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EXHIBIT 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of March 1, 1997, is made by and between
NEUROCRINE BIOSCIENCES, INC., a Delaware corporation (hereinafter the
"Company"), and XXXXX X. XX XXXXX (hereinafter "Executive").
R E C I T A L S
WHEREAS, the Company and Executive entered into an employment agreement
as of July 1, 1993;
WHEREAS, the Company and Executive wish to set forth in this Agreement
the terms and conditions under which Executive is to be continued to be
employed by the Company on and after the date hereof; and
WHEREAS, the Company wishes to be assured that Executive will be
available to the Company for an additional three (3) years after March 1, 1997.
NOW, THEREFORE, the Company and Executive, in consideration of the
mutual promises set forth herein, agree as follows:
ARTICLE 1
TERM OF AGREEMENT
1.1 Commencement Date. Executive's employment with the Company under
this Agreement shall commence as of March 1, 1997 ("Commencement Date") and
this Agreement shall expire after a period of three (3) years from the
Commencement Date, unless terminated earlier pursuant to Article 6.
1.2 Renewal. The term of this Agreement shall be automatically renewed
for successive, additional three (3) year terms unless either party delivers
written notice to the other at least ninety (90) days prior to the expiration
date of this Agreement of an intention to terminate this Agreement or to renew
it for a term of less than three (3) years but not less than (1) year. If the
term of this Agreement is renewed for a term of less than three (3) years, then
thereafter the term of this Agreement shall be automatically renewed for
successive, additional identical terms unless either party delivers a written
notice to the other at least ninety (90) days prior to a terminate date of this
Agreement of an intention to terminate
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this Agreement or to renew it for a different term of not less than one (1)
year.
If this Agreement has not been terminated earlier pursuant to Article 6
and this Agreement is not renewed at the end of any term hereof by the Company
for any reason except death, disability or retirement or other voluntary
resignation of Executive, then (a) the Company shall pay to Executive all
"Accrued Compensation" (as such term is defined in Section 6.1); (b) the Company
shall continue to pay Executive as provided herein Executive's Base Salary over
the period equal to twelve (12) months from the date of such nonrenewal of this
Agreement as severance compensation; (c) the nonvested portion of the one-time
contract renewal stock option grant described in Section 3.2 shall be fully
vested; and (d) the Company shall pay all costs which the Company otherwise
would have incurred to maintain all of Executive's health and welfare, and
retirement benefits (either on the same or substantially equivalent terms and
conditions) if the Executive had continued to render services to the Company for
twelve (12) continuous months after the date of such nonrenewal of this
Agreement. The Company shall have no further obligations to Executive other than
those set forth in the preceding sentence. During such period when such Base
Salary severance compensation is being paid to Executive, Executive shall not
(i) engage, directly or indirectly, in providing services to any other business
program or project that is competitive to a program or project being conducted
by the Company or any Affiliated Company at the time of non-renewal (provided
that Executive may own less than two percent (2%) of the outstanding securities
of any publicly traded corporation), or (ii) solicit or attempt to solicit on
behalf of himself or any other party any employee or exclusive consultant to the
Company.
ARTICLE 2
EMPLOYMENT DUTIES
2.1 Title/Responsibilities. Executive hereby accepts employment with
the Company pursuant to the terms and conditions hereof. Executive agrees to
serve the Company in the position of Executive Vice President, research and
Development. Executive shall report to the President and Chief Executive
Officer. Executive shall have the powers and duties commensurate with such
position, including but not limited to hiring personnel necessary to carry out
the responsibilities for such position as set forth in the annual business plan
approved by the Board of Directors (the "Board").
2.2 Full Time Attention. Executive shall devote his best efforts and
his full business time and attention to the performance of the services
customarily incident to such office and to such other services as the Board may
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reasonably request, provided that Executive may also serve on the Boards of
Directors of one or more other companies with the prior written consent of the
Board at a regularly scheduled meeting of the Board.
2.3 Other Activities. Except upon the prior written consent of the
Board of Directors, Executive shall not during the period of employment engage,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that is or may be competitive with, or that might place
him in a competing position to that of the Company or any other corporation or
entity that directly or indirectly controls, is controlled by, or is under
common control with the Company (an "Affiliated Company"), provided that
Executive may own less than two percent of the outstanding securities of any
such publicly traded competing corporation.
