EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.50
THIS AGREEMENT, dated as of September 20, 2007, is between Inhibitex, Inc., a Delaware
corporation (the “Company”), and Xxxxx Xxxxxx (the “Executive”).
WHEREAS, the Company desires to secure the Executive’s employment in an executive capacity and
to compensate him for such employment; and
WHEREAS, the Executive is willing to be employed by the Company upon the terms and subject to
the conditions contained in this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged,
the parties agree as follows:
Section 1. Position, Duties and Responsibilities.
(a) During the Term (as defined in Section 2), the Executive shall serve as the Senior Vice
President, Drug Development of the Company consistent with the by-laws of the Company, and shall be
responsible for the duties identified in the attached Appendix I, such other duties as are
attendant to such offices and such other managerial duties and responsibilities with the Company,
its affiliates, subsidiaries or divisions consistent with such position as may be assigned by the
Chief Executive Officer (“CEO”) or Board of Directors of the Company (the “Board”). The Executive
shall devote his full energies, interest, abilities and productive time to the business and affairs
of the Company and to promoting its best interests. The Executive acknowledges and agrees that
although his duties shall be performed from the Company’s offices in the Atlanta, Georgia
metropolitan area or at such other places as shall be necessary according to the needs, business
and opportunities of the Company, the performance by the Executive of his duties hereunder may
require substantial travel from time to time by the Executive. The Executive further agrees that,
during the Term, the Company shall be the Executive’s sole employer.
(b) Executive understands that the provisions of any employee handbooks, personnel manuals and
any and all other written statements of or regarding personnel policies, practices or procedures
that are or may be issued by the Company (the “Company Policies”) do not and shall not constitute a
contract of employment and do not and shall not create any vested rights; and that any such
provisions may be changed, revised, modified, suspended, canceled, or eliminated by the Company at
any time, in its sole discretion, with or without notice.
(c) Executive shall comply with all applicable Company Policies, which may be in effect from
time to time during the Term. Copies of all such Company Policies may be examined in the Human
Resource Department of the Company. If a provision in any policy conflicts with this Agreement, the
terms of this Agreement shall prevail.
(d) For up to a one (1) year period following any termination of the Executive’s employment,
upon the request of the Company, the Executive shall reasonably cooperate with the Company in all
matters relating to the winding up of pending work on behalf of the Company and the orderly
transfer of work to other
employees of the Company. The Executive shall also cooperate in the defense of any action
brought by any third party against the Company that relates in any way to the Executive’s acts or
omissions while employed by the Company. The Company shall reimburse the Executive for his
reasonable out-of-pocket costs incurred in connection with such cooperation.
Section 2. Term of Employment.
The initial term (the “Initial Term”) of this Agreement shall commence on September 20, 2007
and continue through September 19, 2008 (the “Initial Expiration Date”). On each anniversary of
the Initial Expiration Date, this Agreement will continue to be renewed automatically for an
additional one (1) year period (the “Extended Term”) (without any action by either party) on the
last day of the Initial Term and on each anniversary thereof, unless the Executive’s employment
under this Agreement is earlier terminated in accordance with Section 4. Executive may elect not
to renew his or her employment under this Agreement for any reason upon sixty (60) days written
notice. For purposes of this Agreement, “Term” means the Initial Term and, as extended, the
Extended Term.
Section 3. Compensation; Benefits; Expenses.
(a) Base Salary. For all services rendered by the Executive hereunder during the
Term, the Company shall pay the Executive an annual salary equal to Two Hundred Forty Thousand
dollars ($240,000), less standard deductions and withholdings, payable in equal installments at the
times and pursuant to the procedures regularly established for the payment of salaries generally to
employees, and as they may be amended by the Company during the Term. The Executive’s salary will
be reviewed from time to time by the Chief Executive Officer and a committee of the Board, or
otherwise in accordance with the Company’s established procedures for adjusting salaries, and be
subject to increases (but not decrease, except pursuant to an across-the-board salary reduction as
described in Section 4(a)(iv)(B)) pursuant to such procedures.
(b) Incentive Compensation. The Executive shall be eligible to participate in such
bonus and incentive (including stock option and other equity-based) compensation plans of the
Company, if any, in which other executives of the Company are generally eligible to participate, as
the Board or a Committee thereof shall determine from time to time in its sole discretion, subject
to and in accordance with the terms and provisions of such plans. Subject to the terms and
conditions of such bonus and incentive compensation plans, the Executive shall be eligible for
annual cash incentive compensation of up to 30% of the then annual gross salary.
