Exhibit 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of October 9,
2000 by and between Xx Xxxxxx ("Employee") and Exelixis, Inc., a Delaware
corporation (the "Company").
A. Employee has an existing Employment Agreement ("Prior Agreement")
dated December 1, 1997 with Agritope, Inc. ("Prior Employer").
B. Prior Employer has entered into an agreement to be acquired by the
Company.
C. The parties desire to terminate the Prior Agreement and enter into
this Agreement effective upon the closing date of the acquisition of Prior
Employer by the Company ("Effective Date").
1. SERVICES.
1.1 EMPLOYMENT. The Company agrees to employ Employee in the position and
with the responsibilities as set forth on Schedule 1.2 attached hereto, and
Employee hereby accepts such employment in accordance with the terms and
conditions of this Agreement. Employment shall commence on the Effective Date
and shall continue until terminated pursuant to the terms of this Agreement.
1.2 DUTIES. Employee shall have the position set forth in Schedule 1.2 with
such powers and duties appropriate to that office from time to time (a) as may
be provided by the Bylaws of the Company, (b) as may be specified by the Board
of Directors, (c) as may be specified by the Chief Scientific Officer, and (d)
as determined by the Chief Executive Officer. Subject to the provisions of
Section 5.2.1, Employee's position and duties may be changed from time to time
during the term of this Agreement, and Employee's place of work may be
relocated, at the sole discretion of the Company's Chief Executive Officer.
Employee shall devote his full business time, attention and best efforts to the
affairs of the Company and its affiliates during the term of this Agreement.
1.3 OUTSIDE ACTIVITIES. Employee may engage in other activities, such as
activities involving charitable, educational, religious and similar types of
organizations (all of which are deemed to benefit Employer), speaking
engagements, and similar type activities, and may serve on the board of
directors of other corporations approved by the Chief Executive Officer or the
Board of Directors of the Company, in each case to the extent that such other
activities do not materially detract from or limit the performance of his duties
under this Agreement, or inhibit or conflict in any material way with the
business of the Company and its affiliates.
1.4 DIRECTION OF SERVICES. Employee shall at all times discharge his duties
in consultation with and under the supervision and direction of the Company's
Chief Scientific Officer.
2. COMPENSATION.
2.1 SALARY. As compensation for services under this Agreement, the Company
shall pay to Employee a regular salary to be established each year by the Chief
Executive Officer and approved by the Compensation Committee of the Board of
Directors, if there is such a committee, or if not, then by the Board of
Directors. Effective as of the date of annual review and adjustment of
compensation of other officers of the Company in each year that this Agreement
is in effect, such salary may be adjusted annually unless the Compensation
Committee in its discretion determines not to do so. Payment shall be made on in
accordance with the normal payroll schedule of the Company, less all amounts
required by law to be withheld or deducted, at such times as shall be determined
by the Compensation Committee.
2.2 ADDITIONAL EMPLOYEE BENEFITS. Employee shall also have the right to
receive or participate in (a) any additional benefits, including, but not
limited to, vacation and sick leave policies, insurance programs, profit sharing
or pension plans, and medical reimbursement plans, which may from time to time
be made available by the Company to its executive officers, and (b) subject to
meeting eligibility requirements, all executive incentive compensation plans of
the Company. The Company shall reimburse Employee in accordance with its then
current expense reimbursement policy for all reasonable and necessary expenses
incurred in carrying out his duties under this Agreement, and substantiated by
Employee.
2.3 EXTRAORDINARY COMPENSATION. Employee shall have the right, in addition
to all other compensation provided for in this Section 2, to continued
additional extraordinary compensation in the event of termination of employment
of Employee pursuant to Section 5.2.1. In such event, Employee shall continue to
be paid the salary provided in Section 2.1 through the second anniversary of the
Effective Date in the manner and at the times at which regular compensation was
paid to Employee during the term of his employment under the Agreement,
provided, however, that the present value of the stream of payments to be made
to Employee shall not exceed 295 percent of Employee's Annualized Includable
Compensation (in which event the payments shall be reduced pro rata such that
the present value thereof does not exceed such amount). By way of illustration
and without limitation, if the Effective Date is assumed to be October 15, 2000
and Employee is terminated pursuant to Section 5.2.1 on January 15, 2001, then
Employee would continue to receive salary through October 14, 2002.
