EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is entered into as of November
1, 2004, between LEV PHARMACEUTICALS, INC., a Delaware Company (with its
successors and assigns, referred to as the "Company") and Xxxxxx X. Xxxxxx
(referred to as "Xxxxxx").
WHEREAS, the Company and Xxxxxx desire to enter into an agreement to
provide for Xxxxxx'x employment by the Company upon the terms and conditions set
forth in this Agreement
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual agreements and covenants hereinafter set forth, the parties hereto agree
to the terms and conditions of this Agreement as follows:
1. Employment for Term. The Company hereby employs Xxxxxx and Xxxxxx hereby
accepts employment with the Company for the period beginning on November 1, 2004
and ending October 31, 2008. (the "Initial Term"), or upon the earlier
termination of the Term pursuant to Section 6. This Agreement shall be
automatically renewed for additional one-year periods (the "Renewal Terms;"
together with the Initial Term, the "Term") unless either party notifies the
other in writing of its intention not to so renew this Agreement no less than 90
days prior to the expiration of the Initial Term or a Renewal Term. The
termination of Xxxxxx'x employment under this Agreement shall end the Term but
shall not terminate Xxxxxx'x or the Company's other agreements in this
Agreement, except as otherwise provided herein.
2. Position and Duties. During the Term, Xxxxxx shall serve as Chairman and
Executive Vice President of the Company. During the Term, Xxxxxx shall also hold
such additional positions and titles as the Board of Directors of the Company
(the "Board") may determine from time to time. During the Term, Xxxxxx shall
devote as much time as is necessary to satisfactorily perform his duties as an
employee of the Company.
3. Compensation.
(a) Base Salary. The Company shall pay Xxxxxx a base salary, beginning on
the first day of the Term and ending on the last day of the Term, of not less
than $312,500 per annum, payable at least monthly on the Company's regular pay
cycle for professional employees (the "Base Salary").
(b) Stock Options. Pursuant to the Company's 2004 Omnibus Incentive
Compensation Plan (the "Plan"), the Company shall grant to Xxxxxx fully-vested
incentive options to purchase 500,000 shares of the Company's Common Stock
exercisable at $0.85 per share (the "Options"). The Options shall expire on
November 1, 2014.
(c) Annual Increases. The Base Salary shall be increased at the end of each
year of service by the greater of (i) 5% or (ii) a percentage equal to the
increase, if any, in the United States Department of Labor Consumer Price Index
(or comparable index, if available) for the New York metropolitan area over the
previous 12 months.
(d) Other and Additional Compensation. The preceding sections establish the
minimum compensation during the Term and shall not preclude the Board from
awarding Xxxxxx a higher salary or any bonuses or stock options in the
discretion of the Board during the Term at any time. The Company will adopt a
bonus plan and Xxxxxx will be eligible to participate in such plan. The Company
shall pay Xxxxxx a monthly car allowance of $500.
4. Employee Benefits. During the Term, Xxxxxx shall be entitled to the
employee benefits including vacation, 401(k) plan, health plan and other
insurance benefits made available by the Company to any other officers or key
employees of the Company.
5. Expenses. The Company shall reimburse Xxxxxx for actual out-of-pocket
expenses incurred by him in the performance of his services for the Company upon
the receipt of appropriate documentation of such expenses.
6. Termination.
(a) General. The Term shall end immediately upon Xxxxxx'x death. The Term
may also end for Cause or Disability, as defined in Section 7.
(b) Notice of Termination. Promptly after it ends the Term, the Company
shall give Xxxxxx notice of the termination, including a statement of whether
the termination was for Cause or Disability (as defined in Section 7(a) and 7(b)
below). The Company's failure to give notice under this Section 6(b) shall not,
however, affect the validity of the Company's termination of the Term.
(c) Effective Termination by the Company. If the Company reassigns Xxxxxx'x
base of operations outside of New York City, or materially reduces Xxxxxx'x
duties during the term, including replacing Xxxxxx as Chief Executive Officer,
then, at his option, Xxxxxx may treat such reduction in duties as a termination
of the Term without Cause by the Company.
