Exhibit 10.32
EMPLOYMENT AGREEMENT dated as of the date set forth on the signature
page between Xxxx X. Xxxxxxxxx (the "Employee") and DOV Pharmaceutical, Inc., a
New Jersey corporation (the "Company").
WHEREAS, the Company and the Employee desire to enter into this
Employment Agreement to assure the Company of the continued services of the
Employee and to set forth the duties and compensation of the Employee, all upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Employee and the Company hereby agree as follows:
ARTICLE 1
EMPLOYMENT
SECTION 1.01. TERM. Unless sooner terminated pursuant to Article III
hereof, the initial term of this Employment Agreement shall commence on the date
of this Employment Agreement and shall terminate on the date that is one year
thereafter (the "Initial Employment Period"). Unless sooner terminated pursuant
to Article III, the parties may renew this Employment Agreement for one year
(each such one year period hereinafter referred to as a "Renewal Period"; the
Initial Employment Period and all Renewal Periods are hereinafter referred to as
the "Employment Period").
SECTION 1.02. POSITION. The Company shall employ the Employee and the
Employee shall serve as Vice President- Research Services during the Employment
Period.
SECTION 1.03. DUTIES. The Employee share report to the President and
perform faithfully the duties assigned to him or her by the occupant thereof or
any Senior Officer to the best of his or her abilities and devote full business
time and attention to the Company's business as the Executive may reasonably be
expected to be capable of performing on behalf of any subsidiary and affiliate
of the Company as may from time to time be authorized or directed by the CEO.
ARTICLE II
COMPENSATION
SECTION 2.01. BASIC COMPENSATION. As compensation for the Employee's
services hereunder, the Company shall pay to the Employee an annual salary of
$105,000.00 (as adjusted, the "Basic Compensation"), payable in bi-weekly
installments.
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SECTION 2.02. INCENTIVE COMPENSATION. In addition to his Basic
Compensation, the Company shall pay to the Employee incentive compensation
("Incentive Compensation") in the form of performance bonuses as may be
determined in the discretion of the Board upon recommendation of the
Compensation Committee.
SECTION 2.03. OTHER BENEFITS. (a) During the Employment Period, the
Executive shall have the right to participate in the Company's various programs
for the benefit of employees in accordance with their terms and as the same may
be amended or modified from time to time.
(b) The Executive shall be eligible to participate in the Company's
Stock Option Plan and shall receive, initially, options covering 50,000 shares
at an exercise price of $3.68 per share.
(c) The Executive shall be entitled to three weeks of paid vacation in
each calendar year. The Executive shall also be entitled to the same standard
paid holidays given by the Company to senior executives generally, all as
determined from time to time by the Board or appropriate committee thereof.
Vacation time shall cumulate and carry forward from year to year provided that
the Executive shall not be entitled to more than six weeks of vacation in any
one year without the permission of the Board and provided that the Executive
shall coordinate his vacation schedule with the CEO and President.
(d) The Company shall reimburse the Employee for travel or other
expenses or disbursements reasonably incurred or made by him in connection with
the Company's business during the Employment Period upon receipt of reasonable
documentation thereof.
(e) The benefits set forth in this Section 2.03 shall be collectively
referred to as the "Benefits."
ARTICLE III
TERMINATION OF EMPLOYMENT
SECTION 3.01. TERMINATION OF EMPLOYMENT BY COMPANY.
(a) Except as otherwise provided in this Article III and in Article IV,
upon the occurrence of any of the following events, this Employment Agreement
and the rights and obligations of the parties hereunder shall terminate:
(i) "Disability" (as defined in Section 3.05) of the Employee;
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(ii) conduct by the Employee constituting "Cause" (as defined
in Section 3.05).
(b) In the case of termination pursuant to Section 3.01(a)(i), the
Company shall be obligated to pay the Employee and the Employee shall be
entitled to receive, in complete and total satisfaction of the obligations of
the Company hereunder, an amount equal to his or her Basic Compensation,
Incentive Compensation and Benefits for the period commencing on the date of
termination and ending on the date that is three months after the date of
termination. The Basic Compensation, earned but unpaid Incentive Compensation
and Benefits shall be paid in the manner and at the intervals provided in
Article II.
