Exhibit 10.4
CIMA LABS INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into on
April 30, 2003 by and between Cima Labs Inc., a Delaware corporation with its
headquarters in Eden Prairie, Minnesota (the "Company"), and Xxxxxx X. Xxxxxx, a
resident of Arizona ("Executive").
A. The Company develops and manufactures prescription and
over-the-counter pharmaceutical products using fast-dissolve drug delivery
technologies for sale around the world.
B. Executive is an experienced business manager in the
pharmaceutical industry and is Chairman of the Board of Directors of the
Company.
C. The Company's President and Chief Executive Officer has
announced his retirement from the Company effective December 31, 2003 and from
his position as President and Chief Executive Officer effective April 30, 2003.
D. The Company desires for Executive to serve as interim Chief
Executive Officer while it completes a search for candidates for the position,
and Executive desires to serve in this capacity, subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the respective agreements of the Company and Executive set forth below, the
Company and Executive, intending to be legally bound, agree as follows:
1. Employment. Effective as of May 1, 2003, the Company shall
employ Executive, and Executive shall accept such employment and perform
services for the Company, upon the terms and conditions set forth in this
Agreement.
2. Term of Employment. Unless terminated at an earlier date in
accordance with Section 9 hereof, the term of Executive's employment with the
Company shall be for the period commencing on May 1, 2003 and ending on October
31, 2003 (the "Term").
3. Position and Duties.
(a) Employment with the Company. During Executive's employment
with the Company hereunder, Executive shall report to the Board of Directors of
the Company (the "Board") and shall perform such duties and responsibilities as
the Board shall assign to him from time to time consistent with his position.
Executive shall be an executive officer of the Company and Executive's title
shall be "Interim Chief Executive Officer".
(b) Board of Directors. Executive is currently a member and
Chairman of the Board. While Executive is employed hereunder, Executive shall
not receive any additional compensation from the Company in connection with his
service as a director or Chairman.
(c) Performance of Duties and Responsibilities. Executive shall
serve the Company faithfully and to the best of his ability and shall devote his
full working time, attention and efforts to the business of the Company during
his employment with the Company. Executive hereby represents and confirms that
he is under no contractual or legal commitments that would prevent him from
fulfilling his duties and responsibilities as set forth in this Agreement.
During his employment with the Company, Executive may participate in charitable
activities and personal investment activities to a reasonable extent, and,
subject to prior Board approval, may serve on boards of directors of other
companies, so long as such activities do not interfere with the performance of
his duties and responsibilities hereunder. The Company acknowledges and consents
to Executive's service on the board of directors of Inkine Pharmaceutical
Company, Inc.
(d) Location. While Executive is employed by the Company
hereunder, his employment shall be based at the Company's headquarters in Eden
Prairie, Minnesota. Executive shall be available at the headquarters of the
Company as reasonably required to carry out his duties and responsibilities
hereunder.
4. Compensation.
(a) Base Salary. While Executive is employed by the Company
hereunder, the Company shall pay to Executive a monthly base salary of $28,045,
less deductions and withholdings, which base salary shall be paid in accordance
with the Company's normal payroll policies and procedures.
(b) Incentive Bonus. While Executive is employed by the Company
hereunder, Executive shall be eligible for an incentive bonus award of up to 70%
of Executive's base salary, based upon achievement of defined objectives, to be
determined in the sole discretion of the Board.
(c) Stock Options. Subject to approval by the Board and the terms
of a definitive stock option agreement to be entered into by the Company and
Executive, the Company shall grant Executive a stock option to purchase 35,000
shares of common stock of the Company, which option shall vest 50% upon
commencement of Executive's employment hereunder and 50% on the first
anniversary of the commencement of Executive's employment hereunder, provided
that Executive continues as an employee, consultant or director of the Company
on such anniversary date.
(d) Employee Benefits. Except as specifically stated in this
Agreement, while Executive is employed by the Company hereunder, Executive shall
not be entitled to participate in any employee benefit plans or programs of the
Company. Executive hereby waives all right and interest he may have to benefits
under such plans, including without limitation all medical
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and dental plans, life and disability insurance plans, and retirement or pension
plans sponsored by the Company.
