Exhibit 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of October 1, 1996, by and between Maxim Pharmaceuticals, Inc.,
(the "Company"), and Xxxx Xxxxxxx, Ph.D. ("Executive"). The Company and
Executive are hereinafter collectively referred to as the "Parties," and
individually referred to as a "Party."
RECITALS
A. The Company desires assurance of the association and services of
Executive in order to retain Executive's experience, skills, abilities,
background and knowledge, and is willing to engage Executive's services on the
terms and conditions set forth in this Agreement.
B. Executive desires to be in the employ of the Company, and is willing
to accept such employment on the terms and conditions set forth in this
Agreement.
AGREEMENT
In consideration of the foregoing recitals and the mutual promises and
covenants herein contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT.
1.1 The Company hereby employs Executive, and Executive hereby accepts
employment by the Company, upon the terms and conditions set forth in this
Agreement, effective as of the date first set forth above ("Commencement Date").
This Agreement shall continue in until December 31, 1997, unless terminated
earlier pursuant to Section 5 below.
1.2 Executive shall be the Vice-President, Development and Chief
Technical Officer of the Company and shall serve in such other capacity or
capacities as the Chief Executive Officer and/or the Company's Board of
Directors ("Board") may from time to time prescribe.
1.3 Executive shall do and perform all services, acts or things necessary
or advisable to manage and conduct the business of the Company and which are
normally associated with the position of Vice-President, Development and Chief
Technical Officer, consistent with the Bylaws of the Company, as well as its
general employment policies and practices, including, but not limited to
management of the Company's research and development programs issuing from its
technologies, including; primary responsibility for business development and
corporate partnering activities, over-site and administration of clinical
trials, supervision of collaborator and contract laboratory relationships,
planning and supervision of research programs, preparation of strategic
development and marketing plans for the Company's technologies, evaluation of
scientific and other technologies for acquisition, and participation in
financing presentations and otherwise representing the Company at various
meetings. However, at all times during his employment Executive shall be subject
to the direction and policies from time to time established by the Board.
1.4 Unless the Parties otherwise agree in writing, during the term of
this Agreement, Executive shall perform the services he is required to perform
pursuant to this Agreement at the Company's offices, located at 0000 Xxxxxxx
Xxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 or at any other place at which the
Company maintains an office; provided, however, that the Company may from time
to time require Executive to travel temporarily to other locations in connection
with the Company's business.
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2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
2.1 During his employment by the Company, Executive shall devote his full
business energies, interest, abilities and productive time to the proper and
efficient performance of his duties under this Agreement.
2.2 During the term of this Agreement, Executive shall not engage in
competition with the Company, either directly or indirectly, in any manner or
capacity, as adviser, principal, agent, partner, officer, director, employee,
member of any association or otherwise, in any phase of the business of
developing, manufacturing and marketing of products which are in the same field
of use or which otherwise compete with the products or proposed products of the
Company.
2.3 Ownership by Executive, as a passive investment, of less than one
percent (1%) of the outstanding shares of capital stock of any corporation with
one or more classes of its capital stock listed on a national securities
exchange or publicly traded in the over-the-counter market shall not constitute
a breach of this paragraph.
3. COMPENSATION OF EXECUTIVE.
3.1 While employed by the Company, as compensation for proper and
satisfactory performance of all duties to be performed hereunder, the Company
shall pay Executive an annual base salary of One Hundred Forty Thousand Dollars
($140,000) per year (the "Base Salary"), payable in regular periodic payments in
accordance with Company policy. Such salary shall be prorated for any partial
year of employment on the basis of a 365-day fiscal year. In addition,
Executive will be eligible for an incentive bonus of up to $28,000, based upon
defined milestones, during the agreement period.
3.2 Executive's compensation may be changed from time to time by mutual
agreement of Executive and the Board.
3.3 All of Executive's compensation shall be subject to customary
withholding taxes and any other employment taxes as are commonly required to be
collected or withheld by the Company.
3.4 Executive shall be entitled to vacation and illness days consistent
with the Company's standard practice for its employees generally.
3.5 Executive shall, at the discretion of the Board, be entitled to
participate in the benefits for which he is eligible under the terms and
conditions of the standard Company benefits which may be in effect from time to
time and provided by the Company.