(c) In the case of termination pursuant to Section 3.01(a)(ii), the
Company shall be obligated to pay the Employee and the Employee shall be
entitled to receive, in complete and total satisfaction of the obligations of
the Company hereunder, an amount equal to his or her Basic Compensation earned
but unpaid, Incentive Compensation and Benefits through the date of such
termination.
(d) In the case of termination of the Employee by the Company other
than pursuant to Section 3.01(a)(i) or (ii) or Section 3.02, the Company shall
be obligated to pay the Employee and the Employee shall be entitled to receive,
in complete and total satisfaction of the obligations of the Company hereunder,
an amount equal to the Employee's Basic Compensation, Incentive Compensation and
all amounts to be paid and benefits to be provided pursuant to Article II for
the period commencing on the date of termination and ending on the later of (i)
the date that is three months after the date of such termination and (ii) the
date six months from the date of this Employment Agreement. The Basic
Compensation due to the Employee pursuant to this Section shall be paid in full
on the date of termination of the Employee. The Incentive Compensation and
Benefits shall be paid at the intervals set forth in Article II.
SECTION 3.02. DEATH. In the event of the death of the Employee during
the Employment Period, the Employment Period shall terminate on the date of
death and the Employee's designated beneficiary or, if none, his or her estate
shall be entitled to receive, in complete and total satisfaction of the
Company's obligations hereunder, any accrued and unpaid Basic Compensation,
Incentive Compensation and Benefits, as appropriate, through such date of death
and for a period of 90 days thereafter.
SECTION 3.03. TERMINATION OF EMPLOYMENT BY THE EMPLOYEE. (a) If during
the Employment Period there should occur any of the following events (each of
the following being an event giving the Employee the right to resign for "Good
Reason"): (i) a failure by the Company to provide the Employee with the Basic
Compensation, Incentive Compensation or Benefits, other than a failure that is
not in bad faith and is remedied by the Company within 15 days after receipt of
notice thereof given by the Employee, or (ii) a breach by the Company of any of
the other material
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terms of this Agreement that is not remedied by the Company within 15 days of
notice thereof by the Employee, the Employee may elect to terminate his
employment by notice to the Company (subject to Article IV). If the Employee
exercises such election, the Employment Period shall terminate effective upon
the later to occur of (x) the receipt of such notice by the Company and (y) the
expiration of the 15-day period referred to in Section 3.03(a)(ii) or (iii).
(b) If the Employee exercises his election to terminate the rights and
obligations of the parties pursuant to Section 3.03(a), the Company shall be
obligated to pay the Employee and the Employee shall be entitled to receive in
complete and total satisfaction of the obligations of the Company hereunder, an
amount equal to his or her Basic Compensation, Incentive Compensation and
Benefits for the period commencing on the date of such termination and ending on
the later of (i) the date that is three months after the date of such
termination and (ii) the date that is six months after the date of this
Employment Agreement. The Basic Compensation shall be paid in full on the date
of termination. The Incentive Compensation and Benefits shall be paid at the
intervals set forth in Article II.
(c) If the Employee terminates this Employment Agreement for any reason
other than those contained in Section 3.02 and Section 3.03(a), the rights and
obligations of the parties hereunder shall terminate immediately (except as
otherwise provided in Article IV) and the Employment Period shall terminate
immediately except that the Employee shall be entitled to receive, in complete
and total satisfaction of the obligations of the Company hereunder, his or her
Basic Compensation, Incentive Compensation and Benefits through the date of such
termination.
SECTION 3.04. DEFINITIONS OF CERTAIN TERMS. (a) "Disability" shall mean
any physical or mental condition of the Employee that renders the Employee
incapable of performing any substantial portion of the services contemplated
hereby (as confirmed by competent medical evidence) and that has continued for
at least 90 consecutive business days in any 12 month period or a total of six
months during any twelve month period.
(b) The following shall constitute conduct entitling the Company to
terminate the Employee's employment for "Cause": (i) the Employee's willful
refusal to perform or substantial disregard of the Employee's duties to the
Company that is not cured within 10 days of notice (specifying the failure)
thereof from the Board, (ii) the commission by the Employee of a willful and
material breach of Article IV or (iii) the conviction of any felony by the
Employee (or the equivalent thereof under the laws of any state). If the issue
of "Cause" is litigated in a proceeding in any court or through any means of
alternative dispute resolution and such issue is resolved in the Employee's
favor, then the Company shall reimburse the Employee for all reasonable
attorney's fees, costs and expenses incurred by the Employee in such proceeding.
