{"id":38977,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-bio-technology-general-corp-and-ernest-l2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-bio-technology-general-corp-and-ernest-l2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-bio-technology-general-corp-and-ernest-l2.html","title":{"rendered":"Employment Agreement &#8211; Bio-Technology General Corp. and Ernest L. Kelly"},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n\n\n     AGREEMENT made as of January 29, 1996, between BIO-TECHNOLOGY GENERAL\nCORP., a Delaware corporation with an office at 70 Wood Avenue South, Iselin,\nNew Jersey 08830 (the 'Company'), and Ernest L. Kelly, 159 Pine Lane, Yardley,\nPA 19067 (the 'Executive').\n\n\n                              W I T N E S S E T H :\n\n\n     WHEREAS, the Company desires that Executive be employed to serve in a\nsenior executive capacity with the Company, and Executive desires to be so\nemployed by the Company, upon the terms and conditions herein set forth.\n\n     NOW, THEREFORE, in consideration of the premises and of the mutual\npromises, representations and covenants herein contained, the parties hereto\nagree as follows:\n\n1. EMPLOYMENT.\n\n     The Company hereby employs Executive and Executive hereby accepts such\nemployment, subject to the terms and conditions herein set forth. Executive\nshall hold the office of Senior Vice President-Quality Assurance, reporting to\nthe President and Chief Executive Officer of the Company.\n\n2. TERM.\n\n     The initial term of employment under this Agreement shall begin on the date\nhereof (the 'Employment Date') and shall continue for a period of two (2) years\nfrom that date, subject to prior termination in accordance with the terms\nhereof. Thereafter, this Agreement shall automatically be renewed for successive\ntwo year terms unless either party shall give the other ninety (90) days prior\nwritten notice of its intent not to renew this Agreement.\n\n3. COMPENSATION.\n\n     (a) As compensation for the employment services to be rendered by Executive\nhereunder, including all services as an officer or director of the Company and\nany of its subsidiaries, the Company agrees to pay, or cause to be paid, to\nExecutive, and Executive agrees to accept, payable in equal installments in\naccordance with Company practice, an initial annual salary of $165,000.\nExecutive's annual salary hereunder for the remaining years of employment shall\nbe determined by the Board of Directors in its sole discretion.\n\n\n\n     (b) Executive shall be entitled to bonuses from time to time in such\namounts as may be determined by the Board of Directors in its sole discretion.\n\n4. EXPENSES.\n\n     The Company shall pay or reimburse Executive, upon presentment of suitable\nvouchers, for all reasonable business and travel expenses which may be incurred\nor paid by Executive in connection with his employment hereunder. Executive\nshall comply with such restrictions and shall keep such records as the Company\nmay deem necessary to meet the requirements of the Internal Revenue Code of\n1986, as amended from time to time, and regulations promulgated thereunder.\n\n5. OTHER BENEFITS.\n\n     Executive shall be entitled to a vacation allowance of not less than four\n(4) weeks per annum and to participate in and receive any other benefits\ncustomarily provided by the Company to its senior management personnel\n(including any profit sharing, pension, short and long-term disability\ninsurance, hospital, major medical insurance and group life insurance plans in\naccordance with the terms of such plans) and including stock option and\/or stock\npurchase plans, all as determined from time to time by the Board of Directors of\nthe Company. Unused annual vacations may not be carried over to other years\nwithout the consent of the Board of Directors excepting those instances in which\nExecutive has been unable to utilize fully his annual vacation entitlement due\nto exigencies of Company business matters and needs.\n\n6. STOCK OPTIONS.\n\n     (a) The Company will recommend to the Compensation and Stock Option\nCommittee of the Board of Directors (the 'Committee') that Executive be granted\nan incentive stock option, pursuant to an incentive stock option agreement\nsubstantially in the form of Exhibit 6(a) hereto, to purchase 50,000 shares of\nthe Company's Common Stock (the 'Options'), at an exercise price per share equal\nto the fair market value of the Company's Common Stock on the date of grant,\nsuch Options to become exercisable as to 12,500 shares on the first anniversary\ndate of the date of grant and as to an additional 12,500 shares on each\nsuccessive anniversary date of the date of grant.\n\n     (b) The Company will also recommend to the Committee that the Options\nbecome exercisable upon the termination of Executive's employment (i) pursuant\nto Sections 8(a)(i) or 8(b) herein or (ii) by reason of the Company's failure to\nrenew this Agreement.\n\n     (c) In addition, Executive shall be entitled to the grant of additional\noptions from time to time in such amounts as may be determined by the Committee\nin its sole discretion. Any future grant of stock options shall be subject to\nsuch terms as the Committee in its sole discretion shall specify at the time of\ngrant.