EMPLOYMENT AGREEMENT
Exhibit
10.7
This
Agreement (this “Agreement”),
effective as of the Effective Date (described below) by and between Pacific
Beach Biosciences, Inc., a Delaware corporation with an address at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Company”), and
XXXXXXX X. XXXXXX, MD, MBA, FIDSA, having a mailing address at X.X. Xxx 0000,
XXX 00, Xxxxxx Xxxxx Xx, XX 00000-0000 (the “Executive”).
W
I T N E S S E T H:
WHEREAS, the Company desires
to employ the Executive as President and Chief Executive Officer of the Company,
and the Executive desires to serve the Company in those capacities, upon the
terms and subject to the conditions contained in this Agreement;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, the
parties hereto hereby agree as follows:
1. Employment.
(a) Services. The
Executive will be employed by the Company as its President and Chief Executive
Officer. The Executive will report to the Board of Directors of the
Company (the “Board”) and shall
perform such duties as are consistent with his position as President and Chief
Executive Officer (the “Services”). The
Executive agrees to perform such duties faithfully, to devote all of his working
time, attention and energies to the business of the Company, and while he
remains employed by the Company, not to engage in any other business activity
that is in conflict with his duties and obligations to the Company.
(b) Acceptance. Subject
to and conditional upon the satisfaction of the Financing Condition set forth in
Section 2, below (such date to be the “Effective Date”), the
Executive hereby accepts such employment and agrees to render the
Services.
2. Term. The
Executive’s employment under this Agreement (the “Term”) shall commence
on a date to be selected by the Executive, which date (the “Commencement Date,”
which shall serve for all purposes as the “date of this Agreement,” unless
otherwise specified) shall not be later than thirty (30) days after the closing
of a bridge financing in an aggregate amount of not less than $3,000,000,
provided, however, that such closing shall occur no later than February 15, 2010
(the “Financing
Condition”), and shall continue for a term of two (2) years, unless
sooner terminated pursuant to Section 9 of this Agreement. Notwithstanding
anything to the contrary contained herein, the provisions of this Agreement
specified in Sections 6, 7, 10, and 11 shall survive the expiration or
termination hereof. After the conclusion of the Term, this Agreement
shall automatically renew for additional one (1) year terms (each, a “Renewal Term”); provided, however, that (a)
if, at least three (3) months prior to the end of the Term or any Renewal Term,
as the case may be, the Company gives written notice to the Executive that the
Company elects that this Agreement not be renewed, then this Agreement shall end
and expire as of the end of the Term or such Renewal Term, as the case may be,
or (b) if, at least three (3) months prior to the end of the initial Term or any
Renewal Term, as the case may be, the Executive gives written notice to the
Company that the Executive elects that this Agreement not be renewed, then this
Agreement shall end and expire as of the end of the initial Term or such Renewal
Term, as the case may be.
3. Best Efforts; Place of
Performance.
(a) The
Executive shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company and shall use his best
efforts to advance the best interests of the Company and shall not during the
Term be actively engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage, that
will interfere with the performance by the Executive of his duties hereunder or
the Executive’s availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company, except as set forth above in
Section 1(a).
(b) The
duties to be performed by the Executive hereunder shall be performed primarily
at the office of the Company that shall be established in or around San Diego,
California, subject to reasonable travel requirements on behalf of the Company,
or such other place as the Board may reasonably
designate. Notwithstanding the foregoing, the Executive’s primary
place of business may not be relocated to another city without his written
consent.
4. Directorship. The
Company shall use its best efforts to cause the Executive to be elected as a
member of its Board throughout the Term and shall include him in the management
slate for election as a director at every stockholders meeting during the Term
at which his term as a director would otherwise expire. The Executive
agrees to accept election, and to serve during the Term, as director of the
Company, without any compensation therefor other than as specified in this
Agreement.
5. Compensation. As
full compensation for the performance by the Executive of his duties under this
Agreement, the Company shall pay the Executive as follows:
(a) Base
Salary. The Company shall pay the Executive an annualized
salary (the “Base
Salary”) of Three Hundred Thousand Dollars ($300,000). Payment
shall be made in accordance with the Company’s normal payroll
practices.
(b) Guaranteed
Bonus. The Company shall pay the Executive a lump-sum cash
bonus (the “Guaranteed
Bonus”) equal to Sixty Thousand Dollars ($60,000) within thirty (30) days
following the expiration of each year of the Term, provided that the Executive
is employed hereunder on the last day of such year of the Term (subject to the
terms of Section 10 hereof), and regardless of whether the Executive remains
employed by Company after such date.
(c) Annual Milestone
Bonus. The Executive may be awarded an additional cash bonus
equal to as much as his Base Salary, within thirty (30) days following the
expiration of each year of the Term (the “Annual Milestone
Bonus”), to be determined by the Board in its sole and complete
discretion, based on, among other things, the attainment by the Executive and/or
the Company of certain financial, clinical development and business milestones
(the “Milestones”) as
established annually by the Board (or a committee thereof), after consultation
with the Executive. The Milestones for the first year of this Agreement shall be
established by the Board, after consultation with the Executive, subsequent to,
but not more than sixty (60) days following, the Commencement
Date. The Milestones for each subsequent year shall be established by
the Board, after consultation with the Executive, at least sixty (60) days prior
to each anniversary of the Commencement Date. The Annual Milestone
Bonus, if any, shall be paid in cash in a lump-sum payment by no later than
seventy-five (75) days following the expiration of each year of the
Term. The Annual Milestone Bonus, if any, will be paid for any year
of the Term provided that the Executive is employed hereunder on the last day of
such year, and regardless of whether the Executive remains employed by Company
after such date.
