Exhibit 10.31
EMPLOYMENT AGREEMENT dated July 1, 1999, between Xxxxxxx X. Xxxxx (the
"Executive") and DOV Pharmaceutical, Inc., a New Jersey corporation (the
"Company").
WHEREAS, the Company and the Executive desire to enter into this
Employment Agreement to assure the Company of the continued services of the
Executive and to set forth the duties and compensation of the Executive, all
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Executive and the Company hereby agree as follows:
ARTICLE I
EMPLOYMENT
SECTION 1.01. TERM. Unless sooner terminated pursuant to Article III
hereof, the initial term of this Employment Agreement shall commence on the date
of this Employment Agreement and shall terminate on the date that is two year
thereafter (the "Initial Employment Period"). Unless sooner terminated pursuant
to Article III, the parties may renew this Employment Agreement for one year
(each such one year period hereinafter referred to as a "Renewal Period"; the
Initial Employment Period and all Renewal Periods are hereinafter referred to as
the "Employment Period").
SECTION 1.02. POSITION. The Company shall employ the Executive and the
Executive shall serve as Vice President, Clinical Operations during the
Employment Period.
SECTION 1.03. DUTIES. (a) Subject to the powers, authorities and
responsibilities vested in the Board of Directors of the Company (the "Board")
under the General Corporation Law of the State of New Jersey, the Executive
shall have such responsibilities and authorities as are customarily exercisable
by a Vice President of a corporation. The Executive shall also perform such
other executive and administrative duties (not inconsistent with the
aforementioned position) as the Executive may reasonably be expected to be
capable of performing on behalf of the Company, and any subsidiaries and
affiliates of the Company as may from time to time be authorized or directed by
the Board.
(b) During the Employment Period, the Executive shall perform
faithfully the duties assigned to him hereunder to the best of his abilities and
devote his full business time and attention to the Company's business.
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ARTICLE II
COMPENSATION
SECTION 2.01. BASIC COMPENSATION. As compensation for the Executive's
services hereunder, the Company shall pay to the Executive an annual salary of
$125,000 (as adjusted, the "Basic Compensation"), payable in bi-weekly
installments. The Basic Compensation shall be increased by no less than 5% per
year.
SECTION 2.02. INCENTIVE COMPENSATION. (a) In addition to his Basic
Compensation, the Company shall pay to the Executive incentive compensation
("Incentive Compensation") as follows:
(i) if the Company achieves the following milestones, the Executive
shall receive the respective amounts as set forth below:
$25,000 for the milestones set forth in exhibit A for years one and two
(ii) performance bonuses as may be determined in the discretion of the
Board upon recommendation of the Compensation Committee.
(b) The Incentive Compensation shall be paid to the Executive within 30
days after the occurrence of the event entitling the Executive thereto.
SECTION 2.03. OTHER BENEFITS. (a) During the Employment Period, the
Executive shall have the right to participate in the Company's various programs
for the benefit of employees in accordance with their terms and as the same may
be amended or modified from time to time.
(b) The Executive shall be eligible to participate in the Company's
Stock Option Plan and shall receive, initially, options covering 75,000 shares
at an exercise price of $3.68 per share.
(c) The Executive shall be entitled to four weeks of paid vacation in
each calendar year. The Executive shall also be entitled to the same standard
paid holidays given by the Company to senior executives generally, all as
determined from time to time by the Board or appropriate committee thereof.
Vacation time shall cumulate and carry forward from year to year provided that
the Executive shall not be entitled to more than six weeks of vacation in any
one year without the permission of the Board and provided that the Executive
shall coordinate his vacation schedule with the CEO and President.
(d) The Company shall reimburse the Executive for travel or other
expenses or disbursements reasonably incurred or made by him in connection with
the
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Company's business during the Employment Period upon receipt of reasonable
documentation thereof.
(e) The benefits set forth in this Section 2.03 shall be collectively
referred to as the "Benefits."
ARTICLE III
TERMINATION OF EMPLOYMENT
SECTION 3.01. TERMINATION OF EMPLOYMENT BY COMPANY.
(a) Except as otherwise provided in this Article III and in Article IV,
upon the occurrence of any of the following events, this Employment Agreement
and the rights and obligations of the parties hereunder shall terminate:
(i) "Disability" (as defined in Section 3.05) of the Executive;
(ii) conduct by the Executive constituting "Cause" (as defined in
Section 3.05).
