Exhibit 10.87
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, effective as of January 1, 2006, between Vyteris
Holdings (Nevada), Inc., a Nevada corporation (the "Company"), and Xxxxxxx
XxXxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee as President and Chief
Executive Officer ("President and CEO"); AND
WHEREAS, Employee is willing to accept such employment on the terms set
forth herein,
NOW, THEREFORE, the Company and Employee hereby agree as follows:
1. EMPLOYMENT.
1.1 GENERAL. The Company hereby agrees to employ Employee in
the capacity of President and CEO, and Employee hereby accepts such employment,
upon the terms and subject to the conditions herein contained.
1.2 DUTIES AND AUTHORITY. During the term of Employee's
employment hereunder, Employee shall serve as the chief executive officer of the
Company and shall have such senior executive responsibilities, duties and
authority as may, from time to time, be assigned to the President and CEO by the
Company's Board of Directors (the "Board"), through its Chairman of the Board or
otherwise. During the term of this Agreement, Employee shall serve the Company,
faithfully and to the best of Employee's ability, and shall devote substantially
all of Employee's business time and efforts to the business and affairs of the
Company (including its subsidiaries and affiliates) and the promotion of its
interests. Employee shall be available to the Company at such times and places
as the Company shall reasonably request during the term hereof Notwithstanding
the foregoing, Employee shall be entitled to pursue charitable and religious
endeavors and to participate in professional organizations, provided that such
activities do not interfere in any material respect with the performance by
Employee of his duties hereunder.
2. TERM OF EMPLOYMENT. The term of this Agreement shall commence as
of January 1, 2006, and shall continue through December 31, 2007. Thereafter,
the term of this Agreement shall be automatically extended for successive and
additional one-year periods, unless Employee or the Company shall provide a
written notice of termination at least (270) days prior to the end of the
initial term or 180 days prior to any extended term. The term of this Agreement
is subject to early termination in accordance with the provisions set forth in
Section 4 hereof. The election by the Company or Employee to terminate this
Agreement as of the
expiration of the initial term, or as of the end of any one-year renewal period,
as provided in this Section 2 shall not be deemed to be a termination by the
Company under Sections 4.1.2 or 4.1.3 hereof or by Employee with Good Reason (as
defined below), and in such event Employee shall only be entitled to the
compensation set forth in Section 4.2.3 hereof
3. COMPENSATION AND BENEFITS.
3.1 SALARY. During the first twelve months of the term of
this Agreement, the Company shall pay to Employee a base salary at the annual
rate of $350,000. On each anniversary date of the commencement of employment
(the "Then Current Anniversary Date"), the Employee's base salary shall be
reviewed by the Board and may be increased to such rate as the Board, in its
sole discretion, may hereafter from time to time determine. The salary payable
pursuant to this Section 3.1 shall be payable on a bi-weekly basis and is
referred to herein as the "Base Salary".
3.2 SIGNING BONUS. Employee shall receive a $150,000 signing
bonus (the "Signing Bonus"), payable in four equal installments of $37,500 each
on January 1 and July 1, 2006 and January 1 and July 1, 2007, subject to the
terms and conditions of this agreement.
3.3 EXPENSES. Employee shall be entitled to receive proper
reimbursement from the Company for all reasonable out-of-pocket expenses
incurred by Employee in performing services under this Agreement, according to
the Company's expense account and reimbursement policies and provided that
Employee shall submit reasonable documentation with respect to such expenses.
Employee will be granted a $750/month auto allowance, payable on the 15th day of
each month.
3.4 BONUS. During the term of this Agreement, Employee, as
President and CEO, shall be entitled to receive an annual year-end target
"Variable Bonus" in cash in an amount equal to fifty percent (50%) of Base
Salary. One-half of the Variable Bonus (25% of Base Salary) will be based upon
successfully realizing the revenue objectives for each year as defined in
EXHIBIT A attached to this Agreement, and one-half (25% of Base Salary) of the
Variable Bonus will be based upon successfully achieving to the reasonable
satisfaction of the Board other critical performance milestones agreed by
Employee and the Company's Board. Revenue objectives and performance milestones
shall be determined by agreement of the Company and Employee, negotiated in good
faith, on or before March 15, 2006 for 2006 and on or before January 15 of each
subsequent year for such year. If the parties do not memorialized the mutually
agreeable milestones by the set target dates, the employee will paid 50% of
eligible Variable bonus amount on appropriate dates due. The Variable Bonus, if
any, shall be payable within sixty days after the last day of each such year,
notwithstanding any termination of this Agreement on or after the last day of
such year. Qualification for the Variable Bonus payout shall be determined by
the Board.
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3.5 STOCK OPTIONS.
3.5.1 The Company hereby grants to the Employee
options to purchase shares of the Company's common stock according to the
Options Package listed as Exhibit C.
3.5.2 Issuance of the Options shall be via the
Compensation Committee of the Board and subject to the Committee's satisfaction
that the milestones noted in the Option Package have been achieved; provided,
however, that the stock option agreement with respect to such options shall
require that all of the Options become vested and exercisable upon the sale of
all or substantially all of the assets of the Company, the sale of all of the
capital stock of the Company by the Company's stockholders to a third party, or
the merger or consolidation of the Company with another corporation or other
entity (other than a merger or consolidation in which the owners of the
Company's capital stock immediately prior to the merger or consolidation own at
least 35% of the capital stock of the surviving corporation or other entity in
the merger or consolidation).
3.5.3 The options shall be issued pursuant to an
option agreement in form and substance as set forth on Exhibit D hereto, and
under the Company's 2005 Stock Option Plan, the shares reserved pursuant to
which are the subject of a Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on October 7, 2005.
3.6 OTHER BENEFITS. Employee shall be entitled to the
following additional benefits:
3.6.1 Employee shall be entitled to vacations, at such
times as Employee shall reasonably determine, of at least four weeks each year
of employment hereunder.
3.6.2 Employee shall be entitled to receive executive
term life insurance benefits in the amount of $5,000,000, with a monthly premium
not to exceed $650.00 per month, payable to select insurance company on the date
such premium is due, subject to submission by the Employee to the Company of
reasonable documentation.
3.6.3 Employee shall be entitled to such other
benefits as shall be extended to any other senior executive officer of the
Company during the initial term and any renewal period of this Agreement.
3.7 NO OTHER BENEFITS. During the term of this Agreement or
upon any termination hereof, the Company shall have no obligation to pay or
provide, any compensation or benefits other than as set forth herein; provided,
however, that Employee shall be entitled to all benefits available to senior
Employees of the Company under the employee benefit plans, and the policies and
practices, of the Company, determined in accordance with the applicable terms
and provisions of such plans, policies and practices, in each case, as accrued
to the date of termination of employment.
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4.0 TERMINATION OF EMPLOYMENT.
4.1 EVENTS OF TERMINATION. Employee's employment hereunder
shall terminate prior to the expiration of the term set forth in Section 2
hereof upon the occurrence of any one or more of the following events:
4.1.1 DEATH. In the event of Employee's death,
Employee's employment shall terminate on the date of death.
4.1.2 TERMINATION BY THE COMPANY FOR CAUSE. The
Company may, at its option, terminate the Employee's employment for "Cause" (as
defined herein), provided that (a) the Company gives notice of termination to
Employee, (b) Employee and his counsel are thereafter entitled to meet with the
Board to discuss such termination and (c) the Board concludes that Cause exists
for termination. Employee's employment shall terminate on the date on which the
Board makes such determination. For purposes hereof, "Cause" shall mean
Employee's (i) conviction of, guilty plea to or confession of guilt of a felony,
(ii) commission of fraudulent, illegal or dishonest acts, (iii) willful
misconduct or gross negligence which reasonably could be expected to be
materially injurious to the business, operations or reputation of the Company
(monetarily or otherwise) or (iv) after a written warning and a reasonable
opportunity to cure non-performance, failure to perform Employee's material
duties (consistent with the position of President and CEO) as assigned to
Employee pursuant to the terms of this Agreement from time to time or failure to
cure any other material breach of this Agreement.
