EXHIBIT 10.7
EMPLOYMENT AGREEMENT
AGREEMENT, dated and effective as of September 3, 1996 by and between
PerArdua Corporation, a Missouri corporation, (the "Company") and Xxxx Xxxxxxx
Xxxx, an individual with an ADDRESS AT 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 ("Executive").
WITNESSETH:
WHEREAS, the Executive is willing to serve as Executive Vice President
and Chief Operating Officer of the Company, and the Company desires to retain
the Executive in such capacities on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Employment; Position and Duties; Extent of Services.
(a) Employment. The Company agrees to employ the Executive,
and the Executive agrees to be employed by the Company, for the Term provided in
Section 2 below and upon the other terms and conditions hereinafter provided.
(b) Position and Duties. During the Term as defined in
Section 2 herein, the Executive agrees to serve as the Executive Vice
President and Chief Operating Officer of the Company and to perform such
reasonable duties consistent with such position as may be delineated by the
Chief Executive Officer and as may be assigned to her from time to time by the
Board of Directors and/or Chief Executive Officer of the Company.
(c) Extent of Services. During the Term, and except for
illness or incapacity, the executive shall devote not less than seventy-five
percent (75%) of her business time, attention, skill and efforts exclusively to
the business and affairs of the Company, shall not be engaged in any business
activity in violation of Section 6 of this Agreement or which would conflict
with her obligations hereunder, and shall perform and discharge well and
faithfully the duties which may be assigned to her from time to time by the
Chief Executive Officer and/or Board of Directors; provided, however, that
nothing in this Agreement shall preclude the Executive from devoting
reasonable time during reasonable periods required for any or all of the
following:
1
(i) serving as a director or member of a committee of any
other company or organization involving no actual or potential conflict of
interest with the Company or any of its subsidiaries or affiliates;
(ii) engaging in charitable and community activities;
(iii) investing her personal assets in businesses in such
form or manner as will not require any services on the part of the Executive in
the operation or affairs of such businesses; and/or
(iv) serving as biotechnology transfer advisor to the
University of Southern California in a manner similar to the period prior to her
employment with the Company.
At the request of the Company, the Executive shall advise the Company
of the nature and identity of other business organizations or endeavors in which
she may be involved.
2. Term of Employment.
The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to accept such employment in the capacity set forth herein, for a
period of time commencing on the Monday following the date on which the Company
shall have completed a $1,000,000 private placement of its Common Stock to
investors (the "Commencement Date"), but if the Commencement Date shall not have
occurred on or prior to October 31, 1996, then this Agreement shall be null and
void and of no further force and effect.. The term shall continue after the
Commencement Date until the first to occur of the following: (i) the first
anniversary of the Commencement Date, or (ii) the closing date of an
underwritten initial public offering of the Company's securities which Offering
has been registered with the Securities and Exchange Commission pursuant to the
registration provisions of the Securities Act of 1933, as amended; provided,
however, that either party may terminate this agreement at any time by written
notice to the other given at least ninety (90) days prior to the termination
date specified in such written notice. The Company agrees that, at least thirty
days prior to the anticipated expiration of the term specified hereinabove, it
will, if the Executive so desires, negotiate in good faith with the Executive
regarding continued employment beyond said expiration date pursuant to a
compensation arrangement which would include a performance bonus in the event
the Executive refers to the Company, and the company acquires or obtains rights
to or an exclusive license to, products or rights to products which are
complementary to products or rights then possessed by the Company.
2
3. Compensation.
As compensation to the Executive for all services to be rendered by her
in any capacity hereunder, the Company shall pay a monthly salary at a rate of
Five Thousand and no/100 Dollars ($5,000.00) payable twice monthly. Executive
shall be entitled to four (4) weeks paid vacation per year. In additions
promptly upon commencement of Executive's employment hereunder the Company shall
grant to her incentive stock options to purchase lO,OOO shares at a price of
$7.50 per share and fully vesting one year after said commencement date.
4. Location.
Executive shall maintain an office at, and shall work out of, her
residence in Los Angeles, California or such other residence that she maintains
from time to time in the United States. The Company shall pay to Executive the
sum of One Thousand Dollars ($1,000) each month to defray the costs of such an
office and, in addition to such monthly payment, shall provide and pay for the
following: a separate telephone line dedicated to the affairs of the Company; a
separate telephone facsimile line dedicated to the affairs of the Company;
appropriate telephone and facsimile equipment; a personal computer and modem
as may be acceptable to the Company in its discretion reasonably exercised; any
computer software acceptable to the Company in its discretion reasonably
exercised; and such other office supplies and equipment as may be approved in
advance by the Company. The Company is not obligated to provide any office
furniture.
5. Trade Secrets and Confidential Information.
(a) Definition. As used in this Agreement (i) "Confidential Information
and Trade Secrets" means all information, processes, process parameters,
methods, practices, chemical and other formulae, fabrication techniques,
technical plans, algorithms, computer programs and related documentation,
customer lists, price lists, supplier lists, marketing plans, financial
information, and all other compilations of information which relate to the
business of the Company and which have not been released by the Company to the
general public, but shall not include general technical and business skills and
expertise which Executive has acquired or developed by reason of prior
experience, and (ii) a "Business Competitive with the Company" means an
enterprise which is engaged in the development or promotion of a product or
service which may be reasonablely considered to compete, or have the potential
to compete, in the marketplace with a product or service which the Company has
been developing or promoting, or has had plans to develop or promote, at anytime
during the Executive's employment hereunder.