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(d) IPO, Clinical and Market
Capitalization Bonuses.
(i) Within
thirty (30) days after the closing of the Company’s Initial Public Offering
(“IPO”), the
Company shall pay to the Executive a onetime cash bonus of One Hundred Thousand
Dollars ($100,000).
(ii) In full
and final consideration and settlement of any amount of compensation claimed by
or due to the Executive with respect to his services to the Company during his
earlier term of employment with the Company, the Company will pay to the
Executive a one-time cash payment of One Hundred Thousand Dollars ($100,000),
payable as follows: (a) Twenty-Five Thousand Dollars ($25,000) payable within
thirty (30) days of the date of this Agreement, and (b) Seventy-Five Thousand
Dollars ($75,000) payable within thirty (30) days after the closing of the IPO,
or December 31, 2010, whichever occurs first, and regardless of whether the
Executive is employed by the Company as of December 31, 2010.
(iii) The first
time that the Market Capitalization (as defined below) of the Company shall
exceed One Hundred Twenty-Five Million Dollars ($125,000,000) for a period of
ten (10) consecutive trading days during the Term and the average trading volume
of the Company’s Common Stock during such period is at least Fifty Thousand
(50,000) shares per trading day (the “First Capitalization
Milestone”), then the Company shall pay to the Executive a onetime cash
bonus of One Hundred Twenty-Five Thousand Dollars ($125,000), payable within ten
(10) days of written notice by the Executive of the occurrence of the First
Capitalization Milestone.
(iv) The first
time that the Market Capitalization of the Company shall exceed Three Hundred
Million Dollars ($300,000,000) for a period of ten (10) consecutive trading days
during the Term and the average trading volume of the Common Stock during such
period is at least One Hundred Thousand (100,000) shares per trading day (the
“Second Capitalization
Milestone”), then the Company shall pay to the Executive a onetime cash
bonus of Three Hundred Thousand Dollars ($300,000), payable within ten (10) days
of written notice by the Executive of the occurrence of the Second
Capitalization Milestone.
(v) The first
time that the Market Capitalization of the Company shall exceed Five Hundred
Million Dollars (US$500,000,000) for a period of ten (10) consecutive trading
days during the Term and the average trading volume of the Common Stock during
such period is at least One Hundred Thousand (100,000) shares per trading day
(the “Third
Capitalization Milestone”), then the Company shall pay to the Executive a
onetime cash bonus of Five Hundred Thousand Dollars ($500,000), payable within
ten (10) days of written notice by the Executive of the occurrence of the Third
Capitalization Milestone.
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(vi) The first
time that the Market Capitalization of the Company shall exceed Seven Hundred
and Fifty Million Dollars ($750,000,000) for a period of ten (10) consecutive
trading days during the Term and the average trading volume of the Common Stock
during such period is at least one hundred thousand (100,000) shares per trading
day (the “Fourth
Capitalization Milestone”), then the Company shall pay to the Executive a
onetime cash bonus of Seven Hundred Fifty Thousand Dollars ($750,000), payable
within ten (10) days of written notice by the Executive of the occurrence of the
Fourth Capitalization Milestone.
(vii) The first
time that the Market Capitalization of the Company shall exceed One Billion
Dollars ($1,000,000,000) for a period of ten (10) consecutive trading days
during the Term and the average trading volume of the Common Stock during such
period is at least one hundred thousand (100,000) shares per trading day (the
“Fifth Capitalization
Milestone” and together with the First Capitalization Milestone, the
Second Capitalization Milestone, the Third Capitalization Milestone and the
Fourth Capitalization Milestone, collectively the “Market Capitalization
Milestones” and each individually, a “Market Capitalization
Milestone”), then the Company shall pay to the Executive a onetime cash
bonus of One Million Dollars ($1,000,000), payable within ten (10) days of
written notice by the Executive of the occurrence of the Fifth Capitalization
Milestone.
(viii) For
purposes of this Agreement, “Market
Capitalization” shall be determined by multiplying the total shares of
the Company’s Common Stock that are outstanding at that time by the last
reported closing price of the Company’s Common Stock on a nationally recognized
exchange, NASDAQ, or in the over-the-counter market as reported by the National
Quotation Bureau or similar organization.
(e) [Intentionally
Omitted]
(f) Withholding. The
Company shall withhold all applicable federal, state and local taxes and social
security and such other amounts as may be required by law from all amounts
payable to the Executive under this Section 5.
(g) Employment Stock
Options.
(i) As
additional compensation for the Services to be rendered by the Executive
pursuant to this Agreement, the Company shall issue to the Executive within
thirty (30) days of the date of this Agreement one or more options to purchase
common stock, par value $0.001 (the “Common Stock”), of
the Company (the “Employment Options”)
in an amount that, together with the shares of Common Stock already owned by the
Executive, shall collectively represent seven and one-half percent (7.5%) of the
outstanding Common Stock of the Company, and at an exercise price per share that
will be equal to the price per share of common stock that shall be issued in the
Company’s IPO assuming such IPO occurs within six (6) months of the date of this
Agreement or, to the extent it does not, at the fair market value of the Common
Stock of the Company at such date, as determined in the sole discretion and good
faith of the Board. The Company will issue such options. The
Employment Options shall be held in escrow at Paramount BioSciences, LLC, and
shall vest at the first anniversary of the date of this Agreement, subject to
the terms of this Agreement, at which time all vested Employment Options will be
released from the escrow account to the Executive. No Employment
Options shall vest until the first anniversary of the date of this
Agreement. No Employment Options granted hereunder shall vest unless
the Executive is a current employee of the Company as of the date of such
vesting, unless specifically stated herein.
