event that
Executive's employment hereunder shall be terminated for Good Reason (as defined
in Section 9.4 hereof) at any time prior to the end of the Term, Executive shall
be entitled to receive from the Corporation, in addition to any Base Salary
earned to the date of termination, a severance payment in an amount equal to
Executive's Base Salary for the remainder of the entire Term, payable to the
Executive in biweekly increments until the date on which the Term would have
otherwise expired, had the termination not occurred. Nothing in this Section 5.1
shall affect the exercisability of the Nonplan Options in Section 4 hereof or
the obligations of the Executive under Sections 10.1 and 10.5 hereof. In the
event of such termination, the amounts due hereunder shall be payable without
offset or defense or any obligation of the Executive to mitigate damages.
5.2 Executive's Termination without Good Reason. In the event
that the Executive terminates employment without Good Reason (as defined in
Section 9.4 hereof) at any time prior to the end of the Term, Executive shall be
entitled to receive from the Corporation payment of any unpaid accrued Base
Salary earned through the date of termination. In the event of such termination,
all obligations of the Corporation and the Executive hereunder shall terminate
on the date of termination and the Executive's termination without Good Reason
shall act as a waiver of all claims to compensation which would have otherwise
accrued after the date of termination. Nothing in this Section 5.2 shall affect
the exercisability of the Nonplan Options in Section 4 hereof or the obligations
of the Executive under Sections 10.1 and 10.5 hereof.
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5.3 Change in Control. Executive, at his option, shall be able
to terminate this Agreement upon written notice given to the Secretary of the
Corporation within ninety (90) days of an occurrence of a "Change in Control". A
"Change in Control" of the Corporation shall mean a change in control of the
Corporation or any entity controlling the Corporation (referred to collectively
in this Section 5 as the Corporation) of a nature that would be required to be
reported in response to Item 1 of a Current Report on Form 8-K, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
provided that, without limitation, such a Change in Control shall be deemed to
have occurred at such time as (a) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than a person who or which is a
shareholder of the Corporation immediately prior to the IPO, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing twenty-five percent
(25%) or more of the combined voting power of the Corporation's outstanding
securities ordinarily having the right to vote at elections of directors; or (b)
individuals who constitute the Board (the "Incumbent Board") immediately prior
to the IPO cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof whose
election or nomination for election by the Corporation's shareholders was
approved by a vote of at least three quarters of the directors comprising the
Incumbent Board, shall be, for purposes of this clause (b), considered as though
he were a member of the Incumbent Board; or (c) a sale by the Corporation of all
or substantially all of its assets occurs. Notwithstanding anything in the
foregoing to the contrary, no Change in Control shall be deemed to have occurred
for purposes of this Agreement by virtue of any transactions which result in the
acquisition by the Executive, or by a group of persons which includes the
Executive, directly or indirectly, of a majority of either the outstanding
shares of common stock of the Corporation or the voting securities of any
corporation which acquires all or substantially all of the assets of the
Corporation, whether by way of merger, consolidation, sale of such assets or
otherwise. Notwithstanding anything contained in this Agreement to the contrary,
if, while the Executive is employed by the Corporation, a Change in Control
shall occur with or without the prior approval of the Incumbent Board, then the
Corporation shall immediately pay the Executive a lump sum amount equal to the
product of the Executive's Base Salary for the year in which the Change in
Control occurred, and 2.99; provided, however, that the amount so paid shall not
exceed 2.99 times the Executive's "base amount", as such term is defined in
Section 280(G)(b) of the Internal Revenue Code. The lump sum payment specified
in the preceding sentence shall be made in addition to any other compensation
due to the Executive, or his beneficiaries, by the Corporation, including but
not limited to salary, severance pay, consulting fees, disability benefits,
termination benefits, retirement benefits, life and health insurance benefits,
stock ownership or stock option benefits.
6. Additional Benefits.
During Executive's employment, the Corporation shall cause Executive to
be covered by all the Corporation's employee benefit plans, in effect from time
to time, for which Executive is eligible, including without limitation, any
retirement plan or group insurance.
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7. Vacation.
Executive shall be entitled to such holidays as are in effect for all
of the Corporation's employees, and to sick leave in accordance with the
Corporation policy as in effect from time to time. In addition, Executive shall
be entitled to six weeks vacation days (thirty business days) during the initial
year of this Agreement. During the second and third years of this Agreement,
Executive shall be entitled to seven and eight weeks vacation time,
respectively. The timing of the taking of vacation is left to the discretion of
Executive, provided the same is not inconsistent with the reasonable business
requirements of the Corporation. Vacation days not used by Executive during a
given year may be accumulated and carried forward to future years.
