Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement by and between KERYX BIOPHARMACEUTICALS, INC. ("Keryx"),
a Delaware corporation having an address at 000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 and XXXXX XXXXX, an individual residing at 00 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Xxxxx").
WITNESSETH:
WHEREAS, the Corporation desires to employ Xxxxx as Vice President,
Business Development of Keryx and Xxxxx desires to be employed by the Keryx as
Vice President, Business Development of Keryx, all pursuant to the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT DUTIES
Keryx hereby engages and employs Xxxxx, and Xxxxx accepts engagement
and employment, as Vice President, Business Development of Keryx, to direct,
supervise and have responsibilities for the business development affairs of
Keryx and for any other appropriate areas and tasks which the Board of Directors
and/or the Chief Executive Officer may assign to him. Xxxxx acknowledges and
agrees that the performance by Xxxxx of his duties hereunder may require
significant domestic and international travel by Xxxxx.
2. TERM
Xxxxx'x employment hereunder shall be for a term of three (3) years
commencing on __________, and continuing through __________ (the "Initial
Term"), with successive one-year renewals thereafter (the "Renewal Terms")
unless sooner terminated as hereinafter provided. (The Initial Term and Renewal
Terms are collectively referred to as the "Term.")
3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of
Keryx, Xxxxx shall be compensated as follows:
(i) BASE SALARY. Xxxxx shall receive an annual gross base salary of
one hundred and seventy five thousand dollars ($175,000) payable in accordance
with the Corporation's payroll policies and subject to standard payroll
deductions and withholdings. The Corporation's Board of Directors shall review
Xxxxx'x performance and the Corporation's financial and operating results on at
least an annual basis, and may increase Xxxxx'x base salary as it, in its
reasonable discretion, deems appropriate based on such review.
(ii) BONUS. Xxxxx shall be eligible to receive one or more bonuses
during any calendar year as set forth in Appendix A to this Agreement.
(iii) EQUITY. The Corporation will xxxxx Xxxxx options (the
"Options") to purchase 60,000 shares of the common stock of the Corporation (the
"Initial Grant") at an exercise price equal to the closing price of Keryx common
stock on Nasdaq on the day prior to the start of Xxxxx'x employment (the
"Exercise Price"), which options shall be exercisable for a period of 10 years
from the date of issuance. Xxxxx'x Options will be granted under the
Corporation's 2000 Stock Option Plan (the "Plan") and will be subject to the
terms and conditions thereof, including any Stock Option Agreement entered into
by Xxxxx and the Corporation thereunder. In accordance with the Plan, should any
change be made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Common Stock as a class without the Corporation's
receipt of consideration, appropriate adjustments shall be made to (A) the total
number and/or class of securities subject to such options and (B) the Exercise
Price in order to
reflect such change and thereby preclude a dilution or enlargement under such
options. Fifteen thousand shares of the Initial Grant shall vest on each
anniversary date following the grant date of such options, provided that at the
time of vesting, Xxxxx is employed by the Corporation or by a parent, subsidiary
or affiliate of the Corporation. The remaining fifteen thousand shares of the
Initial Grant shall vest as set forth in Appendix A. In the event that the
Corporation is acquired or is merged with another entity where the Corporation
is not the surviving entity any outstanding but unvested options previously
granted to Xxxxx shall vest immediately prior to the closing of such acquisition
or merger.
(b) EXPENSES. Keryx shall reimburse Xxxxx for all normal, usual and
necessary expenses incurred by Xxxxx in furtherance of the business and affairs
of Keryx, including travel and entertainment, against receipt by Keryx of
appropriate vouchers or other proof of Xxxxx'x expenditures and otherwise in
accordance with such Expense Reimbursement Policy as may from time to time be
adopted by the Board of Directors of Keryx.
(c) AUTOMOBILE EXPENSES. Xxxxx shall be entitled to receive
reimbursement for the leasing and use of a personal automobile for business
purposes up to an annual maximum of $12,000 per year.
(d) ANNUAL LEAVE AND HOLIDAYS. Xxxxx shall be entitled during the term
of this Agreement to twenty (20) business days of annual leave per year as well
as the following holidays: New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and the day following, and
Christmas Day.
