EXHIBIT 10.10
EMPLOYMENT AGREEMENT
AGREEMENT (the "AGREEMENT"), dated as of January 2, 2004, by and between
MANHATTAN PHARMACEUTICALS, INC., a Delaware corporation with principal executive
offices at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "COMPANY"),
and XX. XXXXXXX XXXXXXXXX, residing at Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxx, XX
00000-0000 (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company desires to continue to employ the Executive as
President and Chief Executive Officer of the Company, and the Executive desires
to continue to serve the Company in those capacities, upon the terms and subject
to the conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Employment.
(a) Services. The Executive will be employed by the Company as its
President and Chief Executive Officer. The Executive will report to the Board of
Directors of the Company (the "Board") and shall perform such duties as are
consistent with your position as President and Chief Executive Officer (the
"Services"). The Executive agrees to perform such duties faithfully, to devote
all of his working time, attention and energies to the business of the Company,
and while he remains employed, not to engage in any other business activity that
is in conflict with your duties and obligations to the Company.
(b) Acceptance. Executive hereby accepts such employment and agrees
to render the Services.
2. Term.
The Executive's employment under this Agreement (the "Term") shall
commence as of the Effective Date (as hereinafter defined) and shall continue
for a term of one (1) year, unless sooner terminated pursuant to Section 9 of
this Agreement. Notwithstanding anything to the contrary contained herein, the
provisions of this Agreement governing protection of Confidential Information
shall continue in effect as specified in Section 6 hereof and survive the
expiration or termination hereof. The Term may be extended for additional one
(1) year periods upon mutual written consent of the Executive and the Board.
3. Best Efforts; Place of Performance.
(a) The Executive shall devote substantially all of his business
time, attention and energies to the business and affairs of the Company and
shall use his best efforts to advance the best interests of the Company and
shall not during the Term be actively engaged in any other business activity,
whether or not such business activity is pursued for gain, profit or other
pecuniary advantage, that will interfere with the performance by the Executive
of his duties hereunder or the Executive's availability to perform such duties
or that will adversely affect, or negatively reflect upon, the Company.
1
(b) The duties to be performed by the Executive hereunder shall be
performed primarily at the office of the Company in New York, New York, subject
to reasonable travel requirements on behalf of the Company, or such other place
as the Board may reasonably designate.
4. Directorship. The Company shall use its best efforts to cause the
Executive to be elected as a member of its Board of Directors throughout the
Term and shall include him in the management slate for election as a director at
every stockholders meeting during the Term at which his term as a director would
otherwise expire. The Executive agrees to accept election, and to serve during
the Term, as director of the Company, without any compensation therefor other
than as specified in this Agreement.
5. Compensation. As full compensation for the performance by the Executive
of his duties under this Agreement, the Company shall pay the Executive as
follows:
(a) Base Salary. The Company shall pay Executive a salary (the "Base
Salary") equal to Three Hundred Twenty Five Thousand Dollars ($325,000) per
year. Payment shall be made semi-monthly, on the last day of each calendar
month.
(b) Guaranteed Bonus. The Company shall pay the Executive a bonus
(the "GUARANTEED BONUS") of Seventy Five Thousand ($75,000) within 30 days
following each anniversary of the date of this Agreement during the Term,
provided that the Executive is employed hereunder on such anniversary date. The
Board of Directors of the Company shall annually review the Guaranteed Bonus to
determine whether an increase in the amount thereof is warranted.
(c) Discretionary Bonus. At the sole discretion of the Board of
Directors of the Company, the Executive shall receive an additional annual bonus
(the "DISCRETIONARY BONUS") in an amount equal to up to 100% of his Base Salary,
based upon his performance on behalf of the Company during the prior year.
Factors to be considered by the Board of Directors shall include, but not be
limited to, significant growth in the Company's market capitalization, the
liquidity and performance of the Company's Common Stock, as well as any
financing received by the Company from third parties introduced to the Company
by the Executive. The Discretionary Bonus shall be payable either as a lump-sum
payment or in installments as determined by the Board of Directors of the
Company in its sole discretion. In addition, the Board of Directors of the
Company shall annually review the Bonus to determine whether an increase in the
amount thereof is warranted.
