EXHIBIT 10.35
[PALATIN LOGO]
- --------------------------------------------------------------------------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 1st Day of October 2005,
is entered into by Palatin Technologies, Inc., a Delaware corporation with its
principal place of business at 4C Cedar Brook Drive, Cranbury, New Jersey 08512
(the "Company"), and Shubh Sharma.
The Company desires to continue employing the Employee, and the Employee desires
to continue 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:
1.0 TERM OF EMPLOYMENT. The Company hereby agrees to continue to employ the
Employee, and the Employee hereby accepts the continuation of employment
with the Company, upon the terms set forth in this Agreement, for a two
year period commencing on October 1, 2005 (the "Commencement Date") and
ending on the second anniversary of the Commencement Date unless sooner
terminated in accordance with the provisions of Section 4.
2.0 POSITION TITLE & CAPACITY
2.1 The Employee shall serve as Vice President and Chief Technical
Officer, with responsibilities consistent with this position and as
the Chief Executive Officer of the Company (the "Chief Executive
Officer") 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 Chief Executive Officer or the Board, consistent with
the Employee's position. The Employee shall be based at the Company's
corporate headquarters, which is based in Cranbury, New Jersey. The
Employee shall also be available for travel at such times and to such
places as may be reasonably necessary in connection with the
performance of his duties hereunder.
2005-2007 Employment Agreement, Shubh Sharma Page 1 of 16
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 Chief Executive Officer or
the Board shall from time to time reasonably assign to him. The
Employee agrees to devote substantially all of his business time,
attention and energies to the business and interests of the Company
during the Employment Period. 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.
2.3 The Employee specifically covenants, warrants and represents to the
Company that he has the full, complete and entire right and authority
to enter into this Agreement, that he has no agreement, duty,
commitment or responsibility of any kind or nature whatsoever with any
corporation, partnership, firm, company, joint venture or other entity
or other person which would conflict in any manner whatsoever with any
of his duties, obligations or responsibilities to the Company pursuant
to this Agreement, that he is not in possession of any document or
other tangible property of any corporation, partnership, firm,
company, joint venture or other entity or other person of a
confidential or proprietary nature which would conflict in any manner
whatsoever with any of his duties, obligations or responsibilities to
the Company pursuant to his Agreement, and that he is fully ready,
willing and able to perform each and all of his duties, obligations
and responsibilities to the Company pursuant to this Agreement.
3.0 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 $201,900. 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, but the Board shall not decrease the Employee's
annual base salary at any such annual review.
2005-2007 Employment Agreement, Shubh Sharma Page 2 of 16
3.2 CASH PERFORMANCE BONUS. The Employee will be included in the Company's
annual discretionary bonus compensation program based on a June 30th year
end in an amount to be decided by the Company's Compensation Committee and
approved by the Board, payable no later than September 30th of each year
during the Employment Period. Such performance bonus compensation shall be
based upon 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 has granted to the Employee the right and option (the "Option") to
purchase shares of the Company's Common Stock (the "Option Shares"),
subject to the vesting schedule set forth in subparagraph c hereof and the
adjustments set forth in subparagraph g hereof. The Option is intended to
be, to the maximum extent possible, a qualified incentive stock option,
subject to the aggregate fair market value and other provisions of the
Internal Revenue Service Code, as described in the Company's 2005 Stock
Plan (the "Plan"). The Option is in all respects limited and conditioned as
provided hereunder, and pursuant to the provisions of the Plan. To the
extent there are any inconsistencies between this Agreement and the
provisions of the Plan, the provisions of the Plan shall govern.
(a) PURCHASE PRICE. Except as otherwise provided in subparagraph g hereof, the
purchase price (the "Option Price") of the Option Shares shall be as stated
on the option grant as approved by the Company's Board of Directors.
(b) OPTION TERM. Except as otherwise provided in the Plan, 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) 10 years
from the Commencement Date.
(c) EXERCISE OF OPTION.
(i) Except as otherwise provided in the Plan, 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 Options shall vest (except as otherwise provided in the Plan) per the
provisions stated on the option grant as approved by the Company's Board of
Directors.
(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.
2005-2007 Employment Agreement, Shubh Sharma Page 3 of 16
(d) METHOD OF EXERCISING OPTIONS.
