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EXHIBIT 10.9
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AGREEMENT
THIS AGREEMENT, made as of the sixth day of November, 1997, between
OPHIDIAN PHARMACEUTICALS, INC., a Wisconsin corporation, (the "Employer"), and
XXXXXX X. XXXXXX, CPA, MBA, (the "Employee");
RECITALS
The Employer is engaged in the business of the creation and marketing
of pharmaceutical products, and has developed methods, techniques, concepts and
systems for this business which are unique and distinctive.
The Employer desires to continue to employ the Employee as its Vice
President of Finance and Chief Financial Officer, and in the course of his
employment to give him important information about its business methods,
techniques, concepts and systems, and to have him meet and deal with customers
of the Employer, obtain or have access to information about them, and develop
special relationships with them.
The Employer and the Employee desire to enter into an Agreement with
respect to the continued employment of the Employee by the Employer pursuant to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereinafter set forth, the parties agree as follows:
1. EMPLOYMENT. The Employer agrees to continue to employ the
Employee, and the Employee agrees to continue to serve in the employment of the
Employer, upon the terms and conditions hereinafter set forth.
2. DUTIES. The Employee shall serve as Vice President of Finance
and Chief Financial Officer of the Employer. The Employee will assume
administrative responsibility for all finance and accounting functions of the
Employer, and have responsibility for various administrative and support
fuctions such as management information systems. He will participate in the
planning and execution of the Employer's strategic development activities in
conjunction with research & development and operations management, advisors and
the Board of Directors. He will interact with executive management in
biotechnology and pharmaceutical companies to establish strategic partnerships.
He will develop and execute a corporate communications and shareholders
relations program to maintain investor interest. He will establish
relationships with bank or government sources to secure debt financing for
future facilities. He will effect an
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equity sale, business spinout, acquisition, or other such transaction in
accordance with the directions of the Board of Directors of the Employer. The
Employee will report to the President of the Employer. The Employee shall
devote his full time professional effort, attention and energy to the business
and affairs of the Employer and shall use his best efforts to promote the
interests of the Employer.
3. TERM. The term of the employment of the Employee hereunder shall
commence as of the effective date of this Agreement, and shall continue for a
period of three (3) years thereafter, subject to termination as hereinafter
provided.
4. COMPENSATION. The Employer shall pay to the Employee, and the
Employee shall accept in full payment for his services to the Employer, such
base compensation, incentive compensation and bonus compensation as may be
established by the Employer from time to time. Notwithstanding the foregoing,
the total amount of such compensation shall not be reduced to less than the
total amount of such compensation that is being paid to the Employee as of the
effective date of this Agreement.
5. VACATION, SICK LEAVE AND OTHER BENEFITS.
(a) The Employee shall be entitled to vacation days and sick
leave in accordance with the Employer's established rules and policies.
(b) The Employee shall be eligible to participate in insurance
and other benefit programs provided to employees of the Employer similarly
situated, all in accordance with the Employer's established rules and policies.
6. EXPENSES. The Employer shall reimburse the Employee for any out
of pocket expenses reasonable incurred by the Employee in the furtherance of
the business of the Employer, upon submission of a satisfactory accounting by
the Employee to the Employer.
7. INTELLECTUAL PROPERTY, TRADE SECRETS AND COMPETITIVE ACTIVITIES.
The provisions of the letter agreement between the parties dated (date), a copy
of which is attached hereto as Addendum A., are incorporated herein by
reference.
8. TERMINATION.
(a) TERMINATION BY EMPLOYER FOR CAUSE. The Employer may
terminate this Agreement and the Employee's employment effective immediately
upon written notice to the Employee for any of the following reasons:
(i) Commission by the Employee of any act of intentional
dishonesty material to the Employer.
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(ii) Conviction of the Employee of an offense involving moral
turpitude constituting a felony criminal offense under federal, state or local
laws by the Employee.
(iii) Intentional and prolonged failure of the Employee to
devote his best efforts to performance of his duties for the Employer or the
incompetent performance of such duties. Such intentional and prolonged failure
to perform his duties, or the incompetent performance thereof, shall be deemed
to exist if the Employee has not substantially corrected, or taken reasonable
steps to correct, such failure within thirty (30) days after having been
notified in writing by the President of the Employer of such failure to perform
or incompetent performance.
Upon termination as set forth in the paragraph, the Employer shall have no
further obligations to the Employee, and the Employee shall have no further
obligations to the Employer, except as provided in Paragraph 7 hereof.
(b) TERMINATION BECAUSE OF DEATH OR DISABILITY. This Agreement and
the Employee's employment shall be terminated immediately upon the death or the
disability of the Employee. For purposes of this Agreement, the Employee shall
be considered to be disabled if he is unable to perform the above described
services for a continuous period of six (6) months by reason of physical or
mental illness or incapacity. If there is any dispute as to whether the
Employee is or was physically or mentally unable to perform his duties
hereunder, such question shall be submitted to a licensed physician mutually
acceptable to the Employee and the Employer for determination.
Upon termination due to the Employee's death or disability, the Employee,
the personal representative of the Employee's estate or his legal
representative, as appropriate, shall have no further obligation to the
Employer except as provided in Paragraph 7 hereof, and the Employer shall have
no further obligation to the Employee's estate or the Employee, except to pay
the Employee or his estate any unpaid base compensation, incentive
compensation, and bonus compensation payable hereunder with respect to the
period prior to the effective date of termination and reimbursement of expenses
to which the Employee is entitled under Paragraph 6 hereof in respect to
periods prior to the termination date.