(e) Expenses. While Executive is employed by the Company
hereunder, the Company shall reimburse Executive for all reasonable and
necessary out-of-pocket business, travel and entertainment expenses incurred by
him in the performance of his duties and responsibilities hereunder, subject to
the Company's normal policies and procedures for expense verification and
documentation. The Company shall also provide appropriate living and travel
arrangements for Executive in the Minneapolis, Minnesota metropolitan area. If
any of the payments made by the Company as described in this Section 4(e) are
determined to be income to Executive for federal income tax purposes, the
Company shall also pay to Executive an additional amount equal to 40% of the
amount determined to be income.
(f) Vacation. While Executive is employed by the Company
hereunder, Executive shall receive two (2) weeks paid vacation time off.
Vacation time shall be taken at such times so as not to unduly disrupt the
operations of the Company.
5. Confidential Information. Except as permitted by the Company's
Board, during the term of Executive's employment with the Company and at all
times thereafter, Executive shall not divulge, furnish or make accessible to
anyone or use in any way other than in the ordinary course of the business of
the Company, any confidential, proprietary or secret knowledge or information of
the Company that Executive has acquired or shall acquire during his employment
with the Company, whether developed by himself or by others, concerning (i) any
trade secrets, (ii) any confidential, proprietary or secret designs, processes,
formulae, plans, devices or material (whether or not patented or patentable)
directly or indirectly useful in any aspect of the business of the Company,
(iii) any customer or supplier lists of the Company, (iv) any confidential,
proprietary or secret development or research work of the Company, (v) any
strategic or other business, marketing or sales plans of the Company, (vi) any
financial data or plans respecting the Company, or (vii) any other confidential
or proprietary information or secret aspects of the business of the Company.
Executive acknowledges that the above-described knowledge and information
constitutes a unique and valuable asset of the Company and represents a
substantial investment of time and expense by the Company, and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of the Company would be wrongful and would cause irreparable harm to the
Company. During the term of Executive's employment with the Company, Executive
shall refrain from any acts or omissions that would reduce the value of such
knowledge or information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that (i) is now
or subsequently becomes generally publicly known in the form in which it was
obtained from the Company, (ii) is independently made available to Executive in
good faith by a third party who has not violated a confidential relationship
with the Company, or (iii) is required to be disclosed by legal process, other
than as a direct or indirect result of the breach of this Agreement by
Executive.
6. Ventures. If, during the term of Executive's employment with
the Company, Executive is engaged in or associated with the planning or
implementing of any
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project, program or venture involving the Company and a third party or parties,
all rights in such project, program or venture shall belong to the Company.
Except as approved in writing by the Board, Executive shall not be entitled to
any interest in any such project, program or venture or to any commission,
finder's fee or other compensation in connection therewith, other than the
compensation to be paid to Executive by the Company as provided herein.
Executive shall have no interest, direct or indirect, in any customer or
supplier that conducts business with the Company, unless such interest has been
disclosed in writing to and approved by the Board before such customer or
supplier seeks to do business with the Company. Ownership by Executive, as a
passive investment, of less than 5.0% of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section 6.
7. Noncompetition Covenant.
(a) Agreement Not to Compete. During the term of Executive's
employment with the Company and for a period of twelve (12) consecutive months
from the date of the termination of such employment, whether such termination is
with or without Cause (as defined below), or whether such termination is at the
instance of Executive or the Company, Executive shall not, directly or
indirectly, throughout North America, engage in any business that the Company
has engaged in during the term of Executive's employment with the Company, or
any part of such business, including without limitation the design, development,
manufacture, distribution, marketing or selling of pharmaceutical products using
fast-dissolve drug delivery technologies, in any manner or capacity, including
without limitation as a proprietor, principal, agent, partner, officer,
director, stockholder, employee, member of any association, consultant or
otherwise. Ownership by Executive, as a passive investment, of less than 2.5% of
the outstanding shares of capital stock of any corporation listed on a national
securities exchange or publicly traded in the over-the-counter market shall not
constitute a breach of this Section 7(a).
(b) Agreement Not to Hire. During the term of Executive's
employment with the Company and for a period of twelve (12) consecutive months
from the date of the termination of such employment, whether such termination is
with or without Cause (as defined below), or whether such termination is at the
instance of Executive or the Company, Executive shall not, directly or
indirectly, hire, engage or solicit any person who is then an employee of the
Company or who was an employee of the Company at the time of Executive's
termination of employment, in any manner or capacity, including without
limitation as a proprietor, principal, agent, partner, officer, director,
stockholder, employee, member of any association, consultant or otherwise.
