EXHIBIT 10.2
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EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is made this 31 day
of August, 2002 by and between Xxxxx Xxxxx-Fogerite, Ph.D. ("Xx.
Xxxxx-Xxxxxxxx") and BioDelivery Sciences International, Inc. (the "Company").
WHEREAS, the Company is engaged in the business of researching and
developing drug delivery technologies; and
WHEREAS, the Company and Xx. Xxxxx-Xxxxxxxx are willing to continue the
employment relationship, on the terms, conditions and covenants set forth in
this Agreement;
NOW, THEREFORE, in consideration of Xx. Xxxxx-Xxxxxxxx'x continued
employment with the Company and other good and valuable consideration, receipt
of which Xx. Xxxxx-Xxxxxxxx and the Company hereby acknowledge, Xx.
Xxxxx-Xxxxxxxx and the Company agree, as follows:
1. Position. Xx. Xxxxx-Xxxxxxxx agrees to her employment as Vice President
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and Director of Innovations and Discovery. She further agrees to perform the job
duties and to carry out the responsibilities of that position, as determined by
the Chief Executive Officer from time to time.
2. Xx. Xxxxx-Xxxxxxxx'x Effort. Xx. Xxxxx-Xxxxxxxx agrees to devote her
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full working time and best efforts, skill and attention to her position and to
the business and interests of the Company.
3. Salary. The Company shall pay Xx. Xxxxx-Xxxxxxxx compensation for
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services rendered in the amount of One Hundred Forty Six Thousand Thirty Dollars
($146,030) per annum payable on a biweekly basis. Further, the Company, from
time to time, shall pay Xx. Xxxxx Fogerite such bonuses, additional compensation
or other benefits as may be determined by the Executive Compensation Committee
of the Board of Directors. Any changes in Xx. Xxxxx-Xxxxxxxx'x duties or
compensation, shall not in any way affect the promises of Xx. Xxxxx-Xxxxxxxx as
set forth in this Agreement. Furthermore, Xx. Xxxxx-Xxxxxxxx shall be reimbursed
for expenses properly documented as per the Company's policy.
4. Termination. This Agreement and the status and obligations of Dr.
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Xxxxx-Xxxxxxxx thereunder as an employee of the Company (except for the
provisions of paragraph 5 through 9 inclusive, 11 through 14 inclusive) shall
cease and terminate effective upon the close of business August 31, 2005, unless
further extended by the parties hereto in writing; provided, that upon such date
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said termination shall not affect all rights that Xx. Xxxxx-Xxxxxxxx may have
pursuant to any of the Company's retirement plans, supplementary retirement
plans, profit sharing and savings plans, healthcare, 401 (k) any other employee
benefit plans sponsored by the Company, which, in accordance with its terms, is
applicable to Xx. Xxxxx-Xxxxxxxx.
4.1 Death or Disability. This Agreement shall automatically terminate
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upon the death of Xx. Xxxxx-Xxxxxxxx and all of her rights hereunder,
including the rights to receive compensation and benefits, except as
otherwise required by law, shall terminate. The Company may, at its option,
terminate this Agreement in the event that Xx. Xxxxx-Xxxxxxxx shall be
physically or mentally incapacitated which shall make her unable to perform
the duties assigned to her for more than ninety (90) days in any one
hundred eighty (180) day period. In the event of a dispute as to whether
Xx. Xxxxx-Xxxxxxxx is physically or mentally unable to perform her duties
hereunder, the Company shall select an impartial physician to make a
determination as to Xx. Xxxxx-Xxxxxxxx'x incapacity, if any. Xx.
Xxxxx-Xxxxxxxx agrees to submit to appropriate medical examinations for the
purposes of such determination. Such termination shall not affect Xx.
Xxxxx-Xxxxxxxx'x rights and obligations under paragraphs 5 through 9
inclusive, 11 through 14 inclusive, all of which shall survive the early
termination or expiration of this Agreement.
4.2 The Company's Right to Terminate with Notice. The Company may
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terminate this Agreement upon 30 days written notice to Xx. Xxxxx-Xxxxxxxx.
In case of termination under this section, the Company may elect to pay Xx.