(c) Benefits. The Company shall provide the Executive with the right to participate
in and to receive benefits from the group life, group disability and medical plans and all similar
benefits made generally available to similarly situated executives of the Company. The amount and
extent of benefits to which the Executive is entitled shall be governed by the specific benefit
plan or plans, as such may be amended from time to time.
(d) Stock Options. The Executive will be granted employee stock options to purchase
140,000 shares of the Company’s common stock, par value $0.001 per share, on the terms set forth in
a the related agreement(s) entered into by the
2
Executive and the Company. The Executive may be entitled to future equity grants, from time
to time, as determined by the Compensation Committee of the Board.
(e) Reimbursement of Expenses. It is contemplated that in connection with the
Executive’s Employment hereunder, he or she may be required to incur business, entertainment and
travel expenses. The Company agrees to promptly (twice monthly) reimburse the Executive in full for
all reasonable out-of-pocket business, entertainment and other related expenses (including all
reasonable expenses of travel and living expenses while away from home on business or at the
request of, and in service of, the Company) incurred or expended by his incident to the
performance of his duties hereunder, provided that the Executive properly account for such expenses
in accordance with the policies and procedures established by the Board and applicable to the
executives of the Company.
(f) Vacation; Personal Days. During the Term, the Executive shall be entitled to five
(5) weeks vacation with pay during each calendar year of his employment hereunder provided that
the vacation days taken do not materially interfere with the operations of the Company. Such
vacation may be taken in the Executive’s discretion, at such time or times as are not inconsistent
with the reasonable business needs of the Company. The Executive shall also be entitled to all
paid holidays and personal days provided by the Company to its executives. Vacation, holiday and
personal days shall additionally be subject to applicable Company Policies.
Section 4. Termination.
(a) The Executive’s employment under this Agreement may be terminated under the following
circumstances:
(i) Death. The Executive’s employment shall immediately terminate upon his
death.
(ii) Disability. In the event the Executive shall be unable to render
services or perform his duties hereunder by reason of “Disability,” as such term is
defined in the Company’s Long-Term Disability Plan, as the same shall be amended from
time to time; the Company shall have the right to terminate this Agreement immediately
upon notice to the Executive.
(iii) Termination of Employment by the Company for Cause. The Company may
terminate the employment of the Executive immediately for Cause (as hereinafter defined).
The term “Cause,” as used herein, shall mean (1) the Executive’s willful misconduct,
gross negligence, dishonesty or fraud in the performance of his duties hereunder, (2) the
material breach of this Agreement by the Executive after notice of such breach and a
reasonable opportunity to cure, (3) the Executive’s willful refusal or failure to perform
his duties hereunder or under any lawful directive of the Board or his superior officer,
as the case may be, which is consistent with his title and position after notice of such
failure and a reasonable opportunity to cure, or (4) the conviction, plea of guilty or
nolo contendere of the Executive in respect of any felony or other crime
involving moral turpitude, dishonesty, theft or unethical business conduct.
3
(iv) Termination of Employment by Executive for Good
Reason. The Executive may resign and terminate his employment hereunder for
Good Reason (as defined below) by providing a written notice thereof within sixty (60)
days from the occurrence of the event that the Executive is deeming Good Reason. For
purposes of this Agreement, “Good Reason” shall mean there has occurred, without the
express written consent of the Executive:
(A) the assignment to the Executive of any duties materially inconsistent
with his status as a senior executive of the Company or a substantial
diminution in the nature or status of his responsibilities;
(B) a reduction by the Company in the Executive’s Base Salary as in effect
on the date hereof or as the same may be increased from time to time
except for across-the-board salary reductions similarly affecting all
executives of the Company;
(C) (1) the relocation of the Company’s principal executive offices to a
location outside the Atlanta, Georgia metropolitan area or (2) the
Company’s requiring the Executive to perform his duties anywhere other
than the Company’s principal executive offices; provided that required
travel on the Company’s business to an extent substantially consistent
with the Executive’s responsibilities shall not constitute “Good Reason”;
(D) the failure by the Company to continue in effect any material
compensation plan in which the Executive was participating or the failure
by the Company to continue the Executive’s participation therein, unless
an equitable arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan or participation unless such
change or discontinuation similarly affects all executives of the Company;
(E) the failure by the Company to continue to provide the Executive with
benefits substantially similar to those enjoyed by the Executive under the
Company’s employee stock ownership, life insurance, medical,
health-and-accident, or disability plans in which the Executive was
participating, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits or deprive
the Executive of any other material fringe benefits enjoyed by the
Executive, or the failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is entitled on the
basis of years of service with the Company in accordance with the
Company’s normal vacation policy, except for across-the-board changes in
such benefits similarly affecting all executives and/or employees of the
Company; or
(F) the failure of the Company to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement, as contemplated
in Section 16 hereof.
