EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 9th day of
October, 1998, is entered into by Palatin Technologies, Inc., a Delaware
corporation with its principal place of business at 214 Carnegie Center, Suite
100, Princeton, New Jersey 08540 (the "Company"), and Charles Putnam, residing
at 11 Woodview Drive, Belle Mead, New Jersey 08502 (the "Employee").
The Company desires to employ the Employee, and the Employee desires
to be employed by the Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on September 11,
1998 (the "Commencement Date") and ending on September 10, 2001 (such period, as
it may be extended, the "Employment Period"), unless sooner terminated in
accordance with the provisions of Section 4.
2. Title; Capacity.
2.1 The Employee shall serve as Executive Vice
President and Chief Operating Officer or in such other position as the Company
or its Board of Directors (the "Board") may determine from time to time, with
powers and duties as may be determined, from time to time, by the Board. The
Employee shall be based at the Company's headquarters in Princeton, New Jersey.
2.2 The Employee hereby accepts such employment and
agrees to undertake the duties and responsibilities inherent in such position
and such other duties and responsibilities as the Board or its designee shall
from time to time reasonably assign to him. The Employee agrees to devote
substantially his entire business time, attention and energies to the business
and interests of the Company during the Employment Period. Any outside
activities will be reviewed with the Company in advance to ensure that such
activities are not in conflict with the Employee's obligations to the Company.
The Employee agrees to abide by the rules, regulations, instructions, personnel
practices and policies of the Company and any changes therein which may be
adopted from time to time by the Company. The Employee acknowledges receipt of
copies of all such rules and policies committed to writing as of the date of
this Agreement.
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3. Compensation and Benefits. During the Employment Period, unless
sooner terminated in accordance with the provisions of Section 4, the Employee
shall receive the following compensation and benefits:
3.1 Salary. The Company shall pay the Employee, in equal
semi-monthly installments or otherwise in accordance with the Company's standard
payroll policies as such policies may exist from time to time, an annual base
salary of $200,000. Such salary shall be subject to review thereafter, as
determined by the Company's Compensation Committee and approved by the Board, on
an annual basis on June 15 of each year, but the Board shall not decrease the
Employee's annual base salary at any such annual review.
3.2 Cash Performance Bonus. The Company shall pay
the Employee bonus compensation of up to one year's base salary (which base
salary shall not be less than $200,000 per year) in an amount to be decided by
the Company's Compensation Committee and approved by the Board, payable
annually, no later than March 31 of each year during the Employment Period. Such
performance bonus compensation shall be based upon, inter alia, yearly
objectives mutually agreed upon by and between the Employee and the Company.
3.3 Stock Options. As additional compensation for
services rendered, the Company grants to the Employee the right and option to
purchase all or any part of an aggregate of 50,000 shares of the Company's
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Common Stock (the "Option"), subject to the vesting schedule set forth in
subparagraph c hereof and the adjustments set forth in subparagraph g hereof,
which Option is a nonqualified stock option. The Option is in all respects
limited and conditioned as provided hereunder.
(a) Purchase Price. Except as otherwise provided in
subparagraph g hereof, the purchase price (the "Option Price") of the
shares covered by the Option ("Option Shares") shall be the closing
price of the Company's Common Stock on the National Association of
Securities Dealers Automated Quotation System (Nasdaq) on September
11, 1998, to wit: $2.50.
(b) Option Term. Except as otherwise provided herein, the
Option shall expire on the first to occur of: (i) ninety (90) days
following the Employee's termination of employment with the Company,
or (ii) September 11, 2008.
(c) Exercise of Option.
(i) Except as otherwise provided herein, the
right of the Employee to exercise the Option is conditioned upon the
Employee: (A) being in the employ of the Company, whether pursuant to
this Agreement or otherwise, or (B) serving as a director of the
Company.
(ii) The Option shall vest (except as otherwise
provided herein): (A) on the Commencement Date with respect to the
first 33% of the Option Shares, (B) on the first anniversary of the
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Commencement Date (i.e., September 11) (the "Anniversary Date") with
respect to the second 33% of the Option Shares, and (C) on the second
Anniversary Date with respect to the remaining 34% of the Option
Shares.
