EMPLOYMENT AGREEMENT
This Employment Agreement, effective as of this 14th day of December,
1999 (the "Effective Date"), is by and among IMPAX LABORATORIES, INC., a
Delaware corporation, with a business address at 00000 Xxxxxxxx Xxx., Xxxxxxx,
Xxxxxxxxxx 00000 (the "Company") and XXXXXXX XXXXX, Ph.D., with a mailing
address at 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Executive").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the Company and Executive agree as follows:
1. Nature of Employment.
1.1 Duties and Responsibilities. Executive shall serve as the Co-Chief
Executive Officer of the Company during the term of this Agreement, and use his
best efforts to promote the interests of the Company and shall devote his full
time and efforts to its business and affairs. Executive shall have general
executive powers and active management over the property, business, and affairs
of the Company, subject always to the direction of the Board of Directors (the
"Board") or its designe.
1.2 Other Business Activities. Executive will devote his full professional
time, attention and effort to Company's business. Notwithstanding the foregoing,
Executive shall be entitled to participate in other professional and business
activities to the extent such activities are reasonably likely to enhance
Executive's ability to perform his obligations hereunder, provided that such
activities do not compete with the business of the Company and do not
unreasonably interfere with the then performance of his duties hereunder.
1.3 Board of Directors Member. Each year during the term of this
Agreement, the Board of Directors of the Company (the "Board") shall designate
Executive as one of management's slate of candidates to the Board, shall
recommend Executive as a Director to its shareholders, and shall otherwise use
its best efforts to have Executive elected as a Director and to have him remain
as a Director during the entire term of this Agreement, in all instances subject
to satisfaction by the Board of Directors of its fiduciary duties and
obligations.
2. Compensation.
2.1 Salary. Excutive salary shall be at an initial annual rate of One
hundred Seventy-Five Thousand Dollars (175,000.00), subject to witholding and
further
1
subject to discretionary increases in accordance with the Company's normal
review procedures and policies. The salary shall be paid in substantially equal
installments in accordance with the Company's standard payroll practices, as in
effect from time to time.
2.2 Bonus. Subject to the achievement of certain short-term and long-term
performance goals established by the Board of Directors of the Company from time
to time, Executive shall be paid quarterly and annual bonuses, payable in stock
and/or cash, to be determined by the Board of Directors of this Company or its
Compensation Committee. Each such bonus shall be paid at the same time as, and
be equal to, the bonus paid to Xxxxx Xxx, Ph.D., and Xxxxx Xxxxxxx for such
period.
2.3 Medical Insurance and Other Benefits. Executive shall be entitled to
receive full health, dental, vision, and disability insurance, as well as any
other benefits customarily offered to other senior executive officers of the
Company, all upon terms no less favorable to Executive, with all premiums and
costs to be paid by the Company. The Company shall also provide to Executive, at
Company's expense, life insurance coverage at standard premium rates having a
death benefit payable to a beneficiary selected by the Executive equal to
$1,000,000 and disability insurance at standard premium rates which provides
salary replacement benefits, not to exceed $250,000 in the aggregate, in the
event Executive becomes incapacitated. Executive shall be required to undergo a
yearly physical examination, at Company's expense, with a physician of
Executive's choosing, and upon Company's request, deliver a copy of such
physician's report from such examination.
2.4 Vacation. Executive shall be entitled to receive four (4) weeks of paid
vacation time annually, such vacation shall accrue daily, provided however, that
in the event the total vacation accrual ever reaches four (4) weeks, then no
further vacation time will accrue until Executive has used his current annual
allotment. Executive may not receive pay rather than vacation except when
Executive leaves the Company. Executive may schedule his vacations at his
discretion so long as the timing of such vacations does not interfere with his
responsibilities to the Company.
2.5 Reimbursement of Expenses. The Company shall reimburse
Executive for all out-of-pocket expenses incurred by Executive in performing his
obligations hereunder within thirty (30) days after the date on which Executive
delivers to the Company an itemized statement, accompanied by appropriate
receipts to the extent available, describing the reimbursable expenses incurred.