4.1.3 WITHOUT CAUSE BY THE COMPANY. The Company may,
at its option, terminate Employee's employment for any reason whatsoever (other
than for Cause) by giving 90 days prior written notice of termination to
Employee.
4.1.4 TERMINATION BY EMPLOYEE. Employee may terminate
Employee's employment for any reason whatsoever by giving 90 days prior notice
of termination to the Company, except that Employee may terminate Employee's
employment for Good Reason by giving 15 days prior notice of termination.
Employee shall be deemed to have terminated employment hereunder for "Good
Reason" in the event that Employee terminates such employment after (i) the
Company has breached any of its material obligations hereunder and fails to cure
such breach promptly after receipt of written notice of such breach, (ii) the
Employee either is removed from the Board or is not re-elected to the Board,
(iv) the Board designates an individual other than the Employee to be the chief
executive officer of the Company or otherwise materially and substantively
diminishes the Employee's duties (it being understood that notwithstanding any
other provision herein, the Company's employment of a president who reports to
the Employee or the Company's employment of a chief operating officer who
reports to the Employee shall not constitute Good Reason or (v) a Change in
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Control (as defined herein). For purposes of this Agreement, the term "Change in
Control" shall mean the occurrence of any of the following events with respect
to the Company:
(A) the consummation of any consolidation or merger
of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's common stock ("Common
Stock") would be converted into cash, securities or other property, other than a
merger of the Company in which the holders of the shares of the Company's Common
Stock immediately prior to the merger own at least a majority of the outstanding
common stock of the surviving corporation immediately after the merger; or
(B) the consummation of any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company, other than to a subsidiary
or affiliate.
4.1.5 DISABILITY. In the event of Employee's
Disability (as defined herein), the Company will have the option to terminate
Employee's employment by giving a written notice of termination to Employee.
Such notice shall specify the date of termination, which date shall not be
earlier than 60 days after such notice is given. For purposes of this Agreement,
"Disability" means the inability of Employee to substantially perform Employee's
duties hereunder for 135 days out of 225 consecutive days as a result of a
physical or mental illness, all as determined in good faith by the Board.
4.2 COMPANY'S OBLIGATIONS UPON TERMINATION. Following the
termination of Employee's employment under the circumstances described below,
the Company shall pay to Employee the following compensation and provide the
following benefits in full satisfaction and final settlement of any and all
claims and demands that Employee now has or hereafter may have under this
Agreement:
4.2.1 TERMINATION WITHOUT CAUSE BY THE COMPANY OR BY
THE EMPLOYEE WITH GOOD REASON. In the event that Employee's employment shall be
terminated by the Company pursuant to Section 4.1.3 or shall be terminated by
the Employee for Good Reason pursuant to Section 4.1.4, (a) the Company shall
pay Employee all Base Salary, any Variable Bonus earned but unpaid through the
date of termination and the unpaid portion, if any, of the Signing Bonus, (b)
the Company shall pay Employee 12 months base salary then in effect on a monthly
basis, (c) all stock options granted to Employee by the Company shall remain
exercisable for a period of 60 months after such termination, (d) for a period
of 12 months from the date of termination, the Company shall pay Employee Base
Salary and shall continue to provide Employee with all health, medical and
insurance benefits provided hereunder, (e) the Employee shall be entitled to all
benefits under all employee benefit plans in which he is a participant and (f) a
pro-rated target Variable Bonus for the year in which termination is effective,
subject to the terms of such bonus. In addition, the Company shall reimburse
Employee for any expenses incurred through the date of such termination in
accordance with Section 3.3 hereof
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4.2.2 TERMINATION BY EMPLOYEE WITHOUT GOOD REASON OR
BY THE COMPANY FOR CAUSE. In the event that Employee's employment shall be
terminated by Employee without Good Reason pursuant to Section 4.1.4 (or if
Employee voluntarily resigns otherwise than with Good Reason in accordance with
such Section prior to the expiration of the then current term of this Agreement)
or by the Company pursuant to Section 4.1.2, Employee shall be entitled to no
further compensation or other benefits under this Agreement other than any Base
Salary and any Variable Bonus earned on or prior to the date of such
termination, but not yet paid, and such benefits as have accrued pursuant to any
applicable employee benefit plans of the Company. In addition, the Company shall
reimburse Employee for any expenses incurred through the date of such
termination in accordance with Section 3.3 hereof
4.2.3 TERMINATION UPON EXPIRATION OF THE EMPLOYMENT
TERM. Upon expiration of the term of this Agreement, Employee shall be entitled
to no further compensation or other benefits under this Agreement other than
Base Salary earned, but unpaid, through the date of termination, and any
Variable Bonus earned on or prior to the end of such term, but not yet paid and
such benefits as have accrued pursuant to any applicable employee benefit plans
of the Company. In addition, the Company shall reimburse Employee for any
expenses incurred through the date of such termination in accordance with
Section 3.3 hereof.
4.2.4 TERMINATION DUE TO DEATH. In the event that
Employee's employment shall be terminated by the Company pursuant to Section
4.1.1, the Company shall pay Employee or Employee's estate (a) all Base Salary
earned but unpaid through the date of termination, (b) any Variable Bonus earned
on or prior to the date of termination, but not yet paid, (c) the target
Variable bonus for the year of this Agreement in which termination occurs,
prorated to reflect the portion of the year prior to the date of termination,
subject to the terms of such bonus, (d) continuation of medical coverage for
Employee's family for 12 months after termination and (e) such benefits as have
accrued pursuant to any applicable employee benefit plans of the Company. In
addition, the Company shall reimburse Employee for any expenses incurred through
the date of termination in accordance with Section 3.3 hereof
4.2.5 TERMINATION DUE TO DISABILITY. In the event that
Employee's employment shall be terminated by the Company pursuant to Section
4.1.5, (a) the Company shall pay Employee all Base Salary earned but unpaid
through the date of termination, (b) any Variable Bonus earned on or prior to
the date of termination, but not yet paid (c) the Company shall pay Employee the
target Variable Bonus for the year of this Agreement in which termination
occurs, pro rated to reflect the portion of the year prior to the date of
termination, and (d) the Employee shall be entitled to all benefits under all
employee benefit plans in which he is a participant. In addition, the Company
shall reimburse Employee for any expenses incurred through the date of such
termination.
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4.3 NATURE OF PAYMENTS. All amounts to be paid by the
Company to Employee pursuant to this Section 4 (other than Base Salary or
reimbursement of expenses or amounts paid pursuant to Section 4.2.4) shall be
considered by the parties to be severance payments. In the event that such
payments shall be treated as damages, it is expressly acknowledged by the
parties that damages to Employee for termination of employment would be
difficult to ascertain and the above amounts are reasonable estimates thereof
and are not a penalty.
5. NON-SOLICITATION: NONCOMPETITION.
5.1 During the term of this Agreement and for a period of one year
thereafter (following termination for any reason, subject to the provisions of
Section 5.2), Employee shall not:
5.1.1 induce or attempt to induce, directly or indirectly, any
then current customer or client of the Company to cease doing business, in whole
or in part, with the Company or solicit or divert, directly or indirectly, the
business of any such customer or client, or any identified potential customer or
client, for Employee's own account or for the account of any other person or
entity;
5.1.2 solicit or induce, directly or indirectly, any person or
entity, including any third-party service provider, distributor or supplier of
the Company, to terminate its relationship with the Company or otherwise
interfere with such relationship;
5.1.3 for Employee's own account or for the account of any
other person or entity, solicit, interfere with or endeavor to cause, directly
or indirectly, any employee or agent of the Company or induce or attempt to
induce, directly or indirectly, any employee or agent of the Company to leave
employment or terminate its agency with the Company or induce or attempt to
induce, directly or indirectly, any such employee or agent to breach an
employment or agency agreement or arrangement with the Company; or
5.1.4 except with respect to a less than 5% passive ownership
interest in a publicly traded company, either for Employee or on behalf of any
person or entity, directly or indirectly own, control or participate in the
ownership or control of, or be employed by or on behalf of, any business which
is similar to and is competitive with the business (as it exists or the date of
termination) of the Company, within the United States of America or any country
in which the Company then conducts or proposes to conduct business, without the
express written consent of the Company.
