ADVANCIS PHARMACEUTICAL CORPORATION EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.3
ADVANCIS PHARMACEUTICAL CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made this 1st day of July 2004 by and between Xxxxx X. Xxxxx, Xx., a resident of Frederick, Maryland (the “Employee”), and Advancis Pharmaceutical Corporation, a corporation organized and existing under the laws of the State of Delaware (the “Company”).
The Company is engaged in the business of developing, improving and promoting antibiotic therapies and the delivery and dosage of antibacterials, as well as extending the market and patent life of important anti-infectives and oncology (as may be modified or expanded by the Company during the term of this Agreement, collectively and individually, the “Business”).
The Company desires to employ the Employee and the Employee desires to be employed by the Company, upon the terms and conditions set forth in this Agreement.
(a) The Employee shall be entitled to participate in any retirement, health or dental programs generally made available to executive employees of the Company.
(b) The Employee shall be entitled to participate in all vacation, life and disability insurance and other fringe benefit programs of the Company to the extent and on the same terms and conditions as are accorded to other executive employees of the Company.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 2 of 14 |
documented and submitted to the Company, all in accordance with the reimbursement policies of the Company as in effect from time to time.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 3 of 14 |
whatsoever, except as may be necessary in the discharge of the assigned duties and shall not divulge to any third person the nature of and/or contents of any of the foregoing or of any other oral or written information to which he may have access or with which for any reason he may become familiar, except as disclosure shall be necessary in the performance of the duties; and upon the termination of his employment with the Company, the Employee shall return to the Company all originals and copies of the foregoing then in his possession or under his control, whether prepared by the Employee or by others.
(a) The Employee acknowledges that all right, title and interest in and to any and all writings, documents, inventions, discoveries, ideas, developments, information, computer programs or instructions (whether in source code, object code, or any other form), algorithms, formulae, plans, memoranda, tests, research, designs, innovations, systems, analyses, specifications, models, data, diagrams, flow charts, and/or techniques (whether patentable or non-patentable or whether reduced to written or electronic form or otherwise) that the Employee creates, makes, conceives, discovers or develops, either solely or jointly with any other person, at any time during the Term, whether during working hours or at the Company’s facility or at any other time or location, and whether upon the request or suggestion of the Company or otherwise, (collectively, “Intellectual Work Product”) shall be the sole and exclusive property of the Company. The Employee shall promptly disclose to the Company all Intellectual Work Product, and the Employee shall have no claim for additional compensation for the Intellectual Work Product, except for any excluded Intellectual Work Product that is wholly unrelated to the pharmaceutical industry, in the broadest sense, provided that such Intellectual Work Product is not conceived, discovered or developed, either solely or jointly with any other person during working hours or at the Company’s facility or using any other Company resource.
(b) The Employee acknowledges that all the Intellectual Work Product that is copyrightable shall be considered a work made for hire under United States Copyright Law. To the extent that any copyrightable Intellectual Work Product may not be considered a work made for hire under the applicable provisions of the United States Copyright Law, or to the extent that, notwithstanding the foregoing provisions, the Employee may retain an interest in any Intellectual Work Product, the Employee hereby irrevocably assigns and transfers to the Company any and all right, title, or interest that the Employee may have in the Intellectual Work Product under copyright, patent, trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company shall be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, and trademarks with respect thereto.
(c) The Employee shall reveal promptly all information relating to any such Intellectual Property to the Board of Directors of the Company, and, at the Company’s expense, shall cooperate with the Company and execute such documents as may be necessary or appropriate (i) in the event that the Company desires to seek copyright, patent or trademark protection, or other analogous protection, thereafter relating to the Intellectual Work Product, and when such protection is obtained, renew and restore the same, or (ii) to defend any
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 4 of 14 |
opposition proceedings in respect of obtaining and maintaining such copyright, patent or trademark protection, or other analogous protection.
(d) In the event the Company is unable after reasonable effort to secure the Employee’s signature on any of the documents referenced in Section 6.2 (c) hereof, whether because of the Employee’s physical or mental incapacity or for any other reason whatsoever, the Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Employee’s agent and attorney-in-fact, to act for and on the behalf and stead to execute and file any such documents and to do all other lawfully permitted acts to further the prosecution and issuance of any such copyright, patent or trademark protection, or other analogous protection, with the same legal force and effect as if executed by the Employee.
(e) The Employee represents that the innovations, designs, systems, analyses, ideas, and all copyrights, patents, trademarks and trade names, or similar intangible personal property (collectively, the “Pre-existing Property”) identified on Schedule I hereof comprise all of the innovations, designs, systems, analyses, ideas and all copyrights, patents, trademarks and trade names, or similar intangible personal property that the Employee has made or conceived of prior to the date hereof, and same are excluded from the operation of the other provisions of this Section 6.2. In the event that the Employee learns of any Pre-existing Property that he inadvertently failed to include in Schedule I, and the circumstances surrounding the failure of such inclusion are reasonably satisfactory to the Company, the Employee and the Company shall jointly amend Schedule I to include such property.