4. EXPENSE REIMBURSEMENT.
4.1 Executive shall be entitled to receive prompt reimbursement of all
reasonable business and travel expenses incurred by Executive in connection with
the business of the Company. Such expenses must be properly accounted for under
the policies and procedures established by the Company.
5. TERMINATION.
5.1 The Company may terminate Executive's employment under this Agreement
"for cause" by delivery of written notice to Executive specifying the cause or
causes relied upon for such termination. If Executive's employment under this
Agreement is terminated by the Company for cause under this section, Executive
shall be entitled to receive only accrued Base Salary and other accrued benefits
required by law, prorated to the date of termination. Executive will not be
entitled to severance pay, pay in lieu of notice or any other such compensation.
Grounds for the Company to terminate this Agreement "for cause" shall be limited
to the occurrence of any of the following events:
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5.1.1 If Executive is in material breach of any provision of this
Agreement;
5.1.2 Executive's engaging or in any manner participating in any
activity which is competitive with or intentionally injurious to the Company or
which violates any provision of Section 7 of this Agreement;
5.1.3 Executive's commission of any fraud against the Company or
use or appropriation for his personal use or benefit of any funds or properties
of the Company not authorized by the Board to be so used or appropriated;
5.1.4 Executive's conviction of any crime involving dishonesty or
moral turpitude;
5.1.5 Conduct by Executive which in good faith and reasonable
determination of the Board demonstrates gross unfitness to serve.
Any notice of termination given pursuant to this Section 5.1 shall effect
termination as of the date specified in such notice or, in the event no such
date is specified, on the last day of the month in which such notice is
delivered or deemed delivered as provided in Section 9 below.
5.2 The Company may terminate the Executive's employment at any time
without cause upon delivery of written notice to the Executive. Any notice of
termination given pursuant to this Section 5.2 shall effect termination as of
the date specified in such notice or, in the event no such date is specified, on
the last day of the month in which such notice is delivered or deemed
deliverable as provided in Section 9 below. If such termination shall occur
under this Section 5.2, then Executive shall be entitled to continuation of Base
Salary and health benefits for a period of six (6) months from said date of
termination with such Base Salary continuation to be at the rate set forth in
Section 3.1 or, as the case may be, at the rate of Executive's then current Base
Salary in effect as of the date of termination.
5.3 The parties may mutually agree at any time to terminate this
Agreement upon such terms and conditions as may be agreed upon in writing.
5.4 This Agreement shall terminate without notice upon the date of
Executive's death or the date when Executive becomes "completely disabled" as
that term is defined in Section 6.2
5.5 Notwithstanding any provision to the contrary herein, unless
otherwise provided herein or unless otherwise provided by law, Executive may at
any time terminate his employment with the Company hereunder. In such event,
the Company shall not be liable to Executive for the payment of any amount other
than accrued Base Salary and other accrued benefits required by law, prorated to
the date of termination. Executive will not be entitled to severance pay, pay
in leui of notice or any other such compensation.
6. DEATH OR DISABILITY DURING TERM OF EMPLOYMENT.
6.1 Upon termination of Executive's employment pursuant to Section 5.4,
Executive or his estate or personal representative, as the case may be, shall be
entitled to receive Executive's Base Salary and benefits for a period of one
month following the date of death or the date when Executive becomes completely
disabled.
6.2 The term "completely disabled" as used in this Agreement shall mean
the inability of Executive to perform the essential functions of his position
under this Agreement by reason of any incapacity, physical or mental, which the
Board of the Company, based upon medical advice or an opinion provided by a
licensed physician acceptable to the Board of the Company and approved by the
Executive, which approval shall not be unreasonably withheld, determines to have
incapacitated Executive from satisfactorily performing any or all essential
functions of his position for the Company during the foreseeable future. Based
upon such medical advice or opinion, the determination of the Board of the
Company shall be final and binding and the date such determination is made shall
be the date of such complete disability for purposes of this Agreement.
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7. CONFIDENTIAL INFORMATION; NONSOLICITATION.
