EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered
into as of July 1, 2004, by and between Bionovo, Inc., a Delaware corporation
(the "COMPANY"), and Xxxx Xxxxxxxxxxx ("EXECUTIVE"). The parties agree as
follows:
1. START DATE; TERM. This Agreement will be effective as of the date of
this Agreement, and the Executive's "TERM OF EMPLOYMENT" (as defined
below) will commence as of the date of this Agreement (the "START
DATE").
2. POSITION AND DUTIES.
A. POSITION; DUTIES. The Company employs Executive as MEDICAL
DIRECTOR AND CHIEF REGULATORY OFFICER (the "POSITION")
commencing as of the Start Date for the TERM OF EMPLOYMENT.
Executive shall have the powers and shall perform the services
and duties that are customarily associated with the Position
(the "COMPANY MATTERS"). Executive shall comply with the
Company's policies and rules, as they may be in effect from time
to time during the Term of Employment with the Company.
Executive agrees to devote substantially all of Executive's
time, energy and ability to the business of the Company.
Executive may devote such time that the Executive deems
appropriate for managing Executive's own investment portfolio
and may with the consent of the Company be a member of the Board
of Directors of non-profit, civic or charitable organizations so
long as it does not materially interfere or conflict with the
Position. Executive shall not engage in any conduct that is
actually in direct conflict with the essential
enterprise-related interests of the Company or its affiliates
for which Executive performs services, and Executive
acknowledges and agrees that a breach of this provision will
cause a material and substantial disruption of the Company's or
its affiliates' business. Executive shall perform the duties
assigned to Executive to the best of Executive's ability and in
the best interests of Company. Executive, in Executive's
capacity as an employee and officer of the Company, will report
to, and be responsible to and obey the reasonable and lawful
directives of, the Board of Directors of the Company (the
"BOARD"). Notwithstanding the foregoing, Executive's Position
will not be changed, and Executive's duties will not be
materially reduced, without the consent of Executive except (i)
pursuant to a termination as set forth in SECTION 5 or (ii) to
another senior executive officer level position of the Company,
with senior executive officer level responsibilities, as
determined by the Board.
B. PRINCIPAL EXECUTIVE OFFICES. Executive's principal executive
office will be located in EMERYVILLE, CALIFORNIA and WILL NOT BE
MOVED WITHOUT THE WRITTEN CONSENT OF EXECUTIVE.
3. COMPENSATION.
A. BASE SALARY. The Company will pay to Executive a base salary at
the annual rate of $180,000, less standard withholding and
authorized deductions, in accordance with the Company's regular
payroll policies. The Company agrees that such salary will be
reviewed annually by the Board and, if appropriate, will be
increased therefrom. Executive's annual salary, as set forth in
this SECTION 3(A) or as it may be increased from time to time as
set forth herein, will be referred to hereinafter as the "BASE
SALARY." At no time during the Term of Employment will
Executive's Base Salary be decreased from the amount of the Base
Salary then in effect without Executive's written consent.
B. BONUS. In addition to the compensation otherwise payable to
Executive pursuant to this Agreement, Executive will be eligible
to receive annual bonuses in cash and/or options to purchase
common stock of the Company to the extent, if any, awarded by
the Board in its sole discretion (the "BONUS").
C. STOCK OPTIONS. The Company will grant stock options to Executive
under the Company's stock incentive plan (the "PLAN") to
purchase shares of common stock of the Company as determined by
the discretion of the Board and subject to the terms and
conditions of the Plan and an option agreement between the
Company and Executive.
4. BENEFITS. During the Term of Employment:
A. BENEFITS. Executive will be eligible to participate in any life,
health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive
compensation programs, and other fringe benefit programs made
available to senior executive employees of the Company from time
to time, and Executive will be entitled to receive such other
fringe benefits as may be granted to Executive from time to time
by the Board.
B. VACATION; SICK DAYS. Executive will accrue vacation benefits at
the rate of four weeks of paid vacation per calendar year up to
a maximum accrual of 10 weeks. If at any time Executive accrues
10 weeks of unused vacation benefits, Executive shall cease
accruing any vacation benefits until Executive uses some of
Executive's accrued vacation at which point Executive will begin
accruing vacation benefits again up to the 10-week maximum.
Executive will be eligible for 20 sick days per calendar year.
Sick days will not be carried over to the following year, nor
will they be paid out upon termination. In addition, during any
period that Executive is unable to perform the essential
functions of Executive's Position with or without reasonable
accommodation as a result of incapacity due to physical or
mental illness, Executive will continue to receive Executive's
Base Salary, any earned and unpaid Bonus and other benefits
provided hereunder, together with all compensation payable to
Executive under the Company's disability plan or program or
other similar plan during such period, until Executive's
employment under this Agreement is terminated pursuant to
SECTION 5(D).
C. FAMILY CARE LEAVE. Executive will be entitled to take a total of
8 work-weeks of paid leave during any 12-month period for one or
more of the following: (i) because of the birth of a son or
daughter of the Executive and in order to care for such son or
daughter, (ii) because of the placement of a son or daughter
with the Executive for adoption or xxxxxx care, or (iii) in
order to care for the spouse, domestic partner, or a son,
daughter, or parent, of the Executive, if such spouse, domestic
partner, son, daughter, or parent has a Serious Health
Condition. The entitlement to leave under this Section for a
birth or placement of a son or daughter shall expire at the end
of the 12-month period beginning on the date of such birth or
placement. Executive may use family care leave under this
Section intermittently or on a reduced leave schedule for the
purposes set forth in 29 C.F.R. ss. 825.203. Executive shall be
entitled, on return from such leave, to be restored by the
Company to the position of employment held by Executive when the
leave commenced. For purposes of this Section, "Serious Health
Condition" means an illness, injury, impairment, or physical or
mental condition that involves (i) inpatient care in a hospital,
hospice, or residential medical care facility; or (ii)
continuing treatment by a health care provider, as such terms
are defined in 29 C.F.R. ss. 825.114. The 12-month period is
measured on a "rolling" system, backward from the date Executive
uses any family care leave.
D. BUSINESS EXPENSES. The Company will reimburse Executive for
reasonable business expenses incurred in performing Company
Matters, including, but not limited to, reasonable entertainment
expenses, travel and lodging expenses, long distance and
cellular telephone expenses, and approved professional
memberships, following presentation of documentation in
accordance with the Company's business expense reimbursement
policies.
E. AUTOMOBILE. The Company will secure a leased vehicle for
Executive with an initial down payment of no more than $4,000
and monthly payments that do not exceed $550.
F. INDEMNIFICATION. Executive will be added as an additional named
insured under all liability insurance policies covering any
officer or director of the Company in his or her capacity as an
officer or director. Company will indemnify Executive in
Executive's capacity as an officer or director and hold him
harmless from any cost, expense or liability arising out of or
relating to any acts or decisions made by Executive on behalf of
or in the course of performing Company Matters to the maximum
extent provided
by the Company's Certificate of Incorporation and Bylaws and by
applicable law.
5. TERM. As used herein, the phrase "TERM OF EMPLOYMENT" will mean the
period commencing on the Start Date and ending three years from the
Start Date; [PROVIDED that, unless either the Company or Executive
provides at least one (1) month notice to the contrary, the Term of
Employment will automatically be extended at the end of each Term of
Employment for an additional one (1) year period;] provided, FURTHER,
that the Term of Employment will terminate earlier on the first to occur
of any of the events specified in this SECTION 5 (any such date of
termination pursuant to this SECTION 5, the "TERMINATION DATE").
A. TERMINATION WITHOUT CAUSE OR WITH GOOD REASON.
(i) Notwithstanding anything to the contrary in this
Agreement whether express or implied, the Company may
terminate the Term of Employment at any time, for any
reason other than Cause (as defined below), Disability
(as defined below), or Executive's death, by giving
Executive at least [ninety (90)] days' prior written
notice of the effective date of termination following
any applicable cure period. Executive may terminate the
Term of Employment at any time with Good Reason (as
defined below) by giving the Company at least [thirty
(30)] days' prior written notice and the 30-day cure
period set forth below.