(i) The Option may be exercised by giving written notice, in form substantially
as set forth in the Company's Stock Option Exercise Form, 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 such Option Shares. Only full shares shall be delivered and any
fractional share which might otherwise be deliverable upon exercise of the
Option shall be forfeited.
(ii) The purchase price for the Option Shares 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 Option Shares with respect to which
the Option is exercised. The certificate or certificates for such Option Shares
shall be registered in the name of the person exercising the Option (or, if 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.
(iv) In the event the Option is exercised by any person after the death or
Disability of the Employee, such notice shall be accompanied by appropriate
proof of the right of such person to exercise the Option. All Option Shares
purchased upon the exercise of the Option as provided herein shall be fully paid
and non-assessable by the Company.
(e) NON-TRANSFERABILITY OF OPTION. The Option may not be assigned or
transferred, 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
Disability, by his legal representative.
(f) WITHHOLDING OF TAXES. The obligation of the Company to deliver Option 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 Option Share the number of shares which
would be distributed thereon if such Option Share had been outstanding
on the date fixed for determining the shareholders entitled to receive
such stock dividend.
2005-2007 Employment Agreement, Shubh Sharma Page 4 of 16
(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
re-capitalization, 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.
(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.
2005-2007 Employment Agreement, Shubh Sharma Page 5 of 16
3.4 FRINGE-BENEFITS. The Employee shall be entitled to participate in all
benefit programs that the Company establishes and makes available to its
employees, if any, to the extent that the Employee's 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 Chief Executive Officer or 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 other officers are covered.
4.0 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 The expiration of the Employment Period in accordance with Section 1,
unless continued employment is mutually agreed upon between the Company and
the Employee;
4.2 At the election of the Company, for Cause (as defined in Section 6),
immediately upon written notice by the Company to the Employee, which
notice of termination shall have been approved by a majority of the Board;
4.3 Immediately upon the death or determination of Disability (as defined in
Section 6) of the Employee;
4.4 At the election of the Employee, for Good Reason (as defined in Section 6),
immediately upon written notice of not less than sixty (60) days prior to
termination 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 6), immediately upon written
notice by the Employee to the Company;
4.6 At the election of either party, upon written notice of termination (the
"Notice of Termination").
2005-2007 Employment Agreement, Shubh Sharma Page 6 of 16
5.0 EFFECT OF TERMINATION
5.1 COMPENSATION & BENEFITS
(a) As referenced in this section, compensation following the Employee's
termination shall be in the form of severance. Severance will be based on the
employee's base salary in effect as of the employee's last day of employment,
and will be paid in installments in accordance with the Company's regular
payroll schedule in effect at the time of termination.
(b) Severance is not considered compensation for purposes of employee and
employer matching contributions under the 401(k) plan;
(c) As referenced in this section, upon termination of the Employee's employment
with the Company, medical and dental benefits will be available to the Employee,
at his election, solely pursuant to the provisions of COBRA, with the Employee
required to only contribute the Company's active employee contribution level
during any period in which the Employee is receiving severance (the "Severance
Period"). Upon expiration or non-occurrence, whichever is applicable, of the
Severance Period, the Employee will be required to remit the COBRA cost (102% of
total benefit cost) of coverage for any remaining period prior to the expiration
of the continuation period under COBRA.
(d) Upon termination of the Employee's employment with the Company, apart from
the Employee's election under COBRA to continue medical and dental benefits (as
described in Section 5.1c), the Employee will cease to be eligible for
participation in the Company's health and welfare insurance and any other fringe
benefit programs that pursuant to their contracts or Company policy require an
active employee status.
5.2 TERMINATION BY THE COMPANY OR AT ELECTION OF THE EMPLOYEE (OTHER THAN FOR
GOOD REASON).
(a) If the EMPLOYEE ELECTS TO TERMINATE HIS EMPLOYMENT (OTHER THAN FOR GOOD
REASON) pursuant to Section 4.6, no severance and/or benefits shall be paid, and
the Employee shall be entitled only to receive payment of his earned but unpaid
salary, and accrued vacation, as of his last day of actual employment by the
Company (the "Date of Termination");
(b) If the COMPANY ELECTS TO TERMINATE THE EMPLOYEE (OTHER THAN FOR CAUSE)
pursuant to Section 4.6, the Company shall pay to the Employee severance and
medical and dental benefits (as described in Section 5.1c) for the
2005-2007 Employment Agreement, Shubh Sharma Page 7 of 16
greater of a nine (9) month period following the Date of Termination, or for the
duration of the then current Employment Period; and
(c) If the COMPANY TERMINATES THE EMPLOYEE FOR CAUSE pursuant to Section 4.2, no
severance and/or benefits shall be paid, and the Employee shall be entitled only
to receive payment of his earned but unpaid salary, and accrued vacation, as of
the Date of Termination.
