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EXHIBIT 10.43
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into effective
as of the 27th day of August, 1996, between Xxxxx Xxxxxxxxxxxx, M.D., Ph.D.
("Employee"), a resident of Creamery, Pennsylvania, and ILEX Oncology, Inc., a
Delaware corporation (the "Company"), whose principal executive offices are
located in San Antonio, Texas.
WHEREAS, the Company desires to employ Employee, and Employee desires to
be employed by the Company, on terms hereinafter set forth;
NOW, THEREFORE, in consideration for the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DUTIES
1.1 Employment. During the term of this Agreement, the Company
agrees to employ Employee, and Employee accepts such employment, on the terms
and conditions set forth in this Agreement.
1.2 Extent of Service. During the term of this Agreement, Employee
shall devote his or her full-time business time, energy and skill to the
affairs of the Company and its affiliated companies, and Employee shall not be
engaged in any other business or consulting activities pursued for gain, profit
or other pecuniary advantage, without the prior written consent of the Company.
The foregoing shall not prevent Employee from making monetary investments in
businesses which do not involve any services on the part of Employee in the
operation or affairs of such businesses.
1.3 Duties. Employee's duties hereunder shall include acting as a
Vice President of the Company. In this capacity Employee will provide services
with regard to (i) providing medical direction to the implementation of the
Company's drug programs and product/technology acquisition opportunities, (ii)
assisting in the development of protocols, (iii) reviewing clinical results,
including adverse events, (iv) participating as a senior leader in developing
and obtaining marketing approval of the Company's products or (v) such other
duties as may be prescribed from time by Employee's supervisor or the Board of
Directors of the Company (the "Board"). Such duties include, without
limitation, the development of Proprietary Information (defined in Article 5
hereof) for the Company. Employee shall also perform, without additional
compensation, related services for the Company's subsidiaries and joint
ventures.
1.4 Access to and Use of Proprietary Information. Employee
recognizes and the Company agrees that, to assist Employee in the performance
of his or her duties hereunder, Employee will be provided access to and limited
use of proprietary and confidential information of the Company. Employee
further recognizes that, as a part of his or her employment with the Company,
Employee will benefit from and
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Employee's qualifications will be enhanced by additional training, education
and experience which will be provided to Employee by the Company directly
and/or as a result of work projects assigned by the Company in which
proprietary and confidential information of the Company is utilized by
Employee.
ARTICLE 2
TERM OF EMPLOYMENT
The term of this Agreement shall commence on the date hereof and
continue until terminated pursuant to Article 4 hereof.
ARTICLE 3
COMPENSATION
3.1 Monthly Base Salary. As compensation for services rendered under
this Agreement, Employee shall be entitled to receive from the Company a
monthly base salary (before standard deductions) equal to $15,000.00, subject
to periodic review and adjustment by Employee's supervisor or the Board.
Employee's monthly base salary shall be payable at regular intervals (at least
semi-monthly) in accordance with the prevailing practice and policy of the
Company.
3.2 Performance Bonus. As additional compensation for services
rendered under this Agreement, Employee shall also be eligible to receive a
performance bonus for each of the 1996 and 1997 calendar years equal to up to
25% of the sum of all payments of monthly base salary (before standard
deductions) paid to Employee during the 1996 or 1997 calendar year, as the case
may be, based upon the Company and the Employee achieving (as determined by the
Board) certain goals to be established by the Board for such year. For
subsequent calendar years, Employee shall be eligible to receive a
discretionary performance bonus if, as and when declared by the Board.
3.3 Stock Options. Employee shall also be granted an incentive
option to purchase 75,000 shares of Common Stock of the Company at a per-share
price of $4.00 under the Company's Stock Option Plan. The options will vest
over a 4-year period at a rate of 25% per year. The terms of such stock option
grant will be set forth in a separate stock option agreement.
3.4 Benefits. Employee shall, in addition to the compensation
provided for herein, be entitled to the following additional benefits:
(a) Medical, Health and Disability Benefits. Employee shall
be entitled to receive all medical, health and disability benefits that
may, from time to time, be provided by the Company to all employees of
the Company as a group.
(b) Other Benefits. Employee shall also be entitled to
receive any other benefits that may, from time to time, be provided by
the Company to all employees of Company as a group.
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(c) Vacation. Employee shall be entitled to an annual
vacation determined in accordance with the prevailing practice and
policy of the Company (initially 3 weeks per year).