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(ii) Anti-dilution
Protection. At such time as the Company has raised gross
proceeds equal to Fifteen Million Dollars ($15,000,000) from the issuance and
sale of Equity Securities (as defined below), the Company shall issue to the
Executive, following such issuance and sale of Equity Securities, a number of
additional employee stock options (the “Stock Options”)
sufficient to maintain the Executive’s ownership percentage (if such options
were exercised) at least equal to seven and one-half percent (7.5%) of the
outstanding Common Stock of the Company on a fully diluted basis, provided,
however, that options or warrants, if any, to purchase Common Stock at a
price per share greater than the price per share at which shares are sold in the
Company’s IPO shall not be deemed to be included within the meaning of fully
diluted for this purpose. Options which are granted in order to maintain the
Executive’s seven and one-half percent (7.5%) of the outstanding Common Stock of
the Company on a fully diluted basis shall vest at the first anniversary of the
date of this Agreement, subject to the terms of this Agreement. Once
the Company has raised Fifteen Million Dollars ($15,000,000) through the sale of
its Equity Securities, the Executive thereafter may be diluted pro rata along
with all other holders of securities of the Company.
As used
herein “Equity
Securities” shall mean shares of Common Stock, preferred stock, options,
warrants or other rights to purchase Common Stock or securities or evidences of
indebtedness convertible into or exchangeable for shares of Common Stock, provided,
however, that options or warrants, if any, to purchase Common Stock at a
price per share greater than the price per share at which shares are sold in the
Company’s IPO shall not be deemed Equity Securities for this
purpose. The Stock Options shall be governed by the Company’s
Employee Stock Option Plan although, notwithstanding the terms of such plan, the
Stock Options issued in consideration of this anti-dilution provision shall vest
at the first anniversary of the date of this Agreement, subject to the terms of
this Agreement. The Stock Options shall be exercisable for ten (10)
years and shall have an exercise price equal to the fair market value of the
Common Stock upon the date of each applicable grant as determined by the Board
in good faith. In connection with such grant, the Executive shall
enter into the Company’s standard stock option agreement which will incorporate
the foregoing vesting schedule and the Stock Option related provisions contained
in Section 10 below.
(iii) Notwithstanding
and in addition to the foregoing, Section 5(g)(ii) shall not apply to, and the
Executive shall not be entitled to anti-dilution protection with respect to, the
issuance of Excluded Equity Securities (as defined below) and Excluded Equity
Securities shall not be included in calculating the fully diluted issued and
outstanding shares of Common Stock of the Company for any purpose under this
Agreement, except with respect to the calculation of the Market Capitalization
Milestones pursuant to Section 5(d). “Excluded Equity
Securities” shall mean Equity Securities that are issued by the Company
pursuant to any transactions approved by the Board primarily for the purpose of:
(1) incentivizing employees, directors or consultants to the Company; (2) joint
ventures, strategic alliances or research and development activities, (3)
purchasing or licensing of one or more technologies, or (4) any other
transactions involving current or potential partners that are primarily for
purposes other than raising capital. As long as the anti-dilution protection
contained in Section 5(g)(ii) remains in effect, the Executive shall be diluted
on a pro rata basis with all other holders of Common Stock by the issuance by
the Company of Excluded Equity Securities. Upon termination of such
anti-dilution protection provided for in Section 5(g)(ii), the Executive shall
be diluted pari passu
with all other holders of Common Stock by the issuance of any Equity Securities,
including Excluded Securities.
(h) Management Incentive
Options. In order to properly attract, maintain and
incentivize highly qualified senior managers and key talent, the Company shall
set aside a pool of Equity Securities, commensurate with industry standards,
which is to be distributed to such employees, not including the Executive, as
recommended by the Executive and determined by the Board.
(i) Expenses. The
Company shall reimburse the Executive for all normal, usual and necessary
expenses incurred by the Executive in furtherance of the business and affairs of
the Company, including reasonable travel and entertainment, upon timely receipt
by the Company of appropriate vouchers or other proof of the Executive’s
expenditures and otherwise in accordance with any expense reimbursement policy
as may from time to time be adopted by the Company.
(j) Other
Benefits. The Executive shall be entitled to all rights and
benefits for which he shall be eligible under any benefit or other plans
(including, without limitation, dental, medical, medical reimbursement and
hospital plans, pension plans, employee stock purchase plans, profit sharing
plans, bonus plans, prescription drug reimbursement plans, short and long term
disability plans, life insurance and other so-called “fringe” benefits) as the
Company shall make available to its senior executives from time to time. Until
such time as the Company provides medical and dental benefits, the Company shall
reimburse Executive for all reasonable costs of such benefits purchased
privately by Executive.
(k) Vacation. The
Executive shall be entitled to a vacation of twenty four (24) days per annum,
not more than ten (10) of which shall be taken in succession, in addition to
holidays observed by the Company. During the Term, the Executive
shall not be entitled to carry forward more than five (5) vacation days from one
calendar year of employment to the next calendar year of
employment.
