EMPLOYMENT AGREEMENT
EXHIBIT
10.10
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of June 27, 2007
(“Effective Date”), by and between Trans-Pharma Corporation (“Company”) and Xx.
Xxxxxx Xxxxx (“Executive”).
PRELIMINARY
STATEMENT
A.
WHEREAS, The Company and the Executive desire to enter into this Agreement
to
provide for Executive’s employment by the Company, upon the terms and conditions
set forth herein.
The
parties hereby agree as follows:
1.
Duties.
1.1.
Position.
Executive shall serve as Chief Executive Officer and President, and serve on
the
Company Board of Directors, and shall have the duties and responsibilities
incident to such position and such other duties as may be determined in
consultation with the Company’s Board of Directors (“Board of Directors”).
Executive shall perform faithfully, cooperatively and diligently all of her
job
duties and responsibilities and agrees to and shall devote her full time,
attention and effort to the business of the Company and other assignments as
directed by the Company’s Board of Directors. The Executive will report directly
to the Board of Directors
1.2.
Best
Efforts.
Executive will expend her best efforts on behalf of the Company in connection
with her employment and will abide by all policies and decisions made by
Company, as well as all applicable federal, state and local laws, regulations
or
ordinances.
2.
Employment
Term.
The term of Executive’s employment under this Agreement shall commence as of the
Effective Date and shall continue until terminated by either the Executive
or
the Company (“Term”).
3.
Compensation.
3.1.
Base
Salary.
As compensation for Executive’s performance of her duties hereunder, Company
shall pay to Executive an initial base salary of One Hundred and Ninety-Five
Thousand Dollars ($195,000), starting on the Effective Date hereof, (“Annual
Base Salary”), payable in accordance with the normal payroll practices of
Company, less required deductions for state and federal withholding tax, social
security and all other employment taxes and payroll deductions.
Executive’s Annual Base Salary shall be eligible for an increase based upon the
recommendation of the Board of Directors.
3.2.
Annual
Bonus and Equity Plan.
The Executive shall be eligible to receive an annual bonus and participate
in
the Company’s Equity Plan, which basis will be determined by mutual agreement
between the Executive and the Board of Directors.
4.
Health
and Welfare Benefit Plans.
The Executive and/or the Executive’s family, as the case may be, shall be
eligible for participation in and shall receive all benefits under health and
welfare benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical prescription, dental disability, salary
continuance, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent generally applicable to employees
of
the Company.
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5.
Customary
Benefits.
Executive shall be entitled to all customary and usual fringe benefits and
shall
be entitled to participate in all savings and retirement plans, practices,
policies and programs generally applicable to employees of the Company that
are
in effect during the Employment Term, subject to the terms and conditions of
Company’s benefit plan documents, as applicable.
6.
Business
Expenses.
Executive shall be entitled to receive prompt reimbursement for all reasonable,
out-of-pocket business expenses incurred in the performance of her duties on
behalf of Company.
7.
Vacation.
Executive shall be entitled to paid vacation, personal and sick days each
calendar year, in accordance with the Company’s plans, policies and programs
then in effect.
8. Indemnification.
In
connection with the execution of the Agreement, the Company will also enter
into
a customary indemnification agreement with Executive.
9. Termination.
The
Executive’s employment hereunder may be terminated under the following
circumstances (without impairing the Executive’s rights under benefit plans,
arrangements and Company policies and procedures).
9.1 Termination
upon Death or Permanent Disability.
The
Executive’s Term of employment shall automatically terminate in the event of the
death or permanent disability of Executive. For purposes of this Agreement,
“permanent disability” shall mean the inability to perform services hereunder
for a period of six consecutive months.
9.2. Termination
by Company for Cause.
The
Company shall have the option to terminate the Term (a) for cause in the event
the Executive engages in grossly negligent conduct or willful misconduct in
connection with the execution of her duties hereunder which materially and
adversely affect the Company, after written notice by the Company to the
Executive of the specific nonperformance of her duties hereunder, provided
the
nonperformance continues uncorrected for a period of thirty days after written
notice thereof by the Company to the Executive specifically identifying the
manner in which the Company believes the Executive has not performed her duties.
For purposes of this Section 9.2, no act, or failure to act, on the Executive’s
part shall be considered “willful” unless done, or omitted to be done, by her
not in good faith and without reasonable belief that her act or omission was
in
the best interests of the Company.
9.3. Severance.
If the
Company terminates Executive’s employment other than for cause pursuant to
Section 9.2, Executive shall be entitled to receive a continuation of her then
Annual Base Salary plus health care insurance coverage for a period of one
(1)
year from said date of termination, with such base salary continuation to be
at
the rate set forth in Section 3.1, or, if greater, the rate of the Executive’s
current Annual Base Salary at the date of Termination.
Nothing
herein shall derogate from the Executive’s rights under employee benefit plans,
programs and arrangements under applicable law.
9.4.
Constructive
Discharge.
Any
significant reduction or adverse change in the nature or scope of the
Executive’s authority, duties, status or position contemplated by Section 1.1
hereof, including an involuntary relocation, or a reduction in the base salary
and/or benefits of the Executive from those provided for in Sections 4 and
5
hereof as they may from time to time be in effect, will be the basis for the
Executive’s termination of this Agreement by giving at least thirty days prior
notice to the Company, and in such event the termination will be treated as
a
termination by the Company without cause under Section 9.3.
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9.5. Benefits
upon Termination for Cause or Voluntary Termination by Executive.
In the
event the Company properly terminates Executive’s employment under this
Agreement for cause pursuant to Section 9.2 or Executive voluntarily resigns
from her employment during the Term:
(a)
base
salary shall be prorated as of the date of termination and said prorated amount
shall be paid to Executive,
(b)
all
stock options or stock appreciation rights granted to Executive shall be
governed by the instruments granting such rights; and
(c)
the
Company shall (i) make such other and further payment to Executive, her
designated beneficiaries and her dependents as may be provided pursuant to
the
terms of any employee benefit plans, fringe benefit plans, and all other
compensation and/bonus plans, programs and structures, in which the Executive
is
a participant at the time of termination of her employment with the Company,
and
(ii) promptly reimburse the Executive for any then un-reimbursed out-of-pocket
expenses pursuant to Section 6.
9.6. Confidentiality
and Proprietary Rights.
Executive agrees to continue to abide by the Company’s Information and
Inventions Agreement.
10.
Section
409A of the U.S. Internal Revenue Code.
10.1.
Good
Faith Intention.
The Company and Executive intend in good faith that this Agreement comply with
the applicable requirements of Section 409A of the Code and that this Agreement
be construed, interpreted and administered in accordance with such intent.
11.
Attorney’s
Fees.
If
litigation shall be instituted to enforce or interpret any provision of this
Agreement hereof, the prevailing party will reimburse the other party for
his/her reasonable attorney’s fees and disbursements incurred in such
proceeding.
12.
General
Provisions.
12.1.
Successors
and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their heirs, personal representatives and successors, including
any
successor of the company by reason of any dissolution, merger, consolidation,
sale of assets or other reorganization of the Company.
12.2.
Waiver.
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising
any right, power or privilege under this Agreement or the documents referred
to
in this Agreement will operate as a waiver of such right, power or privilege;
and no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or
the
exercise of any other right, power or privilege. To the maximum extent
permitted by applicable law, (i) no claim or right arising out of this
Agreement or the documents referred to in this Agreement can be discharged
by
one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (ii) no waiver that may
be given by a party will be applicable except in the specific instance for
which
it is given; and (iii) no notice to or demand on one party will be deemed
to be a waiver of any obligation of such party or of the right of the party
giving such notice or demand to take further action without notice or demand
as
provided in this Agreement or the documents referred to in this
Agreement.
12.3.
Validity.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
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124.
Headings.
The headings set forth in this Agreement are for convenience only and shall
not
be used in interpreting this Agreement.
12.5.
Governing
Law.
This Agreement will be governed by and construed in accordance with the laws
of
the United States and the State of California,
without
reference to its conflicts of laws principles.
12.6.
Counterparts.
This Agreement may be executed in one or more counterparts, all of which when
fully executed and delivered by all parties hereto and taken together shall
constitute a single agreement, binding against each of the parties.
12.7.
Survival.
Sections 8, 9, 10, 11 and, 12 of this Agreement shall survive Executive’s
employment by Company.
12.8. Notices.
All notices, consents, waivers and other communications under this Agreement
shall be in writing and will be deemed to have been duly given when (i)
delivered by hand (with written confirmation of receipt); (ii) sent by facsimile
(with written confirmation of receipt); or (iii) when received by the addressee,
if sent by a nationally recognized overnight delivery service, return
If
to
Executive:
Xx.
Xxxxxx Xxxxx
X.X.
Xxx
0000
Xxxxxx
Xxxxx Xx, XX 00000
If
to the
Company:
Dr.
Xxxxxxx Xxxxxx
Member
of
the Board of Directors
Trans-Pharma
Corporation
0000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx
Xxxxx,
XX 00000
or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT
AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE,
THE
PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
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Dated:
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June
27, 2007
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EXECUTIVE
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/s/
Xxxxxx Xxxxx, Ph.D.
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Xx.
Xxxxxx Xxxxx
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Dated:
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June
27, 2007
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TRANS-PHARMA
CORPORATION.
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By:
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/s/
Xxxxxxx Xxxxxx
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Name:
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Dr.
Xxxxxxx Xxxxxx
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Title:
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Director
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[Signature
Page to Employment Agreement]
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