Exhibit 10.9
SOMAXON PHARMACEUTICALS, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "AGREEMENT") made and entered into as of April
14, 2005, between SOMAXON PHARMACEUTICALS, INC., a Delaware corporation (the
"COMPANY"), and Xx. Xxxxxx Xxxxxxxxx who resides at 00000 Xxxxxxxxxx Xxx
("EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Executive and Executive desires to
accept employment with Company upon the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, and intending to be legally bound hereby, it is hereby
agreed as follows:
1. Position and Duties. Executive shall diligently and
conscientiously devote Executive's full business time, attention, energy, skill
and diligent efforts to the business of the Company and the discharge of
Executive's duties hereunder. Executive's duties under this Agreement shall be
to serve as SENIOR VICE PRESIDENT AND CHIEF MEDICAL OFFICER, with the
responsibilities, rights, authority and duties customarily pertaining to such
office and as may be established from time to time by or under the direction of
the Board of Directors of the Company (the "BOARD") or its designees. Executive
shall report to the Board and the President and Chief Executive Officer of the
Company. Executive shall also act as an officer and/or director and/or manager
of such affiliates of the Company as may be designated by the Board from time to
time, commensurate with Executive's office, all without further compensation,
other than as provided in this Agreement. As an exempt, salaried employee,
Executive will be expected to work such hours as required by the nature of
Executive's work assignments.
2. Employment Term. Subject to the provisions contained in Paragraph
8, Executive's employment by the Company shall be for a term commencing on the
date hereof and expiring on the close of business on December 31, 2006 (the
"INITIAL TERM"); provided, however, the term of Executive's employment by the
Company shall continue for an indefinite period thereafter unless and until
either party shall give to the other 60 days advance written notice of
expiration of the term (the Initial Term and the period, if any, thereafter,
during which the Executive's employment shall continue are collectively referred
to as the "EMPLOYMENT TERM").
3. Place of Employment. Executive's performance of services under
this Agreement shall be rendered in San Diego County, California, subject to
necessary travel requirements of Executive's position and duties hereunder.
4. Compensation.
(a) Base Salary. The Company shall pay to Executive base
salary compensation at an annual rate of not less than $250,000. Following the
end of the Company's fiscal year 2005, and annually thereafter, the Board shall
review Executive's base salary in light of the performance of Executive and the
Company, and may, in its sole discretion, maintain or increase (but not
decrease) such base salary by an amount it determines to be appropriate.
Executive's annual base salary payable
hereunder, as it may be maintained or increased from time to time, is referred
to herein as "BASE SALARY." Base Salary shall be paid in equal installments in
accordance with the Company's payroll practices in effect from time to time for
executive officers, but in no event less frequently than monthly.
(b) Bonus Plan. The Company shall adopt a bonus program
providing for annual bonus awards to Executive and the Company's other eligible
employees dependent upon, among other things, the achievement of certain
performance levels by the Company, the nature, magnitude and quality of the
services performed by Executive for the Company and the compensation paid for
positions of comparable responsibility and authority within the Company's
industry (the "COMPANY EMPLOYEE BONUS PLAN"). Executive shall receive a one-time
cash bonus payment of $75,000 payable on March 15, 2006, contingent upon
Executive's being employed, in good standing, with the Company as of that date.
Said one-time bonus shall be credited against any other bonus payable to
Executive for calendar year 2005 under any company employee bonus plan.
(c) Signing Bonus. Executive shall be eligible to receive a
one-time cash bonus payment of $50,000 payable within 10 days of the execution
of this Agreement.
(d) Option Grant. As additional consideration for the services
to be rendered by Executive under this Agreement, the Company will grant to
Executive stock options to purchase 325,000 shares of the Company's common
stock, subject to approval of the Board. The exercise price per share of such
options will be equal to the fair market value per share on the date the options
are granted. The stock options will vest over four years with 1/4 of the shares
subject to the stock options vesting on the first anniversary of the date the
stock options are granted, and the remainder vesting monthly at a rate of 1/48th
on the first day of each calendar month thereafter until all shares are vested.