(l) Expense Reimbursement and
Benefits. Notwithstanding anything in this Agreement to the
contrary, any expense reimbursement or benefit provided pursuant to Section
5(i), Section 5(j) or Section 10 shall be subject to the following: (i) the
amount of any such expense reimbursement or benefit provided during the
Executive’s taxable year shall not affect any expenses eligible for
reimbursement or benefit to be provided in any other taxable year; (ii) the
reimbursement of any eligible expense shall be made no later than the last day
of the Executive’s taxable year that immediately follows the taxable year in
which the expense was incurred; and (iii) the right to any such expense
reimbursement or benefit shall not be subject to liquidation or exchange for
another benefit.
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6. Confidential Information and
Inventions.
(a) The
Executive recognizes and acknowledges that in the course of his duties he is
likely to receive confidential or proprietary information of the Company, its
affiliates or third parties with whom the Company or any such affiliates has an
obligation of confidentiality. Accordingly, during and after the
Term, the Executive agrees to keep confidential and not disclose or make
accessible to any other person or use for any other purpose other than in
connection with the fulfillment of his duties under this Agreement, any
Confidential and Proprietary Information owned by, or received by or on behalf
of the Company or any of its affiliates. “Confidential and Proprietary
Information” shall include, but shall not be limited to, confidential or
proprietary scientific or technical information, data, formulas and related
concepts, business plans (both current and under development), client lists,
promotion and marketing programs, trade secrets, or any other confidential or
proprietary business information relating to development programs, costs,
revenues, marketing, investments, sales activities, promotions, credit and
financial data, manufacturing processes, financing methods, plans or the
business and affairs of the Company or of any affiliate or client of the
Company. The Executive expressly acknowledges that the Confidential and
Proprietary Information constitutes a protectable business interest of the
Company. The Executive agrees: (i) not to use any such Confidential
and Proprietary Information for himself or others; and (ii) not to take any
Company material or reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and business
policies, computer programs or disks) thereof from the Company’s offices at any
time during his employment by the Company, except as required in the execution
of the Executive’s duties to the Company. The Executive agrees to
return immediately all Company material and reproductions (including but not
limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to the Company upon request and in any event immediately upon
termination of employment.
(b) Except
with prior written authorization by the Company, the Executive agrees for a
period of five (5) years from the termination of his employment with the Company
not to disclose or publish:
(i) any of
the Confidential and Proprietary Information; or
(ii) any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of
confidence.
(c) The
Executive agrees that all inventions, discoveries, improvements and patentable
or copyrightable works initiated, conceived or made by him, either alone or in
conjunction with others, during the Term (“Inventions”) shall be
the sole property of the Company to the maximum extent permitted by applicable
law and, to the extent permitted by law, shall be “works made for hire” as that
term is defined in the United States Copyright Act (17 U.S.C.A., Section
101). The Company shall be the sole owner of all patents, copyrights,
trade secret rights, and other intellectual property or other rights in
connection therewith. The Executive hereby assigns to the Company all
right, title and interest he may have or acquire in all such Inventions;
provided, however, that the Board may in its sole discretion agree to waive the
Company’s rights pursuant to this Section 6(c) with respect to any Invention
that is not directly or indirectly related to the Company’s
business. The Executive further agrees to assist the Company in every
proper way (but at the Company’s expense) to obtain and from time to time
enforce patents, copyrights or other rights on such Inventions in any and all
countries, and to that end the Executive will execute all documents
necessary:
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(i) to apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
The
parties acknowledge and agree that, pursuant to California Labor Code sections
2870 and 2872, Inventions shall not include any inventions, discoveries,
improvements, patentable or copyrightable works, or other works (collectively,
“Works”) that
the Executive develops entirely on his own time without using Company’s
equipment, supplies, facilities or trade secret information, except for those
Works that either relate at the time of conception or reduction to practice to
Company’s business, or actual or demonstrably anticipated research or
development; or result from any work performed by the Executive for the
Company.
(d) The
Executive acknowledges that while performing the Services, the Executive may
locate, identify and/or evaluate patented or patentable inventions having
commercial potential in the fields of pharmacy, pharmaceutical, biotechnology,
healthcare, technology and other fields which may be of potential interest to
the Company or one of its affiliates (the “Third Party
Inventions”). The Executive understands, acknowledges and
agrees that all rights to, interests in or opportunities regarding, all
Third-Party Inventions identified by the Company, any of its affiliates or
either of the foregoing persons’ officers, directors, employees (including the
Executive), agents or consultants during the Term shall be and remain the sole
and exclusive property of the Company or such affiliate and the Executive shall
have no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company unless the Company has expressly abandoned
its interest in such Third Party Inventions in writing.
(e) The
Executive agrees that he will promptly disclose to the Company all Inventions
initiated, made or conceived or reduced to practice, either alone or jointly
with others, during the Term.
(f) The
provisions of this Section 6 shall survive any termination of this Agreement
..
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7. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) The
Executive understands and recognizes that his services to the Company are
special and unique and that in the course of performing such services the
Executive will have access to and knowledge of Confidential and Proprietary
Information. The Executive agrees that, during the Term and during
such period of time after the Term that the Executive continues to receive his
salary and benefits without interruption from the Company during the Termination
Benefits Period (as defined hereinafter), other than in the event that the
Executive is terminated for Cause, in which case he will remain subject to this
provision even in the absence of receiving any further salary or benefits, he
shall not in any manner, directly or indirectly, on behalf of himself or any
person, firm, partnership, joint venture, corporation or other business entity
(“Person”),
enter into or engage in any business which is engaged in any business directly
or indirectly competitive with the business of the Company, either as an
individual for his own account, or as a partner, joint venturer, owner,
executive, employee, independent contractor, principal, agent, consultant,
salesperson, officer, director or shareholder of a Person in a business
competitive with the Company within the geographic area of in which the Company
does business, which is deemed by the parties hereto to be worldwide. The
Executive acknowledges that, due to the unique nature of the Company’s business,
the loss of any of its clients or the improper use of its Confidential and
Proprietary Information could create significant instability and cause
substantial damage to the Company and therefore the Company has a strong
legitimate business interest in protecting the continuity of its business
interests and the restriction herein agreed to by the Executive narrowly and
fairly serves such an important and critical business interest of the Company.
