EXHIBIT 10.30
[PALATIN LOGO OMMITTED]
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 9th
day of May, 2005 is entered into by Palatin Technologies, Inc., a Delaware
corporation with its principal place of business at 0X Xxxxx Xxxxx Xxxxx,
Xxxxxxxx, XX, 00000 (the "Company"), and Xxxxxx Xxxxxx, residing at
______________________________________ (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:
1.0 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 a two year period commencing on May 9, 2005
(the "Commencement Date") and ending on the second anniversary of the
Commencement Date unless sooner terminated in accordance with the
provisions of Section 4.
2.0 Position Title & Capacity
2.1 The Employee shall serve as Executive Vice President of Research and
Development, with responsibilities consistent with this position and
as the Chief Executive Officer of the Company (the "Chief Executive
Officer") 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 Chief Executive Officer or the Board, consistent with
the Employee's position as Executive Vice President of Research and
Development. The Employee shall report to the Company's Chief
Executive Officer. The Employee shall be based at the Company's
corporate headquarters, which is based in Cranbury, New Jersey. The
Employee shall also be available for travel at such times and to such
places as may be reasonably necessary in connection with the
performance of his duties hereunder.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 1 of 17
2.2 The Employee may serve as an employee director on the Company's Board
of Directors (the "Board") as determined and approved by the Board
during the employment period; however upon termination of employment
for any reason, the Employee will no longer serve as a member of the
Company's Board of Directors and will take any and all actions
necessary to effectuate such resignation as may be reasonably
requested by the Company.
2.3 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 Chief Executive Officer and
the Board shall from time to time reasonably assign to him. The
Employee agrees to devote substantially all of his business time,
attention and energies to the business and interests of the Company
during the Employment Period. 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.
2.4 The Employee specifically covenants, warrants and represents to the
Company that he has the full, complete and entire right and authority
to enter into this Agreement, that he has no agreement, duty,
commitment or responsibility of any kind or nature whatsoever with any
corporation, partnership, firm, company, joint venture or other entity
or other person which would conflict in any manner whatsoever with any
of his duties, obligations or responsibilities to the Company pursuant
to this Agreement, that he is not in possession of any document or
other tangible property of any corporation, partnership, firm,
company, joint venture or other entity or other person of a
confidential or proprietary nature which would conflict in any manner
whatsoever with any of his duties, obligations or responsibilities to
the Company pursuant to his Agreement, and that he is fully ready,
willing and able to perform each and all of his duties, obligations
and responsibilities to the Company pursuant to this Agreement.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 2 of 17
3.0 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:
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 $275,000. 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, but the Board shall not
decrease the Employee's annual base salary at any such annual review.
3.2 Cash Performance Bonus. The Employee will be included in the Company's
annual discretionary bonus compensation program based on a June 30th
year end in an amount to be decided by the Company's Compensation
Committee and approved by the Board, payable no later than September
30th of each year during the Employment Period. Such performance bonus
compensation shall be based upon 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 has granted to the Employee, the right and option (the
"Option") to purchase 350,000 shares of the Company's Common Stock
(the "Option Shares"), subject to approval by the Board and the
vesting schedule set forth in subparagraph c hereof and the
adjustments set forth in subparagraph g hereof. The Option is intended
to be, to the maximum extent possible, a qualified incentive stock
option, subject to the aggregate fair market value and other
provisions of the Internal Revenue Service Code, as described in the
Company's 1996 Stock Option Plan (the "Plan"). To the extent there are
any inconsistencies between this Agreement and the provisions of the
Plan, the provisions of the Plan shall govern.
(a) Purchase Price. Except as otherwise provided in subparagraph g
hereof, the purchase price (the "Option Price") of the Option
Shares shall be as stated on the option grant as approved by the
Company's Board of Directors.
(b) Option Term. Except as otherwise provided in the Plan or in this
Agreement, the Option shall expire on the first to occur of: (i)
if the Employee has completed less than one year of service, one
year but less than 2 years of service, or two or more years of
service, options shall expire 90 days, 12 months or 24 months
following the Employee's termination of employment, respectively
or (ii) 10 years from the Commencement Date.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 3 of 17
(c) Exercise of Options.