(c) Agreement Not to Solicit. During the term of Executive's
employment with the Company and for a period of twelve (12) consecutive months
from the date of the termination of such employment, whether such termination is
with or without Cause (as defined below), or whether such termination is at the
instance of Executive or the Company, Executive shall not, directly or
indirectly, solicit, request, advise or induce any current or potential
customer, supplier or other business contact of the Company on behalf of any
entity competing with the Company or to cancel, curtail or otherwise change its
relationship with the Company, in any manner or capacity, including without
limitation as a proprietor, principal, agent, partner,
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officer, director, stockholder, employee, member of any association, consultant
or otherwise. A "current customer" is defined as a customer of the Company as of
the Termination Date (as defined below). A "potential customer" is an entity
with which the Company has had significant and substantive discussions within
one year prior to, or is having significant and substantive discussions as of,
the Termination Date.
(d) Acknowledgment. Executive hereby acknowledges that the
provisions of this Section 7 are reasonable and necessary to protect the
legitimate interests of the Company and that any violation of this Section 7 by
Executive shall cause substantial and irreparable harm to the Company to such an
extent that monetary damages alone would be an inadequate remedy therefor.
Therefore, in the event that Executive violates any provision of this Section 7,
the Company shall be entitled to an injunction, in addition to all the other
remedies it may have, restraining Executive from violating or continuing to
violate such provision.
(e) Blue Pencil Doctrine. If the duration of, the scope of or any
business activity covered by any provision of this Section 7 is in excess of
what is valid and enforceable under applicable law, such provision shall be
construed to cover only that duration, scope or activity that is valid and
enforceable. Executive hereby acknowledges that this Section 7 shall be given
the construction which renders its provisions valid and enforceable to the
maximum extent, not exceeding its express terms, possible under applicable law.
8. Patents, Copyrights and Related Matters.
(a) Disclosure and Assignment. Executive shall immediately
disclose to the Company any and all improvements, inventions, ideas, and
discoveries that Executive may conceive and/or reduce to practice individually
or jointly or commonly with others while he is employed with the Company with
respect to (i) any methods, processes or apparatus concerned with the
development, use or production of any type of products, goods or services sold
or used by the Company, and (ii) any type of products, goods or services sold or
used by the Company. Executive also shall immediately assign, transfer and set
over to the Company his entire right, title and interest in and to any and all
of such inventions as are specified in this Section 8(a), and in and to any and
all applications for letters patent that may be filed on such inventions, and in
and to any and all letters patent that may issue, or be issued, upon such
applications. In connection therewith and for no additional compensation
therefor, but at no expense to Executive, Executive shall sign any and all
instruments deemed necessary by the Company for:
(i) the filing and prosecution of any applications for
letters patent of the United States or of any
foreign country that the Company may desire to file
upon such inventions as are specified in this
Section 8(a);
(ii) the filing and prosecution of any divisional,
continuation, continuation-in-part or reissue
applications that the Company may desire to file
upon such applications for letters patent; and
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(iii) the reviving, re-examining or renewing of any
of such applications for letters patent.
This Section 8(a) shall not apply to any invention for which no equipment,
supplies, facilities, confidential, proprietary or secret knowledge or
information, or other trade secret information of the Company was used and that
was developed entirely on Executive's own time, and (i) that does not relate (A)
directly to the business of the Company, or (B) to the Company's actual or
demonstrably anticipated research or development, or (ii) that does not result
from any work performed by Executive for the Company.
(b) Copyrightable Material. All right, title and interest in all
copyrightable material that Executive shall conceive or originate individually
or jointly or commonly with others, and that arise during the term of his
employment with the Company and out of the performance of his duties and
responsibilities under this Agreement, shall be the property of the Company and
are hereby assigned by Executive to the Company, along with ownership of any and
all copyrights in the copyrightable material. Upon request and without further
compensation therefor, but at no expense to Executive, Executive shall execute
any and all papers and perform all other acts necessary to assist the Company to
obtain and register copyrights on such materials in any and all countries. Where
applicable, works of authorship created by Executive for the Company in
performing his duties and responsibilities hereunder shall be considered "works
made for hire," as defined in the U.S. Copyright Act.