For purposes of this Agreement, the Company shall be deemed to be actively
engaged on the date hereof in the development and commercialization of
therapeutics for the treatment of infectious diseases in
humans. Notwithstanding the foregoing, nothing contained in this
Section 7(a) shall be deemed to prohibit the Executive from acquiring or
holding, solely for investment, publicly traded securities of any corporation,
some or all of the activities of which are competitive with the business of the
Company so long as such securities do not, in the aggregate, constitute more
than four percent (4%) of any class or series of outstanding securities of such
corporation.
(b) The
Executive hereby acknowledges and agrees that the covenant against competition
provided for pursuant to Section 7(a) is reasonable with respect to duration,
geographic area and scope. If, at the time of enforcement of this
Section 7, a court holds that the restrictions stated herein are unreasonable
under the circumstances then existing, the parties hereto agree that the maximum
duration, scope or geographic area legally permissible under such circumstances
will be substituted for the duration, scope or area state herein.
(c) During
the Term and the Termination Benefits Period (as defined hereinafter), the
Executive shall not, directly or indirectly, without the prior written consent
of the Company:
(i) solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any such affiliate (as the term “affiliate” is defined
in Paragraph 12(o)); or hire for any purpose any employee of the Company or any
affiliate; or hire any former employee who has left the employment of the
Company or any affiliate of the Company within twelve (12) months of the
termination of such employee’s employment with the Company or any such
affiliate; or hire any former employee of the Company in violation of such
employee’s non-competition agreement with the Company or any such affiliate;
or
(ii) solicit
or accept the business of any agent, client or customer of the Company or any of
its affiliates with respect to products, services or investments similar to
those provided or supplied by the Company or any of its affiliates;
or
(iii) solicit
or accept employment or be retained by any Person who, at any time during the
Term, was an agent, client or customer of the Company or any of its affiliates
where his position will be related to the business of the Company or any such
affiliate.
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(d) The
Company and the Executive each agree that both during the Term and for a period
of five (5) years thereafter, neither party shall directly or indirectly make
any disparaging statement, whether or not true, with respect to the name or
reputation of the other party or any of its affiliates, including but not
limited to, any officer, director, employee or shareholder of the Company or any
of its affiliates (as defined above). Notwithstanding this Section,
nothing contained herein shall limit or impair the ability of the Executive to
provide truthful testimony in response to any validly issued
subpoena.
(e) In the
event that the Executive breaches any provisions of Section 6 or this Section 7
or there is a threatened breach, then, in addition to any other rights which the
Company may have, the Company shall (i) be entitled, without the posting of a
bond or other security, to seek injunctive relief to enforce the restrictions
contained in such Sections and (ii) to the extent permitted by law, have the
right to require the Executive to account to the Company all compensation,
profits, monies, accruals, increments and other benefits (collectively “Benefits”) derived or
received by the Executive as a result of any transaction constituting a breach
of any of the provisions of Sections 6 or 7 and the Executive hereby agrees to
account for and pay over such Benefits to the Company. The Company and the
Executive agree that any such action for injunctive relief shall be heard in any
of the courts set forth in Section 12(c) below, and each of the parties hereto
agrees to accept service of process by registered or certified mail and to
otherwise consent to the jurisdiction of such courts.
(f) Each of
the rights and remedies enumerated in Section 7(e) shall be independent of the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any of the
covenants contained in this Section 7, or any part of any of them, is hereafter
construed or adjudicated to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants or rights or remedies which
shall be given full effect without regard to the invalid portions. If
any of the covenants contained in this Section 7 is held to be invalid or
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court or arbitrator making such
determination shall have the power to reduce the duration and/or area of such
provision and in its reduced form such provision shall then be
enforceable. No such holding of invalidity or unenforceability in one
jurisdiction shall bar or in any way affect the Company’s right to the relief
provided in this Section 7 or otherwise in the courts of any other state or
jurisdiction within the geographical scope of such covenants as to breaches of
such covenants in such other respective states or jurisdictions, such covenants
being, for this purpose, severable into diverse and independent
covenants.
(g) In the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 6 or this Section 7, the Executive shall not urge as a defense that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available. The Executive
agrees that he shall not raise in any proceeding brought to enforce the
provisions of Section 6 or this Section 7 that the covenants contained in such
Sections limit his ability to earn a living during the Termination Benefit
Period (as defined hereinafter).
(h) The
provisions of this Section 7 shall survive any termination of this
Agreement.
9
8. Representations and
Warranties. The Executive hereby represents and warrants to
the Company as follows:
(a) Neither
the execution or delivery of this Agreement nor the performance by the Executive
of his duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant or obligation under (whether immediately, upon the
giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which he
is bound.
(b) The
Executive has the full right, power and legal capacity to enter and deliver this
Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Executive enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are
required for the Executive to execute and deliver this Agreement or perform his
duties and other obligations hereunder.
