**Exhibit 10.13**

 

**AMENDED ANDRESTATEDEMPLOYMENT AGREEMENT**

 

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

 

**WITNESSETH:**

 

WHEREAS, Executive is employed by the Companypursuant to the terms and conditions of that certain Employment Agreement datedJune 12, 2003 between the Company and Executive as amended and restated onSeptember 17, 2003 (the “Original Agreement”); and

 

WHEREAS, the parties desire to amend and restate theterms and conditions of the Original Agreement, effective as of the datehereof:

 

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

 

1.     *Employment*.   Throughout the Term (as definedin Section 2 below), the Company shall employ Executive as providedherein, and Executive hereby accepts such employment. In accepting suchemployment, 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 theperformance of the duties contemplated under this Agreement as a result of theprovisions of any prior employment agreement or non-compete or similaragreement to which Executive is or was a party.

 

2.     *Term of Employment*.   The term of Executive’semployment by the Company hereunder shall continue hereafter unless soonerterminated as a result of Executive’s death or in accordance with theprovisions of Section 6 below (the “Term”).

 

3.     *Duties*.   Throughout the Term, and exceptas otherwise expressly provided herein, Executive shall be employed by theCompany as the Chief Financial Officer of the Company. Executive shall devotehis full time to the performance of his duties as Chief Financial Officer ofthe Company in accordance with the Company’s By-laws, this Agreement and thedirections of the Company’s Board of Directors and any executive officer of theCompany who is senior to Executive. Without limiting the generality of theforegoing, throughout the Term Executive shall faithfully perform hisduties as Chief Financial Officer at all times so as to promote the bestinterests of the Company.

 

4.     *Compensation*.

 

(a)           *Salary*.   For any and all servicesperformed by Executive under this Agreement during the Term, in whatevercapacity, the Company shall pay to Executive an annual salary of Two HundredForty Thousand Dollars ($240,000.00) per year (the “Salary”) less any and allapplicable federal, state and local payroll and withholding taxes. The Salaryshall be paid in the same increments as the Company’s normal payroll, but noless frequent than bi-monthly and prorated,

 

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however, for any period of less than a full month.The Salary will be reviewed annually by the Compensation Committee of the Boardand a determination shall be made at that time as to the appropriateness of anincrease, if any, thereto.

 

(b)           *Bonus*.   In addition to the Salary,Executive shall be eligible to receive from the Company an incentivecompensation bonus (the “Bonus”) based on a percentage of his Salary. TheBonus, if any, shall be determined based on such criteria as shall bedetermined from time to time by the Compensation Committee of the Board ofDirectors. The nature of the criteria and the determination as to whether thecriteria have been satisfied, shall be determined by the Compensation Committeeof the Board in its sole discretion. Accordingly, there is no assurance that aBonus will be paid to Executive with respect to all or any particular yearduring the Term.

 

5.     *Benefits and Other Rights*.   In consideration for Executive’sperformance under this Agreement, the Company shall provide to Executive thefollowing benefits:

 

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

 

(b)           To the extent from time-to-time provided bythe Company to employees of the Company at the same level as Executive, either (i) acar allowance or (ii) a company car, gasoline charge card and carmaintenance plan. Executive acknowledges that the Company may in itsdiscretion change its policies for these purposes including, withoutlimitation, ceasing to provide the benefits set forth in this paragraph.

 

(c)           The Company will provide Executive and hisfamily with the opportunity to receive group medical coverage under the termsof the Company’s health insurance plan, but subject to completion of normalwaiting periods. During any such waiting period, the Company will pay, orreimburse Executive for, the cost of COBRA coverage for Executive and hisfamily under his prior health plan.

 

(d)           During the Term the Executive shall beentitled to fifteen (15) days paid vacation, it being understood andagreed that unused vacation shall not be carried over from one year to thenext. In addition, Executive shall be entitled to eight (8) paid holidaysand four (4) paid personal days off.

 

6.     *Termination of the Term*.

