EXHIBIT 10.40
EMPLOYMENT AGREEMENT
THIS AGREEMENT made in Oceanport, New Jersey as of the 1st day of March
2003, between Life Medical Sciences, Inc., a Delaware corporation (the
"Company") and Xxx Xxxxx the undersigned individual ("Executive").
In consideration of the mutual covenants and agreements hereinafter set
forth, the Company and Executive agree as follows:
1. Agreement Term.
The term of this Agreement shall be the three-year period
commencing on March 1, 2003 (the "Employment Date") and ending on the third
anniversary of the Employment Date (the "Agreement Term"). It is understood and
agreed by the parties hereto that absent prior written notice to the Executive
of the Company's intent to terminate this Agreement, such notice being received
by the Executive at least three months prior to the end of the Agreement Term or
unless the Company has exercised its right to terminate this Agreement under
Sections 5.(b) or 5.(c), the Agreement Term shall automatically be extended in
annual increments as of the anniversary of the Employment Date.
2. Employment.
(a) Employment by the Company. Executive agrees to be employed
by the Company for the Agreement Term upon the terms and subject to the
conditions set forth in this Agreement. Executive shall have the title of Vice
President of Research and Chief Scientific Officer reporting to the President
and CEO. Executive shall have such duties as may be prescribed by the Company
and shall serve in such other and/or additional position(s) as the Company may
determine from time to time. Executive shall also serve as a Corporate Officer
of the Company. The Company will at all times treat the Executive with dignity,
honesty and respect, and will provide Executive with such resources as in the
Company's judgement shall enable the Executive to discharge his
responsibilities.
(b) Performance of Duties. Throughout the Agreement Term,
Executive shall faithfully and diligently perform Executive's duties in
conformity with the directions of the Company and serve the Company to the best
of Executive's ability. Executive shall devote Executive's entire working time,
attention and energies to the business and affairs of the Company, subject to
vacations and sick leave as provided herein and in accordance with Company
policy.
(c) Place of Performance. During the Agreement Term, Executive
shall, subject to travel requirements on behalf of the Company, be based at the
Executive's personal residence or such other location(s) in central New Jersey
as the Company may determine.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive for
employment hereunder a base salary ("Base Salary") at the annual rate of
$180,000. The Base Salary shall be increased prospectively on each anniversary
of the Employment Date during the Agreement Term, by such amount as the Board of
Directors of the Company shall determine is necessary and appropriate to give
effect to increases in the cost of living. The Base Salary shall be payable in
installments consistent with the Company's payroll practices then in effect.
(b) Benefits and Perquisites; Bonus and Stock Options.
Executive shall be entitled to participate in, to the extent Executive is
otherwise eligible under the terms thereof, the benefit plans and programs,
including medical and savings and retirement plans, and receive the benefits and
perquisites, generally provided to employees of the same level and
responsibility as Executive. Executive shall be entitled to four weeks vacation
during each year of the Agreement Term. Nothing in this Agreement shall preclude
the Company from terminating or amending from time to time any employee benefit
plan or program. Executive shall be eligible for bonuses and stock options, at
such times and in such amounts as shall be determined at the discretion of the
Board of Directors of the Company based on their assessment of Executive's
performance of his duties and on the financial performance of the Company.
(c) Travel and Business Expenses. Upon submission of itemized
expense statements with supporting receipts in the manner specified by the
Company, Executive shall be entitled to reimbursement for reasonable travel and
other reasonable business expenses duly incurred by Executive in the performance
of Executive's duties under this Agreement in accordance with the policies and
procedures established by the Company from time to time for employees of the
same level and responsibility as Executive.
(d) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in Sections 3 and 5 of this Agreement shall
be in lieu of any and all other compensation and benefits. Payment of all
compensation and benefits to Executive hereunder shall be made in accordance
with the relevant Company policies in effect from time to time, including normal
payroll practices, and shall be subject to all applicable employment and
withholding taxes.
(e) Cessation of Employment. In the event Executive shall
cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
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4. Exclusive Employment; Noncompetition.