4
(v) Terminations other than for Cause, Good Reason, Disability or upon
Death. In addition to the foregoing, either party may terminate this Agreement at
any time, by providing thirty (30) days prior written notice of his or its desire to
terminate.
(b) Notice of Termination. Any termination of the Executive’s employment by the
Company or by the Executive (other than a termination pursuant to Section 4(a)(i) above) shall be
communicated by written notice of termination to the other party.
(c) Date of Termination. “Date of Termination” shall mean (i) if the Executive’s
employment is terminated by his death, the date of his death or (ii) in all other circumstances,
the date specified in the notice of termination.
Section 5. Compensation Upon Termination.
(a) Compensation Upon Termination Upon Death. In the event of the death of the
Executive during the Term, the Executive’s designated beneficiary, or, in the absence of such
designation, the estate or other legal representative of the Executive (collectively, the “Estate”)
shall be paid, within thirty (30) days of the Executive’s death, an amount equal to the sum of the
Executive’s unpaid salary and any bonuses or other compensation declared by the Board of Directors
or a committee but unpaid through the Date of Termination. The Estate shall be entitled to other
death benefits in accordance with the terms of the Company’s benefit programs and plans.
(b) Compensation Upon Termination for Disability. If the Executive’s employment
hereunder is terminated for Disability, the Executive shall be entitled to receive (if entitled
thereto) disability compensation and benefits in accordance with the Company’s benefit programs and
plans. In addition, Executive shall be entitled to received unpaid salary and any bonuses or other
compensation declared by the Board of Directors or a committee but unpaid through the Date of
Termination, as soon as practicable following termination of employment, but in no event more than
two and one half months after the year in which his termination occurs.
(c) Compensation Upon Termination for Cause. If the Executive’s employment is
terminated by the Company for Cause, the Company shall pay the Executive his salary through the
Date of Termination as soon as practicable following termination of employment, but in no event
more than two and one half months after the year in which his termination occurs, and the Company
shall have no further obligations to the Executive under this Agreement.
(d) Compensation Upon Termination Upon a Change in Control (other than for Cause,
Disability or upon Death).
(i) If the Executive’s employment is terminated by the Executive for Good Reason or
by the Company within one (1) year after the consummation of a Change in Control (as
hereafter defined) or in contemplation of a Change of Control that is reasonably likely
to occur for any reason other than pursuant to Section 4(a)(i), 4(a)(ii) or 4(a)(iii)
hereof, the Company shall pay to the Executive (or in the event of the Executive’s death,
the Executive’s estate) a lump-sum cash amount equal to the sum of (x) the Executive’s
unpaid
5
salary through the Date of Termination; plus (y) any bonus compensation
granted by the Board of Directors or its committee and unpaid through the Date of
Termination; provided, however, that any bonus compensation conditioned
upon the satisfaction of performance goals shall not be paid unless such performance
goals have been satisfied; plus (z) the product of (A) a fraction the numerator
of which is the number of months in the Change in Control Severance Period (as hereafter
defined) and the denominator of which is 12 and (B) the sum of (1) Executive’s annual
base salary as then in effect and (2) the bonus or incentive compensation paid to the
Executive in respect of the most recent fiscal year prior to the year in which the Change
in Control occurs. In addition, Executive shall receive a lump sum payment equal to the
present value of the premium payments that would be made by the Company if Executive were
to continue to be covered under the Company’s group health, life and disability insurance
for the Change in Control Severance Period, which amount shall be determined by the
Company in its sole discretion. The “Change in Control Severance Period” shall be
eighteen (18) months, commencing on the Date of Termination. In no event shall any
amount payable under this Section 5(d)(i) be paid later than two and one half months
after the year in which Executive’s termination occurs; provided however, that in the
event that any payment made pursuant to this Section 5(d)(i) is deemed to constitute a
“deferral of compensation” under Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), notwithstanding any other provisions herein, Executive shall not
receive payment of any of the lump sum amounts described in this Section 5(d)(i) until
the earlier of (A) six months following Executive’s “separation from service” with the
Company (as such phrase is defined in Section 409A of the Code) or (B) Executive’s death.