(d) Holidays. Employee shall be entitled to holidays in
accordance with the prevailing practice and policy of the Company.
(e) Reimbursement of Business Expenses. The Company shall
reimburse Employee for all expenses reasonably incurred by Employee in
conjunction with the rendering of services at the Company's request,
provided that such expenses are incurred in accordance with the
prevailing practice and policy of the Company and are properly
deductible by the Company for federal income tax purposes. As a
condition to such reimbursement, Employee shall submit an itemized
accounting of such expenses in reasonable detail, including receipts
where required under federal income tax laws.
(f) Reimbursement of Relocation Expenses. Promptly following
the full execution of this Agreement, the Company shall pay to Employee
the sum of $25,000 (before standard deductions) to partially reimburse
Employee for incidental expenses of relocating and taxes associated with
certain reimbursed relocation expenses. Additionally, the Company shall
reimburse Employee for (i) reasonable relocation expenses incurred by
Employee and his family in connection with travel and lodging prior to
Employee's purchase of a house in San Antonio, Texas (ii) reasonable
relocation expenses incurred by Employee in connection with the moving
of Employee's household goods from Employee's current residence to San
Antonio, Texas (including temporary storage, if necessary), (iii) the
reasonable closing costs incurred by Employee in connection with the
sale of Employee's house in Creamery, Pennsylvania (the "Creamery
House"), (iv) up to $20,000 of Employee's loss, if any, on Employee's
sale of the Creamery House [such loss being an amount equal to (x) the
selling price of the Creamery House when sold by Employee minus (y) the
initial purchase price paid by Employee for the Creamery House] and (v)
such other reasonable relocation expenses as may be approved by the
Company. As a condition to such reimbursement, Employee shall submit an
itemized accounting of such expenses in reasonable detail, including
receipts.
(g) Loan. The Company agrees to arrange for and to guarantee a
loan in Employee's name provided that (i) the amount of the loan does
not exceed $55,000, (ii) the term of the loan is not longer than 1 year,
(iii) the loan requires only payments of interest during the term of the
loan and (iv) Employee repays the loan upon the sale of the Creamery
House. The Company additionally agrees to reimburse Employee an amount
equal to the monthly interest payment on such loan until the earlier to
occur of (x) the sale of the Creamery House and (y) 6 months after the
date of the loan.
3.5 Commencement of Compensation. Compensation under this Agreement
shall be payable to Employee commencing on upon Employee's commencement of
full-time service to the Company.
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ARTICLE 4
TERMINATION
4.1 Termination With Notice. This Agreement may be terminated by the
Company or Employee, without cause, upon 30 days prior written notice thereof
given by one party to the other party. In the event of termination pursuant to
this Section 4.1, the Company shall pay Employee his or her monthly base salary
(subject to standard deductions) earned pro rata to the date of such
termination and the Company shall have no further obligations to Employee
hereunder. Notwithstanding the foregoing:
(a) in lieu of continuing the employment of Employee for a period of
30 days after notice of termination is given under this Section 4.1, the
Company may, in its sole discretion, elect to terminate this Agreement
immediately and pay Employee a lump-sum equal to (a) Employee's monthly base
salary (subject to standard deductions) earned pro rata to the date of such
notification of termination plus (b) 30 days of Employee's then effective base
salary (subject to standard deductions), whereupon the Company shall no further
obligations to Employee hereunder; and
(b) in the event of a termination by the Company pursuant to this
Section 4.1 within 4 years of the date hereof, the Company shall pay to
Employee an additional amount equal to Employee's current base monthly base
salary (subject to standard deductions) multiplied by 6.
4.2 Termination For Cause. This Agreement may be terminated by the
Company for "Cause" (hereinafter defined) upon written notice thereof given by
the Company to Employee. In the event of termination pursuant to this Section
4.2, the Company shall pay Employee his or her monthly base salary (subject to
standard deductions) earned pro rata to the date of such termination and the
Company shall have no further obligations to Employee hereunder. The term
"Cause" shall include, without limitation, the following, as determined by the
Board in its sole judgment: (i) Employee breaches any of the terms of this
Agreement; (ii) Employee is convicted of a felony; (iii) Employee fails, after
at least one warning, to satisfactorily perform duties assigned under this
Agreement as determined by the Chief Executive Officer or the Board (other than
a failure due to death or physical or mental disability); (iv) Employee
intentionally engages in conduct which is demonstrably and materially injurious
to the Company; (v) Employee commits fraud or theft of personal or Company
property from Company premises; (vi) Employee falsifies Company documents or
records; (vii) Employee engages in acts of gross carelessness or willful
negligence to endanger life or property on Company premises; (viii) Employee
engages in sexual harassment; (ix) Employee uses, distributes, possesses or is
under the influence of illegal drugs, alcohol or any other intoxicant on
Company premises; or (x) Employee intentionally violates state, federal or
local laws and regulations.