(b) In the case of termination pursuant to Section 3.01(a)(i), the
Company shall be obligated to pay the Executive and the Executive shall be
entitled to receive, in complete and total satisfaction of the obligations of
the Company hereunder, an amount equal to his Basic Compensation, Incentive
Compensation and Benefits for the period commencing on the date of termination
and ending on the date that is six months after the date of termination. The
Basic Compensation, earned but unpaid Incentive Compensation and Benefits shall
be paid in the manner and at the intervals provided in Article II.
(c) In the case of termination pursuant to Section 3.01(a)(ii), the
Company shall be obligated to pay the Executive and the Executive shall be
entitled to receive, in complete and total satisfaction of the obligations of
the Company hereunder, an amount equal to his Basic Compensation earned but
unpaid, Incentive Compensation and Benefits through the date of such
termination.
(d) In the case of termination of the Executive by the Company other
than pursuant to Section 3.01(a)(i) or (ii) or Section 3.02, the Company shall
be obligated to pay the Executive and the Executive shall be entitled to
receive, in complete and total satisfaction of the obligations of the Company
hereunder, an amount equal to his Basic Compensation, Incentive Compensation and
all amounts to be paid and benefits to be provided pursuant to Section 2.03 for
the period commencing on the date of termination and ending on the later of (i)
the date that is one year after the date of such termination and (ii) the date
that is 18 months from the date of this Employment
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Agreement. The Basic Compensation due to the Executive pursuant to this Section
shall be paid in full on the date of termination of the Executive. The Incentive
Compensation and Benefits shall be paid at the intervals set forth in Article
II. In addition, if this agreement is terminated pursuant to this paragraph, the
Executive shall immediately have the right to exercise all of the stock options
issued to him pursuant to the Stock Option Plan, including those options for
which the period during which such options may be exercised has not yet
commenced.
SECTION 3.02. DEATH. In the event of the death of the Executive during
the Employment Period, the Employment Period shall terminate on the date of
death and the Executive's designated beneficiary or, if none, his estate shall
be entitled to receive, in complete and total satisfaction of the Company's
obligations hereunder, any accrued and unpaid Basic Compensation, Incentive
Compensation and Benefits, as appropriate, through such date of death and for a
period 90 days thereafter.
SECTION 3.03. TERMINATION OF EMPLOYMENT BY THE EXECUTIVE. (a) If during
the Employment Period there should occur any of the following events (each of
the following being an event giving the Executive the right to resign for "Good
Reason"): (i) a change in the title and/or responsibilities of the Executive,
such that the Executive is no longer a Vice President of the Company or (ii) a
failure by the Company to provide the Executive with the Basic Compensation,
Incentive Compensation or Benefits, other than a failure that is not in bad
faith and is remedied by the Company within 30 days after receipt of notice
thereof given by the Executive, or (iii) a breach by the Company of any of the
material terms of this Agreement that is not remedied by the Company within 30
days of notice thereof by the Executive, the Executive may elect to terminate
his employment by notice to the Company (subject to Article IV). If the
Executive exercises such election, the Employment Period shall terminate
effective upon the later to occur of: (x) the receipt of such notice by the
Company and (y) the expiration of the 30-day period referred to in Section
3.03(a)(ii) or (iii).
(b) If the Executive exercises his election to terminate the rights and
obligations of the parties pursuant to Section 3.03(a), the Company shall be
obligated to pay the Executive and the Executive shall be entitled to receive in
complete and total satisfaction of the obligations of the Company hereunder, an
amount equal to his Basic Compensation, Incentive Compensation and Benefits for
the period commencing on the date of such termination and ending on the later of
(i) the date that is one year after the date of such termination and (ii) the
date that is 18 months after the date of this Employment Agreement. The Basic
Compensation shall be paid in full on the date of termination. The Incentive
Compensation and Benefits shall be paid at the intervals set forth in Article
II. In addition, if this agreement is terminated pursuant to this paragraph, the
Executive shall immediately have the right to exercise all stock options issued
to him pursuant to the Stock Option Plan, including those options for which the
period during which such options may be exercised has not yet commenced.
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(c) If the Executive terminates this Employment Agreement for any
reason other than those contained in Section 3.02 and Section 3.03(a), the
rights and obligations of the parties hereunder shall terminate immediately
(except as otherwise provided in Article IV) and the Employment Period shall
terminate immediately except that the Executive shall be entitled to receive, in
complete and total satisfaction of the obligations of the Company hereunder, his
Basic Compensation, Incentive Compensation and Benefits through the date of such
termination.