The expenses to be
2
reimbursed include, without limitation, telephone, fax, air freight and travel
related expenses.
3. Term and Termination.
3.1 Term. The term of this Agreement shall commence on the Effective Date
and, unless terminated in accordance with this Section 3, shall continue until
the third anniversary of the Effective Date, and thereafter shall be
automatically renewed for successive periods of one year each, unless terminated
by either party by written notice of termination delivered to the other party at
least six (6) months prior to the expiration date of the initial term or any
renewal term of this Agreement (the "Term").
3.2 Termination by the Company. The Company shall have the right to
terminate this Agreement (i) for Cause, as defined below, at any time and
without prior notice, or (ii) for any other reason on thirty (30) days written
notice to Executive.
3.2.1 Termination for Cause. The phrase "Cause" means any of the following:
(i). any material breach by Executive of any provision of Sections
5, 6, 7 or 8 of this Agreement;
(ii) any material breach of any other provision of this Agreement by
Executive (other than any such breach resulting from Executive's incapacity due
to physical or mental illness, which shall be governed by Section 3.2.2
hereof), including without limitation the failure to satisfactorily perform his
duties as provided herein, if that breach is not remedied within thirty (30)
days after written notice to Executive describing the acts alleged to constitute
Cause;
(iii) any act of fraud, misappropriation, embezzlement or
similar willful and malicious conduct by Executive against the Company; or
(iv) indictment of Executive for a felony or any conviction of, or
guilty plea by Executive to, a crime involving moral turpitude if that crime of
moral turpitude tends or would reasonably tend to bring the Company into
disrepute.
3.2.2 Termination for Death or Disability. For purposes hereof, the term
"disability" shall mean such physical or mental illness as shall render
Executive incapable of substantially performing his duties hereunder on a
regular basis at the Company's offices for a period of three (3) consecutive
months or for a period of six (6) months in any twelve-month period, all as
determined by a
3
physician or psychiatrist, as the case may be, selected by the Company.
3.3 Termination by the Executive. Executive may terminate this Agreement
for any reason upon thirty (30) days advance written notice to the Company.
4. Termination Payments.
4.1 No Payments. In the event of any termination of this
Agreement by Company for Cause, or by Executive without Good Reason, the
Company shall have no further payment obligations to Executive hereunder,
except for wages and benefits accrued to date and/or provided by applicable
law.
4.2 Continued Payments. If the Company terminates this Agreement for any
reason other than for Cause, or Executive terminates this Agreement for Good
Reason and in accordance with Section 3.3, then in lieu of any other payments
otherwise required hereunder, the Company shall, subject to Executive's
compliance with Sections 5, 6, 7 and 8 hereof, pay Executive, as liquidated
damages and not as a penalty, (a) within fifteen (15) days after the termination
date, all accrued and unpaid salary and benefits (including accrued but unused
vacation time) through the termination date and (b) the lesser of (i) an amount
equal to his salary payments at the time of the termination, in accordance with
the Company's then payment policy, and benefits provided for herein during the
six-month period following the termination date, and (ii) the entire amount of
the salary remaining due and payable from the date of such termination to the
scheduled expiration of this Agreement; provided, however, that if such
termination occurs prior to the first anniversary of the Effective Date, then in
addition to items (a) and (b) above, Executive shall be entitled to continue to
receive, in accordance with the Company's then payment policy, an amount equal
to his salary payments and, to the extent Executive is not otherwise employed,
health benefits, until the first anniversary of the Effective Date. In the event
that this Agreement is terminated due to the death or disability of Executive,
Company shall pay to Executive a portion of any bonus otherwise payable to
Executive in accordance with Section 2.2 hereof, prorated to reflect any early
termination of this Agreement relative to the performance period to which the
bonus relates.
