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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as
of October 21, 1998 by and between MenoMorphosis, LLC, a California limited
liability company (the "Company"), and Xxxxx X. Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Employee desires to be employed by the Company under the
terms and conditions of this Agreement, which is being entered into in
connection with the consummation of the sale of all the outstanding membership
interests in the Company by the holders thereof, including Employee, pursuant to
the Purchase Agreement dated as of October 21, 1998 (the "Purchase Agreement");
and
WHEREAS, immediately following the closing of the acquisition of
the membership interests of the Company, the Company will be merged with As We
Change, LLC, a Delaware limited liability company; and
WHEREAS, the Company (and As We Change, LLC, as assignee of the
Company) wish to secure the employment of Employee, and Employee wishes to
accept such employment, for the period and on the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment.
(a) The Company hereby employs Employee as the Vice President of
the Company, and Employee hereby accepts such employment, on the terms and
subject to the conditions hereinafter set forth. Before the date of this
Employment Agreement, Employee was one of the three managers of the Company,
having substantial responsibility for the business affairs of the Company.
Subject to the Operating Considerations set forth in Annex IV of the Purchase
Agreement, Employee shall continue to have similar responsibilities and
authority, under the general supervision of the President and Chief Executive
Officer of Women First HealthCare, Inc., a Delaware corporation (the "Parent"),
the beneficial owner of all the outstanding membership interests in the Company,
and such other duties, responsibilities and authority as may be specified from
time to time by the Chief Executive Officer of Parent. One of Employee's
significant responsibilities shall be to continue to work with the other
officers of the Company to achieve the Performance Goals (as defined in the
Purchase Agreement). Employee shall discharge her duties and responsibilities in
a diligent and professional manner. Employee shall be a member of the Company's
Board of Directors, as re-constituted following the acquisition of all of the
membership interests of the Company by Parent and from time to time thereafter.
(b) Employee shall be required to devote substantially all of her
business time, attention and efforts to the Company's business and affairs.
Notwithstanding the foregoing, this shall not preclude Employee from serving on
community and civic boards, participating in industry associations, or otherwise
engaging in other activities which do not unreasonably interfere with her duties
to the Company. Employee may have occasion to directly or indirectly promote the
Company, the Parent or mid-life women's health in a variety of ways, including
but not limited to, authoring books or articles,
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giving speeches or lectures, hosting television, radio or Internet programs, or
making other public appearances, which in each case do not unreasonably
interfere with her duties to the Company. Employee shall not, without the prior
written consent of Parent, engage in any activity adverse to the interests of
the Company.
2. Term. Subject to the provisions for termination hereinafter
provided, the term of this Agreement shall begin on the date hereof, and shall
expire on the third anniversary of the date hereof, unless sooner terminated as
provided herein (the "Term").
3. Compensation.
(a) Throughout the Term, the Company shall pay to Employee a
"Base Salary," payable in accordance with the Company's usual pay practices (and
in any event no less frequently than monthly), as follows: (i) from the date
hereof until December 31, 1998, $100,000 per annum; (ii) from January 1, 1999
until December 31, 1999, $125,000 per annum; and (iii) from January 1, 2000
until the expiration of this Agreement, $140,000 per annum, which shall be
subject to increase after January 1, 2001 upon review at the sole discretion of
the Chief Executive Officer of Parent.
(b) Employee shall be entitled to be reimbursed for all
reasonable business-related expenses incurred by her in accordance with policies
adopted from time to time by the Company.
(c) Employee shall receive employment benefits comparable to
those provided to employees of the Parent of similar rank and position,
including but not limited to, health insurance, vacation benefits, sick leave,
stock options (subject to the discretion of the Compensation Committee of the
Parent's Board of Directors) and retirement plan opportunities.
(d) Employee shall receive a grant of employee stock options to
purchase 35,000 shares of Parent's common stock, at a purchase price of $0.51
per share, with such grant being subject to the approval of the Compensation
Committee of the Board of Directors of Parent and to the terms of Parent's Long
Term Incentive Plan. The stock options will vest over four (4) years, with
one-fourth of such options becoming exercisable on the first anniversary of the
date of this Agreement and the balance of such options vesting ratably over the
next three years on a daily basis.
4. Termination.
(a) Until this Agreement concludes at the expiration of the Term,
Employee's employment under this Agreement and the Term shall be terminated
immediately on the death of Employee, and may be terminated earlier by the
Company:
(i) at any time after the Permanent Disability of Employee;
(ii) at any time for "Cause" (as defined below) by action
of Parent; or
(iii) at any time for any reason other than Employee's
death, Permanent Disability or for Cause.