9. Termination. The
Executive’s employment hereunder shall be terminated upon the Executive’s death
and may be terminated as follows:
(a) The
Executive’s employment hereunder may be terminated by the Board for Cause. Any
of the following actions by the Executive shall constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Executive to perform his material
duties or obligations under this Agreement, which shall require affirmative or
intentional improper actions or omissions by the Executive and not simply
actions that result in the performance of the Company overall or in certain
respects that falls below levels expected by, or acceptable to, the
Board;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the effect
of materially injuring (whether financial or otherwise and as determined in
good-faith by a majority of the members of the Board) the business or reputation
of the Company or any of its affiliates, including but not limited to, any
officer, director, executive or shareholder of the Company or any of its
affiliates;
(iii) Willful
misconduct by the Executive in respect of the material duties or obligations of
the Executive under this Agreement, including, without limitation, willful
insubordination with respect to lawful and reasonable directions received by the
Executive from the Board;
(iv) The
Executive’s indictment of any felony involving moral turpitude (including entry
of a nolo contendere plea);
(v) The
determination by the Company, after a reasonable and good-faith investigation by
the Company following a written allegation by another employee of the Company,
(which investigation, among other actions, shall include the Executive’s
opportunity to respond fully to any such allegation) that the Executive engaged
in some form of harassment prohibited by law (including, without limitation,
age, sex or race discrimination), unless the Executive’s actions were
specifically directed by the Board;
10
(vi) Any
material misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach by
the Executive of any of the provisions of Sections 6, 7 or 8 of this Agreement,
which is not cured by the Executive within thirty (30) days after notice thereof
is given to the Executive by the Company; and
(viii) Breach by
the Executive of any material provision of this Agreement other than those
contained in Sections 6, 7 or 8 which, to the extent it is reasonably subject to
notice and cure, is not cured by the Executive within thirty (30) days after
notice thereof is given to the Executive by the Company.
(b) The
Executive’s employment hereunder may be terminated by the Board due to the
Executive’s Disability. For purposes of this Agreement, a termination
for “Disability” shall
occur (i) when the Board has provided a written termination notice to the
Executive supported by a written statement from a reputable independent
physician to the effect that the Executive shall have become so physically or
mentally incapacitated as to be unable to resume, within the ensuing six (6)
months, his employment under this Agreement by reason of physical or mental
illness or injury or (ii) upon rendering of a written termination notice by the
Board after the Executive has been unable to substantially perform his duties
hereunder for 60 or more consecutive days, or more than 120 days in any
consecutive twelve month period, by reason of any physical or mental illness or
injury. For purposes of this Section 9(b), the Executive agrees to make himself
available and to cooperate in a reasonable examination by a reputable
independent physician retained by the Company.
(c) The
Executive’s employment hereunder may be terminated by the Board (or its
successor) upon the occurrence of a Change of Control. For purposes
of this Agreement, “Change of Control”
means (i) the acquisition, directly or indirectly, following the date hereof by
any person (as such term is defined in Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended), in one transaction or a series of
related transactions, of securities of the Company representing in excess of
fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities if such person or his or its affiliate(s) do not own in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
(d) The
Executive’s employment hereunder may be terminated by the Executive for Good
Reason.
(i) For
purposes of this Agreement, “Good Reason” shall
mean (any of which shall constitute a “Good Reason
Condition”):
(A) any
material breach of this Agreement by the Company;
(B) without
the Executive’s express written consent, a material reduction by the Company of
the Executive’s duties, responsibilities, or authority as President and Chief
Executive Officer of the Company which causes his position with the Company to
become of less responsibility or authority than his position as of immediately
following the Commencement Date; or
(C) a
relocation of the Company’s principal place of business of the Executive outside
of the San Diego metropolitan area without the Executive’s written
consent.
(ii) The
Executive may terminate his employment for Good Reason for any of the reasons
stated above only if (A) the Executive has provided the Company with written
notice of the asserted Good Reason Condition within ninety (90) days after its
initial existence; (B) the Company fails to cure the condition within thirty
(30) days after receiving such written notice; and (C) the Executive terminates
this employment within one hundred and eighty (180) days following_ the initial
existence of the Good Reason condition.
(e) The
Executive’s employment may be terminated by the Company or by the Executive with
or without Cause or Good Reason.
11
10. Compensation upon
Termination.
(a) If the
Executive’s employment is terminated as a result of his death or Disability, the
Company shall pay to the Executive or to the Executive’s estate, as applicable,
(i) his Base Salary through the date of his termination, benefits (if disabled),
and any expense reimbursement amounts owed the Executive, (ii) the Guaranteed
Bonus pro rated to the date of the Executive’s death or Disability, and (iii)
any accrued but unpaid Annual Milestones Bonuses earned by the Executive prior
to the date of the Executive’s death or Disability. Subject to Section 10(f),
any such payments of Base Salary, Guaranteed Bonus and Annual Milestones Bonuses
shall be made to the Executive or to the Executive’s estate, as applicable,
within ninety (90) days after his death or Disability. All Employment
Options and Stock Options that are scheduled to vest on the next succeeding
anniversary of the Commencement Date shall be accelerated and deemed to have
vested as of the termination date. Other than the Employment Options
and Stock Options described in the preceding sentence, all Employment Options
and Stock Options that have not vested as of the date of termination shall be
terminated as of such date. Stock Options that have vested as of the
Executive’s termination shall remain exercisable for ninety (90) days following
such termination.