ARTICLE 3
COMPENSATION
3.1 Base Salary. Executive shall receive a Base Salary at an annual
rate of Two Hundred Sixty-One Thousand Seven Hundred Sixteen Dollars ($261,716),
payable every two weeks in equal installments in accordance with the Company's
normal payroll practices. The Company's Board of Directors shall provide
Executive with annual performance reviews, and, thereafter, Executive shall be
entitled to such increase in Base Salary as the Board of Directors may from time
to time establish in its sole discretion.
3.2 One-Time Renewal Bonus. The Company shall provide Executive a
one-time contract renewal stock option grant in the form of an option to
purchase fifty thousand (50,000) shares of the common stock of the
Company, the maximum number of which shall be pursuant to Incentive Stock
Options under the Neurocrine BioSciences, Inc. Stock Option/Stock Issuance Plan.
The entire number of shares granted under such option, both Incentive and
Non-Statutory, shall vest over four (4) years, with such vesting to be in
accordance with the terms of the Neurocrine BioSciences, Inc. Stock Option/Stock
Issuance Plan. The exercise price of this option shall be equal to the fair
market value of the Company's common stock on the date of grant, which shall be
the date this Agreement is approved by the Board or the Compensation Committee
of the Board.
3.3 Incentive Bonus. In addition to any other bonus Executive shall
be awarded by the Company's Board of Directors, the Company shall pay Executive
a bonus payment of up to fifty thousand dollars ($50,000) annually based upon
achievement by the Company against 6 to 8 impact goals approved by the Board of
Directors annually. Such goals shall be set forth in writing by the Board
within ninety (90) days after the start of the
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Company's fiscal year and a copy shall be delivered to Executive within fifteen
(15) days thereafter. The Board of Directors shall, in their sole discretion,
determine whether such impact goals have been obtained.
3.4 Withholdings. All compensation and benefits payable to Executive
hereunder shall be subject to all federal, state, local and other withholdings
and similar taxes and payments required by applicable law.
ARTICLE 4
EXPENSE ALLOWANCES AND FRINGE BENEFITS
4.1 Vacation. Executive shall be entitled to the greater of three (3)
weeks of annual paid vacation or the amount of annual paid vacation to which
Executive may become entitled under the terms of Company's vacation policy for
employees during the term of this Agreement.
4.2 Benefits. During the term of this Agreement, the Company shall
also provide Executive with the usual health insurance benefits it generally
provides to its other senior management employees. As Executive becomes eligible
in accordance with criteria to be adopted by the Company, the Company shall
provide Executive with the right to participate in and to receive benefits from
life, accident, disability, medical, pension, bonus, stock, profit-sharing and
savings plans and similar benefits made available generally to employees of the
Company as such plans and benefits may be adopted by the Company, provided that
Executive shall during the term of this Agreement be entitled to receive at a
minimum standard medical and dental benefits similar to those typically afforded
to Chief Executive Officers in similar sized biotechnology companies. The amount
and extent of benefits to which Executive is entitled shall be governed by the
specific benefit plan as it may be amended from time to time.
4.3 Relocation Loan. The Company has previously loaned to Executive
the principal amount of $37,500 relating to certain relocation expenses. The
parties agree that the terms of the loan shall be changed as of the date of this
Agreement such that the loan shall have a term ending October 15, 1999 and an
interest rate of six percent (6%) per annum. Executive agrees to execute a
Promissory Note in the form attached hereto as Exhibit A. Such principal
indebtedness and all interest accrued to that date shall be forgiven ratably on
each of October 15, 1997, October 15, 1998 and October 15, 1999 as long as
Executive continues to provide services for the Company until the relevant date.
If Executive's employment is terminated for Cause (as defined in Section 6.3
below), or as a result of death, disability, retirement or other voluntary
resignation prior to
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October 15, 1999, the outstanding balance shall immediately be due and payable.
4.4 Business Expense Reimbursement. During the term of this Agreement,
Executive shall be entitled to receive proper reimbursement for all reasonable
out-of-pocket expenses incurred by him (in accordance with the policies and
procedures established by the Company for its senior executive officers) in
performing services hereunder.