(d) Incentive Bonus. The Company shall pay the Executive periodic
milestone based incentive bonuses (each an "INCENTIVE BONUS") as follows:
(i) $25,000 upon the successful completion of a Phase I
clinical trial of oleoyl-estrone anywhere in the world under the applicable
regulatory permit;
(ii) $25,000 upon the successful completion of a Phase I
clinical trial of lingual spray propofol anywhere in the world under the
applicable regulatory permit;
2
(iii) $50,000 upon the successful completion of a Phase I
clinical trial of oleoyl-estrone in the United States under a company sponsored
Investigational New Drug Application ("IND");
(iv) $50,000 upon the successful completion of a Phase I
clinical trial of lingual spray propofol in the United States under a company
sponsored IND; and
(v) $50,000 on the date on which the Company's Common Stock
first trades on the American Stock Exchange, the Nasdaq Smallcap Market or Nsdaq
National Market.
For purposes of this Agreement, successful
completion of a clinical trial shall mean receipt by the Company of a finalized
database of results from such clinical trial.
(e) Withholding. The Company shall withhold all applicable federal,
state and local taxes and social security and such other amounts as may be
required by law from all amounts payable to the Executive under this Section 5.
(f) Stock Options. As additional compensation for the services to be
rendered by the Executive pursuant to this Agreement, the Company shall grant
the Executive stock options ("STOCK OPTIONS") to purchase 600,000 shares of
Common Stock of the Company representing two and one half percent (2.5%) of the
outstanding Common Stock of the Company. The Stock Options shall be governed by
the Company's 2003 Stock Option Plan and shall vest, if at all, in two equal
installments on January 1, 2005 and January 1, 2006 of this Agreement, subject
in each case to the provisions of Section 10 below. In connection with such
grant, the Executive shall enter into the Company's standard stock option
agreement which will incorporate the foregoing vesting schedule and the Stock
Option related provisions contained in Section 10 below. The Board of Directors
of the Company shall annually review the number of Stock Options granted to the
Executive to determine whether an increase in the number thereof is warranted.
(g) Expenses. The Company shall reimburse the Executive for all
normal, usual and necessary expenses incurred by the Executive in furtherance of
the business and affairs of the Company, including reasonable travel and
entertainment, upon timely receipt by the Company of appropriate vouchers or
other proof of the Executive's expenditures and otherwise in accordance with any
expense reimbursement policy as may from time to time be adopted by the Company.
(h) Other Benefits. The Executive shall be entitled to all rights
and benefits for which he shall be eligible under any benefit or other plans
(including, without limitation, dental, medical, medical reimbursement and
hospital plans, pension plans, employee stock purchase plans, profit sharing
plans, bonus plans and other so-called "fringe" benefits) as the Company shall
make available to its senior executives from time to time. In addition, the
Company shall reimburse the Executives for his reasonable medical licensing fees
and other professional dues. Until such time as the Company implements a pension
or retirement plan on behalf of its Executives, Company agrees to reimburse
Executive an amount equal to the maximum contribution permitted by law to the
Executive's self-directed XXX pension plan each year of the Term, but in no
event greater than $10,000 per annum. In addition, Company agrees to reimburse
executive for reasonable personal disability coverage for each year of the Term.
3
(i) Vacation. The Executive shall, during the Term, be
entitled to a vacation of four (4) weeks per annum, in addition to holidays
observed by the Company. The Executive shall not be entitled to carry any
vacation forward to the next year of employment and shall not receive any
compensation for unused vacation days.
6. Confidential Information and Inventions.
(a) The Executive recognizes and acknowledges that in the course of
his duties he is likely to receive confidential or proprietary information owned
by the Company, its affiliates or third parties with whom the Company or any
such affiliates has an obligation of confidentiality. Accordingly, during and
after the Term, the Executive agrees to keep confidential and not disclose or
make accessible to any other person or use for any other purpose other than in
connection with the fulfillment of his duties under this Agreement, any
Confidential and Proprietary Information (as defined below) owned by, or
received by or on behalf of, the Company or any of its affiliates. "Confidential
and Proprietary Information" shall include, but shall not be limited to,
confidential or proprietary scientific or technical information, data, formulas
and related concepts, business plans (both current and under development),
client lists, promotion and marketing programs, trade secrets, or any other
confidential or proprietary business information relating to development
programs, costs, revenues, marketing, investments, sales activities, promotions,
credit and financial data, manufacturing processes, financing methods, plans or
the business and affairs of the Company or of any affiliate or client of the
Company. The Executive expressly acknowledges the trade secret status of the
Confidential and Proprietary Information and that the Confidential and
Proprietary Information constitutes a protectable business interest of the
Company. The Executive agrees: (i) not to use any such Confidential and
Proprietary Information for himself or others; and (ii) not to take any Company
material or reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof from the Company's offices at any
time during his employment by the Company, except as required in the execution
of the Executive's duties to the Company. The Executive agrees to return
immediately all Company material and reproductions (including but not limited,
to writings, correspondence, notes, drafts, records, invoices, technical and
business policies, computer programs or disks) thereof in his possession to the
Company upon request and in any event immediately upon termination of
employment.
