EMPLOYMENT AGREEMENT
Exhibit 10.1
Execution Copy
This AGREEMENT (the “Agreement”) is made as of April 6, 2009 (the “Effective Date”), by and
between EPIX Pharmaceuticals, Inc. (the “Employer” or the “Company”), and Xxxxx Xxxxx, Ph.D. (the
“Executive”). In consideration of the mutual covenants contained in this Agreement, the Employer
and the Executive agree as follows:
1. Employment. The Employer agrees to employ the Executive and the Executive agrees
to be employed by the Employer on the terms and conditions set forth in this Agreement.
2. Capacity. The Executive shall serve the Employer as Chief Executive Officer
(“CEO”). As CEO, the Executive shall have authority and responsibility for the general control and
supervision of the Employer’s business and, subject to the determination of the Employer’s Board of
Directors (the “Board of Directors”), shall constitute an officer position pursuant to Section 16
of the Securities Exchange Act of 1934, as amended. The Executive shall work at the Employer’s
Lexington, Massachusetts office.
3. Term. Subject to the provisions of Section 6, the Executive’s employment is “at
will” and may be terminated by either the Employer or Executive for any reason, or for no reason,
at any time.
4. Compensation and Benefits. The regular compensation and benefits payable to the
Executive under this Agreement shall be as follows:
(a) Salary. Beginning on the Effective Date, the Employer shall pay the Executive a
salary at the annual rate of $162,500 for all services rendered by the Executive under this
Agreement (the “Initial Salary”). The Employer shall continue to pay the Executive the Initial
Salary through the date the Executive notifies the Employer that he desires to receive an increase
in his annual base salary rate (the “Notification Date”). Within one month of the Notification
Date, the Employer shall begin to pay the Executive a salary for all services rendered by the
Executive under this Agreement at the annual rate of $325,000 (the “Post-Notification Salary”),
subject to increase from time to time in the discretion of the Board of Directors or the
Compensation Committee of the Board of Directors (the “Compensation Committee”). The Executive’s
annual base salary in effect at any given time is referred to herein as “Base Salary.” The Base
Salary shall be payable in periodic installments in accordance with the Employer’s usual practice
for its senior executives, but not less frequently than once every two weeks.
(b) Annual Bonus. Beginning with the fiscal year ending December 31, 2009, the
Executive shall be eligible for an annual bonus upon the Company meeting its annual goals, under
terms established by the Board of Directors or the Compensation Committee with such terms as may be
established in the sole discretion of the Board of Directors or Compensation Committee. Bonus
payments for each fiscal year, as approved by the Board of Directors or Compensation Committee,
shall be paid between January 1 and March 15 of the following fiscal year. The Executive’s target
annual bonus will be 50% of the higher of his Base Salary or the Post-Notification Salary.
(c) Special Bonus. Upon the consummation by the Company of a “Restructuring and
Financing Event” (as defined below), or any “COC Event” (as defined below), the Executive shall be
eligible for a special bonus of $100,000, less any required deductions or withholdings. For
purposes of this Agreement, a Restructuring and Financing Event means that each of the following
occur: (a) the monetization by the Company of its rights to Vasovist resulting in gross proceeds
of at least $25 million; (b) the elimination of at least 85% of the Company’s outstanding 3%
Convertible Senior Notes due 2024 through a restructuring, exchange for cash and/or common stock of
the Company, or similar transaction approved by the Board of Directors; and (c) the consummation of
one or more sales of debt, equity, or equity-linked securities of the Company or committed funds
from one or more newly executed collaborations or licensing agreements resulting in aggregate cash
proceeds to the Company of at least $20 million. For purposes of this Agreement, COC Event means
any of the following: (a) any consolidation or merger of the Company in which the Company is not a
continuing or surviving corporation or pursuant to which shares of the Company would be converted
into cash, securities, or other property, other than a consolidation or merger of the Company in
which the holders of shares immediately prior to the consolidation or merger maintain voting
control of the resulting entity immediately after the consolidation or merger; (b) any sale, lease,
exchange or other transfer (in one transaction or a series of related transactions) of all or
substantially all the assets of the Company; or (c) any transaction or series of transactions,
including in the event of an investment in the Company, following which a person or a group of
persons acting together shall obtain a “controlling interest” (which shall mean the direct or
indirect ownership of more than 50% of the outstanding voting shares or other ownership interest of
the Company, or the power to elect or appoint more than 50% of the members of the Company’s board
of directors).
