Exhibit 10.20
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"), dated
as of February 11, 2005, by and between Alteon Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxxx (the "Employee").
WHEREAS, the Company wishes to employ the Employee as Chief Operating
Officer; and
WHEREAS, the Employee wishes to enter into the employ of the Company as
its Chief Operating Officer, having formerly held the role of Senior Vice
President, Corporate Development;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereby agree as follows:
1. Term of Employment. Subject to the terms and conditions hereof, the
Company will employ the Employee, and the Employee will serve the
Company, as Chief Operating Officer, for a period beginning on the
date hereof and terminating three years thereafter, subject to
extension by mutual agreement of the Company and the Employee (such
term, as it may be extended, is hereinafter referred to as the "Term
of Employment").
2. Duties. During the Term of Employment, the Employee will serve as
Chief Operating Officer, subject to the terms of this Agreement and
the direction and control of the Board of Directors, and/or the
Chief Executive Officer of the Company. The Employee will, during
the Term of Employment, serve the Company faithfully, diligently and
competently and to the best of Employee's ability, and will,
consistent with the dignity of the office of Chief Operating Officer
of the Company, hold, in addition to the office of Chief Operating
Officer, such other offices in the Company to which Employee may be
appointed or assigned from time to time by the Board of Directors
and/or the Chief Executive Officer of the Company and will discharge
such duties in connection therewith. The Employee shall devote all
of her business time and attention to the performance of the duties
hereunder.
3. Compensation. During the Term of Employment, the Company will pay to
the Employee as compensation for the performance of Employee's
duties and obligations hereunder a base salary at the rate of
$300,000 per annum ("Salary"), payable in equal semi-monthly
installments. Such Salary shall be reviewed annually by the Board of
Directors of the Company in accordance with the Company's
compensation program. In each of the Company's fiscal years during
the Term of Employment, the Employee shall be eligible to receive a
cash bonus of up to $75,000, to be awarded at the sole discretion of
the Board of Directors of the Company. The Board shall use as a
basis for determining the extent of such bonus awards the attainment
of stated goals and objectives for the Employee to be set by the
Compensation Committee of the Board after consultation with the
Chief Executive Officer.
4. Other Benefits. During the Term of Employment:
A. The Employee shall be entitled during the Term of Employment
to participate in employee benefit plans and programs of the
Company to the extent that Employee's position, tenure,
salary, age, health and other qualifications make Employee
eligible to participate. The Company does not guarantee the
adoption or continuance of any particular employee benefit
plan or program during the Term of Employment, and the
Employee's participation in any such plan or program shall be
subject to the provisions,
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rules, regulations and laws applicable thereto; provided,
however, that during the Term of Employment, the Employee
shall be entitled to health and hospital insurance benefits
consistent with the past practices of the Company in effect
with respect to Company personnel generally.
B. The Employee shall be entitled to 4 weeks vacation per year
while employed hereunder. Such vacation may be taken by the
Employee at such times as do not unreasonably interfere with
the business of the Company. The accumulation of annual
vacation time earned, but not taken, will be in accordance
with the Company policy guidelines. Additional vacation will
be earned in accordance with Company policy.
C. The Employee previously has received Options to purchase
shares of the Company's common stock (the "Common Stock"), as
set forth in Stock Option Grant Agreements dated February 13,
2002, December 18, 2002, December 10, 2003 and December 7,
2004, which agreements are incorporated herein and shall
survive the execution of this Agreement. In addition to these
Options, the Company shall grant to the Employee an incentive
stock option (or to the extent that such option does not
qualify as an incentive stock option, a non-qualified stock
option), pursuant to the Company's Amended 1995 Stock Option
Plan (the "Plan"), to purchase 300,000 shares of Common Stock
with an exercise price equal to the closing price of the
Common Stock on the date of the grant of the option. Such
option shall be in the form of, and on such terms and
conditions as provided in, the Company's standard form of
Stock Option Grant Agreement in effect as of the date of this
Agreement. Such Stock Option Grant Agreement for such option
shall provide, on condition that the Employee is employed by
the Company on the relevant vesting dates, that such options
shall vest in 36 equal monthly installments on the first day
of each calendar month commencing as of January 1, 2005.