(iii) The Option may be exercised, to the extent
vested, in whole or in part, at any time or times prior to the
expiration or other termination thereof.
(d) Method Of Exercising Option.
(i) The Option may be exercised by giving written
notice, in form substantially as set forth in Exhibit 1 hereof, to
the Company at its principal office, specifying the number of Option
Shares to be purchased and accompanied by payment in full of the
aggregate purchase price for the Shares. Only full Shares shall be
delivered and any fractional share which might otherwise be
deliverable upon exercise of an Option granted hereunder shall be
forfeited.
(ii) The purchase price shall be payable in cash
or its equivalent.
(iii) Upon receipt of such notice and payment,
the Company, within three (3) business days after Exercise, shall
deliver or cause to be delivered a certificate or certificates
representing the Shares with respect to which the Option is
exercised. The certificate or certificates for such Shares shall be
registered in the name of the person exercising the Option (or, if
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the Employee shall so request in the notice exercising the Option, in
the name of the Employee and his spouse, jointly, with right of
survivorship) and shall be delivered as provided above to or upon the
written order of the person exercising the Option. In the event the
Option is exercised by any person after the death or Legal Disability
of the Employee, such notice shall be accompanied by appropriate
proof of the right of such person to exercise the Option. All Shares
purchased upon the exercise of the Option as provided herein shall be
fully paid and nonassessable by the Company.
(e) Non-transferability of Option. The Option is not
assignable or transferable, in whole or in part, by the Employee,
otherwise than by will or by the laws of descent and distribution.
During the lifetime of the Employee, the Option shall be exercisable
only by the Employee or, in the event of his Legal Disability, by his
legal representative.
(f) Withholding of Taxes. The obligation of the Company to
deliver Shares upon the exercise of any Option shall be subject to
any applicable federal, state and local tax withholding requirements.
(g) Adjustments. The number of Option Shares and the
Option Price shall be adjusted as set forth herein:
(i) In the event that a stock dividend
shall be declared on the Common Stock payable in shares of the
Common Stock, the Option Shares shall be adjusted by adding to each
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Option Share the number of shares which would be distributable
thereon if such Option Share had been outstanding on the date fixed
for determining the shareholders entitled to receive such stock
dividend.
(ii) In the event that the outstanding shares of
the Common Stock shall be changed into or exchanged for a different
number or kind of shares of stock or other securities of the Company
whether through recapitalization, stock split, combination of shares,
or otherwise, then there shall be substituted for each Option Share
the number and kind of shares of stock or the securities into which
each outstanding share of the Common Stock shall be so changed or for
which each such share shall be exchanged.
(iii) In the event that the outstanding shares of
the Common Stock shall be changed into or exchanged for shares of
stock or other securities of another corporation, whether through
reorganization, sale of assets, merger or consolidation in which the
Company is the surviving corporation, then there shall be substituted
for each Option Share the number and kind of shares of stock or the
securities into which each outstanding share of the Common Stock
shall be so changed or for which each such share shall be exchanged.
(iv) In the event that any sale of shares of
Common Stock (except any such sale made pursuant to any right,
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option, warrant or convertible security outstanding prior to the date
of this Agreement), or the issuance of any rights, options, or
warrants to subscribe for or purchase Common Stock (or securities
convertible into or exchangeable for Common Stock) occurs after the
date of this Agreement, which sale or issuance, in the aggregate,
will increase the number of shares of Common Stock outstanding during
the Term by Forty percent (40%), then, upon each such sale or
issuance, the Employee shall be issued additional Option Shares such
that, when the additional Option Shares are aggregated with the
Option Shares heretofore owned by the Employee, the Employee has the
right to purchase, at the same times set forth in paragraph 4(c), the
same percentage of Common Stock at the same price per share as the
Employee maintained prior to such sale or issuance.
(h) Share Ownership. Neither the Employee nor the
Employee's legal representatives nor the executors or administrators
of his estate shall be or be deemed to be the holder of any share of
Common Stock covered by an Option unless and until a certificate for
such share shall have been issued.