 

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

 

(i)            Executive shall die;

 

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

 

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

 

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

 

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

 

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

 

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

 

(i)            Executive shall be convicted of thecommission of a felony or a crime involving dishonesty, fraud or moralturpitude;

 

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

 

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

 

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

 

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

 

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

 

(i)            The acquisition (other than by a directpurchase 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) ofthe Securities Exchange Act of 1934, as amended (other than any such personcurrently owning in excess of the following amount), of securities representing20% or more of the combined voting power of the Company’s then outstandingvoting securities, which is any security that ordinarily possesses the power tovote in the election of the Board of Directors of a corporation without thehappening of any precondition or contingency;

 

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

 

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stockholders of the Company entitled to vote on suchmerger or consolidation, the stockholders of the Company as of such recorddate;

 

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

 

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

 

(v)           The Company approves a plan or proposal fordissolution 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 whichcontinues uncured for a period of not less thirty (30) days followingwritten notice given by Executive to the Company within fifteen (15) daysfollowing the occurrence of such event, unless the Executive specificallyagrees in writing that such event shall not be Good Reason:

 

(i)            Any material breach of this Agreement by theCompany;

 

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

 

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

 

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

 

7.     *Effect of Expiration orTermination of the Term*.   Promptlyfollowing the termination of the Term, and except as otherwise expressly agreedto by the Company in writing, Executive shall:

 

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

 

(b)           Provide the Company with all reasonableassistance necessary to permit the Company to continue its business operationswithout interruption and in a manner consistent with reasonable businesspractices; provided, however, that such transition period shall not exceed thirty(30) days after termination nor require more than twenty (20) hoursof Executive’s time per week and Executive shall be promptly reimbursed for allout-of-pocket expenses.

 

(c)           Deliver to the Company possession or any andall property owned or leased by the Company which may then be in Executive’spossession or under his control,

 

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including, without limitation, any and all suchkeys, credit cards, automobiles, equipment, supplies, books, records, files,computer equipment, computer software and other such tangible and intangibleproperty of any description whatsoever. If, following the expiration ortermination of the Term, Executive shall receive any mail addressed to theCompany, then Executive shall immediately deliver such mail, unopened and inits 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 toparticipate in programs or benefits, if any, will cease as of the effectivedate except medical insurance coverage that may be continued at Executive’sown 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, the Company shall: (i) provideExecutive with Salary continuance, subject to § 7(h) for twelve(12) months (a “Salary Continuance”) at the rate in effect immediatelyprior to termination, plus (ii) a lump sum payment equal to One HundredPercent (100%) of the Bonus, if any, paid to Executive for the calendar yearimmediately preceding termination, plus (iii) provide twelve(12) months of COBRA coverage for Executive which shall be substantiallyequivalent to that provided by the Company prior to termination, plus (iv) providetwelve (12) months of car allowance at seven hundred fifty dollars($750.00) per month, subject to return of existing company vehicle at time oftermination and provided the Company is providing benefits under § 5(b) ofthis Agreement at the time of termination of employment, plus (v) all ofExecutive’s then unvested options and stock awards previously issued pursuantto the Company’s stock option and other equity incentive plans shallimmediately vest and be exercisable as herein provided.

 

(f)            Upon termination of Executive pursuant to § 6(a)(ii) withCause or § 6(b)(i), the Company shall pay Executive or Executive’s estateall 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 Salarycontinuance for twenty-four (24) months at the rate in effect immediatelyprior to termination, plus (ii) a lump sum payment equal to Two HundredPercent (200%) of the Bonus, if any, paid to Executive for the calendar yearimmediately preceding termination, plus (iii) provide COBRA coverage forExecutive which shall be substantially equivalent to that provided by theCompany prior to termination until the earlier of (A) twenty-four(24) months after the date of termination, (B) the availability ofreplacement coverage to Executive from a third party employer after Executivehas accepted another full-time position and (C) the expiration of COBRAbenefits by reason of lapse of the statutory or regulatory benefit period establishedby governmental authority, plus (iv) provide twenty-four (24) monthsof car allowance at seven hundred fifty dollars ($750.00) per month, subject toreturn of existing company vehicle at time of termination and provided theCompany is providing benefits under § 5(b) of this Agreement at thetime of termination of employment. Further, upon a Change in Control,regardless of whether the Executive is terminated, all of Executive’s thenunvested options and

 

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stock awards previously issued pursuant to theCompany’s stock option and other equity incentive plans shall immediately vestand be exercisable as herein provided.

 

(h)           In the event that Executive shall be entitledto receive a Salary Continuance and COBRA benefit pursuant to § 7(e), suchSalary Continuance and COBRA benefit shall continue only until such time asExecutive shall have accepted another full time position. In addition, in theevent that Executive shall perform consulting or other services for whichhe shall receive compensation, all compensation shall be reported to theCompany and shall be offset against any remaining Salary Continuance payments.Failure of Executive to promptly report the receipt of any compensation from athird party or the acceptance of a new position shall entitle the Company toterminate all remaining Salary Continuance and COBRA benefits and to seekrestitution for any payments made to Executive subsequent to such jobacceptance or compensation receipt.