(d) Stock Options. In consideration of the covenants contained in this Agreement, the
Executive is eligible to receive a long-term incentive award of 400,000 shares of the Company’s
common stock in the form of stock options (the “Options”). It is intended that the Options
constitute incentive stock options within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended, (the “Code”) to the extent permitted under IRC Regulation 1.422-4. To the
extent the $100,000 annual limitation set forth in such regulation is exceeded, the Options shall
be non-qualified. The stock option grant will vest over four years, with 25% vesting on the date
that is three months after the date of grant (the “Cliff Vesting Amount”) and the remainder vesting
in equal quarterly installments on the two year, three year, and four year anniversary of the date
of grant (the “Quarterly Vesting Amount”). The Cliff Vesting Amount is subject to acceleration
such that 100,000 shares shall be vested upon (i) the monetization by the Company of its rights to
Vasovist resulting in gross proceeds of at least $25 million, and (ii) the elimination of at least
85% of the Company’s outstanding 3% Convertible Senior Notes due 2024 through a restructuring,
exchange for cash and/or common stock of the Company, or similar transaction approved by the Board
of Directors (clause (i) and (ii) collectively referred to as the “Restructuring”). In addition,
the Quarterly Vesting Amount is subject to acceleration under the following circumstance: following
the Restructuring, 50% of the Quarterly Vesting Amount scheduled to vest will accelerate, such that
150,000 shares of the Quarterly Vesting Amount, to the extent not already vested, shall be vested,
upon the consummation of one or more sales of debt, equity, or equity-linked securities of the
Company or committed funds from one or more newly executed collaborations or licensing agreements
resulting in aggregate cash proceeds to the Company of at least $20 million. Also, upon
termination of the Executive’s employment without Cause (as set forth in Section 6(c) below) no
more than eighteen (18) months following
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the date of the consummation of a COC Event or upon the Executive’s termination of his
employment with Good Reason (as set forth in Section 6(b) below) no more than eighteen (18) months
following the date of the consummation of a COC Event, the Cliff Vesting Amount and the Quarterly
Vesting Amount are subject to acceleration such that the Cliff Vesting Amount and the Quarterly
Vesting Amount shall be vested in their entirety to the extent not already vested. The Board of
Directors reserves the right to provide Executive with future long-term incentive awards in its
sole discretion. The stock option grant and any other grant shall be subject to the Employer’s
Stock Option Plan and any relevant grant agreement.
(e) Regular Benefits. The Executive shall also be entitled to participate in any
employee benefit plans, medical insurance plans, life insurance plans, disability income plans,
retirement plans, expense reimbursement plans and other benefit plans which the Employer may from
time to time have in effect for all or most of its senior executives. Such participation shall be
subject to the terms of the applicable plan documents, generally applicable policies of the
Employer, applicable law and the discretion of the Board of Directors, the Compensation Committee
or any administrative or other committee provided for in or contemplated by any such plan. Nothing
contained in this Agreement shall be construed to create any obligation on the part of the Employer
to establish any such plan or to maintain the effectiveness of any such plan which may be in effect
from time to time.
(f) Taxation of Payments and Benefits. The Employer shall undertake to make
deductions, withholdings and tax reports with respect to payments and benefits under this Agreement
to the extent that it reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement shall be in amounts net of
any such deductions or withholdings. Nothing in this Agreement shall be construed to require the
Employer to make any payments to compensate the Executive for any adverse tax effect associated
with any payments or benefits or for any deduction or withholding from any payment or benefit.
5. Extent of Service. During the Executive’s employment under this Agreement, the
Executive shall, subject to the direction and supervision of the Board of Directors, devote the
Executive’s full business time, best business judgment, skill and knowledge to the advancement of
the Employer’s interests and to the discharge of the Executive’s duties and responsibilities under
this Agreement. Nothing herein shall limit the Executive’s rights to provide services in a
non-operative role and/or to serve in a non-operative role on the board of directors of other
corporations, provided that the Executive receives approval in advance, in writing, by the Board of
Directors, whose approval shall not be unreasonably withheld. Nothing in this Agreement shall be
construed as preventing the Executive from:
(a) investing the Executive’s assets in any company or other entity in a manner not prohibited
by Section 7(d) of this Agreement and in such form or manner as shall not require any material
activities on the Executive’s part in connection with the operations or affairs of the companies or
other entities in which such investments are made;
(b) engaging in religious, charitable or other community or non-profit activities that do not
impair the Executive’s ability to fulfill the Executive’s duties and responsibilities under this
Agreement; or
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(c) serving on the board of directors of any companies for which Executive receives approval
in advance, in writing, by the Board of Directors.
6. Termination and Termination Benefits. The Executive’s employment under this
Agreement shall terminate under the following circumstances set forth in this Section 6.
(a) Termination by the Employer for Cause. The Executive’s employment under this
Agreement may be terminated for Cause without further liability on the part of the Employer
effective immediately upon a vote of the Board of Directors and written notice to the Executive.
Only the following shall constitute “Cause” for such termination:
(i) willful misappropriation of the funds or property of the Employer;
(ii) the conviction for, the admission or confession to, or the plea of “guilty” or “no
contest” to (A) a felony or (B) any crime involving moral turpitude, deceit, dishonesty, or
fraud;
(iii) willful and material failure (other than by reason of the Executive’s physical or
mental illness, incapacity or disability) to perform to the reasonable satisfaction of the
Board of Directors a substantial portion of the Executive’s duties and responsibilities
assigned or delegated under this Agreement, which failure continues, in the reasonable
judgment of the Board of Directors, for at least thirty (30) days after written notice of
the scope and nature of such failure given to the Executive by the Board of Directors;
(iv) gross negligence or willful misconduct of the Executive with respect to the
performance of duties assigned by the Employer that has an effect that is materially adverse
to the business assets (including intangible assets), liabilities, financial condition,
property, or results of operations of the Employer; or
(v) material breach by the Executive of any of the Executive’s obligations under
Section 7 of this Agreement.
(b) Termination by the Executive. The Executive’s employment under this Agreement may
be terminated by the Executive without “Good Reason” (as defined below) by written notice to the
Board of Directors at least sixty (60) days prior to such termination. For the purposes of this
Agreement, Good Reason shall mean (i) any reduction in the higher of Executive’s Base Salary or the
Post-Notification Salary; (ii) the relocation of the Executive’s primary place of employment to a
location more than 100 miles from Lexington, Massachusetts; (iii) any failure by the Employer to
pay the Executive his compensation or provide him his benefits, as set forth herein, which is not
cured within ten (10) days after the receipt of written notice by the Employer of a description of
the breach; or (iv) a COC Event. The Executive’s employment under this Agreement may be terminated
by the Executive with Good Reason at any time following the occurrence of events (i) through (iv)
as set forth above. For the purposes of this Agreement, Good Reason shall also mean (v) a material
reduction of the Executive’s responsibilities, duties or authority. The Executive’s employment
under this Agreement may be terminated by the Executive with Good Reason following the occurrence
of event (v) as set forth above only upon compliance with the “Good Reason Process” (hereinafter
defined). Good
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Reason Process shall mean that (1) the Executive reasonably determines in good faith that his
responsibilities, duties, or authority have been materially reduced (a “Material Reduction”); (2)
the Executive notifies the Employer in writing of a Material Reduction within 60 days of the
occurrence of such condition; (3) the Executive cooperates in good faith with the Employer’s
efforts, for a period not less than 30 days following such notice (the “Cure Period”), to remedy
the Material Reduction; (4) notwithstanding such efforts, the Material Reduction continues to
exist; and (5) the Executive terminates his employment within 60 days after the end of the Cure
Period. If the Employer cures the Material Reduction condition during the Cure Period, the
Executive’s termination of his employment on the basis of that condition shall be considered a
termination without Good Reason.
(c) Termination by the Employer Without Cause. Subject to the payment of Termination
Benefits pursuant to Section 6(d), the Executive’s employment under this Agreement may be
terminated by the Employer without Cause upon 60 days’ written notice to the Executive. The
Executive’s employment shall not be considered to be terminated without Cause if the Executive’s
employment terminates by reason of death or disability pursuant to Section 6(e).