2.3.1 CERTAIN DEFINITIONS. The term Annualized Includable Compensation
shall mean the average annual compensation payable by the Company that was
includable in the gross income of Employee for the taxable years in the Base
Period. The term Base Period shall mean the period consisting of the most recent
three taxable years ending in the year 2000. Present value shall be determined
by using a discount rate equal to 120 percent of the applicable Federal Rate
(determined under Section 1274(d) of the Internal Revenue Code of 1986, as
amended) compounded semi-annually.
2.3.2 CHANGE IN LAW. The parties agree that in the event Section
280G or Section 4999 of the Internal Revenue Code is amended after the date
hereof with the effect that any of the compensation payable to Employee by
the Company pursuant to the foregoing provisions either (i) is not deductible
for tax purposes from the gross income of the Company, or (ii) subjects
Employee to a federal excise tax thereon, then, unless the parties otherwise
agree, the foregoing provisions may be modified at the discretion of the
Board of Directors in order to comply with the amended provisions of the
Internal Revenue Code in order that, to the greatest extent possible, such
compensation shall be so deductible by the Company and Employee shall not be
subject to an excise tax thereon.
2.4 FEES.
2.4.1 OTHER ACTIVITIES. All compensation earned by Employee, other
than pursuant to this Agreement, as a result of services performed on behalf of
the Company or as a result of or arising out of any work done by Employee in any
way related to the scientific or business activities of the Company or its
affiliates shall belong to the Company or such affiliate. Employee shall pay or
deliver such compensation to the Company or the affiliate promptly upon receipt.
2.4.2 DEFINITION. For the purposes of Section 2.4, "compensation"
shall include, but is not limited to, all professional and nonprofessional fees,
lecture fees, expert testimony fees, publishing fees, license fees, royalties,
and any related income, earnings or other things of value; and "scientific or
business activities of the Company" shall include, but not be limited to, any
project or projects in which the Company or its affiliates are involved and any
subject matter that is directly or indirectly researched, tested, developed,
promoted or marketed by the Company or its affiliates.
2.5 RETENTION COMMITMENT. In addition to the compensation otherwise set
forth in this Section 2, if Employee continues to be a full-time employee of the
Company, subject to approval by the Compensation Committee, a nonqualified stock
option grant of 5,000 shares at fair market value on the date of grant vesting
in full as of the first anniversary of the Effective Date pursuant to the
Company's 2000 Equity Incentive Plan.
3. PROPRIETARY INFORMATION AGREEMENT.
As a condition to his employment hereunder, Employee shall execute and
deliver the Company's Employee Proprietary Information and Inventions Agreement.
4. NONCOMPETITION.
4.1 COVENANT. Subject to the provisions of Section 4.3, Employee covenants
that Employee will not, throughout the United States, either individually or as
a director, officer, partner, employee, agent, representative, or consultant
with any business, directly or indirectly during the term of employment by the
Company:
4.1.1 Engage or prepare to engage in any business which competes with
the Company or its affiliates;
4.1.2 Induce or attempt to induce any person who is an employee of the
Company or its affiliates during the term of this covenant to leave the employ
of the Company or its affiliates; or
4.1.3 Solicit, divert or accept orders for products or services that
are substantially competitive with the products or services sold by the Company
or its affiliates from any customer of the Company or its affiliates.
