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Exhibit 10.8
AGREEMENT
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THIS AGREEMENT, made as of the 1st day of August, 1997, between OPHIDIAN
PHARMACEUTICALS, INC., a Wisconsin corporation, (the "Employer"), and F. XXXXXXX
XXXXXXXX, Ph.D., (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 employ the Employee as its Vice President of
Genetic Technologies, 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 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 employ the Employee, and the
Employee agrees 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 Genetic
Technologies of the Employer. The Employee will identify, plan and manage new
programs in gene discovery and drug discovery including the discovery of new
drug targets and assay development for drug screening. He will participate in
strategic planning, the setting of goals and directions for the Employer, and
in the evaluation of Employer programs. The Employee will hire, direct and
evaluate staff and project teams necessary for the implementation of the
programs. He will interact with investigators and laboratories in academia,
biotechnology and pharmaceutical companies to evaluate new technology and
intellectual property, engage in research collaborations and establish
strategic partnerships.
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The Employee will attend national or international scientific meetings
appropriate to the programs in genetics and drug discovery. He will assist in
the preparation of patent applications, publications, project proposals and
Employer presentations. The Employee will report to the President of the
Employer. The Employer will provide the facilities, staff and resources
appropriate to accomplishing these duties. 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 reasonably 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 August 1, 1997, 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:
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(i) Commission by the Employee of any act of intentional dishonesty
material to the Employer.
(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:
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(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
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 accoutrements 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
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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
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 approve the sale or other transfer of all or
substantially all 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 Mail, 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 August 1, 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 to 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. (Seal)
(Seal)
By: /s/ Xxxxxxxx X. Xxxxxxxx, /s/ F. Xxxxxxx Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx,Ph.D., President F. Xxxxxxx Xxxxxxxx, Ph.D.
Attest: /s/ Xxxxxxxxx Xxx Xxxxxxxx
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,Secretary