The stock options will be granted under the Company's 2004 Equity Incentive
Award Plan (the "OPTION PLAN") and will be subject to the terms and conditions
applicable to stock options granted under that plan, as described in that plan
and the applicable stock option agreement.
5. Benefits. Executive shall be eligible to participate in all
employee benefit programs of the Company offered from time to time during the
Employment Term by the Company to employees or executive officers of Executive's
rank, to the extent that Executive qualifies under the eligibility provisions of
the applicable plan or plans, in each case consistent with the Company's
then-current practice as approved by the Board from time to time. Except to the
extent financially feasible for the Company, the foregoing shall not be
construed to require the Company to establish such plans or to prevent the
modification or termination of such plans once established, and no such action
or failure thereof shall affect this Agreement. Executive recognizes that the
Company has the right, in its sole discretion, to amend, modify or terminate its
benefit plans without creating any rights in Executive.
6. Vacation. Executive shall be entitled to paid vacation and sick
time ("PTO") of up to four weeks per calendar year, with such number of weeks
being pro-rated for the remainder of the 2005 calendar year. Executive may
roll-over unused PTO time from one calendar year to another, subject to a
maximum of six weeks of accrued PTO.
7. Business Expenses. The Company shall promptly reimburse Executive
for Executive's reasonable and necessary expenditures for travel, entertainment
and similar items made in furtherance of Executive's duties under this Agreement
consistent with the policies of the Company as applied to all executive
officers. Executive shall document and substantiate such expenditures as
required by the policies of the Company as applied to all executive officers,
including an itemized list of all expenses incurred, the business purposes for
which such expenses were incurred, and such receipts as Executive reasonably has
been able to obtain.
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8. Termination of Employment.
(a) Death or Disability.
(i) In the event of Executive's death during the
Employment Term, the Employment Term shall automatically terminate.
(ii) Each of the Company and Executive shall have the
right to terminate the Employment Term in the event of Executive's Disability.
"DISABILITY" as used in this Agreement shall have meaning set forth in Section
22(e)(3) of the Internal Revenue Code, which as of the date of this Agreement is
as follows: "An individual is permanently and totally disabled if he is unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months." A termination of Executive's employment by either
party for Disability shall be communicated to the other party by written notice,
and shall be effective on the 10th day after receipt of such notice by the other
party (the "DISABILITY EFFECTIVE DATE"), unless Executive returns to full-time
performance of Executive's duties before the Disability Effective Date.
(b) By the Company. The Company shall have the right to
terminate the Employment Term for Cause. "CAUSE" as used in this Agreement shall
mean:
(i) Executive's breach of any of the covenants contained
in Paragraphs 9, 10, and 11 of this Agreement;
(ii) Executive's conviction by, or entry of a plea of
guilty or nolo contendere in, a court of competent and final jurisdiction for
any crime involving moral turpitude or punishable by imprisonment in the
jurisdiction involved;
(iii) Executive's commission of an act of fraud, whether
prior to or subsequent to the date hereof upon the Company;
(iv) Executive's continuing repeated willful failure or
refusal to perform Executive's duties as required by this Agreement (including,
without limitation, Executive's inability to perform Executive's duties
hereunder as a result of chronic alcoholism or drug addiction and/or as a result
of any failure to comply with any laws, rules or regulations of any governmental
entity with respect to Executive's employment by the Company);
(v) Executive's gross negligence, insubordination or
material violation of any duty of loyalty to the Company or any other material
misconduct on the part of Executive;
(vi) Executive's intentional commission of any act which
Executive knows (or reasonably should know) is likely to be materially
detrimental to the Company's business or goodwill; or
(vii) Executive's material breach of any other provision
of this Agreement, provided that termination of Executive's employment pursuant
to this subsection (vii) shall not constitute valid termination for good cause
unless Executive shall have first received written notice from the Board stating
with specificity the nature of such breach and affording Executive at least
twenty days to correct the breach alleged.
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Nothing in this Paragraph 8(b) shall prevent Executive from challenging the
Board's determination that Cause exists or that Executive has failed to cure any
act (or failure to act) that purportedly formed the basis for the Board's
determination, under the arbitration procedures set forth in Paragraph 20 below.