4.2 ENFORCEMENT. Employee acknowledges and agrees that the time,
scope and other provisions of this Section 4 have been specifically
negotiated by sophisticated parties with the advice and consultation of
counsel and specifically hereby agrees that such time, scope and other
provisions are reasonable under the circumstances. Employee further agrees
that if, at any time, despite the express agreement of the parties hereto, a
court of competent jurisdiction holds that any portion of this Section 4 is
unenforceable for any reason, the maximum restrictions reasonable under the
circumstances, as determined by such court, will be substituted for any
restrictions held unenforceable.
4.3 RELEASE FROM OBLIGATION. In the event that Employee shall be
entitled to extraordinary compensation pursuant to the provisions of Section
2.3, following the first anniversary of the Effective Date, Employee may
elect to waive all rights to receive such compensation from and after the
date of such waiver in exchange for the release of Employee from the
obligations of Sections 4.1.1 and 4.1.3. Such waiver shall be in writing,
shall state that it is in consideration for the release of Employee from the
obligations of Sections 4.1.1 and 4.1.3, and shall be effective when
delivered to the Company. In the event of such a waiver, the amounts payable
pursuant to the provisions of Section 2.3 shall be prorated through the
period commencing on the date of termination of employment and ending on the
date of delivery of the written notice of waiver to the Company. For example,
if such waiver is delivered to the Company three months after the Effective
Date, Employee shall continue to be paid for an additional 9 months of the
amounts otherwise payable pursuant to the provisions of Section 2.3 (i.e.,
through the first anniversary of the Effective Date) and Employee shall be
subject to the restrictions in Sections 4.1.1 and 4.1.3 during the time as he
is receiving such payments. Employee would be free of such limitations
beginning on the anniversary of the Effective Date but would, by delivery of
the waiver, waive the second year of payments under Section 2.3 by virtue of
his waiver. If such waiver is delivered after the first anniversary of the
Effective Date, then the waiver shall be effective at the time of notice and
Employee would be deemed to waive any future amounts payable under Section
2.3.
5. TERMINATION.
5.1 VOLUNTARY RESIGNATION. Employee may terminate his employment under this
Agreement by 90 days' written notice to the Company.
5.2 TERMINATION BY THE COMPANY.
5.2.1 The Company may terminate Employee's employment under this
Agreement without cause by 30 days' written notice to the Employee. If the
Company shall substantially diminish Employee's salary, duties or title, or
shall relocate the principal place where Employee's duties are performed to a
place outside of the Portland metropolitan area, then Employee may elect (but
shall not be required to do so) to treat such event as a termination without
cause. It is understood and agreed that regular, frequent visits to the
Company's principal offices in South San Francisco shall not be considered
relocation hereunder.
5.2.2 The Company may terminate Employee's employment under this
Agreement by 30 days' written notice given at any time within six months after
the Company determines that Employee (a) has committed a material breach of his
obligations under this Agreement or the Employee Proprietary Information and
Inventions Agreement, and failed to cure such breach promptly after receipt of
written notice thereof from the Chief Executive Officer of the Company, (b) has
willfully failed or refused to comply with the material policies, standards and
regulations of the Company, (c) has been guilty of fraud, dishonesty or other
acts of misconduct in rendering services on behalf of the Company, or (d) has
failed to otherwise comply with the standards of behavior which an employer
reasonably has the right to expect of an employee in a similar senior management
position.
5.2.3 In the event that the Chief Executive Officer shall reasonably
determine that Employee has become physically or mentally disabled such that
Employee shall be unable to render services to the Company to the same nature
and extent as such services were rendered immediately prior to the disability,
the Board of Directors may terminate Employee's employment under this Agreement
by 60 days' written notice effective any time after the date 13 weeks following
the determination of disability.
5.2.4 Unless earlier terminated pursuant to Section 5.1 or 5.2, this
Agreement shall terminate effective upon the second anniversary of the Effective
Date. After that date, employee shall be considered "at will" and may resign or
be terminated at any time without notice or cause.
