Exhibit 10.1
RECITALS
WHEREAS, Employee is currently employed as the Vice President of Pharmaceutical Development of
RXi pursuant to the Existing Employment Agreement;
WHEREAS, it is proposed that Employee be employed in the same capacity by RNCS, Inc., a
Delaware corporation and wholly owned subsidiary of RXi (“RNCS”), in connection with the
transactions contemplated by the Definitive Agreements;
WHEREAS, in order to facilitate the transactions contemplated by the Definitive Agreements,
the Parties wish to terminate and Employee’s employment with RXi in conjunction with her new
employment by RNCS; and
WHEREAS, Employee wishes to resign voluntarily her employment with RXi in order to accept her
new employment with RNCS.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained in this
Agreement, the Parties agree as follows:
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Definitions. Unless otherwise defined herein, capitalized terms used herein shall
have the meanings set forth in the Existing Employment Agreement. Certain other capitalized
terms used herein shall have the meanings indicated in paragraph 7. |
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| 2. |
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Termination of Employment. |
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a) |
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Employee hereby resigns voluntarily as of the Effective Date; as such, the Term
of the Employee’s employment under the Existing Employment Agreement shall terminate on
the Effective Date, except that the provisions of the Existing Employment Agreement
that by the terms thereof are to continue beyond the Term of such employment shall not
be affected by this Agreement. |
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Transition Arrangements. |
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a) |
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In consideration of Employee’s entering into the New Employment Agreement, RXi
shall pay Employee the following compensation in lieu of any other compensation or
benefits under the Existing Employment Agreement, or otherwise: |
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1) |
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To the extent it shall not have done so previously, within
three business days following the Effective Date, RXi shall pay Employee any
accrued and unpaid Base Salary as of the Effective Date. |
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2) |
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Employee acknowledges and agrees that any and all accrued and
unpaid vacation pay and other paid time off of Employee shall be assumed by
RNCS and honored by RNCS under the New Employment Agreement. |
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3) |
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To the extent it shall not have done so previously, upon
presentation by Employee after the Effective Date, RXi shall reimburse Employee
for any previously unreimbursed business expenses incurred by her prior to the
Effective Date in accordance with RXi’s usual expense reimbursement policies. |
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4) |
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As of the Effective Date, RXi shall grant to Employee under
RXi’s 2007 Incentive Plan an option to purchase up to 150,000 shares of RXi
common stock at an exercise price equal to the closing price of RXi common
stock as reported on The NASDAQ Capital Market on the Effective Date and
otherwise on the terms set forth in the form of Option Agreement attached
hereto as Exhibit 1. RXi shall deliver to Employee the completed and
signed Option Agreement promptly following the Effective Date. |
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5) |
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Promptly following the Effective Date, RXi will amend
Employee’s currently outstanding stock options under RXi’s 2007 Incentive Plan
to provide for the continued vesting and exercisability of the options for so
long as Employee remains in the employ of RNCS and provide Employee a written
amendment to this effect to her related Option Agreements. |
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b) |
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Employee acknowledges and agrees that the foregoing compensation is all of the
compensation and benefits payable or otherwise to be provided to Employee by RXi on and
after the Effective Date in connection with or as a result of Employee’s employment, or
termination of her employment, with RXi, and that Employee is not entitled to any other
compensation, benefits or perquisites from RXi. |
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c) |
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Employee agrees that all compensation payable under this paragraph 3 shall be
paid after withholding for taxes that, in RXi’s reasonable good faith judgment, are
required to be withheld by RXi. |
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RXi Property. Employee hereby acknowledges and agrees that, to the extent she has
not previously done so, and except as RXi may otherwise agree in light of the ongoing services
to be performed by her under the New Employment Agreement, on the Effective Date Employee
shall return to RXi all RXi property, including, but not limited to, all keys, credit cards,
documents, equipment (including computer and telephone equipment) files, data, and records of
any kind whatsoever that she has, or has had, in her possession or control. |
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Transition Agreements. |
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a) |
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Subject to the terms and provisions of this Agreement and Employee’s compliance
herewith: |
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From and after the Effective Date until the Spin-Off Closing,
Employee shall be entitled to continue, at her election, to participate in all
group health plans and other employee benefit plans, including 401(k) plans,
