Exhibit 10.9
OCULEX PHARMACEUTICALS, INC.
KEY EMPLOYEE AGREEMENT
FOR
XXXXXX X. XXXXX
Oculex Pharmaceuticals, Inc., a California corporation (the "Company")
agrees with you as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 The Company will employ you and you shall serve in an executive
capacity as Chief Executive Officer and perform the duties customarily
associated with such capacity from time to time and at such place or places as
the Company shall reasonably designate or as shall be reasonably appropriate and
necessary in connection with such employment.
1.2 Subject to Section 4 below, you will, to the best of your ability,
devote your full time and best efforts to the performance of your duties
hereunder and the business and affairs of the Company. You agree to serve as a
director and/or officer of the Company if elected by the shareholders and the
Board, as the case may be, and to perform such executive duties as may be
assigned to you by the Company's Board of Directors from time to time. The
Company shall use its best efforts to elect you to the Company's Board of
Directors for so long as you hold the position of Chief Executive Officer. You
will be assigned such facilities and support staff as are customarily associated
with the position of Chief Executive Officer. You will report to the Company's
Board of Directors and all of the employees of the Company will report to you.
1.3 You will duly, punctually and faithfully perform and observe any
and all rules and regulations which the Company may now or shall hereafter
establish governing the conduct of its business, except to the extent that such
rules and regulations may be inconsistent with your executive position.
2. TERM OF EMPLOYMENT; TERMINATION.
2.1 The effective date of this Agreement is March 8, 2000.
2.2 Unless otherwise mutually agreed in writing, this Agreement and
your employment by the Company pursuant to this Agreement shall be terminated on
the earliest of:
(a) your death, or any illness, disability or other incapacity
in such a manner that you are physically rendered unable regularly to perform
your duties
1.
hereunder for a period in excess of one hundred twenty (120) consecutive days
or more than one hundred eighty (180) days in any consecutive twelve (12)
month period;
(b) thirty (30) days after you, for any reason, give written
notice to the Company of your termination;
(c) thirty (30) days after the Company, with or without cause,
gives written notice to you of your termination; and
(d) five (5) years from the date hereof.
2.3 The determination regarding whether you are physically unable
regularly to perform your duties under (a) above shall be made by the Board
of Directors. Your inability to be physically present on the Company's
premises shall not constitute a presumption that you are unable to perform
such duties.
2.4 Any notice required to be given pursuant to this Section 2
shall be given in accordance with the provisions of Section 10 hereof. The
exercise of either party's right to terminate this Agreement pursuant to
subsections (b) or (c) above shall not abrogate the rights and remedies of
the terminating party regarding the breach, if any, giving rise to such
termination.
2.5 You may be terminated for cause if, in the reasonable
determination of the Company's Board of Directors, you are convicted of any
felony or of any crime involving moral turpitude, or participate in any fraud
against the Company, or willfully breach your duties to the Company, or
wrongfully disclose any trade secrets or other confidential information of
the Company, or materially breach Section 4 of this Agreement or any material
provision of the Employee Proprietary Information Agreement, between you and
the Company (the "Proprietary Information Agreement").
3. COMPENSATION:
3.1 The Company shall pay to you for the services to be rendered
hereunder a basic salary at an annual rate of one hundred eighty-five
thousand dollars ($185,000) prior to the effective date of the Company's
first firm commitment underwritten public offering of its common stock
registered under the Securities Act of 1933, as amended (the "Initial
Offering"), and one hundred ninety-five thousand dollars ($195,000) effective
as of the Initial Offering, subject to increase in accordance with the
policies of the Company, as determined by its Board of Directors, in force
from time to time, payable in installments in accordance with Company policy.
You shall also be entitled to all rights and benefits for which you shall be
eligible under bonus, pension, group insurance, long-term disability, life
insurance, profit-sharing or other Company benefits which may be in force
from time to time and provided to you or for the Company's employees
generally. Without limiting the foregoing, you will be eligible for an annual
bonus as determined in the sole discretion of the Company's Board of
Directors of up to thirty percent (30%) of your base salary.
2.
3.2 You shall be entitled to three (3) weeks annual paid vacation.
You shall be entitled to illness days during the term of this Agreement
consistent with the Company's standard practice for its employees generally.