Xxxxx-Xxxxxxxx a base rate of $146,030 for the notice period in lieu of
permitting her to continue working. Aside from payment as herein provided,
the Company shall have no further obligations to Xx. Xxxxx-Xxxxxxxx
following termination. The period during which Xx. Xxxxx-Xxxxxxxx shall not
compete with the Company in the event of termination under this section
shall be shortened from three (3) years to one (1) year from date of
termination.
4.3 Termination for Cause. Notwithstanding the immediately preceding
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paragraph or anything elsewhere herein contained to the contrary, the
Company may terminate this Agreement and all of its obligations to Xx.
Xxxxx-Xxxxxxxx, with notice and effective unless Xx Xxxxx-Xxxxxxxx cures
the breach within 60 days, in the event that: (i) Xx. Xxxxx-Xxxxxxxx
breaches any term of this Agreement; (ii) if Xx. Xxxxx-Xxxxxxxx is
convicted of or enters a no contest plead to any felony or crime involving
moral turpitude, or if she pleads guilty to a lesser included offence or
crime in exchange for withdrawal of a felony indictment, felony charge by
information, or is charged with a crime involving moral turpitude, whether
the charge arises under the laws of the United States or any other state
therein; (iii) Xx. Xxxxx-Xxxxxxxx fails to perform the duties and
obligations assigned her by the Board of Directors of the Company; (iv) the
Company reasonably suspects that she has engaged in illegal drug or
substance use or abuse; (v) she wrongfully appropriates for personal use or
benefit any property or money of the Company entrusted to her by the
Company; (vi) she disregards any legal directions of the Chief Executive
Officer or the Board of Directors of the Company; (vii) she materially
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violates Company policies or procedures; (viii) she takes any actions that
might damage the reputation of the Company or its ability to receive
approvals of its drug delivery systems from the Food and Drug Adminstration
(excluding, however, actions protected by "whistleblower" legislation); or
(ix) Xx. Xxxxx-Xxxxxxxx resigns her employment. In the event of termination
for any of the reasons set forth herein Xx. Xxxxx-Xxxxxxxx shall be bound
by all of the terms of this Agreement that survive termination.
5. Confidentiality. Xx. Xxxxx-Xxxxxxxx shall keep confidential for a period
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of three years for patented technology and five years for patent-pending
technology, except as the Company may otherwise consent in writing, and not
disclose, or make any use of except for the benefit of the Company, at any time
either during or subsequent to Xx. Xxxxx-Xxxxxxxx'x performance of services for
the Company, any trade secrets, knowledge, data or other information of the
Company relating to products, processes, know how, technical data, designs,
formulas, test data, customer lists, business plans, marketing plans and
strategies, and product pricing strategies or other subject matter pertaining to
any business of the Company or any of its clients, customers, consultants,
licensees or affiliates which Xx. Xxxxx-Xxxxxxxx may produce, obtain or
otherwise learn of during the course of Xx. Xxxxx-Xxxxxxxx'x performance of
services and after its termination (collectively "Confidential Information").
Xx. Xxxxx-Xxxxxxxx shall not deliver, reproduce, or in any way allow any such
Confidential Information to be delivered to or used by any third parties without
the specific direction or consent of a duly authorized representative of the
Company. The terms of this paragraph shall survive termination of this
Agreement.
6. Return of Confidential Material. Upon the completion or other
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termination of Xx. Xxxxx-Xxxxxxxx'x services for the Company, Xx. Xxxxx-Xxxxxxxx
shall promptly surrender and deliver to the Company all records, materials,
equipment, drawings, documents, lab notes and books and data of any nature
pertaining to any invention, trade secret or confidential information of the
Company or to Xx. Xxxxx-Xxxxxxxx'x services, and Xx. Xxxxx-Xxxxxxxx will not
take with her any description containing or pertaining to any Confidential
Information, knowledge or data of the Company which Xx. Xxxxx-Xxxxxxxx may
produce or obtain during the course of her services. The terms of this paragraph
shall survive termination of this Agreement.
7. Assignment of Inventions. Xx. Xxxxx-Xxxxxxxx shall assign and transfer
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to the Company her entire right, title and interest in and to all Inventions (as
used in this Agreement, "Inventions" shall include, but not be limited to,
ideas, improvements, designs and discoveries), whether or not patentable and
whether or not reduced to practice, made or conceived by Xx. Xxxxx-Xxxxxxxx
(whether made solely by Xx. Xxxxx-Xxxxxxxx or jointly with others) during the
period Xx. Xxxxx-Xxxxxxxx performs services for the Company which relate in any
manner to cochleate or other forms of delivery technologies or to the actual or
anticipated business, work or research and development of the Company or its
affiliates, or result from or are suggested by any task assigned to Xx.
