EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
February 1, 1996 between SciClone Pharmaceuticals, Inc. a California
corporation, (the "Company"), and Xxxxxx X. Xxxxxxx, an individual ("Employee").
In consideration of the promises and the terms and conditions set forth
in this Agreement, the parties agree as follows:
1. POSITION. During the term of this Agreement, the Company will employ
Employee, and Employee will serve the Company as its President and will have
such other responsibilities, authority and titles as may from time to time be
assigned to Employee by the Board of Directors of the Company.
2. DUTIES. Employee will have the duties and responsibilities generally
associated with the positions held by Employee and as the Board of Directors of
the Company may from time to time determine. Employee will comply with and be
bound by Company's operating policies, procedures, and practices from time to
time in effect during Employee's employment. Employee hereby represents and
warrants that he is free to enter into and fully perform this Agreement and the
agreements referred to herein without breach of any agreement or contract to
which he is a party or by which he is bound.
3. COMPENSATION AND BENEFITS.
3.1 BASE SALARY. The Company agrees to pay Employee's base salary
of $400,000. The base salary shall be payable as earned in accordance with
Company's customary payroll practice. If this Agreement is renewed pursuant to
Section 4, Employee's base salary for future years shall be negotiated by the
Company and Employee.
3.2 CASH BONUS. The Company agrees to pay Employee a bonus of
$200,000 upon the full achievement of specified goals agreed upon by Employee
and the Company. The bonus shall be payable in accordance with the Company's
customary bonus payment practices unless otherwise agreed by the Company and
Employee. If this Agreement is renewed pursuant to Section 5, Employee's future
bonus targets and goals shall be negotiated by the Company and Employee.
3.3 COST-OF-LIVING ASSISTANCE PAYMENTS. The Company (or a
subsidiary of the Company) agrees to continue the cost-of-living assistance
payments Employee received as Managing Director, Pacific Rim Operations of the
Company at their current level through July 31, 1996.
3.4 CAR ALLOWANCE. Employee will receive a car allowance of $850
per month.
3.5 ADDITIONAL BENEFITS. Employee will be eligible to participate
in the Company's employee benefit plans of general application, including
without limitation those plans covering pension and profit sharing, stock
purchases, stock options, and those plans covering life, health, and dental
insurance in accordance with the rules established for individual participation
in any such plan and applicable law. Employee will receive such other benefits,
including vacation, holidays and sick leave, as the Company generally provides
to its employees holding similar executive positions as that of Employee.
3.6 EXPENSES. The Company will reimburse Employee for all
reasonable and necessary expenses incurred by Employee in connection with the
Company's business, provided that such expenses are in accordance with the
Company's applicable policy and are properly documented and accounted for in
accordance with the requirements of the Internal Revenue Service.
4. TERM AND TERMINATION.
4.1 TERM. This Agreement shall terminate 12 months from the date
first entered into above (the "Anniversary Date") unless renewed by the Company
and Employee.
4.2 EVENTS OF TERMINATION. The Agreement may be terminated upon
the occurrence of any one of the following events:
(a) The Company's determination made in good faith that
it is terminating Employee for "cause" (as defined herein) ("Termination for
Cause").
(b) The Company's determination that it is terminating
Employee without "cause" (as defined herein), which determination may be made by
the Company at any time at the Company's sole discretion, for any reason or for
no reason ("Termination Without Cause").
(c) The effective date of a written notice sent to the
Company from Employee stating that Employee is electing to terminate his
employment with the Company ("Voluntary Termination").
4.3 "CAUSE" DEFINED. For purposes of this Agreement, "cause" for
Employee's termination will exist at any time after the happening of one or more
of the following events:
(a) Employee's willful misconduct or gross negligence in
performance of his duties hereunder, including Employee's refusal to comply in
any material respect with the legal directives of the Company's Board of
Directors so long as such directives are not inconsistent with the Employee's
position and duties, and such refusal to comply is not remedied within ten (10)
working days after written notice from Company, which written notice shall state
that failure to remedy such conduct may result in Termination for Cause.
(b) Dishonest or fraudulent conduct, a deliberate attempt
to do an injury to the Company, or conduct that materially discredits the
Company or is materially detrimental to the reputation of the Company.
(c) Employee's incurable material breach of any element
of the Company's Proprietary Information and Inventions Agreement, including
without limitation, Employee's theft or other misappropriation of the Company's
proprietary information.