(a) No Conflict; No Other Employment. During the period of
Executive's employment with the Company, Executive shall not engage in any
activity which conflicts or interferes with or derogates from the performance of
Executive's duties hereunder nor shall Executive engage in any other business
activity, whether or not such business activity is pursued for gain or profit,
except as approved in advance in writing by the President & CEO of the Company.
(b) No Competition. Without limiting the generality of the
provisions of Sections 2(b) or 4(a) and so long as the Company fulfills its
obligations under this Agreement, during the period of Executive's employment
with the Company, and for a period of one year thereafter (the "Restricted
Period"), Executive shall not, directly or indirectly, own, manage, operate,
join, control, participate in, invest in or otherwise be connected or associated
with, in any manner, including as an officer, director, employee, partner,
stockholder, joint venturer, lender, consultant, advisor, agent, proprietor,
trustee or investor, any Competing Business located in the United States or in
any other location where the Company operates or sells its products or services;
provided, however, that if Executive's employment hereunder is terminated by the
Company under Section 5(d), then the provisions of this Section 4(b) shall
remain in effect only if the Company shall not have breached its obligation to
pay to Executive amounts as severance pursuant to Section 5(d).
(i) As used in this Agreement, the term "Competing
Business" shall mean any business or venture which engages in any
business area, or sells or provides products or services that compete
or overlap with any business area, in which the Company engages or is
actively developing products or technology to engage in at any time
during the Agreement Term, or any business or venture which sells or
provides products or services that compete or overlap with the products
or services as sold or provided, or are being actively developed to be
sold or provided, by the Company at any time during the Agreement Term.
(ii) For purposes of this Section 4(b), the term
"invest" shall not preclude an investment in not more than one percent
(1%) of the outstanding capital stock of a corporation whose capital
stock is listed on a national securities exchange or included in the
NASDAQ Stock Market, so long as Executive does not have the power to
control or direct the management of, or is not otherwise associated
with, such corporation.
(c) No Solicitation. During the Restricted Period, Executive
shall not solicit or encourage any employee or consultant of the Company to
leave the employ, or cease his or her relationship with, the Company for any
reason, nor employ or retain such an individual in a Competing Business or any
other business.
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(d) Company Customers. Executive shall not, during the
Restricted Period, directly or indirectly, contact, solicit or do business with
any "customers" (as hereinafter defined) of the Company for the purpose of
selling or providing any product or service then sold or provided by the Company
to such customers or being actively developed to be sold or provided to such
customers during Executive's employment by the Company or at the time of
termination of Executive's employment hereunder.
For the purposes of the provisions of this Section 4(d),
"customer" shall include any entity that purchased any product or service from
the Company within twelve months of the termination of Executive's employment
hereunder, without regard to the reason for such termination. The term
"customer" also includes any former customer or potential customer of the
Company which the Company has solicited within twelve months of such
termination, for the purpose of selling or providing any product or service then
sold or provided, or then actively being developed to be sold or provided, by
the Company.
(e) Modification of Covenants. The restrictions against
competition set forth in this Section 4 are considered by the parties to be
reasonable for the purposes of protecting the business of the Company. However,
if any such restriction is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted
to extend only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
5. Termination of Employment.
(a) Termination. The Company may terminate Executive's
employment for Cause (as hereinafter defined) in which case the provisions of
Section 5(b) shall apply. The Company may also terminate Executive's employment
in the event of Executive's Disability (as hereinafter defined), in which case
the provisions of Section 5(c) shall apply. The Company may also terminate the
Executive's employment for any other reason by written notice to Executive, in
which case the provisions of Section 5(d) shall apply. If Executive's employment
is terminated by reason of Executive's death, retirement or voluntary
resignation, the provisions of Section 5(b) shall apply.
(b) Termination for Cause; Termination by Reason of Death or
Retirement or Voluntary Resignation without Good Reason.