(b) If the
Executive’s employment is terminated by the Board for Cause, then the Company
shall pay to the Executive his Base Salary through the date of his termination
and any expense reimbursement amounts owed the Executive. The
Executive shall have no further entitlement hereunder to any other compensation
or benefits from the Company except to the extent otherwise provided by
law. All Employment Options and Stock Options that have not vested as
of the date of termination shall be terminated as of such date. Stock
Options that have vested as of the Executive’s termination shall remain
exercisable for ninety (90) days following such termination.
(c) If the
Executive’s employment is terminated by the Company other than as a result of
the Executive’s death or Disability and other than for reasons specified in
Section 10(b) or 10(d), or if the Executive terminates his employment for Good
Reason, then the Company shall (i) continue to pay to the Executive his Base
Salary and benefits for a period of six (6) months following the termination of
the Term (the “Section
10(c) Termination Benefits Period”); (ii) pay the Guaranteed Bonus pro
rated to the date of the Executive’s termination; (iii) pay any accrued but
unpaid Annual Milestones Bonuses earned by the Executive; and (iv) pay any
expense reimbursement amounts owed the Executive. Subject to Section 10(f), (i)
any such payments of Base Salary shall be made to the Executive on the Company’s
normal payroll dates during the Section 10(c) Termination Benefits Period, and
(ii) any such payments of the Guaranteed Bonus and Annual Milestones Bonuses
shall be made to the Executive by the date that is no later than ninety (90)
days following the Executive’s termination. In addition, in the event
of any such termination, all Employment Options and Stock Options that are
scheduled to vest during the twelve (12) month period following such termination
shall be accelerated and deemed to have vested as of the termination
date. All Stock Options that have vested (or been deemed pursuant to
the immediately preceding sentence to have vested) as of the date of the
Executive’s termination shall remain exercisable for a period of ninety (90)
days.
(d) If the
Executive’s employment is terminated by the Company (or its successor) upon the
occurrence of a Change of Control, and on the date of termination pursuant to
this Section 10(d) the fair market value of the Company’s Common Stock, in the
aggregate, as determined in good faith by the Board on the date of such Change
of Control, is more than $35,000,000, then the Company (or its successor, as
applicable) shall continue to pay to the Executive his Base Salary and benefits
for a period of six (6) months following the termination of the Term (the “Section 10(d) Termination
Benefits Period”, referred to along with the Section 10(c) Termination
Benefits Period as the “Termination Benefits
Period”). In addition, in the event of any such termination, the Company
agrees to pay the Executive (i) the Guaranteed Bonus pro rated to the date of
the Executive’s termination, (ii) any accrued but unpaid Annual Milestones
Bonuses earned by the Executive prior to the date of his termination, and (iii)
any expense reimbursement amounts owed the Executive. Subject to
Section 10(f), (i) any such payments of Base Salary shall be made to the
Executive on the Company’s normal payroll dates during the Section 10(d)
Termination Benefits Period, and (ii) any such payments of the Guaranteed Bonus
and Annual Milestones Bonuses shall be made to the Executive by the date that is
no later than ninety (90) days following the Executive’s
termination. Vesting of all Employment Options and Stock Options
shall be accelerated in full and deemed to have fully vested as of the
termination date. Stock Options that have vested as of the
Executive’s termination shall remain exercisable for ninety (90) days following
such termination.
12
(e) If the
Executive’s employment is terminated by the Company other than for reasons
specified in Sections 10(b), or by the Executive for Good Reason, within ninety
(90) days prior to the occurrence of the Market Capitalization Milestone, then
the Company shall pay to the Executive the applicable cash bonus described in
Section 5(d) of this Agreement as if the Executive were employed by the Company
on the date of such occurrence.
(f) Notwithstanding
anything to the contrary in this Agreement, the following shall apply to any
benefits provided under Section 10 that constitute “deferred compensation”
within the meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the
regulations and other guidance thereunder and any state law of similar effect
(collectively “Section
409A”):
(i) Any
payment of such benefits shall not commence in connection with the Executive’s
termination of employment unless and until the Executive has also incurred a
“separation from service,” (as defined in Treasury Regulations Section
1.409A-1(h)) (“Separation from
Service”) or such termination of employment is due to the Executive’s
death, unless the Company reasonably determines that such amounts may be
provided to the Executive without causing the Executive to incur the adverse
personal tax consequences under Section 409A.
(ii) It is
intended that (A) each installment of any such benefits be regarded as a
separate “payment” for purposes of Treasury Regulations Section
1.409A-2(b)(2)(i), (B) all payments of any such benefits satisfy, to the
greatest extent possible, the exemptions from the application of Section 409A
provided under Treasury Regulations Sections 1.409A-1(b)(4) and
1.409A-1(b)(9)(iii), and (C) any such benefits consisting of premiums payable
under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) also satisfy,
to the greatest extent possible, the exemption from the application of Section
409A provided under Treasury Regulations Section 1.409A-1(b)(9)(v). However, if
the Company determines that any such benefits constitute “deferred compensation”
under Section 409A and the Executive is a “specified employee” of the Company,
as such term is defined in Section 409A(a)(2)(B)(i), then, solely to the extent
necessary to avoid the imposition of the adverse personal tax consequences under
Section 409A, (i) the timing of such benefit payments shall be delayed until the
earlier of (a) the date that is six (6) months and one (1) day after the
Executive’s Separation from Service and (b) the date of the Executive’s death
(such applicable date, the “Delayed Initial Payment
Date”), and (ii) the Company shall (a) pay the Executive a lump sum
amount equal to the sum of the benefit payments that the Executive would
otherwise have received through the Delayed Initial Payment Date if the
commencement of the payment of the benefits had not been delayed pursuant to
this paragraph and (b) commence paying the balance, if any, of the benefits in
accordance with the applicable payment schedule.