(c) By Executive.
(i) Executive shall have the right to terminate the
Employment Term for Good Reason (as defined below), upon 30 days' written notice
to the Board given within 60 days following the occurrence of an event
constituting Good Reason; provided that the Company shall have 20 days after the
date such notice has been given to the Board in which to cure the conduct
specified in such notice. Executive's continued employment during such 20-day
period shall not constitute Executive's consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason hereunder.
(ii) For purposes of this Agreement "GOOD REASON" shall
mean:
(1) a change in Executive's position or
responsibilities (including reporting responsibilities) that represents a
substantial reduction in the position or responsibilities as in effect
immediately prior thereto; the assignment to Executive of any duties or
responsibilities that are materially inconsistent with such position or
responsibilities; or any removal of Executive from or failure to reappoint or
reelect Executive to any of such positions, except in connection with the
termination of Executive's employment for Cause, as a result of his or her
Disability or death, or by Executive other than for Good Reason;
(2) a reduction in Executive's Base Salary other
than in connection with a general reduction in wages for all employees of the
Company and its parent and subsidiaries, if any;
(3) the Company requiring Executive (without
Executive's consent) to be based at any place outside a 50-mile radius of his or
her initial place of employment with the Company, except for reasonably required
travel on the Company's business;
(4) the Company's failure to provide Executive
with compensation and benefits substantially equivalent (in terms of benefit
levels and/or reward opportunities) to those provided for under each of the
Company's material employee benefit plan, program and practice as in effect from
time to time; or
(5) any material breach by the Company of its
obligations to Executive under this Agreement.
(iii) Subject to the notice period set forth in
Paragraph 2 above, Executive shall have the right to terminate his or her
employment hereunder without Good Reason by providing the Company with a written
notice of termination, and such termination shall not in and of itself be a
breach of this Agreement.
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(d) Termination Payments.
(i) If the Employment Term is terminated pursuant to
Paragraph 8(a)(i) (i.e., death), the Company shall pay to Executive (a) his or
her accrued but unpaid Base Salary through the date of termination (plus all
accrued and unpaid expenses reimbursable in accordance with Paragraph 7), (b)
any accrued but unused PTO, and (c) at the discretion of the Board, an annual
bonus for the year in which Executive's death occurs, prorated through the date
of death, based on the Board's good-faith estimate of the actual amount, if any,
that would have been payable for such year under the Company Employee Bonus Plan
(assuming Executive had remained employed by the Company through the end of such
year) in accordance with Paragraph 4(b).
(ii) If the Employment Term is terminated pursuant to
Paragraph 8(a)(ii) (i.e., Disability), the Company shall pay to Executive (a)
his or her accrued but unpaid Base Salary through the date of termination (plus
all accrued and unpaid expenses reimbursable in accordance with Paragraph 7),
(b) any accrued but unused PTO, (c) an amount equal to Executive's actual Base
Salary (not including any bonus payable) for the 6 month period immediately
prior to such termination, payable in 6 equal installments during the 6 month
period following such termination, and (d) at the discretion of the Board, an
annual bonus for the year in which Executive's Disability occurs, prorated
through the date of Disability, based on the Board's good-faith estimate of the
actual amount, if any, that would have been payable for such year under the
Company Employee Bonus Plan (assuming Executive had remained employed by the
Company through the end of such year) in accordance with Paragraph 4(b).