7. Severance Benefits.
(a) Cause Defined. "Cause" means (i) willful malfeasance or willful
misconduct by Xxxxxx in connection with his employment; (ii) Xxxxxx'x gross
negligence in performing any of his duties under this Agreement; (iii) Xxxxxx'x
conviction of, or entry of a plea of guilty to, or entry of a plea of nolo
contendre with respect to, any crime other than a traffic violation or
infraction which is a misdemeanor; (iv) Xxxxxx'x material breach of any written
policy applicable to all employees adopted by the Company which is not cured to
the reasonable satisfaction of the Company within thirty (30) business days
after notice thereof; or (v) material breach by Xxxxxx of any of his agreements
in this Agreement which is not cured to the reasonable satisfaction of the
Company within thirty (30) business days after notice thereof.
(b) Disability Defined. "Disability" shall mean Xxxxxx'x incapacity due to
physical or mental illness that results in his being substantially unable to
perform his duties hereunder for six consecutive months (or for six months out
of any nine month period). During a period of Disability, Xxxxxx shall continue
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to receive his base salary hereunder, provided that if the Company provides
Xxxxxx with disability insurance coverage, payments of Xxxxxx'x base salary
shall be reduced by the amount of any disability insurance payments received by
Xxxxxx due to such coverage. The Company shall give Xxxxxx written notice of
termination which shall take effect sixty (60) days after the date it is sent to
Xxxxxx unless Xxxxxx shall have returned to the performance of his duties
hereunder during such sixty (60) day period (whereupon such notice shall become
void).
(c) Termination. If the Company ends the Term for Cause or Disability, or
if Xxxxxx resigns as an employee of the Company for reasons other than a
material breach by the Company of its obligations under this Agreement or a
material reduction of Xxxxxx'x duties as provided in Section 6(c), or if Xxxxxx
dies, then the Company shall have no obligation to pay Xxxxxx any amount,
whether for salary, benefits, bonuses, or other compensation or expense
reimbursements of any kind, accruing after the end of the Term, and such rights
shall, except as otherwise required by law, be forfeited immediately upon the
end of the Term, except that payments under Section 3(a) shall continue for the
remainder of the Term unless the Company ends the Term for Cause or if Xxxxxx
resigns for reasons other than a material breach by the Company of its
obligations under this Agreement or a material reduction of his duties as
provided in Section 6(c). If the Company ends the Term without Cause, then the
Company will be obligated to continue to pay Xxxxxx'x salary and all other
amounts due hereunder for the remainder of the Term.
8. Change of Control Payment. The provisions of this paragraph 8 set forth
the terms of an agreement reached between Xxxxxx and the Company regarding
Xxxxxx'x rights and obligations upon the occurrence of a "Change in Control" (as
hereinafter defined) of the Company. These provisions are intended to assure and
encourage in advance Xxxxxx'x continued attention and dedication to his assigned
duties and his objectivity during the pendency and after the occurrence of any
such Change in Control. These provisions shall apply in lieu of, and expressly
supersede, the provisions of paragraph 7(c) if Xxxxxx'x employment is terminated
or Notice of Termination is given ninety (90) days prior to or within eighteen
(18) months after the occurrence of an event constituting a Change in Control.
(a) Escrow. Within ten (10) days after the occurrence of the first event
constituting a Change in Control (irrespective of whether Xxxxxx has actual
knowledge of such event), the Company shall place immediately negotiable funds
in escrow in an amount equal to Xxxxxx'x salary and all other amount due
hereunder for the remainder of the Term, plus such additional amount as equals
the "Gross Up Payment" (as hereinafter defined) thereon (the "Change of Control
Amount"). Such escrow shall be conducted pursuant to a standard escrow agreement
among the Company, Xxxxxx and an independent escrow agent providing for the
timely payment to Xxxxxx of the amounts hold in such escrow in the event Xxxxxx
becomes entitled thereto under the applicable provisions of this Agreement (the
"Escrow Arrangement"). The Escrow Arrangement shall be maintained until the
earlier of (A) nineteen (19) months after the occurrence of an event
constituting a Change in Control or (B) the payment to Xxxxxx of all sums
escrowed.