(1) In the event that Executive's employment hereunder
is terminated during the Agreement Term (i) by the Company for Cause (as
hereinafter defined), (ii) by reason of Executive's death or retirement or (iii)
by reason of Executive's voluntary resignation without Good Reason, then the
Company shall pay to Executive, within thirty (30) days of the date of such
termination, only the Base Salary through such date of termination.
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(2) For purposes of this Agreement, "Cause" shall mean
(i) conviction of any crime (whether or not involving the Company) constituting
a felony in the jurisdiction involved; (ii) engaging in any substantiated act
involving moral turpitude; (iii) engaging in any act which, in each case,
subjects, or if generally known would subject, the Company to public ridicule or
embarrassment; (iv) gross neglect or misconduct in the performance of
Executive's duties hereunder; (v) willful or repeated failure or refusal to
perform such duties as may be relegated to Executive commensurate with
Executive's position; or (vi) breach of any provision of this Agreement by
Executive.
(3) In the event the Company desires to terminate
Executive's employment for Cause as defined in clauses (iv), (v) or (vi) of the
definition thereof, the Company shall first attempt to resolve the matter(s) at
issue through a meeting between Executive and the Chairman of the Board for
Directors of the Company. If such meeting fails to resolve the matter(s), then
Executive will meet with the Board of Directors of the Company and attempt to
resolve the matter(s). The decision of the Board of Directors of the Company as
to the matter(s) shall be final and binding on the parties and not subject to
review or appeal by any other person.
(c) Disability. If, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been absent from Executive's
duties hereunder on a full time basis for either (i) ninety (90) days within any
six-month period, or (ii) sixty (60) consecutive days, and within thirty (30)
days after written notice of termination is given shall not have returned to the
performance of Executive's duties hereunder on a full time basis, the Company
may terminate Executive's employment hereunder for "Disability". In that event,
the Company shall pay to Executive, within thirty (30) days of the date of such
termination, only the Base Salary through such date of termination. During any
period that Executive fails to perform Executive's duties hereunder as a result
of incapacity due to physical or mental illness (a "Disability Period"),
Executive shall continue to receive the compensation and benefits provided by
Section 3 hereof until Executive's employment hereunder is terminated; provided,
however, that the amount of compensation and benefits received by Executive
during the Disability Period shall be reduced by the aggregate amounts, if any,
payable to Executive under disability benefit plans and programs of the Company
or under the Social Security disability insurance program.
(d) Termination By Company For Any Other Reason; Termination
for Good Reason by Executive In the event that Executive's employment hereunder
is terminated by the Company during the Agreement Term for any reason other than
as provided in Sections 5(b) or 5(c) hereof or is terminated for Good Reason by
Executive then the Company shall pay to Executive, within thirty (30) days of
the date of such termination, the Base Salary through such date of termination
and, in lieu of any further compensation and benefits for the balance of the
Agreement Term, severance pay equal to the Base Salary that Executive would have
otherwise received during the period of six months from the effective date of
such termination, commencing with such date of termination at the times and in
the amounts such Base Salary would have been
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paid; provided, however, that in the event that Executive shall breach Sections
4 or 6 hereof, in addition to any other remedies the Company may have in the
event Executive breaches this Agreement, the Company's obligation pursuant to
this Section 5(d) to continue such payments of salary shall cease and
Executive's rights thereto shall terminate and shall be forfeited. "Good Reason"
shall mean (i) the assignment to Executive of duties inconsistent with his
title, (ii) a reduction by the Company in the Base Salary as in effect on the
date hereof or as it may be increased from time to time, (iii) the failure by
the Company to continue any compensation or benefit plan that is material to
Executive's total compensation, (iv) a Change in Control, as such term is
defined in the Company's 2001 Non-Qualified Stock Option Plan, or (v) a
relocation of the Company's offices where Executive is to perform the services
required hereby to an unreasonable commuting distance from Executive's residence
in the New York City area.