 

(i)            Any dollar amounts which are to be paid atthe time of termination under this Section 7, other than SalaryContinuance, payments under Section 7(g)(i), the car allowance and COBRApayments, shall be paid within thirty (30) days after the date oftermination. Any Salary Continuance, payments under Section 7(g)(i) orCOBRA payments shall be made in accordance with the usual payroll practiceswhich were applicable prior to termination. Except as otherwise specificallyset forth herein, any and all payments made pursuant to this Agreement shall benet of any and all applicable federal, state and local payroll and withholdingtaxes.

 

(j)            If the Company or the Company’s accountantsdetermine that the payments called for under Section 7(g) of thisAgreement either alone or in conjunction with any other payments or benefitsmade available to the Employee by the Company will result in the Employee beingsubject to an excise tax (“Excise Tax”) under Section 4999 of the InternalRevenue Code of 1986, as amended (the “Code”), or if an Excise Tax is assessedagainst Executive as a result of such payments or other benefits, the Companyshall make a Gross-Up Payment (as defined below) to or on behalf of Executiveas and when such determination(s) and assessment(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 topay (i) any Excise Tax in full, (ii) any federal, state and localincome tax and Social Security or other employment tax on the payment made topay such Excise Tax as well as any additional Excise Tax on the Gross-UpPayment, and (iii) any interest or penalties assessed by the InternalRevenue Service on Executive if such interest or penalties are attributable tothe Company’s failure to comply with its obligations under this subsection (i) orapplicable law. Any determination under this subsection (i) by theCompany or the Company’s accountants shall be made in accordance with Section 280Gof the Code, any applicable related regulations (whether proposed, temporary orfinal), any related Internal Revenue Service rulings and any related case law,and shall assume that Executive shall pay Federal income taxes at the highestmarginal rate in effect for the year in which the Gross-Up Payment is made andstate and local income taxes at the highest marginal rate in effect in thestate of Executive’s residence for such year. Executive shall take such action(other than waiving Employee’s right to any payments or benefits) as theCompany reasonably requests under the circumstances to mitigate or challenge

 

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such tax. If the Company reasonably requests thatExecutive take action to mitigate or challenge, or to mitigate and challenge,any such tax or assessment and Executive complies with such request, the Companyshall provide Executive with such information and such expert advice andassistance from the Company’s accountants, lawyers and other advisors asExecutive may reasonably request and shall pay for all expenses incurredin effecting such compliance and any related fines, penalties, interest andother assessments. Subject to the provisions of this subsection (i), alldeterminations required to be made under this subsection (i), includingwhether and when a Gross-Up Payment is required and the amount of such Gross-UpPayment 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 asof the date immediately prior to the Change of Control (the “Accounting Firm”)which shall provide detailed supporting calculations both to the Company andExecutive within thirty (30) business days of the receipt of notice fromthe Company or Executive that there has been a payment that could trigger aGross-Up Payment, or such earlier time as is requested by the Company(collectively, the “Determination”). In the event that the Accounting Firm isserving as accountant or auditor for the individual, entity or group effectingthe Change of Control, Executive may appoint another nationally recognizedpublic accounting firm to make the determinations required hereunder (whichaccounting firm shall then be referred to as the Accounting Firm hereunder).All fees and expenses of the Accounting Firm shall be borne solely by theCompany and the Company shall enter into any agreement requested by theAccounting Firm in connection with the performance of the services hereunder.The Gross-Up Payment under this subsection (i) with respect to anypayments shall be made no later than sixty (60) days following suchpayments. If the Accounting Firm determines that no Excise Tax is payable byExecutive, 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’sapplicable federal income tax return will not result in the imposition of anegligence or similar penalty. The Determination by the Accounting Firm shallbe binding upon the Company and Executive. As a result of the uncertainty inthe application of Section 4999 of the Code at the time of theDetermination, it is possible that Gross-Up Payments which will not have beenmade by the Company should have been made (“Underpayment”) or Gross-Up Paymentsare made by the Company which should not have been made (“Overpayment”),consistent with the calculations required to be made hereunder. In the eventthat Executive thereafter is required to make payment of any additional ExciseTax, the Accounting Firm shall determine the amount of the Underpayment thathas occurred and any such Underpayment (together with interest at the rateprovided in Section 1274(b)(2)(B) of the Code) shall be promptly paidby the Company to or for the benefit of Executive. In the event the amount ofthe Gross-Up Payment exceeds the amount necessary to reimburse Executive forhis Excise Tax as herein set forth, the Accounting Firm shall determine theamount of the Overpayment that has been made and any such Overpayment (togetherwith 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 bythe Company, with any reasonable requests by the Company in connection with anycontests or disputes with the Internal Revenue Service in connection with theExcise Tax.