(ii) For purposes of this Agreement, "GOOD REASON" will mean
the Company: (1) terminates Executive's employment
without Cause, (2) materially reduces or changes
Executive's Position or responsibilities without
Executive's consent, except as set forth in SECTION
2(A), (3) reduces Executive's Base Salary or materially
and adversely affects the working conditions of
Executive, or (4) otherwise materially breaches a
material term of this Agreement (including without
limitation its obligations under SECTION 2 hereof);
PROVIDED, HOWEVER, that with respect to the events
specified in SUBSECTIONS 5(A)(ii)(2), (3) and (4) the
Executive must provide the Company with (a) reasonable
written notification of such alleged events, activities
or omissions, and (b) 30 days to cure such events,
activities or omissions, if curable.
B. TERMINATION FOR CAUSE. The Company will have the right to
terminate Executive's employment at any time for Cause by giving
Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below,
be the date of such notice). For purposes of this Agreement,
"CAUSE" will mean:
(i) theft, forgery, fraud, misappropriation, embezzlement,
moral turpitude or other act of material misconduct by
Executive against the Company or any of its affiliates;
(ii) willful and knowing violation by Executive of any rules
or regulations of any governmental or regulatory body,
which is or could reasonably be expected to be
materially injurious to the Company;
(iii) conviction of Executive of, or plea of guilty or NOLO
CONTENDERE by Executive to, a felony or any crime of
theft, forgery, fraud, misappropriation, embezzlement,
moral turpitude or other act of material misconduct;
(iv) failure to devote substantially all of Executive's full
professional time, attention, energies and abilities to
Executive's employment for the Company; PROVIDED,
HOWEVER, that Executive must receive (A) reasonable
written notification of the Company's intended actions
and specifically describing the alleged events,
activities or omissions giving rise thereto, and (B)
with respect to a breach for which a cure is possible, a
reasonable opportunity (of not less than fourteen (14)
days) to cure such breach;
(v) a material violation by Executive of any fiduciary duty
owed by Executive to the Company; or
(vi) any breach by Executive of this Agreement or other
agreements between Executive and the Company that causes
a material adverse consequence on the business,
properties, assets, results of operations, or condition
(financial or otherwise) of the Company taken as a
whole;
PROVIDED, HOWEVER, that Executive must receive (A) reasonable
written notification of the Company's intended actions and
specifically describing the alleged events, activities or
omissions giving rise thereto, and (B) with respect to a breach
for which a cure is possible, thirty (30) days to cure such
breach.
C. TERMINATION ON ACCOUNT OF DEATH. Upon Executive's death,
Executive's employment under this Agreement will terminate
immediately.
D. TERMINATION ON ACCOUNT OF DISABILITY. To the extent not
prohibited by The Americans with Disabilities Act of 1990, or
the California Fair Employment and Housing Act, or any other
applicable law, if, as a result of Executive's physical or
mental impairment (as determined in good faith by Executive's
physician), Executive is unable to perform the essential
functions of the Position with or without reasonable
accommodation for more than 12 weeks out of any consecutive
12-month period, then
Executive's employment may be terminated for "DISABILITY."
Thereafter, Executive's benefits will be determined under the
Company's retirement, insurance, and other compensation and
benefit plans and programs then in effect, in accordance with
the terms of such programs.
E. CONCLUSION OF THE TERM. Upon the conclusion of the Term of
Employment, Executive's employment under this Agreement will
terminate.
F. OBLIGATIONS UPON TERMINATION.
(i) If Executive's employment is terminated pursuant to
SECTION 5(A)(i), Executive will continue to receive
Executive's Base Salary under SECTION 3(A), earn and
receive any unpaid Bonus under SECTION 3(B), and accrue
vacation benefits under SECTION 4(B), that Executive
would have received, earned or accrued during the period
commencing on the effective date of such termination and
ending six months thereafter (the "SALARY CONTINUATION
PERIOD").
