Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
OF
XXXXX X. XXXXXXXXXXXXXX, PhD.
This amended and restated employment agreement is entered into effective July 1,
2001 by and between Xxxxx X. Xxxxxxxxxxxxxx, PhD. ("Xxxxxxxxxxxxxx") and
Ribozyme Pharmaceuticals, Inc., a Delaware corporation ("the Company"). This
agreement amends and restates all prior and existing employment agreements
between the parties.
Whereas Xxxxxxxxxxxxxx has resigned as President and Chief Executive Officer of
the Company; and
Whereas the Company wishes to continue the employment of Xxxxxxxxxxxxxx, and
Xxxxxxxxxxxxxx is willing to continue in the employment of the Company, on the
terms and conditions set forth in this Agreement;
Now therefore the parties agree as follows:
1. Duties of Xxxxxxxxxxxxxx. Xxxxxxxxxxxxxx shall assume the position of
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Chairman of the Board of the Company and a member of the Board's Executive
Committee upon his election to such positions by the Company's Board of
Directors and shall perform services for the Company customary for such position
as well as other duties assigned to him by the Company's Board of Directors or
as requested by the Company's President and CEO. Xxxxxxxxxxxxxx shall perform
such services as a regular employee of the Company until January 1, 2002, and
thereafter as a consultant to the Company on a part time as needed basis.
Xxxxxxxxxxxxxx shall not have the powers or responsibilities of an executive
officer of the Company.
2. Compensation. In consideration for the services to be performed by
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Xxxxxxxxxxxxxx through 2001, Xxxxxxxxxxxxxx shall be paid a salary effective as
of the Effective Date of $13,541.67 per month payable in accordance with the
Company's customary payroll practices. In addition, Xxxxxxxxxxxxxx shall be
entitled to a bonus for the year ended December 31, 2001, in an amount up to
$97,500 depending upon the achievement of certain performance goals and in
particular the successful transition of management of the Company to
Xxxxxxxxxxxxxx'x successor as President and CEO. From and after January 31, 2001
Xxxxxxxxxxxxxx shall be compensated for any consulting engagement he undertakes
for the Company at a rate to be negotiated, but not less than $1,500 per day
plus expenses.
3. Benefits. During the term of his employment with the Company,
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Xxxxxxxxxxxxxx will be entitled to participate in all health, insurance, stock,
pension and profit sharing plans made available to RPI executives including the
following:
(a) Health and major medical insurance covering Xxxxxxxxxxxxxx, his spouse and
dependents (as defined under the policies of such insurance) under the plan
maintained by the Company for
its senior management employees with coverage for Xxxxxxxxxxxxxx'x spouse and
dependents paid in accordance with the Company's policies;
(b) Long-term disability insurance coverage under the plan maintained by the
Company for its senior management employees; and
(c) Short-term disability coverage under the plan maintained by the Company for
its senior management employees.
4. Expenses. The Company shall promptly reimburse Xxxxxxxxxxxxxx for all
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ordinary, customary and necessary expenses incurred by him in the performance of
his duties, provided such expenses are incurred and accounted for in accordance
with policies and procedures established by the Company.
5. Support Services. As long as Xxxxxxxxxxxxxx is employed as an employee or
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consultant to the Company, the Company shall provide him with appropriate office
space and secretarial support.
6. Vacation. Each year of his employment with the Company, Xxxxxxxxxxxxxx
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shall be entitled to one month's vacation, or as otherwise mutually agreed, at
full salary. Xxxxxxxxxxxxxx shall take vacation at such time or times as shall
be compatible with the Company's best interests and the conduct of its business.
7. Options. Executive's stock options will continue to vest through the end of
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as long as Xxxxxxxxxxxxxx is employed by the Company or serving as a member of
the Board of Directors of the Company and will be exercisable for 90 days
following the later of the termination of Executive's employment or service on
the Board of Directors of the Company . In the event of a Change of Control (as
defined below) prior to the termination of Executive's employment or service on
the Board of Directors of the Company, all stock options held by Executive shall
vest and shall be immediately exercisable. As used herein, the term "Change of
Control" shall mean the occurrence with respect to the Company of any of the
following events:
(a) An acquisition (other than directly from the Company) of any voting
securities of the Company (the "Voting Securities") by any "Person" (as the term
Person is used for purposes of Section 13 (d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of the
combined voting power of the then outstanding Voting Securities; provided,
however, that in determining whether a Change of Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change of
Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (A) the
Company or (B) any subsidiary or (ii) the Company or any Subsidiary;
(b) The individuals who, as of the date hereof, are members of the Board (the
"Incumbent Board"), cease for any reason to constitute at least two-thirds of
the Board; provided, however,
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that if the election or nomination for election by the Company's stockholders of
any new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered as
a member of the Incumbent Board; provided, further, however, that no individual
shall be considered a member of the Incumbent Board if (1) such individual
initially assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy Contest or
(2) such individual was designated by a Person who has entered into an agreement
with the Company to effect a transaction described in clause (i) or (iii) of
this paragraph; or
(c) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization involving the Company, unless,
(A) The stockholders of the Company immediately before such merger,
consolidation or reorganization, own, directly or indirectly, immediately
following such merger, consolidation or reorganization, at least seventy-five
percent (75%) of the combined voting power of the outstanding Voting Securities
of the corporation (the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities immediately before such
merger, consolidation or reorganization;
(B) The individuals who were members of the Incumbent Board immediately prior
to the execution of the agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation; and
(C) No Person (other than the Company, any Subsidiary, any employee benefit
plan (or any trust forming a part thereof) maintained by the Company, the
Surviving Corporation or any Subsidiary, or any Person who, immediately prior to
such merger, consolidation or reorganization, had Beneficial Ownership of fifty
percent (50%) or more of the then outstanding Voting Securities) has Beneficial
Ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporation's then outstanding Voting Securities.
