AMENDMENT NUMBER 2 TO RESTATED EMPLOYMENT AGREEMENT
AMENDMENT
NUMBER 2 TO RESTATED EMPLOYMENT AGREEMENT
AMENDMENT
NUMBER 2 TO RESTATED EMPLOYMENT AGREEMENT
(“Amendment No. 2”), dated as of July 30, 2007 by and between DOV
PHARMACEUTICAL, INC., a Delaware corporation (the “Company”) and XXXX XXXXXXXX
(the “Executive”).
W
I T N E S S E T H:
WHEREAS,
the
Company and Executive entered into a Restated Employment Agreement dated as
of
January 9, 2004 and as amended on June 30, 2006 (the “Employment
Agreement”);
WHEREAS,
the
Company and the Executive both desire to modify certain provisions of the
Employment Agreement;
WHEREAS,
capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Employment Agreement.
NOW,
THEREFORE,
the
parties mutually agree as follows:
1. Section
1.01 “Term” of the Employment Agreement shall be deleted from the Employment
Agreement and replaced with the following provision:
Section
1.01. Term.
The
initial term of this Employment
Agreement shall commence on expiration of the Executive’s previous employment
contract (January 19, 2004), and, unless sooner terminated pursuant to Article
III hereof, shall terminate on June 30, 2009 (the “Initial Employment Period”).
Unless sooner terminated pursuant to Article III, the parties may by written
agreement renew this Agreement for one year (each such one-year period
hereinafter referred to as a “Renewal Period”; the Initial Employment Period and
all Renewal Periods hereinafter (if any) referred to as the “Employment
Period”).
2.
Section
1.02 “Position” of the Employment Agreement shall be deleted from the Employment
Agreement and replaced with the following provision:
Section
1.02. Position
. The Company shall employ the Executive and the Executive shall serve as
President and Chief Scientific Officer during the Employment
Period.
3.
Paragraph
(a) of Section 1.03 “Duties” of the Employment Agreement shall be deleted from
the Employment Agreement and replaced with the following provision:
Section
1.03. Duties. (a)
Subject
to the responsibility vested in the Board of Directors of the Company (the
“Board”) under the General Corporation Law of the State of Delaware, the
Executive shall have such responsibility and authority as are customarily
possessed and exercisable by the President and Chief Scientific Officer of
a
corporation. The Executive shall also perform such other executive and
administrative duties (not inconsistent with the position of President and
Chief
Scientific Officer) as the Executive may reasonably be expected to be capable
of
performing on behalf of the Company and any subsidiaries and affiliates of
the
Company as may from time to time be authorized or directed by the
Board.
4.
Section
2.01 “Basic Compensation” shall be deleted from the Employment Agreement and
replaced with the following provision:
Section
2.01. Basic
Compensation. As compensation for the Executive's services hereunder, the
Company shall pay to the Executive an annual salary of $344,000 (as adjusted,
"Basic Compensation"), payable in bi-weekly or monthly installments. The Basic
Compensation may be increased in the discretion of the Board.
5.
Paragraph
(d) of Section 3.01 “Termination of Employment by Company” shall be deleted from
the Employment Agreement and replaced with the following provision:
(d)
In
the case of termination of the Executive by the Company other than pursuant
to
Section 3.01(a), Section 3.02 or Section 3.04, the Company shall be obligated
to
pay the Executive and the Executive shall be entitled to receive, in complete
and total satisfaction of the obligations of the Company hereunder, an amount
equal to Basic Compensation for a period commencing on the date of such
termination and ending on the date that is eighteen (18) months thereafter.
Basic Compensation shall be paid at the intervals set forth in Article
II.
6. Paragraph
(a) of Section 3.03 “Termination of Employment by the Executive” shall be
deleted from the Employment Agreement and replaced with the following provision:
Section
3.03. Termination
of Employment by the Executive.