4.3 Termination Upon Death or Disability. In the event that Employee
dies, this Agreement shall terminate upon Employee's death. Likewise, if
Employee becomes "disabled" as determined in accordance with the Company's
disability insurance policies and plans, the Company may, upon notice to
Employee, terminate this Agreement. In
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the event of termination pursuant to this Section 4.3, Employee (or his or her
legal representatives) shall be entitled only to his or her monthly base salary
earned pro rata for services actually rendered prior to the date of such
termination; provided, however, Employee shall not be entitled to his or her
monthly base salary for any period with respect to which Employee has received
short-term or long-term disability benefits under employee benefit plans
maintained from time to time by the Company.
4.4 Survival of Provisions. The covenants and provisions of Articles
5, 6 and 7 hereof shall survive any termination of this Agreement and continue
for the periods indicated, regardless of how such termination may be brought
about.
ARTICLE 5
PROPRIETARY PROPERTY; CONFIDENTIAL INFORMATION
5.1 Duties. Employee understands and agrees that during the term of
this Agreement Employee's duties will include the conception of improvements
and inventions (whether or not ultimately issuing as Letters Patent in any
country), the creation of confidential information protected by the Company as
trade secrets and the authoring of "works" as defined under the copyright laws
of the United Xxxxxx xx Xxxxxxx xxxxx xx 00 Xxxxxx Xxxxxx Code. Such
information is collectively referred to in this Agreement as "Proprietary
Information".
5.2 Ownership. Employee understands and agrees that for all
Proprietary Information created within the scope of Employee's employment, the
Company shall own all right, title and interest thereto. In the case of works
authored or created by Employee, such works are considered a "work made for
hire" under 00 Xxxxxx Xxxxxx Code Section 101 - the copyright laws. All
Proprietary Information, if any, created by Employee prior to his or her
employment with the Company, and in which Employee claims ownership, is shown
in Schedule 5.2 attached hereto.
5.3 Notice and Assistance. Employee shall give adequate written
notice to the Company as soon as practicable of all Proprietary Information
created by Employee during Employee's employment with the Company, assist the
Company in evaluating the Proprietary Information for patent, trade secret and
copyright protection and sign all documents and do all things necessary at the
expense of the Company to assist the Company in the protection, development,
marketing or transfer of such Proprietary Information.
5.4 Assignment. Employee hereby assigns and agrees to assign all
right, title and interest into such Proprietary Information to the Company or
its nominee. At the request of the Company, whether during or after the
termination of Employee's employment, Employee shall timely execute or join in
executing all papers or documents required for the filing of patent
applications and copyright registrations in the United States of America and
such foreign countries as the Company may in its sole discretion select, and
shall assign all such patent applications and copyrights to the Company or its
nominee, and shall provide the Company or its agent or attorneys with all
reasonable assistance in the preparation and prosecution of patent applications
and copyright registrations, including drawings, specifications, and the like,
all at the
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expense of the Company, and shall do all that may be necessary to establish,
protect or maintain the rights of the Company or its nominee in the inventions,
patent applications, Letters Patent and copyrights in accordance with the
spirit of this Agreement.
5.5 Confidential Information. Employee agrees to keep confidential
all information protected by the Company as trade secrets during the term of
this Agreement (including any leaves of absence) and will neither use nor
disclose the confidential information without written authorization by the
Company for ten years thereafter. For the purposes of this Agreement, such
confidential information shall include information set forth in any application
for Letters Patent unless and until such information is ultimately published.
The Company and Employee mutually agree that the following types of information
shall not be protected by this Agreement:
(a) Information already in the public domain at the time
Employee received it;
(b) Information which although disclosed in confidence to
Employee is later disseminated by the Company into the public domain;
(c) Information which although received in confidence by
Employee is subsequently disseminated into public domain by a third
party who has not breached any duty to any other party in disseminating
such information;
(d) Information given by the Company in confidence to Employee
which Employee is expressly authorized in writing by the Company to use
or disclose thereafter; and
(e) Information required by law to be disclosed, provided that
Employee will promptly advise the Company of any such required
disclosure and cooperate fully with the Company to avoid such
disclosure, if legally possible, or to obtain confidential treatment of
such Information disclosed.