(a) engage or participate, directly or indirectly, in any business activity competitive with the Business or the business of the Company or any of the Company’s subsidiaries or affiliates as conducted during the Term;
(b) become interested (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise) in any person, firm, corporation, association or other entity engaged in any business that is competitive with the Business or of the business of the Company or any subsidiary or affiliate of the Company as conducted during the Term, or become interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise) any portion of the business of any person, firm, corporation, association or other entity where such portion of such business is competitive with the Business of the Company or the business of any subsidiary or affiliate of the Company as conducted during the Term (notwithstanding the foregoing, the
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 5 of 14 |
Employee may hold not more than one percent (1%) of the outstanding securities of any class of any publicly-traded securities of a company that is engaged in activities referenced in this Section 7.1.
(c) solicit, call on or transact or engage in any business activity with, either directly or indirectly, any (i) customer with whom the Company shall have dealt at any time during the one (1) year period immediately preceding the termination of the Employee’s employment hereunder, or (ii) corporate partner, collaborator, independent contractor or supplier with whom the Company shall have dealt at any time during the one (1) year period immediately preceding the termination of the Employee’s employment hereunder;
(d) influence or attempt to influence any then current or prospective supplier, customer, corporate partner, collaborator, or independent contractor of the Company to terminate or modify any written or oral agreement or course of dealing with the Company; or
(e) influence or attempt to influence any person either (i) to terminate or modify an employment, consulting, agency, distributorship or other arrangement with the Company, or (ii) to employ or retain, or arrange to have any other person or entity employ or retain, any person who has been employed or retained by the Company as an employee, consultant, agent or distributor of the Company at any time during the one (1) year period immediately preceding the termination of the Employee’s employment hereunder.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 6 of 14 |
(a) Termination for Disability.
(i) In the event of the disability of the Employee such that the Employee is unable to perform the duties and responsibilities hereunder to the full extent required by this Agreement by reasons of illness, injury or incapacity for a period of more than one hundred eighty (180) consecutive days or more than one hundred eighty (180) days, in the aggregate, during any three hundred sixty-five (365) day period (“Disability”), the Company shall have the right to terminate Employee’s employment hereunder by written notice to the Employee.
(ii) In the event of a termination of the Employee’s employment hereunder pursuant to Section 8.1(a)(i), the Employee will be entitled to receive all accrued and unpaid (as of the date of such termination) Salary and applicable Benefits; provided that the Employee has complied with all of his obligations under this Agreement and continues to comply with all of his surviving obligations hereunder listed in Section 10 and a pro-rata percentage of the bonus (provided in Section 4.2) for the last fiscal year of the Company prior to the date of Employee’s termination. Except as specifically set forth in this Section 8.1(a)(ii) or as provided by applicable law, the Company shall have no liability or obligation to the Employee for compensation or benefits hereunder by reason of, or subsequent to, such termination.
(a) The Company shall have the right to terminate the Employee’s employment hereunder at any time for “cause” upon written notice to the Employee. For purposes of this Agreement, “cause” shall mean the Employee’s (including, if the Employee is not a natural person, any employee of or contractor to the Employee who is involved, directly or indirectly, in the provision of services to the Corporation) (a) dishonesty, embezzlement, theft or fraudulent misconduct; (b) abuse of a controlled substance that materially impairs the performance of the Employee’s duties to the Corporation; (c) conduct adverse to the business, interests, or reputation of the Corporation; (d) material breach of any of the terms hereof or of any agreement between the Corporation and the Employee, (including, but not limited to, terms relating to non-disclosure, non-competition and invention assignment) which, if curable, remains
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 7 of 14 |
uncured thirty (30) days after the Employee receives written notice of such breach; or (e) commission of a felony.
8.3 Termination by the Company Without Cause.
(a) Notwithstanding anything to the contrary set forth herein, the Company shall have the right to terminate the Employee’s employment hereunder at any time, for any reason or no reason, with or without cause, effective upon the date designated by the Company upon written notice to the Employee.
(b) In the event of a termination of the Employee’s employment hereunder pursuant to Section 8.3(a), the Employee shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Salary; a pro-rata percentage of the bonus (provided in Section 4.2) for the last fiscal year of the Company prior to the date of the Employee’s termination; and the severance payments and Benefits in the manner set forth in Section 8.4; provided that the Employee has complied with all of his obligations under this Agreement and continues to comply with all of his surviving obligations hereunder listed in Section 10. All Salary shall cease at the time of such termination, except as required under applicable law. Except as specifically set forth in this Section 8.3, the Company shall have no liability or obligation hereunder by reason of or subsequent to such termination.
(a) In the event of the termination of the Employee’s employment under Section 8.3 the Employee shall be entitled to severance pay in an amount equal to twenty-four (24) months of Salary, subject to all withholding obligations, calculated on the basis of the Salary in effect at the date of termination and paid in the same manner as Salary was then paid hereunder.
(b) The Employee shall be entitled to receive all Benefits to which he was entitled on the date preceding his termination for the period of time during which he is entitled to receive severance pay hereunder.