Xxxxx-Xxxxxxxx or any work performed by Xx. Xxxxx-Xxxxxxxx for or on behalf of
the Company or any of its affiliates. All Inventions are the sole property of
the Company. The terms of this paragraph shall survive termination of this
Agreement.
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8. Disclosure of Inventions: Patents. In connection with Inventions:
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(a) Xx. Xxxxx-Xxxxxxxx will disclose all Inventions promptly in writing to
the person to whom Xx. Xxxxx-Xxxxxxxx reports at the Company, with a copy
to the President of the Company, in order to permit the Company to enjoy
rights to which it may be entitled under this Agreement.
(b) Xx. Xxxxx-Xxxxxxxx will, at the Company's request promptly execute a
written assignment of title to the Company for any Invention, and Xx.
Xxxxx-Xxxxxxxx will preserve any Invention as confidential information of
the Company: and
(c) Upon request, Xx. Xxxxx-Xxxxxxxx will assist the Company or its nominee
(at the Company's expense) during and at any time subsequent to Xx.
Xxxxx-Xxxxxxxx'x performance of services for the Company in every
reasonable way in obtaining for its own benefit patents and copyrights' for
Inventions in any and all countries, which Inventions shall be and remain
the sole and exclusive property of the Company or its nominee, whether or
not patented or copyrighted. Xx. Xxxxx-Xxxxxxxx will execute such papers
and perform such lawful acts as the Company deems to be necessary to allow
it to exercise all rights, title and interest in such patents and
copyrights.
The terms of this paragraph shall survive termination of this Agreement.
9. Execution of Documents. In connection with paragraph 8(c), Dr.
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Xxxxx-Xxxxxxxx will execute, acknowledge and deliver to the Company or its
nominee upon request and at its expense all such documents, including
applications for patents and copyrights and assignments of inventions, patents
and copyrights to be issued therefore, as the Company may determine necessary or
desirable to apply for and obtain letters, patents, and copyrights on Inventions
in any and all countries and/or to protect the interest of the Company or its
nominee in Inventions, patents and copyrights and to vest title thereto in the
Company or its nominee. The terms of this paragraph shall survive termination of
this Agreement.
10. Maintenance of Records. Xx. Xxxxx-Xxxxxxxx will keep and maintain
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adequate and current written records of all Inventions made by Xx.
Xxxxx-Xxxxxxxx (in the form of notes, sketches, drawings and as may be specified
by the Company), which records shall be available to and remain the sole
property of the Company at all times.
11. Prior Inventions. It is understood that all Inventions, if any,
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patented or unpatented which Xx. Xxxxx-Xxxxxxxx made prior to the time the
Company and Xx. Xxxxx-Xxxxxxxx began to consider Xx. Xxxxx-Xxxxxxxx'x possible
performance of services are excluded from the scope of the Agreement. To
preclude any possible uncertainty, Xx. Xxxxx-Xxxxxxxx has set forth on Exhibit A
attached hereto a complete list of all such prior inventions, including numbers
of all patents and patent applications, and a brief description of all
unpatented inventions which are not the property of another party (including,
without limitation a current or previous contracting party).
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The list is complete with the exception of the pre-existing patents which Xx.
Xxxxx Fogerite has assigned to the Universities and to which the Company is the
exclusive licensee and if no items are included on Exhibit A, Xx. Xxxxx-Xxxxxxxx
has no such prior inventions. Xx. Xxxxx-Xxxxxxxx will notify the Company in
writing before Xx. Xxxxx-Xxxxxxxx makes any disclosure or performs any work on
behalf of the Company which appears to threaten or conflict with proprietary
rights Xx. Xxxxx-Xxxxxxxx claims in any such invention or idea. In the event of
Xx. Xxxxx-Xxxxxxxx'x failure to give such notice, Xx. Xxxxx-Xxxxxxxx will make
no claim against the Company with respect to any such inventions or ideas. The
terms of this paragraph shall survive termination of this Agreement.
