EXHIBIT 10.72
[LOGO]
CORTEX
This EMPLOYMENT AGREEMENT, dated as of May 1, 2002, is entered into by and
between Cortex Pharmaceuticals, Inc. (the "Company"), and Xxxxx X. Data, M.D.,
Ph.D. (the "Executive").
WITNESSETH
WHEREAS, the Executive has considerable experience in clinical and
regulatory affairs and executive management, and
WHEREAS, the Company wishes to employ the Executive as its Senior Vice
President, Clinical and Regulatory Affairs, and the Executive wishes to be so
employed by the Company,
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Engagement. The Company hereby employs the Executive as its Senior Vice
President, Clinical and Regulatory Affairs, reporting to the President
and Chief Executive Officer and the Executive hereby accepts such
employment, on the terms and conditions hereinafter set forth.
2. Term. The term of this Agreement will begin on May 1, 2002 and shall
continue thereafter for a one-year period and shall be extended on each
day for one (1) day so that the remaining term hereof is always one (1)
year unless either party elects to terminate this Agreement in
accordance with its provisions.
3. Duties. During the term of this Agreement, the Executive shall serve as
the Company's Senior Vice President, Clinical and Regulatory Affairs and
shall have such duties and responsibilities as are set forth in the
Company's Bylaws and such other executive responsibilities as may be
assigned to her from time to time by the President and CEO or the Board
of Directors. In particular, and without limitation, Executive's duties
shall include using diligent efforts as appropriate to (i) oversee the
clinical and regulatory affairs function for the Company at the
corporate level, (ii) develop preclinical toxicology strategies, (iii)
oversee the implementation of strategies for earliest possible approvals
of phase 1 through phase 4 applications, (iv) oversee the evaluation and
analysis of the impact of trends relative to government regulatory
activities, (v) assist the CEO and other executives in the development
of the Company's products through clinical trials and regulatory
approvals, and (vi) perform other duties as
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may be appropriate from time to time. The Executive shall use her best
efforts and shall act in good faith in performing all duties reasonably
required to be performed by her under this Agreement. It is understood
that initially, the Executive will provide part-time service to Cortex,
and will be compensated on a pro-rata basis.
4. Availability. Except as provided above, the Executive shall devote her
entire working time, attention, and energies to the Company's business
and during the term of this Agreement shall not be engaged in any other
business activity without the prior written approval of the CEO. The
Executive may engage in a reasonable level of professional activities
such as are typical for individuals of a comparable professional
stature. Note: The Executive desires to complete certain commitments to
her current employer and the Company has no objection to the Executive
completing her commitments. The Executive may not work on a full-time
basis during the early months of the employment agreement; therefore,
all salary and benefits will be on a prorated basis. The Executive may
hold board of director positions in up to 2 outside companies, so long
as neither company is in a field that directly competes with the Company
(Cortex).
5. Expenses. The Company shall reimburse the Executive, promptly upon
presentation of itemized vouchers, for all ordinary and customary
business expenses (including dues, licenses, professional meeting
attendance and the like) consistent with the Company's reimbursement
policy, incurred by the Executive in the performance of her duties.
6. Compensation. As compensation for the services to be rendered hereunder,
the Company agrees as follows:
(a) To pay the Executive a prorated annual salary of $200,000 per annum,
subject to increase based on an annual review by the Compensation
Committee of the Board of Directors.
(b) To pay to the Executive a minimum prorated annual bonus of $50,000,
payable bimonthly. In addition, the Executive shall be considered
for an additional bonus based upon the level of performance of the
Executive and/or the Company as measured against mutually
agreed-upon targets. The amount of such additional bonus shall be
determined annually by the Compensation Committee of the Board of
Directors.
(c) To allow the Executive to participate in such employee benefit
programs as are made available to management of the Company. Such
benefits will be on a pro rata basis, and in the event Executive
wishes to substitute employee health benefit value for cash or other
value, the Company will make such adjustments.
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(d) To allow the Executive to have five weeks of paid time off each year
during the term of this Agreement.
The Executive acknowledges that salary and all other compensation payable under
this Agreement shall be subject to withholding for income and other applicable
taxes to the extent required by law.
