Exhibit 10.10
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective as of April 12, 2000 (the
"Agreement"), by and between EYETECH PHARMACEUTICALS, INC., a Delaware
corporation (the "Company"), and XXXXX X. XXXXX (the "Executive").
RECITALS
WHEREAS, the Executive is a founder of the Company and the Board of
Directors (the "Board") wishes to formalize the terms and conditions of the
relationship between the Executive and the Company; and
WHEREAS, the Executive wishes to provide his time and services to the
Company pursuant to an employment relationship and set forth the terms and
conditions of such employment;
NOW, THEREFORE, in consideration of the premises and the agreements and
provisions hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Executive and
the Company agree as follows:
SECTION 1. Engagement of Executive; Title; Reporting Responsibilities. (a)
The Company hereby engages the Executive, and the Executive hereby agrees to
serve, as and with the title "Chief Executive Officer, reporting directly to the
Board. The Executive shall have the rights and duties that would be held and
discharged by the senior most executive officer of a
biotechnology/pharmaceuticals company comparable to the Company, including
overall management, strategic guidance and responsibility for all aspects of the
Company's business, scientific and medical affairs, and such other duties as the
Board may assign and the Executive and the Board may mutually agree that the
Executive shall perform (collectively, the "Duties.")
(b) Executive hereby represents and warrants to the Company that no
other party has exclusive rights to Executive's services in the areas described
in Section 2 below and that Executive's performance of all the terms of this
Agreement does not and will not (i) breach or conflict with any prior agreement
or contract to which Executive is bound (ii) compromise any right or trust
relationship between Executive and a third party or (iii) create a conflict of
interest for the Executive or the Company. Executive shall promptly disclose to
the Company any circumstance or relationship with any third party that
constitutes a conflict of interest or breach of this Agreement. Executive agrees
that he will enter into a Non-Disclosure and Proprietary Information Agreement
with the Company as a condition to the effectiveness of this Agreement. The
Company acknowledges and agrees that Executive has a faculty position at the New
York University School of Medicine ("NYUSM") and in private practice. Executive
represents and warrants that his services at NYUSM and in private medical
practice will not conflict or interfere with the discharge of his Duties to the
Company.
SECTION 2. Compensation. (a) SALARY: In consideration of the Executive's
services to the Company, the Company will pay Executive a salary of $308,275 per
year (the "Salary"), effective February 1, 2001. Executive will also be eligible
for merit or other increases in Salary to
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the extent such increases are approved by the Board. The Salary will be paid
bi-weekly (i.e., in two installments per month) in accordance with the Company's
payroll procedures. The Salary will be subject to and be paid net of all
applicable withholding taxes and deductions. Executive acknowledges he has
received all salary amounts due him for the period from April 12, 2000 through
February 1, 2001, when he received salary at a rate of $300,000 per year.
(b) BONUS: Executive shall be eligible to receive an annual bonus,
based on his performance and the Company's results, as determined in the sole
discretion of the Board.
(c) EQUITY: In addition to any shares of the Company's common stock,
$.01 par value ("Common Stock"), or Preferred Stock that the Executive may own
as of the date hereof, by virtue of his subscription as a founder of the
Company, the Executive shall be entitled to participate in any stock option
plans or programs, on terms and conditions to be determined at the time of
grant, to which senior management of the Company is eligible, as determined in
the discretion of the Board (the "Management Options"). The Company acknowledges
that, as of the date hereof, the Executive owns 1,500,000 shares of the
Company's Common Stock ("Founders' Stock") and that such stock constitutes
founders' shares to which Executive is entitled by virtue of his activities to
establish the Company and were not awarded to Executive in connection with, or
as compensation for, Executive's management role or duties with the Company. The
Founders' Stock shall vest so long as Executive remains a director or consultant
to the Company without regard to whether Executive holds or maintains a
management position with the Company. The termination or modification of this
Agreement for any reason shall not affect Executive's ownership to and rights in
his Founders' Stock. In the event that this Agreement is terminated for any
reason, the Executive shall not be entitled to receive any of the Management
Options granted that have not vested as of the date this Agreement terminates;
provided, however, if any Options have been granted to Executive in a capacity
other than as CEO of the Company (e.g., member of the Board of Directors,
consultant, etc.) (the "Non-Management Options"), the specific terms of the
grants(including, without limitation, with respect to vesting and forfeiture)
rather than this section shall govern with respect to those Non-Management
Options; and provided, further, if the Executive remains with the Company in a
managerial or other capacity with the Company, the Management Options shall
continue to vest.