12. Competition - For purposes of this Agreement "Competitive Activity"
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shall mean the development, manufacturing or sale of any lipid based drug
delivery system.
a. Xx. Xxxxx-Xxxxxxxx will not do, or intend to do, any of the
following, either directly or indirectly, during Xx. Xxxxx-Xxxxxxxx'x employment
with the Company and during the period of three (3) years after Xx.
Xxxxx-Xxxxxxxx'x cessation of employment with the Company, anywhere in the
world. In the event that Xx. Xxxxx-Xxxxxxxx improperly competes with the
Company, the period during which she engages in such competition shall not be
counted in determining the duration of the the three (3) year non-compete
restriction.
i. Own, manage, operate, control, consult for, be an officer or
director of, work for, or be employed in any capacity by any company,
eleemosynary institution or any other business, entity, agency or
organization which is in any way involved in the research, development,
distribution, sale or commercialization of lipid based drug delivery
technologies. During her employment with the Company, and with the prior
written consent of the Board of Directors of BDSI, she may engage as a
director, consultant, advisor, or reviewer for non-competing companies. In
the event of termination and during the relevant non-compete period, Xx.
Xxxxx-Xxxxxxxx may be employed by a non-for-profit such as a University or
governmental agency so long as her work is not funded by or beneficial to
another lipid-based drug delivery technology company other than BDSI.
ii. Solicit prior or current customers of the Company or any entities
with which the Company has undertaken joint studies or developmental
activities for any purpose in competition (as defined herein) with the
Company; or
iii. Solicit any then current employees employed by the Company
without the Company's consent.
Xx. Xxxxx-Xxxxxxxx and Company agree that the phrase "Xx. Xxxxx-Xxxxxxxx'x
cessation of employment with the Company" as used in this Agreement, refers to
any separation from her employment at the Company either voluntarily or
involuntarily, either with cause or without cause, or whether the separation is
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at the behest of the Company or Xx. Xxxxx-Xxxxxxxx (hereinafter referred to and
defined as "Xx. Xxxxx-Xxxxxxxx'x Cessation of Employment").
b. This Agreement expressly authorizes and permits Xx.
Xxxxx-Xxxxxxxx to continue her present relationship with the University of
Medicine and Dentistry of New Jersey provided Xx. Xxxxx-Xxxxxxxx assign any
compensation received from the University of Medicine and Dentistry of New
Jersey during the term of this Agreement over to the Company. Xx.
Xxxxx-Xxxxxxxx'x participation in income from the pre-existing exclusive license
between the Company and the Universities is specifically excluded from this
assignment of income to the Company and said royalty or sub-licensing income
shall belong to Xx. Xxxxx-Xxxxxxxx.
13. Other Obligations.
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(a) Xx. Xxxxx-Xxxxxxxx acknowledges that the Company from time to
time may have agreements with other persons or with the U.S.
Government, or agencies thereof, which impose obligations or
restrictions on the Company regarding inventions made during the
course of work thereunder or regarding the confidential nature of such
work. Xx. Xxxxx-Xxxxxxxx will be bound by all such obligations and
restrictions and will take all action necessary to discharge the
obligations of the Company thereunder.
(b) All of Xx. Xxxxx-Xxxxxxxx'x obligations under this Agreement
shall be subject to any applicable agreements with, and policies
issued by the Company to which Xx. Xxxxx-Xxxxxxxx is subject.
14. Trade Secrets of Others. Xx. Xxxxx-Xxxxxxxx represents that Dr.
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Xxxxx-Xxxxxxxx'x performance of all the terms of this Agreement as employee to
the Company does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by Xx. Xxxxx-Xxxxxxxx in
confidence or in trust, and Xx. Xxxxx-Xxxxxxxx will not disclose to the Company,
or the Company to use, any confidential or proprietary information or material
belonging to any other person or entity. Xx. Xxxxx-Xxxxxxxx will not enter into
any agreement, either written or oral, which is in conflict with this Agreement.
15. Injunctive Relief. Xx. Xxxxx-Xxxxxxxx acknowledges that any breach or
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attempted breach by Xx. Xxxxx-Xxxxxxxx of this Agreement or any provision hereof
shall cause the Company irreparable harm for which any adequate monetary remedy
does not exist. Accordingly, in the event of any such breach or threatened
breach, the Company shall be entitled to obtain injunctive relief, without the
necessity of posting a bond or other surety, restraining such breach or
threatened breach.