(d) Certain Termination Benefits. Unless otherwise specifically provided in this
Agreement or otherwise required by law, all compensation and benefits payable to the Executive
under this Agreement shall terminate on the date of termination of the Executive’s employment under
this Agreement. If the Executive’s employment with the Company is terminated for any reason, the
Company shall pay or provide to the Executive any earned but unpaid salary and any unpaid expense
reimbursement on or before the time required by law but in no event more than thirty (30) days
after the date of the Executive’s termination. Notwithstanding the foregoing, in the event of
termination of the Executive’s employment with the Employer pursuant to Section 6(c) above or
termination by the Executive with Good Reason pursuant to Section 6(b) above, the Employer shall
provide to the Executive the following termination benefits (“Termination Benefits”), provided that
the Executive executes (and does not revoke) a general release of claims (the “Release”) in
substantially the form attached hereto as Exhibit A, with such modifications as may be required at
the time of execution for a valid and enforceable general release of claims, within the time frame
set forth in the Release:
(i) a lump sum equal to twelve (12) months salary at the higher of the Executive’s Base
Salary rate as of the date of termination under this Agreement or the Post-Notification
Salary rate, payable in the next regular pay period that occurs more than 30 days following
the date of termination; and
(ii) continuation of group health plan benefits to the extent authorized by and
consistent with 29 U.S.C. § 1161 et seq. (commonly known as “COBRA”), with the Gross Cost of
the regular premium for such benefits shared in the same relative proportion by the Employer
and the Executive as in effect on the date of termination until twelve (12) months after the
date of termination. For purposes of this 6(d)(ii), “Gross Cost” shall refer to the total
cost of the regular premium for such benefits without considering the reduction of the
premium cost based on any subsidy authorized by federal, state, or local law.
Notwithstanding the foregoing, nothing in this Section 6(d) shall be construed to affect the
Executive’s right to receive COBRA continuation entirely
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at the Executive’s own cost to the extent that the Executive may continue to be
entitled to COBRA continuation after the Executive’s right to cost sharing under Section
6(d)(ii) ceases; and
(iii) that portion of his bonus set forth in Section 4(b) above as had been accrued by
the Employer in accordance with generally accepted accounting principles as of the end of
the fiscal quarter immediately preceding such termination. This portion of the bonus will
be paid to the Executive at the time the Employer pays bonuses to other senior employees,
provided that it shall be paid no later than March 14 of the calendar year immediately
following the calendar year during which termination of employment occurs.
(iv) If the Release is not executed (without revocation) within the time provided in
the Release, or the Executive violates any provision of Section 7 below, the Executive shall
forfeit all rights to any Termination Benefits under this Agreement.
(e) Disability. The Employer may terminate the Executive’s employment if he is
disabled and unable to perform the essential functions of the Executive’s then existing position or
positions under this Agreement with or without reasonable accommodation for a period of 180 days
(which need not be consecutive) in any 12-month period. Until the Executive’s employment is
terminated, the Executive will continue to receive payment from the Employer, which when added to
any sick pay or disability pay, shall equal his Salary. Upon such termination, the Executive shall
be entitled to receive a pro rata share of his bonus for the fiscal year in which termination
occurs pursuant to Section 4(b) above. This pro rata bonus shall be paid to the Executive at the
time the Employer pays bonuses to other senior employees, provided that it shall be paid no later
than March 14 of the calendar year immediately following the calendar year during which termination
of employment occurs.
If any question shall arise as to whether during any period the Executive is disabled so as to
be unable to perform the essential functions of the Executive’s then existing position or positions
with or without reasonable accommodation, the Executive may, and at the request of the Employer
shall, submit to the Employer a certification in reasonable detail by a physician selected by the
Employer to whom the Executive or the Executive’s guardian has no reasonable objection as to
whether the Executive is so disabled or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of the issue. The Executive
shall cooperate with any reasonable request of the physician in connection with such certification.
If such question shall arise and the Executive shall fail to submit such certification, the
Employer’s determination of such issue shall be binding on the Executive. Nothing in this Section
shall be construed to waive the Executive’s rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans
with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et seq.
7. Confidential Information, Noncompetition and Cooperation.
(a) Confidential Information. As used in this Agreement, “Confidential Information”
means information belonging to the Employer which is of value to the Employer in the course of
conducting its business and the disclosure of which could result in a competitive or
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other disadvantage to the Employer. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions, improvements and other intellectual
property; trade secrets; know-how; designs, processes or formulae; software; market or sales
information or plans; customer lists; and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential Information includes information
developed by the Executive in the course of the Executive’s employment by the Employer, as well as
other information to which the Executive may have access in connection with the Executive’s
employment. Confidential Information also includes any third party’s information that the Employer
agrees to keep in confidence and/or trust or to not disclose to others pursuant to an agreement
with the third party. Notwithstanding the foregoing, Confidential Information does not include
information in the public domain, unless due to breach of the Executive’s duties under Section
7(b), or information that is shown by documentary evidence to have been known by Executive prior to
disclosure to Executive by the Employer.
