EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 9th day of
October, 1998, is entered into by Palatin Technologies, Inc., a Delaware
corporation with its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxxx, residing
at 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Employee").
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on September 11,
1998 (the "Commencement Date") and ending on September 10, 2001 (such period, as
it may be extended, the "Employment Period"), unless sooner terminated in
accordance with the provisions of Section 4.
2. Title; Capacity.
2.1 The Employee shall serve as Executive Vice President and
Chief Financial Officer or in such other position as the Company or its Board of
Directors (the "Board") may determine from time to time, with powers and duties
as may be determined, from time to time, by the Board. The Employee shall be
based at the Company's headquarters in Princeton, New Jersey.
2.2 The Employee hereby accepts such employment and agrees to
undertake the duties and responsibilities inherent in such position and such
other duties and responsibilities as the Board or its designee shall from time
to time reasonably assign to him. The Employee agrees to devote as much of his
business time, attention and energies to the business and interests of the
Company during the Employment Period as may be reasonably necessary to
adequately perform his duties hereunder, provided, however, that the Company
recognizes that the Employee serves as the Chief Financial Officer of Derma
Sciences, Inc., a publicly traded biopharmaceutical company and that such
service does not present a conflict of interest with the Employee's employment
with the Company insofar as Derma Sciences, Inc. is not a Competing Organization
(as defined in Section 8). Nothing contained herein shall be deemed to restrict
the Employee's right to continue in such a capacity. The Employee agrees to
abide by the rules, regulations, instructions, personnel practices and policies
of the Company and any changes therein which may be adopted from time to time by
the Company. The Employee acknowledges receipt of copies of all such rules and
policies committed to writing as of the date of this Agreement.
3. Compensation and Benefits. During the Employment Period, unless
sooner terminated in accordance with the provisions of Section 4, the Employee
shall receive the following compensation and benefits:
-2-
3.1 Salary. The Company shall pay the Employee, in equal
semi-monthly installments or otherwise in accordance with the Company's standard
payroll policies as such policies may exist from time to time, an annual base
salary of $65,000. Such salary shall be subject to review thereafter, as
determined by the Company's Compensation Committee and approved by the Board, on
an annual basis on June 15 of each year, but the Board shall not decrease the
Employee's annual base salary at any such annual review.
3.2 Cash Performance Bonus. The Company shall pay the Employee
bonus compensation of up to one year's base salary (which base salary shall not
be less than $65,000 per year) in an amount to be decided by the Company's
Compensation Committee and approved by the Board, payable annually, no later
than March 31 of each year during the Employment Period. Such performance bonus
compensation shall be based upon, inter alia, yearly objectives mutually agreed
upon by and between the Employee and the Company.
3.3 Stock Options. As additional compensation for services
rendered, the Company grants to the Employee the right and option to purchase
all or any part of an aggregate of 50,000 shares of the Company's Common Stock
(the "Option"), subject to the vesting schedule set forth in subparagraph c
hereof and the adjustments set forth in subparagraph g hereof, which Option is a
-3-
nonqualified stock option. The Option is in all respects limited and conditioned
as provided hereunder.
(a) Purchase Price. Except as otherwise provided in
subparagraph g hereof, the purchase price (the "Option Price") of the
shares covered by the Option ("Option Shares") shall be the closing
price of the Company's Common Stock on the National Association of
Securities Dealers Automated Quotation System (Nasdaq) on September 11,
1998, to wit: $2.50.
(b) Option Term. Except as otherwise provided herein, the
Option shall expire on the first to occur of: (i) ninety (90) days
following the Employee's termination of employment with the Company, or
(ii) September 11, 2008.
(c) Exercise of Option.
(i) Except as otherwise provided herein, the right of
the Employee to exercise the Option is conditioned upon the Employee:
(A) being in the employ of the Company, whether pursuant to this
Agreement or otherwise, or (B) serving as a director of the Company.