Executive agrees to furnish to the Company adequate records and other
documentary evidence of such expenses for which Executive seeks reimbursement.
Such expenses shall be reimbursed and accounted for under the policies and
procedures established by the Company and the Audit Committee of the Board of
Directors.
ARTICLE 5
CONFIDENTIALITY
5.1 Proprietary Information. Executive represents and warrants that he
has previously executed and delivered to the Company the Company's standard
Proprietary Information and Inventions Agreement in form acceptable to the
Company's counsel.
5.2 Return of Property. All documents, records, apparatus, equipment
and other physical property which is furnished to or obtained by Executive in
the course of his employment with the Company shall be and remain the sole
property of the Company. Executive agrees that, upon the termination of his
employment, he shall return all such property (whether or not it pertains to
Proprietary Information as defined in the Proprietary Information and Inventions
Agreement), and agrees not to make or retain copies, reproductions or summaries
of any such property.
ARTICLE 6
TERMINATION
6.1 By Death. The period of employment shall terminate automatically
upon the death of Executive. In such event, the Company shall pay to Executive's
beneficiaries or his estate, as the case may be, any accrued Base Salary, any
bonus compensation to the extent earned, any vested deferred compensation (other
than pension plan or profit-sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Company in which Executive is a participant to the full extent of Executive's
rights under such plans, any accrued vacation pay and any appropriate business
expenses
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incurred by Executive in connection with his duties hereunder, all to the date
of termination (collectively "Accrued Compensation"), but no other compensation
or reimbursement of any kind, including, without limitation, severance
compensation, and thereafter, the Company's obligations hereunder shall
terminate.
6.2 By Disability. If Executive is prevented from properly
performing his duties hereunder by reason of any physical or mental incapacity
for a period of 120 consecutive days, or for 180 days in the aggregate in any
365-day period, then, to the extent permitted by law, the Company may terminate
the employment of Executive at such time. In such event, the Company shall pay
to Executive all Accrued Compensation, and shall continue to pay to Executive
the Base Salary until such time (but not more than 90 days following
termination), as Executive shall become entitled to receive disability insurance
payments under the disability insurance policy maintained by the Company, but no
other compensation or reimbursement of any kind, including without limitation,
severance compensation, and thereafter the Company's obligations hereunder shall
terminate. Nothing in this Section shall affect Executive's rights under any
disability plan in which he is a participant.
6.3 By Company for Cause. The Company may terminate the Executive's
employment for Cause (as defined below) without liability at any time with or
without advance notice to Executive. The Company shall pay Executive all Accrued
Compensation, but no other compensation or reimbursement of any kind, including
without limitation, severance compensation, and thereafter the Company's
obligations hereunder shall terminate. Termination shall be for "Cause" in the
event of the occurrence of any of the following: (a) any intentional action or
intentional failure to act by Executive which was performed in bad faith and to
the material detriment of the Company; (b) Executive intentionally refuses or
intentionally fails to act in accordance with any lawful and proper direction or
order of the Board; (c) Executive willfully and habitually neglects the duties
of employment; or (d) Executive is convicted of a felony crime involving moral
turpitude, provided that in the event that an of the foregoing events is capable
of being cured, the Company shall provide written notice to Executive describing
the nature of such event and Executive shall thereafter have ten (10) business
days to cure such event.
6.4 Termination Without Cause. At any time, the Company may
terminate the employment of Executive without liability other than as set forth
below, for any reason not specified in Section 6.3 above, by giving thirty (30)
days advance written notice to Executive. If the Company elects to terminate
Executive pursuant to this Section 6.4, (a) the Company shall continue to pay to
Executive all Accrued Compensation; (b) the Company shall continue to pay to
Executive as provided herein Executive's Base Salary over the period equal to
twelve (12) months from the date of such termination as severance compensation;
(c) if
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Executive's employment terminates in the second half of the Company's fiscal
year, the Company shall make a lump-sum payment to Executive in an amount equal
to a pro rata portion of the Executive's annual actual cash incentive bonus for
Company's fiscal year preceding the year of termination based on the number of
completed months of Executive's employment in the fiscal year divided by twelve
(12); (d) the vesting of all outstanding stock options held by Executive shall
be accelerated so that the amount of shares vested under such options shall
equal that number of shares which would have been vested if the Executive had
continued to render services to the Company for twelve (12) continuous months
after the date of his termination of employment; and (e) the Company shall pay
all costs which the Company would otherwise have incurred to maintain all of
Executive's health and welfare, and retirement benefits (either on the same or
substantially equivalent terms and conditions) if the Executive had continued
to render services to the Company for twelve (12) continuous months after the
date of his termination of employment. The Company shall have no further
obligations to Executive other than those set forth in the preceding sentence.
