EMPLOYMENT AGREEMENT
Exhibit
10.10
This
Agreement (this “Agreement”) dated
May 17, 2007, with a
starting date of May 28, 2007 (the “Effective Date”), is
by and between Pacific Beach Biosciences, Inc., with offices at 0000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the “Company”), and Xxxx
Xxxx, residing at
000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000 (the “Employee”).
W
I T N E S S E T H:
WHEREAS,
the Company desires to employ the Employee as Vice President, Regulatory Affairs
of the Company, and the Employee desires to serve the Company in this capacity,
upon the terms and subject to the conditions contained in this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Employment.
(a) Services. The
Employee will be employed by the Company as Vice President, Regulatory
Affairs of the Company. The Employee will report to the Chief Executive
Officer of the Company and shall perform such duties as are consistent with his
position as Vice
President, Regulatory Affairs (the “Services”). The
Employee agrees to perform the Services faithfully, to devote all of his working
time, attention and energies to the business of the Company, and while he
remains employed, not to engage in any other business activity that is in
conflict with his duties and obligations to the
Company.
(b) Acceptance. The
Employee hereby accepts such employment and agrees to render the
Services.
2. Term.
Employee’s employment
shall commence on the Effective Date (May 28, 2007) and shall be on an at-will
basis. Notwithstanding anything to the contrary contained
herein, the provisions of this Agreement governing protection of Confidential
Information and Inventions and Non-Solicitation and Non-Disparagement shall
continue in effect as specified in Sections 5 and 6, respectively, hereof and
shall survive the expiration or termination hereof.
3. Best Efforts; Place of
Performance.
(a) The
Employee shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company and shall use his best efforts to advance the
best interests of the Company and shall not during his term of employment
hereunder (the “Term”) be actively
engaged in any other business activity, whether or not such business activity is
pursued for gain, profit or other pecuniary advantage, that will interfere with
the performance by the Employee of his duties hereunder or the Employee’s
availability to perform such duties or that will adversely affect, or negatively
reflect upon, the Company.
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(b) The
duties to be performed by the Employee hereunder shall be performed primarily at
the office of the Company in the San Diego, California metropolitan area,
subject to reasonable travel requirements on behalf of the Company, or such other place as the
Board may reasonably designate. Notwithstanding the foregoing, the
Company may be relocated to another city within the United States with consent
of the Board of Directors of the Company (the “Board”).
4. Compensation. As
full compensation for the performance by the Employee of his duties under this
Agreement, the Company shall pay the Employee as follows:
(a) Base
Salary. The Company shall pay the Employee a salary (the
“Base Salary”)
equal to Two Hundred Twenty Thousand Dollars ($220,000) per year. Payment of the
Base Salary shall be made in accordance with the Company’s normal payroll
practices.
(b) Discretionary
Bonus. At the sole discretion of the Company, the Employee
shall be eligible to receive an additional annual bonus (the “Discretionary Bonus”) in an amount
equal to up to twenty percent (20%) of his Base Salary, based upon corporate and
the Employee’s individual performance on behalf of the Company during the prior
year, as determined solely in the discretion of the Board. The
Discretionary Bonus shall be payable either as a lump-sum payment or in
installments as determined by the Company in its sole discretion. In
addition, the Company shall annually review the
Bonus to determine whether an increase in the amount thereof is
warranted.
(c) Restricted
Shares. As additional compensation for the Services to be
rendered by the Employee pursuant to this Agreement, the Company shall issue and
sell to the Employee 72,000 restricted shares of common stock, par value $0.001
(the “Common
Stock”), of the Company (the “Restricted Shares”)
representing one and eight tenths percent (1.8%) of the initial allocation of
founders Common Stock. The Restricted Shares, to the extent unvested,
shall be held in escrow. On each anniversary of the Effective Date,
one-third (33.33%) of the original number of Restricted Shares, subject to stock
splits, subdivisions, or other similar transactions, shall vest, subject to the
terms of this Agreement, and the Company shall release such vested shares to the
Employee. In connection with such grant, the Employee shall enter
into the Company’s standard restricted stock agreement attached hereto as
Exhibit A which will incorporate the foregoing provisions regarding the lapsing
of the risk of forfeiture with respect to the Restricted Shares. No
Restricted Shares granted hereunder shall vest unless the Employee is a current
employee of the Company, unless specifically stated herein.