(ii) The Option shall vest (except as otherwise
provided herein): (A) on the Commencement Date with respect to the
first 33% of the Option Shares, (B) on the first anniversary of the
Commencement Date (i.e., September 11) (the "Anniversary Date") with
respect to the second 33% of the Option Shares, and (C) on the second
Anniversary Date with respect to the remaining 34% of the Option
Shares.
-4-
(iii) The Option may be exercised, to the extent
vested, in whole or in part, at any time or times prior to the
expiration or other termination thereof.
(d) Method Of Exercising Option.
(i) The Option may be exercised by giving written
notice, in form substantially as set forth in Exhibit 1 hereof, to the
Company at its principal office, specifying the number of Option Shares
to be purchased and accompanied by payment in full of the aggregate
purchase price for the Shares. Only full Shares shall be delivered and
any fractional share which might otherwise be deliverable upon exercise
of an Option granted hereunder shall be forfeited.
(ii) The purchase price shall be payable in cash or
its equivalent.
(iii) Upon receipt of such notice and payment, the
Company, within three (3) business days after Exercise, shall deliver
or cause to be delivered a certificate or certificates representing the
Shares with respect to which the Option is exercised. The certificate
or certificates for such Shares shall be registered in the name of the
person exercising the Option (or, if the Employee shall so request in
the notice exercising the Option, in the name of the Employee and his
spouse, jointly, with right of survivorship) and shall be delivered as
provided above to or upon the written order of the person exercising
the Option. In the event the Option is exercised by any person after
-5-
the death or Legal Disability of the Employee, such notice shall be
accompanied by appropriate proof of the right of such person to
exercise th Option. All Shares purchased upon the exercise of the
Option as provided herein shall be fully paid and nonassessable by the
Company.
(e) Non-transferability of Option. The Option is not
assignable or transferable, in whole or in part, by the Employee,
otherwise than by will or by the laws of descent and distribution.
During the lifetime of the Employee, the Option shall be exercisable
only by the Employee or, in the event of his Legal Disability, by his
legal representative.
(f) Withholding of Taxes. The obligation of the Company to
deliver Shares upon the exercise of any Option shall be subject to any
applicable federal, state and local tax withholding requirements.
(g) Adjustments. The number of Option Shares and the Option
Price shall be adjusted as set forth herein:
(i) In the event that a stock dividend shall be
declared on the Common Stock payable in shares of the Common Stock, the
Option Shares shall be adjusted by adding to each Option Share the
number of shares which would be distributable thereon if such Option
Share had been outstanding on the date fixed for determining the
shareholders entitled to receive such stock dividend.
-6-
(ii) In the event that the outstanding shares of the
Common Stock shall be changed into or exchanged for a different number
or kind of shares of stock or other securities of the Company whether
through recapitalization, stock split, combination of shares, or
otherwise, then there shall be substituted for each Option Share the
number and kind of shares of stock or the securities into which each
outstanding share of the Common Stock shall be so changed or for which
each such share shall be exchanged.
(iii) In the event that the outstanding shares of the
Common Stock shall be changed into or exchanged for shares of stock or
other securities of another corporation, whether through
reorganization, sale of assets, merger or consolidation in which the
Company is the surviving corporation, then there shall be substituted
for each Option Share the number and kind of shares of stock or the
securities into which each outstanding share of the Common Stock shall
be so changed or for which each such share shall be exchanged.
(iv) In the event that any sale of shares of Common
Stock (except any such sale made pursuant to any right, option, warrant
or convertible security outstanding prior to the date of this
Agreement), or the issuance of any rights, options, or warrants to
subscribe for or purchase Common Stock (or securities convertible into
or exchangeable for Common Stock) occurs after the date of this
-7-
Agreement, which sale or issuance, in the aggregate, will increase the
number of shares of Common Stock outstanding during the Term by Forty
percent (40%), then, upon each such sale or issuance, the Employee
shall be issued additional Option Shares such that, when the additional
Option Shares are aggregated with the Option Shares heretofore owned by
the Employee, the Employee has the right to purchase, at the same times
set forth in paragraph 4(c), the same percentage of Common Stock at the
same price per share as the Employee maintained prior to such sale or
issuance.