3.4 Fringe-Benefits. The Employee shall be entitled
to participate in all bonus and benefit programs that the Company establishes
and makes available to its employees, if any, to the extent that the Employee's
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position, tenure, salary, age, health and other qualifications make him eligible
to participate. The Employee shall also be entitled to holidays and annual
vacation leave in accordance with the Company's policy as it exists from time to
time.
3.5 Reimbursement of Expenses. The Company shall
reimburse the Employee for all reasonable travel, entertainment and other
expenses incurred or paid by the Employee in connection with, or related to, the
performance of his duties, responsibilities or services under this Agreement,
upon presentation by the Employee of documentation, expense statements, vouchers
and/or such other supporting information as the Company may request, provided,
however, that the amount available for such travel, entertainment and other
expenses may be fixed in advance by the Board.
3.6 Insurance. The Employee will be covered under
the Company's Directors' and Officers' liability insurance to the same extent
the Company's directors and officers are covered.
4. Employment Termination. The employment of the Employee by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
4.1 Expiration of the Employment Period in accordance
with Section 1;
4.2 At the election of the Company, for Cause (as
defined in Section 7), immediately upon written notice by the Company to the
Employee, which notice of termination shall have been approved by a majority of
the Board;
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4.3 Immediately upon the death or determination of
Legal Disability (as defined in Section 7) of the Employee;
4.4 At the election of the Employee, for Good Reason
(as defined in Section 7), immediately upon written notice by the Employee to
the Company;
4.5 At the election of the Employee, within twelve
(12) months following a Change in Control (as defined in Section 7), immediately
upon written notice by the Employee to the Company;
4.6 At the election of either party, upon not less
than thirty (30) days' prior written notice of termination (the "Notice of
Termination").
5. Effect of Termination.
5.1 Termination for Cause or at Election of the E
mployee other than for Good Reason or due to a Change in Control. If, prior to
the expiration of this Agreement, the Employee's employment is terminated for
Cause pursuant to Section 4.2 (except in the case where such termination occurs
within 12 months following a Change in Control), or at the election of the
Employee pursuant to Section 4.6 other than for Good Reason or due to a Change
in Control,
(a) the Company shall pay to the Employee the base salary
and benefits otherwise payable to him under Section 3 through the
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last day of his actual employment by the Company (the "Date of
Termination");
(b) the Employee shall cease to have the right to exercise
any options to purchase shares of capital stock of the Company
previously granted to the Employee pursuant to any stock option plan
or other employee benefit plan with the Company, regardless of the
extent to which they have vested, on or after the Date of
Termination.
5.2 Termination by Reason of the Employee's Death or
Legal Disability. If, prior to the expiration of this Agreement, the Employee's
employment is terminated by the Employee's death or Legal Disability pursuant to
Section 4.3,
(a) the Company shall, no later than the fifth business
day following the death or determination of Legal Disability
(the "Date of Termination"), pay to the Employee, or in the case
of the Employee's death, to the estate of the Employee,
(i) the Employee's base salary and benefits
otherwise payable to him through the Date of Termination, and
(ii) an amount equal to the greater of the
aggregate base salary payments which the Employee would have received
for a six-month period after the Date of Termination if such
termination had not occurred, or $100,000, and
(b) all options to purchase shares of capital stock of the
Company previously granted to the Employee pursuant to any stock
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option plan or other employee benefit plan with the Company which
have not vested at such time but which would have vested on and prior
to the next Anniversary Date shall immediately vest and become fully
exercisable in accordance with their terms for a period of ninety
(90) days following the Date of Termination.
