Exhibit 10.12


 


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


 


This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into as of the 24th day of January, 2006, by and between FIRST HORIZON
PHARMACEUTICAL CORPORATION, a Delaware corporation (the “Company”) and PATRICK FOURTEAU (“Executive”).


 


WITNESSETH:


 


WHEREAS,
Executive is employed by the Company pursuant to the terms and conditions of
that certain Employment Agreement dated May 16, 2003 between the Company
and Executive as amended and restated September 17, 2003 (the “Original
Agreement”): and


 


WHEREAS,
the parties desire to amend and restate the terms and conditions of the
Original Agreement, effective as of the date hereof;


 


NOW,
THEREFORE, in consideration of Executive’s continued employment, the covenants
and mutual agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do hereby agree as follows:


 


1.     Employment.   Throughout the Term
(as defined in Section 2 below), the Company shall employ Executive as
provided herein, and Executive hereby accepts such employment. In accepting
such employment, Executive states that, to the best of his knowledge, he is not
now, and by accepting such employment, will not be, under any restrictions in
the performance of the duties contemplated under this Agreement as a result of
the provisions of any prior employment agreement or non-compete or similar
agreement to which Executive is or was a party.


 


2.     Term of Employment.   The term
of Executive’s employment by the Company hereunder shall continue thereafter
unless sooner terminated as a result of Executive’s death or in accordance with
the provisions of Section 6 below (the “Term”).


 


3.     Duties.   Throughout the Term,
and except as otherwise expressly provided herein, Executive shall be employed
by the Company as the President and Chief Executive Officer of the Company.
Executive shall devote his full time to the performance of his duties as
President and Chief Executive Officer of the Company in accordance with the
Company’s By-laws, this Agreement and the directions of the Company’s Board of
Directors and any executive officer of the Company who is senior to Executive.
Without limiting the generality of the foregoing, throughout the Term Executive
shall faithfully perform his duties as President and Chief Executive Officer
at all times so as to promote the best interests of the Company.


 


4.     Compensation.


 


(a)           Salary.   For any and all
services performed by Executive under this Agreement during the Term, in
whatever capacity, the Company shall pay to Executive an annual salary of Three
Hundred Twenty-five Thousand Dollars ($325,000.00) per year (the “Salary”) less
any and all applicable federal, state and local payroll and withholding taxes.
The Salary shall be paid in the same increments as the Company’s normal
payroll, but no less frequent than bi-monthly and prorated, however, for any
period of less than a full month. The Salary will be reviewed annually by the
Compensation Committee of the Board and a determination shall be made at that
time as to the appropriateness of an increase, if any, thereto.


 


 (b)          Bonus.   In addition to the
Salary, Executive shall be eligible to receive from the Company an incentive
compensation bonus (the “Bonus”) based on a percentage of


 

















 


his
Salary. The Bonus, if any, shall be determined based on such criteria as shall
be determined from time to time by the Compensation Committee of the Board of
Directors. The nature of the criteria and the determination as to whether the
criteria have been satisfied, shall be determined by the Compensation Committee
of the Board in its sole discretion. Accordingly, there is no assurance that a
Bonus will be paid to Executive with respect to all or any particular year
during the Term.


 


5.     Benefits and Other Rights.   In
consideration for Executive’s performance under this Agreement, the Company
shall provide to Executive the following benefits: 




(a)           The
Company will provide Executive with cash advances for or reimbursement of all
reasonable out-of-pocket business expenses incurred by Executive in connection
with his employment hereunder. Such reimbursement, however, is conditioned upon
Executive adhering to any and all reasonable policies established by Company
from time to time with respect to such reimbursements or advances including,
but not limited to, a requirement that Executive submit supporting evidence of
any such expenses to the Company.


 


(b)           The
Company will provide Executive and his family with the opportunity to receive
group medical coverage under the terms of the Company’s health insurance plan,
but subject to completion of normal waiting periods. During any such waiting
period, the Company will pay, or reimburse Executive for, the cost of COBRA
coverage for Executive and his family under his prior health plan.


 


(c)           During the
Term the Executive shall be entitled to fifteen (15) days paid vacation,
it being understood and agreed that unused vacation shall not be carried over
from one year to the next. In addition, Executive shall be entitled to eight (8) paid
holidays and four (4) paid personal days off.


 


(d)           The
Company will pay Executive’s reasonable moving costs for the relocation of his
residence to the Atlanta, Georgia metropolitan area, subject to the approval of
such moving costs by the Compensation Committee of the Company’s Board of
Directors.


 


6.     Termination of the Term.


 


(a)           The
Company shall have the right to terminate the Term under the following
circumstances:


 


(i)            Executive
shall die;


 


(ii)           With or
without Cause, effective upon written notice to Executive by the Company; or


 


(iii)          Upon
or within one (1) year following a Change of Control.


 


(b)           Executive
shall have the right to terminate the Term under the following circumstances:


 


(i)            At any
time upon sixty (60) days prior written notice to the Company; or


 


(ii)           For Good
Reason upon or within one (1) year following a Change of Control.


 


(c)           For
purposes of this Agreement, “Cause” shall mean:


 


(i)            Executive
shall be convicted of the commission of a felony or a crime involving
dishonesty, fraud or moral turpitude;


 

















 


(ii)           Executive
has engaged in acts of fraud, embezzlement, theft or other dishonest acts
against the Company;


 


(iii)          Executive
commits an act which negatively impacts the Company or its employees including,
but not limited to, engaging in competition with the Company, disclosing
confidential information or engaging in sexual harassment, discrimination or
other human rights-type violations;


 


(iv)          Executive’s
gross neglect or willful misconduct in the discharge of his duties and
responsibilities; or


 


(v)           Executive’s
repeated refusal to follow the lawful direction of the Board of Directors or
supervising officers.


 


(d)           For
purposes of this Agreement, “Change of Control” shall mean the occurrence of
any of the following:


 


(i)            The
acquisition (other than by a direct purchase of shares from the Company) by any
“person,” including a “syndication” or “group”, as those terms are used in Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (other than
any such person currently owning in excess of the following amount), of
securities representing 20% or more of the combined voting power of the Company’s
then outstanding voting securities, which is any security that ordinarily
possesses the power to vote in the election of the Board of Directors of a
corporation without the happening of any precondition or contingency;


 


(ii)           The
Company is merged or consolidated with another corporation and immediately
after giving effect to the merger or consolidation less than 80% of the
outstanding voting securities of the surviving or resulting entity are then
beneficially owned in the aggregate by (x) the stockholders of the Company
immediately prior to such merger or consolidation, or (y) if a record date
has been set to determine the stockholders of the Company entitled to vote on
such merger or consolidation, the stockholders of the Company as of such record
date;


 


(iii)          If
at any time during a calendar year a majority of the directors of the Company
are not persons who were directors at the beginning of the calendar year;


 


(iv)          The Company
transfers substantially all of its assets to another corporation which is a
less than 80% owned subsidiary of the Company; or


 


(v)           The
Company approves a plan or proposal for dissolution on liquidation of the
Company.


 


(e)           For
purposes of this Agreement, “Good Reason” shall mean the occurrence of any one
or more of the following events which continues uncured for a period of not
less thirty (30) days following written notice given by Executive to the
Company within fifteen (15) days following the occurrence of such event,
unless the Executive specifically agrees in writing that such event shall not
be Good Reason:


 


(i)            Any material
breach of this Agreement by the Company;


 


(ii)           Any
failure to continue the Executive as an executive officer of the Company;


 

















 


(iii)          The
requirement by the Company that Executive perform his services hereunder
primarily at a location outside of the metropolitan Atlanta, Georgia area; or


 


(iv)          The
reduction of the Employee’s salary below the amount set forth in Section 4(a) above
without the written consent of Executive.


 


7.     Effect of Expiration or Termination of the Term.
  Promptly following the termination of the Term, and except as
otherwise expressly agreed to by the Company in writing, Executive shall:


 


(a)           Immediately
resign from any and all other positions or committees which Executive holds or
is a member of with the Company or any subsidiary of the Company including, but
not limited to, as an officer and director of the Company or any subsidiary of
the Company.


 


(b)           Provide
the Company with all reasonable assistance necessary to permit the Company to
continue its business operations without interruption and in a manner
consistent with reasonable business practices; provided, however, that such
transition period shall not exceed thirty (30) days after termination nor
require more than twenty (20) hours of Executive’s time per week and
Executive shall be promptly reimbursed for all out-of-pocket expenses.


 


(c)           Deliver to
the Company possession of any and all property owned or leased by the Company
which may then be in Executive’s possession or under his control,
including, without limitation, any and all such keys, credit cards,
automobiles, equipment, supplies, books, records, files, computer equipment,
computer software and other such tangible and intangible property of any
description whatsoever. If, following the expiration or termination of the
Term, Executive shall receive any mail addressed to the Company, then Executive
shall immediately deliver such mail, unopened and in its original envelope or
package, to the Company.