(e) EMPLOYEE BENEFITS. During the Term of his employment, Xxxxx shall
be entitled to participate in all employee and fringe benefit plans and programs
generally offered to other members of the Corporation's management who are
similarly situated, including, without limitation, any pension, profit sharing,
incentive, retirement, insurance, health and disability benefits and plans. The
Corporation reserves its right to modify or terminate any of its employee and
fringe benefit plans and programs at any time.
4. REPRESENTATIONS AND WARRANTIES
BY XXXXX AND KERYX
(a) Xxxxx hereby represents and warrants to Keryx as follows:
(i) Neither the execution and delivery of this Agreement nor the
performance by Xxxxx of his duties and other obligations hereunder violate any
statute, law, determination or award, or conflict with or constitute a default
under (whether immediately, upon the giving of notice or lapse of time or both)
any prior employment agreement, contract, or other instrument to which Xxxxx is
a party or by which he is bound.
(ii) Xxxxx 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
Xxxxx enforceable against him in accordance with its terms. No approvals or
consents of any persons or entities are required for Xxxxx to execute and
deliver this Agreement or perform his duties and other obligations hereunder.
(iii) Xxxxx will devote his entire business time, energy, abilities
and experience to the performance of his duties, effectively and in good faith.
Further, during the Term, Xxxxx shall not render services as an employee,
consultant or otherwise, whether or not during regular business hours, for pay
to any other party other than the Corporation without the written permission of
the Chief Executive Officer.
(b) Keryx hereby represents and warrants to Xxxxx as follows:
(i) Keryx is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite corporate power and
authority to own its properties and conduct its business in the manner presently
conducted.
(ii) Keryx has the full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(iii) The execution, delivery and performance by Keryx of this
Agreement does not conflict with or result in a material breach or violation of
or constitute a material default under (whether immediately, or upon the giving
of notice or lapse of time or both) the certificate of incorporation or by-laws
of Keryx, or any agreement or instrument to which Keryx is a party or by which
Keryx or any of its properties may be bound or affected.
5. CONFIDENTIAL INFORMATION
Xxxxx agrees to sign and comply with the Corporation's Proprietary
Information and Inventions Agreement, annexed hereto as Appendix B.
6. NON-COMPETITION
(a) Xxxxx understands and recognizes that his services to Keryx are
special and unique and agrees that, during the Term, and for a period of 12
months from the date of cessation of his employment hereunder, 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, either as an individual for his own
account, or as a partner, joint venturer, treasurer, agent, consultant,
salesperson, officer, director or shareholder of a Person, directly competitive
with Keryx's actual and specific business as of the date of cessation his
employment (the "Restricted Business"); provided, however, that nothing herein
will preclude Xxxxx from holding one percent (1%) or less of the stock of any
publicly traded Corporation or from holding a position with a Person who may
engage in a business directly competitive with the Restricted Business so long
as Xxxxx works solely in a division of such Person which carries on a bona fide
business which is not directly competitive with the Restricted Business.
(b) In the event that Xxxxx breaches any provisions of this Section 6
or there is a threatened breach, then, in addition to any other rights which
Keryx may have, Keryx shall be entitled, without the posting of a bond or other
security, to injunctive relief to enforce the restrictions contained herein. In
the event that an actual proceeding is brought in equity to enforce the
provisions of this Section 6, Xxxxx shall not argue as a defense that there is
an adequate remedy at law nor shall Keryx be prevented from seeking any other
remedies that may be available.
7. NON-SOLICITATION AND NON-INTERFERENCE
During the Term, and for 12 months thereafter, Xxxxx shall not,
directly or indirectly, without the prior written consent of Keryx:
(a) solicit or induce any employee of Keryx or any subsidiary, parent,
affiliate or successor ("Affiliate") of Keryx to leave the employ of Keryx or
any Affiliate or hire for any purpose any employee of Keryx or any Affiliate or
any employee who has left the employment of Keryx or any Affiliate within six
months of the termination of said employee's employment with Keryx; or
(b) interfere with or disrupt or attempt to disrupt Keryx's or its
Affiliates' business relationship with any of their partners, service providers,
clients, customers and/or suppliers.