7.1 Executive recognizes that his employment with the Company will
involve contact with information of substantial value to the Company, which is
not old and generally known in the trade, and which gives the Company an
advantage over its competitors who do not know or use it, including but not
limited to, techniques, designs, drawings, processes, inventions, developments,
equipment, prototypes, sales and customer information, and business and
financial information relating to the business, products, practices and
techniques of the Company, (hereinafter referred to as "Confidential
Information"). Executive will at all times regard and preserve as confidential
such Confidential Information obtained by Executive from whatever source and
will not, either during his employment with the Company or thereafter, publish
or disclose any part of such Confidential Information in any manner at any time,
or use the same except on behalf of the Company, without the prior written
consent of the Company. As a condition of this Agreement, Executive will sign
and return a copy of the Company's "Proprietary Information and Inventions
Agreement," attached as Exhibit A.
7.2 While employed by the Company and for one (1) year thereafter, the
Executive agrees that in order to protect the Company's confidential and
proprietary information from unauthorized use, that Executive will not, either
directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity; or the
business of any customer, vendor or distributor of the Company which, at the
time of termination or one (1) year immediately prior thereto, was listed on
Company's customer, vendor or distributor list.
8. ASSIGNMENT AND BINDING EFFECT.
8.1 This Agreement shall be binding upon and inure to the benefit of
Executive and Executive's heirs, executors, personal representatives, assigns,
administrators and legal representatives. Because of the unique and personal
nature of Executive's duties under this Agreement, neither this Agreement nor
any rights or obligations under this Agreement shall be assignable by Executive.
This Agreement shall be binding upon and inure to the benefit of the Company and
its successors, assigns and legal representatives.
9. NOTICES.
9.1 All notices or demands of any kind required or permitted to be given
by the Company or Executive under this Agreement shall be given in writing and
shall be personally delivered (and receipted for) or mailed by certified mail,
return receipt requested, postage prepaid, addressed as follows:
9.1.1 If to the Company:
Xxxxx Xxxxxxxxx
MAXIM PHARMACEUTICALS, INC.
0000 XXXXXXX XXXX XXXX
XXXXX 000
XXX XXXXX, XX 00000
9.1.2 If to Executive:
Xxxx Xxxxxxx, Ph.D.
MAXIM PHARMACEUTICALS, INC.
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0000 XXXXXXX XXXX XXXX
XXXXX 000
XXX XXXXX, XX 00000
Any such written notice shall be deemed received when personally delivered or
three (3) days after its deposit in the United States mail as specified above.
Either Party may change its address for notices by giving notice to the other
Party in the manner specified in this section.
10. CHOICE OF LAW.
10.1 This Agreement is made in San Diego, California. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
California.
11. INTEGRATION.
11.1 This Agreement contains the complete, final and exclusive agreement
of the Parties relating to the subject matter of this Agreement, and supersedes
all prior oral and written employment agreements or arrangements between the
Parties.
12. AMENDMENT.
12.1 This Agreement cannot be amended or modified except by a written
agreement signed by Executive and the Company.
13. WAIVER.
13.1 No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the wavier in claimed, and any waiver or any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
14. SEVERABILITY.
14.1 The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court shall have the authority to modify or replace the invalid
or unenforceable term or provision with a valid and enforceable term or
provision which most accurately represents the parties' intention with respect
to the invalid or unenforceable term or provision.
15. INTERPRETATION; CONSTRUCTION.
15.1 The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing the Company, but
Executive has been encouraged, and has consulted with, his own independent
counsel and tax advisors with respect to the terms of this Agreement. The
Parties acknowledge that each Party and its counsel has reviewed and revised, or
had an opportunity to review and revise, this Agreement, and the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
16. REPRESENTATIONS AND WARRANTIES.
16.1 Executive represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing each
of the terms and covenants contained in this Agreement, and that his execution
and performance of this Agreement will not violate or breach any other
agreements between Executive and any other person or entity.
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17. COUNTERPARTS.
17.1 This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the
same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
The Company:
MAXIM PHARMACEUTICALS, INC.
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------------------
Xxxxx X. Xxxxxxxxx
Chairman of the Board, President and Chief
Executive Officer
EXECUTIVE:
/s/ XXXX X. XXXXXXX
---------------------------------------------
Xxxx Xxxxxxx, Ph.D.
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