(d) No Further Liability; Release. Payment made and performance by the
Company in accordance with this Section 5 shall operate to fully discharge and
release the Company and its directors, officers, employees, subsidiaries,
affiliates, stockholders, successors, assigns, agents and representatives from
any further obligation or liability with respect to Executive's employment and
termination of employment. Other than paying Executive's Base Salary through the
date of termination of Executive's employment and making any severance payment
pursuant to and in accordance with this Section 5 (as applicable), the Company
and its directors, officers, employees, subsidiaries, affiliates, stockholders,
successors, assigns, agents and representatives shall have no further obligation
or liability to Executive or any other person under this Agreement. The Company
shall have the right to condition the payment of any severance or other amounts
pursuant to Sections 5(c) or 5(d) hereof upon the delivery by Executive to the
Company of a release in form and substance satisfactory to the Company of any
and all claims Executive may have against the Company and its directors,
officers, employees, subsidiaries, affiliates, stockholders, successors,
assigns, agents and representatives arising out of or related to Executive's
employment by the Company and termination of such employment.
6. Confidential Information.
(a) Existence of Confidential Information. The Company owns and has
developed and compiled, and will develop and compile, certain proprietary
technology, know-how and confidential information which have great value to its
business (referred to in this Agreement, collectively, as ("Confidential
Information"). Confidential Information includes not only information disclosed
by the Company to Executive, but also information developed or learned by
Executive during the course or as a result of employment with the Company, which
information shall be the property of the Company. By way of example and without
limitation, Confidential Information includes all information that has or could
have commercial value or other utility in the business in which the Company is
engaged or contemplates engaging, and all information of which the unauthorized
disclosure could be detrimental to the interests of the Company, whether
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or not such information is specifically labeled as Confidential Information. By
way of example and without limitation, Confidential Information includes any and
all information developed, obtained, licensed by or to or owned by the Company
concerning trade secrets, techniques, know-how (including research data,
designs, plans, procedures, merchandising, marketing, distribution and
warehousing know-how, processes, and research records), software, computer
programs, and any other intellectual property created, used or sold (through a
license or otherwise) by the Company, product know-how and processes,
innovations, discoveries, improvements, research, development, test results,
reports, specifications, data, formats, marketing data and plans, business
plans, strategies, forecasts, unpublished financial information, orders,
agreements and other forms of documents, price and cost information,
merchandising opportunities, expansion plans, budgets, projections, customer,
supplier, licensee, licensor and subcontractor identities, characteristics,
agreements and operating procedures, and salary, staffing and employment
information.
(b) Protection of Confidential Information. Executive acknowledges and
agrees that in the performance of duties hereunder Executive develops and
acquires, and the Company discloses to and entrusts Executive with, Confidential
Information which is the exclusive property of the Company and which Executive
may possess or use only in the performance of duties for the Company. Executive
also acknowledges that Executive is aware that the unauthorized disclosure of
Confidential Information, among other things, may be prejudicial to the
Company's interests, an invasion of privacy and an improper disclosure of trade
secrets. Executive shall not, directly of indirectly, use, make available, sell,
disclose or otherwise communicate to any corporation, partnership, individual or
other third party, other than in the course of Executive's assigned duties and
for the benefit of the Company, any Confidential Information, either during the
Agreement Term or thereafter. In the event Executive desires to publish the
results of Executive's work for or experiences with the Company through
literature, interviews or speeches, Executive will submit requests for such
interviews or such literature or speeches to the Board of Directors of the
Company at least fourteen (14) days before any anticipated dissemination of such
information for a determination of whether such disclosure is in the best
interests of the Company, including whether such disclosure may impair trade
secret status or constitute an invasion of privacy. Executive agrees not to
publish, disclose or otherwise disseminate such information without the prior
written approval of the Board of Directors of the Company.
(c) Delivery of Records, Etc. In the event Executive's employment with
the Company ceases for any reason, Executive will not remove from the Company's
premises without its prior written consent any records, notes, notebooks, files,
drawings, documents, equipment, materials and writings received from, created
for or belonging to the Company, including those which relate to or contain
Confidential Information, or any copies thereof. Upon request or when employment
with the Company terminates, Executive will immediately deliver the same to the
Company.