5.2 Notwithstanding any provision hereunder to the contrary, the
provisions of Sections 5.1.1, 5.1.2 and 5.1.4 shall not apply following the
termination of Employee's employment by the Company without Cause pursuant to
Section 4.1.3 or by Employee for "Good Reason" pursuant to Section 4.1.4.
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6. PROPERTY RIGHTS. With respect to information, inventions and
discoveries developed, made or conceived of by Employee, either alone or with
others, at any time during Employee's employment by the Company and whether or
not within working hours, arising out of such employment or pertinent to any
field of business or research in which, during such employment, the Company is
engaged or (if such is known to or ascertainable by Employee) is considering
engaging, Employee agrees:
6.1 that all such information, inventions and discoveries,
whether or not patented or patentable, shall be and remain the exclusive
property of the Company;
6.2 to disclose promptly to an authorized representative of
the Company all such information in Employee's possession as to possible
applications and uses thereof;
6.3 not to file any patent application relating to any such
invention or discovery except with the prior written consent of an authorized
officer of the Company;
6.4 that Employee hereby waives and releases any and all
rights Employee may have in and to such information, inventions and discoveries
and hereby assigns to the Company and/or its nominees all of Employee's right,
title and interest in them, and all Employee's right, title and interest in any
patent, patent application, copyright or other property right based thereon.
Employee hereby irrevocably designates and appoints the Company and each of its
duly authorized officers and agents as Employee's agent and attorney-in-fact to
act for Employee and in Employee's behalf and stead to execute and file any
document and to do all other lawfully permitted acts to further the prosecution,
issuance and enforcement of any such patent, patent application, copyright or
other property right with the same force and effect as if executed and delivered
by Employee; and
6.5 at the request of the Company and without expense to
Employee, to execute such documents and perform such other acts as the Company
deems necessary or appropriate for the Company to obtain patents on such
inventions in a jurisdiction or jurisdictions designated by the Company, and to
assign to the Company or its designee such inventions and any patent
applications and patents relating thereto.
The Company acknowledges the inventions made or conceived by the
Employee prior to his employment, which are described in reasonable detail on
Exhibit E hereto.
7. CONFIDENTIALITY. With respect to the information, inventions and
discoveries (other than such pre-employment inventions described on Exhibit E
hereto) referred to in Section 6 hereof, and also with respect to all other
information, whatever its nature and form and whether obtained orally, by
observation, from graphic materials or otherwise (except such as is generally
available to the public or such as Employee shall be compelled by legal process
to disclose),
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obtained by Employee during or as a result of Employee's employment by the
Company and relating to any invention, improvement, enhancement, product,
know-how, formula, software, process, apparatus, design, concept or other
creation of the Company, or to any use of any of them, or to materials,
tolerances, specifications, costs (including, without limitation, manufacturing
costs), prices, or any plans of the Company, or to any other trade secret or
proprietary information of the Company, Employee agrees:
7.1 to hold all such information, inventions and discoveries
in strict confidence and not to publish or otherwise disclose any thereof to any
person or entity other than the Company, except with the prior written consent
of an authorized officer of the Company;
7.2 to take all reasonable precautions to assure that all
such information, inventions and discoveries are properly protected from access
by unauthorized persons;
7.3 to make no use of nor exploit in any way any such
information, invention or discovery except as required in the performance of
Employee's employment duties for the Company; and
7.4 upon termination of Employee's employment by the
Company, or at any time upon request of the Company, to deliver to it all
graphic materials and all substances, models, software, prototypes and the like
containing or relating to any such information, invention or discovery, all of
which graphic materials and other things shall be and remain the exclusive
property of the Company.
For purposes of this Agreement, the term "graphic materials" includes,
without limitation, letters, memoranda, reports, notes, notebooks, books of
account, drawings, prints, specifications, formulae software, data print-outs,
microfilms, magnetic tapes and disks and other documents and recordings,
together with all copies, excerpts and summaries thereof
8. NO CONFLICTS. Employee agrees and acknowledges that Employee's
employment by the Company and compliance with this Agreement do not and will not
breach any agreement made by Employee to keep in confidence information acquired
by Employee prior to or outside of Employee's employment with the Company.
Employee will comply with any and all valid obligations which Employee may now
have to prior employers or to others relating to confidential information,
inventions or discoveries which are the property of those prior employers or
others, as the case may be. Employee has supplied or shall promptly supply to
the Company upon its request a copy of each written agreement setting forth any
such obligation. Employee hereby agrees and acknowledges that Employee has not
brought and will not bring with Employee for use in the performance of duties at
the Company any materials, documents or information of a former employer or any
third party that are not generally available to the public, unless Employee has
express written authorization from the owner thereof for possession and use or
Employee otherwise has undisputed proprietary rights to such material documents
or information.
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9. SPECIFIC PERFORMANCE. Without intending to limit the remedies
available to the Company, Employee agrees that damages at law would be an
inadequate remedy to the Company in the event that Employee shall breach or
attempt to breach any of the provisions of Sections 5, 6, 7, 8 or 9 hereof and
that the Company may apply for and, without the posting of any bond or other
security, upon proof of breach or threatened breach of any of the covenants
contained in such Sections, have injunctive relief in any court of competent
jurisdiction to restrain the breach or threatened breach of, or otherwise to
enforce specifically, any of the covenants contained in such Sections. Such
injunctive relief in such court shall be available to the Company in lieu of any
arbitration proceeding pursuant to Section 12 hereof
10. SURVIVAL. The provisions of Sections 5, 6, 7, 8, 9, 10, 11, and
12 shall survive any termination of this Agreement. In furtherance and not in
limitation of the preceding sentence, Employee's obligations under Sections 5, 6
and 7 hereof shall remain in effect throughout Employee's employment by the
Company, unaffected by any transfer to a subsidiary or affiliate of the Company.
11. ARBITRATION. Any controversy or claim based on, arising out of
or relating to the interpretation and performance of this Agreement or any
termination hereof shall be solely and finally settled by arbitration under the
rules of the American Arbitration Association, and judgment on the award
rendered in the arbitration may be entered in any court having jurisdiction
thereof. Any such arbitration shall be in the State of New Jersey, and shall be
submitted to a single arbitrator appointed by the mutual consent of the parties
or, in the absence of such consent, by application of any party to the American
Arbitration Association. A decision of the arbitrator shall be final and binding
upon the parties, and the arbitrator shall be authorized to apportion fees and
expenses (including counsel fees and expenses) as the arbitrator shall deem
appropriate. In the absence of any such apportionment, the fees and expenses of
the arbitrator shall be borne equally by each party, and each party will bear
the fee and expenses of its own attorney. The parties agree that this clause has
been included to rapidly and inexpensively resolve any disputes between them
with respect to this Agreement and that this clause shall be grounds for
dismissal of any court action commenced by either party with respect to this
Agreement, other than (i) post-arbitration actions seeking to enforce an
arbitration award and (ii) actions seeking appropriate equitable or injunctive
relief pursuant to Sections 5, 6 and/or 7 hereof
12. MISCELLANEOUS.
12.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey without regard
to principles of conflicts of laws.
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12.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the
exhibits annexed hereto between the Company and Employee contain the complete
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and supersede all prior understandings and agreements,
written or oral, between the parties hereto relating to the subject matter
hereof This Agreement may not be amended or modified except in a writing signed
by the parties hereto.
12.3 SEVERABILITY. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, (i) the remaining provisions of this Agreement
shall be unaffected thereby and shall remain in full force and effect to the
fullest extent permitted by law and (ii) any such invalidity or unenforceability
shall be deemed replaced by a term or provision determined by the parties as
coming closest to expressing the intention of the invalid or unenforceable term
or provision.