(ii) Notwithstanding any other provision herein to the contrary, in the event that
the Executive becomes entitled to any payments under Section 5(d)(i) (“Termination
Payments”) and any portion of such Termination Payments, when combined with any other
payments or benefits provided to the Executive (including, without limiting the
generality of the foregoing, by reason of any stock options), in the absence of this
Section 5(d)(ii), would be subject to the tax (the “Excise Tax”) imposed by Section 4999
of the Code, then (subject to Section 5(d)(iii) hereof) the amount payable to the
Executive under Section 5(d)(i) shall be reduced such that none of the amounts payable to
the Executive under Section 5(d)(i) and any other payments or benefits received or to be
received by the Executive in connection with a Change in Control or the termination of
the Executive’s employment (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company, any person whose actions result in a
Change in Control or any person having such a relationship with the Company or such
person as to require attribution of stock ownership between the parties under Section
318(a) of the Code) shall be treated as “parachute payments” within the meaning of
Section 280G(b)(2) of the Code. For purposes of applying the foregoing sentence, if in
the opinion of tax counsel selected by the Company’s independent auditors prior to the
Change in Control and reasonably acceptable to the Executive, such payments or benefits
(in whole or in part) represent reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code, then such amounts shall be excluded
from any such calculation. Furthermore, in
6
determining the maximum amount of the payments to the Executive which would not
constitute a parachute payment within the meaning of Sections 280G(b)(1) and (4), the
value of any non-cash benefits or any deferred payment or benefit shall be determined by
the Company’s independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code or any applicable proposed or final Treasury Regulations
promulgated under the Code.
(iii) If the net after-tax amount of the Termination Payments which would be payable
to the Executive in the absence of the reduction described in Section 5(d)(ii) above
exceeds the net after-tax amount of the Termination Payments which would be payable to
the Executive if the reduction described in Section 5(d)(ii) above were applicable, then
the reduction to the Executive’s Termination Payments described in Section 5(d)(ii) above
shall not be applicable. For purposes of computing such net after-tax amounts, the
Termination Payments shall be treated as subject to Federal income tax and any state and
local income taxes (based upon the residence of the Executive at the time the first
amount of Termination Payments is to be paid hereunder) at the highest marginal rate of
income tax imposed upon individuals (but without assuming any reduction in Federal income
taxes that could be obtained from the deduction of any such state or local taxes if paid
in such year), shall be subject only to the Medicare portion of the F.I.C.A tax and, in
calculating the net after-tax amount of the Termination Payments which would otherwise be
payable to the Executive if the reduction described in Section 5(d)(ii) above were not
applicable, any applicable Excise Tax, and all such taxes shall be computed based upon
the tax rates in effect for the calendar year in which the first amount of Termination
Payments are to be paid hereunder. The determination of the net after-tax amounts will
be made by the Company’s independent auditors prior to the Change in Control, whose
determination will be binding on both the Executive and the Company.
For purposes of this Agreement, a “Change in Control” of the Company shall mean (A) the
consummation of a merger or consolidation of the Company in which the stockholders of the Company
immediately prior to such merger or consolidation would not, immediately after the merger or
consolidation, beneficially own (as such term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), directly or indirectly, shares representing
in the aggregate 45% or more of the combined voting power of the securities of the corporation
issuing cash or securities in the merger or consolidation (or of its ultimate parent corporation,
if any); (B) the stockholders of the Company approve a plan of complete liquidation or dissolution
of the Company, or there is consummated an agreement for the sale or disposition by the Company of
all or substantially all of the Company’s assets, other than a sale or disposition by the Company
of all or substantially all of the Company’s assets to an entity, at least 45% of the combined
voting power of the voting securities of which are owned by persons in substantially the same
proportion as their ownership of the Company immediately prior to such sale; (C) during any period
of two (2) consecutive years, individuals who at the beginning of such period constitute the Board,
including for this purpose any new director whose election or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period or whose election or
7
nomination for election was previously so approved but excluding for this purposes any such new
director whose initial assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act)
or other actual or threatened solicitation of proxies or consents by or on behalf of an individual,
corporation, partnership, group, association or other entity or Person (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than the Board, cease for any reason to
constitute a majority thereof; or (D) such other similar transaction not specifically identified
above, which in the sole discretion of the Board of Directors (or committee thereof) effectively
constitutes a change in control of the Company.