(iii) If the Employment Term is terminated by Executive
pursuant to Paragraph 8(c)(i) (i.e., Good Reason), or if the Company terminates
the Employment Term other than pursuant to Paragraphs 8(a) or 8(b), or if the
Company does not renew the Employment Term pursuant to Paragraph 2, then the
Company shall pay to Executive the following, which Executive acknowledges to be
fair and reasonable, as consideration for the Release described in Paragraph
8(f):
(a) Executive's accrued but unpaid Base Salary
through the date of termination (plus all accrued and unpaid expenses
reimbursable in accordance with Paragraph 7);
(b) any accrued but unused PTO;
(c) at the discretion of the Board, an annual
bonus for the year in which the Employment Term is terminated, prorated through
the date of termination, based on the Board's good-faith estimate of the actual
amount, if any, that would have been payable for such year under the Company
Employee Bonus Plan (assuming Executive had remained employed by the Company
through the end of such year) in accordance with Paragraph 4(b);
(d) subject to Paragraphs 8(d)(vi) and 8(e)(iii)
below, an amount equal to Executive's actual Base Salary (not including any
bonus payable) for the 6 month period immediately prior to such termination,
payable in 6 equal installments during the 6 month period following such
termination;
(e) the Company shall pay all costs which the
Company would otherwise have incurred to maintain all of Executive's health,
welfare and retirement benefits (either on the same or substantially equivalent
terms and conditions) if Executive had continued to render services to the
Company for 6 continuous months after the date of his or her termination of
employment; and
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(f) notwithstanding any provision to the contrary
in Executive's options under the Option Plan or other plan (including, without
limitation, the expiration dates or vesting provisions thereof) or any
restricted stock agreement, (i) the unvested portion, if any, of Executive's
outstanding options shall be deemed to have vested on the date of termination
with respect to the number of shares that would have vested had Executive
remained employed by the Company for 12 months following such termination, and
Executive shall have 180 days from the date of termination to exercise such
options, and (ii) any restrictions with respect to any restricted shares of the
Company's capital stock that Executive then holds shall immediately lapse with
respect to the number of restricted shares that would have vested had Executive
remained employed by the Company for 12 months following such termination.
(iv) If the Employment Term is terminated by the Company
pursuant to Paragraph 8(b) (i.e., Cause), or Executive terminates the Employment
Term other than pursuant to Paragraphs 8(a) or 8(c)(i), without limiting or
prejudicing any other legal or equitable rights or remedies which the Company
may have upon such breach by Executive, the Company shall pay Executive his or
her accrued but unpaid Base Salary and any accrued but unused PTO (plus all
accrued and unpaid expenses reimbursable in accordance with Paragraph 7) through
the date of termination.
(v) In addition to the foregoing, upon the termination
of Executive's employment, Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance with the
terms and provisions of any other benefit, compensation, incentive, medical,
disability or life insurance plans, programs or agreements of the Company in
effect upon such termination.
(vi) Executive shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise; provided,
however, if the termination giving rise to the payments described in Paragraph
8(d)(iii)(d) above results from the Executive's termination of the Employment
Term pursuant to Paragraph 8(c)(i) (i.e., Good Reason), then during the 6 month
period specified in Paragraph 8(d)(iii)(d) above, any compensation, income, or
benefits earned by or paid to Executive (in cash or otherwise) by any company,
business, enterprise, or other employer other than the Company (whether as an
employee of, or consultant or independent contractor to, such employer, or
otherwise) shall reduce the amount of severance payments payable pursuant to
Paragraph 8(d)(iii)(d) on a dollar-for-dollar basis.
(vii) The termination payments described above shall
supercede any severance program, plan or policy that may be adopted by the
Company with respect to its employees generally, and the terms of this Paragraph
8(d) shall control in the event of any discrepancy with such severance program,
plan or policy.
(e) Change of Control.
(i) In the event of any Change of Control (defined
below) during the Employment Term, notwithstanding any provision to the contrary
in Executive's options under the Option Plan or other plan (including, without
limitation, the expiration dates or vesting provisions thereof) or any
restricted stock agreement (1) (A) 50% of any unvested portion of such options
shall be deemed to have vested on the date of the Change of Control and (B) the
remaining unvested portion of such options shall vest on the date that is 12
months from the closing of such Change of Control, and (2) (A) the restrictions
with respect to 50% of the restricted shares of the Company's capital stock that
Executive then holds shall immediately lapse on the date of the Change of
Control and (B) the restrictions with respect to any remaining restricted shares
shall lapse on the date that is 12 months from the closing of such Change of
Control.