8. TERMINATION
(a) Either party may terminate Xxxxx'x employment with the Corporation
without cause at any time upon three (3) months notice. The Corporation shall
have the right, in its sole discretion, to require Xxxxx to continue working for
the Corporation during the notice period. If the Employer terminates the
Employee without cause pursuant to this section, and provided that Xxxxx
executes a waiver and release of claims substantially in the form set forth in
Appendix C, attached hereto, Xxxxx shall be entitled to receive up to six (6)
months of his base salary as severance, inclusive of the three (3) month notice
period. Such severance shall be payable on a month-to-month basis, in arrears,
and shall cease as soon as Xxxxx accepts alternative employment. Furthermore,
Xxxxx'x receipt of such
severance shall be contingent upon his demonstrating best efforts to obtain such
alternative employment during the severance period. The Corporation shall be
entitled to request that Xxxxx produce appropriate evidence of such best
efforts. The Board of Directors shall also take the necessary steps so that (i)
any outstanding, but unvested, options granted to the Employee shall vest upon
the effective date of his termination; and (ii) the period during which the
Employee shall be permitted to exercise such options shall be extended to two
(2) years from the effective date of his termination as defined in the Stock
Option Plan governing the options in question.
(b) Xxxxx'x employment shall be terminated by his death or disability.
(For purposes of this section, "disability" shall be deemed to have occurred if
Xxxxx is unable, due to any physical or mental disease or condition, to perform
his normal duties of employment for 120 consecutive days or 180 days in any
twelve-month period, as certified by a physician mutually acceptable to both
Xxxxx and the Corporation.) In such an event, he shall be entitled to continue
to receive his base salary for three (3) months following his last day of actual
(i) any outstanding, but unvested, options granted to the Employee shall vest
upon the effective date of his termination; and (ii) the period during which the
Employee shall be permitted to exercise such options shall be extended to two
(2) years from the effective date of his termination as defined in the Share
Option Plan governing the options in question. Should the Employee's employment
be terminated as a result of his death, the benefits granted herein, shall be
granted instead to his lawful heir or heirs. In either case (disability or
death), accelerated vesting and extended exercise of the options will only be
granted if Xxxxx or, in the case of his death, his legal successor, together
with his lawful heir or heirs, execute a waiver and release of claims
substantially in the form set forth in Appendix C, hereto.
(c) Notwithstanding the foregoing, the Corporation may terminate Xxxxx
immediately and without prior notice in the following circumstances: (i) a
material breach of Xxxxx'x obligations pursuant to Sections 5, 6 and/or 7; (ii)
a material breach by Xxxxx of any other provision of this Agreement, which is
not cured by Xxxxx within thirty (30) days after receiving notice thereof from
the Corporation containing a description of the breach or breaches alleged to
have occurred; (iii) the habitual neglect or gross failure by Xxxxx to
adequately perform the duties of his position; (iv) any act of moral turpitude
or criminal action connected to his employment with the Corporation or his place
of employment; or (e) Xxxxx'x refusal to comply with or his violation of lawful
instructions of the Chief Executive Officer or the Board of Directors.
(d). In the event that Xxxxx'x employment has been terminated in
accordance with Section 8(c), above, Xxxxx shall not be entitled to receive any
of the severance benefits set forth in Section 8(a) or (b), above.
9. INDEMNIFICATION
The Corporation shall take whatever steps are necessary to establish a
policy of indemnifying its officers, including, but not limited to Xxxxx, for
all actions taken in good faith in pursuit of their duties and obligations to
the Corporation. Such steps shall include, but shall not necessarily be limited
to, the obtaining of an appropriate level of Directors and Officers Liability
coverage.
10. NOTICES
Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been given when delivered personally against
receipt thereof; two (2) business days after being sent by Federal Express or
similar internationally recognized courier service; or seven (7) business days
after being mailed registered or certified mail, postage prepaid, return receipt
requested, to either party at the address set forth above, or to such other
address as such party shall give by notice hereunder to the other party.
11. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the
extent they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
12. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth herein. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
13. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, Keryx, its successors and assigns, and upon Xxxxx
and his legal representatives. This Agreement constitutes a personal service
agreement, and the performance of Xxxxx'x obligations hereunder may not be
transferred or assigned by Xxxxx.
14. NON-WAIVER
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 said
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. GOVERNING LAW
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Massachusetts without regard to
principles of conflicts of law. Additionally, the prevailing party in any
litigation shall be entitled to an additional award of its attorney fees, cost
and expenses.