(h) Share Ownership. Neither the Employee nor the Employee's
legal representatives nor the executors or administrators of his estate
shall be or be deemed to be the holder of any share of Common Stock
covered by an Option unless and until a certificate for such share
shall have been issued.
3.4 Fringe-Benefits. The Employee shall be entitled to
participate in all bonus and benefit programs that the Company establishes and
makes available to its employees, if any, to the extent that the Employee's
position, tenure, salary, age, health and other qualifications make him eligible
to participate. The Employee shall also be entitled to holidays and annual
vacation leave in accordance with the Company's policy as it exists from time to
time.
-8-
3.5 Reimbursement of Expenses. The Company shall reimburse the
Employee for all reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, upon presentation by
the Employee of documentation, expense statements, vouchers and/or such other
supporting information as the Company may request, provided, however, that the
amount available for such travel, entertainment and other expenses may be fixed
in advance by the Board.
3.6 Insurance. The Employee will be covered under the
Company's Directors' and Officers' liability insurance to the same extent the
Company's directors and officers are covered.
4. Employment Termination. The employment of the Employee by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1 Expiration of the Employment Period in accordance with
Section 1; 4.2 At the election of the Company, for Cause (as
defined in Section 7), immediately upon written notice by the
Company to the Employee, which notice of termination shall
have been approved by a majority of the Board;
4.3 Immediately upon the death or determination of Legal
Disability (as defined in Section 7) of the Employee;
4.4 At the election of the Employee, for Good Reason (as
defined in Section 7), immediately upon written notice by the Employee to the
Company;
-9-
4.5 At the election of the Employee, within twelve (12) months
following a Change in Control (as defined in Section 7), immediately upon
written notice by the Employee to the Company;
4.6 At the election of either party, upon not less than thirty
(30) days' prior written notice of termination (the "Notice of Termination").
5. Effect of Termination.
5.1 Termination for Cause or at Election of the Employee other
than for Good Reason or due to a Change in Control. If, prior to the expiration
of this Agreement, the Employee's employment is terminated for Cause pursuant to
Section 4.2 (except in the case where such termination occurs within 12 months
following a Change in Control), or at the election of the Employee pursuant to
Section 4.6 other than for Good Reason or due to a Change in Control,
(a) the Company shall pay to the Employee the base salary and
benefits otherwise payable to him under Section 3 through the last day
of his actual employment by the Company (the "Date of Termination");
(b) the Employee shall cease to have the right to exercise any
options to purchase shares of capital stock of the Company previously
granted to the Employee pursuant to any stock option plan or other
-10-
employee benefit plan with the Company, regardless of the extent to
which they have vested, on or after the Date of Termination.
5.2 Termination by Reason of the Employee's Death or
Legal Disability. If, prior to the expiration of this Agreement, the Employee's
employment is terminated by the Employee's death or Legal Disability pursuant to
Section 4.3,
(a) the Company shall, no later than the fifth business day
following the death or determination of Legal Disability (the "Date of
Termination"), pay to the Employee, or in the case of the Employee's
death, to the estate of the Employee,
(i) the Employee's base salary and benefits otherwise
payable to him through the Date of Termination, and
(ii) an amount equal to the greater of the aggregate
base salary payments which the Employee would have received for a
six-month period after the Date of Termination if such termination had
not occurred, or $32,500, and
(b) all options to purchase shares of capital stock of the
Company previously granted to the Employee pursuant to any stock option
plan or other employee benefit plan with the Company which have not
vested at such time but which would have vested on and prior to the
next Anniversary Date shall immediately vest and become fully
-11-
exercisable in accordance with their terms for a period of ninety (90)
days following the Date of Termination.