(c) Know-How and Trade Secrets. All know-how and trade secret
information conceived or originated by Executive that arises during the term of
his employment with the Company and out of the performance of his duties and
responsibilities hereunder or any related material or information shall be the
property of the Company, and all rights therein are hereby assigned by Executive
to the Company.
9. Termination of Employment.
(a) The Executive's employment with the Company shall terminate
immediately upon:
(i) Executive's receipt of written notice from the
Company of the termination of his employment;
(ii) Executive's abandonment of his employment or his
resignation;
(iii) Executive's death or Disability (as defined below);
or
(iv) the expiration of the Term, as specified in Section
2 hereof.
(b) The date upon which Executive's termination of employment
with the Company occurs shall be the "Termination Date."
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10. Payments upon Termination of Employment.
(a) If Executive's employment with the Company is terminated,
before the expiration of the Term, by the Company for any reason other than for
Cause (as defined below), the Company shall continue to pay to Executive his
base salary from the Termination Date through the remainder of the Term.
(b) If Executive's employment with the Company is terminated by
reason of:
(i) Executive's resignation or abandonment of his
employment,
(ii) termination of Executive's employment by the
Company for Cause (as defined below),
(iii) Executive's death or Disability, or
(iv) the expiration of the Term, as specified in Section
2 hereof,
the Company shall pay to Executive or his beneficiary or his estate, as the case
may be, his base salary through the Termination Date.
(c) "Cause" hereunder shall mean:
(i) an act or acts of dishonesty undertaken by
Executive and intended to result in substantial
gain or personal enrichment of Executive at the
expense of the Company;
(ii) unlawful conduct or gross misconduct that is
willful and deliberate on Executive's part and
that, in either event, is materially injurious to
the Company;
(iii) the conviction of Executive of a felony;
(iv) failure of Executive to perform his duties and
responsibilities hereunder or to satisfy his
obligations as an officer or employee of the
Company, which failure has not been cured by
Executive within 30 days after written notice
thereof to Executive from the Company; or
(v) material breach of any terms and conditions of this
Agreement by Executive not caused by the Company.
(d) "Disability" hereunder shall mean the inability of Executive
to perform on a full-time basis the duties and responsibilities of his
employment with the Company by reason
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of his illness or other physical or mental impairment or condition, if such
inability continues for an uninterrupted period of thirty (30) days or more
during the Term. A period of inability shall be "uninterrupted" unless and until
Executive returns to full-time work for a continuous period of at least fifteen
(15) days.
(e) In the event of termination of Executive's employment, the
sole obligation of the Company shall be its obligation to make the payments
called for by Section 10(a) or Section 10(b) hereof, as the case may be, and the
Company shall have no other obligation to Executive or to his beneficiary or his
estate, except as otherwise provided by law or under the terms of any other
applicable agreement between Executive and the Company.
(f) Notwithstanding the foregoing provisions of this Section 10,
the Company shall not be obligated to make any payments to Executive under
Section 10(a) hereof unless Executive shall have signed a release of claims in
favor of the Company in a form to be prescribed by the Board, all applicable
consideration periods and rescission periods provided by law shall have expired
and Executive is in strict compliance with the terms of this Agreement as of the
dates of the payments. Such release of claims shall not include a release by
Executive of claims he may have for indemnification under the charter documents
of the Company, under any insurance policy maintained by the Company, or under
applicable federal, state or local indemnification laws.
11. Return of Records and Property. Upon termination of his
employment with the Company, Executive shall promptly deliver to the Company any
and all Company records and any and all Company property in his possession or
under his control, including without limitation manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, printouts, computer
disks, computer tapes, source codes, data, tables or calculations and all copies
thereof, documents that in whole or in part contain any trade secrets or
confidential, proprietary or other secret information of the Company and all
copies thereof, and keys, access cards, access codes, passwords, credit cards,
personal computers, telephones and other electronic equipment belonging to the
Company; provided, however, that if Executive continues as a director of the
Company following the termination of his employment hereunder, Executive may
retain all property and records of the Company in his possession in connection
with his position as a director.