(ii) During the Salary Continuation Period, Executive and
Executive's spouse, dependents and beneficiaries, as
applicable, will also be entitled to continue at the
Company's expense to be covered by all group medical,
health and accident insurance or other such health care
arrangements at the same coverage level and on the same
terms and conditions which applied immediately prior to
the effective date of Executive's termination of
employment pursuant to this SECTION 5(A), until
Executive obtains alternative comparable coverage under
another group plan, which coverage does not contain any
pre-existing condition exclusions or limitations, but in
no event more than six months. At the termination of the
benefits coverage under the preceding sentence,
Executive and Executive's spouse, dependents and
beneficiaries, as applicable, may elect to continue
health care coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, and under
any other applicable law, to the extent required by such
laws, as if Executive had terminated employment with the
Company on the date such benefits coverage terminates.
(iii) If Executive's employment is terminated pursuant to
SECTION 5(B), (C) or (D), upon the Termination Date, the
Company shall pay Executive all earned but unpaid
compensation (i.e, Base Salary and Bonus), all accrued
but unused vacation benefits, and any other benefits
that are due as determined by and in accordance with the
Company's retirement, insurance, and other compensation
and benefit plans and programs then in effect. The
Company has no further obligations under this Agreement
to Executive.
6. CONFIDENTIAL INFORMATION; OWNERSHIP. As a condition of Executive's
employment, Executive agrees to and executes the Company's Proprietary
Information and Inventions Agreement, which is hereby incorporated by
reference as if set forth fully herein.
7. MITIGATION. If Executive's employment is terminated pursuant to SECTION
5(A), Executive will have a duty to mitigate any damages under this
Agreement by seeking other comparable employment. If Executive accepts
employment elsewhere after termination pursuant to SECTION 5(A), the
Company will have the right to offset any amounts paid to Executive from
such other employment against any amounts owed to Executive by the
Company pursuant to SECTION 5(A) during the Salary Continuation Period.
8. DESIGNATED BENEFICIARY. Upon the death of Executive while in the employ
of the Company, or at any time thereafter during which amounts remain
payable to Executive under SECTION 5, such payments (other than the
right to continuation of welfare benefits) will thereafter be made to
such person or persons as Executive may specifically designate
(successively or contingently) to receive payments under this Agreement
following Executive's death by filing a written beneficiary designation
with the Company during Executive's lifetime. Such beneficiary
designation will be in such form as may be prescribed by the Company and
may be amended from time to time or may be revoked by Executive pursuant
to written instruments filed with the Company during Executive's
lifetime. Beneficiaries designated by Executive may be any natural or
legal person or persons, including a fiduciary, such as a trustee or a
trust or the legal representative of an estate. Unless otherwise
provided by the beneficiary designation filed by Executive, if all of
the persons so designated die before Executive on the occurrence of a
contingency not contemplated in such beneficiary designation, then the
amounts payable under this Agreement will be paid to Executive's estate.
9. ARBITRATION. Any controversy or claim arising out of, relating to, or
connected with this Agreement, its enforcement, arbitrability or
interpretation, or because of an alleged breach, default, or
misrepresentation in connection with any of its provisions, or arising
out of, relating in any way to, or connected with Executive's employment
or termination of employment, including, for example, any alleged
violation of statute, common law or public policy, shall be submitted to
final and binding arbitration, to be held in Alameda County, California,
before a single arbitrator, in accordance with the then-current JAMS
Arbitration Rules and Procedures for Employment Disputes, as modified by
the terms and conditions contained in this paragraph. The arbitrator
shall be selected by mutual agreement of the parties or, if the parties
cannot agree, then by striking from a list of arbitrators supplied by
JAMS. The arbitrator shall issue a written opinion stating the essential
findings and conclusions upon which the arbitrator's award is based. The
Company will pay the arbitrator's fees and arbitration expenses and any
other costs unique to the arbitration hearing (recognizing that each
side bears its own deposition, witness, expert and attorneys' fees and
other expenses to the same extent as if the matter were being
heard in court). If, however, any party prevails on a statutory claim,
which affords the prevailing party attorneys' fees and costs, then the
arbitrator may award reasonable fees and costs to the prevailing party
as provided by applicable law. The arbitrator shall resolve any dispute
as to who is a prevailing party and/or the reasonableness of any fee or
cost.