(b) Confidentiality. The Executive understands and agrees that the Executive’s
employment creates a relationship of confidence and trust between the Executive and the Employer
with respect to all Confidential Information. At all times, both during the Executive’s employment
with the Employer and after its termination, the Executive will keep in confidence and trust all
such Confidential Information, and will not use or disclose any such Confidential Information
without the written consent of the Employer, except as may be necessary in the ordinary course of
performing the Executive’s duties to the Employer.
(c) Documents, Records, etc. All documents, records, data, apparatus, equipment and
other physical property, whether or not pertaining to Confidential Information, which are furnished
to the Executive by the Employer or are produced by the Executive in connection with the
Executive’s employment will be and remain the sole property of the Employer. The Executive will
return to the Employer all such materials and property as and when requested by the Employer. In
any event, the Executive will return all such materials and property immediately upon termination
of the Executive’s employment for any reason. The Executive will not retain with the Executive any
such material or property or any copies thereof after such termination.
(d) Noncompetition and Nonsolicitation. During the Executive’s employment with the
Company and for one year thereafter (or, if longer, for the number of months’ salary paid as
severance, as defined in Section 6(d)(i)), the Executive will not, directly or indirectly, whether
as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, engage,
participate, assist or invest in any Competing Business (as hereinafter defined). During the
Executive’s employment with the Company and for one year thereafter, the Executive (i) will refrain
from attempting to employ, recruiting or otherwise soliciting, inducing or influencing any person
to leave employment with the Employer (other than terminations of employment of subordinate
employees undertaken in the course of the Executive’s employment with the Employer); and (ii) will
refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify
adversely its business relationship with the Employer. The Executive understands that the
restrictions set forth in this Section 7(d) are intended to protect the Employer’s interest in its
Confidential Information and established employee, customer and supplier relationships and
goodwill, and agrees that such restrictions are reasonable and
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appropriate for this purpose. For purposes of this Agreement, the term “Competing Business”
shall mean a business with a primary focus on discovering drugs targeting GPCR’s through the use of
in silico discovery and development technologies. Notwithstanding the foregoing, the Executive may
own up to one percent (1%) of the outstanding stock of a publicly held corporation which
constitutes or is affiliated with a Competing Business.
(e) Third-Party Agreements and Rights. The Executive hereby confirms that the
Executive is not bound by the terms of any agreement with any previous employer or other party
which restricts in any way the Executive’s use or disclosure of information or the Executive’s
engagement in any business. The Executive represents to the Employer that the Executive’s
execution of this Agreement, the Executive’s employment with the Employer and the performance of
the Executive’s proposed duties for the Employer will not violate any obligations the Executive may
have to any such previous employer or other party. In the Executive’s work for the Employer, the
Executive will not disclose or make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive will not bring to the
premises of the Employer any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other party.
(f) Litigation and Regulatory Cooperation. During and after the Executive’s
employment, the Executive shall cooperate fully with the Employer in the defense or prosecution of
any claims or actions now in existence or which may be brought in the future against or on behalf
of the Employer which relate to events or occurrences that transpired while the Executive was
employed by the Employer. The Executive’s full cooperation in connection with such claims or
actions shall include, but not be limited to, being reasonably available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the Employer at mutually
convenient times. During and after the Executive’s employment, the Executive also shall cooperate
fully with the Employer in connection with any investigation or review of any federal, state or
local regulatory authority as any such investigation or review relates to events or occurrences
that transpired while the Executive was employed by the Employer. The Employer shall reimburse the
Executive for any reasonable out-of-pocket expenses and time (at a mutually agreed upon rate)
incurred in connection with the Executive’s performance of obligations pursuant to this Section
7(f).
(g) Injunction. The Executive agrees that it would be difficult to measure any
damages caused to the Employer which might result from any breach by the Executive of the promises
set forth in this Section 7, and that in any event money damages would be an inadequate remedy for
any such breach. Accordingly, subject to Section 8 of this Agreement, the Executive agrees that if
the Executive breaches, or proposes to breach, any portion of this Agreement, the Employer shall be
entitled, in addition to all other remedies that it may have, to an injunction or other appropriate
equitable relief to restrain any such breach, without showing or proving any actual damage to the
Employer.