5. Expenses. During the Term of Employment, the Company will reimburse
the Employee for all travel and other reasonable business expenses
incident to the rendering of services by the Employee under this
Agreement, subject to the submission of appropriate vouchers and
receipts in accordance with the Company's policy from time to time
in effect. The Employee will initially be based in or near
Washington, D.C.; provided, however, that the Company anticipates,
upon the receipt of favorable data from one or more of its pending
clinical trials, it may request that Employee relocate to the
Company's principal offices. If the Company requests that Employee
relocate, the Company shall reimburse Employee for reasonable agreed
upon costs associated with such relocation. Prior to such
relocation, Employee shall be required to maintain her own office,
either in her home or at some other location of her preference, and
Employee shall be responsible for costs associated with maintaining
such office; provided, however, the Company shall reimburse Employee
for such reasonable costs associated with such office as the Company
may agree upon.
6. Death or Disability.
A. This Agreement shall be terminated by the death of the
Employee. In addition, this Agreement may be terminated by the
Board of Directors of the Company if the Employee shall be
rendered incapable by illness or any other disability, from
complying with the terms, conditions and provisions on
Employee's part to be kept, observed and performed for a
period in excess of 180 days (whether or not consecutive) or
90 days consecutively, as the case may be, during a 12-month
period during the Term of Employment ("Disability"). If this
Agreement is terminated by reason of Disability of the
Employee, the Company shall give written notice to that effect
to the Employee in the manner provided herein. In the event
that the Employee receives disability insurance benefits paid
for by the Company during any period prior to termination of
this Agreement pursuant to this Section 6(A), the Employee's
Salary shall be reduced by an amount equal to such disability
insurance benefits during such period. The Employee is hereby
notified that
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she is a Key Employee for the purposes of the Family Medical
Leave Act and related laws.
B. In addition to and not in substitution for any other benefits
which may be payable by the Company with respect to the death
or Disability of the Employee in the event of such death or
Disability, the Salary payable hereunder shall continue to be
paid at the then current rate for three months after the
termination of employment, and any bonus to which the Employee
would have been entitled for the year in which Employee's
death occurs shall be pro rated to the date of Employee's
death and paid not later than three months after the
termination of employment. In the event of the death of the
Employee during the Term of this Agreement, the sums payable
hereunder shall be paid to Employee's personal representative.
7. Disclosure of Information, Inventions and Discoveries. The Employee
shall promptly disclose to the Company all processes, trademarks,
inventions, improvements, discoveries and other information related
to the business of the Company (collectively, "Developments")
conceived, developed or acquired by Employee alone or with others
during the Term of Employment or during any earlier period of
employment by the Company or any predecessor of the Company, whether
or not during regular working hours or through the use of materials
or facilities of the Company. All such Developments shall be the
sole and exclusive property of the Company, and, upon request, the
Employee shall promptly deliver to the Company all drawings,
sketches, models and other data and records relating to such
Developments. In the event any such Development shall be deemed by
the Company to be patentable, the Employee shall, at the expense of
the Company, assist the Company in obtaining a patent or patents
thereon and execute all documents and do all such other acts and
things necessary or proper to obtain letters of patents and to
invest in the Company full right, title and interest in and to such
Developments. Further, the Employee hereby irrevocably appoints the
Company and its duly authorized officers and agents as her
attorneys-in-fact to act for and on her behalf for these purposes
and instead of her, to execute all documents and papers, including
any application for patent, copyright or mask work, and to do all
other lawfully permitted acts reasonably necessary to assign or
otherwise transfer and perfect her right, title and interest in and
to the Developments to and in the Company, and to obtain, perfect,
protect and enforce its rights in the Developments.
8. Non-Disclosure. The Employee shall not, at any time during or after
the Term of Employment, divulge, furnish or make accessible to
anyone (otherwise than in the regular course of business of the
Company), or use for Employee's own account or for the account of
any person, any knowledge or information with respect to
confidential or secret processes, inventions, discoveries,
improvements, formulae, plans, materials, devices or ideas or other
know-how, whether patentable or not, with respect to any
confidential or secret development or research work or with respect
to any other confidential or secret aspects of the Company's
business (including, without limitation, customer lists, supplier
lists and pricing arrangements with customers or suppliers).