SECTION 3.04. CHANGE OF CONTROL. Notwithstanding anything to the
contrary contained herein, in the event of a Change of Control (as defined in
Section 3.05), or in the event that the Executive terminates his employment
pursuant to Section 3.03(a) in connection with or within six months following
the Change of Control, then the Company shall be obligated to pay the Executive,
and the Executive shall be entitled to receive in complete and total
satisfaction of the obligations of the Company hereunder, an amount equal to the
Executive's Basic Compensation, Incentive Compensation and Benefits for the
period commencing on the date of termination and ending on the later of (a) the
date that is one year after the date of such termination and (b) the date that
is 18 months from the date of this Employment Agreement. The Basic Compensation
due to the Executive pursuant to this Section 3.04 shall be paid in full on the
date of the termination of the Executive. The Incentive Compensation and
Benefits shall be paid at the intervals set forth in Article II. In addition, if
this agreement is terminated pursuant to this paragraph, the Executive shall
immediately have the right to exercise all stock options contained in the Stock
Option Plan, including those options for which the period during which such
options may be exercised has not yet commenced.
SECTION 3.05. DEFINITIONS OF CERTAIN TERMS. (a) "Disability" shall mean
any physical or mental condition of the Executive that renders the Executive
incapable of performing any substantial portion of the services contemplated
hereby (as confirmed by competent medical evidence) and that has continued for
at least 90 business days in any 12-month period.
(b) The following shall constitute conduct entitling the Company to
terminate the Executive's employment for "Cause": (i) the Executive's willful
refusal to perform or substantial disregard of the Executive's duties to the
Company that is not cured within 10 days of notice (specifying the failure)
thereof from the Board, (ii) the commission by the Executive of a willful and
material breach of Article IV or (iii) the conviction of any felony by the
Executive (or the equivalent thereof under the laws of any state). If the issue
of "Cause" is litigated in a proceeding in any court or through any means of
alternative dispute resolution and such issue is resolved in the Executive's
favor, then the Company shall reimburse the Executive for all reasonable
attorney's fees, costs and expenses incurred by the Executive in such
proceeding.
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(c) "Change of Control" shall mean: (i) a merger or consolidation of
the Company with or into another corporation other than a transaction (A) in
which the Company is the surviving Corporation or (B) merging or consolidating
the Company with any corporation controlling, controlled by or under common
control with the Company (in which case the surviving corporation shall be
deemed the "Company" for purposes of this Employment Agreement) or (ii) the sale
of all or substantially all the assets of the Company to any corporation or
entity.
ARTICLE IV
NON-COMPETITION; CONFIDENTIAL INFORMATION
SECTION 4.01 NON-COMPETITION. (a) Subject to Sections 4.01(b) and
4.01(c), the Executive shall not engage in any activities, whether as employer,
proprietor, partner, stockholder (other than as the holder of less than 5% of
the stock of a corporation listed on a national securities exchange or in the
National Association of Securities Dealers, Inc. Automated Quotation System
(such a corporation being hereinafter referred to as a "Public Corporation")),
director, employee, consultant or otherwise, of any company with substantially
the same business as or competes directly with the Company in the United States
during the following periods:
(i) the Employment Period;
(ii) during any period after the termination of this Employment
Agreement pursuant to Article 3 for which the Executive is being or has been
paid; and
(iii) during 12 months after the Employment Period if the Executive is
terminated for Cause.
(b) The Executive shall not be deemed to be in breach of this
Employment Agreement by reason of services performed for a subsidiary or
affiliate of the Company.
SECTION 4.02 NON-INTERFERENCE. During the Employment Period and the
period of non-competition as determined pursuant to Section 4.01(a), the
Executive:
(a) Shall not publicly disparage any of the products, services or
actions of the Company or any of the Company's subsidiaries or affiliates; and
(b) Shall not, whether for his own account or for the account of any
other individual, partnership, firm, corporation or other business organization,
solicit, endeavor to entice away from the Company, or otherwise interfere with
the relationship of the Company with any person or entity who is, or was within
the then most recent 12-month period, a customer or client of the Company.