16. REMEDIES FOR BREACH
Xxxxx understands and agrees that any breach of Sections 4(a) 5, 6
and/or 7 of this Agreement by him could cause irreparable damage to Keryx and to
the Affiliates, and that monetary damages alone would not be adequate and, in
the event of such breach, Keryx shall have, in addition to any and all remedies
of law, the right to an injunction, specific performance or other equitable
relief to prevent or redress the violation of Keryx's rights under such
Sections.
17. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EMPLOYEE:
By:
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Name: Xxxxx Xxxxx
KERYX BIOPHARMACEUTICALS, INC.
By:
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Name:
Title:
APPENDIX A
EMPLOYEE BONUS PLAN
Pursuant to his employment agreement with Keryx, Xxxxx will be entitled to
receive cash bonuses as follows: (1) 5% of base salary upon the closing of an
outlicensing deal worth at least $10 million during his employment; (2) 10% of
base salary upon the closing of an outlicensing deal worth at least $20 million
during his employment; and (3) 15% of base salary upon the closing of an
outlicensing deal worth at least $30 million during his employment. For purposes
of illustration, if three outlicensing deals worth at least $30 million each are
closed during his employment, Xxxxx will be entitled to a bonus equal to 45% of
his base salary. Any bonuses earned will be paid once each year in accordance
with Keryx's general employee bonus plan.
In addition, 5,000 shares of the Initial Grant shall vest upon the closing of
the each of the first three outlicensing deals closed during Xxxxx'x employment.
In the event that Xxxxx has not earned at least three cash bonuses within two
years of start of his employment, this bonus plan will be cancelled and Keryx
will create a new incentive plan. Such a cancellation will also result in the
cancellation of any of the 15,000 options that have not yet vested pursuant to
the terms of this bonus plan.
APPENDIX B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Keryx
Biopharmaceuticals, Inc. (together with any subsidiary of Keryx
Biopharmaceuticals, Inc., the "Company"), and the compensation now and hereafter
paid to me, I hereby agree as follows:
1. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
the term of my employment and thereafter, I will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the Company's
Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Company, or
unless an officer of the Company expressly authorizes such in writing.
The term "Proprietary Information" shall mean trade secrets,
confidential knowledge, data or any other proprietary information of the
Company. By way of illustration but not limitation, "Proprietary Information"
includes (a) inventions, mask works, trade secrets, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques (hereinafter
collectively refereed to as "Inventions"); and (b) information regarding plans
for research, development, new products, regulatory matters, marketing and
selling, business plans, budgets and unpublished financial statements, licenses,
prices and costs, suppliers and customers; and information regarding the skills
and compensation of other employees of the Company.
2. THIRD PARTY INFORMATION. I understand, in addition, that the Company
has received, and in the future will receive, from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (except in connection with my work for the Company),
unless expressly authorized by an officer of the Company in writing.
3. ASSIGNMENT OF INVENTIONS
3.1 ASSIGNMENT
(a) I hereby assign to the Company all my right, title and
interest in and to any and all Inventions and all patent rights, copyrights,
mask work rights, trademarks, trade secret rights, all other rights throughout
the world in connection therewith, and the goodwill associated with all of the
foregoing (collectively, "Proprietary Rights"), whether or not patentable or
registrable under patent, copyright, trademark or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to, or as directed by, the Company under this Paragraph 3 are hereinafter
referred to as "Company Inventions". I agree, upon request, to execute, verify
and deliver assignments of the Proprietary Rights to the Company or its designee
and I hereby appoint the Company my attorney-in-fact with respect to the
Proprietary Rights for the purpose of effecting any or all of the Company's
rights to the Proprietary Rights.
3.1 GOVERNMENT. I also agree to assign to or as directed by the
Company all my right, title and interest in and to any and all Inventions, full
title to which is required to be assigned to the United States of America by a
contract between the Company and United States of America or any of its
agencies.
3.2 WORKS FOR HIRE. I acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works made for
hire", as that term is defined in the United States Copyright Act (17 U.S.C.
Section 101).
4. ENFORCEMENT OF PROPRIETARY RIGHTS. From time to time, I will assist
the Company in every proper way to obtain and enforce United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. My
obligation to assist the Company with respect to Proprietary Rights relating to
such Company Inventions in any and all countries shall continue beyond the
termination of my employment, but the Company shall compensate me at a
reasonable rate after my termination for the time actually spent by me at the
Company's request on such assistance.