(d) BENEFITS AND VACATION. Executive shall be eligible to receive
all benefits made available to other senior executives of the Company,
including, without limitation, health care, dental insurance, life insurance
disability and 401(k) savings plans (collectively, the "Benefits"). Please call
the Company's Vice President - Finance, Xx. Xxxxxxx X'Xxxxxx, at 000-000-0000, x
115, for additional details about the Benefits for which you are eligible.
Consistent with the Company's vacation policy, Executive shall also be entitled
to take a total of 3 weeks of paid vacation per year during the Term. Executive
shall also be eligible for and his benefits hereunder shall be governed by any
sick leave, discretionary leave or other similar employee benefit policies that
the Company adopts.
SECTION 3. Term and Termination. (a) Term - The Executive's retention
under this Agreement shall be for a term (the "Term"), the effective
commencement date of which is
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April 12, 2000 (the "Start Date") and ending on April 12, 2004 (or, if April 12,
2004 is not a business day, the next business day thereafter), unless earlier
terminated as provided below or upon mutual agreement of the Parties. In
addition, the Term may be extended upon mutual agreement of the Parties.
(b) Termination Events - This Agreement shall terminate upon the
occurrence of any of the following events:
(i) Death or Disability. This Agreement, and Executive's
obligations under this Agreement, shall terminate immediately upon Executive's
death or Long-term Disability. "Long-term disability" shall be defined for
purposes of this Agreement as Executive's inability to discharge his duties for
six consecutive months during the Term. In the event of Executive's death or
Long-term Disability, Executive or his estate shall be entitled to receive all
Salary and other compensation earned through the date of death or disability as
well the amount of any Options vested as of the death or disability date as well
as reimbursement of all reasonable Expenses incurred on or prior to such date;
or
(c) Cause. The Company may terminated this Agreement and be relieved
of its obligations under this Agreement for "Cause." "Cause" for purposes of
this Agreement shall be defined as Executive's gross negligence in the
performance of his Duties hereunder; conviction of any criminal or civil law
involving moral turpitude; or intentional and willful misconduct that is
materially harmful to the best interests of the Company.
(d) Change in Title/Status. If at any point during the Term, the
Executive chooses, with the agreement of the Board, to relinquish his position
as Chief Executive Officer of the Company and assume another management position
or title with the Company or become a consultant to the Company, Executive's
resignation as Chief Executive Officer and assumption of the new management or
consulting position with the Company shall not be regarded as a termination
event for purposes of this section, and Executive shall continue to receive all
compensation (including, without limitation, his Salary as then in effect and
any Options) provided hereunder that is payable to Executive over the Term of
this Agreement.
(e) Executive's Termination Right. Executive may terminate this
Agreement at any time for any reason upon at least 30 days' written notice to
the Company and shall receive all earned but unpaid Salary to the effective date
of such termination of plus all awarded but unpaid Bonus plus all vested Options
or Equity (subject to the Company's repurchase rights, if any, with respect to
such Options or Equity) plus reimbursement of Expenses (as defined below)
incurred prior to the effective date of termination.
(f) Severance. If the Executive is terminated for any reason other
than Cause, he shall be entitled to receive a severance package to be negotiated
between the Board and the Executive within 90 days of the date of this
Agreement; provided, however in no event shall the severance payment to the
Executive be less than 1 year's worth of the Salary then in effect and
acceleration for the vesting of at least 12 months' worth of Executive's
Options.
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SECTION 4. Expense Reimbursement. Executive shall be entitled to
reimbursement for reasonable and necessary travel and other expenses incurred by
Executive in connection with her performance of the Duties ("Expenses");
provided that such expenses (i) are incurred for or on behalf of the Company in
the performance of the Executive's duties under this Agreement; and (ii) are
documented in compliance with the Company's expense reimbursement procedures so
as to verify the amount, nature and date of such expenses. The Company will
promptly reimburse Executive for such expenses upon receipt of the supporting
documentation referred to above and in accordance with the Company's
reimbursement policies and procedures.