(b) Except with prior written authorization by the Company, the
Executive agrees not to disclose or publish any of the Confidential and
Proprietary Information, or any confidential, scientific, technical or business
information of any other party to whom the Company or any of its affiliates owes
an obligation of confidence, at any time during or after his employment with the
Company.
(c) The Executive agrees that all inventions, discoveries,
improvements and patentable or copyrightable works ("INVENTIONS") initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term shall be the sole property of the Company to the maximum extent permitted
by applicable law and, to the extent permitted by law, shall be "works made for
hire" as that term is defined in the United States Copyright Act (17 U.S.C.A.,
Section 101). The Company shall be the sole owner of all patents, copyrights,
trade secret rights, and other intellectual property or other rights in
connection therewith. The Executive hereby assigns to the Company all right,
title and interest he may have or acquire in all such Inventions; provided,
however, that the Board of Directors of the Company may in its sole discretion
agree to waive the Company's rights pursuant to this Section 6(c) with respect
to any Invention that is not directly or indirectly related to the Company's
business. The Executive further agrees to assist the Company in every proper way
(but at the Company's expense) to obtain and from time to time enforce patents,
copyrights or other rights on such Inventions in any and all countries, and to
that end the Executive will execute all documents necessary:
4
(i) to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights or other
analogous protection in any country throughout the world and when so obtained or
vested to renew and restore the same; and (ii) to defend any opposition
proceedings in respect of such applications and any opposition proceedings or
petitions or applications for revocation of such letters patent, copyright or
other analogous protection.
(d) The Executive acknowledges that while performing the services
under this Agreement the Executive may locate, identify and/or evaluate patented
or patentable inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which may
be of potential interest to the Company or one of its affiliates (the "THIRD
PARTY INVENTIONS"). The Executive understands, acknowledges and agrees that all
rights to, interests in or opportunities regarding, all Third-Party Inventions
identified by the Company, any of its affiliates or either of the foregoing
persons' officers, directors, employees (including the Executive), agents or
consultants during the Employment Term shall be and remain the sole and
exclusive property of the Company or such affiliate and the Executive shall have
no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company.
(e) The provisions of this Section 6 shall survive any termination
of this Agreement.
7. Non-Competition, Non-Solicitation and Non-Disparagement.
(a) The Executive understands and recognizes that his services to the
Company are special and unique and that in the course of performing such
services the Executive will have access to and knowledge of Confidential and
Proprietary Information (as defined in Section 6) and the Executive agrees that,
during the Term and for a period of twelve (12) months thereafter, he shall not
in any manner, directly or indirectly, on behalf of himself or any person, firm,
partnership, joint venture, corporation or other business entity ("PERSON"),
enter into or engage in any business which is engaged in any business directly
or indirectly competitive with the business of the Company, either as an
individual for his own account, or as a partner, joint venturer, owner,
executive, employee, independent contractor, principal, agent, consultant,
salesperson, officer, director or shareholder of a Person in a business
competitive with the Company within the geographic area of the Company's
business, which is deemed by the parties hereto to be worldwide. The Executive
acknowledges that, due to the unique nature of the Company's business, the loss
of any of its clients or business flow or the improper use of its Confidential
and Proprietary Information could create significant instability and cause
substantial damage to the Company and its affiliates and therefore the Company
has a strong legitimate business interest in protecting the continuity of its
business interests and the restriction herein agreed to by the Executive
narrowly and fairly serves such an important and critical business interest of
the Company. For purposes of this Agreement, the Company shall be deemed to be
actively engaged on the date hereof in the development of (a) oleoyl-estrone for
the treatment of obesity and overweight disease and (b) novel application drug
delivery systems for propofol, and in the future in any other business in which
it actually devotes substantive resources to study, develop or pursue.