During the period when such Base Salary severance compensation is being paid to
Executive, Executive shall not (i) engage directly or indirectly, in providing
services to any other business program or project that is competitive to a
program or project being conducted by the Company or any Affiliated Company at
the time of such employment termination (provided that Executive may own less
than two percent (2%) of the outstanding securities of any publicly traded
corporation), or (ii) solicit, or attempt to solicit on behalf of himself or
any other party any employee or exclusive consultant of the Company. If the
Company terminates this Agreement or the employment of Executive with the
Company other than pursuant to Section 6.1, 6.2 or 6.3, then this Section 6.4
shall apply.
6.5 Constructive Termination. A Constructive Termination shall be
deemed to be a termination of employment of Executive without cause pursuant to
Section 6.4. For purposes of this Agreement, a "Constructive Termination" means
that the Executive voluntarily terminates his employment after any of the
following are undertaken without Executive's express written consent:
(a) the assignment to Executive of any duties or
responsibilities which result in any diminution or adverse change of
Executive's position, status or circumstances of employment; or any removal of
Executive from or any failure to re-elect Executive to any of such positions,
except in connection with the termination of his employment for death,
disability, retirement, fraud, misappropriation, embezzlement (or any other
occurrence which constitutes "Cause" under Section 6.3) or any other voluntary
termination of employment by Executive other than a Constructive Termination;
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(b) a reduction by the Company in Executive's annual Base
Salary by greater than five percent (5%);
(c) a relocation of Executive, or the Company's principal
executive offices if Executive's principal office is at such offices, to a
location more than forty (40) miles from the location at which Executive is
then performing his duties, except for an opportunity to relocate which is
accepted by Executive in writing;
(d) any material breach by the Company of any provision of
this Agreement; or
(e) any failure by the Company to obtain the assumption of
this Agreement by any successor or assign of the Company.
6.6 Termination Following Change in Control. In the event of a
non-renewal of this Agreement, a termination without Cause or a Constructive
Termination within eighteen (18) months following a Change in Control,
Executive shall receive the same benefits package as Executive would have
received upon a termination without Cause (except that the payment of Base
Salary shall be made in the form of a lump sum), and in addition, the vesting
of all outstanding stock options held by Executive shall be accelerated so that
the options are immediately exercisable in full.
6.7 Change in Control. For purposes of this Agreement, a "Change in
Control" shall have occurred if at any time during the term of Executive's
employment hereunder, any of the following events shall occur:
(a) The Company is merged, or consolidated, or reorganized
into or with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than 50% of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
voting securities of the Company immediately prior to such transaction;
(b) The Company sells all or substantially all of its assets
or any other corporation or other legal person and thereafter, less than 50% of
the combined voting power of the then-outstanding voting securities of the
acquiring or consolidated entity are held in the aggregate by the holders of
voting securities of the Company immediately prior to such sale;
(c) There is a report filed after the date of this Agreement
on Schedule 13 D or Schedule 14 D-1 (or any successor schedule, form or report,
each as promulgated pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") disclosing that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
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beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act)
representing 50% or more of the combined voting power of the then-outstanding
voting securities of the Company;
(d) The Company shall file a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing in
response to item 1 of Form 8-X thereunder or Item 5(f) of Schedule 14 A
thereunder (or any successor schedule, form or report or item therein) that the
change in control of the Company has or may have occurred or will or may occur
in the future pursuant to any then-existing contract or transaction; or
(e) During any period of two consecutive years, individuals who at
the beginning of any such period constitute the directors of the Company cease
for any reason to constitute at least a majority thereof unless the election to
the nomination for election by the Company's shareholders of each director of
the Company first elected during such period was approved by a vote of at least
two-thirds of the directors of the Company then still in office who were
directors of the Company at the beginning of such period.