SECTION 5. Continuing Obligations after Termination. The Executive and the
Company hereby acknowledge and agree that they have entered into the
Non-Disclosure and Proprietary Information Agreement, which is attached hereto
as Exhibit A and that the terms, conditions and covenants contained in such
agreement remain in full force and effect and is not in any way modified by the
execution of this Agreement by the Executive and the Company.
SECTION 6. Miscellaneous. (a) All notices and other communications made in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given if (i) mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, (ii) transmitted by hand delivery,
(iii) sent by next-day or overnight mail or delivery, or (iv) sent by fax,
telecopy or telegram, addressed as follows:
if to the Company
Eyetech Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 212) 000-0000
Phone: (000) 000-0000
Attn: Xxxx XxXxxxxxxx, Chairman of the Board
if to Executive:
Xxxxx X. Xxxxx, M.D.
000 X. 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Phone: 000-000-0000
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
(b) No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing, and is signed by Executive and the Company. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof has been made by any party hereto which is not set forth
expressly in this
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Agreement. This Agreement supersedes all prior agreements between the parties
hereto with respect to the subject matter hereof.
(c) This Agreement shall be governed in all respects, including as
to validity, interpretation and effect, by the internal laws of the State of New
York without giving effect to the conflict of laws rules thereof.
(d) (i) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF
NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE
SOUTHERN DISTRICT OF THE STATE OF NEW YORK SOLELY IN RESPECT OF THE
INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND IN
RESPECT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS
AGREEMENT HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION,
SUIT OR PROCEEDING FOR THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT, OR
IN RESPECT OF ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, THAT SUCH ACTION,
SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR
THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH
DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS. EACH PARTY TO THIS AGREEMENT
HEREBY CONSENTS TO AND GRANTS ANY SUCH COURT JURISDICTION OVER SUCH PARTY AND
OVER THE SUBJECT MATTER OF ANY SUCH DISPUTE AND AGREES THAT THE MAILING OF
PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE
MANNER PROVIDED IN THE NOTICES SECTION OF THIS AGREEMENT OR IN SUCH OTHER MANNER
AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
(e) This Agreement shall bind and inure to the benefit of and be
enforceable by the Company and Executive and their respective successors and
assigns; provided, however, neither the Company nor Executive may assign this
Agreement without the prior written consent of the other party.
(f) This Agreement may be amended from time to time only by written
agreement of the Company and the Executive. No terms or provisions of this
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by the party against whom such waiver or modification is
sought to be enforced. No failure on the part of the Company to exercise and no
delay in exercising, any right, power or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Agreement preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided in this agreement are
cumulative and not exclusive of any remedies provided by law.
(g) Neither the Company nor Executive is the agent or representative
of the other, and nothing in this Agreement shall be construed to make either
the Company or Executive liable to any third party for services performed by
such third party or for debts or claims accruing to such third party against
either the Company or Executive. Nothing contained in this Agreement or the acts
of the parties hereto shall be construed to create a partnership, agency or
joint venture.
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(h) No recourse under this Agreement shall be had against, and no
personal liability shall attach to, any officer, director, affiliate or
shareholder of the Company, as such, by the enforcement of any assessment of by
any legal or equitable proceeding, by virtue of any statute or otherwise in
respect of this Agreement, it being expressly agreed and understood that this
Agreement is solely a corporate obligation of the Company. The Company shall
obtain directors and officers liability insurance for acts and omissions of the
Executive in the course of discharging his Duties and the Company shall
indemnify Executive against any claims or liabilities as provided in and to the
extent permitted by the Company's organizational documents and applicable law.
(i) The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement which shall remain in full force and
effect.
(j) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but both of which shall together constitute
one and the same instrument.
(k) The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this agreement as of the
year and date first above written.
EYETECH PHARMACEUTICALS, INC.
By: /s/ XXXXX XXXXX
------------------------------
Name:
Title: Board of Directors
Compensation Committee
EXECUTIVE:
/s/ XXXXX X. XXXXX, M.D.
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Xxxxx X. Xxxxx, M.D.