Employee also understands and agrees that he or she will maintain in confidence
all information known to him or her by reason of his or her employment even if
such information is included in a redacted deposit of a work filed with an
application for copyright registration, if such deposit has been abridged in
order to protect the confidentiality of the information deposited with the
Copyright Office. For purposes of this Agreement, a trade secret "...may
consist of any formula, pattern, device or compilation of information which is
used in one's business, and which gives him or her an opportunity to obtain an
advantage over competitors who do not know or use it. It may be a formula for
a chemical compound, a process of manufacturing, trading or preserving
materials, a pattern for machine or other device, or a list of customers..." as
commonly interpreted by the courts of the State of Texas. Upon the termination
of this Agreement, regardless of how such termination may be brought about,
Employee shall deliver to the Company any and all documents, instruments,
notes, papers or other expressions or embodiments of Proprietary Property or
confidential information which are in Employee's possession or control.
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5.6 Publicity. During the term of this Agreement and for a period of
ten years thereafter, Employee shall not, directly or indirectly, originate or
participate in the origination of any publicity, news release or other public
announcements, written or oral, whether to the public press or otherwise,
relating to this Agreement, to any amendment hereto, to Employee's employment
hereunder or to the Company, without the prior written approval of the Company.
5.7 Fiduciary Relationship. Employee, by virtue of his or her high
position of trust and reliance on him or her by the Company, understands that
Employee enjoys a fiduciary relationship with the Company in carrying out his
or her obligations under this Article 5. Accordingly, Employee agrees to honor
his or her obligations under this Agreement by conducting himself or herself
with the highest degree fairness and trust toward the Company.
ARTICLE 6
RESTRICTIVE COVENANTS
6.1 Non-Competition. In consideration of the benefits of this
Agreement, including Employee's access to and limited use of proprietary and
confidential information of the Company, as well as training, education and
experience provided to Employee by the Company directly and/or as a result of
work projects assigned by the Company with respect thereto, Employee hereby
covenants and agrees that during the term of this Agreement and for a period of
one year following termination of this Agreement, regardless of how such
termination may be brought about, Employee shall not, directly, as proprietor,
partner, stockholder, director, officer, employee, consultant, joint venturer,
investor or in any other capacity, engage in, or own, manage, operate or
control, or participate in the ownership, management, operation or control, of
any entity which engages, as its primary business, in the development of
products which compete directly with the Company's products; provided, however,
the foregoing shall not prohibit Employee from purchasing and holding as an
investment not more than 1% of any class of publicly traded securities of any
entity which conducts a business in competition with the business of the
Company, so long as Employee does not participate in any way in the management,
operation or control of such entity.
6.2 Judicial Reformation. Employee acknowledges that, given the
nature of the Company's business, the covenants contained in Section 6.1
establish reasonable limitations as to time, geographic area and scope of
activity to be restrained and do not impose a greater restraint than is
reasonably necessary to protect and preserve the goodwill of the Company's
business and to protect its legitimate business interests. If, however,
Section 6.1 is determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too long a period of time or over
too large a geographic area or by reason of it being too extensive in any other
respect or for any other reason, it will be interpreted to extend only over the
longest period of time for which it may be enforceable and/or over the largest
geographic area as to which it may be enforceable and/or to the maximum extent
in all other aspects as to which it may be enforceable, all as determined by
such court.
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6.3 Customer Lists; Non-Solicitation. In consideration of the
benefits of this Agreement, including Employee's access to and limited use of
proprietary and confidential information of the Company, as well as training,
education and experience provided to Employee by the Company directly and/or as
a result of work projects assigned by the Company with respect thereto,
Employee hereby further covenants and agrees that for a period of one year
following the termination of this Agreement, regardless of how such termination
may be brought about, Employee shall not, directly or indirectly, (a) use or
make known to any person or entity the names or addresses of any clients or
customers of the Company or any other information pertaining to them, other
than information that Employee can demonstrate was known to Employee prior to
his employment with the Company and with respect to which the Company has no
obligation of confidentiality, (b) call on, solicit, take away or attempt to
call on, solicit or take away any clients or customers of the Company on whom
Employee called or with whom he or she became acquainted during his or her
employment with the Company, nor (c) recruit, hire or attempt to recruit or
hire any employees of the Company.