(d) Expenses. The
Company shall reimburse the Employee for all normal, usual and necessary
expenses incurred by the Employee in furtherance of the business and affairs of
the Company, including reasonable travel and entertainment, upon timely receipt
by the Company of appropriate vouchers or other proof of the Employee’s
expenditures and otherwise in accordance with any expense reimbursement policy
as may from time to time be adopted by the Company.
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(e) Other
Benefits. The Employee shall be entitled to all rights and
benefits for which he shall be eligible under any benefit or other plans
(including, without limitation, dental, medical, medical reimbursement and
hospital plans, pension plans, employee stock purchase plans, profit sharing
plans, bonus plans and other so-called "fringe" benefits) as the Company shall
make available to its employees from time to time.
(f) Vacation. The
Employee shall, during the Term, be entitled to a vacation of three (3)
non-consecutive weeks per annum, in addition to
holidays observed by the Company. The Employee shall not be entitled
to carry any vacation forward to the next year of employment without written
approval of the CEO. In no case shall the Employee receive any
compensation for unused vaction time from a previous year.
(g) If the
Executive’s employment is terminated by the Company other than as a result of
the Executive’s death or disability and for reasons unrelated to cause then the
Company shall (i) continue to pay to the Executive his Base Salary and benefits
for a period of four (4) months following the termination of the Term; and (ii)
pay any expense reimbursement amounts owed the Executive through the termination
of the Term. In addition, all Options that have vested as of the date
of the Executive’s termination shall remain exercisable for a period of ninety
(90) days.
(h) Withholding. The
Company shall withhold all applicable federal, state and local taxes and social
security and such other amounts as may be required by law from all amounts
payable to the Employee under this Section 4.
5. Confidential Information and
Inventions.
(a) The Employee
recognizes and acknowledges that in the course of his duties he is likely to
receive confidential or proprietary information owned by the Company, its
affiliates or third parties with whom the Company or any such affiliates has an
obligation of confidentiality. Accordingly, during and after the
Term, the Executive agrees to keep confidential and not disclose or make
accessible to any other person or use for any other purpose other than in
connection with the fulfillment of his duties under this Agreement, any
Confidential and Proprietary Information (as defined below) owned by, or
received by or on behalf of, the Company or any of its
affiliates. “Confidential and Proprietary
Information” shall include, but shall not be limited to, in-licensing,
acquisition and other business opportunities, confidential or proprietary
scientific or technical information, data, formulas and related concepts,
business plans (both current and under development), client lists, promotion and
marketing programs, trade secrets, or any other confidential or proprietary
business information relating to in-licensing, acquisition and other business
opportunities, development programs, costs, revenues, marketing, investments,
sales activities, promotions, credit and financial data, manufacturing
processes, financing methods, plans or the business and affairs of the Company
or of any affiliate or client of the Company. Confidential and Proprietary
information shall not include any information that is available to the public or
the general skills, knowledge and experience acquired by the Employee before the
term. The Employee expressly acknowledges the trade secret status of
the Confidential and Proprietary Information and that the Confidential and
Proprietary Information constitutes a protectable business interest of the
Company. Notwithstanding the foregoing, the Employee may disclose
Confidential and Proprietary information if legally required to do
so. The Employee agrees: (i) not to use any such Confidential and
Proprietary Information for himself or others; and (ii) not to take any Company
material or reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof from the Company’s offices at any
time during his employment by the Company, except as required in the execution
of the Employee’s duties to the Company. The Employee agrees to
return immediately all Company material and reproductions (including but not
limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to the Company upon request and in any event immediately upon
termination of employment.
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(b) Except
with prior written authorization by the Company, the Employee agrees not to
disclose or publish any of the Confidential and Proprietary Information, or any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after his employment with the Company.