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SECTION 4.03. TRADE SECRETS. The Executive shall not, at any time
during the Employment Period and for a period of three years thereafter, use
(except for the sole benefit of the Company, the Company's subsidiaries and
affiliates) or, without the written consent of the Board, divulge to any person
(other than, during the Employment Period, an executive of the Company or any of
the Company's subsidiaries or other person to whom disclosure is reasonably
necessary or appropriate or legally required in connection with the Executive's
duties hereunder) any trade secrets or other confidential information of the
Company or any of its subsidiaries or affiliates, except to the extent that (a)
such information becomes a matter of public record, or is published in a
newspaper, magazine or other periodical available to the general public, in each
case, through no violation of this Employment Agreement by the Executive or (b)
such disclosure is required by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process provided that the Executive shall immediately notify the Company of the
existence, terms and circumstances surrounding such a request so that they may
seek an appropriate protective order. When the Executive ceases to be employed
by the Company, the Executive shall surrender to the Company all records and
documents in any form obtained by him or entrusted to him during the course of
his employment hereunder (together with all copies thereof) which pertain to the
business of the Company or its subsidiaries or affiliates or which were paid for
by the Company or any of the Company's subsidiaries or affiliates provided that
the Executive may retain copies of such documents as may be necessary for the
Executive's personal records for federal income tax purposes or, with the
approval of the Board, for other purposes relating to the Executive's legal
affairs, which approval shall not be unreasonably withheld.
SECTION 4.04. SURVIVAL OF TERMS. The covenants contained in Sections
4.01, 4.02 and 4.03 shall survive the conclusion of the Executive's employment
by the Company in accordance with their respective terms.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. SERVICES AS OFFICER OF AFFILIATE. During the Employment
Period, the Executive shall, if appointed, serve as an officer and/or director
of all current and future subsidiaries and affiliates of the Company without any
additional compensation for such services provided that the Executive shall be
provided with reasonable and customary directors' and officers' liability
insurance if any such corporation is or becomes publicly held and further
provided that the Company shall cause any such subsidiary and/or affiliate to
protect, defend and save the Executive harmless from any and all liability
arising out of the performance of the Executive's duties as director and/or
officer.
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SECTION 5.02. CONFLICTS. The Executive hereby warrants and represents
that he is not under any legal or contractual obligation that would conflict in
any manner with the obligations and duties he is undertaking herein, and that
his execution of this Employment Agreement shall not breach any agreement to
which he is now a party. The Executive further agrees to reimburse and hold the
Company harmless for any costs, damages or fees sustained or expended by the
Company as a result of this untruth of the representations or breach of
warranties contained in this Section 5.02.
SECTION 5.03. RIGHT TO CHANGE BUSINESS. This Employment Agreement and
any rights or privileges granted to the Executive hereunder shall not in any way
prevent the Company or any of the Company's subsidiaries from exercising its
corporate powers to modify, restructure, enlarge, discontinue or otherwise
affect the business operations or activities of such entity.
SECTION 5.04. NOTICES. Any notice or request required or permitted to
be given under this Employment Agreement shall be sufficient if in writing and
delivered personally or sent by registered mail, return receipt requested, to
the addresses set forth below or to any other address designated by either party
by notice similarly given. Such notice shall be deemed to have been given upon
the personal delivery thereof or three days after the date of such mailing
thereof, as the case may be.
If to the Executive, to:
XX-0, Xxx 00, Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
If to the Company, to:
DOV Pharmaceutical, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy to:
Xxxxxxxx Xxxxxxxxxx LLP
Seven Xxxxxx Farm Road
Roseland, New Jersey 07068
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
SECTION 5.05. ASSIGNMENT AND SUCCESSION. The Executive acknowledges
that the services to be rendered by him hereunder are unique and personal.
Accordingly, the Executive may not assign any of his rights or delegate any of
his duties or obligations under this Employment Agreement. The rights and
obligations of the Company under this Employment Agreement shall inure to the
benefit of and be binding upon its successors and assigns.
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SECTION 5.06. HEADINGS. The headings contained in this Employment
Agreement are for convenience of reference only and shall not define or limit
the provisions hereof.
SECTION 5.07. APPLICABLE LAW. This Employment Agreement shall be
interpreted in accordance with, and the rights of the parties hereto, shall be
determined by the laws of the State of New Jersey, without regard to conflict of
law rules. Each party hereby irrevocably consents and submits to the IN PERSONAM
jurisdiction of any court of general jurisdiction in the State of New Jersey,
which shall serve as the sole and exclusive forum in any suit, action or
proceeding arising out of or in connection with this Employment Agreement.