9. Non-Competition. The Company and the Employee agree that the
services rendered by the Employee hereunder are unique and
irreplaceable. The Employee hereby agrees that, during the Term of
Employment and for a period of one year thereafter, the Employee
shall not (i) in any geographical area in the United States or in
those foreign countries where the Company, during the Term of
Employment, conducts or proposes to conduct business or initiates
activities, engage or participate in, directly or indirectly
(whether as an officer, director, employee, partner, consultant,
holder of an equity or debt investment, lender or in any other
manner or capacity), or lend Employee's name (or any part or variant
thereof) to any business which is, or as a result of the Employee's
engagement or participation would become, competitive with any
aspect of the business of the Company, such business being the
commercialization of the measurement, prevention therapy or reversal
of glucose-
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mediated non-enzymatic crosslinking of macro-molecules, and such
other specific technologies in which the Company has, during the
Term of Employment, initiated significant plans to develop products,
(ii) deal, directly or indirectly, in a competitive manner with any
customers doing business with the Company during the Term of
Employment (except in connection with the performance of the duties
and obligations of the Employee during the Term of Employment),
(iii) solicit any officer, director, employee, consultant or agent
of the Company to become an officer, director, employee, consultant
or agent of the Employee, Employee's respective affiliates or anyone
else, and (iv) engage in or participate in, directly or indirectly,
any business conducted under any name that shall be the same as or
similar to the name of the Company or any trade name used by it.
Ownership, in the aggregate, of less than one percent of the
outstanding shares of capital stock of any corporation with one or
more classes of its capital stock listed on a national securities
exchange or publicly traded in the over-the-counter market shall not
constitute a violation of the foregoing provision.
10. Remedies. The Employee acknowledges that irreparable damage would
result to the Company if the provisions of Sections 7, 8, 9 or 14
were not specifically enforced, and agrees that the Company shall be
entitled to any appropriate legal, equitable or other remedy,
including injunctive relief, in respect to any failure to comply
with the provisions of Sections 7, 8, 9 or 14.
11. Termination for Cause. In addition to any other remedy available to
the Company, either at law or in equity, the Employee's employment
with the Company may be terminated by the Board of Directors for
Cause, which shall include (i) the Employee's conviction for, or
plea of nolo contendere, to a felony or a crime involving moral
turpitude, (ii) the Employee's commission of an act of personal
dishonesty or a breach of fiduciary duty involving personal profit
in connection with the Employee's employment by the Company, (iii)
the Employee's commission of an act which the Board of Directors
shall reasonably have found to have involved willful misconduct or
gross negligence on the part of the Employee in the conduct of
Employee's duties under this Agreement, (iv) habitual absenteeism,
(v) the Employee's material breach of any material provision of this
Agreement, (vi) the willful and continued failure by the Employee to
perform substantially Employee's duties with the Company (other than
any such failure resulting from Employee's incapacity due to
physical or mental illness), or (vii) the Employee's failure, at any
time, to relocate to the Company's principal office within a
reasonable time following the request of the Company. In the event
of termination under this Section 11, the Company's obligations
under this Agreement shall cease and the Employee shall forfeit all
rights to receive any future compensation under this Agreement.
Notwithstanding any termination of this Agreement pursuant to this
Section 11, the Employee, in consideration of Employee's employment
hereunder to the date of such termination, shall remain bound by the
provisions of Sections 7, 8, 9 and 14 hereof.