4.3 Continued Medical Coverage. If the Company terminates this Agreement
for any reason other than for Cause, or Executive terminates this Agreement for
Good Reason and in accordance with Section 3.3, then Company shall maintain, at
Company's cost, Executive's health, dental, vision and disability insurance
described in Section
4
2.3 hereof until the first to occur of (i) the expiration of eighteen (18)
months following such termination; or (ii) Executive accepts employment which
provides health insurance. If the Company terminates this Agreement for Cause,
or Executive terminates this Agreement for any reason other than Good Reason,
Executive shall have the right to maintain, at Executive's cost, the health,
dental, vision and disability insurance described in Section 2.3 hereof, for a
period not to exceed eighteen (18) months or such longer period as may be
required by applicable law, all to the extent permitted by the applicable
insurance carrier.
4.4 Certain Definitions.
4.4.1 Good Reason. For purposes of this Agreement, "Good Reason" means (i)
the assignment to Executive of any duties or the substantial reduction of
Executive's duties, either of which is inconsistent with Executive's position as
Co-Chief Executive Officer; (ii) any change in Executive's reporting
relationship which results in his not reporting to a member of the Board of
Directors of the Company; (iii) a material reduction in Executive's salary or
benefits not agreed to by Executive; (iv) a requirement of Executive to relocate
to an office that would increase Executive's one-way commute distance by more
than fifty (50) miles; or (v) a Change in Control of Company, as hereinafter
defined.
4.4.2 Change in Control of Company. For purposes of this Agreement, "Change
in Control of Company" shall mean the occurrence of any of the following:
(i) Any person or entity acquires ownership or control, directly or
indirectly, of securities of the Company (or a successor to the Company)
representing fifty percent (50%) or more of the combined voting power of the
then outstanding securities of the Company or such successor;
(ii) (a) a sale or disposition of assets of the Company involving fifty
percent (50%)or more in value of the assets of the Company; (b) any merger or
reorganization of Company (whether or not another entity is the survivor), in
which the Company's shareholders (immediately prior to the transaction) do not
own (immediately after the transaction), either directly or indirectly, at least
fifty-one percent (51%) of the voting power of the surviving or successor
corporation; (c) any transaction pursuant to which all of the shareholders of
the Company immediately prior to the transaction, hold (immediately after the
transaction) less than fifty-one percent (51%) of the combined voting power of
the Company or any successor Company; (d) any other event or transaction which
the Board determines, in its discretion, would
5
materially alter the structure, ownership or control of the Company;
provided, however, that the consummation of the transactions contemplated by the
Agreement and Plan of Merger, dated as of July, 1999, between Indigo, Inc.,
a California corporation, and Gemstone, a Delaware corporation, shall not
constitute a Change in Control.
5. Proprietary Information an Inventions. Executive acknowledges that
during his employment he may create, make, derive, produce, obtain, make known
or learn about certain information which has commercial value in the business in
which the Company is engaged and which is treated by the Company as
confidential. This information may have been created, discovered or developed by
the Company or the Executive, in the course and scope of his employment, or
otherwise received by the Company from third parties subject to a duty to
maintain the confidentiality of such information. All such information is
hereinafter called "Proprietary Information."
5.1 Proprietary Information ion Defined. By way of illustration, but not
limitation, Proprietary Information includes trade secrets, ideas, processes,
drawings, specifications, data, formulations, computer programs, software, other
original works of authorship, know-how, improvements, discoveries, developments,
designs, innovations, techniques, business development strategies, marketing
plans, strategies, forecasts, new products, unpublished financial statements,
budgets, projections, licenses, prices, costs, strategic alliances, ventures,
and customer and supplier lists.The foregoing obligations of confidentiality and
non-use shall not apply to any Proprietary Information that:
5.1.1 was known to the Executive prior to the date of disclosure pursuant
to this Agreement and not obtained or derived directly or indirectly from the
Company;
5.1.2 is or becomes public or available to the general public otherwise
than through the act or default of the Executive;
5.1.3 is obtained subsequent to any disclosure under this Agreement from a
third party who is lawfully in possession of same and which information is not
subject to any confidential or non-use obligations owed to the Company or
others;
5.1.4 has been furnished by the Company to a third party without similar
restrictions on disclosure; or
6
5.1.5 is required to be disclosed pursuant to requirements of
Federal, state or local statute, regulation or court order, provided that
Executive delivers prior written notice to Company of such pending disclosure,
and gives Company a reasonable opportunity to oppose such disclosure with the
applicable authority.