(e) Compensation Upon All Other Terminations. If the Company terminates this
Agreement for any reason other than pursuant to Section 4(a)(i), 4(a)(ii), 4(a)(iii) or Section
5(d) or if Executive terminates his employment for Good Reason, then the Company shall pay
Executive a lump sum equal to the sum of (w) Executive’s unpaid salary through the Date of
Termination; plus (x) any bonus compensation granted by the Board of Directors or its
committee through the Date of Termination; provided, however, that any bonus
compensation conditioned upon the satisfaction of performance goals shall not be paid unless such
performance goals are actually satisfied; plus (y) the Executive’s salary for the Severance
Period if such salary would have continued to be paid during the Severance Period, as determined by
the Company in its sole discretion; plus (z) the product of (1) a fraction the numerator of
which is the number of months in the Severance Period and the denominator of which is 12 and (2)
the bonus or incentive compensation paid to the Executive in respect of the most recent fiscal year
prior to the year in which the Date of Termination occurs. In addition, Executive shall receive a
lump sum payment equal to the present value of the premium payments that would be made by the
Company if Executive were to continue to be covered under the Company’s group health, life and
disability insurance for the Severance Period, which amount shall be determined by the Company in
its sole discretion. If Executive voluntarily terminates this Agreement other than for Good
Reason, then the Company shall pay Executive his salary and any earned but unpaid bonuses through
the Date of Termination in a lump sum, and the Company shall have no further obligations to the
Executive under this Agreement. The “Severance Period” shall be twelve (12) months, commencing on
the Date of Termination. All amounts payable under this Section 5(e) by reason of Executive’s
termination for Good Reason shall be paid in cash in a lump-sum on the date that is six months plus
one day after the Date of Termination, or upon Executive’s death, if earlier. All amounts payable
under this Section 5(e) for any other reason shall be paid no later than two and one half months
after the year in which Executive’s termination occurs; provided however, that in the event that
any payment made pursuant to this Section 5(e) is deemed to constitute a “deferral of compensation”
under Section 409A of the Code, notwithstanding any other provisions herein, Executive shall not
receive payment of any of the lump sum amounts described in this Section 5(e) until the earlier of
(A) six months following Executive’s “separation from service” with the Company (as such phrase is
defined in Section 409A of the Code) or (B) Executive’s death.
(f) Notwithstanding anything else contained herein, the obligation of the Company to make any
severance payments to the Executive hereunder shall be conditioned upon the execution and delivery
by the Executive of a release from liability in favor of the Company substantially in the form
attached hereto as Appendix II.
8
Section 6. Confidentiality.
(a) Each Item, Trade Secret and piece of Confidential Information (in each case, as defined
below) that has come or comes into Executive’s possession by reason of his employment are the
property of the Company and shall not be used by Executive in any way except in the course of his
employment by, and for the benefit of the Company. Executive will not remove any Items from
premises owned or leased by the Company except as his duties shall require, and upon termination of
his employment, all Items (including any copies or excerpts thereof) will be turned over to
Executive’s supervisor at the Company.
(b) Executive will preserve as confidential all Confidential Information that has been or may
be obtained by him. Executive will not, without written authority from the Company, use for his
own benefit or purposes, or disclose to others, either during his employment or for two (2) years
thereafter, any Confidential Information or any copy or notes made from any Item embodying
Confidential Information except as required by his employment with the Company or to the extent
disclosure is or may be required by a statute, by a court of law, by any governmental agency having
supervisory authority over the business of the Company or by any administrative or legislative body
(including a committee thereof) with jurisdiction to order him to divulge, disclose or make
accessible such information, provided, however, that the Executive shall give the Company notice of
any such request or demand for such information upon his receipt of same and the Executive shall
reasonably cooperate with the Company in any application the Company may make seeking a protective
order barring disclosure by the Executive. Executive understands that his obligations with respect
to Confidential Information shall continue for two years after termination of his employment with
the Company. These restrictions concerning use and disclosure of Confidential Information shall
not apply to information which is or becomes publicly known by lawful means, or comes into
Executive’s possession from sources not under an obligation of confidentiality to the Company.
(c) Executive agrees to hold in confidence all Trade Secrets of the Company that came into his
knowledge during or in connection with his employment by the Company and shall not disclose,
publish or make use of at any time after the date hereof such Trade Secrets without the prior
written consent of the Company for as long as the information remains a Trade Secret.
(d) Executive understands that any entrusting of Confidential Information or Trade Secrets to
him by the Company is done in reliance on a confidential relationship arising out of his employment
with the Company. Executive further understands that Confidential Information or Trade Secrets
that he may acquire or to which he may have access, especially with regard to research and
development projects and scientific findings, data formulae, designs, formulation, processes
intellectual property rights, know-how, the identity of suppliers, customers and patients, methods
of manufacture, and cost and pricing data is of great value to the Company.
(e) Executive agrees that following termination of his employment with the Company Executive
will, if possible, make every effort to contact the Company’s General Counsel as if Executive is
served with a subpoena or other legal process asking for a deposition, testimony or other
statement, or other potential evidence
9
to be used in connection with any lawsuit to which the Company is a party or involving
Executive’s employment with the Company or any Confidential Information or Trade Secret of the
Company.