5.3 TERMINATION BY EMPLOYEE ELECTION FOR GOOD REASON. If the Employee terminates
employment at his election for Good Reason pursuant to Section 4.4, the Company
shall pay to the Employee severance and medical and dental benefits (as
described in Section 5.1c) for the greater of a nine (9) month period following
the Date of Termination, or for the duration of the then current Employment
Period.
5.4 TERMINATION FOLLOWING A CHANGE IN CONTROL. If the Employee terminates his
employment at his election following a Change In Control pursuant to Section
4.5:
(a) The Company shall pay to the Employee severance and medical dental care
benefits (as described in Section 5.1c) for a nine (9) month period following
the Date of Termination;
(b) All options to purchase shares of capital stock of the Company previously
granted to the Employee pursuant to any stock option plan with the Company which
have not vested at such time shall immediately vest and become fully exercisable
in accordance with their terms, and shall remain exercisable for a period of
ninety (90) days following the Date of Termination;
(c) For a six (6) 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, not to exceed $25,000, 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.
(d) Section 409A of the Code. In all respects, the definition of "Change in
Control" contained herein shall be interpreted and administered so as to comply
with Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"),
and the provisions of United States Treasury ("Treasury") Notice 2005-1, and any
successor statute, regulation and guidance thereto. If the definition of Change
in Control is inconsistent with any of the
2005-2007 Employment Agreement, Shubh Sharma Page 8 of 16
foregoing, the definition of Change in Control in Treasury Notice 2005-1 and any
successor Change in Control definition thereto shall be incorporated into this
Agreement by reference. In the event the Treasury issues additional guidance
which requires modification(s) to the definition of Change in Control to comply
with the requirements of Section 409A of the Code and the Treasury guidance
issued pursuant to the same or Section 409A of the Code is modified, the
Executive and Company shall amend this Agreement by way of mutual agreement to
comply with the same. If at any time the Change in Control benefits or payments
pursuant to this Section 3 are found to be in violation of Section 409A of the
Code, Treasury Notice 2005-1, or any successor statute, regulation and guidance
thereto, Company shall pay Executive an additional amount to "gross up" any
payments made to Executive to make the Executive whole for any additional taxes
imposed on the Executive as a result of Section 409A of the Code or any
successor statute including, without limitation, additional excise, employment,
state, federal and local income taxes due on such gross up payment.
5.5 TERMINATION BY REASON OF
THE EMPLOYEE'S DEATH OR DISABILITY. If, prior to the expiration of the
Employment Period, the Employee's employment is terminated by the Employee's
death or Disability pursuant to Section 4.3,
(a) The Company shall pay to the Employee, or in the case of the Employee's
death, to the estate of the Employee, the severance and medical and dental
benefits (as described in Section 5.1c) for a nine (9) month period.
(b) All options to purchase shares of capital stock of the Company previously
granted to the Employee pursuant to any stock option plan with the Company which
have not vested at such time shall immediately vest and become fully exercisable
in accordance with their terms, and shall remain exercisable for a period of one
hundred eighty (180) days following the Date of Termination.
5.6 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 executors or
administrators to the Employee's estate, the delivery to the Company of all
necessary tax waivers and other documents.
5.7 RELEASE OF CLAIMS. The Employee's entitlement to severance, payment of COBRA
premiums, and accelerated vesting of options under any subparagraph of this
Section 5, is contingent upon the Employee's execution of a general release of
claims in a form prepared by the Company and presented to the Employee upon
termination of his
2005-2007 Employment Agreement, Shubh Sharma Page 9 of 16
employment hereunder, as well as the Employee's compliance with the provisions
of Section 7 hereof.
5.8 NO REQUIREMENT TO MITIGATE. The Employee shall not be required to mitigate
the amount of any payment provided for in this Section 5 by seeking other
employment or otherwise.