5.2 Ownership of Proprietary Information. inn, Executive
acknowledges that all Proprietary Information shall be the sole property of the
Company and its assignees (or, in some cases, its clients, suppliers or
customers), and the Company and its assignees (or, in some cases, its clients,
suppliers or customers) shall be the sole owner of all patents, copyrights,
trade secrets, and all other intellectual property rights in connection
therewith (collectively "Intellectual Property Rights"). The Company's
ownership includes any and all modifications, corrections, updates, changes,
improvements, derivatives and enhancements to the Proprietary Information and
the Intellectual Property Rights therein.
5.3 Non-Disclosure. At all times, both during Executive's
employment and after his termination, Executive shall keep in strictest
confidence and trust all Proprietary Information, and shall not reproduce or
disclose any Proprietary Information, or use such Proprietary Information for
his own account or the account of any third party, without the written consent
of the Company, except as may be necessary in the ordinary course of performing
duties as an employee of the Company.
5.4 Assignment of Inventions. Executive hereby assigns
and transfers to the Company, Executive's entire right, title and interest, now
or hereafter acquired, in and to all Proprietary Information and Intellectual
Property Rights therein, discovered, originated, made or conceived or learned by
Executive either alone or jointly with others, during the period of Executive's
employment which result, directly or indirectly, from (i) the use of premises or
equipment owned, leased or contracted for by the Company or supplies or
Proprietary Information of the Company, or (ii) work conducted on the time of
the Company, or (iii) work performed for the Company. Executive further
acknowledges that all original works of authorship which are made by Executive
(solely or jointly with others) within the scope of and during the period of his
employment with the Company and which are protectible by copyright are "works
made for hire," as that term is defined in the United States Copyright Act.
Executive understands and agrees that the decision whether or not to
commercialize or market any invention developed by him solely or jointly with
others is within the Company's sole discretion and for the Company's sole
benefit and that no royalty will be due to him as a result of the Company's
efforts to commercialize or market
7
any such invention. Executive hereby waives all moral rights which he may have
or hereafter acquire in any Proprietary Information and any Intellectual
Property Rights therein. Executive will, at the Company's request, promptly
execute a written assignment of title to the Company for any Proprietary
Information and Intellectual Property Rights therein, and a written waiver of
all moral rights therein, and Executive will preserve all such Proprietary
Information as confidential information of the Company.
5.5 Notice of Inventions; Execution of Documents. Executive
agrees to give Company prompt written notice of his acquisition or creation of
any Proprietary Information. Executive further agrees as to all Proprietary
Information to assist the Company in every proper way (but at the Company's
expense) to obtain and from time to time enforce patents, copyrights and other
rights and protections relating to inventions in any and all countries, and to
that end agrees to execute all documents for use in applying for and obtaining
such patents, copyrights and other rights and protections on and enforcing
inventions as the Company may desire, together with any assignments thereof to
the Company or persons designated by it. Executive's obligations to assist the
Company in obtaining and enforcing patents, copyrights and other rights and
protections relating to Proprietary Information in any and all countries shall
continue beyond the termination of employment, but the Company shall compensate
Executive at a reasonable rate after such termination for time actually spent,
at the Company's request, on such assistance. In the event the Company is
unable, after reasonable effort, to secure signatures on any documents needed
to effect any assignment hereunder or to apply for or prosecute any patent,
copyright or other right or protection relating to an invention, whether
because of physical or mental incapacity or for any other reason whatsoever,
Executive hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as his agent and attorney-in-fact,to act for and
in his behalf and stead, to execute and file any such application or
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or similar protections thereon
with the same legal force and effect as if executed by him.
5.6 Return of Proprietary Information. All Proprietary
Information, including, without limitation, all written materials, records and
documents or other tangible materials made by Executive or coming into his
possession as a result of his employment with Company concerning the business or
affairs of Company shall be the sole property of Company; and, upon the
termination of his employment with Company or upon the request of Company,
Executive shall promptly deliver the same to Company.