(b) Change In Control. If, within 90 days prior to, or within eighteen (18)
months after the occurrence of an event constituting a Change in Control,
Xxxxxx'x employment is terminated or a Notice of Termination is given for any
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reason other than (A) his death, (B) his Disability, or (C) by Xxxxxx without
Cause on the part of the Company, then such termination shall be deemed to be a
"Termination Due to Change in Control (herein so called), in which event the
Company shall pay Xxxxxx, in a lump sum, on or prior to the fifth (5th) day
following the date of termination of the Term:
(1) an amount equal to the Change of Control Amount (including any
Gross Up Payment); and
(2) Cooper's accrued and unpaid base salary.
(c) Stock Option Floor. Upon the occurrence of the first event constituting
a Change in Control, all stock options and other stock-based grants to Xxxxxx by
the Company shall, irrespective of any provisions of his option agreements,
immediately and irrevocably vest and become exercisable as of the date of such
first event whereupon, at any time during the Option Term as defined in the
option agreements, Xxxxxx or his estate may by five (5) days' advance written
notice given to the Company, and irrespective of whether Xxxxxx is then employed
by the Company or then living, and solely at the election of Xxxxxx or his
estate, require the Company to:
(1) if the Company is a reporting company under the Securities
Exchange Act of 1934, as amended, within thirty (30) days of a request by
Xxxxxx or his estate file and cause to become effective a Form S-8 (or
other appropriate form) with the Securities and Exchange Commission ("SEC")
registering for resale all shares underlying stock options granted to
Xxxxxx and outstanding with all fees and expenses of such filing being paid
by the Company, or,
(2) allow Xxxxxx to exercise all or any part of such Stock Options at
the option prices therefor specified in the grant of the Stock Options.
In the event the Company does not file and cause to become effective a Form
S-8 (or other appropriate form) with the SEC within the thirty (30) day time
period, the Company shall pay liquidated damages to Xxxxxx or his estate equal
to the greater of (a) the amount equal to the difference between the Market
Price of the Company's common stock and the exercise price of the stock options
multiplied by the aggregate number of stock options outstanding or (b) $500,000.
For purposes of this Section 8(c), Market Price is defined as the average of the
closing bid and ask price of the Company's common stock on the Nasdaq SmallCap
Market or the closing sale price of the common stock on a national exchange, if
listed on such exchange, in each case, on the day prior to the date of the
Company's breach of this Section 8(c).
(d) Gross Up Payment.
(1) Excess Parachute Payment. If Xxxxxx incurs the tax (the "Excise
Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 (the
"Code") on "Excess Parachute Payments" within the meaning of Section
28OG(b)(1) of the Code, the Company will pay to Xxxxxx an amount (the
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"Gross Up Payment") such that the net amount retained by Xxxxxx, after
deduction of any Excise Tax on both the Excess Parachute Payment and any
federal, state and local income tax (together with penalties and interest)
as well as the Excise Tax upon the payment provided for by this
subparagraph 8(d)(1), will be equal to the Change of Control Amount.
(2) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Xxxxxx will be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year in
which the Gross Up Payment is to be made and state and local income taxes
at the highest marginal rates of taxation in the state and locality where
taxes thereon are lawfully due, net of the maximum reduction (if any) in
federal income taxes that could be obtained from deduction of deductible
state and local taxes.
(3) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the opinion of tax counsel selected by Xxxxxx and reasonably approved by
the Company, which approval will not be unreasonably withheld or delayed.
If such opinion is not finally accepted by the Internal Revenue Service (or
state and local taxing authorities), then appropriate adjustments to the
Excise Tax will be computed and additional Gross Up Payments will be made
in the manner provided by this subparagraph (d).