(f) For purposes of this Agreement: (i) “Confidential Information” means information relating
to the present or planned business of the Company which has not been released publicly by
authorized representatives of the Company. Executive understands that Confidential Information may
include, for example, discoveries, scientific data, inventions, know-how and products, customer,
patient, supplier and competitor information, sales, pricing, cost, and financial data, research,
development, marketing and sales programs and strategies, manufacturing, marketing and service
techniques, processes and practices, and regulatory strategies. Executive understands further that
Confidential Information also includes all information received by the Company under an obligation
of confidentially to a third party; (ii) “Items” include documents, reports, drawings, photographs,
designs, specifications, formulae, plans, samples, research or development information, prototypes,
tools, equipment, proposals, marketing or sales plans, customer information, customer lists,
patient lists, patient information, regulatory files, financial data, costs, pricing information,
supplier information, written, printed or graphic matter, or other information and materials that
concern the Company’s business that come into Executive’s possession or about which Executive has
knowledge by reason of his employment; and (iii) “Trade Secrets” include all information, including
a formula pattern, process, compilation, program, device, method, or technique that (A) derives
independent economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by other persons who can obtain economic value from its
disclosure or use, (B) is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy; and (C) otherwise satisfies the requirements of the Georgia Trade Secrets
Act.
Section 7. Proprietary Information.
(a) All Inventions (as defined below) related to the present or planned business of the
Company, which have been or are conceived or reduced to practice by Executive, either alone or with
others, during the period of his employment or during a period of one (1) year after termination of
such employment, whether or not done during his regular working hours, are the sole property of the
Company. The provisions of this paragraph shall not apply to an invention for which no equipment,
supplies, facilities or confidential or trade secret information of the Company was used and which
was developed entirely on Executive’s own time, unless (a) the invention relates to (i) the
business of the Company, or (ii) the Executive’s actual or demonstrably anticipated research or
development for the Company, or (b) the invention results from any work performed by Executive for
the Company.
(b) Executive will disclose promptly and in writing to the Company, through his supervisor,
all Inventions which are covered by this agreement, and Executive agrees to assign to the Company
or its nominee all his right, title, and interest in and to such Inventions. Executive agrees not
to disclose any of these Inventions to others, without the express consent of the Company.
Executive will, at any time during or after his employment, on request of the Company, execute
specific assignments in favor of the Company or its nominee of his interest in and to any of the
Inventions covered by this agreement, as well as execute all papers, render all assistance, and
10
perform all lawful acts which the Company considers necessary or advisable for the
preparation, filing, prosecution, issuance, procurement, maintenance or enforcement of patent
applications and patents of the United States and foreign countries for these Inventions, and for
the transfer of any interest Executive may have. Executive will execute any and all papers and
documents required to vest title in the Company or its nominee in the above Inventions, patent
applications, patents, and interests. Executive understands that if he is not employed by the
Company at the time he is requested to execute any document under this Section 7(b), Executive
shall receive fifty dollars ($50.00) for the execution of each document, and one hundred fifty
dollars ($150.00) per day of each day or portion thereof spent at the request of the Company in the
performance of acts pursuant to this Section 7(b), plus reimbursement for any out-of-pocket
expenses incurred by Executive at the Company’s request in such performance. Executive further
understands that the absence of a request by the Company for information, or for the making of an
oath, or for the execution of any document, shall in no way be construed to constitute a waiver of
the Company’s rights under this agreement. Should the Company be unable to secure the Executive’s
signature on any document necessary to apply for, prosecute, obtain, or enforce any patent,
copyright, or other right or protection relating to any Invention, whether due to the Executive’s
mental or physical incapacity or any other cause, the Executive hereby irrevocably designates and
appoints the Company and each of its duly authorized officers and agents as the Executive’s agent
and attorney in fact, to act for and in the Executive’s behalf and stead and to execute and file
any such document, and to do all other lawfully permitted acts to further the prosecution,
issuance, and enforcement of patents, copyrights, or other rights or protections with the same
force and effect as if executed and delivered by the Executive.
(c) Executive has disclosed to the Company all continuing obligations which he has with
respect to the assignment of Inventions to any previous employers, and Executive claims no previous
unpatented Inventions as his own, except for those which have been reduced to practice and which
are shown on a schedule, if any, attached to this agreement. Executive understands that the
Company does not seek any confidential or trade secret information which Executive may have
acquired from a previous employer, and Executive will not disclose to or utilize any such
information on behalf of the Company.