(a)
If
during the Employment Period there should occur any of the following events
(each of the following being an event giving the Executive the right to resign
for "Good Reason”): (i)
a
change in the title and/or responsibilities of the Executive, such that the
Executive is no longer functionally the President and Chief Scientific Officer
of the Company and no longer has such responsibilities and authorities as are
customarily exercisable by the President and Chief Scientific Officer of a
corporation, (ii)
a
failure by the Company to provide the Executive with Basic Compensation,
Incentive Compensation or Benefits, other than a failure that is not in bad
faith and is remedied by the Company within 15 days after receipt of notice
thereof given by the Executive, or (iii) a breach by the Company of a material
term of this Employment Agreement that is not remedied by the Company within
15
days of receipt of notice thereof by the Executive, the Executive may elect
to
terminate her employment by notice to the Company (subject to Article IV
hereof). If the Executive exercises such election, the Employment Period shall
terminate effective upon the later to occur of (x) receipt of such notice by
the
Company and (y) expiration of the 15-day period referred to in Section
3.03(a)(ii) or (iii).
7.
Paragraph
(b) of Section 3.03 “Termination of Employment by the Executive” shall be
deleted from the Employment Agreement and replaced with the following
provision:
(b)
If the
Executive exercises his election to terminate pursuant to Section 3.03(a),
the
Company shall be obligated to pay the Executive and the Executive shall be
entitled to receive, in complete and total satisfaction of the obligations
of
the Company hereunder, an amount equal to Basic Compensation for the period
commencing on the date of such termination and ending on the date that is
eighteen (18) months thereafter. Basic Compensation shall be paid at the
intervals set forth in Article II.
8.
Section
3.04 “Change of Control” shall be deleted from the Employment Agreement and
replaced with the following provision:
Section
3.04.
Change
of Control. If, within two (2) months following a Change in Control (as
hereinafter defined), (i) the Company terminates the Executive's employment
hereunder other than pursuant to Section 3.01(a) or Section 3.02, or (ii) the
Executive terminates his employment hereunder for Good Reason, the Company
shall
be obligated to pay the Executive, and the Executive shall be entitled to
receive in complete and total satisfaction of the obligations of the Company
hereunder, an amount equal to the Executive’s Basic Compensation for the period
commencing on the date of such termination and ending on the date that is (x)
twenty four (24) months if such Change of Control occurs after June 30, 2008,
and (y) thirty six (36) months if such Change of Control occurs before June
30,
2008
9.
Paragraph
(c) of Section 3.05 shall be deleted from the Employment Agreement and replaced
with the following provision:
(c)
“Change of Control“ shall mean: (i)
a
merger or consolidation of the Company with or into another corporation other
than a transaction (A) in which the Company is the surviving Corporation (except
where such other merger or consolidation party is controlled by or under common
control with another corporation) or (B) merging or consolidating the Company
with any corporation controlling, controlled by or under common control with
the
Company (in which case the surviving corporation shall be deemed the ”Company“
for purposes of this Agreement), or (ii)
the
sale of all or substantially all the assets of the Company to any corporation
or
entity, other than a sale to any corporation or entity controlling, controlled
by or under common control with the Company prior to such transaction (in which
case the surviving corporation shall be deemed the ”Company“ for purposes of
this Employment Agreement).
10. Section
5.09 “Entire Agreement; Amendments” shall be deleted from the Employment
Agreement and replaced with the following provision:
Section
5.09. Entire
Agreement; Amendments. This Employment Agreement, as amended by Amendment Nos.
1
and 2, contains the entire understanding of the parties hereto with regard
to
the subject matter contained herein, and supersedes all prior agreements or
understandings between the parties hereto or any related parties. This
Employment Agreement may be amended only pursuant to a writing signed by both
parties hereto.
11.
All
other provisions of the Employment Agreement shall remain in full force and
effect.
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remainder of this page has been intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
DOV
PHARMACEUTICAL, INC.
| By: | /s/ Xxxxxx Xxxxx | /s/ Xxxx Xxxxxxxx | ||
|
Name: Xxxxxx Xxxxx |
Xxxx Xxxxxxxx |
|||
|
Title:
Executive Chairman of the Board
|