5.3 Termination for Any Other Reason. If, prior to
the expiration of this Agreement, the Employee's employment is terminated by the
Employee for circumstances constituting Good Reason pursuant to Section 4.4 or
due to a Change in Control pursuant to Section 4.5, or by the Company for any
basis other than for Cause (as defined in Section 7) or for Cause pursuant to
Section 4.2 if within twelve (12) months following a Change in Control, the
Company shall provide the Employee with the following benefits:
(a) the Company shall pay to the Employee
(i) the Employee's base salary at the rate in
effect at the time the Notice of Termination is given, benefits and
all other compensation, including Employee's prorated cash
performance bonus calculated by multiplying the Applicable Percentage
(as defined in Section 7) by the greater of (x) the amount of the
cash performance bonus awarded or paid to the Employee with respect
to the Company's most recent full fiscal year for which such a bonus
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was awarded or paid to the Employee or (y) in the case of a Change in
Control, the amount of cash performance bonus awarded or paid to the
Employee with respect to the Company's last full fiscal year prior to
the Change in Control for which such a bonus was awarded or paid to
the Employee, through the Date of Termination, no later than the
fifth full day following the Date of Termination, plus all other
amounts to which the Employee is entitled under any compensation plan
of the Company at the time such payments are due and
(ii) if the Employee so elects, in lieu of his
right to continue to receive deferred compensation under any deferred
compensation plan of the Company then in effect, no later than the
fifth full day following the Date of Termination, a lump-sum amount,
in cash, equal to the deferred amounts together with any earnings
credited on such amounts under such plan;
(b) the Company will pay as severance to the Employee
an amount equal to the sum of
(i) the greatest of (x) the aggregate Salary
payments which the Employee would have received during
the balance of the Term if such termination had not occurred, (y) in
the case of a Change in Control, the aggregate Salary payments which
the Employee would have received during the balance of the Term based
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on the Employee's annual base salary in effect immediately prior to
the Change in Control, or (z) an amount equal to the Employee's
highest annual base salary achieved while employed by the Company,
plus
(ii) the greater of (x) the amount of the cash
performance bonus awarded or paid to the Employee with respect to the
Company's most recent full fiscal year for which such a bonus was
awarded or paid to the Employee or (y) in the case of a Change in
Control, the amount of cash performance bonus awarded or paid to the
Employee with respect to the Company's last full fiscal year prior to
the Change in Control for which such a bonus was awarded or paid to
the Employee;
(c) all options to purchase shares of capital stock of the
Company previously granted to the Employee pursuant to any stock
option plan or other employee benefit plan with the Company which
have not vested at such time shall immediately vest and become fully
exercisable in accordance with their terms for a period of ninety
(90) days following the Date of Termination;
(d) for a one-year period after the Date of Termination,
the Company shall arrange to provide the Employee with life,
disability, dental, accident, travel and group health insurance
benefits substantially similar to those which the Employee was
receiving immediately prior to the Notice of Termination.
Notwithstanding the foregoing, the Company shall not provide any
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benefit otherwise receivable by the Employee pursuant to this
paragraph (d) if an equivalent benefit is actually received by the
Employee during the one-year period following the Date of Termination
and any such benefit actually received by the Employee shall be
reported to the Company; and
(e) for a six-month period after the Date of Termination,
the Company shall reimburse the Employee for reasonable fees and
expenses incurred by him for the purpose of locating employment in an
amount mutually agreed upon by and between the Employee and the
Company, including the fees and expenses of consultants and other
persons retained by him for such purpose, promptly upon receipt by
the Company of satisfactory evidence of payment of such fees and
expenses.
5.4 No Requirement to Mitigate. The Employee shall
not be required to mitigate the amount of any payment provided for herein by
seeking other employment or otherwise.
5.5 Survival. The provisions of Sections 5, 6, 7, 8 and 9
shall survive the termination of this Agreement.
6. Withholding and Deductions. All payments hereunder shall
be subject to withholding and to such other deductions as shall at the time of
such payment be required pursuant to any income tax or other law, whether of the
United States or any other jurisdiction, and, in the case of payments to the
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executors or administrators to the Employee's estate, the delivery to the
Company of all necessary tax waivers and other documents.