generally made available to employees of RXi. Nothing herein, however, shall
affect RXi’s right to modify, amend, change or discontinue any such plans at
any time. |
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Release; Further Assurances. |
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a) |
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In further consideration of RXi entering into this Agreement, and its promise
to make payments and to provide benefits hereunder to which Employee is otherwise not
entitled, Employee shall, concurrently with her execution and delivery of this
Agreement, execute and deliver to RXi the Release. |
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b) |
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The Parties hereby agree to make, execute and deliver such other instruments or
documents, and to do or cause to be done such further or additional acts, as may be
reasonably necessary to effectuate the purposes or to implement the terms of this
Agreement. |
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a) |
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As used in this Agreement, the following capitalized terms shall have the
meanings indicated: |
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2) |
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“Definitive Agreements” mean, collectively, the Contribution
Agreement between RXi and RNCS and the Agreement between RNCS and Advirna, LLC,
each dated the date hereof, as they may be amended as provided therein,
together with the SPA. |
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3) |
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“Effective Date” has the meaning set forth in the RNCS
Employment Agreement. |
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4) |
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“Employee” means Xxxxxx Xxxxx, Ph.D. |
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5) |
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“Existing Employment Agreement” means the Employment Agreement,
made as of March 7, 2007, between Employee and RXi, as amended to date. |
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6) |
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“New Employment Agreement” means the Employment Agreement to be
entered into between RNCS and Employee on terms mutually satisfactory to RNCS
and Employee. |
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7) |
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“Parties” means the Employee and RXi, collectively. |
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8) |
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“RXi” means RXi Pharmaceuticals Corporation, a Delaware
corporation (to be renamed Galena Biopharma, Inc.). |
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9) |
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“Release” means the General Release in the form attached hereto
as Exhibit 2. |
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10) |
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“SPA” means the Securities Purchase Agreement among RXi, RNCS,
Tang Capital Partners L.P., and RTW Investments, LLC, dated the date hereof, as
it may be amended as provided therein. |
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11) |
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“Spin-Off Closing” has the meaning set forth in the SPA. |
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a) |
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This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of Massachusetts without regard to any conflict or choice
of law rules that would result in the application of any other state’s law. |
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b) |
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Should any provision of this Agreement or any portion hereof, be declared or be
determined by any court to be illegal or invalid, the validity of the remaining parts,
terms or provisions shall not be affected thereby and said illegal or invalid part,
term or provision shall be automatically conformed to the law, if possible, or deemed
not to be part of this Agreement. |
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c) |
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The Parties to this Agreement acknowledge that they have entered into this
Agreement voluntarily, without coercion and based upon their judgment and not in
reliance upon any representation or promises made by the other party other than those
contained or referred to herein. This Agreement, including Exhibits, incorporates and
constitutes the entire agreement among the Parties regarding the subject matter hereof
and supersedes all prior negotiations, understandings and agreements between the
Parties hereto with respect to the subject matter hereof. This Agreement may not be
modified or cancelled, nor may any provision with respect to it be waived, except in a
writing signed by the Parties. |
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d) |
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This Agreement shall be binding upon and inure to the benefit of the Parties
and their respective heirs, legal representatives, successors and assigns. |
[Signature Page Follows]
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/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX, Ph.D. |
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RXi PHARMACEUTICALS CORPORATION
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By: |
/s/ Xxxx X. Xxx |
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Xxxx X. Xxx, Ph.D. |
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President and Chief Executive Officer |
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ACKNOWLEDGED:
RNCS, INC.
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By: |
/s/ Xxxx X. Xxx |
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Xxxx X. Xxx, Ph.D. |
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President and Chief Financial Officer |
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