6.8 Termination by Executive. At any time, Executive may terminate
his employment by giving thirty (30) days advance written notice to the
Company. The Company shall pay Executive all Accrued Compensation, but no other
compensation or reimbursement of any kind, including without limitation,
severance compensation, and thereafter the Company's obligations hereunder
shall terminate.
6.9 Mitigation. Except as otherwise specifically provided herein,
Executive shall not be required to mitigate the amount of any payment provided
under this Agreement by seeking other employment or self-employment, nor shall
the amount of any payment provided for under this Agreement be reduced by any
compensation earned by Executive as a result of employment by another employer
or through self-employment or by retirement benefits after the date of
Executive's termination of employment from the Company.
6.10 Coordination. If upon termination of employment Executive
becomes entitled to rights under other plans, contracts or arrangements entered
into by the Company, this Agreement shall be coordinated with such other
arrangements so that Executive's rights under this Agreement are not reduced,
and that any payments under this Agreement offset the same types of payments
otherwise provided under such other arrangements, but do not otherwise reduce
any payments or benefits under such other arrangements to which Executive
becomes entitled.
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ARTICLE 7
GENERAL PROVISIONS
7.1 Governing Law. The validity, interpretation, construction and
performance of this Agreement and the rights of the parties thereunder shall be
interpreted and enforced under California law without reference to principles
of conflicts of laws. The parties expressly agree that inasmuch as the
Company's headquarters and principal place of business are located in
California, it is appropriate that California law govern this Agreement.
7.2 Assignment; Successors; Binding Agreement.
7.2.1 Executive may not assign, pledge or encumber his interest in
this Agreement or any part thereof.
7.2.2 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by operation of
law or by agreement in form and substance reasonably satisfactory to Executive,
to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place.
7.2.3 This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributee, devisees and legatees. If
Executive should die while any amount is at such time payable to him hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legates or other
designee or, if there be no such designee, to his estate.
7.3 Certain Reduction of Payments. In the event that any payment or
benefit received or to be received by Executive under this Agreement would
result in all or a portion of such payment to be subject to the excise tax on
"golden parachute payments" under Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), then Executive's payment shall be either (a) the
full payment or (b) such lesser amount which would result in no portion of the
payment being subject to excise tax under Section 4999 of the Code, whichever
of the foregoing amounts, taking into account the applicable Federal, state,
and local employment taxes, income taxes, and the excise tax imposed by Section
4999 of the Code, results in the receipt by Executive on an after-tax basis, of
the greatest amount of the payment notwithstanding that all or some portion of
the payment may be taxable under Section 4999 of the Code.
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7.4 Notice. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by certified
or registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
To the Company: Neurocrine Biosciences, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Chairman of Compensation
Committee
To Executive: Xxxxx X. Xx Xxxxx
0000 Xxxxx Xxxx
Xxx Xxx, XX 00000
7.5 Modification; Waiver; Entire Agreement. No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by Executive and such
officer as may be specifically designated by the Board of the Company. No
waiver by either party hereto at any time of any breach by the other party of,
or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
This Agreement supersedes and amends and restates the Employment
Agreement dated July 1, 1993 as amended and supplemented between the Company
and the Executive.
7.6 Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
7.7 Controlling Document. Except to the extent described in
Section 6.10, in case of conflict between any of the terms and conditions of
this Agreement and the documents herein referred to, the terms and conditions
of this Agreement shall control.
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7.8 Executive Acknowledgment. Executive acknowledges (a) that he has
consulted with or has had the opportunity to consult with independent counsel of
his 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.
7.9 Remedies.
7.9.1 Injunctive Relief. The parties agree that the services to be
rendered by Executive hereunder are of a unique nature and that in the event of
any breach or threatened breach of any of the covenants contained herein, the
damage or imminent damage to the value and the goodwill of the Company's
business will be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties agree that the
Company shall be entitled to injunctive relief against Executive in the event of
any breach or threatened breach of any such provisions by Executive, in addition
to any other relief (including damages) available to the Company under this
Agreement or under law.