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(ii) Following a Change of Control, if the Employment
Term is terminated by Executive pursuant to Paragraph 8(c)(i) (i.e., Good
Reason), or if the Company terminates the Employment Term other than pursuant to
Paragraphs 8(a) or 8(b), or if the Company does not renew the Employment Term
pursuant to Paragraph 2, then notwithstanding any provision to the contrary in
Executive's options under the Option Plan or other plan (including, without
limitation, the expiration dates or vesting provisions thereof) or any
restricted stock agreement, (1) any unvested portion of such options shall be
deemed to have vested on the date of termination and Executive shall have 180
days from the date of termination to exercise such options and (2) any
restrictions with respect to restricted shares of the Company's capital stock
that Executive then holds shall immediately lapse on the date of termination.
(iii) "CHANGE OF CONTROL" shall mean (1) a merger or
consolidation of the Company with or into any other corporation or other entity
or person or (2) a sale, lease, exchange or other transfer in one transaction or
a series of related transactions of all or substantially all the Company's
outstanding securities or all or substantially all the Company's assets;
provided that the following shall events shall not constitute a "Change of
Control": (A) a merger or consolidation of the Company in which the holders of
the voting securities of the Company immediately prior to the merger or
consolidation hold at least a majority of the voting securities in the Successor
Corporation immediately after the merger or consolidation; (B) a sale, lease,
exchange or other transaction in one transaction or a series of related
transactions of all or substantially all of the Company's assets to a wholly
owned subsidiary corporation; (C) a mere reincorporation of the Company; or (D)
a transaction undertaken for the sole purpose of creating a holding company that
will be owned in substantially the same proportion by the persons who held the
Company's securities immediately before such transaction.
(f) Condition Precedent. If the Employment Term is terminated
by Executive pursuant to Paragraph 8(c)(i) (i.e., Good Reason) or if the Company
terminates the Employment Term other than pursuant to Paragraphs 8(a) or 8(b),
prior to the receipt of any payments or benefits provided by Paragraphs
8(d)(iii) and 8(e)(ii) on account of the occurrence of such termination of the
Employment Term, Executive shall execute a "Release" in the form attached hereto
as Exhibit A or Exhibit B, as appropriate. Such Release shall specifically
relate to all of Executive's rights and claims in existence at the time of such
execution and shall confirm Executive's obligations under the Proprietary
Information and Inventions Agreement (as defined below). It is understood that,
in the event that Executive is at least 40 years old on the date of the
termination of the Employment Term, Executive has a certain period to consider
whether to execute such Release, and Executive may revoke such Release within 7
business days after execution. In the event Executive does not execute such
Release within the applicable period, or if Executive revokes such Release
within the subsequent 7 business day period, Executive shall not be entitled to
the aforesaid payments and benefits.
9. Proprietary Information and Inventions Agreement. As a condition
of employment, Executive will be required to sign and comply with the
Proprietary Information and Inventions Agreement in the form attached hereto as
Exhibit C which prohibits unauthorized use or disclosure of the Company's
proprietary information. In Executive's work for the Company, Executive will be
expected not to use or disclose any confidential information, including trade
secrets, of any former employer or other person to whom you have an obligation
of confidentiality. Rather, Executive will be expected to use only that
information which is generally known and used by persons with training and
experience comparable to Executive's, which is common knowledge in the industry
or otherwise legally in the public domain, or which is otherwise provided or
developed by the Company. Executive agrees that he or she will not bring onto
Company premises any unpublished documents or property belonging to any former
employer or other person to whom Executive has an obligation of confidentiality.
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10. Minimum Business Hours; Non-Solicitation; etc.
(a) Nonsolicitation of Employees or Consultants. Executive
agrees that for a period of one year after termination of the Employment Term
(the "NONSOLICITATION PERIOD"), Executive will not directly or indirectly induce
or solicit any of the Company's employees or consultants to leave their
employment.
(b) Nonsolicitation of Customers. Executive agrees that all
customers of the Company or any of its subsidiaries for which Executive has or
will provide services during the Employment Term, and all prospective customers
from whom Executive has solicited business while in the employ of the Company,
shall be solely the customers of the Company or such subsidiary. Executive
agrees that, for the Nonsolicitation Period, Executive shall neither directly
nor indirectly solicit business as to products or services competitive with
those of the Company or any of its subsidiaries, from any of the Company's or
any of its subsidiaries' customers with whom Executive had contact within one
year prior to Executive's termination.