12.4 NOTICE. Any notice to be given hereunder shall be in
writing and either delivered in person, by nationally recognized overnight
courier, by facsimile or by registered or certified first class mail, postage
prepaid with return receipt requested, addressed (a) if to the Company, to
Vyteris Holdings (Nevada), Inc., 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, XX 00000,
attention: Xxxxxx X. Xxxxxx, Chairman of the Board, Facsimile No. (201)
703-1158, with a copy to Xxxxxx X. Xxxxxx, CEO, Xxxxxxx Xxxxx Specialty Group,
LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Facsimile No. (000) 000-0000, and
with a copy to Xxxxxxxxxx Xxxxxxx PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx
00000 Facsimile No.:(000) 000-0000, attention Xxxxx X. Xxxxxxxxx, Esq. and (b)
if to the Employee, to Xxxxxxx XxXxxxxx, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxx Xxxxx,
XX 00000 with copy to Xxxxxxx Xxxxxxx & Xxxxxx, Ltd., 00 X. Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000, facsimile No. (000) 000-0000, Attention Xxxxx X. Xxxxx,
Xx. Notices delivered personally shall be deemed given as of actual receipt;
notices sent via facsimile transmission shall be deemed given as of one business
day following sender's receipt from sender's facsimile machine of written
confirmation of transmission thereof, notices sent by overnight courier shall be
deemed given as of one business day following sending; and notices mailed shall
be deemed given as of five business days after proper mailing. Any party may
change its address in a notice given to the other party in accordance with this
section 12.4.
12.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors (including, without limitation, any successor
by merger or sale of all or substantially all assets) and permitted assigns.
12.6 FURTHER ASSURANCES. Employee and the Company shall
execute and deliver all instruments and other documents which, in the opinion of
the Company or the Employee, may be necessary or appropriate to carry out the
terms of this Agreement.
12.7 DEADLINES. The Section headings in this Agreement are
for convenience of reference only and shall not affect its interpretation.
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12.8 INTERPRETATION. For purposes of Sections 5, 6, 7, 8 and
9, the "Company" shall include any subsidiary or affiliate of the Company for
which Employee renders services.
12.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same agreement.
12.10 NO MITIGATION. Employee shall have no obligation to
mitigate damages hereunder.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
VYTERIS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
By: /s/ Xxxxxxx XxXxxxxx
--------------------------------------
Name: Xxxxxxx XxXxxxxx
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EXHIBIT A
ANNUAL REVENUE MILESTONES
FOR VARIOUS BONUS
TO BE DETERMINED NO LATER THAN
MARCH 15, 2006 AND JANUARY 15 OF EACH YEAR THEREAFTER
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EXHIBIT B
STRATEGIC OBJECTIVES AND MILESTONES
FOR VARIOUS BONUS
TO BE DETERMINED NO LATER THAN
MARCH 15, 2006 AND JANUARY 15 OF EACH YEAR THEREAFTER
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EXHIBIT C
OPTIONS PACKAGE
MAJOR MILESTONES DESCRIPTION SHARES COMMENTS
1. Acceptance of Re-Launch Plan and Vyteris Re-Launch Plan 100,000 0-18 Month Plan with Development
Presentation(s) by Board of Directors. (Internal / Wall Street / Targets.
Development Partners)
2. Xxxxx Sub-Markets Deal Vyteris Rights to Sub-Markets 100,000 Vest Upon Deal / Agreement Addendum
or any Modification Accruing Signing.
Benefits to Vyteris Above
Existing Agreement and
Recruitment of Marketing
Partner or Direct Marketing
Program Approved by the Board.
3. Gap Filler Merger Any Material Merger or Product 200,000 Vest Upon Signing of Merger Agreement.
Acquisition that Adds Accretive
Value to Vyteris Shareholders.
4. 2 Pharma Development Deals Deal 1 - Within 9 Months 100,000 Vest Upon Signing of Merger Agreement.
Deal 2 - Within 15 Months 200,000
5. $22MM Funding:
a) Raise $10MM at Valuation Successful Funding of Company to 200,000 Vest Upon Receipt of Funds.
Acceptable to Board and Cash Flow Breakeven
Shareholders.
b) Raise #12MM at Valuation 200,000
Acceptable to Board and
Shareholders.
6. Share Price of Stock $3.5/Share 100,000
$5/Share 250,000 Based on 30 Days Consecutive Trading
$7/Share 300,000 of at Least 25,000 Share/Day.
Total 1,750,000
EXHIBIT D
SEE ATTACHED
EXHIBIT E
DESCRIPTION OF PRE-EMPLOYMENT INVENTIONS
o ABACI - Proprietary business model and algorithm for Medical Education
Logistics, including business processes, algorithms, technology, and
programming.
o AIRX - All development work around the distribution, programming of
Satellite Radio broadcasting to Health care professionals. All rights
and distribution agreements.
o ADPHARMA/RMC - All business rights, copyrights, agreements relating to
AdPhama/RMC and any other developments in the Russian marketplace.
STOCK OPTION AGREEMENT
as of December 19, 2005
The parties to this Stock Option Agreement (this "Agreement") are
Vyteris Holdings (Nevada), Inc., a Nevada corporation having its principal place
of business in Fair Lawn, New Jersey (the "Company") and Xxxxxxx XxXxxxxx, an
employee of the Company (the "Optionee").
The Company desires to have the Optionee serve as an employee of the
Company and to provide the Optionee with an incentive to put forth maximum
effort for the success of the business.
The Company has adopted the Vyteris Holdings (Nevada), Inc. 2005 Stock
Option Plan (the "Plan") to attract and retain highly competent employees and to
provide an incentive in motivating selected employees, officers, directors and
consultants to achieve long-term corporate objectives. Capitalized terms used in
this Agreement, unless otherwise defined herein, shall have the meanings given
to such terms in the Plan.
This Agreement sets forth the terms and conditions applicable to options
to purchase shares of the Common Stock of the Company, par value $.001 per share
(the "Common Stock"), granted to the Optionee under the Plan as of the date
first above written (the "Grant Date").
Accordingly, intending to be legally bound hereby, the parties agree as
follows:
ARTICLE I
GRANT OF OPTIONS
1.1 Subject to the terms and conditions of this Agreement and the
Plan, the Company hereby grants to the Optionee as of the Grant Date the right
and option to purchase from the Company up to, but not exceeding in the
aggregate, 1,750,000 shares of Common Stock, at an exercise price of $1.31 per
share (the "Options"), and for each vested Option, the period beginning on the
date that the option becomes vested and exercisable, and ending on the fifth
anniversary of that date (the "Option Term").
ARTICLE II
VESTING, EXERCISE AND TAX WITHHOLDING
2.1 Unless sooner vested or terminated pursuant to this Agreement,
the Options granted to the Optionee hereunder shall vest upon the reasonable
determination by the Board of Directors of the Company that the performance
milestones set forth on the attached Schedule have been achieved by the
Optionee, with the actual date of vesting being as set forth on the attached
Schedule (or, if not specified on the attached Schedule, on the date that the
Board reasonably determines that the performance milestone had actually been
achieved (which may be
earlier than the date that the Board actually makes the determination)). On and
after the date Options have vested, they may be exercised at any time and from
time to time during the Option Term, subject to earlier termination in
accordance with Article III of this Agreement. Upon the termination of any of
the Options pursuant to such Article III, the Options so terminated shall cease
to be exercisable and the Optionee shall have no further rights under this
Agreement with respect to the Options so terminated. All of the Options shall
become vested and exercisable upon the sale of all or substantially all of the
assets of the Company, the sale of all of the capital stock of the Company by
the Company's stockholders to a third party, or the merger or consolidation of
the Company with another corporation or other entity (other than a merger or
consolidation in which the owners of the Company's capital stock immediately
prior to the merger or consolidation own at least 35% of the capital stock of
the surviving corporation or other entity in the merger or consolidation).
2.2 The Company, in its sole discretion, shall have the right (but
shall not in any case be obligated), exercisable at any time after the Grant
Date, to vest the Options, in whole or in part, prior to the time the Options
would otherwise vest under the terms of this Agreement.