5.3 Termination for Any Other Reason. If, prior to the
expiration of this Agreement, the Employee's employment is terminated by the
Employee for circumstances constituting Good Reason pursuant to Section 4.4 or
due to a Change in Control pursuant to Section 4.5, or by the Company for any
basis other than for Cause (as defined in Section 7) or for Cause pursuant to
Section 4.2 if within twelve (12) months following a Change in Control, the
Company shall provide the Employee with the following benefits:
(a) the Company shall pay to the Employee
(i) the Employee's base salary at the rate in effect
at the time the Notice of Termination is given, benefits and all other
compensation, including Employee's prorated cash performance bonus
calculated by multiplying the Applicable Percentage (as defined in
Section 7) by the greater of (x) the amount of the cash performance
bonus awarded or paid to the Employee with respect to the Company's
most recent full fiscal year for which such a bonus was awarded or paid
to the Employee or (y) in the case of a Change in Control, the amount
of cash performance bonus awarded or paid to the Employee with respect
to the Company's last full fiscal year prior to the Change in Control
for which such a bonus was awarded or paid to the Employee, through the
-12-
Date of Termination, no later than the fifth full day following the
Date of Termination, plus all other amounts to which the Employee is
entitled under any compensation plan of the Company at the time such
payments are due and
(ii) if the Employee so elects, in lieu of his right
to continue to receive deferred compensation under any deferred
compensation plan of the Company then in effect, no later than the
fifth full day following the Date of Termination, a lump-sum amount, in
cash, equal to the deferred amounts together with any earnings credited
on such amounts under such plan;
(b) the Company will pay as severance to the Employee an
amount equal to the sum of
(i) the greatest of (x) the aggregate Salary
payments which the Employee would have received during the balance of
the Term if such termination had not occurred, (y) in the case of a
Change in Control, the aggregate Salary payments which the Employee
would have received during the balance of the Term based on the
Employee's annual base salary in effect immediately prior to the Change
in Control, or (z) an amount equal to the Employee's highest annual
base salary achieved while employed by the Company, plus
(ii) the greater of (x) the amount of the cash
performance bonus awarded or paid to the Employee with respect to the
-13-
Company's most recent full fiscal year for which such a bonus was
awarded or paid to the Employee or (y) in the case of a Change in
Control, the amount of cash performance bonus awarded or paid to the
Employee with respect to the Company's last full fiscal year prior to
the Change in Control for which such a bonus was awarded or paid to the
Employee;
(c) all options to purchase shares of capital stock of the
Company previously granted to the Employee pursuant to any stock option
plan or other employee benefit plan with the Company which have not
vested at such time shall immediately vest and become fully exercisable
in accordance with their terms for a period of ninety (90) days
following the Date of Termination;
(d) for a one-year period after the Date of Termination, the
Company shall arrange to provide the Employee with life, disability,
dental, accident, travel and group health insurance benefits
substantially similar to those which the Employee was receiving
immediately prior to the Notice of Termination. Notwithstanding the
foregoing, the Company shall not provide any benefit otherwise
receivable by the Employee pursuant to this paragraph (d) if an
equivalent benefit is actually received by the Employee during the
one-year period following the Date of Termination and any such benefit
actually received by the Employee shall be reported to the Company; and
-14-
(e) for a six-month period after the Date of Termination, the
Company shall reimburse the Employee for reasonable fees and expenses
incurred by him for the purpose of locating employment in an amount
mutually agreed upon by and between the Employee and the Company,
including the fees and expenses of consultants and other persons
retained by him for such purpose, promptly upon receipt by the Company
of satisfactory evidence of payment of such fees and expenses.
5.4 No Requirement to Mitigate. The Employee shall not be
required to mitigate the amount of any payment provided for herein by seeking
other employment or otherwise.
5.5 Survival. The provisions of Sections 5, 6, 7, 8 and 9
shall survive the termination of this Agreement.
6. Withholding and Deductions. All payments hereunder shall be subject
to withholding and to such other deductions as shall at the time of such payment
be required pursuant to any income tax or other law, whether of the United
States or any other jurisdiction, and, in the case of payments to the executors
or administrators to the Employee's estate, the delivery to the Company of all
necessary tax waivers and other documents.