(c) Scope of Covenants. Executive agrees that the covenants
contained in this Paragraph 10 are reasonable with respect to their duration,
geographic area and scope. If, at the time of enforcement of this Paragraph 10,
a court holds that the restrictions stated herein are unreasonable under the
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographic area legally permissible under such circumstances will be
substituted for the period, scope or area stated herein.
(e) Equitable Relief. In the event of a breach of this
Paragraph 10 by Executive, the Company shall, in addition to all other remedies
available to it, be entitled to equitable relief by way of an injunction and any
other legal or equitable remedies.
11. Nondisparagement. Executive will not at any time during or after
the Employment Term directly (or through any other person or entity) make any
public statements (whether orally or in writing) which are intended to be
derogatory or damaging to the Company or any of its subsidiaries, their
respective businesses, activities, operations, affairs, reputations or prospects
or any of their respective officers, employees, directors, partners, agents or
shareholders; provided that Executive may comment generally on industry matters
in response to inquiries from the press and in other public speaking
engagements. The Company shall not at any time during or after the Employment
Term, directly (or through any other person or entity) make any public
statements (whether oral or in writing) which are intended to be derogatory or
damaging concerning Executive.
12. Indemnification; Directors & Officers Insurance.
(a) The Company shall indemnify Executive to the maximum
extent permitted by law and by the charter and bylaws of Company if Executive is
made a party, or threatened to be made a party, to any threatened or pending
legal action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Executive is or was an officer,
director, manager, member, partner or employee of the Company, in which capacity
Executive is or was serving at the Company's request, against reasonable
expenses (including reasonable attorneys' fees), judgments, fines and settlement
payments incurred by him or her in connection with such action, suit or
proceeding.
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(b) The Company shall use reasonable commercial efforts to
maintain directors & officers insurance for the benefit of Executive and other
executive officers and directors with a level of coverage comparable to other
companies in the Company's industry at a similar stage of development.
13. Representation of the Parties. Executive represents and warrants
to the Company that Executive has the capacity to enter into this Agreement and
the other agreements referred to herein, and that the execution, delivery and
performance of this Agreement and such other agreements by Executive will not
violate any agreement, undertaking or covenant to which Executive is party or is
otherwise bound. The Company represents to Executive that it is duly formed and
is validly existing under the laws of the State of Delaware, that it is fully
authorized and empowered by action of its Board to enter into this Agreement and
the other agreements referred to herein, and that performance of its obligations
under this Agreement and such other agreements will not violate any agreement
between it and any other person, firm or other entity.
14. Key Man Insurance. The Company will have the right throughout
the Employment Term, to obtain or increase insurance on Executive's life in such
amount as the Board determines, in the name of the Company or and for its sole
benefit or otherwise, in the discretion of the Board. Upon reasonable advance
notice, Executive will cooperate in any and all necessary physical examinations
without expense to Executive, supply information, and sign documents, and
otherwise cooperate fully with the Company as the Company may request in
connection with any such insurance. Executive warrants and represents that, to
Executive's best knowledge, Executive is in good health and does not suffer from
any medical condition which might interfere with the timely performance of
Executive's obligations under this Agreement. To the extent the Company elects
to obtain a policy of insurance on the life of Executive, unless an alternative
life insurance benefit has been established for the Company's executive
officers, including Executive, the Company shall also obtain and pay for a whole
life insurance policy providing for payment of not less than the equivalent of
one year's Base Salary in benefits to Executive's designated beneficiaries (this
policy shall be in addition to any coverage provided by the Company's group life
insurance plan provided to employees generally).
15. Notices. All notices given under this Agreement shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) three business days after being mailed by first class certified
mail, return receipt requested, postage prepaid, (c) one business day after
being sent by a reputable overnight delivery service, postage or delivery
charges prepaid, or (d) on the date on which a facsimile is transmitted to the
parties at their respective addresses stated below. Any party may change its
address for notice and the address to which copies must be sent by giving notice
of the new addresses to the other parties in accordance with this Paragraph 15,
except that any such change of address notice shall not be effective unless and
until received.
If to the Company:
Somaxon Pharmaceuticals, Inc.