5.3 COMPENSATION UPON TERMINATION.
5.3.1 In the event of a termination under Section 5.1 or 5.2.2,
Employee shall not be entitled to receive any compensation otherwise payable
pursuant to Sections 2.2, 2.3 or 2.5. Employee will be entitled to receive only:
(i) salary payable under Section 2.1 through the day on which Employee's
employment is terminated, together with salary, compensation or benefits which
have been earned or become payable as of the date of termination but which have
not yet been paid to Employee; and (ii) such other benefits, if any, as shall be
determined to be applicable under the circumstances and in accordance with the
Company's plans and practices in effect on the date of termination.
5.3.2 In the event of a termination under Section 5.2.1, Employee
shall be entitled to receive extraordinary compensation payable pursuant to
Sections 2.3 and 2.5, if applicable. Employee will also be entitled to receive:
(i) salary payable under Section 2.1 through the end of the month on which
Employee's employment is terminated, together with salary, compensation or
benefits which have been earned or become payable as of the date of termination
but which have not yet been paid to Employee; (ii) maintenance in effect for the
continued benefit of Employee and his dependents, at the expense of the Company,
of all insured and self-insured medical and dental benefit plans in which
Employee was participating immediately prior to termination, provided continued
participation is possible under the general terms and conditions of such plans,
until the earlier of the end of the salary period provided for in Section 2.3 or
the date on which Employee obtains comparable insurance coverage from a new
employer; and (iii) such other benefits, if any, as shall be determined to be
applicable under the circumstances and in accordance with the Company's plans
and practices in effect on the date of termination.
5.3.3 In the event of a termination under Section 5.2.3, or as a
result of Employee's retirement or death, Employee (or Employee's estate) will
be entitled to receive: (i) salary payable under Section 2.1 through the end of
the month on which Employee's employment is terminated, together with salary,
compensation or benefits which have been earned or become payable as of the date
of termination but which have not yet been paid to Employee; (ii) such other
benefits, if any, as shall be determined to be applicable under the
circumstances and in accordance with the Company's plans and practices in effect
on the date of termination; and (iii) such other awards or bonuses as the Board
of Directors in its sole discretion may determine.
6. REMEDIES.
The respective rights and duties of the Company and Employee under this
Agreement are in addition to, and not in lieu of, those rights and duties
afforded to and imposed upon them by law or at equity. Employee acknowledges
that breach of this Agreement will cause irreparable harm to the Company and
agrees to the entry of a temporary restraining order and preliminary and
permanent injunction, without the posting of a bond, by any court of competent
jurisdiction to prevent breach or further breach of this Agreement. Such remedy
shall be in addition to any other remedy available to the Company at law or in
equity.
7. SEVERABILITY OF PROVISIONS; SURVIVAL.
The provisions of this Agreement are severable, and if any provision hereof
is held or unenforceable, it shall be enforced to the maximum extent
permissible, and the remaining provisions of the Agreement shall continue in
full force and effect. The provisions of Sections 3 and 4 shall survive any
termination of this Agreement.
8. ATTORNEY FEES.
In the event a suit or action is filed to enforce this Agreement or with
respect to this Agreement, the prevailing party shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorneys' fees at the pre-trial stage,
at trial or on appeal.
9. NONWAIVER.
Failure of the Company at any time to require performance of any provision
of this Agreement shall not limit the right of the Company to enforce the
provision. No provision of this Agreement or breach thereof may be waived by
either party except by a writing signed by that party. Any waiver of any breach
of any provision of this Agreement shall be construed narrowly and shall not be
deemed to be a waiver of any succeeding breach of that provision or a waiver of
that provision itself or of any other provision.
10. MEDIATION AND ARBITRATION.
10.1 DISPUTES. Except as provided in Sections 3 and 4, the Company and
Employee agree to comply with the following a two-step dispute resolution
process with regard to any controversy or claim arising out of or relating to
this Agreement or their employment relationship ("Dispute").