8
5.7 Third Party Information. Executive recognizes that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Executive agrees that Executive owes the Company and such third
parties, during the term of this Agreement and thereafter, a duty to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the services for the Company consistent with the
Company's agreement with such third party.
6. Prior Inventions. Executive understands that all inventions, if any,
patented or unpatented, which Executive made prior to Executive's employment are
excluded from the scope of this Agreement. To preclude any possible uncertainty,
Executive has set forth on item 1 of Exhibit A attached hereto a complete list
of all of Executive's prior inventions, including numbers of all patents and
patent applications, and a brief description of all unpatented inventions which
are not the property of a previous employer. Executive represents and covenants
that the list is complete and that, if no items are on the list, Executive has
no such prior inventions. Executive agrees to notify the Company in writing
before Executive makes any disclosure or performs any work on behalf of the
Company which appears to threaten or conflict with proprietary rights which
Executive claims in any invention or idea. Executive agrees that if in the
course of performing services hereunder, Executive incorporates into the
Company's Proprietary Information or otherwise utilizes any invention,
improvement, development, concept, discovery or other proprietary information
owned by Executive or in which Executive has an interest, the Company is hereby
granted and shall have a non-exclusive, royalty-free, perpetual, irrevocable,
worldwide license to make, have made, modify, use and sell such item as part of
or in connection with such Proprietary Information.
7. Conflicting obligations.
7.1 Trade Secrets of Others. Executive represents that he has not brought,
and will not bring with him to Company, disclose to Company, or use in the
performance of his responsibilities, any devices, materials or documents of a
former employer or other party that are proprietary or are not generally
available to the public, unless he has obtained express written authorization
from such party for their possession and use. The only devices, materials or
documents of a former employer or other party that are
9
proprietary or are not generally available to the public that Executive will
bring to the Company, if any, are identified on item 2 of Exhibit A attached
hereto, and as to each such item, Executive represents that Executive has
obtained express written authorization for their possession and use and has
delivered a copy of such written authorization to the Company.
7.2 Conflicting Confidentiality Agreements. Executive agrees
that during this employment, Executive will not breach any obligation of
confidentiality Executive has to former employers, clients, and others.
Executive represents that Executive's performance under the terms of this
Agreement, as Executive to the Company, does not and will not breach any
agreement to keep in confidence proprietary information acquired by Executive
in confidence or in trust. Executive has neither entered into, nor shall enter
into, any agreement, either written or oral, in conflict herewith.
8. Conflicting Confidentiality Agreement
8.1 During the term of this Agreement, Executive shall not,
directly or indirectly, engage or participate in any business, which is in
competition with any business in which the Company conducts or pursues during
the term of this Agreement. Moreover, in view of Executive's access to the
Company's trade secrets and proprietary information and know-how, Executive
further agrees that Executive will not, without the Company's prior written
consent, design or develop identical or substantially similar designs as those
developed for the Company during his employment for himself or any third party
during the term of this Agreement and for a period of twelve (12) months
following the termination of this Agreement.
8.2 Executive covenants and agrees that he will not, during
the term of this Agreement and continuing until the second anniversary of the
termination of this Agreement, whether for his own account or for the account of
any other person, interfere with the relationship of the Company with, or
endeavor to entice away from the Company, any person who at any time during the
term of Executive's engagement with the Company was an employee of the Company.
Furthermore, Executive covenants and agrees that he will not, whether during the
term of this Agreement or thereafter, whether for his own account or for the
account of any other person, interfere with the relationship of the Company
with, or endeavor to entice away from the Company, any person who at any time
during the term of Executive's engagement with the Company was a customer,
supplier or business partner of the Company.
10
9. Key Man Insurance. The Company may, in its sole discretion, at any time
after the date hereof, apply for and procure as owner for its benefit, life
insurance on Executive, in such amount and in such form or forms as the
Corporation may determine. Executive shall, at the Company's request, subject to
such medical examinations, supply such information and execute such documents as
may be required by the insurance company or companies to whom the Company has
applied for such insurance.