(i) Except as otherwise provided in the Plan and under section
3.3b hereof, the right of the Employee to exercise Stock
Options 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) Except as otherwise provided in the Plan and per the
provisions as stated on the option grant approved by the
Company's Board of Directors, 250,000 Stock Options shall
vest in annual one-fourth increments commencing on the date
of grant, 50,000 Stock Options shall vest on filing of an
IND exclusive of PT-141 and NeutroSpec and 50,000 Stock
Options shall vest on any of the following events:
license/collaboration agreement involving MIDAS technology
or a preclinical program or in-licensing/acquisition of a
technology or product opportunity.
(iii) The Options 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 Options.
(i) The Option may be exercised by giving written notice, in
form substantially as set forth in the Company's Stock
Option Exercise Form, 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 such Option Shares. Only full
shares shall be delivered and any fractional share which
might otherwise be deliverable upon exercise of the Option
shall be forfeited. The purchase price for the Option Shares
shall be payable, in cash or its equivalent.
(ii) 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 Option Shares with respect to which the
Option is exercised. The certificate or certificates for
such Option 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.
(iii) In the event the Option is exercised by any person
after the death or Disability of the Employee, such notice
shall be accompanied by appropriate proof of the right of
such person to exercise the Option. All Option Shares
purchased upon the exercise of the Option as provided herein
shall be fully paid and non-assessable by the Company.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 4 of 17
(e) Non-transferability of Option. The Option may not be assigned or
transferred, 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 Disability, by his legal
representative.
(f) Withholding of Taxes. The obligation of the Company to deliver
Option 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 distributed
thereon if such Option Share had been outstanding on the
date fixed for determining the shareholders entitled to
receive such stock dividend.
(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 re-capitalization, 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.
(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.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 5 of 17
3.4 Fringe-Benefits. The Employee shall be entitled to participate in all
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.
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 other officers are covered.
4.0 Employment Termination. The Company agrees to provide the Employee with a
minimum 6 months notice period unless a greater period is provided in this
section if the Employee is terminated at the election of the Company or at
the Employee's election for "good reason" (as defined in Section 6) even if
there is no Employment Agreement in effect upon the Employee's actual
termination date. 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
unless continued employment is mutually agreed upon between the
Company and the Employee;
4.2 At the election of the Company, for Cause (as defined in Section 6),
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 Disability (as defined
in Section 6) of the Employee;
4.4 At the election of the Employee, for Good Reason (as defined in
Section 6), immediately upon written notice of not less than sixty
(60) days prior to termination by the Employee to the Company;
4.5 At the election of the Employee, within twelve (12) months following a
Change in Control (as defined in Section 6), immediately upon written
notice by the Employee to the Company;
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 6 of 17
4.6 At the election of either party, upon written notice of termination
(the "Notice of Termination").
5.0 Effect of Termination
5.1 Compensation & Benefits (a) As referenced in this section,
compensation following the Employee's termination shall be in the form
of severance. Severance will be based on the employee's base salary in
effect as of the employee's last day of employment, and will be paid
in installments in accordance with the Company's regular payroll
schedule in effect at the time of termination. (b) Severance is not
considered compensation for purposes of employee and employer matching
contributions under the 401(k) plan; (c) As referenced in this
section, upon termination of the Employee's employment with the
Company, medical and dental benefits will be available to the
Employee, at his election, solely pursuant to the provisions of COBRA
with the Company paying the full cost of COBRA coverage for a period
up to 18 months if employment is terminated for any reason except an
Employee resignation without Good Reason (as defined in Section 6) and
a Company discharge for Cause. If the Employee is discharged for Cause
or the Employee resigns without Good Reason, the Employee will be
required to remit the COBRA cost (102% of total benefit cost) of
coverage. (d) Upon termination of the Employee's employment with the
Company, apart from the Employee's election under COBRA to continue
medical and dental benefits (as described in Section 5.1c), the
Employee will cease to be eligible for participation in the Company's
health and welfare insurance and any other fringe benefit programs
that pursuant to their contracts or Company policy require an active
employee status. (e) Upon termination of the Employee's employment
with the Company, apart from the Employee's election under COBRA to
continue medical and dental benefits (as described in Section 5.1c),
the Employee will cease to be eligible for participation in the
Company's health and welfare insurance and any other fringe benefit
programs that pursuant to their contracts or Company policy require an
active employee status.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 7 of 17
5.2 Termination By The Company or at Election of the Employee (other than
for Good Reason).