 


(d)           Other than
as provided in this Section 7, upon a termination of employment all other
benefits and/or entitlements to participate in programs or benefits, if any,
will cease as of the effective date except medical insurance coverage that may be
continued at Executive’s own expense as provided by applicable law or written
Company policy.


 


(e)           Upon
termination of Executive pursuant to § 6(a)(i) or § 6(a)(ii) without
Cause following the six (6) month anniversary of the Effective Date, the
Company shall: (i) provide Executive with Salary continuance, subject to § 7(h) for
twelve (12) months (a “Salary Continuance”) at the rate in effect
immediately prior to termination, plus (ii) a lump sum payment equal to
One Hundred Percent (100%) of the Bonus, if any, paid to Executive for the
calendar year immediately preceding termination, plus (iii) provide twelve
(12) months of COBRA coverage for Executive which shall be substantially
equivalent to that provided by the Company prior to termination, plus (iv) all
of Executive’s then unvested options and stock awards previously issued pursuant
to the Company’s stock option and other equity incentive plans shall
immediately vest and be exercisable as herein provided. In the event of
termination of Executive’s employment prior to the six (6) month
anniversary of the Effective Date. Executive shall not be entitled to any
severance from the Company.


 


(f)            Upon
termination of Executive pursuant to § 6(a)(ii) with Cause or § 6(b)(i),
the Company shall pay Executive or Executive’s estate all Salary accrued but
unpaid as of the date of such termination.


 


(g)           Upon
termination of Executive pursuant to § 6(a)(iii) or § 6(b)(ii),
the Company shall: (i) provide Executive with Salary continuance for
twenty-four (24) months at the rate


 

















 


in
effect immediately prior to termination, plus (ii) a lump sum payment
equal to Two Hundred Percent (200%) of the Bonus, if any, paid to Executive for
the calendar year immediately preceding termination, plus (iii) provide
COBRA coverage for Executive which shall be substantially equivalent to that
provided by the Company prior to termination until the earlier of (A) twenty-four
(24) months after the date of termination, (B) the availability of
replacement coverage to Executive from a third party employer after Executive
has accepted another full-time position and (C) the expiration of COBRA
benefits by reason or lapse of the statutory or regulatory benefit period
established by governmental authority. Further, upon a Change in Control,
regardless of whether the Executive is terminated, all of Executive’s then
unvested options and stock awards previously issued pursuant to the Company’s
stock option and other equity incentive plans shall immediately vest and be
exercisable as herein provided.


 


(h)           In the
event that Executive shall be entitled to receive a Salary Continuance and
COBRA benefit pursuant to § 7(e), such Salary Continuance and COBRA
benefit shall continue only until such time as Executive shall have accepted
another full time position. In addition, in the event that Executive shall perform consulting
or other services for which he shall receive compensation, all compensation
shall be reported to the Company and shall be offset against any remaining
Salary Continuance payments. Failure of Executive to promptly report the
receipt of any compensation from a third party or the acceptance of a new
position shall entitle the Company to terminate all remaining Salary
Continuance and COBRA benefits and to seek restitution for any payments made to
Executive subsequent to such job acceptance or compensation receipt.


 


(i)            Any
dollar amounts which are to be paid at the time of termination under this Section 7,
other than Salary Continuance, payments under Section 7(g)(i) and
COBRA payments, shall be paid within thirty (30) days after the date of
termination. Any Salary Continuance, payments under Section 7(g)(i) or
COBRA payments shall be made in accordance with the usual payroll practices
which were applicable prior to termination. Except as otherwise specifically
set forth herein, any and all payments made pursuant to this Agreement shall be
net of any and all applicable federal, state and local payroll and withholding
taxes.