2.3 Vested Options shall be exercised by the Optionee (i) by
delivering to the Company a Notice in the form set forth as Appendix A annexed
hereto, together with a check payable to the order of the Company, or (ii) in
such other manner as may be permitted by the Company.
2.4 The Company shall notify the Optionee of the amount of
withholding tax or other tax, if any, that must be paid under federal and, where
applicable, state and local law in connection with the exercise of the Options
or the sale of shares of Common Stock subject to the Options. The Optionee shall
meet his or her withholding requirement (i) by direct payment to the Company in
cash of the amount of any taxes required to be withheld with respect to such
exercise, or (ii) in such other manner as may be permitted by the Company.
ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 In the event of the termination of employment of the Optionee by
the Optionee or the Company and its subsidiaries for any reason whatsoever other
than death, Permanent Disability (as defined in Section 3.2) or retirement after
attainment of age 65, (i) any Options that were not vested prior to the date of
such termination of employment shall terminate on such date and (ii) any Options
that were vested prior to the date of such termination of employment (and which
were not previously exercised) shall terminate in accordance with Section 1.1
hereof.
3.2 In the event of the termination of the employment of the
Optionee by reason of death, Permanent Disability or retirement after attainment
of age 65, those unexercised Options that were vested prior to the date of such
termination (and which were not previously exercised) shall terminate on the
earlier of (i) the first anniversary of the date of such termination and (ii)
the last day of the Option Term. Any Options that were not vested prior to the
date of
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such termination shall terminate as of the date of such termination. As used in
this Agreement, the term "Permanent Disability" means the Optionee being deemed
to have suffered a disability that makes the Optionee eligible for immediate
benefits under any long-term disability plan of the Company, as in effect from
time to time.
3.3 In the event of termination of employment, the Company, in its
sole discretion, shall have the right (but shall not in any case be obligated),
exercisable on or at any time after the Grant Date, to permit an Option to be
exercised, in whole or in part, after its expiration date described in Section
3.1 or Section 3.2, but not after the expiration of the Option Term.
3.4 For purposes of this Agreement, there shall have been a
termination of employment of the Optionee if the Optionee is no longer an
employee, consultant, director or officer of the Company or of any of its
subsidiaries.
3.5 If the Optionee's relationship with the Company ceases to be a
"common law employee" relationship but the Optionee continues to provide bona
fide services to the Company following such cessation in a different capacity,
including without limitation as a director, consultant or independent
contractor, then a termination of employment or other service relationship shall
not be deemed to have occurred for purposes of this Section 1.3 upon such change
in relationship.
ARTICLE IV
MISCELLANEOUS
4.1 The number and kind of shares subject to outstanding Options and
the option price for such shares shall be appropriately adjusted to reflect any
stock dividend, stock split, combination or exchange of shares, merger,
consolidation or other change in capitalization with a similar substantive
effect upon the Options. The Company shall have the power and sole discretion to
determine the amount of the adjustment to be made in each case.
4.2 Nothing contained in this Agreement shall be deemed to confer
upon the Optionee, in the Optionee's capacity as a holder of Options, any right
to prevent or to approve or vote upon any of the corporate actions described in
this Article IV. The existence of the Options granted hereunder shall not affect
in any way the right or the power of the Company or its shareholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stocks ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
4.3 Whenever the term "the Optionee" is used in any provision of
this Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, or the person or
persons to whom Options may be transferred by
-3-
will or by the laws of descent and distribution or otherwise, the term "the
Optionee" shall be deemed to include such person or persons.
4.4 Unless otherwise determined by the Company in writing, the
Options granted hereunder are not transferable by the Optionee otherwise than by
will or the laws of descent and distribution and are exercisable during the
Optionee's lifetime only by the Optionee. No assignment or transfer of the
Options granted hereunder, or of the rights represented thereby, whether
voluntary or involuntary, by operation of law or otherwise (except by will or
the laws of descent and distribution or as otherwise determined by the Company
in writing), shall vest in the assignee or transferee any interest or right
herein whatsoever, but immediately upon any such assignment or transfer the
Options shall terminate and become of no further effect.
4.5 The Optionee shall not be deemed for any purpose to be a
shareholder of the Company in respect of any shares as to which the Options
shall not have been exercised as herein provided.
4.6 Nothing in this Agreement shall confer upon the Optionee any
right to continue in the employ of the Company or any of its subsidiaries or
shall affect the right of the Company and its subsidiaries to terminate the
employment of the Optionee (as such phrase is described in Section 3.4 of this
Agreement), with or without cause.
4.7 Nothing in this Agreement or otherwise shall obligate the
Company to vest any of the Options, to permit the Options to be exercised other
than in accordance with the terms hereof or to grant any waivers of the terms of
this Agreement, regardless of what actions the Company, the Board or the
Committee may take or waivers the Company, the Board or the Committee may grant
under the terms of or with respect to any options now or hereafter granted to
any other person or any other options granted to the Optionee.
4.8 Notwithstanding any other provision, hereof, the Optionee shall
not exercise the Options granted hereunder, and the Company shall not be
obligated to issue any shares to the Optionee hereunder, if the exercise thereof
or the issuance (or such purchase) of such shares would constitute a violation
by the Optionee or the Company of any provision of any law or regulation of any
governmental authority. Any determination in this connection by the Company
shall be final and binding. The Company shall in no event be obligated to
register any securities pursuant to the Securities Act of 1933 (as the same
shall be in effect from time to time) or to take any other affirmative action in
order to cause the exercise of the Options or the issuance of shares pursuant
thereto to comply with any law or regulation of any governmental authority.
4.9 No amounts of income received by the Optionee pursuant to this
Agreement shall be considered compensation for purposes of any pension or
retirement plan, insurance plan or any other employee benefit plan of the
Company or its subsidiaries, unless otherwise provided in such plan.
-4-
4.10 Every notice or other communication relating to this Agreement
shall be in writing and shall be mailed to or delivered to the party for whom it
is intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided; PROVIDED,
HOWEVER, that unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be mailed or delivered to
the President of the Company at its headquarters in Fair Lawn, New Jersey and
all notices or communications by the Company to Optionee may be given to the
Optionee personally or may be mailed to the Optionee at the Optionee's home
address as reflected in the Company's records.
4.11 This Agreement shall be governed by the laws of the State of
Nevada applicable to agreements made and performed wholly within the State of
Nevada (regardless of the laws that might otherwise govern under applicable
conflicts of laws principles).
4.12 As used in this Agreement, unless the context otherwise requires
(i) references to "Articles" or "Sections" are to articles or sections of this
Agreement, (ii) "hereof", "hereunder", "hereunder" and comparable tends refer to
this Agreement in its entirety and not to any particular part of this Agreement,
(iii) references to any gender include references to all genders, (iv)
"including" means including without limitation, and (v) headings of the various
articles and sections are for convenience of reference only.
4.13 This Agreement and the Plan (the terms of which are incorporated
by reference herein) sets forth a complete understanding between the parties
with respect to its subject matter and supersedes all prior and contemporaneous
agreements and understandings with respect thereto. Except as expressly set
forth in this Agreement, the Company makes no representations, warranties or
covenants to the Optionee with respect to this Agreement or its subject matter,
including with respect to (i) the current or future value of the shares subject
to the Options and (ii) whether the option price is equal to less than or
greater than the fair market value of a share of Common Stock. Any modification,
amendment or waiver of this Agreement will be effective only if it is in writing
signed by the Company and the Optionee. The failure of any party to enforce at
any time any provision of this Agreement shall not be construed to be a waiver
of that or any other provision of this Agreement.