Attn: Xxxxxxx Xxxxx
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
If to Executive, to Executive's address set forth above.
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16. Entire Agreement, Amendments, Waivers, Etc.
(a) No amendment or modification of this Agreement shall be
effective unless set forth in a writing signed by the Company and Executive. No
waiver by either party of any breach by the other party of any provision or
condition of this Agreement shall be deemed a waiver of any similar or
dissimilar provision or condition at the same or any prior or subsequent time.
Any waiver must be in writing and signed by the waiving party.
(b) This Agreement, together with the Exhibit hereto and the
documents referred to herein and therein, sets forth the entire understanding
and agreement of the parties with respect to the subject matter hereof and
supersedes all prior oral and written understandings and agreements. There are
no representations, agreements, arrangements or understandings, oral or written,
among the parties relating to the subject matter hereof which are not expressly
set forth herein, and no party hereto has been induced to enter into this
Agreement, except by the agreements expressly contained herein.
(c) Nothing herein contained shall be construed so as to
require the commission of any act contrary to law, and wherever there is a
conflict between any provision of this Agreement and any present or future
statute, law, ordinance or regulation, the latter shall prevail, but in such
event the provision of this Agreement affected shall be curtailed and limited
only to the extent necessary to bring it within legal requirements.
(d) This Agreement shall inure to the benefit of and be
enforceable by Executive and Executive's heirs, executors, administrators and
legal representatives, by the Company and its successors and assigns. This
Agreement and all rights hereunder are personal to Executive and shall not be
assignable. 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.
(e) If any provision of this Agreement or the application
thereof is held invalid, the invalidity shall not affect the other provisions or
application of this Agreement that can be given effect without the invalid
provisions or application, and to this end the provisions of this Agreement are
declared to be severable.
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
principles of conflict of laws.
18. Taxes. All payments required to be made to Executive hereunder,
whether during the term of Executive's employment hereunder or otherwise, shall
be subject to all applicable federal, state and local tax withholding laws.
19. Headings, Etc. The headings set forth herein are included solely
for the purpose of identification and shall not be used for the purpose of
construing the meaning of the provisions of this Agreement. Unless otherwise
provided, references herein to Exhibits and Paragraphs refer to Exhibits to and
Paragraphs of this Agreement.
20. Arbitration. Any dispute or controversy between Company and
Executive, arising out of or relating to this Agreement, the breach of this
Agreement, or otherwise, shall be settled by arbitration in San Diego,
California administered by the American Arbitration Association in accordance
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with its Employment ADR Rules then in effect and judgment on the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of
Company and Executive. The Company shall pay all of the direct costs and
expenses in any arbitration hereunder and the arbitrator's fees and costs;
provided, however, that the arbitrator shall have the discretion to award the
prevailing party reimbursement of its, his or her reasonable attorney's fees and
costs.
21. Survival. Executive's obligations under the provisions of
Paragraphs 9, 10 and 11, as well as the provisions of Paragraphs 7, 8(d), 12 and
16 through and including 23, shall survive the termination or expiration of this
Agreement.
22. Confidentiality. The parties agree that the existence and terms
of this Agreement are and shall remain confidential. The parties shall not
disclose the fact of this Agreement or any of its terms or provisions to any
person without the prior written consent of the other party hereto; provided,
however, that nothing in this Paragraph 22 shall prohibit disclosure of such
information to the extent required by law, nor prohibit disclosure of such
information by Executive to any legal or financial consultant, all of whom shall
first agree to be bound by the confidentiality provisions of this Paragraph 22,
nor prohibit disclosure of such information within the Company in the ordinary
course of its business to those persons with a need to know, as reasonably
determined by the Company, or by the Company to any legal or financial
consultant.
23. Construction. Each party has cooperated in the drafting and
preparation of this Agreement. Therefore, in any construction to be made of this
Agreement, the same shall not be construed against any party on the basis that
the party was the drafter.
* * * * *
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY:
SOMAXON PHARMACEUTICALS, INC.
By /s/ Xxxxxxx Xxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: President and CEO
EXECUTIVE:
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------------------
XX. XXXXXX XXXXXXXXX