 


(j)            If the
Company or the Company’s accountants determine that the payments called for
under Section 7(g) of this Agreement either alone or in conjunction
with any other payments or benefits made available to the Employee by the
Company will result in the Employee being subject to an excise tax (“Excise Tax”)
under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”),
or if an Excise Tax is assessed against Executive as a result of such payments
or other benefits, the Company shall make a Gross-Up Payment (as defined below)
to or on behalf of Executive as and when such determination(s) and
assessments(s), as appropriate, are made, subject to the conditions of this subsection (i).
A “Gross-Up Payment” shall mean a payment to or on behalf of Executive that
shall be sufficient to pay (i) any Excise Tax in full, (ii) any
federal, state and local income tax and Social Security or other employment tax
on the payment made to pay such Excise Tax as well as any additional Excise Tax
on the Gross-Up Payment, and (iii) any interest or penalties assessed by
the Internal Revenue Service on Executive if such interest or penalties are
attributable to the Company’s failure to comply with its obligations under this
subsection (i) or applicable law. Any determination under this subsection (i) by
the Company or the Company’s accountants shall be made in accordance with Section 280G
of the Code, any applicable related regulations (whether proposed, temporary or
final), any related Internal Revenue Service rulings and any related case law,
and shall assume that Executive shall pay Federal income taxes at the highest
marginal rate in effect for the year in which the Gross-Up Payment is made and
state and local income taxes at the highest marginal rate in effect in the
state of


 

















 


Executive’s
residence for such year. Executive shall take such action (other than waiving
Employee’s right to any payments or benefits) as the Company reasonably
requests under the circumstances to mitigate or challenge such tax. If the
Company reasonably requests that Executive take action to mitigate or
challenge, or to mitigate and challenge, any such tax or assessment and Executive
complies with such request, the Company shall provide Executive with such
information and such expert advice and assistance from the Company’s
accountants, lawyers and other advisors as Executive may reasonably
request and shall pay for all expenses incurred in effecting such compliance
and any related fines, penalties, interest and other assessments. Subject to
the provisions of this subsection (i), all determinations required to be
made under this subsection (i), including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the public
accounting firm that is retained by the Company as of the date immediately
prior to the Change of Control (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and Executive within
thirty (30) business days of the receipt of notice from the Company or
Executive that there has been a payment that could trigger a Gross-Up Payment,
or such earlier time as is requested by the Company (collectively, the “Determination”).
In the event that the Accounting Firm is serving as accountant or auditor for
the individual, entity or group effecting the Change of Control, Executive may appoint
another nationally recognized public accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company and the Company shall enter into any agreement
requested by the Accounting Firm in connection with the performance of the
services hereunder. The Gross-Up Payment under this subsection (i) with
respect to any payments shall be made no later than sixty (60) days
following such payments. If the Accounting Firm determines that no Excise Tax
is payable by Executive, it shall furnish Executive with a written opinion to
such effect, and to the effect that failure to report the Excise Tax, if any,
on Executive’s applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. The Determination by the
Accounting Firm shall be binding upon the Company and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code at the time
of the Determination, it is possible that Gross-Up Payments which will not have
been made by the Company should have been made (“Underpayment”) or Gross-up
Payments are made by the Company which should not have been made (“Overpayment”),
consistent with the calculations required to be made hereunder. In the event
that Executive thereafter is required to make payment of any additional Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that
has occurred and any such Underpayment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid
by the Company to or for the benefit of Executive. In the event the amount of
the Gross-Up Payment exceeds the amount necessary to reimburse Executive for
his Excise Tax as herein set forth, the Accounting Firm shall determine the
amount of the Overpayment that has been made and any such Overpayment (together
with interest at the rate provided in Section 1274(b)(2) of the Code)
shall be promptly paid by Executive to or for the benefit of the Company.
Executive shall cooperate, to the extent Executive’s expenses are reimbursed by
the Company, with any reasonable requests by the Company in connection with any
contests or disputes with the Internal Revenue Service in connection with the
Excise Tax.


 


8.     Restrictive Covenants for Executive.   Executive
hereby covenants and agrees with the Company that for so long as Executive is
employed by the Company and for a period (the “Restricted Period”) of twelve
months after the termination of such employment for any reason, Executive shall
not, without the prior written consent of the Company, which consent shall be
within the sole and exclusive discretion of the Company, either directly or
indirectly


 

















 


on his
own account or on behalf of any other person or entity:


 