12. Termination Without Cause. Each of the Company and Employee may
terminate this Agreement at any time for any reasons whatsoever,
without any further liability or obligation of the Company to the
Employee or of the Employee to the Company from and after the date
of such termination (other than liabilities or obligations accrued
but unsatisfied on, or surviving, the date of such termination), by
sending 30 days' prior written notice to the other party. In the
event that, without Cause, as that term is defined in Section 11,
and not as a result of the Employee's death or Disability as set
forth in Section 6 or a Change in Control as set forth in Section
15, (a) the Company elects to terminate this Agreement prior to the
end of the Term of Employment, or (b) the Company gives Employee
notice of its election not to extend the Term of Employment beyond
the expiration of the then current Term of Employment, or (c) by the
date which is four months prior to the end of the then current Term
of Employment, the Company has not offered to extend the then
current Term of Employment, the Company shall continue to pay the
Employee the full Salary (exclusive of bonuses, if any) as such
Salary would have otherwise accrued for a period of twelve (12)
months. In the event the Employee elects to terminate prior to the
end of the Term of
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Employment, the Company's obligation to pay Salary shall cease as of
the effective date of termination. Notwithstanding any termination
of this Agreement pursuant to this Section 12, the Employee, in
consideration of Employee's employment hereunder to the date of such
termination, shall remain bound by the provisions of Sections 7, 8,
9 and 14 hereof. Any termination of this Agreement by the Company as
provided in this Section 12 shall be in addition to, and not in
substitution for, any rights with respect to termination of the
Employee which the Company may have pursuant to Section 11.
13. Resignation. In the event that the Employee's services under this
Agreement are terminated under any of the provisions of this
Agreement (except by death), the Employee agrees to deliver written
resignation from all positions held with the Company to the Board of
Directors, such resignation to become effective immediately;
provided, however, that nothing herein shall be deemed to affect the
provisions of Sections 7, 8, 9 and 14 hereof relating to the
survival thereof following termination of the Employee's services
hereunder, and provided, further, that except as expressly provided
in this Agreement, the Employee shall be entitled to no further
compensation hereunder.
14. Data. Upon termination of the Term of Employment or termination
pursuant to Sections 6, 11 or 12 hereof, the Employee or Employee's
personal representative shall promptly deliver to the Company all
books, electronic data, memoranda, plans, records and written data
of every kind relating to the business and affairs of the Company
which are then in Employee's possession.
15. Change in Control. The Employee is an eligible participant in the
Alteon Inc. Change in Control Severance Benefits Plan (the
"Severance Plan"). Upon a Change in Control as defined in the
Severance Plan, the Employee will be entitled to all of the benefits
to which she would be entitled under the Severance Plan as in effect
on June 5, 2003, notwithstanding any amendment or termination of the
Severance Plan or other action by the Board of Directors of the
Company as permitted under the Severance Plan which may affect the
Employee's entitlement to benefits thereunder.
16. Insurance. The Company shall have the right, at its own cost and
expense, to apply for and to secure in its own name or otherwise,
life, health or accident insurance or any or all of them covering
the Employee, and the Employee agrees to submit to usual and
customary medical examinations and otherwise to cooperate with the
Company in connection with the procurement of any such insurance,
and any claims thereunder.
17. Waiver of Breach. Any waiver of any breach of this Agreement shall
not be construed to be a continuing waiver or consent to any
subsequent breach on the part either of the Employee or of the
Company.
18. Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company upon any sale
of all or substantially all of the Company's assets, or upon any
merger or consolidation of the Company with or into any other
entity, all as though such successors and assigns of the Company and
their respective successors and assigns were the Company. Insofar as
the Employee is concerned, this Agreement, being personal, may not
be assigned.
19. Severability. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted therefrom
and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In
furtherance and not in limitation of the foregoing, should the
duration or geographical extent of, or business activities covered
by, any provision of this Agreement be in excess of that which is
valid and enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities
which may be validly covered and enforceable.
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20. Notices. All notices, requests and other communications pursuant to
this Agreement shall be in writing and shall be deemed to have been
duly given, if delivered in person or by courier, telegraphed,
telexed or by facsimile transmission or five business days after
being sent by registered or certified mail, return receipt
requested, postage paid, addressed as follows:
If to the Employee:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company:
Alteon Inc.
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Any party may, by written notice to the other in accordance with
this Section 20, change the address to which notices to such party
are to be delivered or mailed.
21. General. Except as otherwise provided herein, the terms and
provisions of this Agreement and any Stock Option Grant Agreements
entered into between the Employee and the Company shall constitute
the entire agreement by the Company and the Employee with respect to
the subject matter hereof, and shall supersede any and all prior
agreements or understandings between the Employee and the Company,
whether written or oral. This Agreement may be amended or modified
only by a written instrument executed by the Employee and the
Company. This Agreement may be executed in any number of
counterparts, all of which, when executed, shall be deemed to be an
original, and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
ALTEON INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
