EMPLOYMENT AGREEMENT
This
Agreement (this “Agreement”), dated as of
October 24, 2005 (sometimes the “Effective Date”), by and between PYXIS
PHARMACEUTICALS, INC., a Delaware corporation with principal executive offices
at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000 (the “Company”), and Xxxxxxxxx
Xxxxxx-XxXxxx,
Ph.D., residing at 00 Xxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxxx, XX 00000 (the
“Employee”).
WITNESSETH:
WHEREAS,
the Company desires to employ the Employee as Executive Vice President and Chief
Scientific Officer of the Company, and the Employee desires to serve the Company
in those capacities, 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 its Executive Vice President
and Chief Scientific Officer. The Employee will report to the Chief
Executive Officer of the Company and shall perform such duties as are consistent
with her position as Executive Vice President
and Chief Scientific Officer, including without limitation, establishing and
implementing strategies with respect to the development and regulatory affairs
of the
Company’s products (the
“Services”). The Employee
agrees to perform such duties faithfully, to devote substantially all of her
working time, attention and energies to the business of the Company, and while
she remains employed, not to engage in any other business activity that is in
conflict with her duties and obligations to the Company without the prior
written consent of the Chief Executive Officer of the Company.
(b) Acceptance. Employee
hereby accepts such employment and agrees to render the Services.
2. Term. The employment
of the Employee by the Company as provided in Section 1 shall be for a period of
one (1) year commencing on the date hereof, unless sooner terminated in
accordance with the provisions of Section 8 below (the “Term”); provided, however,
that the Term shall be extended automatically for additional one-year periods
unless one party shall advise the other in writing at least 60 days before the
initial expiration of the Term or an anniversary date thereof that this
Agreement shall no longer be so
extended. Notwithstanding anything to the contrary
contained herein, Sections 5 and 6 shall survive the expiration or termination
hereof.
3. Best Efforts; Place of
Performance.
(a) The
Employee shall devote substantially all of her business time, attention and
energies to the business and affairs of the Company and shall use her best efforts to advance the
best interests of the Company and shall not during 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 her duties hereunder or the Employee’s
availability to perform such duties or that will adversely affect, or negatively
reflect upon, the Company.
(b) The
duties to be performed by the Employee hereunder shall be performed primarily at
the office of the Company in Philadelphia, Pennsylvania, subject to reasonable
travel requirements on behalf of the Company, or such other place as the
Board of Directors of the Company (the “Board”) may reasonably
designate.
4. Compensation. As
full compensation for the performance by the Employee of her duties under this
Agreement, the Company shall pay the Employee as follows:
(a) Base
Salary. The Company shall pay Employee a salary (the “Base
Salary”) equal to Two Hundred Forty-Five Thousand Eight Hundred Dollars
($245,800.00) per year. Payment shall be made in accordance with the Company’s
normal payroll practices and subject to annual review and adjustment by the
Chief Executive Officer in his discretion.
(b) Annual Milestone
Bonus. At the discretion of the Chief Executive Officer, in
conjunction with the Board, the Employee shall receive an additional bonus on
each anniversary of the Effective Date during the Term (the “Annual Milestone
Bonus”) in an amount up to forty percent (40%) of her base salary, based on the
attainment by the Employee of certain financial, clinical development and
business milestones (the “Milestones”) as
established annually by the Chief Executive Officer, in conjunction with the
Board, after consultation with the Employee, prior to the start of each anniversary of
this Agreement. The Milestones for the
first year of this Agreement shall be established by the Chief Executive
Officer, in conjunction with the Board, after consultation with the Employee,
subsequent to, but not more than sixty (60) days following, the Effective
Date. The Milestones for each subsequent year shall be established by
the Chief Executive Officer, in conjunction with the Board, after
consultation with the Employee, at least sixty (60) days prior to each
anniversary of this Agreement. The Annual Milestone Bonus shall be
payable either as a lump-sum payment or in installments as determined by the
Company in its sole discretion.
(c) 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.
(d) Restricted
Shares.