(a)           Perform services
for a Competing Business that are substantially similar in whole or in part to
those that he performed for the Company in his role as Chief Executive Officer,
including specifically, but not limited to, the sale or marketing of drug
products or the management of individuals involved in the sale or marketing of
drug products. For purposes of this covenant, the term “Competing Business”
shall mean any company engaged in the development, marketing or sale of
prescription drug products, including generic and nongeneric drug products,
which are competitive with: (1) those products being marketed by the
Company at the time of Executive’s termination; or (2) those products that
Executive was aware were under development by the Company and expected to be
marketed within two years of Executive’s termination. This covenant shall apply
only within the “Territory” which is defined as the fifty states of the United
States. Executive recognizes and agrees that in capacity of Chief Executive Officer,
his duties extend throughout the entire service area of the Company which
includes, at a minimum, the fifty states of the United States and that, because
of the executive nature of Executive’s position with the Company, in order to
afford the Company protection from unfair competition by the Executive
following his termination of employment, this covenant must extend throughout
the stated Territory. Executive further acknowledges that this covenant does
not prohibit him from engaging in his entire trade or business but only a very
limited segment of the pharmaceuticals industry


 


(b)           Solicit
any current supplier, customer or client of the Company with whom Executive
dealt, or with whom anyone in Executive’s direct chain of command dealt, on
behalf of the Company within the year preceding Executive’s termination of
employment, for the purpose of purchasing drug products (or ingredients of drug
products) or selling or marketing drug products, including generic and
nongeneric drug products, which are competitive with: (1) those products
being marketed by the Company at the time of Executive’s termination; or (2) those
products that Executive was aware were under development by the Company and
expected to be marketed within two years of Executive’s termination.
Notwithstanding this subsection (b), Executive may solicit suppliers
that have excess capacity as reasonably determined by the Company.


 


9.     Confidentiality.   Attached to
this Agreement as Exhibit A is the form of the Employee/Independent
Contractor Confidentiality and Non-Solicitation Agreement (the “Confidentiality
Agreement”) which the Company requires all employees, including, but not
limited to, the Executive, to execute and which is a part of each employee’s
terms of employment. By signing this Agreement, Executive acknowledges having
received, read, executed and delivered to the Company a copy of the
Confidentiality Agreement and agrees that the terms of the Confidentiality
Agreement shall be incorporated by reference into this Agreement and shall be
considered as part of the terms and conditions of Executive’s continued
employment with the Company.


 


10.   Remedies.


 


(a)           The
covenants of Executive set forth in Section 8 and Section 9 are
separate and independent covenants for which valuable consideration has been
paid, the receipt, adequacy and sufficiency of which are acknowledged by
Executive, and have also been made by Executive to induce the Company to enter
into this Agreement and continue Executive’s employment with the Company. Each
of the aforesaid covenants may be availed of, or relied upon, by the
Company in any court of competent jurisdiction, and shall form the basis
of injunctive relief and damages including expenses of litigation (including,
but not limited to, reasonable attorney’s fees upon trial and appeal) suffered
by the Company arising out of any breach of the aforesaid covenants by
Executive. The covenants of Executive set forth in this


 

















 


Section 10
are cumulative to each other and to all other covenants of Executive in favor
of the Company contained in this Agreement and shall survive the termination of
this Agreement for the purposes intended.


 


(b)           Each of
the covenants contained in Section 8 and Section 9 above shall be
construed as agreements which are independent of any other provision of this
Agreement, and the existence of any claim or cause of action by any party
hereto against any other party hereto, of whatever nature, shall not constitute
a defense to the enforcement of such covenants. If any of such covenants shall
be deemed unenforceable by virtue of its scope in terms of geographical area,
length of time or otherwise, but may be made enforceable by the imposition
of limitations thereon, Executive agrees that the same shall be enforceable to
the fullest extent permissible under the laws and public policies of the
jurisdiction in which enforcement is sought. The parties hereto hereby
authorize any court of competent jurisdiction to modify or reduce the scope of
such covenants to the extent necessary to make such covenants enforceable.


 


(c)           In the
event that Executive believes that the Company is in violation of a material
obligation owed to Executive under this Agreement, and the Executive has given
notice of such violation to the Company requesting that the Company cure such
violation, and within twenty (20) business days the Company has not
undertaken steps to cure such violation or to provide information to Executive
demonstrating that the Company is not in violation of the Agreement, and as a
result of such failure to cure or dispute such violation, the Executive
terminates the Agreement in accordance with Section 6(b), Executive shall
not be barred from seeking employment with a competitor notwithstanding the
restriction of Section 8(a); provided, however, that all other
restrictions contained in this Agreement, including, but not limited to the
covenants in Section 8(b) and in Section 9, shall remain in full
force and effect.


