Contract
Exhibit
10.1
AGREEMENT
This Agreement (“Agreement”) shall be effective
as of August 13, 2009, by and between DISCOVERY LABORATORIES, INC., a Delaware
corporation (“Company”)
and W. XXXXXX XXXXX, Chairman of the Board of Directors of the Company (“Xxxxx”).
WHEREAS,
the Company has requested that Xxxxx, in addition to serving as Chairman of the
Board, accept the position of Chief Executive Officer (“CEO”), and Xxxxx has agreed to
serve in that capacity on a part-time, interim basis and on the terms as set
forth in this Agreement.
NOW,
THEREFORE, intending to be legally bound, , the Company and Xxxxx agree as
follows:
1. CEO
Appointment. The Company hereby appoints Xxxxx, and Xxxxx
agrees to serve, as CEO of the Company. The parties agree that Xxxxx
will continue to serve as Chairman of the Company’s Board of Directors during
the Term of this Agreement.
2. Duties. Xxxxx
will be responsible for all duties customarily associated with the title CEO,
with a specific focus on securing strategic alliance partners and/or accessing
capital through financing and other transactions to advance the Company’s
KL4
surfactant pipeline and to build shareholder value.
3. Term. Xxxxx
will serve as CEO until such time as the Company’s Board of Directors determine
that his services as CEO are no longer needed (the “Term”). In any
event, unless extended in writing, this Agreement will terminate on June 30,
2010.
4. Time;
Location. During the Term, Xxxxx agrees to devote,
on a part-time basis, such of his business time, attention and efforts as
reasonably necessary to the proper performance of his duties. The
parties currently expect that his duties will require, on average, approximately
two days per week. Xxxxx will render services to the Company at the
Company’s headquarters located in Doylestown, Pennsylvania, or at such other
places as he shall deem appropriate for the performance of his
duties.
5. Compensation. In
consideration of the services to be provided under this Agreement, the Company
will pay Xxxxx at a per diem rate of Three Thousand Dollars
($3,000), payable monthly in arrears at the end of each calendar
month. In addition:
(a) the
Company will pay or reimburse Xxxxx for all reasonable expenses incurred in
carrying out his duties and responsibilities under this Agreement, including
lodging and travel expenses, subject to submission of documentation in
accordance with the Company’s reimbursement policies.
(b) Xxxxx
shall be entitled to an award of 60,000 options to purchase common stock of the
Company under the Company’s 2007 Long-Term Incentive Plan, on such terms and
effective as of such date as are approved by the Compensation Committee of the
Company’s Board of Directors.
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6. Representations, Warranties
and Covenants of Xxxxx.
(a) Xxxxx
represents and warrants to the Company that he is presently under no contractual
or other restriction or obligation which is inconsistent with his execution of
this Agreement or the performance of the obligations hereunder, and during the
Term, Xxxxx covenants that he shall not enter into any agreement, either written
or oral, in conflict with this Agreement. The Company acknowledges
that Xxxxx currently serves as Chairman of Aldagen, Inc., is an advisor to
several private equity firms focused on the biopharmaceutical industry and
serves as a member of the board of directors of several biotechnology
companies.
(b) Xxxxx
represents and agrees that he has not been debarred by the U. S. Food and Drug
Administration or any equivalent foreign agency from practicing before such
agency. Xxxxx further agrees that he will notify the Company
immediately in the event of any debarment or threat of debarment occurring
during the period in which Xxxxx is performing services.
7. Termination. Either
party may terminate this Agreement at any time upon ten (10) days written notice
to the other party.
8. Independent
Contractor. Xxxxx is and throughout the Term shall be an
independent contractor and not an employee of the Company. Xxxxx
shall not be entitled to nor receive any benefit normally provided to the
Company’s employees such as, but not limited to, vacation payment, retirement,
health care or sick pay. The Company shall not be responsible for
withholding income or other taxes from the payments made to
Xxxxx. Xxxxx shall be solely responsible for filing all returns and
paying any federal, state and municipal income, social security or other tax
levied upon or determined with respect to the payments made to Xxxxx pursuant to
this Agreement.
9. Controlling
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Pennsylvania without reference to any
conflict of law principles of such State.
10. Headings. The
headings in this Agreement are inserted for convenience only and shall not be
used to define, limit or describe the scope of this Agreement or any of the
obligations herein.
11. Final
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to its subject matter and supersedes all prior
negotiations, understandings and agreements between the parties, whether written
or oral. This Agreement may be amended, supplemented or
changed only by an agreement in writing signed by both of the
parties.
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12. Notices. Any
notice required to be given or otherwise given pursuant to this Agreement shall
be in writing and shall be hand delivered, mailed by certified mail, return
receipt requested or sent by recognized overnight courier service as
follows:
If to
Xxxxx:
W. Xxxxxx
Xxxxx
[at the
address and fax number maintained in the Company’s files]
If to
Company:
Discovery
Laboratories, Inc.
0000
Xxxxx Xx., Xxxxx 000
Xxxxxxxxxx,
XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Attn: General
Counsel
13. Severability. If
any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
14. Amendment. No
amendment or modification of the terms or conditions of this Agreement shall be
valid unless in writing and signed by the parties hereto.
15. Successors and
Assigns. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. Xxxxx shall not be entitled to assign any
of his rights or obligations under this Agreement.
IN WITNESS WHEREOF, this Agreement has
been executed by the parties as of the date first above written.
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DISCOVERY
LABORATORIES, INC.
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W.
XXXXXX XXXXX
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By:
______________________________
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By:
______________________________
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Xxxx
X. Xxxxxx,
Executive
Vice President and
Chief
Financial Officer
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