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ARTICLE IV
NON-COMPETITION; CONFIDENTIAL INFORMATION
SECTION 4.01. NON-COMPETITION (a) Subject to Sections 4.01 (b) and
4.01(c), the Employee shall not engage in any activities, whether as employer,
proprietor, partner, stockholder (other than as the holder of less than 5% of
the stock of a corporation listed on a national securities exchange or in the
National Association of Securities Dealers, Inc. Automated Quotation System
(such a corporation being hereinafter referred to as a "Public Corporation")),
director, employee, consultant or otherwise, of any company with substantially
the same business as or competes directly with the Company in the United States
during the following periods: (i) the Employment Period; and (ii) during any
period after the termination of this Employment Agreement pursuant to Article 3
for which the Employee is being or has been paid.
(b) The Employee shall not be deemed to be in breach of this Employment
Agreement by reason of services performed for a subsidiary or affiliate of the
Company.
SECTION 4.02 NON-INTERFERENCE. During the Employment Period and the
period of non-competition as determined pursuant to Section 4.01(a), the
Employee (i) shall not publicly disparage any of the products, services or
actions of the Company or any of the Company's subsidiaries or affiliates; and
(ii) shall not, whether for his or her own account or for the account of any
other individual, partnership, firm, corporation or other business organization,
solicit, endeavor to entice away from the Company, or otherwise interfere with
the relationship of the Company with any person or entity who is, or was within
the then most recent 12-month period, a customer or client of the Company.
SECTION 4.03. TRADE SECRET. The Employee shall not, at any time during
the Employment Period and for a period of three years thereafter, use (except
for the sole benefit of the Company, the Company's subsidiaries and affiliates)
or, without the written consent of the Board, divulge to any person (other than,
during the Employment Period, an Employee of the Company or any of the Company's
subsidiaries or other person to whom disclosure is reasonably necessary or
appropriate or legally required in connection with the Employee's duties
hereunder) any trade secrets or other confidential information of the Company or
any of its subsidiaries or affiliates, except to the extent that (a) such
information becomes a matter of public record, or is published in a newspaper,
magazine or other periodical available to the general public, in each case,
through no violation of this Employment Agreement by the Employee or (b) such
disclosure is required by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process provided that the Employee shall immediately notify the Company of the
existence, terms and circumstances surrounding such a request so that it may
timely seek an appropriate protective order. When the Employee ceases to be
employed by the Company, the
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Employee shall surrender to the Company all records and documents in any form
obtained by him or entrusted to him during the course of employment hereunder
(together with all copies thereof) which pertain to the business of the Company
or its subsidiaries or affiliates or which were paid for by the Company or any
of the Company's subsidiaries or affiliates provided that the Employee may
retain copies of such documents as may be necessary for the Employee's personal
records for federal income tax purposes or, with the approval of the Board, for
other purposes relating to the Employee's legal affairs, which approval shall
not be unreasonably withheld.
SECTION 4.04. SURVIVAL OF TERMS. The covenants contained in Sections
4.01, 4.02 and 4.03 shall survive the conclusion of the Employee's employment by
the Company in accordance with their respective terms.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. SERVICES AS OFFICER OR DIRECTOR. During the Employment
Period, the Employee shall, if elected or appointed, serve as an officer and/or
director of any current and future subsidiary and affiliate of the Company
without any additional compensation for such services provided that the Employee
shall be provided with reasonable and customary directors' and officers'
liability insurance if any such corporation is or becomes publicly held and
further provided that the Company shall cause any such subsidiary and/or
affiliate to protect, defend and save the Employee harmless from any and all
liability arising out of the performance of the Employee's duties as director
and/or officer.
SECTION 5.02. CONFLICTS. The Employee hereby warrants and represents
that he or she is not under any legal or contractual obligation that would
conflict in any manner with the obligations and duties he or she is undertaking
herein, and that execution of this Employment Agreement shall not breach any
agreement to which he or she is now a party. The Employee further agrees to
reimburse and hold the Company harmless for any costs, damages or fees sustained
or expended by the Company as a result of this untruth of the representations or
breach of warranties contained in this Section 5.03.
SECTION 5.03. RIGHT TO CHANGE BUSINESS. This Employment Agreement and
any rights or privileges granted to the Employee hereunder shall not in any way
prevent the Company or any of the Company's subsidiaries from exercising its
corporate powers to modify, restructure, enlarge, discontinue or otherwise
affect the business operations or activities of such entity.