8. Arbitration of Disputes. Any controversy or claim arising out of this Agreement
or the breach thereof shall, to the fullest extent permitted by law, be settled by arbitration in
any forum and form agreed upon by the parties or, in the absence of such an agreement, under the
auspices of the American Arbitration Association (“AAA”) in Boston, Massachusetts in
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accordance with the Employment Dispute Resolution Rules of the AAA, including, but not limited
to, the rules and procedures applicable to the selection of arbitrators. In the event that any
person or entity other than the Executive or the Employer may be a party with regard to any such
controversy or claim, such controversy or claim shall be submitted to arbitration subject to such
other person or entity’s agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. This Section 8 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 8 shall not preclude either party from
pursuing a court action for the sole purpose of obtaining a temporary restraining order or a
preliminary injunction in circumstances in which such relief is appropriate; provided that any
other relief shall be pursued through an arbitration proceeding pursuant to this Section 8.
9. Consent to Jurisdiction. To the extent that any court action is permitted
consistent with or to enforce Section 8 of this Agreement, the parties hereby consent to the
jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the United States
District Court for the District of Massachusetts. Accordingly, with respect to any such court
action, the Executive (a) submits to the personal jurisdiction of such courts; (b) consents to
service of process; and (c) waives any other requirement (whether imposed by statute, rule of
court, or otherwise) with respect to personal jurisdiction or service of process.
10. Integration. This Agreement, together with any stock option plans and grants,
constitutes the entire agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements between the parties with respect to any related subject matter.
11. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the
Executive’s separation from service within the meaning of Section 409A of the Code, the Employer
determines that the Executive is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes
entitled to under this Agreement would be considered deferred compensation subject to the 20
percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the
application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such
benefit shall not be provided until the date that is the earlier of (A) six months and one day
after the Executive’s separation from service, or (B) the Executive’s death. The determination of
whether and when a separation from service has occurred shall be made in accordance with the
presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(b) The parties intend that this Agreement will be administered in accordance with Section
409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its
compliance with Section 409A of the Code, the provision shall be read in such a manner so that all
payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may
be amended, as reasonably requested by either party, and as may be necessary to fully comply with
Section 409A of the Code and all related rules and regulations in order to preserve the payments
and benefits provided hereunder without additional cost to either party.
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(c) The Employer makes no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or
the conditions of, such Section.
12. Assignment; Successors and Assigns. Neither the Employer nor the Executive may
make any assignment of this Agreement or any interest herein, by operation of law or otherwise,
without the prior written consent of the other party; provided that the Employer may assign its
rights under this Agreement without the consent of the Executive in the event that the Employer
shall effect a reorganization, consolidate with or merge into any other corporation, partnership,
organization or other entity, or transfer all or substantially all of its properties or assets to
any other corporation, partnership, organization or other entity. This Agreement shall inure to
the benefit of and be binding upon the Employer and the Executive, their respective successors,
executors, administrators, heirs and permitted assigns.
13. Enforceability. If any portion or provision of this Agreement shall to any extent
be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of
this Agreement, or the application of such portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
14. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the performance of
any term or obligation of this Agreement, or the waiver by any party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
15. Notices. Any notices, requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally
recognized overnight courier service or by registered or certified mail, postage prepaid, return
receipt requested, to the Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at its main offices, attention of the Board of Directors,
and shall be effective on the date of delivery in person or by courier or three (3) days after the
date mailed.
16. Amendment. This Agreement may be amended or modified only by a written instrument
signed by the Executive and by a duly authorized representative of the Employer.
17. Governing Law. This is a Massachusetts contract and shall be construed under and
be governed in all respects by the laws of the Commonwealth of Massachusetts, without giving effect
to the conflict of laws principles of such Commonwealth. With respect to any disputes concerning
federal law, such disputes shall be determined in accordance with the law as it would be
interpreted and applied by the United States Court of Appeals for the First Circuit.
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18. Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the Employer,
by its duly authorized officer, and by the Executive, as of the Effective Date.
| EPIX PHARMACEUTICALS, INC. | ||||||
| By: | /s/ Xxxx Xxxxxxxxxxxxxx
|
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| Name: Xxxx Xxxxxxxxxxxxxx | ||||||
| Title: Chairman of the Compensation Committee | ||||||
| /s/ Xxxxx Xxxxx, Ph.X. | ||||||
| Xxxxx Gamzu, Ph.D. | ||||||
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Exhibit A
RELEASE AGREEMENT
For and in consideration of the mutual agreements and promises contained in the Employment
Agreement, dated April 6, 2009 (the “Employment Agreement”) between Xxxxx Xxxxx, Ph.D.