(a) If the Employee elects to terminate his employment (other than
for Good Reason) pursuant to Section 4.6, no severance and/or
benefits shall be paid, and the Employee shall be entitled only
to receive payment of his earned but unpaid salary, and accrued
vacation, as of his last day of actual employment by the Company
(the "Date of Termination");
(b) If the Company elects to terminate the Employee (other than for
Cause) pursuant to Section 4.6, the Company shall pay to the
Employee his salary in effect at that time for the greater of an
eighteen (18) month period following the Date of Termination, or
for the duration of the then current Employment Period, plus
medical and dental benefits (as described in Section 5.1c);
(c) If the Company terminates the Employee for Cause pursuant to
Section 4.2, no severance and/or benefits shall be paid, and the
Employee shall be entitled only to receive payment of his earned
but unpaid salary, and accrued vacation, as of the Date of
Termination. Employee may elect COBRA medical and dental
benefits, in which case the Employee will be required to remit
the COBRA cost (102% of total benefit cost) of coverage.
5.3 Termination By Employee Election For Good Reason. If the Employee
terminates employment at his election for Good Reason pursuant to
Section 4.4, the Company shall pay to the Employee his salary in
effect at that time for the greater of an eighteen (18) month period
following the Date of Termination, or for the duration of the then
current Employment Period, plus medical and dental benefits (as
described in Section 5.1c).
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 8 of 17
5.4 Termination Following a Change In Control. If the Employee or Company
terminates the employment relationship following a Change In Control
pursuant to Section 4.5: (a) The Company shall pay to the Employee his
annual salary in effect at that time in a lump sum amount, calculated
at one and one-half (1.5) times such annual salary, within five (5)
business days following the Date of Termination plus medical/dental
care benefits (as described in Section 5.1c); (b) All options to
purchase shares of capital stock of the Company previously granted to
the Employee pursuant to any stock option plan with the Company which
have not vested at such time shall immediately vest and become fully
exercisable in accordance with their terms, and shall remain
exercisable for a period of a) 12 months following the Date of
Termination if the Employee has less than two years of employment with
the Company or b) 24 months following the Date of Termination in the
Employee has two or more years of employment with the Company; (c) For
a six (6) 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, not to
exceed $25,000, 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, within ten days,
receipt by the Company of satisfactory evidence of payment of such
fees and expenses.
5.5 Termination by Reason of the Employee's Death or Disability. If, prior
to the expiration of the Employment Period, the Employee's employment
is terminated by the Employee's death or Disability pursuant to
Section 4.3,
(a) The Company shall pay to the Employee, or in the case of the
Employee's death, to the estate of the Employee, the severance
and medical and dental benefits (as described in Section 5.1c).
(b) All options to purchase shares of capital stock of the Company
previously granted to the Employee pursuant to any stock option
plan with the Company which have not vested at such time shall
immediately vest and become fully exercisable in accordance with
their terms, and shall remain exercisable for a period of 24
months following the Date of Termination.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 9 of 17
5.6 Withholding and Deductions. (a) 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. (b) In the event the Employee is required
pursuant to Section 4999 of the Internal Revenue Code to pay (through
withholding or otherwise) an excise tax on "excess parachute payments"
(as defined in Section 280G(b) of the Code) made by the Company
pursuant to Section 5.4 of this Agreement, the Company shall pay the
Employee such additional amounts as are necessary to place the
Employee in the same after tax financial position that he would have
been in if he had not incurred any tax liability under Section 4999 of
the Code. (c) In the event the Employee is required to pay any
federal, state or local income taxes as a result of the Company's
payment of the Employee's COBRA premiums under this Section 5, the
Company shall pay the Employee such additional amounts as are
necessary to place the Employee in the same after-tax financial
position that he would have been in if he had not incurred any such
tax liability.
5.7 Release of Claims. The Employee's entitlement to severance, payment of
COBRA premiums, and accelerated vesting of options under any
subparagraph of this Section 5, is contingent upon the Employee's
execution of a general release of claims in a form prepared by the
Company and presented to the Employee upon termination of his
employment hereunder, as well as the Employee's compliance with the
provisions of Section 7 hereof.