10. General Provisions.
10.1 Mediation and Arbitration.
10.1.1 Mediation. No party to this Agreement may initiate litigation or
arbitration with regard to any dispute with respect to this Agreement until
after all remedies set forth in this Section have been exhausted. In the event
of any dispute arising over this Agreement, any party shall have the right by
giving written notice to the other parties hereto (the "Mediation Notice") to
initiate non-binding mediation to be conducted by a mediator mutually agreed to
by the parties or, in the event the parties are unable to reach such agreement
within thirty (30) days following the delivery of the Mediation Notice, by a
mediator appointed by the American Arbitration Association ("AAA") in accordance
with the rules and regulations of the AAA, or by any other body mutually agreed
upon by the parties. Mediation shall take place at Hayward, California or any
other location mutually agreeable to the parties. In the event the parties
resolve their dispute in mediation, they shall enter into a written agreement,
which shall be binding on all parties thereto.
10.1.2 EXCEPT AS PROVIDED IN SECTIONS 10.1 AND 10.10 HEREOF, EXECUTIVE AND
COMPANY AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, OR RELATING TO
THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION TO BE HELD IN ALAMEDA COUNTY,
CALIFORNIA, IN ACCORDANCE WITH THE EMPLOYMENT DISPUTE RESOLUTION RULES THEN IN
EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR MAY GRANT
INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY. THE DECISION OF THE
ARBITRATOR SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO THE
ARBITRATION. JUDGMENT MAY BE ENTERED ON THE ARBITRATOR'S DECISION IN ANY COURT
HAVING JURISDICTION.
10.1.3 THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT
TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL
ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP (EXCEPT AS PROVIDED IN SECTION 7
HEREOF), INCLUDING, WITHOUT LIMITATION, THE FOLLOWING CLAIMS:
11
10.1.3 (a) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT, BREACH
OF CONTRACT, EXPRESS OR IMPLIED, BREACH OF THE COVENANT OF GOOD FAITH AND FAIR
DEALING, NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS,
MISREPRESENTATION, INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE,
DEFAMATION AND LIBEL;
10.1.3 (b) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR
MUNICIPAL STATUTE, INCLUDING, WITHOUT LIMITATION, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT; AND
10.1.3 (c) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
10.1.4 EXECUTIVE UNDERSTAND THAT EACH PARTY'S COVENANT TO RESOLVE DISPUTES
BY ARBITRATION, AS OPPOSED TO THE JUDICIAL SYSTEM IS CONSIDERATION FOR THE OTHER
PARTY'S PROMISE. EXECUTIVE FURTHER UNDERSTANDS THAT HE HAS BEEN OFFERED
EMPLOYMENT BY THE COMPANY IN CONSIDERATION OF HIS PROMISE TO ARBITRATE DISPUTES.
10.2. Notification of New Employer. In the event that Executive leaves
the employ of the Company, Executive hereby consents to notification by the
Company to Executive's new employer about his rights and obligations under this
Agreement.
10.3 Notices. Except as expressly provided herein, all notices, requests
or other communications required hereunder shall be in writing and shall be
given personal delivery, national overnight courier service, or by U.S. mail,
certified or registered, postage prepaid, return receipt requested, addressed to
the respective party at the applicable address set forth above, or to any party
at such other addresses as shall be specified in writing by such party to the
other parties in accordance with the terms and conditions of this Section. All
notices, requests or communications shall be deemed effective upon personal
delivery, or five (5) days following deposit in the United States mail, or two
(2) business days following deposit with any national overnight courier service.
10 .4 Jurisdiction, Venue and Governing Law. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California(regardless of that jurisdiction or any other jurisdiction's choice
of law principles). To the extent permitted by law and except as otherwise
provided in Section 10.1 hereof, the parties hereto agree that all actions or
proceedings arising
12
in connection herewith, shall be litigated in the state and federal courts
located in the State of California, and each party hereby waives any right it
may have to assert the doctrine of Forum Non Conveniens or to object to venue.
The parties each hereby stipulate that the state and federal courts located in
the County of Alameda, State of California, shall have personal jurisdiction
and venue over each party for the purpose of litigating any such dispute,
controversy or proceeding arising out of or related to this Agreement. To the
extent permitted by law, service of process sufficient for personal
jurisdiction in any action against either party may be made by registered or
certified mail, return receipt requested.
10.5 No Assignment. This Agreement is personal to Executive, and Executive
may not assign any rights or delegate any responsibilities hereunder without the
prior approval of the Company.
10.6 Entire Agreement. This Agreement, including the exhibit which is
referenced herein and incorporated by this reference, is the entire agreement
between the Company and Executive with respect to the subject matter hereof and
cancels and supersedes any and all prior agreements regarding the subject matter
hereof between the parties, including without limitation that certain Employment
Agreement, dated September 30, 1996, between Impax Pharmaceuticals, Inc., and
Executive. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, heirs and permitted assigns. This
Agreement may not be altered, modified, changed or discharged except in writing
signed by both the parties.
10.7 Survival. Sections 4.2, 4.3, 5, 6, 7, 8 and 10, each inclusive, shall
survive termination or expiration of this Agreement.
10.8 Validity. If any one or more of the provisions (or any part thereof)
of this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
(or any part thereof) shall not in any way be affected or impaired thereby.
10.9 No Waiver of Rights. The delay or failure of either party to enforce
at any time any provision of this Agreement shall in no way be considered a
waiver of any such provision, or any other provision, of this Agreement. No
waiver of, or delay or failure to enforce any provision of this Agreement shall
in any way be considered a continuing waiver or be construed as a subsequent
waiver of any such provision, or any other provision of this Agreement.
13
10.10 Equitable Remedies. Employee specifically acknowledges that any
violation of Section 5, 6, 7 or 8 of this Agreement could cause irreparable
injury to Company and its business and property. Employee, therefore, agrees
that in the event of his breach of any of the terms and conditions of Section 5,
6, 7 or 8 of this Agreement, Company shall be entitled, if it so elects, to
institute and prosecute proceedings in any court of competent jurisdiction,
either at law or in equity, to enjoin him from further violation of such
provisions. The remedies provided herein shall be cumulative and in addition to
any and all other remedies which either party may have at law or in equity.
10.11 Attorneys' Fees. The prevailing party shall be entitled to recover
from the losing party its attorneys' fees and costs incurred in any action or
proceeding, including arbitration, brought to interpret this Agreement or to
enforce any right arising out of this Agreement. For purposes of this Section,
the prevailing party shall be that party that most closely obtains the relief
sought by it.
10.12 EXECUTIVE ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO CONSULT
WITH THE ADVISOR OF HIS CHOICE AND THAT HE HAS FREELY AND VOLUNTARILY ENTERED
INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year written below.
IMPAX LABORATORIES, INC.
Date:__________________ By:_______________________
__________________________
(Print Name and Title)
Date:_________________ ___________________________
Xxxxxxx Xxxxx, Ph.D.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written below.
IMPAX LABORATORIES, NC.
Date: December 14, 1999 By: [ILLEGIBLE]
--------------------------- ---------------------------
---------------------------
(Print Name and Title)
Date: December 14, 1999
------------------ By: /s/ X.Xxxxx
-------------------------
Xxxxxxx Xxxxx, Ph.D.
EXHIBIT A
IMPAX LABORATORIES, INC.,
a Delaware corporation
00000 Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Dear Sir or Madam:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment with Impax Laboratories, Inc.,
a Delaware corporation (the "Company"), that have been made or conceived or
first reduced to practice by me, alone or jointly with others, prior to my
engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[ ] Additional sheets attached.
2. I propose to bring to my employment (or consulting, if applicable)
the following devices, materials and documents of a former employer or other
party that are proprietary or are not generally available to the public, which
materials and documents may be used in my employment pursuant to the express
written authorization of my former employer or other party (a copy of which is
attached hereto)
[ ] No materials.
[ ] See below:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
15