(“Executive”) and Epix Pharmaceuticals, Inc.(“the Company”), and other good and valuable
consideration, the Executive, for himself and his successors, assigns, heirs, executors and
administrators, hereby fully and unconditionally releases and forever discharges the Company,
including its shareholders, subsidiaries, affiliates, officers, directors, employees, agents, and
attorneys (collectively the “Releasees”) of and from any and all claims, causes of action, suits,
obligations, demands, debts, agreements, promises, liabilities, controversies, costs, damages,
expenses and attorneys’ fees, of any kind and character, whether based on any federal, state, or
local law or right of action, at law or in equity, including without limitation claims arising
under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, Massachusetts General Laws Chapter 151B, or any other applicable
federal state or local employment discrimination statute, regulation, or ordinance prohibiting
discrimination on the basis of age, race, sex, national origin, religion, sexual preference,
disability, veteran status, genetic information or any other protected characteristic, whether
accrued or unaccrued, whether known or unknown, and whether direct or contingent, which Executive
claimed or could have claimed against any of the Releasees, from the beginning of time through and
including the date Executive signs this Release. This Release includes, without implication of
limitation, the complete release of all claims of or for: breach of express or implied contract;
wrongful termination of employment whether in contract or tort; intentional, reckless, or negligent
infliction of emotional distress; breach of any express or implied covenant of employment,
including the covenant of good faith and fair dealing; interference with contractual or
advantageous relations, whether prospective or existing; deceit or misrepresentation;
discrimination or retaliation under state, federal, or municipal law, including, without
implication of limitation, defamation or damage to reputation; reinstatement; punitive or emotional
distress damages; wages, severance pay, vacation pay, back or front pay or other forms of
compensation; and attorney’s fees and costs. Executive understands that this general release of
claims extends to any and all claims related to Executive’s employment by the Company and
Executive’s separation from employment.
This Release of Claims is intended to comply with the Older Workers Benefit Protection Act of
1990 with regard to the release of claims under the Age Discrimination in Employment Act.
Executive hereby acknowledges and agrees:
(a) Executive is specifically waiving rights and claims under the ADEA. Such waiver of rights
does not extend to any rights or claims under the ADEA arising after the date Executive executes
this Release;
(c) Executive has been advised to consult with an attorney of his choice before executing this
Release;
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(d) Executive would not be entitled to certain termination benefits under the Employment
Agreement but for his execution of this Release;
(e) Executive has read this Release, understands its terms, and has executed it voluntarily
and without coercion of any kind;
(f) Executive has been provided twenty-one (21) days to consider this Release before signing
it (“Consideration Period”). If the Executive elects to sign this Release in fewer than 21 days,
Executive represents that he has voluntarily elected to waive the remaining Consideration Period in
order to avail himself of the termination benefits under his Employment Agreement more quickly.
Executive also has the right to revoke his agreement to this Release within seven (7) days after
signing it (“Revocation Period”). Such revocation must be in writing delivered during the
Revocation Period to the Company’s head of Human Resources at fax number781-761-7641; and
(g) Any severance or related payments owed to Executive under Section 6 of the Employment
Agreement will only be made by the Company after the Revocation Period has elapsed without the
Executive having revoked this Release.
Nothing in this Release is intended to release the Company from any rights the Executive may
have to indemnification from the Company for conduct within the scope of his duties during his
employment, including without limitation such indemnification as may be provided in the Company
By-Laws, through a directors’ and officers’ liability insurance policy, or such other contractual
or common law indemnification rights as may exist.
Executive hereby reaffirms all of his post-employment, confidentiality, noncompetition and
cooperation obligations set forth in Section 7 of the Employment Agreement. Executive further
agrees not to make any disparaging statements or remarks, whether orally or in writing, concerning
or relating to the Company or any of the Releasees (in their official and personal capacities), its
and their services and/or products. In addition, Executive shall not take any actions or conduct
herself in any way that would reasonably be expected to affect adversely the reputation or good
will of the Company or any of the Releasees.
This Release shall not be construed as an admission by the Company or any other Releasee of
any improper, discriminatory or unlawful action against the Executive.
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