(c) The
Employee agrees that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”)
initiated, conceived, reduced to practice or made by him, either alone or in
conjunction with others, during the Term shall be the sole property of the
Company to the maximum extent permitted by applicable law and, with respect to
subject matter for which copyright protection is available, to the extent
permitted by law, shall be “works made for hire” as that term is defined in the
United States Copyright Act (17 U.S.C.A., Section 101). The Company
shall be the sole owner of all patents, copyrights, trade secret rights, and
other intellectual property or other rights in connection
therewith. The Employee hereby assigns to the Company all right,
title and interest he may have or acquire in all such Inventions; provided,
however, that the Company may in its sole discretion agree to waive the
Company’s rights pursuant to this Section 5(c) with respect to any Invention
that is not directly or indirectly related to the Company’s
business. The Employee further agrees to assist the Company in every
proper way (but at the Company’s expense) to obtain and from time to time
enforce patents, copyrights or other rights on such Inventions in any and all
countries, and to that end the Employee will execute all documents
necessary:
(i) to apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(d) The
Employee acknowledges that in the course of performing the Services under this
Agreement the Employee may locate, identify and/or evaluate patented or
patentable inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which may
be of potential interest to the Company or one of its affiliates (the “Third Party
Inventions”). The Employee understands, acknowledges and
agrees that all rights to, interests in or opportunities regarding, all
Third-Party Inventions identified by the Company, any of its affiliates or
either of the foregoing persons’ officers, directors, employees (including the
Employee), agents or consultants during the Term shall be and remain the sole
and exclusive property of the Company or such affiliate and the Employee shall
have no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company.
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(e) Employee
agrees that he will promptly disclose to the Company, or any persons designated
by the Company, all improvements, Inventions made or conceived or reduced to
practice or learned by him, either alone or jointly with others, during the
Term.
(f) The
provisions of this Section 5 shall survive any termination of this
Agreement.
6. Non-Solicitation and
Non-Disparagement.
(a) During
the Term and for a period of six (6) months thereafter, the Employee shall not,
directly or indirectly, without the prior written consent of the
Company:
(i) solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any such subsidiary or affiliate; or hire for any
purpose any employee of the Company or any subsidiary or affiliate or any
employee who has left the employment of the Company or any subsidiary or
affiliate within one year of the termination of such employee’s employment with
the Company or any such subsidiary or affiliate or at any time in violation of
such employee’s non-competition agreement with the Company or any such
subsidiary or affiliate; or
(ii) solicit
or accept employment or be retained by any Person who, at any time during the
term of this Agreement, was an agent, client or customer of the Company or any
of its subsidiaries or affiliates where his position will be related to the
business of the Company or any such affiliate; or
(iii) solicit
or accept the business of any agent, client or customer of the Company or any of
its subsidiaries or affiliates with respect to products, services or investments
similar to those provided or supplied by the Company or any of its subsidiaries
or affiliates.
(b) The
Company and the Employee each agree that both during the Term and at all times
thereafter, neither party shall directly or indirectly disparage, whether or not
true, the name or reputation of the other party or any of its subsidiaries or
affiliates, including but not limited to, any officer, director, employee or
shareholder of the Company or any of its subsidiaries or
affiliates.
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(c) In the event that the
Employee breaches any provisions of Section 5 or this Section 6 or there is a
threatened breach, then, in addition to any other rights which the Company may
have, the Company shall (i) be entitled, without the posting of a bond or other
security, to injunctive relief to enforce the restrictions contained in such
Sections and (ii) have the right to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals, increments and
other benefits (collectively “Benefits”) derived or received by the
Employee as a result of any transaction constituting a breach of any of the
provisions of Section 5 or this Section 6 and the Employee hereby agrees to
account for and pay over such Benefits to the Company. The Employee agrees
that in an action pursuant to this Section 6, that if the Company makes a prima
facie showing that the Employee has violated or intends to violate any of the
provisions of this Section 6, the Company need not prove either damage or
irreparable injury in order to obtain injunctive relief. The Company
and the Employee agree that any such action for injunctive or equitable relief
shall be heard in a state or federal court situated in the State of California
and each of the parties hereto agrees to accept service of process by registered
or certified mail and to otherwise consent to the jurisdiction of such
courts.