(d) All writings and other works which may be copyrighted (including computer programs) which
are related to the present or planned business of the Company and are prepared by Executive during
his employment by the Company shall be, to the extent permitted by law, works made for hire, and
the authorship and copyright of the work shall be in the Company’s name. To the extent that such
writings and works are not works for hire, Executive agrees to the wavier of “moral rights” in such
writings and works, and to assign to the Company all Executive’s right, title and interest in and
to such writings and works, including copyright.
(e) Executive will permit the Company and its agents to use and distribute any pictorial
images which are taken of him during his employment by the Company as often as desired for any
lawful purpose. Executive waives all rights of prior inspection or approval and release the
Company and its agents from any and all claims or demands which Executive may have on account of
the lawful use of publication of such pictorial images.
11
(f) For purposes of this Agreement, “Invention” shall mean all ideas, potential marketing and
sales relationships, inventions, experiments, copyrightable expression, research, plans for
products or services, marketing plans, reports, strategies, processes, computer software
(including, without limitation, source code), computer programs, original works of authorship,
characters, know-how, trade secrets, information, data, developments, discoveries, improvements,
modifications, technology, algorithms, database schema, designs, and drawings, whether or not
subject to patent or copyright protection, made, conceived, expressed, developed, or actually or
constructively reduced to practice by the Executive solely or jointly with others prior to or
during the Term, which refer to, are suggested by, or result from any work which (i) the Executive
has performed prior to the Term of this Agreement, (ii) the Executive may perform during his
employment, or (iii) from any information obtained from the Company or any affiliate of the
Company, and shall not be limited to the meaning of “Invention” under the United States patent
laws.
Section 8. Agreement Not to Compete.
(a) While employed by the Company and for a period equal to the greater of (x) one (1) year
and (y) the severance period (or the deemed severance period set forth in clause z(A) of the first
sentence of Section 5(d)(i) in the event of a termination of employment upon a Change of Control)
thereafter, the Executive shall not, directly or indirectly, anywhere in the United States:
(i) render services which are substantially similar to the services performed by
Executive for the Company during the last year of the Term of this Agreement to any
person, corporation, partnership or other entity which competes with the Company (or any
subsidiary) in the business of developing antibody-based immunotherapeutics to prevent or
treat infections caused by staphylococcal organisms; developing small molecules for the
treatment of herpes zoster or cytomegalovirus disease; or developing HIV integrase
inhibitors. The Company recognizes that there are some companies who provide many
products and services, some of which may be competitive and some which may not be.
Accordingly, this covenant only prohibits Executive from performing the same or
substantially the same services for that section, division, group, subsidiary, affiliate
or operating unit of a competitor that actually develops those compounds named in Section
8(a) (i) (A), (B) or (C).
(ii) solicit for employment any employee of the Company who was employed by the
Company (or any subsidiary) during the Executive’s employment with the Company and with
whom the Executive had contact during the last year of his employment with the Company.
(b) If any of the restrictions contained in this Section 8 shall be deemed by any court of
competent jurisdiction to be unenforceable by reason of the extent, duration or geographical scope
thereof, or otherwise, then the parties agree that such court shall modify such restriction, only
to the extent necessary to render it enforceable and, in its reduced form, such restriction shall
then be enforced, and in its reduced form this Section 8 shall be enforceable in the manner
contemplated hereby.
(c) The Executive and the Company agree to revise the specific
12
description of the Company’s line of business set forth in Section 8(a) as appropriate to
reflect any material change in the Company’s business due to an in-licensing, merger, acquisition
or similar strategic transaction.
Section 9. Company Resources.
Executive may not use any of the Company’s (or any affiliate’s) equipment for personal
purposes without written permission from the Company. The Executive may not give access to the
Company’s (or any affiliate’s) offices or files to any person not in the employ of the Company
without written permission of the Company.
Section 10. Injunctive Relief.
Executive understands and agrees that the Company will suffer irreparable harm in the event
that the Executive breaches any of the Executive’s obligations under Sections 6, 7, 8 or 9 hereof
and that monetary damages will be inadequate to compensate the Company for such breach.
Accordingly, the Executive agrees that, in the event of a breach or threatened breach by the
Executive of any of the provisions of Sections 6, 7, 8 or 9 hereof, the Company shall be entitled
to seek appropriate injunctive relief, in addition to any other in addition to any other rights,
remedies or damages available to the Company at law or in equity.
Section 11. Severability.
In the event any of the provisions of this Agreement shall be held by a court or other
tribunal of competent jurisdiction to be unenforceable, the other provisions of this Agreement
shall remain in full force and effect.
Section 12. Survival.
Sections 1(d) and 4 through 16 shall survive the termination of this Agreement for any reason.
Section 13. Representations, Warranties, and Covenants.