8. Indemnification.
The Corporation shall indemnify Executive and hold Executive harmless
against any and all expenses reasonably incurred by him in connection with or
arising out of (a) the defense of any action, suit or proceeding to which
Executive is a named party, or (b) any claim asserted or threatened against
Executive, provided, in either case, the matter has arisen because of or in
connection with Executive's being or having been an employee, officer or
director of the Corporation, whether or not he continues to be such at the time
the expenses indemnified against are incurred, except insofar as (a) such
indemnification is prohibited by law or (b) the expenses were incurred in
connection with a matter where the Corporation is or was in an adversarial
position to Executive and the Corporation prevailed against Executive in such
matter (excluding from non-indemnification situations where the Corporation and
the Executive are joint tortfeasors in a suit by a third party). Expenses
indemnified against include, without limitation, reasonable attorneys fees,
money judgments and money settlements, provided (a) the Corporation has an
obligation to provide indemnification to the Executive under the terms of the
foregoing sentence, and (b) the Corporation has received advance written notice
of the incurred covered expenses. This Section 8 is independent of any similar
indemnification obligation which may be contained in the Corporation's
Certificate of Incorporation or By-laws, and applies as well to matters
attributable to Executive's employment by the Corporation before the Effective
Date of this Agreement, if applicable.
9. Termination.
9.1 Death. If Executive dies during the Term of this
Agreement, Executive's employment hereunder shall terminate upon his death and
all obligations of the Corporation hereunder shall terminate on such date,
except that Executive's estate or his designated beneficiary shall be entitled
to payment of any unpaid accrued Base Salary through the date of his death.
9.2 Disability. If Executive shall be unable to perform a
significant part of his duties and responsibilities in connection with the
conduct of the business and affairs of the Corporation and such inability lasts
for a period of at least 180 consecutive days by reason of Executive's physical
or mental disability, whether by reason of injury, illness or similar cause,
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Executive shall be deemed disabled, and the Corporation any time thereafter may
terminate Executive's employment hereunder by reason of the disability. During
such 180 day period, the Base Salary and other benefits payable to Executive
hereunder shall not be suspended or diminished, except to the extent equivalent
to the extent of any Corporation-provided disability insurance in effect. Upon
delivery to Executive of termination notice, all obligations of the Corporation
hereunder shall terminate, except that Executive shall be entitled to payment of
any unpaid accrued Base Salary through the date of termination. The obligations
of Executive under Section 10 hereof shall continue notwithstanding termination
of Executive's employment pursuant to this Section 9.2.
9.3 Termination For Cause. The Corporation may at any time
during the Term, with 30 days prior written notice, terminate this Agreement and
discharge Executive for Cause, whereupon the Corporation's obligation to pay
compensation or other amounts payable hereunder to or for the benefit of
Executive shall terminate on the date of such discharge. As used herein the term
"Cause" shall be deemed to mean and include: (i) a willful material breach by
Executive of this Agreement including without limitation a breach by Executive
of the obligations set forth in Section 10 hereof; (ii) alcoholism or drug
abuse; (iii) willful substantial neglect by Executive of or to his duties
hereunder; (iv) willful violation of specific and lawful written or oral
direction from the Board of Directors of the Corporation provided such direction
is not inconsistent with the Executive's duties and responsibilities as Chairman
of the Corporation's Board of Directors; or (v) fraud, criminal conduct or
embezzlement. The following shall be deemed a material breach for the purposes
of Subsection (i) hereof: (a) the Executive's conviction for, or a plea of nolo
contendere to, a felony or a crime involving moral turpitude (which, through
lapse of time or otherwise, is not subject to appeal); or (b) willful misconduct
as an employee of the Corporation with the intent to damage the Corporation. The
obligations of the Executive under Section 10 shall continue notwithstanding
termination of the Executive's employment pursuant to this Section 9.3. Nothing
in this section 9.3 shall affect the exercisability of the Nonplan Options in
Section 4 hereof.