(4) Payment. The Company will pay the estimated amount of the Gross Up
Payment in cash to Xxxxxx at the time specified in this Agreement. Xxxxxx
and the Company agree to reasonably Cooperate in the determination of the
actual amount of the Gross Up Payment. Further, Xxxxxx and the Company
agree to make such adjustments to the estimated amount of the Gross Up
Payment as may be necessary to equal the actual amount of the Gross Up
Payment, which in the case of the Company will refer to refunds of prior
overpayments by the Company and in the case of Xxxxxx will refer to
additional payments to Xxxxxx to make up for prior underpayments.
(e) Definitions. For purposes of this paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(1) the acquisition by any individual, entity, or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Excluded Group (as defined herein), of beneficial ownership (within the
meaning of Rule 13d-3- promulgated under the Exchange Act) of 35% or more
of the combined voting power or economic interests of the then outstanding
voting securities of the Company entitled to vote generally in the election
of directors; provided however, that any transfer from Xxxxxx Xxxxxx or
Xxxxxx Xxxxxx (the "Excluded Group") will not result in a Change in Control
if such transfer was part of a series of related transactions the effect of
which, absent the transfer to such Acquiring Person by the Excluded Group,
would not have resulted in the acquisition by such Acquiring Person of 35%
or more of the combined voting power or economic interests of the then
outstanding voting securities; or
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(2) during any period of 12 consecutive months after the date of this
Amendment, the individuals who at the beginning of any such 12-month period
constituted a majority of the Directors (the "Incumbent Non-Investor
Majority") cease for any reason to constitute at least a majority of such
Directors; provided that (i) any individual becoming a director whose
election, or nomination for election by the Company's stockholders, was
approved by a vote of the stockholders having the right to designate such
director and (ii) any director whose election to the Board or whose
nomination for election by the stockholders of the Company was approved by
the requisite vote of directors entitled to vote on such election or
nomination in accordance with the Restated Certificate of InCompany of the
Company, shall, in each such case, be considered as though such individual
were a member of the Incumbent Non-Investor Majority, but excluding, as a
member of the Incumbent Non-Investor Majority, any such 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-2 of Regulation 14A promulgated under
the Exchange Act) and further excluding any person who is an affiliate or
associate of an Acquiring Person having or proposing to acquire beneficial
ownership of 25% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors; or
(3) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger, or consolidation do not,
following such reorganization, merger, or consolidation, beneficially own,
directly or indirectly, more than 50% of the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors of the Company resulting from such reorganization,
merger, or consolidation; or
(4) the sale or other disposition of assets representing 50% or more
of the assets of the Company in one transaction or series of related
transactions not initiated or commenced by any person within the Excluded
Group; or
(5) a "Fundamental Change in Business" as hereinafter defined; or
(6) a "Hostile Takeover" as hereinafter defined is declared.
"Fundamental Change in Business" shall mean that the Company, at any
time, no longer spends at least fifty percent (50%) of its annual budget on
activities related to biotechnology or pharmaceuticals.
"Hostile Takeover" shall mean any Change in Control which at any time
is declared by at least a majority of the Board, directly or indirectly, to
be hostile or not in the best interests of the Company, or in which an
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attempt is made (irrespective of whether successful) to wrest control away
from the incumbent management of the Company, or with respect to which the
Board makes any effort to resist.
9. Confidentiality, Ownership, and Covenants.
(a) "Company Information" and "Inventions" Defined. "Company Information"
means all information, knowledge or data of or pertaining to (i) the Company,
its employees and all work undertaken on behalf of the Company, and (ii) any
other person, firm, Company or business organization with which the Company may
do business during the Term, that is not in the public domain (and whether
relating to methods, processes, techniques, discoveries, pricing, marketing or
any other matters). "Inventions" collectively refers to any and all inventions,
trade secrets, ideas, processes, formulas, source and object codes, data,
programs, other works of authorship, know-how, improvements, research,
discoveries, developments, designs, and techniques regarding any of the
foregoing.
(b) Confidentiality.
(i) Xxxxxx hereby recognizes that the value of all trade secrets and
other proprietary data and all other information of the Company
not in the public domain disclosed by the Company in the course
of his employment with the Company may be attributable
substantially to the fact that such confidential information is
maintained by the Company in strict confidentiality and secrecy
and would be unavailable to others without the expenditure of
substantial time, effort or money. Xxxxxx, therefore, except as
provided in the next two sentences, covenants and agrees that all
Company Information shall be kept secret and confidential at all
times during the Term and for the five (5) year period after the
end of the Term and shall not be used or divulged by him outside
the scope of his employment as contemplated by his Agreement,
except as the Company may otherwise expressly authorize by action
of the Board. In the event that Xxxxxx is requested in a
judicial, administrative or governmental proceeding to disclose
any of the Company Information, Xxxxxx will promptly so notify
the Company so that the Company may seek a protective order of
other appropriate remedy and/or waive compliance with this
Agreement. If disclosure of any of the Company Information is
required, Xxxxxx may furnish the material so required to be
furnished, but Xxxxxx will furnish only that portion of the
Company Information that legally is required.
(ii) Xxxxxx also hereby agrees to keep the terms of this Agreement
confidential to the same extent that the Company maintains such
confidentiality (except with regard to any disclosure by the
Company required under applicable securities laws).
(c) Ownership of Inventions, Patents and Technology. Xxxxxx hereby assigns
to the Company all of Xxxxxx'x rights (including patent rights, copyrights,
trade secret rights, and all other rights throughout the world), title and
interest in and to Inventions, whether or notpatentable or registrable under
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copyright or similar statutes, made or conceived or reduced to practice or
learned by Xxxxxx, either alone or jointly with others, during the course of the
performance of services for the Company. Xxxxxx shall also assign to, or as
directed by, the Company, all of Xxxxxx'x right, title and interest in and to
any and all Inventions, the full title to which is required to be in the United
States government of any of its agencies. The Company shall have all right,
title and interest in all research and work product produced by Xxxxxx as an
employee of the Company, including, but not limited to, all research materials
and lab books.
(d) Remedies. Xxxxxx hereby acknowledges that the covenants and agreements
contained in Section 9 are reasonable and valid in all respects and that the
Company is entering into this Agreement, inter alia, on such acknowledgement. If
Xxxxxx breaches, or threatens to commit a breach, of any of the Restrictive
Covenants, the Company shall have the following rights and remedies, each of
which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity: (i) the right and remedy to have the Restrictive Covenants
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; (ii) the right and remedy to require Xxxxxx to
account for and pay over to the Company such damages as are recoverable at law
as the result of any transactions constituting a breach of any of the
Restrictive Covenants; (iii) if any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the remainder of
the Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions; and (iv) if any court construes
any of the Restrictive Covenants, or any part thereof, to be unenforceable
because of the duration of such provision or the area covered thereby, such
court shall have the power to reduce the duration or area of such provision and,
in its reduced form, such provision shall then be enforceable and shall be
enforced.
(e) Jurisdiction. The parties intend to and hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Covenants. If the courts of any one or more such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of the parties that
such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction, within the
geographical scope of such Covenants, as to breaches of such Covenants in such
other respective jurisdiction such Covenants as they relate to each jurisdiction
being, for this purpose, severable into diverse and independent covenants.
10. Successors and Assigns.
(a) Xxxxxx. This Agreement is a personal contract, and the rights and
interests that the Agreement accords to Xxxxxx may not be sold, transferred,
assigned, pledged, encumbered, or hypothecated by him. All rights and benefits
of Xxxxxx shall be for the sole personal benefit of Xxxxxx, and no other person
shall acquire any right, title or interest under this Agreement by reason of any
sale, assignment, transfer, claim or judgement or bankruptcy proceedings against
Xxxxxx. Except as so provided, this Agreement shall inure to the benefit of and
be binding upon Xxxxxx and his personal representatives, distributes and
legatees.