 


11.   Enforcement Costs.   If any
legal action or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorney’s fees, court costs and all expenses even if not taxable as
court costs (including, without limitation, all such fees, costs and expenses
incident to appeal and other post judgment proceedings), incurred in that
action or proceeding, in addition to any other relief to which such party or
parties may be entitled. Attorneys fees shall include, without limitation,
paralegal fees, investigative fees, administrative costs, sales and use taxes
and all other charges billed by the attorney to the prevailing party.


 


12.   Notices.   Any and all notices
necessary or desirable to be served hereunder shall be in writing and shall be:


 


(a)           Personally
delivered, or


 


(b)           Sent by
certified mail, postage prepaid, return receipt requested, or guaranteed
overnight delivery by a nationally recognized express delivery company, in each
case addressed to the intended recipient at the address set forth below.


 


(c)           For
notices sent to the Company:


 


First
Horizon Pharmaceutical Corporation

6195 Shiloh Road

Alpharetta, Georgia 30005

Telephone No.: (770) 442-9707

Facsimile No.: (770) 442-9594


 

















 


(d)           For
notices sent to Executive:


 


Mr. Patrick
Fourteau

160 Prospect Ave.

Gilford, CT 06437


 


Either
party hereto may amend the addresses for notices to such party hereunder
by delivery of a written notice thereof served upon the other party hereto as
provided herein. Any notice sent by certified mail as provided above shall be
deemed delivered on the third (3rd) business day next following the postmark
date which it bears.


 


13.   Entire Agreement.   This
Agreement sets forth the entire agreement of the parties hereto with respect to
the subject matter hereof, and specifically supercedes any other agreement or
understanding among the parties hereto related to the subject matter hereof,
including, without limitation, the Original Agreement. This Agreement may not
be modified or revised except pursuant to a written instrument signed by the
party against whom enforcement is sought.


 


14.   Severability.   The invalidity
or unenforceability of any provision hereof shall not affect the enforceability
of any other provision hereof, and except as otherwise provided in Section 10
above, any such invalid or unenforceable provision shall be severed from this
Agreement.


 


15.   Waiver.   Failure to insist upon
strict compliance with any of the terms or conditions hereof shall not be
deemed a waiver of such term or condition, and the waiver or relinquishment of
any right or remedy hereunder at any one or more times shall not be deemed a
waiver or relinquishment of such right or remedy at any other time or times.


 


16.   Arbitration.   Any claims,
disputes or controversies arising out of or relating to this Agreement between
the parties (other than those arising under Section 10) shall be submitted
to arbitration by the parties. The arbitration shall be conducted in Atlanta,
Georgia in accordance with the rules of the American Arbitration
Association then in existence and the following provisions: Either party may serve
upon the other party by guaranteed overnight delivery by a nationally
recognized express delivery service, written demand that the dispute,
specifying in detail its nature, be submitted to arbitration. Within seven
business days after the service of such demand, each of the parties shall
appoint an arbitrator and serve written notice by guaranteed overnight delivery
by a nationally recognized express delivery service, of such appointment upon
the other party. The two arbitrators appointed shall appoint a third
arbitrator. The decision of two arbitrators in writing under oath shall be
final and binding upon the parties. The arbitrators shall decide who is to pay
the expenses of the arbitration. If the two arbitrators appointed fail to agree
upon a third arbitrator within ten days after their appointment, then an
application may be made by either party, upon notice to the other party,
to any court of competent jurisdiction for the appointment of a third
arbitrator, and any such appointment shall be binding upon both parties.


 


17.   Governing Law.   This Agreement
and the rights and obligations of the parties hereto shall be governed by and
construed in accordance with the law of the State of Georgia, without regard to
its conflicts of laws provisions. Subject to Section 16, each party hereto
hereby (a) agrees that the state and federal courts of the Northern
District of Georgia shall have exclusive jurisdiction and venue of any
litigation which may be initiated with respect to this Agreement or to
enforce rights granted hereunder and (b) consents to the personal
jurisdiction and venue of such courts for such purposes.


 


18.   Benefit and Assignability.   This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns. The rights and obligations of Executive


 

















 


hereunder
are personal to him, and are not subject to voluntary or involuntary
alienation, transfer, delegation or assignment.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the day and year first above written. 


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/ Patrick
  Fourteau

  
	
   

  	
  Name: Patrick Fourteau

  
	
   

  	
   

  
	
   

  	
  FIRST HORIZON
  PHARMACEUTICAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darrell
  Borne 

  
	
   

  	
  Name:

  	
  Darrell Borne,
  CFO