7. Definitions. For purposes of this Agreement the following
definitions apply:
7.1 "Cause" for termination shall mean the occurrence of
any of the following circumstances:
(a) a good faith finding by the Company of the
Employee's willful breach or habitual neglect or failure
to perform the material duties which he is required to perform under
the terms of this Agreement, materially fails to follow the
reasonable directives or policies established by or at the direction
of the Board, or conducts himself in a manner materially detrimental
to the interests of the Company such that the Company sustains a
material loss or injury as a result thereof and such breach or
failure of performance is not cured within thirty (30) days of the
delivery to the Employee of written notice thereof, which notice of
breach or failure of performance shall have been approved by a
majority of the Board,
(b) the willful breach by the Employee of Section 8 of this
Agreement or any provision of any confidentiality, invention and
non-disclosure, non-competition or similar agreement between the
Employee and the Company, or
(c) the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to, any crime
involving moral turpitude or any felony.
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7.2 "Legal Disability" shall mean the inability of
the Employee, by reason of illness, accident or other physical or mental
disability, for a period of 120 days, whether or not consecutive, during any
360-day period, to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician satisfactory to both
the Employee and the Company; provided, however, that if the Employee and the
Company do not agree on a physician, the Employee and the Company shall each
select a physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all parties.
7.3 "Good Reason" shall mean the occurrence of any of
the following circumstances, and the Company fails to cure such circumstances
within thirty (30) days of the delivery to the Company of written notice of such
circumstances:
(a) any significant diminution in the Employee's
duties and responsibilities as in effect on the Commencement Date;
(b) any reduction in the Employee's annual
compensation as in effect on the Commencement Date or as the
same may be increased from time to time;
(c) the failure of the Company to continue in effect any
material compensation or benefit plan in which the Employee
participates as in effect on the Commencement Date, unless an
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equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the
failure by the Company to continue the Employee's participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of the Employee's participation relative to
other participants, as in effect on the Commencement Date or the
failure by the Company to award cash bonuses to its executives in
amounts substantially consistent with past practice in light of the
Company's financial performance;
(d) the failure by the Company to continue to provide the
Employee with benefits substantially similar to those enjoyed by the
Employee under any of the Company's insurance, medical, health and
accident, or disability plans in which the Employee was participating
as in effect on the Commencement Date, the taking of any action by
the Company which would directly or indirectly materially reduce any
of such benefits, or the failure by the Company to provide the
Employee with the number of paid vacation days to which he is
entitled in accordance with the Company's normal vacation policy in
effect on the Commencement Date or in accordance with any agreement
between the Employee and the Company existing at that time;
(e) any purported termination of the Employee's employment
which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 9, which purported termination shall not
be effective for purposes of this Agreement.
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7.4 "Change in Control" shall mean the occurrence of
any of the following events:
(a) any "person," as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, or any corporation owned directly or indirectly
by the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 40% or more of the combined voting power of the
Company's then outstanding securities;
(b) individuals who, as of the Commencement Date,
constitute the Board (as of the Commencement Date, the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board, provided that any person becoming a director subsequent to the
Commencement Date whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority
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of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of the directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A under the Exchange
Act) shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(i) a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity)
more than 80% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately after
such merger or consolidation or
(ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction)
in which no "person" (as hereinabove defined) acquires more than 50%
of the combined voting power of the Company's then outstanding
securities; or
(d) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
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disposition by the Company of all or substantially all of the
Company's assets.
7.5 "Applicable Percentage" means the percentage
obtained by dividing the number of full or partial months worked in the most
recent fiscal year for which the Employee has not been awarded or paid a cash
performance bonus by twelve.
8. Restrictive Covenants.
(a) For the purposes of this Agreement:
(i) "Proprietary Information" means all
information and know-how, whether or not in writing, of a private,
secret or confidential nature concerning the company's business or
financial affairs, including, without limitation, inventions,
products, processes, methods, techniques, formulas, compositions,
compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs and customer
and supplier lists.
(ii) "Competing Products" means any products or
processes of any person or organization other than the Company in
existence or under development, which are substantially the same, may
be substituted for, or applied to substantially the same end use as
the products or processes that the Company is developing or has
developed or commercialized during the time of the Employee's
employment with the Company.
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(iii) "Competing Organization" means any person
or organization engaged in, or about to become engaged in, research
or development, production, distribution, marketing or selling of a
Competing Product.