(d) Each of
the rights and remedies enumerated in Section 6(d) shall be independent of the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. The Employee
hereby acknowledges and agrees that the covenant against competition provided
for pursuant to Section 6(a) is reasonable with respect to it duration,
geographic area and scope. If, at the time of enforcement of this Section 6, a
court holds that the restrictions stated herein are unreasonable under the
circumstances then existing, the Parties hereto agree that the maximum duration,
scope or geographic area legally permissible under such circumstances will be
substituted for the duration, scope or area state herein. If any of the
covenants contained in this Section 6, or any part of any of them, is hereafter
construed or adjudicated to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants or rights or remedies which
shall be given full effect without regard to the invalid portions. No such
holding of invalidity or unenforceability in one jurisdiction shall bar or in
any way affect the Company’s right to the relief provided in this Section 6 or
otherwise in the courts of any other state or jurisdiction within the
geographical scope of such covenants as to breaches of such covenants in such
other respective states or jurisdictions, such covenants being, for this
purpose, severable into diverse and independent covenants.
(e) In the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 5 or this Section 6, the Employee shall not urge as a defense that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available. The Employee
agrees that he shall not raise in any proceeding brought to enforce the
provisions of Section 5 or this Section 6 that the covenants contained in such
Sections limit his ability to earn a living.
(f) The
provisions of this Section 6 shall survive any termination of this
Agreement.
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7. Representations and
Warranties by the Employee.
The
Employee hereby represents and warrants to the Company as follows:
(i) Neither
the execution or delivery of this Agreement nor the performance by the Employee
of his duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant or obligation under (whether immediately, upon the
giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Employee is a party or by which he is
bound.
(ii) The
Employee will not use any confidential information or trade secrets of any third
party in his employment by the Company in violation of the terms of the
agreements under which he had access to or knowledge of such confidential
information or trade secrets.
(iii) The
Employee has the full right, power and legal capacity to enter and deliver this
Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Employee enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are
required for the Employee to execute and deliver this Agreement or perform his
duties and other obligations hereunder.
8. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California, without giving effect to its
principles of conflicts of laws.
(b) Any dispute
arising out of, or relating to, this Agreement or the breach thereof (other than
Sections 5 or 6 hereof), or regarding the interpretation thereof, shall be
finally settled by arbitration conducted in San Diego, California in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association then in effect before a single arbitrator
appointed in accordance with such rules. Judgment upon any award
rendered therein may be entered and enforcement obtained thereon in any court
having jurisdiction. The arbitrator shall have authority to grant any
form of appropriate relief, whether legal or equitable in nature, including
specific performance. For the purpose of any judicial proceeding to
enforce such award or incidental to such arbitration or to compel arbitration
and for purposes of Sections 5 and 6 hereof, the parties hereby submit to the
exclusive jurisdiction of the competent federal and state courts located in
California, and agree that service of process in such arbitration or court
proceedings shall be satisfactorily made upon it if sent by registered mail
addressed to it at the address referred to below in paragraph (i) of this
Section 11 below. The costs of such arbitration shall be borne
proportionate to the finding of fault as determined by the
arbitrator. Judgment on the arbitration award may be entered by any
court of competent jurisdiction.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and permitted
assigns.
(d) This
Agreement, and the Employee’s rights and obligations hereunder, may not be
assigned by the Employee. The Company may assign its rights, together
with its obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets.
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(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the parties hereto.
(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
(g) All
notices, requests, consents and other communications, required or permitted to
be given hereunder, shall be in writing and shall be delivered personally or by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date of
deposit in the United States mails. Either party may designate
another address for receipt of notices hereunder by giving notice to the other
party in accordance with this Section 8(g).
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(i) As used
in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified
Person.
(j) The
section headings contained herein are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Agreement.
(k) As used
in this Agreement, the masculine, feminine or neuter gender, and the singular or
plural, shall be deemed to include the others whenever and wherever the context
so requires. Additionally, unless the context requires otherwise,
"or" is not exclusive.
(l) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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PACIFIC
BEACH BIOSCIENCES, INC.
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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President
& Chief Executive Officer
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| EMPLOYEE | |
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/s/
Xxxx Xxxx
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Name: Xxxx
Xxxx
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