6.0 DEFINITIONS. For purposes of this Agreement the following definitions apply:
6.1 "CAUSE" shall mean the occurrence of any of the following circumstances: (a)
(i) the Employee's material breach of, or habitual neglect or failure to perform
the material duties which he is required to perform under, the terms of this
Agreement; (ii) the Employee's material failure to follow the reasonable
directives or policies established by or at the direction of the Chief Executive
Officer or the Board; or (iii) the Employee's engaging in conduct that is
materially detrimental to the interests of the Company such that the Company
sustains a material loss or injury as a result thereof, provided that the breach
or failure of performance by the Employee under subparagraphs (i) through (iii)
hereof is not cured, to the extent cure is possible, within ten (10) days of the
delivery to the Employee of written notice thereof; (b) the willful breach by
the Employee of Section 7 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.
6.2 "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.
6.3 "GOOD REASON" shall mean the occurrence of any of the following
circumstances, and the Company's failure to cure such circumstances within
thirty (30) days of the delivery to the Company of written notice by the
Employee of such circumstances:
(a) any significant diminution in the Employee's duties and responsibilities as
described in Section 2.1 hereof,
2005-2007 Employment Agreement, Shubh Sharma Page 10 of 16
or assignment of duties and responsibilities inconsistent with those
described in Section 2.1 hereof;
(b) any reduction in the Employee's salary 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 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;
(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 health and welfare insurance, retirement and other
fringe-benefit plans insurance, 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; or (e) the relocation of the Employee to a location which is greater
than fifty (50) miles from Cranbury, New Jersey.
6.4 "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 50% or
more of the combined voting power
2005-2007 Employment Agreement, Shubh Sharma Page 11 of 16
of the Company's then outstanding securities;
(b) individuals who, as of the Commencement Date, constitute the Board (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 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 re-capitalization of the Company (or similar
transaction) in which no "person" (as defined in Section 6.4(a)) acquires
more than 50% of the combined voting power of the Company's then
outstanding securities; or
(d) a sale of all or substantially all of the assets of the Company.
7.0 RESTRICTIVE COVENANTS
(a) For the purposes of this Agreement:
(i) "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.
(II) "COMPETING ORGANIZATION" means any person or organization engaged in,
or with definitive
2005-2007 Employment Agreement, Shubh Sharma Page 12 of 16
plans to become engaged in, research or development, production,
distribution, marketing or selling of a Competing Product.
(b) The Employee acknowledges that he has, on or prior to the date of the
Agreement, executed and delivered to the Company an Employee Agreement on
Confidentiality, Intellectual Property, Debarment Certification and
Conflict of Interest (the "Confidentiality Agreement") and the Employee
hereby affirms and ratifies his obligations thereunder; and 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), by the Employee pursuant to Section 4.6, or
by either party upon expiration of the Employment Period, he will not
render services of any nature, directly or indirectly, to any Competing
Organization in connection with any Competing Product within any
geographical territory as the Company and such Competing Organization are
or would be in actual competition, for a period of six (6) months,
commencing on the Date of Termination.
(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 7 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.
8.0 NOTICES. All notices required or permitted under this Agreement shall be in
writing and shall be deemed effective upon either: (a) personal delivery; or (b)
three (3) days following deposit in the United States Post Office for delivery
by registered or certified mail, postage prepaid, or one (1) day following
deposit with a reputable overnight courier service, 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 8.
9.0 PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the
2005-2007 Employment Agreement, Shubh Sharma Page 13 of 16
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural, and vice versa.
10.0 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.
11.0 AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee. 12.0 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.
13.0 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.
2005-2007 Employment Agreement, Shubh Sharma Page 14 of 16
14.0 WAIVER OF BREACH.
14.1 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 a
majority of the Board.
14.2 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. 15.0 MISCELLANEOUS.
15.1 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. 15.2 In case any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby. 16.0 SURVIVAL. The provisions of Sections 3.3, 5, 6, 7 and 8
shall survive the termination of this Agreement. 17.0 ATTORNEY'S FEES. The
Company shall reimburse the Employee for all legal fees and expenses associated
with the negotiation and drafting of this Agreement, upon reasonable
documentation thereof, up to a maximum of $2,500.
2005-2007 Employment Agreement, Shubh Sharma Page 15 of 16
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. EMPLOYEE
By:_____________________________ ________________________________
Name: Stephen T. Wills Shubh Sharma
Title: Executive V.P. of Operations and Vice President & Chief Technical
Chief Financial Officer Officer
Date:____________________________ Date: ____________________________
2005-2007 Employment Agreement, Shubh Sharma Page 16 of 16