For purposes hereof, Cause shall mean (1) repeated and habitual
failure to perform her duties or obligations hereunder, (2) engaging in any act
that has a substantial and adverse effect on the Company's or Parent's
interests, (3) personal dishonesty, willful misconduct or breach of fiduciary
duty involving personal benefit, (4) the failure in any material respect to
perform her designated duties and responsibilities, as determined by the Chief
Executive Officer and Board of Directors of Parent, (5)
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willful violation of any law, rule or regulation which materially adversely
affects her ability to discharge her duties or has a substantial and adverse
effect on the Company's or Parent's interests, (6) any material breach of this
Agreement, or (7) conduct authorizing termination under California Labor Code
Section 2924.
For purposes hereof, Employee's "Permanent Disability" shall be
deemed to have occurred one day after one hundred twenty (120) days in the
aggregate during any consecutive twelve (12) month period or one day after
ninety (90) consecutive days, during which period Employee, by reason of her
physical or mental disability or illness, shall have been unable to discharge
fully her duties under this Agreement.
(b) Termination by Death. If Employee's employment is terminated
by death, Employee's estate shall be entitled to receive salary and other
benefits accrued by her hereunder up to and including the date of Employee's
death, payable within thirty (30) days after the date of death.
(c) Termination for Cause or Permanent Disability. If Employee's
employment is terminated by the Company for Cause or for Permanent Disability,
the Company shall not have any other or further obligations to Employee under
this Agreement (except as to that portion of any unpaid Base Salary and other
benefits accrued and earned under this Agreement through the date of such
termination).
(d) Termination without Cause. If Employee's employment is
terminated by the Company at any time for any reason other than Employee's
death, Permanent Disability or for Cause, Employee shall be entitled to receive
that portion of any unpaid Base Salary and other benefits accrued and earned
under this Agreement through the date of such termination, together with
severance compensation equal to Employee's Base Salary under Section 3(a),
payable at such times as her Base Salary would have been paid if her employment
had not been terminated for the remainder of the Term.
(e) Termination for Good Reason. Until this Agreement concludes
at the expiration of the Term, Employee's employment with the Company may be
terminated earlier by the Employee for "Good Reason," upon fifteen (15) days'
prior written notice. If Employee's employment is terminated by Employee for
Good Reason, the Company shall not have any other or further obligations to
Employee under this Agreement (except as to that portion of any unpaid Base
Salary and other benefits accrued and earned under this Agreement through the
date of such termination). For purposes hereof, Employee shall be deemed to have
"Good Reason" if (i) Employee is required by the Company to relocate outside of
San Diego County in connection with her continued employment by the Company, or
(ii) if there occurs a significant diminution in the duties and responsibilities
of Employee.
5. Miscellaneous.
(a) The provisions of this Agreement are severable and if any one
or more provisions may be determined to be illegal or otherwise unenforceable,
in whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction nevertheless shall be
binding and enforceable.
(b) The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding on, the Company
and its successors and assigns, including without limitation, As We Change, LLC,
and the rights and obligations (other than obligations to perform services) of
Employee under this Agreement shall inure to the benefit of, and shall be
binding upon, Employee and her heirs, personal representatives and assigns.
Employee hereby consents to the assignment of this Agreement to As We Change,
LLC in connection with the merger of the Company with As We Change, LLC. After
such assignment, all of the Company's rights and obligations under this
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Agreement shall be the responsibility of and accrue to the benefit of As We
Change, LLC, and all references in this Agreement to the Company shall be deemed
to refer to As We Change, LLC.
(c) All notices and other communications required or permitted
under this Agreement shall be in writing, and shall be deemed properly given if
delivered personally, mailed by registered or certified mail in the United
States mail, postage prepaid, return receipt requested, sent by facsimile, or
sent by Express Mail, Federal Express or other nationally recognized express
delivery service, as follows:
If to the Company:
Women First HealthCare, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
If to Employee:
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Notice given by hand, certified or registered mail, or by Express Mail,
Federal Express or other such express delivery service, shall be effective upon
actual receipt. Notice given by facsimile transmission shall be effective upon
actual receipt if received during the recipient's normal business hours, or at
the beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery. Any party may change any address to which
notice is to be given to it by giving notice as provided above of such change of
address.
(d) The failure of either party to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
(e) This Agreement supersedes all prior or contemporaneous
agreements and understandings between the parties and may not be modified or
terminated orally. No modification or attempted waiver shall be valid unless in
writing and signed by the party against whom the same is sought to be enforced.
(f) This Agreement shall be governed by, and construed in
accordance with the provisions of, the law of the State of California, without
regard to the conflicts of laws principles thereof.
(g) All payments required to be made by the Company hereunder to
Employee shall be subject to the withholding of such amounts relating to taxes
and other government assessments as the Company may reasonably determine it
should withhold pursuant to any applicable law, rule or regulation.
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(h) Concurrently with the execution of this Agreement, Employee
will execute and deliver to the Company the Proprietary Information and
Inventions Agreement in the standard form used by Parent with its employees.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement on
the day and year first set forth above.
MENOMORPHOSIS, LLC
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: President
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EMPLOYEE
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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