Notwithstanding the foregoing, nothing contained in this Section 7(a) shall be
deemed to prohibit the Executive from (i) acquiring or holding, solely for
investment, publicly traded securities of any corporation, some or all of the
activities of which are competitive with the business of the Company so long as
such securities do not, in the aggregate, constitute more than three percent
(3%) of any class or series of outstanding securities of such corporation.
5
(b) During the Term and for a period of 12 months thereafter, the
Executive shall not, directly or indirectly, without the prior written consent
of the Company:
(i) solicit or induce any employee of the Company or any of its
affiliates to leave the employ of the Company or any such affiliate; or hire for
any purpose any employee of the Company or any affiliate or any employee who has
left the employment of the Company or any affiliate within one year of the
termination of such employee's employment with the Company or any such affiliate
or at any time in violation of such employee's non-competition agreement with
the Company or any such affiliate; or
(ii) solicit or accept employment or be retained by any Person who,
at any time during the term of this Agreement, was an agent, client or customer
of the Company or any of its affiliates where his position will be related to
the business of the Company or any such affiliate; or (iii) solicit or accept
the business of any agent, client or customer of the Company or any of its
affiliates with respect to products, services or investments similar to those
provided or supplied by the Company or any of its affiliates.
(c) The Company and the Executive each agree that both during the
Term and at all times thereafter, neither party shall directly or indirectly
disparage, whether or not true, the name or reputation of the other party or any
of its affiliates, including but not limited to, any officer, director, employee
or shareholder of the Company or any of its affiliates.
(d) In the event that the Executive breaches any provisions of
Section 6 or this Section 7 or there is a threatened breach, then, in addition
to any other rights which the Company may have, the Company shall (i) be
entitled, without the posting of a bond or other security, to injunctive relief
to enforce the restrictions contained in such Sections and (ii) have the right
to require the Executive to account for and pay over to the Company all
compensation, profits, monies, accruals, increments and other benefits
(collectively "BENEFITS") derived or received by the Executive as a result of
any transaction constituting a breach of any of the provisions of Sections 6 or
7 and the Executive hereby agrees to account for and pay over such Benefits to
the Company.
(e) Each of the rights and remedies enumerated in Section 7(d) shall
be independent of the others and shall be in addition to and not in lieu of any
other rights and remedies available to the Company at law or in equity. If any
of the covenants contained in this Section 7, or any part of any of them, is
hereafter construed or adjudicated to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants or rights or
remedies which shall be given full effect without regard to the invalid
portions. If any of the covenants contained in this Section 7 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form such provision shall then be enforceable. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company's right to the relief provided in this Section 7 or otherwise
in the courts of any other state or jurisdiction within the geographical scope
of such covenants as to breaches of such covenants in such other respective
states or jurisdictions, such covenants being, for this purpose, severable into
diverse and independent covenants.
6
(f) In the event that an actual proceeding is brought in equity to
enforce the provisions of Section 6 or this Section 7, the Executive shall not
urge as a defense that there is an adequate remedy at law nor shall the Company
be prevented from seeking any other remedies which may be available. The
Executive agrees that he shall not raise in any proceeding brought to enforce
the provisions of Section 6 or this Section 7 that the covenants contained in
such Sections limit his ability to earn a living.
(g) The provisions of this Section 7 shall survive any termination
of this Agreement.
8. Representations and Warranties by the Executive.
The Executive hereby represents and warrants to the Company as
follows:
(i) Neither the execution or delivery of this Agreement nor
the performance by the Executive of his duties and other obligations hereunder
violate or will violate any statute, law, determination or award, or conflict
with or constitute a default or breach of any covenant or obligation under
(whether immediately, upon the giving of notice or lapse of time or both) any
prior employment agreement, contract, or other instrument to which the Executive
is a party or by which he is bound.
(ii) The Executive has the full right, power and legal
capacity to enter and deliver this Agreement and to perform his duties and other
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Executive enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for the
Executive to execute and deliver this Agreement or perform his duties and other
obligations hereunder.