\n\n                                        2\n\n\n\n7. DUTIES.\n\n     (a) Executive shall perform such duties and functions as the President and\nChief Executive Officer of the Company shall from time to time determine and\nExecutive shall comply in the performance of his duties with the policies of the\nBoard of Directors.\n\n     (b) Executive agrees to devote his entire working time, attention and\nenergies to the performance of the business of the Company and of any of its\nsubsidiaries by which he may be employed; and Executive shall not, directly or\nindirectly, alone or as a member of any partnership or other organization, or as\nan officer, director or employee of any other corporation, partnership or other\norganization, be actively engaged in or concerned with any other duties or\npursuits which interfere with the performance of his duties hereunder, or which,\neven if non-interfering, may be, in the reasonable determination of the Board of\nDirectors of the Company in its sole discretion, inimical, or contrary, to the\nbest interests of the Company.\n\n     (c) All fees, compensation or commissions received by Executive during the\nterm of this Agreement for personal services (including, but not limited to,\ncommissions and compensation received as a fiduciary or a director, and fees for\nlecturing and teaching) rendered at the request of the Company shall be paid to\nthe Company when received by Executive, except those fees that the Board of\nDirectors determines may be kept by Executive.\n\n     (d) Nothing in this Section 7 or elsewhere in this Agreement shall be\nconstrued to prevent Executive from investing or trading in nonconflicting\ninvestments as he sees fit for his own account, including real estate, stocks,\nbonds, securities, commodities or other forms of investments.\n\n     (e) The principal location at which the Executive shall perform his duties\nhereunder shall be at the Company's offices in Iselin, New Jersey or at such\nother location as may be designated from time to time by the Board of Directors\nof the Company, provided that if the principal location of Executive's duties is\ntransferred from Iselin, New Jersey, the new principal location of Executive's\nduties shall not be transferred beyond a 50-mile radius of Iselin, New Jersey\nwithout Executive's consent. Notwithstanding the foregoing, Executive shall\nperform such services at such other locations as may be required for the proper\nperformance of his duties hereunder, and Executive recognizes that such duties\nmay involve significant travel.\n\n                                        3\n\n\n\n8. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION.\n\n     (a) Executive's employment hereunder may be terminated at any time upon\nwritten notice from the Company to Executive:\n\n          (i) upon the determination by the Board of Directors, after Executive\n     has received notice that his performance is not satisfactory and has failed\n     to remedy such performance to the satisfaction of the Company, that\n     Executive's performance of his duties has not been fully satisfactory for\n     any reason which would not constitute justifiable cause (as hereinafter\n     defined) upon thirty (30) days' prior written notice to Executive; or\n\n          (ii) upon the determination by the Board of Directors that there is\n     justifiable cause (as hereinafter defined) for such termination upon ten\n     (10) days' prior written notice to Executive.\n\n     (b) Executive's employment shall terminate upon:\n\n          (i) the death of Executive; or\n\n          (ii) the 'disability' of Executive (as hereinafter defined pursuant to\n     subsection (c) herein) pursuant to subsection (f) hereof.\n\n     (c) For the purposes of this Agreement, the term 'disability' shall mean\nthe inability of Executive, due to illness, accident or any other physical or\nmental incapacity, substantially to perform his duties for a period of three (3)\nconsecutive months or for a total of six (6) months (whether or not consecutive)\nin any twelve (12) month period during the term of this Agreement, as reasonably\ndetermined by the Board of Directors of the Company in its sole discretion after\nexamination of Executive by an independent physician reasonably acceptable to\nExecutive.\n\n     (d) For the purposes hereof, the term 'justifiable cause' shall mean and be\nlimited to: Executive's conviction (which, through lapse of time or otherwise,\nis not subject to appeal) of any crime or offense involving money or other\nproperty of the Company or its subsidiaries or which constitutes a felony in the\njurisdiction involved; Executive's performance of any act or his failure to act,\nfor which it is determined by independent counsel retained by the Board of\nDirectors (which may be counsel for the Company), after due inquiry in which\nExecutive is given the opportunity to be heard, that if Executive were\nprosecuted and convicted, a crime or offense involving money or property of the\nCompany or its subsidiaries, or which would constitute a felony in the\njurisdiction involved, would have occurred; any unauthorized disclosure