4.14 Tax Consequences. THE OPTIONEE HAS CONSULTED WITH A TAX ADVISOR
PRIOR TO THE GRANT OF THE OPTIONS. THE OPTIONEE SHOULD CONSULT A TAX ADVISER
BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
4.15 Early Exercise. Notwithstanding the vesting schedule described
in this Agreement, if the Committee notifies the Optionee in writing that the
Optionee may exercise the Options (or any portion of the Options) during its
term at any time as to shares that have not vested (the "Unvested Shares"), the
Optionee may do so, provided that at the time of such exercise the Optionee
deliver to the Company, in addition to the other exercise documentation required
hereby, an executed copy of a Restricted Stock Purchase Agreement attached as
EXHIBIT B to the Plan, along with its attachments, as applicable (the
"Restricted Stock Agreement"), whereby, among other things, the Optionee agrees
to grant to the Company certain repurchase
-5-
rights, at cost, with respect to the Unvested Shares, as more fully set forth
therein, which repurchase rights shall lapse over time with respect to the
Unvested Shares in accordance with the vesting schedule described in this
Agreement.
By the Optionee's signature and the signature of the Company's
representative below, the Optionee and the Company agree that this Option is
granted under and governed by the terms and conditions of the Plan and this
Option Agreement. The Optionee has reviewed the Plan and this Option Agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Option Agreement and fully understands all provisions of the
Plan and this Option Agreement. The Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon any
questions relating to the Plan and this Option Agreement. The Optionee further
agrees to notify the Company upon any change in the Optionee's residence
address.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
VYTERIS HOLDINGS (NEVADA), INC.
By: Xxxxxx Xxxxxx
-------------------------------
Title: CEO
----------------------------
OPTIONEE:
/s/ Xxxxxxx XxXxxxxx
---------------------
Xxxxxxx XxXxxxxx
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APPENDIX A
EXERCISE OF STOCK OPTION
1. EXERCISE. Pursuant to the provisions of the Stock Option
Agreement entered into as of December __, 2005 between Vyteris Holdings
(Nevada), Inc. (the "Company") and the undersigned (the "Agreement"), the
undersigned (the "Purchaser") hereby exercise the Options granted under the
terms of the Agreement (the "Options") to the extent of ________ shares of the
Common Stock of the Company (the "Shares"). The Purchaser delivers to the
Company herewith the following in payment for the Shares:
o $_________ in cash
o Stock certificates for _____________ shares of Common Stock
2. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Plan and the Option Agreement
and agrees to abide by and be bound by their terms and conditions. During such
periods, if ever, as Company is not currently a public corporation which has an
effective registration statement for the shares issuable under the Plan under
the Securities Act of 1933, the Purchaser confirms the representations set forth
below:
The Purchaser is acquiring the Shares for his/her own account
and the Shares were acquired by him/her for the purpose of
investment and not with a view to distribution or resale thereof
in violation of the Securities Act of 1933 (the "Securities
Act"). The Purchaser understands that none of the Shares has
been registered under the Securities Act or any other applicable
securities laws, and, therefore, cannot be resold unless they
are subsequently registered under the Securities Act and other
applicable securities laws or unless an exemption from such
registration is available. The Purchaser agrees not to resell or
otherwise dispose of all or any part of the Shares purchased by
him/her except as permitted by law, including, without
limitation, any regulations under the Securities Act and other
applicable securities laws. The Purchaser understands that the
Company does not have any present intention and is under no
obligation to register the Shares under the Securities Act and
other applicable securities laws. The Purchaser further
represents that the Purchaser understands and agrees that all
certificates evidencing any of the Shares, whether upon initial
issuance or upon any transfer thereof, shall bear a legend,
prominently stamped or printed thereon, reading substantially as
follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT
COVERING SUCH
-7-
SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE
STATE SECURITIES LAWS, OR (2) AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT EXEMPTION FROM REGISTRATION
THEREUNDER IS AVAILABLE."
The Purchaser is able to bear the economic risk of this
investment including a complete loss of the investment.
3. RIGHTS AS SHAREHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Shares,
notwithstanding the Purchaser's exercise of the Options. The Shares so acquired
shall be issued to the Optionee as soon as practicable after exercise of the
Options. No adjustment will be made for a dividend or other right for which the
record date is prior to the date of issuance, except as otherwise provided in
the Plan.
4. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
6. ENTIRE AGREEMENT; GOVERNING LAW. The Plan and Option Agreement
are incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and the Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing signed by the Company and Purchaser. This agreement is
governed by the internal substantive laws, but not the choice of law rules, of
the State of Nevada.
Date: ______________________ ________________________________
Purchaser
________________________________
Address
________________________________
Social Security Number
-8-
EXHIBIT B
VYTERIS HOLDINGS (NEVADA), INC.
2005 STOCK OPTION PLAN
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made between [____________] (the "Purchaser") and
Vyteris Holdings (Nevada), Inc., a Nevada corporation (the "Company"), as of
__________________, 20__.
RECITALS
A. Pursuant to the exercise of the stock option granted to
Purchaser under the Company's 2005 Stock Option Plan (the "Plan") on
[____________] and pursuant to the Stock Option Agreement (the "Option
Agreement") dated [____________] by and between the Company and Purchaser with
respect to such grant, which Plan and Option Agreement are hereby incorporated
by reference, Purchaser has elected to purchase _________ of those shares which
have not vested under the vesting schedule set forth in the notice of grant
relating to such grant (the "Unvested Shares"). The Unvested Shares and the
shares subject to the Option Agreement which have vested are sometimes
collectively referred to herein as the "Shares". The description of the terms of
the Purchaser's options as set forth in the Option Agreement is referred to
herein as the Notice of Grant.
B. As a condition to Purchaser's election to exercise the Option as
to the Unvested Shares, Purchaser hereby executes and delivers this Restricted
Stock Purchase Agreement, which sets forth certain rights and obligations of the
parties with respect to the Unvested Shares acquired upon exercise of the
Option.
In consideration of the mutual covenants set forth herein, the parties
hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms not defined in this Restricted
Stock Purchase Agreement shall have the meanings ascribed to such terms in the
Plan.
2. REPURCHASE OPTION.
(a) If Purchaser's status as an employee, consultant or
director, as applicable, of the Company and its subsidiaries is terminated for
any or no reason, including for cause or without cause, death or disability, the
Company shall have the right and option to purchase from Purchaser, or
Purchaser's personal representative, as the case may be, all or any portion of
the Purchaser's Then-Unvested Shares (as defined below) as of the date of such
termination at the original exercise price paid by the Purchaser for such Shares
(the "Repurchase Option"). The term "Then-Unvested Shares" as used herein shall
mean that portion of the Unvested Shares that
-9-
remain unvested on such termination date in accordance with the vesting schedule
set forth in the Notice of Grant.
(b) Upon the occurrence of any such termination, the Company
may exercise its Repurchase Option by delivering personally or by registered
mail, to Purchaser (or his transferee or legal representative, as the case may
be), within ninety (90) days of such termination, a notice in writing indicating
the Company's intention to exercise the Repurchase Option and setting forth a
date for closing not later than thirty (30) days from the mailing or personal
delivery of such notice. The closing shall take place at the Company's
headquarters. At the closing, the holder of the certificates for the
Then-Unvested Shares being transferred shall deliver the stock certificate or
certificates evidencing the Then-Unvested Shares, and the Company shall deliver
the purchase price therefor.
(c) At its option, the Company may elect to make payment for
the Then-Unvested Shares to a bank selected by the Company. The Company shall
avail itself of this option by a notice in writing to Purchaser stating the name
and address of the bank, stating the date of closing, and waiving the closing at
the Company's office.
(d) If the Company does not elect to exercise the Repurchase
Option conferred above by giving the requisite notice within ninety (90) days
following such termination, the Repurchase Option shall terminate.
3. TRANSFERABILITY OF THE SHARES; ESCROW.
(a) Purchaser hereby authorizes and directs the secretary of
the Company, or such other person designated by the Company, to transfer the
Then-Unvested Shares as to which the Repurchase Option has been exercised from
Purchaser to the Company.