9. Termination. The Executive's employment hereunder shall be terminated
upon the Executive's death and may be terminated as follows:
(a) The Executive's employment hereunder may be terminated by the
Board of Directors of the Company for Cause. Any of the following actions by the
Executive shall constitute "CAUSE":
(i) The willful failure, disregard or refusal by the Executive
to perform his duties hereunder;
(ii) Any willful, intentional or grossly negligent act by the
Executive having the effect of injuring, in a material way (whether financial or
otherwise and as determined in good-faith by a majority of the Board of
Directors of the Company), the business or reputation of the Company or any of
its affiliates, including but not limited to, any officer, director, executive
or shareholder of the Company or any of its affiliates;
7
(iii) Willful misconduct by the Executive in respect of the
duties or obligations of the Executive under this Agreement, including, without
limitation, insubordination with respect to directions received by the Executive
from the Board of Directors of the Company;
(iv) The Executive's indictment of any felony or a misdemeanor
involving moral turpitude (including entry of a nolo contendere plea);
(v) The determination by the Company, after a reasonable and
good-faith investigation by the Company following a written allegation by
another employee of the Company, that the Executive engaged in some form of
harassment prohibited by law (including, without limitation, age, sex or race
discrimination), unless the Executive's actions were specifically directed by
the Board of Directors of the Company;
(vi) Any misappropriation or embezzlement of the property of
the Company or its affiliates (whether or not a misdemeanor or felony);
(vii) Breach by the Executive of any of the provisions of
Sections 6, 7 or 8 of this Agreement; and (viii) Breach by the Executive of any
provision of this Agreement other than those contained in Sections 6, 7 or 8
which is not cured by the Executive within thirty (30) days after notice thereof
is given to the Executive by the Company.
(b) The Executive's employment hereunder may be terminated by the
Board of Directors of the Company due to the Executive's Disability. For
purposes of this Agreement, a termination for "DISABILITY" shall occur (i) when
the Board of Directors of the Company has provided a written termination notice
to the Executive supported by a written statement from a reputable independent
physician to the effect that the Executive shall have become so physically or
mentally incapacitated as to be unable to resume, within the ensuing twelve (12)
months, his employment hereunder by reason of physical or mental illness or
injury, or (ii) upon rendering of a written termination notice by the Board of
Directors of the Company after the Executive has been unable to substantially
perform his duties hereunder for 90 or more consecutive days, or more than 120
days in any consecutive twelve month period, by reason of any physical or mental
illness or injury. For purposes of this Section 9(b), the Executive agrees to
make himself available and to cooperate in any reasonable examination by a
reputable independent physician retained by the Company.
(c) The Executive's employment hereunder may be terminated by the
Board of Directors of the Company (or its successor) upon the occurrence of a
Change of Control. For purposes of this Agreement, "CHANGE OF CONTROL" means (i)
the acquisition, directly or indirectly, following the date hereof by any person
(as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) or more of the combined voting power of the Company's then
outstanding securities if such person or his or its affiliate(s) do not own in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
8
(d) The Executive's employment hereunder may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "GOOD REASON" shall
mean any of the following: (i) the assignment to the Executive of duties
inconsistent with the Executive's position, duties, responsibilities, titles or
offices as described herein; (ii) any material reduction by the Corporation of
the Executive's duties and responsibilities; or (iii) any reduction by the
Corporation of the Executive's compensation or benefits payable hereunder (it
being understood that a reduction of benefits applicable to all employees of the
Corporation, including the Executive, shall not be deemed a reduction of the
Executive's compensation package for purposes of this definition).
10. Compensation upon Termination.
(a) If the Executive's employment is terminated as a result of his
death or Disability, the Company shall pay to the Executive or to the
Executive's estate, as applicable, (x) his Base Salary and any accrued but
unpaid Bonus and expense reimbursement amounts through the date of his Death or
Disability. All Stock Options that are scheduled to vest by the end of the
calendar year in which such termination occurs shall be accelerated and deemed
to have vested as of the termination date. All Stock Options that have not
vested (or been deemed pursuant to the immediately preceding sentence to have
vested) as of the date of termination shall be deemed to have expired as of such
date.
(b) If the Executive's employment is terminated by the Board of
Directors of the Company for Cause, then the Company shall pay to the Executive
his Base Salary through the date of his termination and the Executive shall have
no further entitlement to any other compensation or benefits from the Company.
All Stock Options that have not vested as of the date of termination shall be
deemed to have expired as of such date. Any Stock Options that have vested as of
the date of the Executive's termination for Cause shall remain exercisable for a
period of 90 days.