 

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8.     *Restrictive Covenants forExecutive*.   Executivehereby covenants and agrees with the Company that for so long as Executive isemployed by the Company and for a period (the “Restricted Period”) of twelvemonths after the termination of such employment for any reason, Executive shallnot, without the prior written consent of the Company, which consent shall bewithin the sole and exclusive discretion of the Company, either directly orindirectly on his own account or on behalf of any other person or entity:

 

(a)           Perform services for a CompetingBusiness that are substantially similar in whole or in part to those thathe performed for the Company in his role as Chief Financial Officer, includingspecifically, but not limited to, the sale or marketing of drug products or themanagement of individuals involved in the sale or marketing of drug products.For purposes of this covenant, the term “Competing Business” shall mean anycompany engaged in the development, marketing or sale of prescription drugproducts, including generic and nongeneric drug products, which are competitivewith: (1) those products being marketed by the Company at the time ofExecutive’s termination; or (2) those products that Executive was awarewere under development by the Company and expected to be marketed within twoyears of Executive’s termination. This covenant shall apply only within the “Territory”which is defined as the fifty states of the Unites States. Executive recognizesand agrees that in his capacity of Chief Financial Officer, his duties extendthroughout the entire service area of the Company which includes, at a minimum,the fifty states of the Unites States and that, because of the executive natureof Executive’s position with the Company, in order to afford the Companyprotection from unfair competition by the Executive following his terminationof employment, this covenant must extend throughout the stated Territory.Executive further acknowledges that this covenant does not prohibit him fromengaging in his entire trade or business but only a very limited segment of thepharmaceuticals industry.

 

(b)           Solicit any current supplier, customer orclient of the Company with whom Executive dealt, or with whom anyone inExecutive’s direct chain of command dealt, on behalf of the Company within theyear preceding Executive’s termination of employment, for the purpose ofpurchasing drug products (or ingredients of drug products) or selling ormarketing drug products, including generic and nongeneric drug products, whichare competitive with: (1) those products being marketed by the Company atthe time of Executive’s termination; or (2) those products that Executivewas aware were under development by the Company and expected to be marketedwithin two years of Executive’s termination. Notwithstanding this subsection (b).Executive may solicit suppliers that have excess capacity as reasonablydetermined by the Company.

 

9.     *Confidentiality*.   Attached to this Agreement as Exhibit Ais the form of the Employee/Independent Contractor Confidentiality andNon-Solicitation Agreement (the “Confidentiality Agreement”) which the Companyrequires all employees, including, but not limited to, the Executive, toexecute and which is a part of each employee’s terms of employment. Bysigning this Agreement, Executive acknowledges having received, read, executedand delivered to the Company a copy of the Confidentiality Agreement and agreesthat the terms of the Confidentiality Agreement shall be incorporated byreference into this Agreement and shall be considered as part of the termsand conditions of Executive’s continued employment with the Company.

 

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10.   *Remedies*.

 

(a)           The covenants of Executive set forth in Section 8and Section 9 are separate and independent covenants for which valuableconsideration has been paid, the receipt, adequacy and sufficiency of which areacknowledged by Executive, and have also been made by Executive to induce theCompany to enter into this Agreement and continue Executive’s employment withthe Company. Each of the aforesaid covenants may be availed of, or reliedupon, by the Company in any court of competent jurisdiction, and shall form thebasis of injunctive relief and damages including expenses of litigation(including, but not limited to, reasonable attorney’s fees upon trial andappeal) suffered by the Company arising out of any breach of the aforesaidcovenants by Executive. The covenants of Executive set forth in this Section 10are cumulative to each other and to all other covenants of Executive in favorof the Company contained in this Agreement and shall survive the termination ofthis Agreement for the purposes intended.

 

(b)           Each of the covenants contained in Section 8and Section 9 above shall be construed as agreements which are independentof any other provision of this Agreement, and the existence of any claim orcause of action by any party hereto against any other party hereto, of whatevernature, shall not constitute a defense to the enforcement of such covenants. Ifany of such covenants shall be deemed unenforceable by virtue of its scope interms of geographical area, length of time or otherwise, but may be madeenforceable by the imposition of limitations thereon, Executive agrees that thesame shall be enforceable to the fullest extent permissible under the laws andpublic policies of the jurisdiction in which enforcement is sought. The partieshereto hereby authorize any court of competent jurisdiction to modify or reducethe scope of such covenants to the extent necessary to make such covenantsenforceable.

