EXHIBIT 10.9
September 4, 2001
Xx. Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter sets forth the terms and conditions under which LipoMed,
Inc. (the "Company") will employ you as an employee of the Company effective
September 4, 2001 and ending September 4, 2002 (the "Initial Term"). This letter
agreement shall be renewed on a year-to-year basis on the same terms and
conditions set forth in this letter (each a "Renewal Term") unless terminated as
provided herein or unless amended or modified by mutual agreement. The Initial
Term and any Renewal Term(s) are referred to herein collectively as the "Term".
You will serve as Chairman of the Board of Directors and an employee of the
Company.
The initial compensation for your services shall be as follows: (i) a
base salary of Three Hundred Thousand Dollars ($300,000), subject to adjustment
in the discretion of the Board of Directors, to be paid consistent with the
payroll schedule established by the Company; (ii) an annual bonus based upon the
achievement of certain individual and Company goals as determined by the Board
of Directors of the Company; (iii) such options as the Board of Directors may in
its discretion approve; (iv) five weeks of vacation per fiscal year; and (v)
other employee benefits as those become available and as those benefits are
provided to other employees of the Company. Further, any outstanding stock
options previously granted to you by the Company shall continue to vest and to
be exercisable during the Term in accordance with their terms. Additionally, the
Company will allow you up to thirty six (36) months from the termination of this
agreement to exercise vested non-qualified stock options. The Company will pay
all reasonable expenses incurred by you which are related to the conduct of the
business of the Company, provided that you comply with the policies for
reimbursement or advance expenses as established by the Board of Directors of
the Company.
This agreement may be voluntarily terminated by either party by giving
written notice of intention not to renew for any Renewal Term to the other party
("Voluntary Termination"), such notice to be delivered at least sixty (60) days
prior to the last day of the Initial Term or any Renewal Term. If this agreement
is terminated by the Company other than by Voluntary Termination or for cause
(as defined below), the Company shall pay you your most current base salary for
a period of twelve (12) months following such termination (the "Severance
Period") and you shall be entitled to all benefits which were provided to you at
the time of such termination during the Severance Period to the extent allowed
under the terms of the applicable benefit plans (or if not allowed, the cash
equivalent thereof). Notwithstanding the foregoing, no further Severance
Benefits will be paid after you commence comparable employment after such
termination. For the purposes of this paragraph, "Cause" shall be determined by
the Board of Directors and shall mean:
(1) Any action by you that is dishonest, illegal or not in good faith
which is materially detrimental to the interest and well-being of
the Company; or
(2) Any failure by you to fully disclose any material conflict of
interest you may have with the Company in a transaction between
the Company and any third party which is materially detrimental to
the interest and well-being of the Company; or
(3) Any adverse act or omission by you which would be required to be
disclosed pursuant to federal or state securities laws or which
would limit the ability of the Company or any entity affiliated
with the Company to sell securities under any Federal or state law
or which would disqualify the Company or any affiliated entity
from any exemption otherwise available to it, all of which are
materially detrimental to the interest and well-being of the
Company.
This letter agreement and the services rendered by you hereunder will
be contingent upon and subject to that certain Confidentiality, Inventions and
Non-Competition Agreement by and between the Company and you dated November 15,
1997 (the "Non-Competition Agreement").
You hereby represent that your performance of services for the Company
will not violate any obligation which you may have to any previous employer,
including, without limitation, any agreements to refrain from competing,
directly or indirectly, with the business of any previous employer or any other
third party. You further represent that your performance of all the terms of
this agreement and as a consultant to the Company, if applicable, does not and
will not breach any agreement to keep in confidence proprietary information,
trade secrets, knowledge or data acquired by you in confidence or in trust prior
to your engagement or employment by the Company or induce the Company to use any
confidential or proprietary information, trade secrets or material belonging to
any previous employer or others, and you agree to indemnify and hold harmless
the Company from and against all claims of loss or liability (including
reasonable attorneys' fees) arising out of or connected with your breach or
alleged breach of any of the representations set forth above.
The Company will indemnify and hold you harmless to the fullest extent
permitted by law from and against any and all claims of loss or liability
(including reasonable attorney's fees) arising from or in connection with this
agreement or the services provided hereunder, except to the extent that the same
shall be determined to have resulted solely from actions taken or omitted due to
your willful misconduct, negligence or knowing violation of the law.
This agreement supersedes in its entirety any previous employment or
consulting agreements between you and the Company, including without limitation,
that certain employment letter agreement between you and the Company dated June
1, 2001, and, with the Non-Competition Agreement, constitutes a full and
complete understanding of the parties with respect to the subject matter hereof,
and all prior written and oral agreements concerning the subject matter hereof
are hereby terminated. This agreement shall be governed by the laws of the State
of North Carolina.
If you are in agreement with the terms and conditions set forth herein,
please execute one copy of this letter and return it to me.
Sincerely,
LipoMed, Inc.
/s/ F. Xxxxxx Xxxxxxx
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F. Xxxxxx Xxxxxxx,
President and CEO
Agreed to and accepted this
4/th/ day of September, 2001.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