(c) Except as provided in subsections (a) and (b) above, the Company shall have no liability or obligation by reason of or subsequent to the termination of the employment relationship between the Company and the Employee.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 8 of 14 |
9. Representations, Warranties and Covenants of the Employee.
9.1 Restrictions. The Employee represents and warrants to the Company that:
(a) There are no restrictions, agreements or understandings whatsoever to which the Employee is a party which would prevent or make unlawful the Employee’s execution of this Agreement or the Employee’s employment hereunder, or which is or would be inconsistent or in conflict with this Agreement or the Employee’s employment hereunder, or, except as set forth in any agreements previously provided to the Company, would prevent, limit or impair in any way the performance by the Employee of the obligations hereunder; and
(b) The Employee has disclosed to the Company all restraints, confidentiality commitments or other employment restrictions that he has with any other employer, person or entity.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 9 of 14 |
such other address designated by notice in the manner provided in this section. Such notice shall be deemed to have been received upon the date of actual delivery if personally delivered or, in the case of mailing, two (2) days after deposit with the U.S. mail, or, in the case of facsimile transmission, when confirmed by the facsimile machine report.
(a) | if to the Company, to: | |
Advancis Pharmaceutical Corporation | ||
00000 Xxxxxx Xxxxxxx Xxxxxxx | ||
Xxxxxxxxxx, Xxxxxxxx 00000 | ||
Attention: Human Resources | ||
Facsimile: (000) 000-0000 | ||
with a copy to: | ||
Xxxxxx Xxxxxxxx, Esquire | ||
Xxxxx Xxxxxxx LLP | ||
0000 Xxxxx Xxxxxx | ||
Xxxxxxxxx, Xxxxxxxx 00000-0000 | ||
Facsimile: (000) 000-0000 |
(b) | if to the Employee, to: | |
Xxxxx X. Xxxxx, Xx. | ||
0000 Xxxxxxx Xxxxx | ||
Xxxxxxxxx, XX 00000 |
15. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of laws of any jurisdiction.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 10 of 14 |
Agreement shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such amendment to apply only to the operation of such provision in the particular jurisdiction in which such adjudication is made; provided that, if any provision contained in this Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to be excessively broad as to duration, geographic scope, activity or subject, such provision shall be deemed amended by limiting and reducing it so as to be valid and enforceable to the maximum extent compatible with the applicable laws of such jurisdiction, such amendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the adjudication is made.
18. Number of Days. In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and legal holidays; provided that, if the final day of any time period falls on a Saturday, Sunday or day which is a legal holiday in Delaware or Maryland, then such final day shall be deemed to be the next day which is not a Saturday, Sunday or legal holiday.
20. Consent to Suit. Subject to the provisions of Section 21 hereof, any legal proceeding arising out of or relating to this Agreement shall be instituted in the Court of Chancery of New Castle County, or if such court does not have jurisdiction or will not accept jurisdiction, in any state or federal court of general jurisdiction in the State of Delaware, and each of the Company and the Employee hereby consents to the personal and exclusive jurisdiction of such court and hereby waives any objection that either party may have to the laying of venue of any such proceeding and any claim or defense of inconvenient forum. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorneys’ fees, costs and disbursements.
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 11 of 14 |
dispute arises, to be governed by the evidentiary and procedural rules of the American Arbitration Association (Commercial Arbitration). Employee and Company shall mutually select one (1) arbitrator within ten (10) days after a dispute is submitted to arbitration. In the event that the parties do not agree on the identity of the arbitrator within such period, the arbitrator shall be selected by the American Arbitration Association. The arbitrator shall hold a hearing on the dispute in Wilmington, Delaware within thirty (30) days after having been selected and shall issue a written opinion within fifteen (15) days after the hearing. The arbitrator shall also decide on the allocation of the costs of the arbitration to the respective parties, but Employee and Company shall each be responsible for paying the fees of their own legal counsel, if legal counsel is obtained. Either Employee or Company, or both parties, may file the decision of the arbitrator as a final, binding and unappealable judgment in a court of appropriate jurisdiction. Notwithstanding the foregoing provisions of this Section 21 to the contrary, matters in which an equitable remedy or injunctive relief is sought by a party, including but not limited to the remedies referred to in Section 19 hereof, shall not be required to be submitted to arbitration, if the party seeking such remedy or relief objects thereto, but shall instead be subject to the provisions of Sections 19 and 20 hereof.
[SIGNATURES ON FOLLOWING PAGE]
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 12 of 14 |
IN WITNESS WHEREOF, the parties have caused this Executive Employment Agreement to be executed the day and year first written above.
ADVANCIS PHARMACEUTICAL CORPORATION | ||||
By: | /s/ Xxxxxx X. Xxxxxx, Ph.D. | |||
Xxxxxx X. Xxxxxx, Ph.D. | ||||
Chairman & CEO | ||||
/s/ Xxxxx X. Xxxxx, Xx. | ||||
Xxxxx X. Xxxxx, Xx. |
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 13 of 14 |
Schedule I
Preexisting Property:
Employee Name: Xxxxx X. Xxxxx, Xx. | Employment Agreement Ver. 01/2003 | |
Dated July 1, 2004 | Page 14 of 14 |