(b) Restrictive Covenants.
(i) EXECUTIVE acknowledges that during the term of employment with the
3
Company, Executive will have access to and become acquainted with the
Confidential Information and Trade Secrets of the Company. Executive agrees not
to use or disclose (directly or indirectly) any Confidential Information and
Trade Secrets of the Company at any time or in any manner, except as required
in the course of employment with the Company. The obligations of this paragraph
are continuing and survive the termination of Executive's employment with the
Company. All documents and equipment relating to the business of the Company,
whether prepared by Executive or otherwise coming into Executive's possession,
are the exclusive property of the Company, and must not be removed from the
premises of the Company except as required in the course of employment with the
Company. All such documents and equipment must be returned to the Company when
Executive leaves the employment of the Company.
(ii) While employed by the Company, Executive agrees not to undertake
any planning for any outside business which would constitute a Business
Competitive with the Company.
(iii) While employed by the Company and for five (5) years after that
employment ends, Executive agrees not to enter into any employment with a
Business Competitive with the Company in which the complete fulfillment of the
duties of the competitive employment would inherently require Executive to
reveal or use any of the Confidential Information and Trade Secrets of the
Company learned or obtained by Executive while employed by the Company.
(iv) While employed by the Company and for five (5) years after that
employment ends, Executive agrees not to divert or attempt to divert (by
solicitation or by any other means) the customers of the Company existing at the
time Executive's employment ends.
(c) No Conflict.
The Company acknowledges and agrees that the Executive's
activities as biotechnology transfer advisor to the University of Southern
California shall not be in conflict with any of the provisions of this
agreement.
6. Miscellaneous.
(a) Successors and Assigns. This Agreement is intended to benefit
and is binding on (i) the successors and assigns of the Company and (ii) the
heirs and legal successors of Executive.
(b) Governing law. This Agreement shall be construed in accordance
with and governed by the laws of the State of California.
4
(c) Separate Enforcement of Provisions. If for any reason a part
of this Agreement is unenforceable, the remainder of the Agreement shall be
enforced to the extent possible.
(d) Modification of Agreement. This Agreement may only be modified
by a writing signed (i) by Executive and (ii) by an authorized representative of
the Company.
(e) No Conflicting Contracts. Executive represents that Executive
has no contracts with any other party that would interfere with Executive's
compliance with the terms and conditions of this Agreement.
(f) No Right to Continuing Employment. No provision of this
Agreement shall be construed as giving Executive the right to be retained in the
employment of the Company, except to the extent expressly set forth in this
Agreement.
Executed as of the date first above written.
/S/ Xxxx Xxxxxxx Xxxx
--------------------------------------------- PerArdua Corporation
Xxxx Xxxxxxx Xxxx
By: /S/ Xxxxxx X. Xxxxx, Xx.
-------------------------
Treasurer
AMENDMENT NO.1
TO
EMPLOYMENT AGREEMENT
Reference is made to an Employment Agreement dated September 3, 1996, by
and between PerArdua Corporation, a Missouri corporation which, subsequent to
September 3, 1996, merged with and into PerArdua Corporation, a Deleware
corporation (the"Company") and Xxxx Xxxxxxx Xxxx, an individual with an address
at 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxxxx , Xxxxxxxxxx 00000 ("Executive").
The Company and Executive do hereby agree to amend the aforesaid Employment
Agreement, as follows:
1.Section 1 (b): The words "and Chief Operating Officer" are deleted.
2. Section 1 (c): In the first sentence, the words/numbers "seventy-five
percent (75%)" are deleted, and there is substituted therefor "eighty percent
(80%)."
3.Section 2: The parties acknowledge that the Comencement Date occured
prior to October 31, 1996. The second sentence is deleted and there is
substituted therefor the following: "The term shall continue after the
Commencement Date until February 29, 2000, provided, however, that either party
may terminate this agreement at any time by written notice to the other given at
least ninety (90) days prior to the termination date specified in such written
notice."
4. Section 3: Beginning with the Monday first following the effective date
(the "Effective Date") of an underwritten initial public offering of the
Company's securities which offering has been registered with the Securities and
Exchange commission pursuant to the registration provisions of the Securities
Act of 1933, as amended, the Executive's monthly salary shall be increased from
$5,000 per month to $7,000 per month. The balance of the provisions in Section 3
shall remain in full force and effect. In addition. Executive shall receive upon
Effective Date stock options pusuant to the Company's 1996 Incentive Stock
Option Plan to purchase 100,000 shares of the Company's Common Stock at a price
not less than $5.00 per share. Such options shall be contingent upon continued
employment with the Company, and shall vest at the following rate: 35,000 shares
on January 1, 1998, 35,000 shares January 1, 1999, and 30,000 shares on January
1, 2000. Executive shall also be entitled to receive upon the Effective Date
medical insurance to the same extent as is provided to other management
personnel of the Company.
Except as amended hereby, the Company and Executive hereby ratify confirm
and approve the Employment Agreement.
Executed as of February 20, 1997.
Company: PerArdua Corporation
by: Xxxxxx X. Xxxxx
-----------------------
Executive: Xxxx Xxxxxxx Xxxx
-----------------------
Xxxx Xxxxxxx Xxxx