(ii) A complete liquidation or dissolution of the Company; or
(iii) An agreement for the sale or other disposition of all or substantially all
of the assets of the Company to any Person (other than a transfer to a
Subsidiary)
Notwithstanding the foregoing, a Change of Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company which, by reducing
the number of Voting Securities outstanding, increased the proportional number
of shares Beneficially Owned by the Subject Person, provided that if a Change of
Control would occur (but for the operation of this sentence) as a result of the
acquisition of Voting Securities by the Company, and after such share
acquisition by the
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Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities Beneficially Owned by the Subject Person, then a Change of
Control shall occur.
8. Exclusivity. Xxxxxxxxxxxxxx'x employment with the Company is not intended
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to be exclusive and Xxxxxxxxxxxxxx is entitled to accept other part time
employment or consulting engagements and to engage in other business activities
as long as such activities to not interfere with or create a conflict of
interest with his duties under this Agreement.
9. Confidentiality. Xxxxxxxxxxxxxx acknowledges that non-public information
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concerning the business and activities of the Company is a valuable, special and
unique asset and that he will obtain access thereto as a result of his
employment by the Company. In recognition of the foregoing, during the
continuance of his employment and thereafter for a period of five years,
Xxxxxxxxxxxxxx agrees that he will not, directly or indirectly, reveal or
disclose to any person, firm, association, corporation or partnership
whatsoever, or use for his own benefit or the benefit of any other person, firm,
association, corporation or partnership, any non-public or confidential
knowledge or information concerning the Company, its business, finances,
research, or activities, including, without limitation, its business plans,
technology, manufacturing processes, research and development programs and
plans, formulas, formulations, discoveries, patents, patent applications,
licenses, contracts, marketing plans, systems, sources of supply of materials
used or sold by the Company, pricing information, the identities of former or
existing customers of the Company, and any other trade or business secrets and
confidential information of the the Company. For purposes of this paragraph,
confidential information shall also include any confidential information of any
third party revealed to Xxxxxxxxxxxxxx during his employment by the Company. For
purposes of this paragraph confidential information shall not include
information that is publicly available or otherwise known to the party to whom
such information is disclosed from sources other than Xxxxxxxxxxxxxx. Upon
termination of his employment with the Company, Xxxxxxxxxxxxxx will immediately
surrender to the Company all documents, records, computer tapes and disks
containing confidential information of the Company and all other property
belonging to the Company.
10. Non-Competition. Xxxxxxxxxxxxxx agrees that he will not, during the
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continuance of his employment, directly or indirectly, engage in any business or
activity which may or would compete with any aspect of the business of the
Company; except that nothing herein shall prevent Xxxxxxxxxxxxxx from owning
stock in any corporation, if Xxxxxxxxxxxxxx (together with his immediate family)
owns, directly or indirectly, less than 5% of the outstanding stock of such
corporation. Xxxxxxxxxxxxxx and the Company agree that the restrictions
contained in this Paragraph 10 are reasonable as to their operative periods of
time and geographic scope and are necessary for the purpose of preserving the
Company's good will, proprietary rights and going concern value. However, each
and every restriction is independent and severable from the other. Therefore, no
such restriction shall be affected or rendered unenforceable in toto or with
respect to any period of time or area by reason of the fact that, for any
reason, any other restriction may be determined unenforceable in whole or in
part. Thus, if a final judicial determination is made by a court of competent
jurisdiction that the period of time or territory or any other restriction
contained in this Agreement is unenforceable, the provisions of this Agreement
shall not be rendered void but shall be enforced as to such maximum period of
time and territory and to such other maximum extent as such court may judicially
determine or indicate to be enforceable.
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11. Termination. Xxxxxxxxxxxxxx'x employment shall be subject to termination as
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follows:
(a) Xxxxxxxxxxxxxx'x employment hereunder shall terminate upon his death.