by\nExecutive to any person, firm or corporation other than the Company, its\nsubsidiaries and its and their directors, officers and employees, of any\nconfidential information or trade secret of the Company or any of its\nsubsidiaries; any attempt by Executive to secure any improper personal profit in\nconnection with the business of the Company or any of its subsidiaries; the\nfailure by Executive to devote his full time to the affairs of the \n\n                                        4\n\n\n\nCompany and its subsidiaries; Executive's pursuit of activities which in the\nreasonable determination of the Board of Directors of the Company are inimical,\nor contrary, to the best interests of the Company; the engaging by Executive in\nany business other than the business of the Company and its subsidiaries which\ninterferes with the performance of his duties hereunder; or Executive's repeated\nand willful failure to follow the instructions of the Chief Executive Officer of\nthe Company or the policies established by the Board of Directors and\ncommunicated to Executive (other than instructions or policies which are illegal\nor improper) where such conduct shall not have ceased or offense cured within 30\ndays following written warning from the Company. Upon termination of Executive's\nemployment for justifiable cause, this Agreement shall terminate immediately and\nExecutive shall not be entitled to any amounts or benefits hereunder other than\nsuch portion of Executive's annual salary as has been accrued through the date\nof his termination of employment and reimbursement of expenses pursuant to\nSection 4 hereof.\n\n     (e) If Executive shall die during the term of his employment hereunder,\nthis Agreement shall terminate immediately. In such event, the estate of\nExecutive shall thereupon be entitled to receive such portion of Executive's\nannual salary as has been accrued through the date of his death and such bonus,\nif any, as the Board of Directors in its sole discretion may determine to award\ntaking into account Executive's contributions to the Company prior to his death.\nIf Executive's death shall occur while he is on Company business, the estate of\nExecutive shall be entitled to receive, in addition to the other amounts set\nforth in this subsection (e), an amount equal to one-half his then annual\nsalary.\n\n     (f) Upon Executive's 'disability', the Company shall have the right to\nterminate Executive's employment. Notwithstanding any inability to perform his\nduties, Executive shall be entitled to receive his compensation (including\nbonus, if any) as provided herein until he begins to receive long-term\ndisability insurance benefits under the policy provided by the Company pursuant\nto Section 5 hereof. Any termination pursuant to this subsection (f) shall be\neffective on the date 30 days after which Executive shall have received written\nnotice of the Company's election to terminate.\n\n     (g) Notwithstanding any provision to the contrary contained herein, in the\nevent that Executive's employment is terminated by the Company at any time for\nany reason other than justifiable cause, disability or death, or in the event\nthe Company shall fail to renew this Agreement, the Company shall (i) pay to\nExecutive, in full satisfaction and in lieu of any and all other payments due\nand owing to Executive under the terms of this Agreement (other than any\npayments constituting reimbursement of expenses pursuant to Section 4 hereof), a\nseverance payment in an amount equal to his then annual salary (less all\namounts, if any, required to be withheld), payable bi-weekly in equal\ninstallments, and (ii) continue to allow Executive to participate, at the\nCompany's expense and to the same extent that Executive had participated prior\nto termination of his employment, in the Company's health insurance and\ndisability insurance programs, to the extent permitted under such programs,\nuntil the earlier of \n\n                                        5\n\n\n\n(x) one year or (y) Executive becoming eligible to participate in another\nemployer's group health and disability insurance plans. Executive shall notify\nthe Company of his acceptance of a position with a new employer, together with\nthe specific date on which Executive shall become eligible for coverage in such\nnew employer's health and disability insurance programs, such notice to be given\nwithin 15 days following commencement of such employment.\n\n     (h) Executive may terminate his employment at any time upon 30 days' prior\nwritten notice to the Company. Upon Executive's termination of his employment\nhereunder, this Agreement (other than Sections 4, 8, 10, 11, 12 and 13, which\nshall survive) shall terminate immediately. In such event, Executive shall be\nentitled to receive such portion of Executive's annual salary as has been\naccrued to date. Executive shall be entitled to reimbursement of expenses\npursuant to Section 4 hereof and to participate in the Company's benefit plans\nto the extent participation by former employees is required by law or permitted\nby such plans, with the expense of such participation to be as specified in such\nplans for former employees.\n\n9. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE.\n\n     (a) Executive represents and warrants that he is free to enter into this\nAgreement and to perform the duties required hereunder, and that there are no\nemployment contracts or understandings, restrictive covenants or other\nrestrictions, whether written or oral, preventing the performance of his duties\nhereunder or requiring him to perform employment, consulting, business related\nor similar duties for any other person.\n\n     (b) Executive agrees to submit to a medical examination and to cooperate\nand supply such other information and documents as may be required by any\ninsurance company in connection with the Company's obtaining life insurance on\nthe life of Executive, and any other type of insurance or fringe benefit as the\nCompany shall determine from time to time to obtain.\n\n10. NON-INTERFERENCE.\n\n     Executive agrees that for a period of one year following the termination of\nExecutive's employment hereunder, Executive shall not, directly or indirectly,\nrequest or cause any collaborative partners, universities, governmental\nagencies, contracting parties, suppliers or customers with whom the Company or\nany of its subsidiaries has a business relationship to cancel or terminate any\nsuch business relationship with the Company or any of its subsidiaries or\nsolicit, interfere with or entice from the Company any employee (or former\nemployee) of the Company.\n\n11. INVENTIONS AND DISCOVERIES.\n\n     (a) Insofar as is related to the principal business activities and products\nof the Company and any of its subsidiaries or joint ventures, Executive shall\npromptly \n\n                                        6\n\n\n\nand fully disclose to the Company, and with all necessary detail for a complete\nunderstanding of the same, all developments, know-how, discoveries, inventions,\nimprovements, concepts, ideas, writings, formulae, processes and methods of a\nfinancial or other nature (whether copyrightable, patentable or otherwise) made,\nreceived, conceived, acquired or written during working hours, or otherwise, by\nExecutive (whether or not at the request or upon the suggestion of the Company)\nduring the period of his employment with, or rendering of advisory or consulting\nservices to, the Company or any of its subsidiaries, solely or jointly with\nothers (collectively the 'Subject Matter').\n\n     (b) Executive hereby assigns and transfers, and agrees to assign and\ntransfer, to the Company, all his rights, title and interest in and to the\nSubject Matter, and Executive further agrees to deliver to the Company any and\nall drawings, notes, specifications and data relating to the Subject Matter, and\nto execute, acknowledge and deliver all such further papers, including\napplications for copyrights or patents, as may be necessary to obtain copyrights\nand patents for any thereof in any and all countries and to vest title thereto\nto the Company. Executive shall assist the Company in obtaining such copyrights\nor patents during the term of this Agreement, and any time thereafter on\nreasonable notice and at mutually convenient times, and Executive agrees to\ntestify in any prosecution or litigation involving any of the Subject Matter;\nprovided, however, that Executive shall be compensated in a timely manner at the\nrate of $100.00 per hour (with a minimum of $500 per day), plus out-of-pocket\nexpenses incurred in rendering such assistance or giving or preparing to give\nsuch testimony if it is required after termination of his employment hereunder.\n\n12. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n\n     (a) Executive shall not, during the term of this Agreement, or at any time\nfollowing termination of this Agreement, directly or indirectly, disclose or\nmake accessible (other than as is required in the regular course of his duties\n(including without limitation disclosures to the Company's advisors and\nconsultants) or is required by law (in which case Executive shall give the\nCompany prior written notice of such required disclosure) or with the prior\nwritten consent of the Board of Directors of the Company), to any person, firm\nor corporation, any confidential information acquired by him during the course\nof, or as an incident to, his employment or the rendering of his advisory or\nconsulting services hereunder, relating to the Company or any of its\nsubsidiaries, the directors of the Company or its subsidiaries, any client of\nthe Company or any of its subsidiaries, or any corporation, partnership or other\nentity owned or controlled, directly or indirectly, by any of the foregoing, or\nin which any of the foregoing has a beneficial interest, including, but not\nlimited to, the business affairs of each of the foregoing. Such confidential\ninformation shall include, but shall not be limited to, proprietary technology,\ntrade secrets, patented processes, research and development data, know-how,\nmarket studies and forecasts, competitive analyses, pricing policies, employee\nlists, personnel policies, the substance of agreements with customers and\nothers, marketing or dealership arrangements, servicing and training programs\nand arrangements, customer lists and any other documents embodying such\n\n                                        7\n\n\n\nconfidential information. This confidentiality obligation shall not apply to any\nconfidential information which thereafter becomes publicly available other than\npursuant to a breach of this Section 12(a) by Executive.