7.9.2 Exclusive. Both parties agree that the remedy specified in
Section 7.9.1 above is not exclusive of any other remedy for the breach by
Executive of the terms hereof.
7.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
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7.11 Prevailing Party Expenses. In the event that any action or
proceeding is commenced to enforce the provisions of this Agreement, the court
adjudicating such action or proceeding shall award to the prevailing party all
costs and expenses thereof, including, but not limited to, reasonable
attorneys' fees, court costs, and all other related expenses.
Executed by the parties as of the day and year first above written.
NEUROCRINE BIOSCIENCES, INC.
By /s/ XXXX XXXXX
--------------------------------
Its CEO
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EXECUTIVE:
/s/ XXXXX X. XX XXXXX
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Xxxxx X. Xx Xxxxx
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EXHIBIT A
PROMISSORY NOTE
$37,500.00 March 1, 1997
Xxxxx X. Xx Xxxxx ("Obligor"), for value received, hereby promises to
pay to the order of Neurocrine Biosciences, Inc., a Delaware corporation
("Payee" or the "Company"), at its principal office, the principal sum of
Thirty-Seven Thousand Five Hundred Dollars ($37,500.00) with interest thereon
at the rate of six percent (6%) per annum on the unpaid balance of the
principal sum. All principal together with all unpaid accrued interest shall be
due and payable on October 15, 1999. All payments hereunder shall first be
applied towards the payment of accrued and unpaid interest and then shall be
applied towards outstanding principal. This Note may be prepaid, in whole or in
part, at any time without premium or penalty.
The principal sum of this Note and all interest accrued to that date
shall be forgiven ratably on each of October 15, 1997, October 15, 1998 and
October 15, 1999 as long as Obligor continues to provide services for the
Company until the relevant date. This Note shall be due and payable in full
immediately following the termination of Obligor's employment with the Company
prior to October 15, 1999 as a result of death, disability, retirement or other
voluntary resignation, or for Cause as set forth in the Employment Agreement
dated as of March 1, 1997 between the Company and Obligor.
In the event that Obligor fails to make payment on any date for payment
hereinabove specified of all principal and interest due hereunder on such date,
Obligor shall be deemed to be in default hereunder. In the event of such
default, Payee may, at Payee's option and in Payee's sole discretion, fifteen
(15) days after giving notice of default to Obligor, accelerate the maturity of
all amounts due under this Note by giving notice of such acceleration if such
default has not been cured in such fifteen (15) day period.
This Note currently is unsecured. However, the Company at its
discretion may secure this Note with a deed of trust encumbering Obligor's
principal residence. In the event of a default hereunder, Payee in addition to
its rights to foreclose on such principal residence shall have full recourse to
all other remedies available to it. The Company or other holder of this Note
shall have full recourse against Obligor, and shall not be required to proceed
against such principal residence or other collateral securing this Note in the
event of default.
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Obligor waives presentment, demand for performance, notice of
nonperformance, protest, notice of protest, and notice of dishonor. No delay on
the part of Payee in exercising any right hereunder shall operate as a waiver of
such right under this Note. This Note is being delivered in and shall be
construed in accordance with the laws of the State of California.
If the indebtedness represented by this Note or any part thereof is
collected at law or in equity or in bankruptcy, receivership or other judicial
proceedings, or if this Note is placed in the hands of attorneys for collection
after default, Obligor agrees to pay, in addition to the principal and interest
payable hereon, reasonable attorneys' fees and costs incurred by Payee.
Any notice or other communication (except payment) required or permitted
hereunder shall be in writing and shall be deemed to have been given upon
delivery if personally delivered or upon deposit if deposited in the United
States mail for mailing by certified mail, postage prepaid, and addressed as
follows:
If to Payee: Neurocrine Biosciences, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Chairman, Compensation Committee
If to Obligor: Xxxxx X. Xx Xxxxx
0000 Xxxxx Xxxx
Xxx Xxx, XX 00000
Any payment shall be deemed made upon receipt by Payee. Payee or Obligor
may change their address for purposes of this paragraph by giving to the other
party notice in conformance with this paragraph of such new address.
OBLIGOR:
/s/ XXXXX X. XX XXXXX
----------------------
Xxxxx X. Xx Xxxxx