9.4 Termination by Executive with Good Reason. The Executive
shall have the right to terminate this Agreement for Good Reason, as hereinafter
defined. Good Reason shall mean any of the following: (i) the assignment to the
Executive of duties inconsistent with the Executive's position, duties,
responsibilities, titles or offices as described herein; (ii) any material
reduction by the Corporation of the Executive's duties and responsibilities
(including the appointment, without the Executive's consent, of an executive
officer senior to him); (iii) any reduction by the Corporation of the
Executive's compensation or benefits payable hereunder (it being understood that
a reduction of benefits applicable to all employees of the Corporation,
including the Executive, shall not be deemed a reduction of the Executive's
compensation package for purposes of this definition); (iv) requiring the
Executive to be based without his consent at a location not within reasonable
commuting distance of Flemington, New Jersey; or (v) any material breach of this
Agreement by the Corporation. For purposes of Subsection (v) hereof, "material
breach" includes, but is not limited to, the Corporation's failure to pay any
portion of the Executive's base salary in accordance with Section 3.1 hereof and
the unpaid amount remains outstanding for a period of ninety (90) days from the
date payment was due.
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9.5 Termination by Executive without Good Reason. The
Executive shall have the right to terminate this Agreement without Good Reason
(as defined in Section 9.4 hereof) at any time prior to the end of the Term
whereupon the Executive is entitled to receive from the Corporation only unpaid
accrued Base Salary earned through the date of termination, as set forth in
Section 5.2 hereof.
10. Confidentiality; Non-Competition; Competitive Business.
10.1 Confidentiality. The Corporation and Executive
acknowledge that the services to be performed by Executive under this Agreement
are unique and extraordinary, and, as a result of Executive's employment
hereunder, Executive will be in possession of Confidential Information (as
hereinafter defined). For purposes of this Agreement, Confidential Information
is defined to include only material, proprietary, nonpublic information relating
to the business and affairs of the Corporation. Executive agrees that Executive
will not, other than in the ordinary course of business and subject to receipt
of an appropriate Confidentiality Agreement, during or after any term of
employment, directly or indirectly use or disclose to any person, firm or
corporation any Confidential Information acquired by Executive during
Executive's employment, unless Executive has obtained the Corporation's advance
written consent specifically authorizing Executive's disclosure or use thereof.
For purposes of this Agreement, Confidential Information shall specifically
exclude information (i) in the public domain; (ii) known to the Executive and
acquired by Executive outside of the scope of his relationships with the
Corporation; or (iii) disclosed by a third party not having an obligation of
confidentiality to the Corporation or the Executive.
10.2 Definition of Competitive Business. Any outside business
opportunity which would cause the Executive to disclose information or utilize
the technology relating to a significant project in development by the
Corporation is a Competitive Business. For purposes of this Section 10.2, a
project is significant if the Corporation has expended $200,000 toward the
research, development and/or production thereof. As of the date of this
Agreement, the Corporation's only significant projects are the lingual spray and
soft bite gelatin capsule delivery systems (collectively referred to hereinafter
as the "Immediate Delivery System"). Therefore, the Executive may participate in
a Proposed Engagement (as defined in Section 10.4) with an entity that competes
with or conducts business similar to that of the Corporation so long as the
Executive's participation in the Proposed Engagement does not materially focus
on a significant project of the Corporation.
10.3 Non-Competition. Except as otherwise provided in Section
10, the Executive agrees that, for a period beginning with the Effective Date of
this Agreement and ending twelve months after the date of termination of
employment by the Corporation, Executive shall not, either individually or in
conjunction with any person, firm, association, syndicate, company or
corporation, directly or indirectly (as principal, agent, employee, director,
officer, shareholder, partner, independent contractor, individual proprietor, or
as an investor who has made advances, loans or contributions to capital, or in
any other manner whatsoever) compete with the Corporation in a significant
project in development by the Corporation. Executive also agrees that, during
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such period, Executive will not solicit or encourage any persons who, during
such period, were employees of Corporation to (i) terminate such persons'
employment with Corporation; or (ii) become affiliated with any person, firm,
association, syndicate, company or corporation which is in a business similar to
that of the Corporation and in which Executive, either directly or indirectly,
has an interest. If Corporation directs Executive to cease and desist a proposed
post-termination course of conduct on the grounds that he is proposing to
compete with the Corporation's business, during this one-year post-termination
period, Corporation shall compensate Executive by paying him his Base Salary
(and benefits to the extent not inconsistent with the Corporation's obligations)
during the period he is prevented from pursuing such activity.