\n\n     (b) All information and documents relating to the Company and its\naffiliates as hereinabove described shall be the exclusive property of the\nCompany, and Executive shall use commercially reasonable best efforts to prevent\nany publication or disclosure thereof. Upon termination of Executive's\nemployment with the Company, all documents, records, reports, writings and other\nsimilar documents containing confidential information, including copies thereof,\nthen in Executive's possession or control shall be returned and left with the\nCompany.\n\n13. SPECIFIC PERFORMANCE.\n\n     Executive agrees that if he breaches, or threatens to commit a breach of,\nany of the provisions of Sections 10, 11 or 12 (the 'Restrictive Covenants'),\nthe Company shall have, in addition to, and not in lieu of, any other rights and\nremedies available to the Company under law and in equity, the right to have the\nRestrictive Covenants specifically enforced by any court of competent\njurisdiction, it being agreed that any breach or threatened breach of the\nRestrictive Covenants would cause irreparable injury to the Company and that\nmoney damages would not provide an adequate remedy to the Company.\nNotwithstanding the foregoing, nothing herein shall constitute a waiver by\nExecutive of his right to contest whether a breach or threatened breach of any\nRestrictive Covenant has occurred.\n\n14. AMENDMENT OR ALTERATION.\n\n     No amendment or alteration of the terms of this Agreement shall be valid\nunless made in writing and signed by both of the parties hereto.\n\n15. GOVERNING LAW.\n\n     This Agreement shall be governed by the laws of the State of New Jersey\napplicable to agreements made and to be performed therein.\n\n16. SEVERABILITY.\n\n     The holding of any provision of this Agreement to be invalid or\nunenforceable by a court of competent jurisdiction shall not affect any other\nprovision of this Agreement, which shall remain in full force and effect.\n\n\n17. NOTICES.\n\n     Any notices required or permitted to be given hereunder shall be sufficient\nif in writing, and if delivered by hand, or sent by certified mail, return\nreceipt \n\n                                        8\n\n\n\nrequested, to the addresses set forth above or such other address as either\nparty may from time to time designate in writing to the other, and shall be\ndeemed given as of the date of the delivery or mailing.\n\n18. WAIVER OR BREACH.\n\n\n     It is agreed that a waiver by either party of a breach of any provision of\nthis Agreement shall not operate, or be construed, as a waiver of any subsequent\nbreach by that same party.\n\n19. ENTIRE AGREEMENT AND BINDING EFFECT.\n\n     This Agreement contains the entire agreement of the parties with respect to\nthe subject matter hereof and shall be binding upon and inure to the benefit of\nthe parties hereto and their respective legal representatives, heirs,\ndistributors, successors and assigns. Notwithstanding the foregoing, all prior\nagreements between Executive and the Company relating to the confidentiality of\ninformation, trade secrets, patents and stock options shall not be affected by\nthis Agreement.\n\n20. SURVIVAL.\n\n     The termination of Executive's employment hereunder or the expiration of\nthis Agreement shall not affect the enforceability of Sections 4, 8, 10, 11, 12\nand 13 hereof.\n\n21. FURTHER ASSURANCES.\n\n     The parties agree to execute and deliver all such further documents,\nagreements and instruments and take such other and further action as may be\nnecessary or appropriate to carry out the purposes and intent of this Agreement.\n\n22. HEADINGS.\n\n     The Section headings appearing in this Agreement are for the purposes of\neasy reference and shall not be considered a part of this Agreement or in any\nway modify, demand or affect its provisions.\n\n                [Remainder of this page intentionally left blank]\n\n                                        9\n\n\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date and year first above written.\n\n\n                               BIO-TECHNOLOGY GENERAL CORP.\n\n                               By:_________________________________\n\n                               ____________________________________\n                               Ernest L. Kelly\n\n                                       10\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6900],"corporate_contracts_industries":[9406],"corporate_contracts_types":[9539,9544],"class_list":["post-38977","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bio-technology-general-corp","corporate_contracts_industries-drugs__botanical","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38977","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38977"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38977"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38977"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}