Executive represents, warrants, and covenants that the Executive’s performance of all the
terms of this Agreement and any services to be rendered as an employee of the Company do not and
will not breach any fiduciary or other duty or any covenant, agreement or understanding (including,
without limitation, any agreement relating to any proprietary information, knowledge or data
acquired by the Executive in confidence, trust or otherwise prior to the Executive’s employment by
the Company) to which the Executive is a party or by the terms of which the Executive may be bound.
The Executive further covenants and agrees not to enter into any agreement or understanding,
either written or oral, in conflict with the provisions of this Agreement.
Section 14. Accounting for Profits; Indemnification.
Executive covenants and agrees that, if the Executive shall violate any of the Executive’s
covenants or agreements contained in Sections 6, 7, 8 or 9 hereof, the Company shall be entitled to
an accounting and repayment of all profits, compensation, royalties, commissions, remunerations or
benefits which the Executive directly or
13
indirectly shall have realized or may realize relating to, growing out of or in connection
with any such violation; such remedy shall be in addition to and not in limitation of any
injunctive relief or other rights or remedies to which the Company is or may be entitled at law or
in equity or otherwise under this Agreement. The Executive hereby agrees to defend, indemnify and
hold harmless the Company against and in respect of: (a) any and all losses and damages resulting
from, relating or incident to, or arising out of any misrepresentation or breach by the Executive
of any of the Executive’s representations, warranties, covenants or agreements made or contained in
this Agreement; and (b) any and all actions, suits, proceedings, claims, demands, judgments, costs
and expenses (including reasonable attorneys’ fees) incident to the foregoing.
Section 15. General.
This Agreement may be modified only in writing signed by the parties hereto. Failure to
enforce any provision of the Agreement shall not constitute a waiver of any term herein. The
Executive agrees that he will not assign, transfer, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this Agreement. Any
purported assignment, transfer, or disposition shall be null and void. Nothing in this Agreement
shall prevent the consolidation of the Company with, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets, or the assignment
by the Company of this Agreement and the performance of its obligations hereunder. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and
their respective heirs, legal representatives, successors, and permitted assigns, and shall not
benefit any person or entity other than those enumerated above. The use of any gender herein shall
be applicable to all genders.
Section 16. Executive Acknowledgment.
Executive acknowledges (a) that he has consulted with or has had the opportunity to consult
with independent counsel of her own choice concerning this Agreement and has been advised to do so
by the Company, and (b) that he has read and understands the Agreement, is fully aware of its legal
effect, and has entered into it freely based on his own judgment.
[Signatures appear on the following page.]
14
Appendix I
Job Description
Senior Vice President, Drug Development
Senior Vice President, Drug Development
The Senior Vice President has overall responsibility for activities related to all drug development
conducted by Inhibitex for the development of products with Regulatory (Federal and International)
requirements.
This position will be responsible for: management of project/project teams through the
developmental cycle; implementing and communicating the strategic and technical direction for the
product/project team; identifying the needs for specific projects and programs and managing their
development and execution; and working closely with the clinical development group and others for
the overall launch plan for new products. .
RESPONSIBILITIES:
| • | Provide managerial oversight and leadership for the drug development team. | ||
| • | Develop and implement the research, marketing, project development and operational goals; provide integration and coordination of research and business development activities. | ||
| • | Provide management oversight to research programs consisting of multiple technologies and capabilities that may be only broadly related. | ||
| • | Provide administrative management by approving capital and major operating expenditures consistent with operating plans; approve major proposals; allocate funding to business development and other special purposes. | ||
| • | Provide management oversight for the Company’s implementation of operational procedures and practices. | ||
| • | Propose, develop, and implement changes in practices and procedures in order to deliver the highest quality research, products, and services. | ||
| • | Manage staff by hiring, developing, appraising, and motivating division management and technical staff. Approve new hires, terminations, disciplinary actions, promotions, and salary adjustments for all staff. | ||
| • | Perform investor relations and civic activities. | ||
| • | Any other responsibilities assigned by the CEO. |
REQUIREMENTS:
| • | MS or PhD in engineering or applied sciences, with significant experience in business management including full budget responsibilities | |
| • | Strong knowledge of and contacts in the pharmaceutical industry. | |
| • | Possess sufficient experience in financial management to ensure that budgets are realistically established and attained. | |
| • | Significant experience in development and/or Regulatory approval of new drugs or biologic agents. | |
| • | Excellent communication skills both written and verbal. | |
| • | Demonstrated leadership skills in managing teams. |
| Inhibitex, Inc. |
||||
| By: | ||||
| Xxxxxxx X. Xxxxx | ||||
| Date: | Xxxxx Xxxxxx | |||
A-1