12. Remedies.
(a) Remedies. Executive acknowledges that it would be difficult
to fully compensate the Company for monetary damages resulting from any breach
by him of the provisions of Sections 5, 7, 8 and 11 hereof. Accordingly, in the
event of any actual or threatened breach of any such provisions, the Company
shall, in addition to any other remedies it may have, be entitled to injunctive
and other equitable relief to enforce such provisions, and such relief may be
granted without the necessity of proving actual monetary damages.
(b) Arbitration. Except for disputes arising under Sections 5, 7
or 8 hereof, all disputes involving the interpretation, construction,
application or alleged breach of this
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Agreement and all disputes relating to Executive's employment with the Company
or the termination of such employment shall be submitted to final and binding
arbitration in Minneapolis, Minnesota. The arbitrator shall be selected and the
arbitration shall be conducted pursuant to the then most recent Employment
Dispute Resolution Rules of the American Arbitration Association. The decision
of the arbitrator shall be final and binding, and any court of competent
jurisdiction may enter judgment upon the award. All fees and expenses of the
arbitrator shall be paid by the Company. The arbitrator shall have jurisdiction
and authority to interpret and apply the provisions of this Agreement and
relevant federal, state and local laws, rules and regulations insofar as
necessary to the determination of the dispute and to remedy any breaches of the
Agreement and/or violations of applicable laws, but shall not have jurisdiction
or authority to alter in any way the provisions of this Agreement. The
arbitrator shall have the authority to award attorneys' fees and costs to the
prevailing party. The parties hereby agree that this arbitration provision shall
be in lieu of any requirement that either party exhaust such party's
administrative remedies under federal, state or local law.
(c) Jurisdiction and Venue. Executive and the Company consent to
jurisdiction of the courts of the State of Minnesota and/or the federal district
courts, District of Minnesota, for the purpose of resolving all issues of law,
equity, or fact arising out of or in connection with Sections 5, 7 or 8 of this
Agreement. Any action involving claims of a breach of such Sections shall be
brought in such courts. Each party consents to personal jurisdiction over such
party in the state and/or federal courts of Minnesota and hereby waives any
defense of lack of personal jurisdiction. Venue, for the purpose of all such
suits, shall be in Hennepin County, State of Minnesota.
13. Miscellaneous.
(a) Governing Law. All matters relating to the interpretation,
construction, application, validity and enforcement of this Agreement shall be
governed by the laws of the State of Minnesota without giving effect to any
choice or conflict of law provision or rule, whether of the State of Minnesota
or any other jurisdiction, that would cause the application of laws of any
jurisdiction other than the State of Minnesota.
(b) Entire Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter of this Agreement and
supersedes all prior agreements and understandings with respect to such subject
matter, and the parties hereto have made no agreements, representations or
warranties relating to the subject matter of this Agreement that are not set
forth herein.
(c) Amendments. No amendment or modification of this Agreement
shall be deemed effective unless made in writing and signed by the parties
hereto.
(d) No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. Any written waiver shall not
be deemed a continuing waiver unless specifically stated, shall operate only as
to the specific term or condition waived
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and shall not constitute a waiver of such term or condition for the future or as
to any act other than that specifically waived.
(e) Assignment. This Agreement shall not be assignable, in whole
or in part, by either party without the written consent of the other party,
except that the Company may, without the consent of Executive, assign its rights
and obligations under this Agreement to any corporation or other business entity
(i) with which the Company may merge or consolidate, (ii) to which the Company
may sell or transfer all or substantially all of its assets or capital stock, or
(iii) of which 50% or more of the capital stock or the voting control is owned,
directly or indirectly, by the Company. After any such assignment by the
Company, the Company shall be discharged from all further liability hereunder
and such assignee shall thereafter be deemed to be the "Company" for purposes of
all terms and conditions of this Agreement, including this Section 13.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, and such counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
(g) Severability. Subject to Section 7(e) hereof, to the extent
that any portion of any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full
force and effect.
(h) Captions and Headings. The captions and paragraph headings
used in this Agreement are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement or any of the
provisions hereof.
IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement as of the date set forth in the first paragraph.
CIMA LABS INC.
By /s/ Xxxx X. Xxxxxxxx
---------------------------------
Its Director
---------------------------------
/s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX
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