EXHIBIT
10.4.11
EMPLOYMENT AGREEMENT
WITH
STEPHEN
BECKMAN
This Employment Agreement
(“Agreement”) is entered into as of the 1st day of
September, 2005 (the “Effective Date”), by and between
Stephen Beckman (the “
Executive ”) and Inyx, Inc.
(the “ Company ” or the “
Employer ”), or together the
Parties.
Whereas, the
Company desires to employ the Executive to provide personal
services to the Company, and also wishes to provide the Executive
with certain compensation and benefits in return for such services;
and
Whereas, the
Executive wishes to be employed by the Company and provide personal
services to the Company in return for certain compensation and
benefits.
Now, therefore,
in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as
follows:
1.1. GENERAL. The Company hereby employs the
Executive in the senior position of Vice President, Sales &
Marketing and Commercial Development, whose responsibilities
include directing the specialty sales force for Intal® and
Tilade® under the Company’s strategic alliance with King
Pharmaceuticals, Inc., and also serving as one of the
Company’s three senior executives on the six-member Alliance
Management Committee of King and the Company, as well as assisting
the Company’s overall commercial growth in the pharmaceutical
industry, and the Company may assign other reasonable corporate
duties to the Executive from time to time. The Executive agrees to
perform and discharge such duties well and faithfully, and to be
subject to the supervision and direction of Jack Kachkar, Chairman
and Chief Executive Officer of the Company (“CEO”), and
Jay M. Green, Executive Vice President, or their designee or
successor. The Executive acknowledges that this appointment
involves the affairs of the Company and its subsidiaries in Puerto
Rico, Toronto, Canada and in the United Kingdom. Accordingly, while
the executive will be operationally based in the Philadelphia, PA
area, the Executive will be required to regularly travel to and
conduct duties across the United States and in other countries on
behalf of the Company and its subsidiaries, affiliates and
strategic alliances.
1.2. TIME DEVOTED TO POSITION. The Executive, during
the Employment Term, shall devote his full business time, attention
and skills to the business and affairs of the Employer.
1.3. CERTIFICATIONS. Whenever the Executive is
required by law, rule or regulation or requested by any
governmental authority or by the Company or the Company’s
auditors to provide certifications with respect to financial
statements or filings with the Securities and Exchange Commission
or any other governmental authority, the Executive shall sign such
certifications as may be reasonably requested by such officers,
with such exceptions as the Executive deems necessary to make such
certifications accurate and not misleading.
2.
COMPENSATION AND BENEFITS
2.1. SALARY. At all times the Executive is employed
hereunder, Employer shall pay to Executive, and Executive shall
accept, as full compensation for any and all services rendered and
to be rendered by him during such period to Employer in all
capacities, including, but not limited to, all services that may be
rendered by him to any of Employer’s existing subsidiaries,
entities and organizations hereafter formed, organized or acquired
by Employer, directly or indirectly (each, a
“Subsidiary” and collectively, the
“Subsidiaries”), the following: (i) a base salary
at the annual rate of $175,000 or at such increased rate as the
Board (through its Compensation Committee), in its sole discretion,
may hereafter from time to time grant to Executive, subject to
adjustments in accordance with Section 2.2 hereof (as so
adjusted, the “Base Salary”); and (ii) any
additional bonus and the benefits set forth in Sections 2.3,
2.4 and 2.5 hereof. The Base Salary shall be payable in accordance
with the regular payroll practices of Employer applicable to senior
executives, less such deductions as shall be required to be
withheld by applicable law and regulations or otherwise.
2.2. CASH BONUSES. Subject to Section 3.3
hereof, the Executive shall be entitled to an annual cash bonus of
up to thirty percent (30%) of the Executive’s annual base
salary, with the bonus amount based upon performance criteria
achieved by the Company and the Executive during a twelve (12)
month period that are mutually agreed upon by the Company and the
Executive at the outset of the 12-month period. In addition, for
directing increases in the annual combined net sales for
Intal® and Tilade® above an $18,500,000 annual base line
(the “Base Line”), the Company will pay the Executive a
one percent (1%) cash commission on the amount above the Base Line
that the Company retains as its portion of net sales (which amounts
to sixty-five percent (65%) of any sales above the Base
Line).
2.3. STOCK OPTIONS. The Executive shall be entitled
to participate in stock option and similar equity plans of
Employer. In connection herewith, the Executive will be granted
300,000 options to purchase shares of common stock of the Company
with an exercise price equal to the closing price of the
Company’s common stock on September 1, 2005 on the following
basis: 100,000 options to be vested on August 31, 2006; 100,000
options to be vested on August 31, 2007; and 100,000 options to be
vested on August 31, 2008; with all options issued on terms and
conditions set forth in the Stock Option Plan of the Company and a
Stock Option Agreement with the Executive containing these terms.
The Executive shall be entitled to any additional annual stock
option grants provided at the discretion of the Board.
2.4.1. EXPENSES. Employer shall promptly reimburse the
Executive for properly documented expenses that he may reasonably
incur in connection with the performance of his duties including
but not limited to, expenses for such items as business
entertainment, business travel, hotel and meals that are in
accordance with Company policy and approved by the Chairman of the
Board and Chief Executive Officer of the Company. The Company shall
also pay the Executive a monthly car allowance of $1,000 and the
Executive shall be eligible for a Blackberry cell phone for
Company-related use.
2.4.2. RELOCATION EXPENSE. The company shall reimburse
the Executive for one-time, documented moving expenses from Long
Valley, NJ to the Philadelphia, PA area, up to a cap of
$10,000.