5.8 No Requirement to Mitigate. The Employee shall not be required to
mitigate the amount of any payment provided for in this Section 5 by
seeking other employment or otherwise.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 10 of 17
6.0 Definitions. For purposes of this Agreement the following definitions
apply:
6.1 "Cause" shall mean the occurrence of any of the following
circumstances:
(a) (i) the Employee's material breach of, or habitual neglect or
failure to perform the material duties which he is required to
perform under, the terms of this Agreement; (ii) the Employee's
material failure to follow the reasonable directives or policies
established by or at the direction of the Board; or (iii) the
Employee's engaging in conduct that is materially detrimental to
the interests of the Company such that the Company sustains a
material loss or injury as a result thereof, provided that the
breach or failure of performance by the Employee under
subparagraphs (i) through (iii) hereof is not cured, to the
extent cure is possible, within ten (10) days of the delivery to
the Employee of written notice thereof;
(b) the willful breach by the Employee of Section 7 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. 6.2 "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, 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.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 11 of 17
6.3 "Good Reason" shall mean the occurrence of any of the following
circumstances, and the Company's failure to cure such circumstances
within thirty (30) days of the delivery to the Company of written
notice by the Employee of such circumstances:
(a) any significant diminution in the Employee's duties and
responsibilities as described in Section 2.1 hereof, or
assignment of duties and responsibilities inconsistent with the
Employee's position;
(b) any reduction in the Employee's salary 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 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;
(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 health and welfare insurance,
retirement and other fringe-benefit plans insurance, 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; or
(e) the relocation of the Employee to a location which is greater
than fifteen (15) miles from Cranbury, New Jersey.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 12 of 17
6.4 "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 50% 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 (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 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 re-capitalization of the
Company (or similar transaction) in which no "person" (as defined
in Section 6.4(a)) acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or
(d) a sale of all or substantially all of the assets of the Company.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 13 of 17
7.0 Restrictive Covenants
(a) For the purposes of this Agreement:
(i) "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.
(ii) "Competing Organization" means any person or organization engaged
in, or with definitive plans to become engaged in, research or
development, production, distribution, marketing or selling of a
Competing Product.
(b) The Employee acknowledges that he has, on or prior to the date of the
Agreement, executed and delivered to the Company an Employee Agreement
on Confidentiality, Intellectual Property, Debarment Certification and
Conflict of Interest (the "Confidentiality Agreement") and the
Employee hereby affirms and ratifies his obligations thereunder; and
the Employee agrees that after termination by the Company for Cause
pursuant to Section 4.2 (except in the case where such termination
occurs within 12 months following a Change in Control), by the
Employee pursuant to Section 4.6, or by either party upon expiration
of the Employment Period, he will not render services of any nature,
directly or indirectly, to any Competing Organization in connection
with any Competing Product within any geographical territory as the
Company and such Competing Organization are or would be in actual
competition, for a period of six (6) months, commencing on the Date of
Termination.
(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 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.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 14 of 17
(d) In the event a court of competent jurisdiction should find any
provision in this Section 7 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.
8.0 Notices. All notices required or permitted under this Agreement shall be in
writing and shall be deemed effective upon either: (a) personal delivery;
or (b) three (3) days following deposit in the United States Post Office
for delivery by registered or certified mail, postage prepaid, or one (1)
day following deposit with a reputable overnight courier service, 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 8.
9.0 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.
10.0 Entire Agreement. This Agreement, together with the "Confidentiality
Agreement", constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or
oral, relating to the subject matter of this Agreement.
11.0 Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
12.0 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.
13.0 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.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 15 of 17
14.0 Waiver of Breach.
14.1 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 writing
signed by an authorized officer of the Company and approved by a
majority of the Board.
14.2 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 writing
signed by the Employee.
15.0 Miscellaneous.
15.1 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.
15.2 In case any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired
thereby.
16.0 Survival. The provisions of Sections 3.3, 5, 6, 7 and 8 shall survive the
termination of this Agreement.
17.0 Attorney's Fees. The Company shall reimburse the Employee for all legal
fees and expenses associated with the negotiation and drafting of this
Agreement, upon reasonable documentation thereof, up to a maximum of
$2,500.
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 16 of 17
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. EMPLOYEE
By:_____________________________ ________________________________
Name: Xxxx Xxxxxxxxxxx Xxxxxx Xxxxxx
Title: Chairman of the Board Executive Vice President Research &
Development
Date:____________________________ Date: ____________________________
Employment Agreement, Xxxxxx Xxxxxx May 9, 2005 - April 30, 2007
Page 17 of 17