(g) This
Section 10 sets forth the only obligations of the Company with respect to the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided in
Section 10.
(h) Upon
termination of the Executive’s employment hereunder for any reason, the
Executive shall be deemed to have resigned as director of the Company, effective
as of the date of such termination.
(i) The
obligations of the Company that arise under this Section 10 shall survive the
expiration or earlier termination of this Agreement.
13
11. Indemnification. The
Company shall defend and indemnify the Executive in his capacity as President
and Chief Executive Officer of the Company to the fullest extent permitted under
to the Delaware General Corporate Law (the “DGCL”) and the
California Labor Code. The Company shall also establish a policy for
indemnifying its officers and directors, including but not limited to the
Executive, for all actions permitted under the DGCL taken in good faith pursuit
of their duties for the Company, including but not limited to the obtaining of
an appropriate level of Directors and Officers Liability coverage and including
such provisions in the Company’s by-laws or certificate of incorporation, as
applicable and customary. The rights to indemnification shall survive
any termination of this Agreement.
12. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California, without giving effect to its
principles of conflicts of laws.
(b) Executive
and Company agree that any and all controversies or claims (whether contract,
tort or statutory) between Executive and the Company arising out of Executive’s
employment, the termination of that employment, and any agreements previously or
hereafter entered into by Executive and Company in connection with such
employment relationship, that could have been filed in a court of law (or an
administrative agency) shall be settled by final and binding
arbitration. The claims covered by this Agreement include, but are
not limited to, claims for wrongful termination, wages or other compensation
due, breach of contract, tort, discrimination or harassment (including race,
sex, religion, national origin, age, marital status, medical condition or
disability), violation of any public policies, and claims for violation of
federal, state or other governmental law, statute, regulation or
ordinance.
(c) The
arbitration shall be conducted in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect before a single arbitrator mutually selected by the Executive and the
Company. For the purpose of any judicial proceeding to enforce such
award or incidental to such arbitration or to compel arbitration and for
purposes of Sections 6 and 7 hereof, the parties hereby submit to the
non-exclusive jurisdiction of the Superior Court of State of California, San
Diego County, or the United States District Court for the Southern District of
California, and agree that service of process in such arbitration or court
proceedings shall be satisfactorily made upon it if sent by registered mail
addressed to it at the address referred to below in paragraph (m) of this
Section 12.
(d) The
Arbitrator shall be empowered to award any party any remedy at law or in equity
that the prevailing party would otherwise have been entitled to had the matter
been litigated or pursued in a civil court or administrative forum including,
but not limited to, general, special, and punitive damages, and injunctive
relief. However, the Arbitrator’s authority to award any remedy is
subject to whatever limitations, if any, exist in the applicable law on such
remedies. Any award pursuant to arbitration hereunder shall be
included in a written decision that will state the legal and factual basis for
the award and shall set forth the basis for calculating any damages
award. The arbitrator’s award, order or judgment shall be deemed
final and binding upon the parties, except to the extent that it is shown to be
violative of the law.
14
(e) A demand
for arbitration must be submitted within the limitations period that would be
applicable in court. If either party does not submit and serve a
written demand for arbitration within the applicable statute of limitations,
such failure shall constitute an absolute bar to the institution of any
proceedings in any forum, and shall constitute a waiver of any rights regarding
that claim.
(f) Neither
party nor the arbitrator may disclose the existence, content or results of any
arbitrations under this Agreement without the prior written consent of all
parties hereto.
(g) Pending
such resolution of any claim, the Executive shall be entitled to continue to
receive all payments and benefits due under this Agreement or otherwise, unless
the arbitration panel determines otherwise. Judgment on the
arbitration award may be entered by any court of competent
jurisdiction.
(h) Nothing
in this Agreement shall prevent the parties from agreeing voluntarily after a
claim or controversy has arisen to submit such claim or controversy to mediation
or other informal settlement process. However, if the dispute is not
resolved through mediation or such other process, it shall be submitted to
binding arbitration pursuant to this Agreement.
(i) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and
assigns.
(j) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign its rights,
together with its obligations, hereunder in connection with any sale, transfer
or other disposition of all or substantially all of its business or
assets.
(k) This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the parties hereto.
(l) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of either party
shall be effective for any purpose whatsoever unless such waiver is in writing
and signed by such party.
15
(m) All
notices, requests, consents and other communications, required or permitted to
be given hereunder, shall be in writing and shall be delivered personally or by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier or when actually received if sent by
registered or certified mail. Each party may designate another address, for
receipt of notices hereunder by giving notice to the other party in accordance
with this paragraph (m) of this Section 12.
(n) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(o) As used
in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified
Person.
(p) The
section headings contained herein are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Agreement.
(q) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument.
(r) As used
in this Agreement, the masculine, feminine or neuter gender, and the singular or
plural, shall be deemed to include the others whenever and wherever the context
so requires. Additionally, unless the context requires otherwise,
“or” is not exclusive.
Remainder
of Page Intentionally Left Blank; Signature Page Follows
16
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall be
deemed effective as of the Commencement Date set forth herein.
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PACIFIC
BEACH BIOSCIENCES, INC.
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By:
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/s/
J. Xxx Xxxxxx
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Name:
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J.
Xxx Xxxxxx
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Title:
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XXXXXXX
X. XXXXXX, MD, MBA, FIDSA
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/s/
Xxxxxxx X. Xxxxxx, MD, MBA, FIDSA
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17