 

(c)           In the event that Executive believes that theCompany is in violation of a material obligation owed to Executive under thisAgreement, and the Executive has given notice of such violation to the Companyrequesting that the Company cure such violation, and within twenty(20) business days the Company has not undertaken steps to cure suchviolation or to provide information to Executive demonstrating that the Companyis not in violation of the Agreement, and as a result of such failure to cureor dispute such violation, the Executive terminates the Agreement in accordancewith Section 8(b). Executive shall not be barred from seeking employmentwith 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 otherproceeding is brought for the enforcement of this Agreement, or because of analleged dispute, breach, default or misrepresentation in connection with anyprovisions of this Agreement, the successful or prevailing party or partiesshall be entitled to recover reasonable attorney’s fees, court costs and allexpenses even if not taxable as court costs (including, without limitation, allsuch fees, costs and expenses incident to appeal and other post judgmentproceedings), incurred in that action or proceeding, in addition to any otherrelief to which such party or parties may be entitled. Attorneys feesshall include, without limitation, paralegal fees,

 

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investigative fees, administrative costs, sales anduse taxes and all other charges billed by the attorney to the prevailing party.

 

12.   *Notices*.   Any and all notices necessaryor 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 nationallyrecognized express delivery company, in each case addressed to the intendedrecipient 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. Darrell Borne

561 Gramercy Drive

Marietta, Georgia 30068

 

Either party hereto may amend the addresses fornotices to such party hereunder by delivery of a written notice thereof servedupon the other party hereto as provided herein. Any notice sent by certifiedmail as provided above shall be deemed delivered on the third (3rd) businessday next following the postmark date which it bears.

 

13.   *Entire Agreement*.   This Agreement sets forth theentire agreement of the parties hereto with respect to the subject matterhereof, and specifically supercedes any other agreement or understanding amongthe parties hereto related to the subject matter hereof, including, withoutlimitation, the Original Agreement. This Agreement may not be modified orrevised except pursuant to a written instrument signed by the party againstwhom enforcement is sought.

 

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

 

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

 

16.   *Arbitration*.   Any claims, disputes orcontroversies arising out of or relating to this Agreement between the parties(other than those arising under Section 10) shall be

 

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submitted to arbitration by the parties. Thearbitration shall be conducted in Atlanta, Georgia in accordance with the rules ofthe American Arbitration Association then in existence and the followingprovisions: Either party may serve upon the other party by guaranteedovernight delivery by a nationally recognized express delivery service, writtendemand that the dispute, specifying in detail its nature, be submitted toarbitration. Within seven business days after the service of such demand, eachof the parties shall appoint an arbitrator and serve written notice byguaranteed overnight delivery by a nationally recognized express deliveryservice, of such appointment upon the other party. The two arbitratorsappointed shall appoint a third arbitrator. The decision of two arbitrators inwriting under oath shall be final and binding upon the parties. The arbitratorsshall decide who is to pay the expenses of the arbitration. If the twoarbitrators appointed fail to agree upon a third arbitrator within ten daysafter their appointment, then an application may be made by either party,upon notice to the other party, to any court of competent jurisdiction for theappointment of a third arbitrator, and any such appointment shall be bindingupon both parties.

 

17.   *Governing Law*.   This Agreement and the rightsand obligations of the parties hereto shall be governed by and construed inaccordance with the law of the State of Georgia, without regard to itsconflicts of laws provisions. Subject to Section 16, each party heretohereby (a) agrees that the state and federal courts of the NorthernDistrict of Georgia shall have exclusive jurisdiction and venue of anylitigation which may be initiated with respect to this Agreement or toenforce rights granted hereunder and (b) consents to the personaljurisdiction and venue of such courts for such purposes.

 

18.   *Benefit and Assignability*.   This Agreement shall inure tothe 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 arenot subject to voluntary or involuntary alienation, transfer, delegation orassignment.

 

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

 
|   | EXECUTIVE:                                |
|--------|-------------------------------------------|
|   |                                      |
|   | /s/ Darrell Borne                         |
|   | Name: Darrell Borne                       |
|   |                                      |
|   | FIRST HORIZON PHARMACEUTICAL  CORPORATION |
|   |                                      |
|   | By:                                       | /s/ Patrick Fourteau  |
|   | Name:                                     | Patrick Fourteau, President and CEO |

 

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