10.2 MEDIATION. In the event of a Dispute the Company and Employee agree to
submit it to mediation pursuant to the mediation services of Arbitration Service
of Portland, Inc. ("ASP"). The mediation shall be conducted in Portland, Oregon,
under the rules of ASP. The mediation will be conducted as promptly as possible,
and in no event later than 90 days from the date when one party notifies the
other of its intent to submit the Dispute to mediation or the termination of
Employee's employment, whichever is later. The Company will pay the mediator's
fees and other administrative costs of the mediation process. The parties shall
bear their own attorneys' fees and other costs.
10.3 ARBITRATION. In the event the Dispute is not successfully resolved
through mediation, the parties agree that it shall be settled by arbitration
administered through the arbitration services of ASP in accordance with its
rules. Judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
The arbitrators shall have the authority to award such remedies or relief
that a court of the State of Oregon could order or grant in an action governed
by Oregon law, including, without limitation, specific performance of any
obligation created under this Agreement, the issuance of an injunction, or the
imposition of sanctions for abuse or frustration of the arbitration process, but
shall not be empowered to award punitive damages. The arbitration proceedings
shall be conducted in Portland, Oregon.
11. NOTICES.
All notices or other communications hereunder shall be deemed to have been
duly given and made if in writing and if served by personal delivery upon the
party for whom it is intended, if delivered by registered or certified mail,
return receipt requested, or by a national courier service, or if sent by
telecopier, provided that the telecopy is promptly confirmed by telephone
confirmation thereof, to the person at the address set forth below, or such
other address as may be designated in
To Employee:
Telephone:
Facsimile:
To Company:
Exelixis, Inc.
X.X. Xxx 000
000 Xxxxxx Xxx
X. XX, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
12. WITHHOLDING.
All payments to be made to Employee under this Agreement will be subject to
required withholding taxes and other deductions.
13. SUCCESSORS; BINDING AGREEMENT.
13.1 Any Successor (as hereinafter defined) to Company shall be bound by
this Agreement. At Employee's request, Company will seek to have any Successor
assent to the fulfillment by Company of its obligations under this Agreement.
For purposes of this Agreement, "Successor" shall mean any person that succeeds
to, or has the practical ability to control (either immediately or with the
passage of time), Company's business directly, by merger or consolidation, or
indirectly, by purchase of the Employer's voting securities, all or
substantially all of its assets or otherwise.
13.2 For purposes of this Agreement, "Company" shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any amalgamation, merger, consolidation, dissolution, asset or stock
acquisition or other form of business combination.
14. MISCELLANEOUS.
14.1 Except to the extent that the terms of this Agreement confer benefits
that are more favorable to Employee than are available under any other employee
benefit or executive compensation plan of Company in which Employee is a
participant, Employee's rights under any such employee benefit or executive
compensation plan shall be determined in accordance with the terms of such plan
(as it may be modified or added to by Company from time to time).
14.2 This Agreement constitutes the entire understanding between Company
and Employee relating to the employment of Employee by Company and its
affiliates and supersedes and cancels all prior agreements and understandings
with respect to the subject matter of this Agreement, including without
limitations the rights and obligations under the Prior Agreement. Employee shall
not be entitled to any payment or benefit under this Agreement which duplicates
a payment or benefit received or receivable by Employee under such prior
agreements and understandings.
14.3 This Agreement may be amended but only by a subsequent written
agreement of the parties.
14.4 This Agreement shall be binding upon and shall inure to the
benefit of Employee, his heirs, executors, administrators and beneficiaries,
and shall be binding upon and inure to the benefit of Company and its
successors and assigns.
14.5 This Agreement shall be construed in accordance with the laws of the
state of Oregon, without regard to any conflicts of laws rules thereof.
14.6 All captions used herein are intended solely for convenience of
reference and shall in no way limit any of the provisions of this Agreement.
IN WITNESS HEREOF, the parties have executed this Employment Agreement as
of the date first hereinabove written.
Exelixis, Inc. Employee:
By /s/ Xxxx X. Xxxx /s/ Xx Xxxxxx
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Xx Xxxxxx
Title Chief Financial Officer,
Vice President, Legal Affairs
and Secretary
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