7. Definitions. For purposes of this Agreement the following
definitions apply:
-15-
7.1 "Cause" for termination shall mean the occurrence of any
of the following circumstances:
(a) a good faith finding by the Company of the Employee's
willful breach or habitual neglect or failure to perform the
material duties which he is required to perform under the terms of this
Agreement, materially fails to follow the reasonable directives or
policies established by or at the direction of the Board, or conducts
himself in a manner materially detrimental to the interests of the
Company such that the Company sustains a material loss or injury as a
result thereof and such breach or failure of performance is not cured
within thirty (30) days of the delivery to the Employee of written
notice thereof, which notice of breach or failure of performance shall
have been approved by a majority of the Board,
(b) the willful breach by the Employee of Section 8 of this
Agreement or any provision of any confidentiality, invention and
non-disclosure, non-competition or similar agreement between the
Employee and the Company, or
(c) the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to, any crime
involving moral turpitude or any felony.
7.2 "Legal Disability" shall mean the inability of the
Employee, by reason of illness, accident or other physical or mental disability,
for a period of 120 days, whether or not consecutive, during any 360-day period,
-16-
to perform the services contemplated under this Agreement. A determination of
disability shall be made by a physician satisfactory to both the Employee and
the Company; provided, however, that if the Employee and the Company do not
agree on a physician, the Employee and the Company shall each select a physician
and these two together shall select a third physician, whose determination as to
disability shall be binding on all parties.
7.3 "Good Reason" shall mean the occurrence of any of the
following circumstances, and the Company fails to cure such circumstances within
thirty (30) days of the delivery to the Company of written notice of such
circumstances:
(a) any significant diminution in the Employee's duties
and responsibilities as in effect on the Commencement Date;
(b) any reduction in the Employee's annual compensation as in
effect on the Commencement Date or as the same may be increased from
time to time;
(c) the failure of the Company to continue in effect any
material compensation or benefit plan in which the Employee
participates as in effect on the Commencement Date, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to such plan, or the failure by the Company to
continue the Employee's participation therein (or in such substitute or
-17-
alternative plan) on a basis not materially less favorable, both in
terms of the amount of benefits provided and the level of the
Employee's participation relative to other participants, as in effect
on the Commencement Date or the failure by the Company to award cash
bonuses to its executives in amounts substantially consistent with past
practice in light of the Company's financial performance;
(d) the failure by the Company to continue to provide the
Employee with benefits substantially similar to those enjoyed by the
Employee under any of the Company's insurance, medical, health and
accident, or disability plans in which the Employee was participating
as in effect on the Commencement Date, the taking of any action by the
Company which would directly or indirectly materially reduce any of
such benefits, or the failure by the Company to provide the Employee
with the number of paid vacation days to which he is entitled in
accordance with the Company's normal vacation policy in effect on the
Commencement Date or in accordance with any agreement between the
Employee and the Company existing at that time;
(e) any purported termination of the Employee's employment
which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 9, which purported termination shall not be
effective for purposes of this Agreement.
-18-
7.4 "Change in Control" shall mean the occurrence of any
of the following events:
(a) any "person," as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportion as
their ownership of stock of the Company) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 40% or more of
the combined voting power of the Company's then outstanding securities;
(b) individuals who, as of the Commencement Date, constitute
the Board (as of the Commencement Date, the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to the Commencement Date
whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to
-19-
the election of the directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such person were a
member of the Incumbent Board;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(i) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more
than 80% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation or
(ii) a merger or consolidation effected to implement
a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the
combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
7.5 "Applicable Percentage" means the percentage obtained by
dividing the number of full or partial months worked in the most recent fiscal
-20-
year for which the Employee has not been awarded or paid a cash performance
bonus by twelve.
8. Restrictive Covenants.
(a) For the purposes of this Agreement:
(i) "Proprietary Information" means all information
and know-how, whether or not in writing, of a private, secret or
confidential nature concerning the company's business or financial
affairs, including, without limitation, inventions, products,
processes, methods, techniques, formulas, compositions, compounds,
projects, developments, plans, research data, clinical data, financial
data, personnel data, computer programs and customer and supplier
lists.
(ii) "Competing Products" means any products or
processes of any person or organization other than the Company in
existence or under development, which are substantially the same, may
be substituted for, or applied to substantially the same end use as the
products or processes that the Company is developing or has developed
or commercialized during the time of the Employee's employment with the
Company.