4.4 "DISABILITY" DEFINED. For purposes of this Agreement,
"disability" will mean that the Board of Directors has determined, based on
competent medical evidence, that the Employee has become incapable, mentally or
physically, of substantially performing his services and discharging his duties
hereunder for a period in excess of six (6) months.
5. EFFECT OF TERMINATION.
5.1 TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. In the event
of any termination of this Agreement pursuant to Sections 4.2(a) or 4.2(c), the
Company shall pay Employee the compensation and benefits otherwise payable to
Employee under Section 3 through the date of termination. Employee's rights
under the Company's benefit plans of general application shall be determined
under the provisions of those plans.
5.2 TERMINATION WITHOUT CAUSE. In the event of any termination of
this Agreement pursuant to Section 4.2(b), or as a result of a material
diminution of Employee's duties and responsibilities by the Company, or as a
result of Employee's death or disability (as defined herein),
(a) the Company shall pay Employee the compensation and
benefits otherwise payable to Employee under Section 3 through the date of
termination, except that health-related benefits shall continue for one year
beyond the effective date of termination.
(b) within seven (7) days of termination, Company shall
pay Employee a severance payment equal to the sum of one year of the Employee's
then-current base salary, car allowance and the bonus Employee could have earned
had he continued employment with the Company through the end of the calendar
year in which termination occurs,
(c) the Company shall cause all of the Employee's
outstanding stock options to become immediately vested and the exercise period
of such options will be extended for a period of one year, provided, however,
that such extension shall not exceed the original term of such options, and
(d) Employee's rights under the Company's benefit plans
of general application shall be determined under the provisions of those plans.
6. MISCELLANEOUS.
6.1 SEVERABILITY. If any provision of this Agreement shall be
found by any arbitrator or court of competent jurisdiction to be invalid or
unenforceable, then the parties hereby waive
such provision to the extent that it is found to be invalid or unenforceable and
to the extent that to do so would not deprive one of the parties of the
substantial benefit of its bargain. Such provision shall, to the extent
allowable by law and the preceding sentence, be modified by such arbitrator or
court so that it becomes enforceable consistent with the intent of this
Agreement and, as modified, shall be enforced as any other provision hereof, all
the other provisions continuing in full force and effect.
6.2 NO WAIVER. The failure by either party at any time to require
performance or compliance by the other of any of its obligations or agreements
shall in no way affect the right to require such performance or compliance at
any time thereafter. The waiver by either party of a breach of any provision
hereof shall not be taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind shall be effective or binding, unless it is in writing and is signed by
the party against whom such waiver is sought to be enforced.
6.3 ASSIGNMENT. This Agreement and all rights hereunder are
personal to Employee and may not be transferred or assigned by Employee at any
time. The Company may assign its rights, together with its obligations
hereunder, to any parent, subsidiary, affiliate or successor, or in connection
with any sale, transfer or other disposition of all or substantially all of its
business and assets, provided, however, that any such assignee assumes the
Company's obligations hereunder.
6.4 WITHHOLDING. All sums payable to Employee hereunder shall be
reduced by all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
6.5 AMENDMENT. This Agreement may be amended, modified,
superseded, canceled, renewed or extended only by an agreement in writing
executed by both parties hereto.
6.6 NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing and hand delivered, sent by
telecopier, sent by certified first class mail, postage pre-paid, or sent by
nationally recognized express courier service. Such notices and other
communications shall be effective upon receipt if hand delivered or sent by
telecopier, five (5) days after mailing if sent by mail, and one (1) day after
dispatch if sent by express courier, to the following addresses, or such other
addresses as any party, shall notify the other parties:
If to the Company: SciClone Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attention: Chairman of the Board of
Directors
Telecopier: (000) 000-0000
If to Employee: Xxxxxx X. Xxxxxxx
c/o SciClone Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Telecopier: (000) 000-0000
6.7 BINDING NATURE. This Agreement shall be binding upon, and
inure to the benefit of, the successors and personal representatives of the
respective parties hereto.
6.8 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall in no way affect the meaning or interpretation
of this Agreement. In this Agreement, the singular includes the plural, the
plural includes the singular, the masculine gender includes both male and female
referents, and the word "or" is used in the inclusive sense.
6.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which,
taken together, constitute one and the same agreement.
6.10 GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereto shall be construed in accordance with the laws of the
State of California, without giving effect to the principles of conflict of
laws.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement as of the date first above written.
SCICLONE PHARMACEUTICALS, INC. EMPLOYEE
By: ________________________________ ______________________________________
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman
