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EXHIBIT 10.7
AGREEMENT
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THIS AGREEMENT, made as of the 1st day of June, 1997, between OPHIDIAN
PHARMACEUTICALS, INC., a Wisconsin corporation, (the "Employer"), and XXXXXX
XXXXX, PH.D., (the "Employee");
RECITALS
The Employer is engaged in the business of the creation and marketing
of pharmaceutical products, and has developed methods, techniques, concepts and
systems for this business which are unique and distinctive.
The Employer desires to continue to employ the Employee as its Vice
President of Research and Development, and in the course of his employment to
give him important information about its business methods, techniques, concepts
and systems, and to have him meet and deal with customers of the Employer,
obtain or have access to information about them, and develop special
relationships with them.
The Employer and the Employee desire to enter into an Agreement with
respect to the continued employment of the Employee by the Employer pursuant to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereinafter set forth, the parties agree as follows:
1. EMPLOYMENT. The Employer agrees to continue to employ the
Employee, and the Employee agrees to continue to serve in the employment of the
Employer, upon the terms and conditions hereinafter set forth.
2. DUTIES. The Employee shall continue to serve as Vice
President of Research and Development of the Employer, with substantially the
same duties, responsibilities, and work schedule, as maintained prior to the
effective date of this Agreement, in accordance with the directions of the
President of the Employer. The Employee shall devote his full time
professional effort, attention and energy to the business and affairs of the
Employer and shall use his best efforts to promote the interests of the
Employer.
3. TERM. The term of the employment of the Employee hereunder
shall commence as of the effective date of this Agreement, and shall continue
for a period of three (3) years thereafter, subject to termination as
hereinafter provided.
4. COMPENSATION. The Employer shall pay to the Employee, and the
Employee shall accept in full payment for his services to the Employer, such
base compensation, incentive compensation and bonus compensation as may be
established by the Employer from
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time to time. Notwithstanding the foregoing, the total amount of such
compensation shall not be reduced to less than the total amount of such
compensation that is being paid to the Employee as of the effective date of
this Agreement.
5. VACATION, SICK LEAVE AND OTHER BENEFITS.
(a) The Employee shall be entitled to vacation days and
sick leave in accordance with the Employer's established rules and policies.
(b) The Employee shall be eligible to participate in
insurance and other benefit programs provided to employees of the Employer
similarly situated, all in accordance with the Employer's established rules and
policies.
6. EXPENSES. The Employer shall reimburse the Employee for any
out of pocket expenses reasonably incurred by the Employee in the furtherance
of the business of the Employer, upon submission of a satisfactory accounting
by the Employee to the Employer.
7. INTELLECTUAL PROPERTY, TRADE SECRETS AND COMPETITIVE
ACTIVITIES. The provisions of the letter agreement between the parties dated
July 13, 1992, a copy of which is attached hereto as Addendum A, are
incorporated herein by reference.
8. TERMINATION.
(a) TERMINATION BY EMPLOYER FOR CAUSE. The Employer may
terminate this Agreement and the Employee's employment effective immediately
upon written notice to the Employee for any of the following reasons:
(i) Commission by the Employee of any act of
intentional dishonesty material to the Employer.
(ii) Conviction of the Employee of an offense
involving moral turpitude constituting a felony criminal offense under federal,
state or local laws by the Employee.
(iii) Intentional and prolonged failure of the
Employee to devote his best efforts to performance of his duties for the
Employer or the incompetent performance of such duties. Such intentional and
prolonged failure to perform his duties, or the incompetent performance
thereof, shall be deemed to exist if the Employee has not substantially
corrected, or taken reasonable steps to correct, such failure within thirty
(30) days after having been notified in writing by the President of the
Employer of such failure to perform or incompetent performance.
Upon termination as set forth in the paragraph, the Employer shall
have no further obligations to the Employee under this Agreement, and the
Employee shall have no further
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obligations to the Employer, except as provided in Paragraph 7 hereof.
(b) TERMINATION BECAUSE OF DEATH OR DISABILITY. This
Agreement and the Employee's employment shall be terminated immediately upon
the death or the disability of the Employee. For purposes of this Agreement,
the Employee shall be considered to be disabled if he is unable to perform the
above described services for a continuous period of six (6) months by reason of
physical or mental illness or incapacity. If there is any dispute as to
whether the Employee is or was physically or mentally unable to perform his
duties hereunder, such question shall be submitted to a licensed physician
mutually acceptable to the Employee and the Employer for determination.
Upon termination due to the Employee's death or disability, the
Employee, the personal representative of the Employee's estate or his legal
representative, as appropriate, shall have no further obligation to the
Employer except as provided in Paragraph 7 hereof, and the Employer shall have
no further obligation to the Employee's estate or the Employee under this
Agreement, except to pay the Employee or his estate any unpaid base
compensation, incentive compensation, and bonus compensation payable hereunder
with respect to the period prior to the effective date of termination and
reimbursement of expenses to which the Employee is entitled under Paragraph 6
hereof in respect to periods prior to the termination date.
(c) TERMINATION WITHOUT CAUSE. It is understood and
agreed by the parties hereto that the Employee is an employee-at-will and may
be terminated by the Employer at any time for any reason or no reason, and that
the Employee may terminate his employment with the Employer for any reason or
no reason, subject to the following:
(i) By the Employer. If the Employer terminates
this Agreement without cause, the Employee shall be entitled to full salary
("Severance Pay") and benefits for a term of twelve (12) months after the date
of such termination, and the Employee's right to exercise any unvested options
for the purchase of Employer stock under any stock option agreements entered
into pursuant to any qualified or nonqualified stock option plans of the
Employer, shall be accelerated so as to enable the Employee to fully exercise
the options granted under such agreements. Upon termination pursuant to this
Paragraph, the Employee shall have no further obligations to the Employer
except as provided in Paragraph 7 hereof.
(ii) By the Employee. The Employee may, upon
thirty (30) days advance written notice to the Employer, terminate this
Agreement and his employment hereunder. If the Employee terminates his
employment as provided hereunder for any reason other than for good reason, the
Employer shall have no further obligations to the Employee under this Agreement
for Severance Pay or other benefits beyond the effective date of termination.
The Employee shall have no further obligations to the Employer under this
Agreement except as provided in Paragraph 7.
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(d) TERMINATION FOR GOOD REASON.
(i) The Employee may, upon thirty (30) days
advance written notice to the Employer, terminate this Agreement and his
employment hereunder for good reason. In the event of a termination by the
Employee for good reason, the Employee shall be entitled to receive Severance
Pay in the same manner and amount as set forth in Paragraph 8(c)(i) above, and
the Employee's rights to exercise stock options shall be accelerated in the
same manner as set forth in Paragraph 8(c)(i) above.
(ii) For purposes of this Agreement, the Employee
shall have a "good reason" for termination of employment in the event of:
a. any breach of this Agreement by the
Employer; or
b. a good faith determination by the
Employee that there has been a significant adverse change, without the
Employee's written consent, in the Employee's working conditions or status with
the Employer from such working conditions or status as were in effect during
the 180-day period immediately prior to the effective date of this Agreement,
including but not limited to (A) a significant change in the nature or scope of
the Employee's authority, powers, functions, duties or responsibilities, or (B)
a significant reduction in the level of support services, staff, secretarial
and other assistance, office space and accoutrements provided to the Employee.
c. a change in control of the Employer,
which for purposes of this Agreement shall be deemed to occur if: (i)
securities of the Employer representing twenty-five percent (25%) or more of
the combined voting power of the Employer's then outstanding voting securities
are acquired pursuant to a tender offer or an exchange offer; (ii) the
shareholders of the Employer approve a merger, consolidation, or reorganization
of the Employer with any other corporation as a result of which less than
seventy-five percent (75%) of the outstanding voting securities of the
surviving or resulting entity are owned by the former shareholders of the
Employer other than a shareholder who is an affiliate or associate of any party
to such consolidation or merger; (iii) the shareholders of the Employer approve
the sale or other transfer of all or substantially all of the Employer's assets
to a corporation or other person which is not a wholly owned subsidiary of the
Employer; or (iv) the employer acquires, whether through purchase, merger or
otherwise, all or substantially all of the operating assets or capital stock of
another entity and in connection with such acquisition persons are elected or
appointed to the Board of Directors of the Employer who are not directors
immediately prior to such acquisition and such persons constitute a majority of
the Board of Directors after such acquisition.
9. PARTIAL INVALIDITY. The terms and provisions of this
Agreement shall be deemed severable, and if any term or provision of this
Agreement or the application thereof to any person or circumstances shall to
any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to the persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and
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each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
10. APPLICABLE LAW. This Agreement is executed, delivered and
intended to be performed pursuant to the laws of the State of Wisconsin.
11. NOTICES. Any notices required or desired to be given
hereunder shall be complete if sent by Certified or Registered Mail, Return
Receipt Requested, to his residence in the case of the Employee, and to its
principal office in the case of the Employer, or by personal delivery.
12. ENTIRE AGREEMENT. This instrument, the letter agreement
between the parties dated July 13, 1992 the provisions of which are
incorporated herein by reference, and any stock option agreements entered into
pursuant to any qualified or nonqualified stock option plans of the Employer,
contain the entire agreement of the parties, and may not be changed orally, but
only by an agreement in writing executed by both parties.
13. SUCCESSORS AND ASSIGNS. The Employee shall have no power to
transfer, assign, anticipate, mortgage, or otherwise encumber in advance any of
the sums payable hereunder, nor shall any of such sums be subject to seizure
for the payment of any debt or judgment or be transferable by operation of law
in the event of bankruptcy or insolvency. This Agreement shall inure to the
benefit of, and shall be binding upon, the successors and assigns of the
Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER: EMPLOYEE
OPHIDIAN PHARMACEUTICALS, INC. (Seal)
By:
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx Xxxxx (seal)
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Xxxxxxx X. Xxxxxxxx, Ph.D., President Xxxxxx Xxxxx, Ph.D.
Attest:
/s/ Xxxxxxxx van Boldrik
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Xxxxxxxx van Boldrik, Secretary
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