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(b) The Company. This Agreement shall be binding upon the Company and inure
to the benefit of the Company and of its successors and assigns, including (but
not limited to) any Company that may acquire all or substantially all of the
Company's assets or business or into or with which the Company may be
consolidated or merged. In the event that the Company sells all or substantially
all of its assets, merges or consolidates, otherwise combines or affiliates with
another business, dissolves and liquidates, or otherwise sells or disposes of
substantially all of its assets and Xxxxxx does not elect to treat any such
transaction as a termination by the Company without Cause pursuant to Section
7(c), then this Agreement shall continue in full force and effect. The Company's
obligations under this Agreement shall cease, however, if the successor to, the
purchaser or acquirer either of the Company or of all or substantially all of
its assets, or the entity with which the Company has affiliated, shall assume in
writing the Company's obligations under this Agreement (and deliver and executed
copy of such assumption to Xxxxxx), in which case such successor or purchaser,
but not the Company, shall thereafter be the only party obligated to perform the
obligations that remain to be performed on the part of the Company under this
Agreement.
11. Entire Agreement. This Agreement represents the entire agreement between the
parties concerning Xxxxxx'x employment with the Company and supersedes all prior
negotiations, discussions, understanding and agreements, whether written or
oral, between Xxxxxx and the Company relating to the subject matter of this
Agreement.
12. Amendment or Modification, Waiver. No provision of this Agreement may be
amended or waived unless such amendment or waiver is agreed to in writing signed
by Xxxxxx and by a duly authorized officer of the Company. No waiver by any
party to this Agreement or any breach by another party of any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of a similar or dissimilar condition or provision at the same time, any
prior time or any subsequent time.
13. Notices. Any notice to be given under this Agreement shall be in writing and
delivered personally or sent by overnight courier or registered or certified
mail, postage prepaid, return receipt requested, addressed to the party
concerned at the address indicated below, or to such other address of which such
party subsequently may give notice in writing:
If to Xxxxxx: 00 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
If to the Company: 000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
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Any notice delivered personally or by overnight courier shall be deemed given on
the date delivered and any notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date mailed.
14. Severability. If any provision of this Agreement or the application of any
such provision to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances other than those to which it is so determined to be invalid and
unenforceable shall not be affected, and each provision of this Agreement shall
be validated and shall be enforced to the fullest extent permitted by law. If
for any reason any provision of this Agreement containing restrictions is held
to cover an area or to be for a length of time that is unreasonable or in any
other way is construed to be too broad or to any extent invalid, such provision
shall not be determined to be entirely null, void and of no effect; instead, it
is the intention and desire of both the Company and Xxxxxx that, to the extent
that the provision is or would be valid or enforceable under applicable law, any
court of competent jurisdiction shall construe and interpret or reform this
Agreement to provide for a restriction having the maximum enforceable area, time
period and such other constraints or conditions (although not greater than those
contained currently contained in this Agreement) as shall be valid and
enforceable under the applicable law.
17. Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
18. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience of reference, and no provision of
this Agreement is to be construed by reference to the heading of any section or
paragraph.
19. Withholding Taxes. All salary, benefits, reimbursements and any other
payments to Xxxxxx under this Agreement shall be subject to all applicable
payroll and withholding taxes and deductions required by any law, rule or
regulation of and federal, state or local authority.
20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
constitute one and same instrument.
21. Applicable Law; Arbitration. The validity, interpretation and enforcement of
this Agreement and any amendments or modifications hereto shall be governed by
the laws of the State of New York, as applied to a contract executed within and
to be performed in such State. The parties agree that any disputes shall be
definitively resolved by binding arbitration before the American Arbitration
Association in New York, New York and consent to the jurisdiction to the federal
courts of the Southern District of New York or, if there shall be no
jurisdiction, to the state courts located in New York County, New York, to
enforce any arbitration award rendered with respect thereto. Each party shall
choose one arbitrator and the two arbitrators shall choose a third arbitrator.
All costs and fees related to such arbitration (and judicial enforcement
proceedings, if any) shall be borne by the unsuccessful party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
LEV PHARMACEUTICALS, INC.,
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
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