10.4 Disclosure of Certain Proposed Engagements. With respect
to outside business opportunities, Executive agrees that he will diligently
inquire as to the nature of the business of those persons or entities with whom
the Executive proposes to conduct business (the "Proposed Engagement"). If the
Executive wishes to engage in the Proposed Engagement, and the Proposed
Engagement is (i) with a company, partnership or business entity which is a
Competitive Business, as defined in Section 10.2 hereof, and (ii) the
Executive's participation in the Proposed Engagement materially focuses on a
significant project in development by the Corporation, the Executive shall
disclose to the President of the Corporation, in writing and in a timely
fashion, the following: (a) the identity of the other party to the Proposed
Engagement; (b) the nature of business of the other party to the Proposed
Engagement; (c) the nature of the Executive's role in the Proposed Engagement;
and (d) the scope of the Executive's participation in the Proposed Engagement.
Upon receipt of notice of such a Proposed Engagement, the President must advise
the Executive within seventy-two (72) hours whether the Executive is permitted
to participate in the Proposed Engagement. In the event the President fails to
notify the Executive within seventy-two (72) hours of receipt of the Executive's
notice, or if the President denies the Executive the ability to participate in
the Proposed Engagement, the Executive has the right to call a meeting of the
Board of Directors who shall determine by a majority vote of the disinterested
directors whether to allow or disallow the Executive's participation in the
Proposed Engagement. If the Executive's participation in the Proposed Engagement
is approved by the President or by the Board of Directors, such approval shall
act as a waiver of Section 10.3 for the duration of and to the extent of the
Executive's participation in the specific Proposed Engagement only. If the
Executive's participation in the Proposed Engagement is disapproved by the
President or by the Board of Directors, the Executive may terminate this
Agreement, however, such termination shall be made without good cause pursuant
to Section 5.2 hereof. In the event the Executive is not serving as Chairman of
the board at the time of the Proposed Engagement arises, Executive shall notify
the Chairman of the Board, and not the President, who shall render the
preliminary determination whether to allow or disallow the Executive's
participation in the Proposed Engagement in the manner set forth in this Section
10.4.
10.5 Anti-Raiding. Executive agrees that during the term of
his employment hereunder, and, thereafter for a period of one (1) year,
Executive will not, as principal, agent, employee, employer, consultant,
director or partner of any person, firm, corporation or business entity other
than the Corporation, or in any individual or representative capacity
whatsoever, directly or indirectly, without the prior express written consent of
the Corporation approach, counsel or attempt to induce any person who is then in
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the employ of the Corporation to leave the employ of the Corporation or employ
or attempt to employ any such person or persons who at any time during the
preceding six months was in the employ of the Corporation. Excepted from this
Section 10.5 are Landmark's present employees and/or agents. The Corporation
acknowledges, as of the date of this Agreement, that the Executive and one other
agent of the Corporation are presently employed and/or engaged by Landmark.
10.6 Injunction. Executive acknowledges and agrees that,
because of the unique and extraordinary nature of his services, any breach or
threatened breach of any of the above provisions of this Section 10 hereof will
cause the Corporation irreparable injury and incalculable harm and, therefore,
the Corporation will have "no adequate remedies at law". Executive, therefore,
agrees in advance that Corporation shall be entitled to injunctive and other
equitable relief for such breach or threatened breach and that resort by the
Corporation to such injunctive or other equitable relief shall not be deemed to
waive or to limit in any respect any right or remedy which the Corporation may
have with respect to such breach or threatened breach. The Executive agrees that
in such action, if the Corporation makes a prima facie showing that Executive
has violated or reasonably appears to intend to violate any of the provisions of
this Section 10, the Corporation need not prove damage in order to obtain
injunctive relief. The Corporation and Executive agree that any such action for
injunctive or equitable relief shall be heard in a state or federal court
situated in New Jersey and each of the parties hereto agrees to accept service
of process by registered mail and to otherwise consent to the jurisdiction of
such courts.
10.7 No Indemnification. The provisions of Section 8, above,
do not apply to any expenses incurred by Executive in defending against any
claim made pursuant to this Section 10, unless the dispute regarding this
Section 10 is adjudicated to a final determination by a court of competent
jurisdiction or by arbitration in which the Executive prevails.
10.8 Severability. If any provision contained within this
Section 10 is found to be unenforceable by reason of the extent, duration or
scope thereof, or otherwise, then such restriction shall be enforced to the
maximum extent permitted by law, and Executive agrees that such extent, duration
or scope may be modified in any proceeding brought to enforce such restriction.