(b) The Employee understands that information regarding the
Company and its affiliates including, without limitation, Proprietary
Information, is considered confidential to the Company and is of
substantial commercial value to the Company. Any entrusting of such
confidential information to the Employee by the Company is done so in
reliance upon the confidential relationship arising from the terms of
his employment with the Company. Therefore, in consideration of his
employment with the Company,
(i) the Employee will not, during or after the
Employment Period, disclose any such confidential information to any
person, firm, corporation, association, or other entity for any
reason or purpose whatsoever, except within the scope of his duties
and responsibilities in the ordinary course of business, unless
ordered to do so by a court or other tribunal or government agency
with jurisdiction over the subject matter and Employee;
(ii) the Employee acknowledges that he has, on or
prior to the date of the Agreement, executed and delivered to the
Company a Non-Disclosure Agreement (the "Confidentiality Agreement")
and the Employee hereby affirms and ratifies his obligations
thereunder; and
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(iii) the Employee agrees that after termination
by the Company for Cause pursuant to Section 4.2 (except in the case
where such termination occurs within 12 months following a Change in
Control), or by the Employee pursuant to Section 4.6 other than for
Good Reason or due to a Change in Control, he will not render
services of any nature, directly or indirectly, to any Competing
Organization in connection with any Competing Product within such
geographical territory as the Company and such Competing Organization
are or would be in actual competition, for a period of eighteen (18)
months, commencing on the Date of Termination, provided, however, the
aforementioned restrictions shall not be applicable to activities in
which the Employee was, and continued to be, engaged in on the
Commencement Date. The Employee understands that services rendered to
such Competing Organization may have the effect of supporting actual
competition in various geographic areas, and may be prohibited by
this Agreement regardless of the geographic area in which such
services are physically rendered. The Company may, in its sole
discretion, elect to waive, in whole or in part, the obligation set
forth in the previous sentence, such waiver to be effective only if
given in writing by the Company.
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(c) The Employee agrees that he will not, during the
Employment Period and for a period of nine (9) months commencing on
the Date of Termination, directly or indirectly employ, solicit for
employment, or advise or recommend to any other person that they
employ or solicit for employment, any person whom he knows to be an
employee of the Company or any parent, subsidiary or affiliate of the
Company.
(d) In the event a court of competent jurisdiction should
find any provision in this Section 8 to be unfair or unreasonable,
such finding shall not render such provision unenforceable, but,
rather, this provision shall be modified as to subject matter, time
and geographic area so as to render the entire Section valid and
enforceable.
9. Notices. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 9.
10. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
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11. Entire Agreement. This Agreement, together with the
Confidentiality Agreement, constitutes the entire agreement between the parties
and supersedes all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement.
12. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of New Jersey, without regard to its
principles of conflict of laws.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business; provided, however, that
the obligations of the employee are unique and personal and shall not be
assigned by him.
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15. Waiver of Breach.
15.1 Waiver by the Company. No delay or omission by
the Company in exercising any right under this Agreement shall operate as a
waiver of that or any other right. A waiver or consent given by the Company on
any one occasion shall be effective only in that instance and shall not be
construed as a bar or waiver of any right on any other occasion. No waiver by
the Company shall be valid unless in a writing signed by an authorized officer
of the Company and approved by an absolute majority of the Board.
15.2 Waiver by the Employee. No delay or omission by
the Employee in exercising any right under this Agreement shall operate as a
waiver of that or any other right. A waiver or consent given by the Employee on
any one occasion shall be effective only in that instance and shall not be
construed as a bar or waiver of any right on any other occasion. No waiver by
the Employee shall be valid unless in a writing signed by the Employee.
16. Miscellaneous.
16.1 The captions of the sections of this Agreement
are for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
16.2 In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall be no way be affected or
impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
an instrument under seal as of the day and year set forth above.
PALATIN TECHNOLOGIES, INC.
By: /s/ Edward J. Quilty
-----------------------
Name: Edward J. Quilty
Title: Chairman and Chief Executive Officer
EMPLOYEE
/s/ Charles Putnam
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Charles Putnam
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