ARTICLE 7
ARBITRATION
Except for the provisions of Articles 5 and 6 of this Agreement dealing
with proprietary property, confidential information and restrictive covenants,
with respect to which the Company expressly reserves the right to petition a
court directly for injunctive and other relief, any claim, dispute or
controversy of any nature whatsoever, including but not limited to tort claims
or contract disputes, between the parties to this Agreement or their respective
heirs, executors, administrators, legal representatives, successors and
assigns, as applicable, arising out of or relating to your employment or the
termination of your employment with the Company and/or the terms and conditions
of this Agreement, including the implementation, applicability and
interpretation thereof, shall be resolved as follows: upon the written request
of one party served upon the other, any such claim, dispute or controversy
shall be submitted to and settled by arbitration in accordance with the
provisions of the Federal Arbitration Act, 9 U.S.C. Sections 1-15, as amended.
If arbitration is requested, each of the parties to this Agreement shall
appoint one person as an arbitrator to hear and determine any such disputes,
and if they should be unable to agree, then the two arbitrators shall choose a
third arbitrator from a panel made up of experienced arbitrators selected
pursuant to the procedures of the American Arbitration Association (the "AAA")
and, once chosen, the third arbitrator's decision shall be final, binding and
conclusive upon the parties to this Agreement. Each party shall be responsible
for the fees and expenses of its arbitrator and the fees and expenses of the
third arbitrator shall be shared equally by the parties. The terms of the
commercial arbitration rules of AAA shall apply except to the extent they
conflict with the provisions of this paragraph. It is further agreed that any
of the parties hereto may petition the United States District Court for the
Western District of Texas, San Antonio Division, for a judgment to be entered
upon any award entered through such arbitration proceedings.
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ARTICLE 8
MISCELLANEOUS
8.1 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally,
mailed by certified mail (return receipt requested) or sent by an overnight
delivery service with tracking procedures or by facsimile to the parties at the
following addresses or at such other addresses as shall be specified by the
parties by like notice: If to Employee, at the address set forth below his or
her name on the signature page hereof; and if to the Company, at 00000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000, Attention: President and Chief
Executive Officer.
8.2 Equitable Relief. In the event of a breach or a threatened
breach by Employee of any of the provisions contained in Article 5 or 6 of this
Agreement, Employee acknowledges that the Company will suffer irreparable
injury not fully compensable by money damages and, therefore, will not have an
adequate remedy available at law. Accordingly, the Company shall be entitled
to obtain such injunctive relief or other equitable remedy from any court of
competent jurisdiction as may be necessary or appropriate to prevent or curtail
any such breach, threatened or actual. The foregoing shall be in addition to
and without prejudice to any other rights that the Company may have under this
Agreement, at law or in equity, including, without limitation, the right to xxx
for damages.
8.3 Assignment. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. Employee's rights under this Agreement
are not assignable and any attempted assignment thereof shall be null and void.
8.4 Governing Law; Venue. This Agreement shall be subject to and
governed by the laws of the State of Texas. Non-exclusive venue for any action
permitted hereunder shall be proper in San Antonio, Bexar County, Texas, and
Employee hereby consents to such venue.
8.5 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties and supersedes all other agreements
between the parties which may relate to the subject matter contained in this
Agreement. This Agreement may not be amended or modified except by an
agreement in writing which refers to this Agreement and is signed by both
parties.
8.6 Headings. The headings of sections and subsections of this
Agreement are for convenience only and shall not in any way affect the
interpretation of any provision of this Agreement or of the Agreement itself.
8.7 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law. If any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without
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invalidating the remainder of such provision or the remaining provisions of
this Agreement.
8.8 Waiver. The waiver by any party of a breach of any provision
hereof shall not be deemed to constitute the waiver of any prior or subsequent
breach of the same provision or any other provisions hereof. Further, the
failure of any party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement unless such party expressly waives such
provision pursuant to a written instrument which refers to this Agreement and
is signed by such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ILEX ONCOLOGY, INC.
By: /s/ XXXXXXX X. LOVE
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Xxxxxxx X. Love,
President and Chief Executive
Officer
EMPLOYEE:
/s/ XXXXX XXXXXXXXXXXX
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Xxxxx Xxxxxxxxxxxx, M.D., Ph.D.
Address:
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SCHEDULE 5.2
PROPRIETARY PROPERTY CLAIMED BY EMPLOYEE
Proprietary Property Claimed:*
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* None, if left blank