10. LIMITATION ON CLAIMS. Executive agrees that no claim against the Company
will be valid if asserted more than 12 months after termination of
employment with the Company, and Executive waives any statute of
limitations to the contrary.
11. NAME AND LIKENESS. Executive consents to the use and publication,
without further consideration, of Executive's name, picture and image in
training and promotional materials and other materials relating to the
business of the Company, regardless of whether such use or publication
is in the form of printed matter, photographs, audio tape, video tape,
computer disk, electronic transmission, or otherwise. Such consent
applies both to the use and publication of such items during the Term of
Employment with the Company and during a reasonable time thereafter,
such reasonable time thereafter to depend upon the nature of the use.
12. MISCELLANEOUS.
A. SEVERABILITY. If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being
enforced by any court of competent jurisdiction, the remainder
of such provisions and all of the remaining provisions of this
Agreement will continue in full force and effect, and the
parties agree to limit (and to replace, if necessary) such
invalid, illegal, or incapable provision with a provision that
accomplishes substantially the same intent but that is limited
to the maximum extent permitted by law. By way of clarification
but not limitation, the unenforceability or invalidity of any
term or provision of this Agreement will not by virtue thereof
render any other term or provision contained herein
unenforceable or invalid.
B. CHOICE OF LAW. This agreement will be construed and interpreted
in accordance with the internal laws of the State of California.
C. ASSIGNMENT. The Company may assign this Agreement to any direct
or indirect subsidiary or parent of the Company or joint venture
in which the Company has an interest, or any successor (whether
by merger, consolidation, purchase or otherwise) to all or
substantially all of the stock, assets or business of the
Company, and this Agreement will be binding upon and inure to
the benefit of such successors and assigns. Otherwise, this
Agreement may not be assigned without the prior written consent
of the other party.
D. NO ABROGATION. Any rights of Executive hereunder will be in
addition to any rights Executive may otherwise have under
benefit plans, agreements, or arrangements of the Company to
which Executive is a party or in which Executive is a
participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement
will not in any way abrogate Executive's rights under such other
plans, agreements, or arrangements.
E. NOTICE. All notices (including other communications required or
permitted) under this Agreement must be in writing and must be
delivered (i) in person; (ii) by registered or certified mail,
postage prepaid, return receipt requested; (iii) by a generally
recognized courier or messenger service that provides written
acknowledgement of receipt by the addressee; or (iv) by
facsimile or other generally accepted means of electronic
transmission with a verification of delivery. Notices are deemed
delivered when actually delivered to the address for notices.
Notices must be given to parties at the address set forth below,
although any party may furnish, from time to time, other
addresses for notices to it.
IF TO EXECUTIVE: Xxxx Xxxxxxxxxxx, MD, LAc
0000 Xxxxxxxxx Xxx.
Xxxxxxx, XX 00000
IF TO THE COMPANY: Bionovo, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention Board of Directors
WITH COPIES TO: Xxxx X. Xxxx, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
F. HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and will not constitute a part
of this Agreement for any other purpose.
G. NO WAIVER. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof will not be deemed a
waiver of such term, covenant, or condition, nor will any waiver
or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or more
times be deemed a waiver or relinquishment of such right or
power at any other time or times.
H. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will be deemed to be an original but
all of which together will constitute one and the same
instrument. A facsimile signature page will be deemed an
original.
I. ENTIRE AGREEMENT; AMENDMENT. This Agreement along with the PIIA
(i) contains a complete statement of all the arrangements
between the parties with respect to Executive's employment by
the Company, (ii) supersedes all prior and existing negotiations
and agreements between the parties concerning Executive's
employment and the matters contained herein, and (iii) can only
be waived, changed or modified pursuant to a written instrument
duly executed by each of the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
[EXECUTIVE'S NAME]
________________________________________
Name:___________________________________
BIONOVO, INC.
By: ____________________________________
Name ___________________________________
Title: _________________________________