SECTION 5.04. NOTICES. Any notice or request required or permitted to
be given under this Employment Agreement shall be sufficient if in writing and
delivered
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personally or sent by registered mail, return receipt requested, to the
addresses set forth below or to any other address designated by either party by
notice similarly given. Such notice shall be deemed to have been given upon the
personal delivery thereof or three days after the date of such mailing thereof,
as the case may be.
If to the Employee, to:
00 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
If, to the Company, to:
DOV Pharmaceutical, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
With a copy to:
Xxxxxxxx Xxxxxxxxxx LLP
Seven Xxxxxx Farm Road
Roseland, New Jersey 07068
Attn: Xxxxxx X. Xxxxxxxxxx., Esq.
SECTION 5.05. ASSIGNMENT AND SUCCESSION. The Employee acknowledges that
the services to be rendered by him hereunder are unique and personal.
Accordingly, the Employee may not assign any of his or her rights or delegate
any of his or her duties or obligations under this Employment Agreement. The
rights and obligations of the Company under this Employment Agreement shall
inure to the benefit of and be binding upon its successors and assigns.
SECTION 5.06. HEADINGS. The headings contained in this Employment
Agreement are for convenience of reference only and shall not define or limit
the provisions hereof.
SECTION 5.07. APPLICABLE LAW. This Employment Agreement shall be
interpreted in accordance with, and the rights of the parties hereto, shall be
determined by the laws of the State of New Jersey, without regard to conflict of
law rules. Each party hereby irrevocably consents and submits to the IN PERSONAM
jurisdiction of any court of general jurisdiction in the State of New Jersey
which shall serve as the sole and exclusive forum in any suit, action or
proceeding arising out of or in connection with this Employment Agreement.
SECTION 5.08. WITHHOLDING TAXES. The Company may withhold from any
amounts payable under this Employment Agreement such federal, state or local
taxes as shall be required to be withheld pursuant to any applicable law or
regulations.
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SECTION 5.9. ENTIRE AGREEMENT; AMENDMENTS. This Employment Agreement
contains the entire understanding of the parties hereto with regard to the
subject matter contained herein, and supersedes all prior agreements,
understandings or intents between the parties hereto or any related parties.
This Employment Agreement may be amended, modified or supplemented only pursuant
to Section 4.04 or by a writing signed by both parties hereto.
SECTION 5.10. WAIVERS. Any term or provisions of this Employment
Agreement may be waived, or the time for its performance may be extended, by the
party or parties entitled to the benefits thereof but only to the extent
evidenced by a writing executed by such party. The failure of any party hereto
to enforce at any time any provision of this Employment Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect the
validity of this Employment Agreement or any part hereof or the right of any
party thereafter to enforce each and every such provision. No waiver of any
breach of this Employment Agreement shall be held to constitute a waiver of any
other or subsequent breach.
SECTION 5.11. PARTIAL INVALIDITY. Wherever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect and cannot be modified in accordance with Section 4.04, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Employment Agreement, and this Employment Agreement shall be construed as if
such invalid, illegal or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause the remaining terms hereof to be
unreasonable.
SECTION 5.12. EXECUTION OF COUNTERPARTS. This Employment Agreement may
be executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties and delivered to each of the parties.
IN WITNESS WHEREOF, the Company has caused this Employment Agreement to
be signed by its duly authorized officer and the Employee has signed this
Employment Agreement intending to be legally bound.
DOV Pharmaceutical, Inc.
by: /s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
Employee: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Xxxx X. Xxxxxxxxx
Dated: July 12, 1999
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January 23, 2002
Xxxx Xxxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
RE: EXTENSION OF EMPLOYMENT AGREEMENT
Dear Xx. Xxxxxxxxx:
This will confirm the extension of your July 12, 1999, Employment
Agreement with DOV Pharmaceutical, Inc. through July 12, 2002. All terms and
conditions therein shall remain in full force and effect, except for the
increase of your base compensation to $145,000 per year.
Sincerely,
/s/ Xxxxxx Xxxxx.
------------------------
Xx. Xxxxxx Xxxxx
Chief Executive Officer
ACKNOWLEDGED AND AGREED:
/s/ Xxxx Xxxxxxxxx
------------------------
Xxxx Xxxxxxxxx