(b) To insure the availability for delivery of Purchaser's
Unvested Shares upon repurchase by the Company pursuant to the Repurchase Option
under Section 2, Purchaser hereby appoints the secretary of the Company, or any
other person designated by the Company, as escrow agent, as the Purchaser's
attorney-in-fact to sell, assign and transfer unto the Company, such Unvested
Shares, if any, repurchased by the Company pursuant to the Repurchase Option and
shall, upon execution of this Agreement, deliver and deposit with the secretary
of the Company, or such other person designated by the Company, the share
certificates representing the Unvested Shares, together with the stock
assignment, duly endorsed in blank, attached hereto as EXHIBIT B-1. The Unvested
Shares and stock assignment shall be held by the secretary or other designee in
escrow, pursuant to the Joint Escrow Instructions of the Company and Purchaser
attached as EXHIBIT B-2 hereto, until the Company exercises its Repurchase
Option as provided in Section 2, until such Unvested Shares are vested, or until
such time as this Agreement no longer is in effect. As a further condition to
the Company's obligations under this Agreement, the spouse of the Purchaser, if
any, shall execute and deliver to the Company the Consent of Spouse attached
hereto as EXHIBIT B-3 if the Committee determines that such a Consent should be
obtained. Upon vesting of the Unvested Shares, the escrow agent shall promptly
upon written request, or periodically without written request, deliver to the
Purchaser the certificate or
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certificates representing such vested Shares in the escrow agent's possession
belonging to the Purchaser, and the escrow agent shall be discharged of all
further obligations hereunder with respect to those Shares; provided, however,
that the escrow agent shall nevertheless retain such certificate or certificates
as escrow agent if so required pursuant to other restrictions imposed pursuant
to this Agreement.
(c) The Company, or its designee, shall not be liable for
any act it may do or omit to do with respect to holding the Shares in escrow and
while acting in good faith and in the exercise of its judgment.
(d) Purchaser shall not sell, transfer, pledge, hypothecate
or otherwise dispose of any Unvested Shares which remain subject to the
Company's Repurchase Option. Notwithstanding the foregoing, upon prior written
consent of the Company (which consent shall not be unreasonably withheld), the
Purchaser may assign or transfer Unvested Shares for family planning, tax
planning or estate planning, or other such purposes, provided the transferee
agrees to be bound by all obligations of the Purchaser, and the Company is
reasonably satisfied that such obligations remain enforceable against the
transferee.
(e) Transfer or sale of the Shares is subject to
restrictions on transfer imposed by any applicable state and federal securities
laws. Any transferee shall hold such Shares subject to all the provisions hereof
and the Exercise Notice executed by the Purchaser with respect to any Unvested
Shares purchased by Purchaser and shall acknowledge the same by signing a copy
of this Agreement.
4. OWNERSHIP, VOTING RIGHTS, DUTIES. This Agreement shall not
affect in any way the ownership, voting rights or other rights or duties of
Purchaser, except as specifically provided herein.
5. LEGENDS. The share certificate evidencing the Shares issued
hereunder may be endorsed with the legend substantially to the following effect
(in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
UPON TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
6. ADJUSTMENT FOR STOCK SPLIT. All references to the number of
Shares and the purchase price of the Shares in this Agreement shall be
appropriately adjusted to reflect any stock split, stock dividend or other
change in the Shares, which may be made by the Company after the date of this
Agreement.
-11-
7. NOTICES. Notices required hereunder shall be given in person or
by registered mail to the address of Purchaser shown on the records of the
Company, and to the Company at its headquarters.
8. SURVIVAL OF TERMS. This Agreement shall apply to and bind
Purchaser and the Company and their respective permitted assignees and
transferees, heirs, legatees, executors, administrators and legal successors.
9. SECTION 83(B) ELECTION. Purchaser hereby acknowledges that he or
she has been informed that, with respect to the exercise of an Option for
Unvested Shares, an election may be filed by the Purchaser with the Internal
Revenue Service, within 30 days of the purchase of the Shares, electing pursuant
to Section 83(b) of the Code to be taxed currently on any difference between the
purchase price of the Shares and their fair market value on the date of
purchase. In the case of a Nonstatutory Stock Option, this will result in a
recognition of taxable income to the Purchaser on the date of exercise, measured
by the excess, if any, of the fair market value of the Shares, at the time the
Option is exercised, over the purchase price for the Shares. Absent such an
election, taxable income will be measured and recognized by Purchaser at the
time or times on which the Company's Repurchase Option lapses. In the case of an
Incentive Stock Option, such an election will result in a recognition of income
to the Purchaser for alternative minimum tax purposes on the date of exercise,
measured by the excess, if any, of the fair market value of the Shares, at the
time the option is exercised, over the purchase price for the Shares. Absent
such an election, alternative minimum taxable income will be measured and
recognized by Purchaser at the time or times on which the Company's Repurchase
Option lapses. Purchaser is strongly encouraged to seek the advice of his or her
own tax consultants in connection with the purchase of the Shares and the
advisability of filing of the Election under Section 83(b) of the Code. A form
of Election under Section 83(b) is attached hereto as EXHIBIT B-4 for reference.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE RESPONSIBILITY AND NOT THE
COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b).
10. REPRESENTATIONS. Purchaser has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Purchaser is
relying solely on such advisors and not on any statements or representations of
the Company or any of its agents. Purchaser understands that he or she (and not
the Company) shall be responsible for his or her own tax liability that may
arise as a result of this investment or the transactions contemplated by this
Agreement.
11. GOVERNING LAW. This Agreement shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of Nevada.
Purchaser represents that he has read this Agreement and is familiar with its
terms and provisions. Purchaser hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Board of Directors of the
Company or any committee thereof with respect to any questions arising under
this Agreement.
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IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set forth
above.
VYTERIS HOLDINGS (NEVADA), INC.
By:_______________________________
Title:____________________________
"PURCHASER"
__________________________________
Signature
__________________________________
Printed Name
__________________________________
Soc. Sec. No.
__________________________________
Address
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EXHIBIT B-1
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, _______________________, hereby sell, assign and
transfer unto Vyteris Holdings (Nevada), Inc. (the "Company")
_________________________ (__________) shares of the Common Stock of the Company
standing in my name on the books of said corporation represented by Certificate
No. _____ herewith and do hereby irrevocably constitute and appoint
__________________ to transfer the said stock on the books of the Company with
full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted
Stock Purchase Agreement by and between the Company and the undersigned dated
______________, _____.
Dated: _______________, ____
___________________________
(signature)
___________________________
(print name)
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its
"Repurchase Option," as set forth in the Agreement, without requiring additional
signatures on the part of the Purchaser.
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EXHIBIT B-2
JOINT ESCROW INSTRUCTIONS
_________, 200_
[Name and address of Corporate Secretary]
Dear Secretary:
As Escrow Agent for both Vyteris Holdings (Nevada), Inc. (the "Company")
and the undersigned purchaser of stock of the Company (the "Purchaser"), you are
hereby authorized and directed to hold the documents delivered to you pursuant
to the terms of that certain Restricted Stock Purchase Agreement ("Agreement")
between the Company and the undersigned, in accordance with the following
instructions:
1. In the event the Company and/or any assignee of the Company (referred
to collectively for convenience herein as the "Company") exercises the Company's
Repurchase Option set forth in the Agreement, the Company shall give to
Purchaser and you a written notice specifying the number of shares of stock to
be purchased, the purchase price, and the time for a closing hereunder at the
headquarters of the Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, cancellation of indebtedness, if applicable, or some combination
thereof) for the number of shares of stock being purchased pursuant to the
exercise of the Company's Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as Purchaser's
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete any transaction herein contemplated,
including but not limited to the filing with any applicable state blue sky
authority of any required applications for consent to, or notice of, transfer of
the securities. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a stockholder of the Company while the
stock is held by you.