SECTION 5.08. WITHHOLDINGS TAXES. The Company may withhold from any
amounts payable under this Employment Agreement such federal, state or local
taxes as shall be required to be withheld pursuant to any applicable law or
regulations.
SECTION 5.9. ENTIRE AGREEMENT; AMENDMENTS. This Employment Agreement
contains the entire understanding of the parties hereto with regard to the
subject matter contained herein, and supersedes all prior agreements,
understandings or intents between the parties hereto or any related parties.
This Employment Agreement may be amended, modified or supplemented only pursuant
to Section 4.04 or by a writing signed by both parties hereto.
SECTION 5.10. WAIVERS. Any term or provisions of this Employment
Agreement may be waived, or the time for its performance may be extended, by the
party or parties entitled to the benefits thereof but only to the extent
evidenced by a writing executed by such party. The failure of any party hereto
to enforce at any time any provision of this Employment Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect the
validity of this Employment Agreement or any part hereof or the right of any
party thereafter to enforce each and every such provision. No waiver of any
breach of this Employment Agreement shall be held to constitute a waiver of any
other or subsequent breach.
SECTION 5.11. PARTIAL INVALIDITY. Wherever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect and cannot be modified in accordance with Section 4.04, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Employment Agreement, and this Employment Agreement shall be construed as if
such invalid, illegal or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause the remaining terms hereof to be
unreasonable.
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SECTION 5.12. EXECUTION OF COUNTERPARTS. This Employment Agreement may
be executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties and delivered to each of the parties.
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IN WITNESS WHEREOF, the Company has caused this Employment Agreement to
be signed by its duly authorized officer and the Executive has signed this
Employment Agreement as of the day and year first above written.
DOV Pharmaceutical, Inc.
BY: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
Executive: /s/ Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
COMPANY MILESTONES AND INDIVIDUAL PERFORMANCE OBJECTIVES
NOTE: These milestones and objectives are for the first contract year. They will
be reviewed quarterly by senior management and, if necessary, revised to reflect
strategic and operational changes. The Exhibit will be amended to reflect the
second contract year.
FOR THE PERIOD JULY 1, 1999 TO SEPTEMBER 30, 1999:
1. Select an appropriate location for the 547 pilot study and organize the
activities and filings required to initiate the trial.
2. Address/compile key elements of an IND package for DOV 273,547 (with
the possible exception of the CMC section).
3. Establish a draft plan/timeline for the development of Bicifadine
4. Create and issue comprehensive Clinical Research Standard Operating
Procedures.
FOR THE PERIOD OCTOBER 1, 1999 TO DECEMBER 31, 1999:
1. Conduct an Investigator's Meeting for the German 273,547 study
2. Initiate all sites participating in the 273,547 pilot program.
3. Convene the Bicifadine Advisory Committee and advance the status of the
Bicifadine Project Plan.
OBJECTIVES FOR JANUARY 1, 2000 TO MARCH 31, 2000:
1. Prepare the Bicifadine IND; organize key elements and identify areas
where updates will be required.
2. Develop the Bicifadine Project Plan to an advanced level and begin
development of a Phase 2/3 protocol.
3. Monitor/manage pilot 547 program enrollment to a level sufficient to
initiate a meaningful interim efficacy analysis by 6/30.
4. Ensure the final organization of materials/content for filing the
273,547 US IND.
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OBJECTIVES FOR APRIL 1, 2000 TO JUNE 30, 2000:
1. Complete enrollment for the anxiolytic study in Germany sufficient to
conduct an interim efficacy analysis.
2. Make a GO/NO GO decision on 273,547 and, if applicable, file the US
IND.
3. File a US IND for Bicifidine and prepare to initiate an appropriate
Clinical program, based on availability of the extended release
formulation.
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January 23, 2002
Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
RE: EXTENSION OF EMPLOYMENT AGREEMENT
Dear Xx. Xxxxx:
This will confirm the extension of your July 1, 1999, Employment
Agreement with DOV Pharmaceutical, Inc. through April 1, 2004. All terms and
conditions therein shall remain in full force and effect, except for the
increase of your base compensation to $237,500 per year, and the establishment
of a car allowance of $500 per month.
Sincerely,
/s/ Xxxxxx Xxxxx
--------------------------
Xx. Xxxxxx Xxxxx
Chief Executive Officer
ACKNOWLEDGED AND AGREED:
/s/ Xxxxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx