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7. Invention and Patents.
(a) Executive will promptly and fully disclose to the Company any and
all inventions, discoveries, trade secrets and improvements, whether or not
patentable or whether or not they are made, conceived or reduced to practice
during working hours or using the Company's data or facilities, which Executive
shall develop, make, conceive or reduce to practice during Executive's
employment by the Company, either solely or jointly with others (collectively,
"Developments"). All such Developments shall be the sole property of the
Company, and Executive hereby assigns to the Company, without further
compensation, all his right, title and interest in and to such Developments and
any and all related patents, patent applications, copyrights, copyright
applications, trademarks and trade names in the United States and elsewhere.
(b) Executive shall keep and maintain adequate and current written
records of all Developments (in the form of notes, sketches, drawings and as may
be specified by the Company), which records shall be available to and remain the
sole property of the Company at all times.
(c) Executive shall assist the Company in obtaining and enforcing
patent, copyright and other forms of legal protection for the Developments in
any country. Upon request, Executive shall sign all applications, assignments,
instruments and papers and perform all acts necessary or desired by the Company
and to enable the Company its successors, assigns and nominees, to secure and
enjoy the full exclusive benefits and advantages thereof.
(d) Executive understands that Executive's obligations under this
section will continue after the termination of his employment with the Company
and that Executive shall perform such obligations without further compensation,
except (i) for reimbursement of expenses incurred at the request of the Company
and (ii) that after the termination of Executive's employment with the Company
and notwithstanding anything in this Section 7 to the contrary, Executive shall
not be required to provide assistance to the Company in accordance with this
Section 7 or Section 9(l) for more than 50 hours during any twelve-month period.
If the Company desires assistance beyond such 50-hour limitation, such
assistance shall be subject to Executive's consent, not to be unreasonably
withheld, and the Company will compensate Executive on a per diem basis at a per
diem rate that is determined by dividing the Base Salary in effect when the
Employment Term was terminated by 250 days.
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8. Assignment and Transfer
(a) Company. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company to, any purchaser of all or
substantially all of the Company's business or assets, any successor to the
Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such purchase, succession or assignment had taken
place.
(b) Executive. Executive's rights and obligations under this Agreement
shall not be transferable by Executive by assignment or otherwise, and any
purported assignment, transfer or delegation thereof shall be void; provided,
however, that if Executive shall die, all amounts then payable to Executive
hereunder shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there be no such designee,
to Executive's estate.
9. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that he is not
a party to any other employment agreement and that neither Executive's
employment with the Company nor Executive's performance of Executive's
obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other agreements to which Executive is or has been a party
or with any other obligations, legal or otherwise, which Executive may have.
(b) Nondisclosure; Prior Employers. Executive will not disclose to the
Company, or use, or induce the Company to use, any proprietary information,
trade secrets or confidential business information of others. Executive
represents and warrants that Executive has returned all property, proprietary
information, trade secrets and confidential business information belonging to
all prior employers.
(c) Cooperation. Following termination of employment with the Company,
Executive shall cooperate with the Company, as requested by the Company, to
affect a transition of Executive's responsibilities and to ensure that the
Company is aware of all matters being handled by Executive. As compensation for
such cooperation, the Company shall pay the Executive on a mutually agreed upon
per diem basis. Such compensation shall be over and above any payments due the
Executive as defined herein.
(d) Protection of Reputation. During the Agreement Term and thereafter,
Executive agrees that he will take no action which is intended, or could
reasonably be expected, to harm the Company or its reputation or which could
reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
(e) Governing Law; Arbitration.
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(i) Governing Law. This Agreement, including the validity,
interpretation, construction and performance of this Agreement, shall be
governed by and construed in accordance with the laws of the State of New Jersey
applicable to agreements made and to be performed in such state without regard
to such states conflicts of law principles.