11. Arbitration.
Except with respect to any proceeding brought under Section 10 hereof,
any controversy, claim, or dispute between the parties, directly or indirectly,
concerning this Employment Agreement or the breach hereof, or the subject matter
hereof, including questions concerning the scope and applicability of this
arbitration clause, shall be finally settled by arbitration in the State of New
Jersey pursuant to the rules then applying of the American Arbitration
Association. The arbitrators shall consist of one representative selected by the
Corporation, one representative selected by the Executive and one representative
selected by the first two arbitrators. The parties agree to expedite the
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arbitration proceeding in every way, so that the arbitration proceeding shall be
commenced within thirty (30) days after request therefore is made, and shall
continue thereafter, without interruption, and that the decision of the
arbitrators shall be handed down within thirty (30) days after the hearings in
the arbitration proceedings are closed. The arbitrators shall have the right and
authority to assess the cost of the arbitration proceedings and to determine how
their decision or determination as to each issue or matter in dispute may be
implemented or enforced. The decision in writing of any two of the arbitrators
shall be binding and conclusive on all of the parties to this Agreement. Should
either the Corporation or the Executive fail to appoint an arbitrator as
required by this Section 11 within thirty (30) days after receiving written
notice from the other party to do so, the arbitrator appointed by the other
party shall act for all of the parties and his decision in writing shall be
binding and conclusive on all of the parties to this Employment Agreement,
subject to appeal, if any. Any decision or award of the arbitrators shall be
final and conclusive on the parties to this Agreement; judgment upon such
decision or award may be entered in any competent Federal or state court located
in the United States of America; and the application may be made to such court
for confirmation of such decision or award for any order of enforcement and for
any other legal remedies that may be necessary to effectuate such decision or
award. In the event a dispute between the Executive and the Corporation is
adjudicated to a final determination by a court of competent jurisdiction or by
arbitration, the party against whom the finding is made shall pay the prevailing
party's reasonable attorneys fees and costs of suit.
12. Non-payment of Severance. In the event the Executive terminates
this Agreement pursuant to Section 5 hereof and the Corporation fails to pay any
portion of compensation (including severance) due to the Executive, the
Executive may bring such claim for non-payment to arbitration pursuant to
Section 11 hereof. In the event the arbitration renders a determination that the
Corporation materially breached this Agreement by failing to pay compensation
owed to the Executive and awards the Executive unpaid compensation, the
Executive shall be released from his obligations under Sections 10.1 and 10.5
hereof.
13. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid telegram, telecopy
(if followed by overnight mail) or mailed first-class, postage prepaid, by
registered or certified mail (notices sent by telegram or mailed shall be deemed
to have been given on the date sent), to the parties at their respective
addresses hereinabove set forth or to such other address as either party shall
designate by notice in writing to the other in accordance herewith. Copies of
all notices to the Corporation shall be sent to Xxxxxx X. XxXxxxx, Esq. at Xxxx
Xxxxx Xxxx & XxXxxx LLP, Xxx Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx,
00000. Copies of all notices to the Executive shall be sent to Xxxxxx X. Xxxx,
Esq., 000 Xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx, 00000.
14. General.
14.1 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the local laws of the State of New
Jersey applicable to agreements made and to be performed entirely in New Jersey.
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14.2 Captions. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
14.3 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the subject matter hereof. No representation,
promise or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
14.4 Severability. If any of the provisions of this Agreement
shall be unlawful, void, or for any reason, unenforceable, such provision shall
be deemed severable from, and shall in no way affect the validity or
enforceability of, the remaining portions of this Agreement.
14.5 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement by any other party shall not operate or be construed
as a waiver of any subsequent breach of the same provision or any other
provision hereof.
14.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same Agreement.
14.7 Assignability. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive. The Corporation may
only assign its rights, together with its obligations, hereunder in connection
with any sale, transfer or other disposition of all or substantially all of its
business or assets subject to the terms of Section 5.3; in any event the rights
and obligations of the Corporation hereunder shall be binding on its successors
or assigns, whether by merger, consolidation or acquisition of all or
substantially all of its business or assets.
14.8 Survival of Option Rights. Nothing in this Agreement
shall affect the Executive's exercisability of the Nonplan Options in Section 4
hereof.
14.9 Amendment. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived, only by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. No superseding
instrument, amendment, modification, cancellation, renewal or extension hereof
shall require the consent or approval of any person other than the parties
hereto. The failure of either party at any time or times to require performance
of any provision hereof shall in no matter affect the right at a later time to
enforce the same. No waiver by either party of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a further or
11
continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: FLEMINGTON PHARMACEUTICAL
CORPORATION.
By:______________________ By:_________________________________
, Title Xxxxx X. Xxxxxx, President
WITNESS:
------------------------- ------------------------------------
Xxxx X. Xxxxxxx, individually