(c) Termination Without Cause. It is understood and agreed by the
parties hereto that the Employee is an employee-at-will and may be terminated
by the Employer at any time for any reason or no reason, and that the Employee
may terminate his employment with the Employer for any reason or no reason,
subject to the following:
(i) By the Employer. If the Employer terminates this Agreement
without cause, the Employee shall be entitled to full salary ("Severance Pay")
and benefits for a term of twelve (12) months after the date of such
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termination, and the Employee's right to exercise any unvested options for the
purchase of Employer Stock under any stock option agreements entered into
pursuant to any qualified or nonqualified stock option plans of the Employer,
shall be accelerated so as to enable the Employee to fully exercise the options
granted under such agreements. Upon termination pursuant to this Paragraph, the
Employee shall have no further obligations to the Employer except as provided
in Paragraph 7 hereof.
(ii) By the Employee. The Employee may, upon thirty (30)
days advance written notice to the Employer, terminate this Agreement and his
employment hereunder. If the Employee terminates his employment as provided
hereunder for any reason other than for good reason, the Employer shall have no
further obligations to the Employee for severance pay or other benefits beyond
the effective date of termination. The Employee shall have no further
obligations to the Employer under this Agreement except as provided in
Paragraph 7.
(d) Termination for Good Reason.
(i) The Employee may, upon thirty (30) days advance written
notice to the Employer, terminate this Agreement and his employment hereunder
for good reason. In the event of a termination by the Employee for good
reason, the Employee shall be entitled to receive Severance Pay in the same
manner and amount as set forth in Paragraph 8(c)(i) above, and the Employee's
rights to exercise stock options shall be accelerated in the same manner as
set forth in Paragraph 8(c)(i) above.
(ii) For purposes of this Agreement, the Employee shall have a
"good reason" for termination of employment in the event of:
a. any breach of this Agreement by the Employer; or
b. a good faith determination by the Employee that there
has been a significant adverse change, without the Employee's written consent,
in the Employee's working conditions or status with the Employer from such
working conditions or status as were in effect during the 180-day period
immediately prior to the effective date of this Agreement, including but not
limited to (A) a significant change in the nature or scope of the Employee's
authority, powers, functions, duties or responsibilities, or (B) a significant
reduction in the level of support services, staff, secretarial and other
assistance, office space and accouterments provided to the Employee.
c. a change in control of the Employer, which for
purposes of this Agreement shall be deemed to occur if: (i) securities of the
Employer representing twenty-five percent (25%) or more of the combined voting
power of the Employer's then outstanding voting securities are acquired pursuant
to a tender offer or an exchange offer: (ii) the shareholders of the Employer
approve a
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merger, consolidation, or reorganization of the Employer with any other
corporation as a result of which less than seventy-five percent (75%) of the
outstanding voting securities of the surviving or resulting entity are owned by
the former shareholders of the Employer other than a shareholder who is an
affiliate or associate of any party to such consolidation or merger; (iii) the
shareholders of the Employer's assets to a corporation or other person which is
not a wholly owned subsidiary of the Employer; or (iv) the employer acquires,
whether through purchase, merger or otherwise, all or substantially all of the
operating assets or capital stock of another entity and in connection with such
acquisition persons are elected or appointed to the Board of Directors of the
Employer who are not directors immediately prior to such acquisition and such
persons constitute a majority of the Board of Directors after such acquisition.
9. PARTIAL INVALIDITY. The terms and provisions of this Agreement
shall be deemed severable, and if any term or provision of this Agreement or
the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to the persons or circumstances other than those as
to which it is invalid or unenforceable, shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
10. APPLICABLE LAW. This Agreement is executed, delivered and
intended to be performed pursuant to the laws of the State of Wisconsin.
11. NOTICES. Any notices required or desired to be given hereunder
shall be complete if sent by Certified or Registered Main, Return Receipt
Requested, to his residence in the case of the Employee, and to its principal
office in the case of the Employer, or by personal delivery.
12. ENTIRE AGREEMENT. This instrument, the letter agreement between
the parties dated November 6, 1997, the provisions of which are incorporated
herein by reference, and any stock option agreements entered into pursuant to
any qualified or nonqualified stock option plans of the Employer, contain the
entire agreement of the parties, and may not be changed orally, but only by an
agreement in writing executed by both parties.
13. SUCCESSORS AND ASSIGNS. The Employee shall have no power to
transfer, assign, anticipate, mortgage, or otherwise encumber in advance any of
the sums payable hereunder, nor shall any of such sums be subject to seizure
for the payment of any debt or judgment or be transferable by operation of law
in the event of bankruptcy or insolvency. This Agreement shall inure to the
benefit of, and shall be binding upon, the successors and assigns of the
Employer.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER: EMPLOYEE:
OPHIDIAN PHARMACEUTICALS, INC.
By: Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxxx, Ph.D., President Xxxxxx X. Xxxxxx, CPA, MBA
Attest: Xxxxxxxx van Boldrik
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Xxxxxxxx van Boldrik, Secretary
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