(ii) Arbitration. Subject to Section 9(k) hereof, any
controversy or claim which arises out of or relating to this Agreement, or the
breach thereof shall be settled by arbitration in accordance with the Rules of
the American Arbitration Association then in effect. The controversy or claim
shall be submitted to three arbitrators, one of whom shall be chosen by the
Employee, one of whom shall be chosen by the Company, and one of whom shall be
chosen by the two so selected. The party desiring arbitration shall give written
notice to the other party of its desire to arbitrate the particular matter in
question, naming the arbitrator selected by it. If the other party shall fail
within a period of 15 days after such notice shall have been given to reply in
writing naming the arbitrator chosen as above provided, or if the two
arbitrators selected by the parties shall fail within 15 days after their
selection to agree upon the third arbitrator, then either party may apply to the
American Arbitration Association for the appointment of an arbitrator to fill
the place so remaining vacant. The decision of any two of the arbitrators shall
be final and binding upon the parties hereto. Judgement upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof. The
proceedings shall be held in New York, New York. The arbitrators shall have no
power to award punitive or exemplary damages or to ignore or vary the terms of
this Agreement, and shall be bound to apply controlling law. Arbitration shall
be binding and the remedy for the settlement of the controversy or claims
(except as set forth in the preceding paragraph of this Section).
(f) Entire Agreement. This Agreement (including the Exhibits hereto)
contains the entire agreement and understanding between the parties hereto in
respect of the subject matter hereof and supersedes, cancels and annuls any
prior or contemporaneous written or oral agreements, understandings, commitments
and practices between them respecting the subject matter hereof, including all
prior employment agreements, if any, between the Company and Executive, which
agreement(s) hereby are terminated and shall be of no further force or effect.
(g) Amendment. This Agreement may be amended only by a writing which
makes express reference to this Agreement as the subject of such amendment and
which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(h) Severability. If any term, provision, covenant or condition of this
Agreement or part thereof, or the application thereof to any person, place or
circumstance, shall be held to be invalid, unenforceable or void, the remainder
of this Agreement and such term, provision, covenant or condition shall remain
in full force and effect, and any such invalid, unenforceable or void term,
provision, covenant or condition shall be deemed, without further action on the
part of the parties hereto, modified, amended and limited to the extent
necessary to render the same and
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the remainder of this Agreement valid, enforceable and lawful. In this regard,
Executive acknowledges that the provisions of Sections 4 and 6 are reasonable
and necessary for the protection of the Company.
(i) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not strictly
for or against the Company or Executive. The use herein of the word "including,"
when following any general provision, sentence, clause, statement, term or
matter, shall be deemed to mean "including, without limitation". As used herein,
"Company" shall mean the Company and its subsidiaries and any purchaser of,
successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law. As used herein, the words "day" or "days" shall mean a calendar day or
days.
(j) Nonwaiver. Neither any course of dealing nor any failure or neglect
of either party hereto in any instance to exercise any right, power or privilege
hereunder or under law shall constitute a waiver of any other right, power or
privilege or of the same right, power or privilege in any other instance. All
waivers by either party hereto must be contained in a written instrument signed
by the party to be charged and, in the case of the Company, by its duly
authorized officer.
(k) Remedies for Breach. The parties hereto agree that Executive is
obligated under this Agreement to render personal services during the Agreement
Term of a special, unique, unusual, extraordinary and intellectual character,
thereby giving this Agreement peculiar value, and, in the event of a breach or
threatened breach of any covenant of Executive herein, the injury or imminent
injury to the value and the goodwill of the Company's business could not be
reasonably or adequately compensated in damages in an action at law.
Accordingly, Executive expressly acknowledges that the Company shall be entitled
to specific performance, injunctive relief or any other equitable remedy against
Executive, without the posting of a bond, in the event of any breach or
threatened breach of any provision of this Agreement by Executive (including
Sections 4 and 6 hereof). Without limiting the generality of the foregoing, if
Executive breaches Sections 4 or 6 hereof, such breach will entitle the Company
to enjoin Executive from disclosing any Confidential Information to any
Competing Business, to enjoin such Competing Business from receiving Executive
or using any such Confidential Information and/or to enjoin Executive from
rendering personal services to or in connection with such Competing Business.