3.3 In the event you are terminated without cause pursuant to
Section 2.2(c) hereof, (i) the Company shall continue to pay your salary as
provided in 3.1 above then in effect for a period of nine (9) months
following any such termination.
4. OTHER ACTIVITIES DURING EMPLOYMENT.
4.1 Except with the prior written consent of the Company's Board of
Directors, you will not during the term of this Agreement undertake or engage
in any other employment, occupation or business enterprise, other than ones
in which you are a passive investor. The Company and you agree that you may
devote up to ten percent (10%) of your time to family business matters, so
long as such activities are not adverse to the best interests of the Company.
You may engage in civic and not-for-profit activities so long as such
activities do not materially interfere with the performance of your duties
hereunder.
4.2 Except as permitted by Section 4.3, you will not acquire,
assume or participate in, directly or indirectly, any position, investment or
interest known by you to be adverse or antagonistic to the Company, its
business or prospects, financial or otherwise.
4.3 During the term of your employment by the Company except on
behalf of the Company, you will not directly or indirectly, whether as an
officer, director, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage in, become
financially interested in, be employed by or have any business connection
with any other person, corporation, firm, partnership or other entity
whatsoever which were known by you to directly compete with the Company,
throughout the world, in any line of business engaged in (or planned to be
engaged in) by the Company; provided, however, that anything above to the
contrary notwithstanding, you may own, as a passive investor, securities of
any competitor corporation, so long as your direct holdings in any one such
corporation shall not in the aggregate constitute more than 1% of the voting
stock of such corporation.
5. FORMER EMPLOYMENT.
5.1 You represent and warrant that your employment by the Company
will not conflict with and will not be constrained by any prior employment or
consulting agreement or relationship. You represent and warrant that you do
not possess confidential information arising out of prior employment which,
in your best judgment, would be utilized in connection with your employment
by the Company, except in accordance with agreements between your former
employer and the Company.
5.2 If, in spite of the second sentence of Section 5.1, you should
find that confidential information belonging to any former employer might be
usable in connection with the Company's business, you will not intentionally
disclose to the Company or use on behalf of the Company any confidential
information belonging to any
3.
of your former employers (except in accordance with agreements between the
Company and any such former employer); but during your employment by the
Company you will use in the performance of your duties all information which
is generally known and used by persons with training and experience
comparable to your own and all information which is common knowledge in the
industry or otherwise legally in the public domain.
6. PROPRIETARY INFORMATION AND INVENTIONS. You agree to be bound by
the provisions of the Proprietary Information Agreement.
7. REMEDIES. Your duties under the Proprietary Information Agreement
shall survive termination of your employment with the Company. You
acknowledge that a remedy at law for any breach or threatened breach by you
of the provisions of the Proprietary Information Agreement would be
inadequate and you therefore agree that the Company shall be entitled to
injunctive relief in case of any such breach or threatened breach.
8. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned by the Company or by you.
9. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
10. NOTICES. Any notice which the Company is required or may desire to
give you shall be given by personal delivery or registered or certified mail,
return receipt requested, addressed to you at the address of record with the
Company, or at such other place as you may from time to time designate in
writing. Any notice which you are required or may desire to give to the
Company hereunder shall be given by personal delivery or by registered or
certified mail, return receipt requested, addressed to the Company at its
principal office, or at such other office as the Company may from time to
time designate in writing. The date of personal delivery or the date of
mailing any such notice shall be deemed to be the date of delivery thereof.
11. WAIVER. If either party should waive any breach of any provisions
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
12. COMPLETE AGREEMENT; AMENDMENTS. The foregoing, together with the
Proprietary Information Agreement, is the entire agreement of the parties
with respect to the subject matter hereof and thereof and may not be amended,
supplemented, canceled or discharged except by written instrument executed by
both parties hereto.
4.
13. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
14. ATTORNEY FEES. If either party hereto brings any action to enforce
its rights hereunder, the prevailing party in any such action shall be
entitled to recover his or its reasonable attorneys' fees and costs incurred
in connection with such action.
OCULEX PHARMACEUTICALS, INC.
A CALIFORNIA CORPORATION
By: /s/ Xxxxx X. Xxx
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Xx. Xxxxx X. Xxx
Date: March 8, 2000
Accepted and agreed this
8th day of March, 2000.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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