(b) The Company may terminate Xxxxxxxxxxxxxx'x employment for any reason upon
30 days written notice.
(c) The Company may terminate Xxxxxxxxxxxxxx'x employment for cause upon
written notice delivered to Xxxxxxxxxxxxxx, which notice shall set forth the
reasons for termination. For purposes of this Agreement, the term "cause" shall
include (i) a material breach by Xxxxxxxxxxxxxx of his obligations hereunder or
a material breach of his fiduciary duties to the Company; (ii) theft, dishonesty
or criminal conduct by Xxxxxxxxxxxxxx; or (iii) an act by Xxxxxxxxxxxxxx
involving moral turpitude. Termination shall be effective forthwith in the case
of termination pursuant to clause (ii) or (iii) and upon the expiration of ten
(10) days after the date of notice from the Company in the case of termination
pursuant to clause (i) above.
12. Xxxxxxxxxxxxxx'x Rights Upon Termination of Employment. In the event of the
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termination of Xxxxxxxxxxxxxx'x employment, without regard to the reason for
such termination, Xxxxxxxxxxxxxx shall be entitled to receive the following
amounts:
(a) Salary and bonuses payable under Paragraph 2 accrued and owing prior to the
date of tennination which has not previously been paid;
(b) Benefits under any fringe benefit plan to the extent not paid for the then
current annual period, if any, applicable to such benefit plan (unless otherwise
provided by such plan), including accrued vacation, with the amount thereof
being prorated to reflect the number of days of such annual period during which
Xxxxxxxxxxxxxx was employed by the Company;
(c) Reimbursements under Paragraph 4 accrued and owing through the date of
termination; and
(d) In the event Xxxxxxxxxxxxxx'x employment is terminated pursuant to
Paragraph 10(a) or (b) prior to January 1, 2002, such compensation and benefits
that would have been payable under this Agreement through such date in such
amounts, and paid at such times, as they would have been paid had
Xxxxxxxxxxxxxx'x employment continued to such date.
13. Indemnification. The Company hereby agrees that during the term of this
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Agreement and thereafter it shall indemnify Xxxxxxxxxxxxxx for any claims,
losses or actions relating to his service to the ompany as an officer, director,
employee, consultant or agent of the Company to the fullest extent permitted
under the Company's Certificate of Incorporation and Bylaws and the applicable
laws of Delaware and in furtherance thereof shall advance to or on
Xxxxxxxxxxxxxx'x behalf all costs and expense of defending any such claim or
action to the fullest extent permitted under the Company's Certificate of
Incorporation and Bylaws and the applicable laws of Delaware. The foregoing
right to indemnification shall include, but not be limited to, indemnification
of Xxxxxxxxxxxxxx in connection with the legal action entitled In Re Ribozyme
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Pharmaceuticals, Inc. Securities Lititagation, Civil Action 99-B-2235, pending
in the United States District Court for the District of Colorado.
14. Assignment. This Agreement shall be binding upon and inure to the benefit
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of the Company, its successors and assigns, and shall be binding upon and inure
to the benefit of Xxxxxxxxxxxxxx. This Agreement shall be assigned to and
assumed by any person, firm or corporation which shall acquire or succeed to the
Company's business by merger, consolidation or otherwise.
15. Severability. The invalidity or unenforceability of any provision hereof
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shall in no way affect the validity or enforceability of any other provision.
16. Notices. Any notice required or permitted to be given under this Agreement
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shall be sufficient, if in writing and if sent by certified mail, by overnight
mail or delivery service, or by facsimile transmission (i) to his residence in
the case of Xxxxxxxxxxxxxx or (ii) to its principal office in the case of the
Company (attention President and Chief Executive Officer).
17. Entire Agreement. This Agreement embodies the entire and exclusive
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agreement of the parties. There are no promises, understandings, agreements,
obligations, terms or conditions other than those contained herein. This
Agreement shall supersede and nullify all previous agreements, representations
and communications of any type, whether verbal or written between the parties.
This Agreement cannot be changed or modified in any respect except by a writing
signed by both parties.
18. Text. Whenever the context permits, words in the singular or plural herein
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shall include both singular and plural. The references herein to the Company and
its rights and obligations shall be deemed references to and rights and
obligations of an assignee of this Agreement. The marginal headings are inserted
for convenience only and shall not form part of this Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
20. Governing Law. This Agreement shall be governed and construed in accordance
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with the laws of the State of Colorado.
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IN WITNESS WHEREOF, the Company and Xxxxxxxxxxxxxx have executed this Agreement
on the respective dates set forth below.
RIBOZYME PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxxx, Chairman of the Board
XXXXX X. XXXXXXXXXXXXXX, Ph.D.
/s/ Xxxxx X. Xxxxxxxxxxxxxx
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