2.4.3. EMPLOYER PLANS. Executive shall be entitled to
participate in such employee benefit plans and programs as Employer
may from time to time generally offer or provide to executive
officers of Employer or its Subsidiaries, including, but not
limited to, participation in health and accident, medical and
dental plans including any such benefit plans offered by the
Subsidiaries where applicable, and profit sharing and retirement
plans.
2.4.4. VACATION. The Executive shall be entitled to one
(1) week paid vacation that can be taken between September 1, 2005
and December 31, 2005. Starting in calendar year 2006, Executive
shall be entitled to four (4) weeks paid vacation per calendar
year. Unused vacation days in any year will have to be taken by
March 31st of the following year or will continue to accrue for the
benefit of the Executive and payable on termination of
employment.
3.
EMPLOYMENT TERM;
TERMINATION
3.1. EMPLOYMENT TERM. The Executive’s
employment hereunder shall commence on September 1, 2005 and,
except as otherwise provided in Section 3.2 hereof, shall
continue until August 31, 2008 (the “Initial
Term”). Thereafter, this Agreement shall automatically be
renewed for successive one-year periods commencing on the 1st day
of September 2008 and of each subsequent year, unless either (i)
Employer and Executive agree to a new Employment Agreement, or (ii)
Executive or Employer shall have provided a Notice of Termination
(as defined in Section 3.4.2 hereof) in respect of its or his
election not to renew the Employment Term (in accordance with
Sections 3.3.2 and 3.3.3 hereof). Upon non-renewal of the
Employment Term pursuant to this Section 3.1 or termination
pursuant to Sections 3.2.1 through 3.2.5 hereof, inclusive,
Executive shall be released from any duties hereunder (except as
set forth in Section 4 hereof) and the obligations of Employer
to Executive shall be as set forth in Section 3.3 hereof
only.
3.2. EVENTS OF TERMINATION. The Employment Term shall
terminate upon the occurrence of any one or more of the following
events:
3.2.1. DEATH. In the event of Executive’s death,
the Employment Term shall terminate on the date of his
death.
3.2.2. WITHOUT CAUSE BY EXECUTIVE. Executive may
terminate the Employment Term at any time during such Term for any
reason whatsoever by giving a Notice of Termination to Employer.
The Date of Termination pursuant to this Section 3.2.2 shall
be effective the Notice of Termination is given, unless an extended
period is agreed to by the parties.
3.2.3. DISABILITY. In the event of Executive’s
Disability (as hereinafter defined), Employer may, at its option,
terminate the Employment Term by giving a Notice of Termination to
Executive. The Notice of Termination shall specify the Date of
Termination, which date shall not be earlier than thirty (30) days
after the Notice of Termination is given. For purposes of this
Agreement, “Disability” means the inability of
Executive for ninety (90) days in any twelve (12) month period to
substantially perform his duties hereunder as a result of a
physical or mental illness, all as determined in good faith by the
Board.
3.2.4. CAUSE. Employer may, at its option, terminate
the Employment Term for “Cause” based on objective
factors determined in good faith by the Board of Directors as set
forth in a Notice of Termination to Executive specifying the
reasons for termination and the failure of the Executive to cure
the same within thirty (30) days after Employer shall have given
the Notice of Termination; PROVIDED, HOWEVER, that in the event the
Board in good faith determines that the underlying reasons giving
rise to such determination cannot be cured, then the thirty (30)
day period shall not apply and the Employment Term shall terminate
on the date the Notice of Termination is given. For purposes of
this Agreement, “Cause” shall mean
(i) Executive’s conviction of, guilty or no contest plea
to a felony (ii) an act or omission by Executive in connection
with his employment that constitutes fraud, criminal misconduct,
breach of fiduciary duty, dishonesty, gross negligence,
malfeasance, willful misconduct or other conduct that is materially
harmful or detrimental to Employer; (iii) a material breach by
Executive of this Agreement and the failure of the Executive to
cure the same within thirty (30) days; (iv) continuing failure
to perform such proper duties as are assigned to Executive in
accordance with this Agreement and with law and good business
practice, other than a failure resulting from a Disability; or
(v) Executive is found to have been involved in regulatory
violations, criminal misconduct, dishonesty or other willful
misconduct while previously employed by other employers.
3.2.5. EMPLOYER RIGHT TO TERMINATE. Employer may
terminate this agreement at the end of its Initial Term, provided
that Employer shall pay Executive in accordance with payment
described in Section 3.3.2 hereof. In addition, Employer may
terminate Executive for any reason, with or without cause, prior to
end of the Initial Term, by paying Executive the payment described
in Section 3.3.2 hereof. In consideration of such payment, and
assuming all other payments required hereby have been paid,
Executive agrees to provide Employer a general release of any
claims relating to such termination or otherwise.
3.3. CERTAIN OBLIGATIONS OF EMPLOYER FOLLOWING
TERMINATION OF THE EMPLOYMENT TERM. Following termination of the
Employment Term under the circumstances described below, Employer
shall pay to Executive or his estate, as the case may be, the
following compensation and provide the following benefits in full
satisfaction and final settlement of any and all claims and demands
that Executive now has or hereafter may have hereunder against
Employer. In connection with Executive’s receipt of any or
all monies and benefits to be received pursuant to this
Section 3.3, Executive shall not have a duty to seek
subsequent employment during the period in which he is receiving
severance payments and the Severance Amount (as defined in
Section 3.3.2 hereof) shall not be reduced solely as a result
of Executive’s subsequent employment by an entity other than
Employer.
3.3.1. FOR CAUSE. In the event that the Employment Term
is terminated by Employer for Cause, Employer shall pay to
Executive, in a single lump-sum, an amount equal to any unpaid but
earned Base Salary through the Date of Termination. Any
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