4. Upon written request of the Purchaser, but no more than once per
calendar year, unless the Company's Repurchase Option has been exercised, you
will deliver to Purchaser a certificate
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or certificates representing so many shares of stock as are not then subject to
the Company's Repurchase Option. Within 120 days after cessation of Purchaser's
continuous employment by or services to the Company, or any parent or subsidiary
of the Company, you will deliver to Purchaser a certificate or certificates
representing the aggregate number of shares held or issued pursuant to the
Agreement and not purchased by the Company or its assignees pursuant to exercise
of the Company's Repurchase Option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely on and shall be protected in relying
on or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith,
and any act done or omitted by you pursuant to the advice of your own attorneys
shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree, you shall not
be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel (which may be
counsel to the Company) and other experts as you may deem necessary to properly
advise you in connection with your obligations hereunder, you may rely upon the
advice of such counsel, and you may cause the Company to pay such counsel
reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be an officer or agent of the Company or if you shall resign
by written notice to the Company. In
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the event of any such termination, the Company shall have the right, in its sole
discretion, to appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such disputes shall have been settled either by mutual written agreement
of the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
15. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other address as a party may designate by ten
days' advance written notice to each of the other parties hereto.
VYTERIS HOLDINGS (NEVADA), INC.:
[Insert current address of the Company]
Attn:
PURCHASER: [Insert name and address]
ESCROW AGENT: [Insert name and address]
16. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not become
a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
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18. These Joint Escrow Instructions shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of Nevada.
VYTERIS HOLDINGS (NEVADA), INC.
BY:_______________________________
ITS:______________________________
PURCHASER
__________________________________
signature
__________________________________
printed name
ESCROW AGENT
__________________________________
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EXHIBIT B-3
CONSENT OF SPOUSE
I, ____________________, spouse of [_____________], have read and
approve the foregoing Agreement. In consideration of granting of the right to my
spouse to purchase shares of Vyteris Holdings (Nevada), Inc. as set forth in the
Agreement, I hereby appoint my spouse as my attorney-in-fact with respect to the
exercise of any rights under the Agreement and agree to be bound by the
provisions of the Agreement insofar as I may have any rights in said Agreement
or any shares issued pursuant thereto under the community property laws or
similar laws relating to marital property in effect in the state of our
residence as of the date of the signing of the foregoing Agreement.
Dated: _______________, ___
_____________________________
Signature of Spouse
_____________________________
(Print name)
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EXHIBIT B-4
ELECTION UNDER SECTION 83(B)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby makes an election pursuant to Section
83(b) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder (the "Regulations"), and in connection with this election supplies
the following information:
1. The name, address and taxpayer identification number of the undersigned
are:
[Name]
[Address]
Social Security Number: ___-__-____
2. The election is being made with respect to ________ shares of [stock]
(the "Stock") of Vyteris Holdings (Nevada), Inc., a Nevada corporation (the
"Company").
3. The date on which the Stock was transferred to the undersigned was
_______________. The taxable year for which this election is being made is
calendar year ____.
4. The property is subject to the following restrictions:
The above-mentioned shares may not be transferred and are subject to
forfeiture under the terms of an agreement between the taxpayer and the
Company. These restrictions lapse upon the satisfaction of certain
conditions contained in such agreement.
Disposition of the Stock is also subject to restrictions imposed under
applicable federal and state securities laws regulating the transfer of
unregistered securities.
5. The fair market value of the Stock at the time of transfer (determined
without regard to any lapse restriction, as defined in ss.1.83-3(i) of the
Regulations) was $___________.
6. The undersigned paid $ ___ for the Stock. Therefore, $______ (the full
fair market value of the Stock stated above less the amount paid by the
undersigned) is includible in the undersigned's gross income as compensation for
services.
7. A copy of this election has been furnished to the Company [and to the
transferee of the Stock, if different from the taxpayer] as required by
ss.1.83-2(d) of the Regulations.
Dated: ________________ _______________________________
[taxpayer signature]
-20-
INSTRUCTIONS FOR FILING SECTION 83(B) ELECTION
Attached is a form of election under section 83(b) of the Internal
Revenue Code. If you wish to make such an election, you should complete, sign
and date the election and then proceed as follows:
1. Execute three counterparts of your completed election (plus one extra
counterpart for each person other than you, if any, who receives property that
is the subject of your election), retaining at least one photocopy for your
records.
2. Send one counterpart to the Internal Revenue Service Center with which
you will file your Federal income tax return for the current year (e.g.,
Holtsville, Nevada for New Jersey residents) via certified mail, return receipt
requested. THE ELECTION SHOULD BE SENT IMMEDIATELY, AS YOU ONLY HAVE 30 DAYS
FROM THE GRANT DATE WITHIN WHICH TO MAKE THE ELECTION - NO WAIVERS, LATE FILINGS
OR EXTENSIONS ARE PERMITTED.
3. Deliver one counterpart of the completed election to the Company for its
files.
4. If anyone other than you (e.g., one of your family members) will receive
property that is the subject of your election, deliver one counterpart of the
completed election to each such person.
5. Attach one counterpart of the completed election to your Federal income
tax return for this year when you file that return next year.
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SCHEDULE CONCERNING VESTING OF STOCK OPTIONS
MAJOR MILESTONES DESCRIPTION SHARES COMMENTS
1. Acceptance of Re-Launch Plan and Vyteris Re-Launch Plan 100,000 0-18 Month Plan with
Presentation(s) by Board of Directors. (Internal / Wall Street / Development Targets.
Development Partners)
2. Xxxxx Sub-Markets Deal Vyteris Rights to Sub-Markets 100,000 Vest Upon Deal / Agreement
or any Modification Accruing Addendum Signing.
Benefits to Vyteris Above
Existing Agreement and
Recruitment of Marketing
Partner or Direct Marketing
Program Approved by the Board.
3. Gap Filler Merger Any Material Merger or Product 200,000 Vest Upon Signing of
Acquisition that Adds Accretive Merger Agreement.
Value to Vyteris Shareholders.
4. 2 Pharma Development Deals Deal 1 - Within 9 Months 100,000 Vest Upon Signing of
Deal 2 - Within 15 Months 200,000 Merger Agreement.
5. $22MM Funding:
1. Raise $10MM at Valuation Successful Funding of Company to 200,000 Vest Upon Receipt of Funds.
Acceptable to Board and Cash Flow Breakeven
Shareholders.
b) Raise #12MM at Valuation 200,000
Acceptable to Board and
Shareholders.
6. Share Price of Stock $3.5/Share 100,000
$5/Share 250,000 Based on 30 Days
$7/Share 300,000 Consecutive Trading of at Least
25,000 Share/Day.
Total 1,750,000
GUARANTY
Date: January 1, 2006
To: Xxxxxxx XxXxxxxx, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxx Xxxxx, XX 00000 ("TM")
From: Xxxxxxx Xxxxx Specialty Group, LLC, 000 Xxxxxxx Xxxxxx, XX, XX 00000
("STSG")
Reference is hereby made to the Employment Agreement (the "EMPLOYMENT
AGREEMENT"), dated as of January 1, 2006, by and between TM and Vyteris Holdings
(Nevada), Inc. ("VYTERIS"). STSG is a principal stockholder of Vyteris. Subject
to the terms and conditions of the Employment Agreement, pursuant to Section
4.2.1 of the Employment Agreement, Vyteris is obligated to pay to TM 12 months
base salary in severance should Vyteris terminate TM without "Cause" (as defined
in the Employment Agreement) or should TM terminate his employment for "Good
Reason" (as defined in the Employment Agreement) (such obligation to pay
severance pursuant to the Employment Agreement in such circumstances, the
"PAYMENT OBLIGATION").
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and in order to induce TM to enter into the Employment
Agreement, STSG hereby guarantees to TM, upon reasonable notice to STSG by TM of
Vyteris' default of the Payment Obligation, the prompt payment in full of the
Payment Obligation, as, when and if due.
STSG shall be entitled to all of the defenses available to Vyteris with respect
to the Payment Obligation.
THIS GUARANTY, AND THE RIGHTS AND OBLIGATIONS OF STSG AND TM HEREUNDER, SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
Agreed to and accepted:
Xxxxxxx Xxxxx Specialty Group, LLC
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxxx
---------------------------------- --------------------
Name: Xxxxxx Xxxxxx Xxxxxxx XxXxxxxx
Title: Chairman