(iii) "Competing Organization" means any person or
organization engaged in, or about to become engaged in, research or
-21-
development, production, distribution, marketing or selling of a
Competing Product.
(b) The Employee understands that information regarding the
Company and its affiliates including, without limitation, Proprietary
Information, is considered confidential to the Company and is of
substantial commercial value to the Company. Any entrusting of such
confidential information to the Employee by the Company is done so in
reliance upon the confidential relationship arising from the terms of
his employment with the Company. Therefore, in consideration of his
employment with the Company,
(i) the Employee will not, during or after the
Employment Period, disclose any such confidential information to any
person, firm, corporation, association, or other entity for any reason
or purpose whatsoever, except within the scope of his duties and
responsibilities in the ordinary course of business, unless ordered to
do so by a court or other tribunal or government agency with
jurisdiction over the subject matter and Employee;
(ii) the Employee acknowledges that he has, on or
prior to the date of the Agreement, executed and delivered to the
Company a Non-Disclosure Agreement (the "Confidentiality Agreement")
and the Employee hereby affirms and ratifies his obligations
thereunder; and
(iii) the Employee agrees that after termination by
the Company for Cause pursuant to Section 4.2 (except in the case where
-22-
such termination occurs within 12 months following a Change in
Control), or by the Employee pursuant to Section 4.6 other than for
Good Reason or due to a Change in Control, he will not render services
of any nature, directly or indirectly, to any Competing Organization in
connection with any Competing Product within such geographical
territory as the Company and such Competing Organization are or would
be in actual competition, for a period of eighteen (18) months,
commencing on the Date of Termination, provided, however, the
aforementioned restrictions shall not be applicable to activities in
which the Employee was, and continued to be, engaged in on the
Commencement Date, including the activities provided for in Section 2.2
hereof. The Employee understands that services rendered to such
Competing Organization may have the effect of supporting actual
competition in various geographic areas, and may be prohibited by this
Agreement regardless of the geographic area in which such services are
physically rendered. The Company may, in its sole discretion, elect to
waive, in whole or in part, the obligation set forth in the previous
sentence, such waiver to be effective only if given in writing by the
Company.
(c) The Employee agrees that he will not, during the
Employment Period and for a period of nine (9) months commencing on the
Date of Termination, directly or indirectly employ, solicit for
-23-
employment, or advise or recommend to any other person that they employ
or solicit for employment, any person whom he knows to be an employee
of the Company or any parent, subsidiary or affiliate of the Company.
(d) In the event a court of competent jurisdiction should find
any provision in this Section 8 to be unfair or unreasonable, such
finding shall not render such provision unenforceable, but, rather,
this provision shall be modified as to subject matter, time and
geographic area so as to render the entire Section valid and
enforceable.
9. Notices. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 9.
10. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
11. Entire Agreement. This Agreement, together with the Confidentiality
Agreement, constitutes the entire agreement between the parties and supersedes
-24-
all prior agreements and understandings, whether written or oral, relating to
the subject matter of this Agreement.
12. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of New Jersey, without regard to its
principles of conflict of laws.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business; provided, however, that
the obligations of the employee are unique and personal and shall not be
assigned by him.
15. Waiver of Breach.
15.1 Waiver by the Company. No delay or omission by the
Company in exercising any right under this Agreement shall operate as a waiver
of that or any other right. A waiver or consent given by the Company on any one
occasion shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion. No waiver by the Company
shall be valid unless in a writing signed by an authorized officer of the
Company and approved by an absolute majority of the Board.
-25-
15.2 Waiver by the Employee. No delay or omission by the
Employee in exercising any right under this Agreement shall operate as a waiver
of that or any other right. A waiver or consent given by the Employee on any one
occasion shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion. No waiver by the Employee
shall be valid unless in a writing signed by the Employee.
16. Miscellaneous.
16.1 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
16.2 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall be no way be affected or impaired thereby.
-26-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
an instrument under seal as of the day and year set forth above.
PALATIN TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
-27-