The rights and remedies of the parties hereto are cumulative and shall not be
exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations and
duties of the other under this Agreement, and the enforcement of one or more of
such rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
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(l) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when sent by certified or registered mail,
return receipt requested, with postage prepaid, to Executive's residence (as
reflected in the Company's records or as otherwise designated by Executive on
thirty (30) days' prior written notice to the Company) or to the Company's
principal executive office, attention: Chairman of the Board (with copies to the
General Counsel), as the case may be. All such notices, requests, consents and
approvals shall be effective upon being deposited in the United States mail.
However, the time period in which a response thereto must be given shall
commence to run from the date of receipt on the return receipt of the notice,
request, consent or approval by the addressee thereof. Rejection or other
refusal to accept, or the inability to deliver because of changed address of
which no notice was given as provided herein, shall be deemed to be receipt of
the notice, request, consent or approval sent.
(m) Assistance in Proceedings, Etc. Executive shall, without additional
compensation, during and after expiration of the Agreement Term, upon reasonable
notice, furnish such information and proper assistance to the Company as may
reasonably be required by the Company in connection with any legal or
quasi-legal proceeding, including any external or internal investigation,
involving the Company or any of its affiliates or in which any of them is, or
may become, a party, unless Executive is adverse to the Company in such
proceeding or unless Executive and the Company are both defendants in such
proceeding and assisting the Company may impair Executive's ability to defend
himself in such proceeding. After the Employment Term Executive shall provide
the same assistance under the same conditions, except that Executive shall not
be required to provide assistance to the Company in accordance with this Section
or Section 7 for more than 50 hours during any twelve-month period. If the
Company desires assistance beyond such 50-hour limitation, such assistance shall
be subject to Executive's consent, not to be unreasonably withheld, and the
Company will compensate Executive on a per diem basis at a per diem rate that is
determined by dividing the Base Salary in effect when the Employment Term was
terminated by 250 days.
(n) Survival. Cessation or termination of Executive's employment with
the Company shall not result in termination of this Agreement. The respective
obligations of Executive and rights and benefits afforded to the Company as
provided in this Agreement shall survive cessation or termination of Executive's
employment hereunder. This Agreement shall not terminate upon, and shall remain
in full force and effect following, expiration of the Agreement Term and all
rights and obligations of the parties hereto as and to the extent provided
herein shall survive such expiration.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
LIFE MEDICAL SCIENCES, INC.
By:__________________________
Xxxxxx X. Xxxxxx
Chairman, President & CEO
EXECUTIVE
----------------------------
Xxx Xxxxx, Ph. D.
Life Medical Sciences, Inc.
Improving Life Through Discovery
March 1, 2003
Xxx Xxxxx, Ph. D.
000 Xxxxxx Xx.
Xxxxx Xxxxxx, XX 00000
Re: Indemnification Agreement
Dear Xxx:
Reference is made to that certain Indemnification Agreement entered into with
you on May 29, 1996 (the "Indemnification Agreement") at the time of your prior
employment as an executive officer of our company. That employment ended on July
31, 2000.
In connection with your rejoining our company as Chief Scientific Officer and
Vice President of Research and Development effective March 1, 2003, we hereby
agree to extend the term of the Indemnification Agreement so that your Corporate
Status (as defined therein) continues uninterrupted from May 29, 1996 through
the term of your current employment agreement.
Except as modified hereby, the terms of the Indemnification Agreement shall
continue in full force and effect.
If you are in agreement with the foregoing modification to the Indemnification
Agreement, kindly so indicate by signing in the space provided below and
returning the originally signed copy to the undersigned.
Very truly yours,
Xxxxxx X. Xxxxxx
Chairman, President & CEO
Agreed:
-------------------------
Xxx Xxxxx, Ph.D.
--------------------------------------------------------------------------------
XX Xxx 000, Xxxxxx Xxxxxx, XX 00000
xxx.xxxxxxxxxxxxxxxxxxx.xxx
Phone/Fax 000-000-0000