7. Ownership of Material Information. All right, title and interest of
every kind and nature whatsoever in and to discoveries, inventions,
improvements, copyrights, ideas, know how, creations or other
proprietary rights arising from or connected with the Executive's
employment hereunder shall become and remain the exclusive property of
the Company, and the Executive shall have no interest therein. The
Executive agrees to sign the standard proprietary rights agreement that
is required of all Company employees, provided however that in the event
of any conflict between such proprietary rights agreement and this
Agreement, the provisions of this Agreement shall govern.
8. Trade Secrets. The Executive covenants and agrees with the Company that
she will not, during the term of this Agreement or thereafter disclose
to anyone (except to the extent reasonably necessary for the Executive
to perform her duties hereunder or as may be required by law) any
confidential information concerning the business or affairs of the
Company (or of any affiliate or subsidiary of the Company), including
but not limited to, lists of customers, business plans, joint ventures,
financial or cost information, and confidential scientific, regulatory,
and clinical information (whether of the Company or entrusted to the
Company by a third party under a confidentiality agreement or
understanding), which the Executive shall have acquired in the course of
or incident to the performance of her duties pursuant to the terms of
this Agreement. Nothing herein shall be construed as prohibiting the
Executive from disclosing to anyone any information which is, or which
becomes, available to the public (other than by reason of a violation by
the Executive of this Section 8) or which is a matter of general
business knowledge or experience.
9. Termination for Cause. The Company may terminate the employment of the
Executive under this Agreement at any time for "Cause" (as hereinafter
defined) upon not less than three days' notice to the Executive. As used
herein, the term "Cause" shall mean only: a) Executive's willful refusal
or willful failure to perform the duties properly assigned to her in
accordance with the terms of this Agreement or a material breach of
Section 4 of this Agreement and such refusal, failure or breach is
detrimental to the interests of the Company, provided however that the
employment of the Executive shall not be terminated under this clause
(a) unless the Executive is given notice in writing that the conduct in
question
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constitutes grounds for termination under this Section 9 and the
Executive is allowed a reasonable period of time to remedy the refusal
or failure; (b) Executive's commission of a felony or misdemeanor,
which has a material adverse effect on the Company; or (c) Executive's
willful and material breach of Section 8 of this Agreement. If the
employment of the Executive under this Agreement is terminated under
this Section 9, the Company shall give written notice to the Executive
specifying the cause of such action. Upon the effectiveness of a
termination of employment under this Section 9, the Company shall be
relieved of all further obligations under this Agreement.
Notwithstanding such termination of employment, the Executive shall
continue to be bound by the provisions of Sections 7 and 8.
10. Termination Without Cause or for Good Cause.
(a) The Company may terminate the employment of the Executive under
this Agreement without cause at any time upon at least thirty (30)
days' prior written notice to the Executive. The Executive may
terminate her employment under this Agreement upon at least five
(5) days' prior written notice to the Company in the event of (i)
the material breach by the Company of any representation, covenant
or agreement contained in this Agreement, (ii) a change in the
Executive's title or a material reduction or alteration of the
duties of the Executive, (iii) a requirement that the Executive
relocate outside of Orange County, California, or (iv) a change in
the reporting relationship of the Executive. In the event of such a
termination by either the Company or the Executive under Section
10(a), the Company shall pay to Executive termination pay equal to
twelve months of then current salary.
(b) If the employment of the Executive is terminated under the
paragraph (a), all stock options then held by the Executive shall
immediately vest by one (1) additional year. Executive acknowledges
that this may produce a change in the tax status of such options,
and that the Company assumes no liability or obligation in
connection with any such change.
(c) Termination of employment under this Section 10 shall not terminate
the Executive's obligations under Sections 7 and 8.
(d) Nothing contained in this Agreement shall be construed to abrogate
the obligations of the Company to the Executive, or Executive's
personal representative or heirs, as the case may be, to make
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payment or provide any other benefit that accrued prior to the
termination of Executive's employment.
11. Disability of the Executive. In the event that the Executive,
during the period which employed under this Agreement, shall at any
time become unable, due to illness, accident, injury or otherwise,
to carry out her duties under this Agreement for a period of at
least three (3) consecutive months, the Company may terminate the
employment of the Executive under this Agreement. In such event,
the Company shall compensate the Executive in an amount equal to
the difference between any disability insurance proceeds and
Executive's then current monthly salary and other benefits for a
period of one year. A termination of employment under this Section
11 will not terminate the Executive's obligations under Sections 7
and 8.
12. Voluntary Termination. The Executive may terminate her employment
under this Agreement at any time by giving the Company thirty (30)
days' written notice. Termination of employment shall not terminate
the Executive's obligations under Sections 7 and 8.