(i) As
additional compensation for the services to be rendered by the Employee pursuant
to this Agreement, the Company shall grant the Employee One Hundred Five
Thousand (105,000) shares of Common Stock of the Company (the "Restricted
Shares") representing two and one-half percent (2.5%) of the outstanding Common
Stock of the Company. The Restricted Shares shall be held in escrow
at Paramount BioCapital Investments, LLC. So long as the Employee
remains an employee of the Company, on each of the first three (3) anniversaries
of this Agreement one third (1/3), or Thirty-Five Thousand (35,000) Restricted
Shares, shall vest, subject to the terms of this Agreement, and all vested
shares will be released from the escrow account to the Employee. No
Restricted Shares shall vest until the first anniversary of this
Agreement. In connection with such grant, the Employee shall enter
into the Company’s standard restricted stock agreement and the escrow agreement
and stock powers attached hereto as Exhibit A which will
incorporate the foregoing provisions regarding the lapsing of the risk of
forfeiture with respect to such shares and the relevant provisions contained in
Section 9 below. No Restricted Shares granted hereunder shall vest
unless the Employee is a current employee of the Company, unless specifically
stated herein.
(ii) Anti-dilution
Protection. Until such time as the Company has raised gross
proceeds equal to Five Million Dollars ($5,000,000) from the issuance and sale
of Equity Securities (as defined below), the Company shall issue to the
Employee, following such issuance and sale of Equity Securities, a number of
additional employee stock options (the “Stock Options”) sufficient to maintain
Employee’s ownership percentage (if such options were exercised) at least equal
to two percent (2%) of the outstanding Common Stock of the Company on a fully
diluted basis. Once the Company has raised Five Million Dollars
($5,000,000) through the sale of its Equity Securities, Employee shall be
diluted pro rata along with all other holders of securities of the
Company. As used herein “Equity Securities” shall mean shares of
Common Stock, preferred stock, options, warrants or other rights to purchase
Common Stock or securities or evidences of indebtedness convertible into or
exchangeable for shares of Common Stock. The Stock Options shall be governed by the
Company’s Employee Stock Option Plan and shall vest, if at all, in equal
proportions over the Term on each anniversary of this Agreement at the time of
grant remaining in the Term, subject in each
case to the provisions of Section 10 below. The Stock Options
shall be exercisable for 10 years and shall have an exercise price equal to the
fair market value of the Common Stock upon the date of each applicable grant as
determined by the Board in good faith. In connection with such grant,
the Employee shall enter into the Company’s standard stock option agreement
which will incorporate the foregoing vesting schedule and the Stock Option
related provisions contained in Section 10 below.
(iii) Notwithstanding
the foregoing, Section 5(d)(ii) shall not apply to, and the Employee shall not
be entitled to anti-dilution protection with respect to, the issuance of
Excluded Equity Securities (as defined below) and Excluded Equity Securities
shall not be included in calculating the fully diluted issued and outstanding
shares of Common Stock of the Company for any purpose under this
Agreement. “Excluded Equity Securities” shall mean Equity Securities
that are issued by the Company pursuant to any transactions approved by the
Board primarily for the purpose of: (1) incentivizing employees, directors or
consultants to the Company; (2) joint ventures, strategic alliances or research
and development activities, (3) purchasing or licensing of one or more
technologies, or (4) any other transactions involving current or potential
partners that are primarily for purposes other than raising
capital. As long as the anti-dilution protection contained in Section
5(d)(ii) remains in effect, the Employee shall be diluted on a pro rata basis
with all other holders of Common Stock by the issuance by the Company of
Excluded Equity Securities. Upon termination of such anti-dilution
protection provided for in Section 5(d)(ii), the Employee shall be diluted pari
passu with all other holders of Common Stock by the issuance of any Equity
Securities.
(e) 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.
(f) Other
Benefits. The Employee shall be entitled to all rights and
benefits for which she 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 senior executives from time to
time.
(g) Vacation. The
Employee shall, during the Term, be entitled to a vacation of four (4)
nonconsecutive 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 and shall
not receive any compensation for unused vacation days.
5. Confidential Information and
Inventions.
(a) The
Employee recognizes and acknowledges that in the course of her duties she 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 Employee 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 her 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, 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 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. 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. The Employee agrees:
(i) not to use any such Confidential and Proprietary Information for herself 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 her 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 her possession to the Company
upon request and in any event immediately upon termination of
employment.
(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 her employment with the Company.
(c) Notwithstanding
the foregoing, Confidential and Proprietary Information shall not include any
information or material which the Employee can establish through competent
proof: (i) is or becomes generally available to the public other than as a
result of disclosure thereof by the Employee; (ii) is lawfully received by the
Employee on a non-confidential basis from a third party that is not itself under
an obligation of confidentiality or non-disclosure to the Company with respect
to such information;(iii) is independently developed by Employee; (d) was in the
Employee's possession at the time of disclosure by the Company and was not
acquired, directly or indirectly from the Company; or (e) is required to be
publicly disclosed by law or by regulation; provided, however, that in such
event Employee shall provide the Company with prompt advance notice of such
disclosure so that the Company has the opportunity if it so desires to seek a
protective order or other similar protection. If, in the absence of a protective
or other similar order, the Employee is legally compelled to disclose
Confidential and Proprietary Information, such Confidential and Proprietary
Information (and only such Confidential and Proprietary Information) may be
disclosed in such proceeding without liability hereunder; provided, however,
that the Employee shall give the Company written notice of the Confidential and
Proprietary Information to be disclosed as far in advance of its disclosure as
is practical and, upon the Company’s request and expense, the Employee shall use
all reasonable efforts to obtain assurances that confidential treatment will be
accorded to such Confidential and Proprietary Information in such
proceeding.
(d) The
Employee agrees that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”) initiated,
conceived or made by her, 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, 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 she may have or acquire in all such Inventions;
provided, however, that the Board of Directors of the Company may in its sole
discretion agree to waive the Company’s rights pursuant to this Section 6(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.
(e) The
Employee acknowledges that while 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 herself or for
others any transaction relating to the Third-Party Inventions which is not on
behalf of the Company.
(f) Employee
agrees that she 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 her, either alone or jointly with others, during the
Term.
(g) The
provisions of this Section 5 shall survive any termination of this
Agreement.
6. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) The
Employee understands and recognizes that her services to the Company are special
and unique and that in the course of performing such services the Employee will
have access to and knowledge of Confidential and Proprietary Information (as
defined in Section 6) and the Employee agrees that, during the Term and for a
period of four (4) months thereafter, she shall not in any manner on
behalf of herself or any person, firm, partnership, joint venture, corporation
or other business entity (“Person”), enter into or engage
in any business which is engaged in any business directly competitive with the
business of the Company, either as an individual for her own account, or as a
partner, joint venturer, owner, executive, employee, independent contractor,
principal, agent, consultant, salesperson, officer, director or shareholder of a
Person in a business competitive with the Company within the geographic area of
the Company’s business, which is deemed by the parties hereto to be
worldwide. The Employee acknowledges that, due to the unique nature
of the Company’s business, the loss of any of its clients or business flow or
the improper use of its Confidential and Proprietary Information could create
significant instability and cause substantial damage to the Company and its
affiliates and therefore the Company has a strong legitimate business interest
in protecting the continuity of its business interests and the restriction
herein agreed to by the Employee narrowly and fairly serves such an important
and critical business interest of the Company. For purposes of this
Agreement, the “Business” of the Company and its affiliates shall mean the
development of novel prescription dermatological drugs for specific disease
treatment segment(s) within the field of dermatology, or other areas of
medicine, in which the Company actively engages. Notwithstanding the
foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit
the Employee from (i) acquiring or holding, solely for investment, publicly
traded securities of any corporation, some or all of the activities of which are
competitive with the business of the Company so long as such securities do not,
in the aggregate, constitute more than four percent (4%) of any class or series
of outstanding securities of such corporation.
(b) During
the Term and for a period of four (4) months thereafter, the Employee shall not,
without the prior written consent of the Company:
(i) solicit
or induce, directly or indirectly, any employee of the Company or any of its
affiliates to leave the employ of the Company or any such affiliate; or hire for
any purpose any employee of the Company or any affiliate or any employee who has
left the employment of the Company or any affiliate within one year of the
termination of such employee’s employment with the Company or any such affiliate
or at any time in violation of such employee’s non-competition agreement with
the Company or any such 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 affiliates where her position will be directly 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 affiliates with respect to products, services or investments directly
competing with those provided or supplied by the Company or any of its
affiliates.
(c) 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 affiliates,
including but not limited to, any officer, director, employee or shareholder of
the Company or any of its affiliates.
(d) 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 Sections 5 or 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 clause 6(d)(i), that if the Company makes a prima facie showing that
the Employee has violated or apparently 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 Commonwealth of
Pennsylvania, Philadelphia County 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.
(e) 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. 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. If
any of the covenants contained in this Section 6 is held to be invalid or
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and in its
reduced form such provision shall then be enforceable. 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.
(f) 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 she 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 her ability to earn a living.
(g) The
provisions of this Section 6 shall survive any termination of this
Agreement.
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 her 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 she
is bound.
(ii) The
Employee has the full right, power and legal capacity to enter and deliver this
Agreement and to perform her duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Employee enforceable against her 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 her
duties and other obligations hereunder.
8. Termination. The
Employee’s employment hereunder shall be terminated upon the Employee’s death
and may be terminated as follows:
(a) The
Employee’s employment hereunder may be terminated by the Chief Executive Officer
of the Company for Cause. Any of the following actions by the
Employee shall constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Employee to perform her duties
hereunder;
(ii) Any
willful, intentional or grossly negligent act by the Employee having the effect
of injuring, in a material way (whether financial or otherwise and as determined
in good-faith by the Chief Executive Officer of the Company), the business or
reputation of the Company or any of its affiliates, including but not limited
to, any officer, director, executive or shareholder of the Company or any of its
affiliates;
(iii) Willful
misconduct by the Employee in respect of the duties or obligations of the
Employee under this Agreement, including, without
limitation, insubordination with respect to directions received by the Employee
from the Chief Executive Officer of the Company;
(iv) The
Employee’s indictment of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea);
(v) The
determination by the Company, after a reasonable and good-faith investigation by
the Company following a written allegation by another employee of the Company,
that the Employee engaged in some form of harassment prohibited by law (including, without limitation,
age, sex or race discrimination), unless the
Employee’s actions were specifically directed by the Chief Executive Officer of
the Company;
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach
by the Employee of any of the provisions of Sections 5,6 or 7 of this Agreement;
and
(viii) Breach
by the Employee of any provision of this Agreement other than those contained in
Sections 5, 6, or 7 which is not cured by
the Employee within thirty (30) days after notice thereof is given to the
Employee by the Company.
(b) The
Employee’s employment hereunder may be terminated by the Chief Executive Officer
of the Company due to the Employee’s Disability. For purposes of this
Agreement, a termination for “Disability” shall occur (i)
when the Chief Executive Officer of the Company has provided a written
termination notice to the Employee supported by a written statement from a
reputable independent physician to the effect that the Employee shall have
become so physically or mentally incapacitated as to be unable to resume, within
the ensuing twelve (12) months, her employment hereunder by reason of physical
or mental illness or injury, or (ii) upon rendering of a written termination
notice by the Chief Executive Officer of the Company after the Employee has been
unable to substantially perform her duties hereunder for 90 or more consecutive
days, or more than 120 days in any consecutive twelve month period, by reason of
any physical or mental illness or injury. For purposes of this
Section 8(b), the Employee agrees to make herself available and to cooperate in
any reasonable examination by a reputable independent physician retained by the
Company.
(c) The
Employee’s employment hereunder may be terminated by the Chief Executive Officer
of the Company (or its successor) upon the occurrence of a Change of
Control. For purposes of this Agreement, “Change of Control” means (i)
the acquisition, directly or indirectly, following the date hereof by any person
(as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding securities if such person or his or its affiliate(s) do not own in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
(d) The
Employee’s employment hereunder may be terminated by the Employee for Good
Reason. For purposes of this Agreement, “Good Reason” shall mean any of
the following: (i) the assignment to the Employee of duties inconsistent
with the Employee’s position, duties, responsibilities, titles or offices as
described herein; (ii) any material reduction by the Corporation of the
Employee’s authority, duties, or responsibilities; (iii) any relocation of
the Company to a location outside a thirty (30) mile radius of Philadelphia,
Pennsylvania; or (iv) any reduction by the Corporation of the Employee’s
compensation or benefits payable hereunder (it being understood that a reduction
of benefits applicable to all employees of the Corporation, including the
Employee, shall not be deemed a reduction of the Employee’s compensation package
for purposes of this definition).
(e) The
Employee’s employment may be terminated by the Company for any reason or no
reason.
9. Compensation upon
Termination.
(a) If
the Employee’s employment is terminated as a result of her death or Disability,
the Company shall pay to the Employee or to the Employee’s estate, as
applicable, her Base Salary and any
accrued but unpaid Bonus and expense reimbursement amounts through the date of
her Death or Disability. All Restricted
Shares and Stock Options that are scheduled to vest on the next succeeding anniversary of the Effective
Date shall be accelerated and deemed to have vested as of the termination
date. All Restricted Shares and Stock
Options that have not vested (or been deemed pursuant to the immediately
preceding sentence to have vested) as of the date of termination shall be forfeited to the Company as of such
date. Stock Options that have vested as of the Employee’s termination
shall remain exercisable for ninety (90) days following such
termination.
(b) If
the Employee’s employment is terminated by the Chief Executive Officer of the
Company for Cause, then the Company shall pay to the Employee her Base Salary
through the date of her termination and the Employee shall have no further
entitlement to any other compensation or benefits from the
Company. All Restricted Shares and Stock Options that have not vested as of the date of
termination shall be forfeited to the
Company as of such date. Stock Options that have vested as of
the Employee’s termination shall remain exercisable for ninety (90) days
following such termination.
(c) If
the Employee’s employment is terminated by the Company (or its successor) upon
the occurrence of a Change of Control and on the date of termination pursuant to
Section 8(c) the fair market value of the Company’s Common Stock, in the
aggregate, as determined in good faith by the Board of Directors on the date of
such Change of Control, is less than $40,000,000, then the Company (or its
successor, as applicable) shall continue to pay to the Employee her Base Salary
and benefits for a period of three (3) months following such termination as well
as any expense reimbursement amounts owed through the date of termination. All
Restricted Shares and Stock Options that are
scheduled to vest by the end of the calendar year in which such termination
occurs shall be accelerated and deemed to have vested as of the termination
date. All Restricted Shares and Stock Options that have not
vested (or been deemed pursuant to the immediately
preceding sentence to have vested) as of the date of termination shall be
forfeited to the Company as of such date. Stock Options that have
vested as of the Employee’s termination shall remain exercisable for ninety (90)
days following such termination.
(d) If
the Employee’s employment is terminated by the Company other than as a result of
the Employee’s death or Disability and other than for reasons specified in
Sections 9(b) or (c), then the Company shall (i) continue to pay to the Employee
her Base Salary and benefits for a period of four (4) months following such
termination, (ii) pay the Employee any expense reimbursement amounts owed
through the date of termination, and (iii) all Restricted Shares and Stock
Options that are scheduled to vest during the Term shall be accelerated and
deemed to have vested as of the termination date. Stock Options that
have vested as of the Employee’s termination shall remain exercisable for ninety
(90) days following such termination. The Company’s obligation under clauses (i)
and (ii) of this Section 9(d) shall be subject to offset by any amounts
otherwise received by the Employee from any employment during the four (4) month
period following the termination of her employment.
(e) This
Section 9 sets forth the only obligations of the Company with respect to the
termination of the Employee’s employment with the Company, and the Employee
acknowledges that, upon the termination of her employment, she shall not be
entitled to any payments or benefits which are not expressly provided in Section
9.
(f) The
provisions of this Section 9 shall survive any termination of this
Agreement.
10.
Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the Commonwealth of Pennsylvania, without giving effect to its
principles of conflicts of laws
(b) In
the event of 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, the parties agree to submit any differences to
nonbinding mediation prior to pursuing resolution through the
courts. The parties hereby submit to the exclusive jurisdiction of
the Courts of the Commonwealth of Pennsylvania, Philadelphia County, or the
United States District Court for the Eastern District of Pennsylvania, and agree
that service of process in such court proceedings shall be satisfactorily made
upon each other if sent by registered mail addressed to the recipient at the
address referred to in Section 10(g) below.
(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 Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and permitted assigns of the Company, including any successors or
permitted assigns in connection with any sale, transfer or other disposition of
all or substantially all of its business or assets.
(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 10(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) The
section headings contained herein are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Agreement.
(j) 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.
(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.
Remainder
of Page Intentionally Left Blank – Signature Page Follows
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
| PYXIS PHARMACEUTICALS, INC. | |||
|
|
By:
|
||
| Name: | Xxxxxx Xxxxxxxxx | ||
| Title: | President and Chief Executive Officer | ||
| Date: | |||
| EMPLOYEE | |||
|
|
By:
|
||
| Name: | Xxxxxxxxx Xxxxxx-XxXxxx, Ph.D. | ||
| Date: | |||