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16. Modification. This Agreement may not be changed, modified, released,
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discharged, abandoned, or otherwise amended, in whole or in part, except by an
instrument in writing, signed by Xx. Xxxxx-Xxxxxxxx and by the Company. Any
subsequent change or changes in Xx. Xxxxx-Xxxxxxxx'x relationship with the
Company or Xx. Xxxxx-Xxxxxxxx'x compensation shall not affect the validity or
scope of this Agreement.
17. Entire Agreement. Xx. Xxxxx-Xxxxxxxx acknowledges receipt of this
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Agreement, and agrees that with respect to the subject matter thereof, it is Xx.
Xxxxx-Xxxxxxxx'x entire agreement with the Company, superseding any previous
oral or written communications, representations, understandings with the Company
or any office or representative thereof.
18. Severability. In the event that any paragraph or provision of this
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Agreement shall be held to be illegal or unenforceable, the entire Agreement
shall not fall on account thereof, but shall otherwise remain in full force and
effect, and such paragraph or provision shall be enforced to the maximum extent
permissible.
19. Successors and Assigns. This Agreement shall be binding upon Dr.
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Xxxxx-Xxxxxxxx'x heirs, executors, administrators or other legal representatives
and is for the benefit of the Company, its successors and assigns.
20. Governing Law. This Agreement shall be governed by the laws of the
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State of New Jersey except for any conflicts of law rules thereof that might
direct the application of the substantive law of another state.
21. Counterparts. This Agreement may be signed in two counterparts, each of
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which shall be deemed an original and both of which shall together constitute
one agreement.
22. Arbitration. In the event that either Xx. Xxxxx-Xxxxxxxx, her spouse or
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any other person claiming benefits on behalf of or through Xx. Xxxxx-Xxxxxxxx,
or the Company has a claim or dispute based upon this Agreement including the
interpretation or application of the terms and provisions of this Agreement, the
sole and exclusive remedy is for that party to submit the dispute to binding
arbitration in accordance with the rules of arbitration of the American
Arbitration Association in New Jersey. Any arbitrator selected to arbitrate any
such dispute will have the power to interpret this Agreement. Any determination
or decision by the arbitrator shall be binding upon the parties and may be
enforced in any court of law. The expenses of the arbitrator will be paid 50% by
the Company and 50% by Xx. Xxxxx-Xxxxxxxx, her spouse or other person, as the
case may be. The parties agree that this arbitration provision does not apply to
the right of Xx. Xxxxx-Xxxxxxxx to file a charge, testify, assist or participate
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in any manner in an investigation, hearing or proceeding before the Equal
Employment Opportunity Commission or any other agency pertaining to any matters
covered by this Agreement and within the jurisdiction of the agency.
23. No Waiver. No waiver by the Company of any breach of this Agreement by
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Xx. Xxxxx-Xxxxxxxx shall constitute a waiver of any subsequent breach.
24. Notice. Any notice hereby required or permitted to be given shall be
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sufficiently given if in writing and upon mailing by registered or certified
mail, postage prepaid, to either party at the address of such party or such
othis address as shall have been designated by written notice by such party to
the other party.
EXECUTED as of the date set forth below.
Dated: 8/31/02
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BIODELIVERY SCIENCES INTERNATIONAL, INC.
By: /s/Xxxxxxx X. X'Xxxxxxx
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Name: Xxxxxxx X. X'Xxxxxxx, Xx.
Title: President, CEO
/s/Xxxxx Xxxxx-Fogerite
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Xxxxx Xxxxx-Fogerite, Ph.D.
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EXHIBIT A
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PRIOR INVENTIONS
BIODELIVERY SCIENCES INTERNATIONAL, INC. (the "Company")
Gentlemen:
The following is a complete list of all inventions or improvements patented or,
unpatented, that have been made or conceived or first reduced to practice by the
undersigned alone or jointly with others prior to the time the Company and the
undersigned first began to consider the undersigned's performance of services
for the Company. The undersigned desires to remove the inventions and
improvements listed, if any, from the operation of the foregoing Agreement.
Check one:
X No inventions or improvements.
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As follows:
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Additional sheets attached.
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Dated: 8/31/02 /s/ Xxxxx Xxxxx-Fogerite
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Xxxxx Xxxxx-Fogerite, Ph.D.
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