13. Grant of Stock Options. As of the date hereof, the Company shall
grant to the Executive options to purchase 150,000 shares of common
stock of the Company with an exercise price equal to fair market
value as of such date, with a ten-year term, and with vesting in
four parts: 37,500 options to vest immediately, 37,500 options to
vest after one year, 37,500 options to vest after two years, and
the remaining 37,500 to vest after three years from the date
hereof. Executive's stock option position will be reviewed by the
Stock Option Committee of the Board of Directors from time to time,
but in no event less than annually, and increases in such stock
option position may be awarded dependent upon the performance of
the Executive. To the maximum extent permissible, stock options
granted to the Executive shall be "incentive stock options" as
defined in Section 422 of the Internal Revenue Code. The general
terms and conditions of stock options granted to the Executive
shall be in accordance with the stockholder-approved plans
established for the granting of options, as amended from time to
time.
14. Capacity. The Executive represents and warrants to the Company that
she is not now under any obligation of a contractual nature or
otherwise, to any perform, firm, corporation, association or other
entity that is inconsistent or in conflict with this Agreement or
which would prevent, limit or impair in any way the performance by
Executive of her obligations hereunder.
15. Participation in Competitive Business. While the Executive is
employed under this Agreement, the Executive shall not directly or
indirectly either as any employee, employer, consultant, agent,
principal,
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partner, stockholder, corporate consultant, officer, director or in
any other individual or representative capacity, engage or
participate in any business that is in competition in any manner
whatsoever with the business of the Company without the prior
written approval of the Company; provided however, that nothing
herein shall preclude the Executive from owning less than one
percent (1%) of the outstanding capital stock of any company whose
shares are traded on the Yew York Stock Exchange, the American
Stock Exchange, or Nasdaq.
16. Waiver. No act, delay, omission or course of dealing on the part of
any party hereto in exercising any right, power or remedy hereunder
shall operate as, or be construed as, a waiver thereof or otherwise
prejudice such party's rights, powers and remedies under this
Agreement.
17. Notice. Any and all notices referred to herein shall, if furnished
in writing and delivered by hand or by registered or certified
mail, return receipt requested, postage fully prepaid, to the
respective parties at the following addressed or such other address
as either party may from time to time designate in writing. Notices
shall be effective when delivered.
To Executive: Xxxxx X. Data, M.D., Ph.D.
00000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
To Company: Attn: Corporate Secretary
Cortex Pharmaceuticals, Inc.
00000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
18. Arbitration. All disputes arising under or in connection with this
Agreement shall be submitted to arbitration in Orange County,
California, under the rules of the American Arbitration
Association, and the decision of the arbitrator shall be final and
binding. Judgment upon the award rendered may be entered and
enforced in any court having jurisdiction. In no case shall either
party be liable for the other party's court costs, arbitration
costs, or attorneys' fees.
19. Assignability. The rights and obligations contained herein shall be
binding on and inure to the benefit of the successors and assigns
of the Company. The Executive may not assign her rights or
obligations hereunder without the prior written consent of the
Company.
20. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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21. Completeness. This Agreement sets forth all, and is intended by
each party to be an integration of all of the promises, agreements
and understandings between the parties hereto with respect to the
subject matter hereof.
22. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one agreement binding on the
parties hereto.
23. Severability. Each provision of this Agreement shall be considered
severable, and if for any reason any provision that is not
essential to the effectuation of the basic purpose of the Agreement
is determined to be invalid or contrary to any existing or future
law, such invalidity shall not impair the operation of or affect
those provisions of this Agreement that are valid.
24. Headings. Headings contained in this Agreement are inserted for
reference and convenience only and in no way define, limit, extend
or describe the scope of this Agreement or the meaning or
construction of any of the provisions hereof.
25. Survival of Terms. If this Agreement is terminated for any reason,
the provisions of Sections 7 and 8 shall survive and the Executive
and the Company, as the case may be, shall continue to be bound by
the terms thereof to the extent provided therein.
IN WITNESS HEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
CORTEX PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Ph.D.
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Xxxxxxx X. Xxxxxx, Ph.D.
Its: President and Chief Executive Officer
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EXECUTIVE
By: /s/ Xxxxx X. Data, M.D., Ph.D.
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Xxxxx X. Data, M.D., Ph.D.
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