(c) If the Executive's employment is terminated by the Company (or
its successor) upon the occurrence of a Change of Control, the Company (or its
successor, as applicable) shall (i) continue to pay to the Executive his Base
Salary for a period of one year following such termination, and (ii) pay the
Executive any accrued and unpaid Bonus and expense reimbursement amounts through
the date of termination. The Company's obligation under clause (i) in the
preceding sentence shall be reduced, however, by any amounts otherwise actually
earned by the Executive during the one year period following the termination of
his employment. All Stock Options that have not vested as of the date of such
termination shall be accelerated and deemed to have vested as of such date.
(d) If the Executive's employment is terminated by the Company other
than as a result of the Executive's death or Disability and other than for
reasons specified in Sections 10(b) or (c), then the Company shall (i) continue
to pay to the Executive his Base Salary for a period of one year following such
termination, and (ii) pay the Executive any expense reimbursement amounts owed
through the date of termination. The Company's obligation under clauses (i) and
(ii) in the preceding sentence shall be subject to offset by any amounts
otherwise received by the Executive from any employment during the one year
period following the termination of his employment. All Stock Options that are
scheduled to vest by the end of the calendar year in which such termination
occurs shall be accelerated and deemed to have vested as of the termination
date. All Stock Options that have not vested (or been deemed pursuant to the
immediately preceding sentence to have vested) as of the date of termination
shall be deemed to have expired as of such date. Any Stock Options that have
vested as of the date of the Executive's termination shall remain exercisable
for a period of 90 days.
9
(e) This Section 10 sets forth the only obligations of the Company
with respect to the termination of the Executive's employment with the Company,
and the Executive acknowledges that, upon the termination of his employment, he
shall not be entitled to any payments or benefits which are not explicitly
provided in Section 10.
(f) Upon termination of the Executive's employment hereunder for any
reason, the Executive shall be deemed to have resigned as director of the
Company, effective as of the date of such termination.
(g) The provisions of this Section 10 shall survive any termination
of this Agreement.
11. Miscellaneous.
(a) This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, without
giving effect to its principles of conflicts of laws.
(b) Any dispute arising out of, or relating to, this Agreement or
the breach thereof (other than Sections 6 or 7 hereof), or regarding the
interpretation thereof, shall be finally settled by arbitration conducted in New
York City in accordance with the rules of the American Arbitration Association
then in effect before a single arbitrator appointed in accordance with such
rules. Judgment upon any award rendered therein may be entered and enforcement
obtained thereon in any court having jurisdiction. The arbitrator shall have
authority to grant any form of appropriate relief, whether legal or equitable in
nature, including specific performance. For the purpose of any judicial
proceeding to enforce such award or incidental to such arbitration or to compel
arbitration and for purposes of Sections 6 and 7 hereof, the parties hereby
submit to the non-exclusive jurisdiction of the Supreme Court of the State of
New York, New York County, or the United States District Court for the Southern
District of New York, and agree that service of process in such arbitration or
court proceedings shall be satisfactorily made upon it if sent by registered
mail addressed to it at the address referred to in paragraph (g) below. The
costs of such arbitration shall be borne proportionate to the finding of fault
as determined by the arbitrator. Judgment on the arbitration award may be
entered by any court of competent jurisdiction.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective heirs, legal representatives,
successors and assigns.
(d) This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive. The Company may assign its
rights, together with its obligations, hereunder in connection with any sale,
transfer or other disposition of all or substantially all of its business or
assets.
10
(e) This Agreement cannot be amended orally, or by any course of
conduct or dealing, but only by a written agreement signed by the parties
hereto.
(f) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and such terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on the part of
either party shall be effective for any purpose whatsoever unless such waiver is
in writing and signed by such party.
(g) All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or by an overnight courier service or sent by registered or
certified mail, postage prepaid, return receipt requested, to the parties at the
addresses set forth on the first page of this Agreement, and shall be deemed
given when so delivered personally or by overnight courier, or, if mailed, five
days after the date of deposit in the United States mails. Either party may
designate another address, for receipt of notices hereunder by giving notice to
the other party in accordance with this paragraph (g).
(h) This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(i) As used in this Agreement, "affiliate" of a specified Person
shall mean and include any Person controlling, controlled by or under common
control with the specified Person.
(j) The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
(k) This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, but all of which together shall
constitute one and the same instrument.
Signature page follows.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MANHATTAN PHARMACEUTICALS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
EXECUTIVE
By: /s/ Xx. Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xx. Xxxxxxx Xxxxxxxxx
12