I hereby waive and quitclaim to the Company any and all claims, of any
nature whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Company.
5. OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment, I will promptly disclose all Inventions to the Company fully and in
writing and will hold such Inventions in trust for the sole right and benefit of
the Company. In addition, after termination of my employment, I will promptly
disclose all patent applications filed by me within a year after termination of
employment.
6. PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth in Exhibit A attached hereto a complete list of all Inventions (i)
that I have, alone or jointly with others, conceived, developed or reduced to
practice or caused to be conceived, developed or reduced to practice prior to
the commencement of my employment with the Company, (ii) that I consider to be
my property or the property of third parties and (iii) that I wish to have
excluded from the scope of this Agreement. If disclosure of any such Invention
on Exhibit A would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such Inventions in Exhibit A but am to inform
the Company that all such Inventions have not been listed for that reason.
7. NO IMPROPER USE OF MATERIALS. During my employment by the Company, I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any other person to whom I have an obligation of confidentiality
unless consented to in writing by that former employer or person.
8. NO CONFLICTING OBLIGATION. I represent that my performance of all
the terms of this Agreement and my performance of my duties as an employee of
the Company do not and will not breach any agreement to keep in confidence
information acquired by me in confidence or in trust prior to my employment by
the Company. I have not entered into, and I agree I will not enter into, any
agreement either written or oral in conflict herewith.
9. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company,
I will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, molecules, cells, storage media, including
software, documents and computer printouts, together with all copies thereof,
and any other material containing or disclosing any Company Inventions, Third
Party Information or Proprietary Information of the Company. I further agree
that any property situated on the Company's premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas, is
subject to inspection by Company personnel at any time with or without notice.
Prior to leaving, I will cooperate with the Company in completing and signing
the Company's termination statement for technical and management personnel.
10. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and may become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond, without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement, and I waive the claim or defense that the Company has an adequate
remedy at law. I shall not, in any action or proceeding to
enforce any of the provisions of this Agreement, assert the claim or defense
that such an adequate remedy at law exists.
11. NOTICES. Any notices required or permitted hereunder shall be given
to me at the address specified below or at such other address as I shall specify
in writing. Such notice shall be deemed given upon personal delivery to the
appropriate address or if sent by certified or registered mail, three days after
the date of mailing.
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW. This Agreement is executed under seal and will
be governed by and construed according to the laws of the Commonwealth of
Massachusetts.
12.2 ENTIRE AGREEMENT. This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between us. No modification or
amendment of this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing, signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement. As used in this Agreement, the
period of my employment includes any time during which I may be retained by the
Company as a consultant.
12.3 SEVERABILITY. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then the remaining provisions will
continue in full forced and effect.
12.4 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
my heirs, executors, administrators and other legal representatives and will be
for the benefit of the Company, its successors, and its assigns. I may not
assign any of my rights, or delegate any of my obligations, under this
Agreement.
12.5 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
12.6 EMPLOYMENT. I agree and understand that nothing in this
Agreement shall confer on me any right with respect to continuation of my
employment with the Company, or shall it interfere in any way with my right or
the Company's right to terminate my employment at any time, with or without
cause.
12.7 WAIVER. No waiver by the Company of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Company of any right under this Agreement shall be construed as a wavier of
any other right. The Company shall not be required to give notice to enforce
strict adherence to all terms of this Agreement.
12.8 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which together shall for all purposes constitute one Agreement, binding
on each of the parties hereto notwithstanding that each such party shall not
have signed the same counterpart.
12.9 JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. In case of any
dispute hereunder, the parties will submit to the exclusive jurisdiction and
venue of any court of competent jurisdiction sitting in Suffolk County,
Massachusetts, and will comply with all requirements necessary to give such
court jurisdiction over the parties and the controversy. EACH PARTY HEREBY
WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES.
12.10 DISCLOSURE. I shall disclose the existence and terms of this
Agreement to any employer or other person that I may work for or be engaged by
after the termination of my employment or engagement at the Company. I agree
that the Company may, after notification to me, provide a copy of this Agreement
to any business or enterprise (i) which I may directly or indirectly own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, or control of, or (ii) with which I may be
connected with as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise, or in connection with
which I may use or permit my name to be used. I will provide the names and
addresses of any of such persons or entities as the Company may from time to
time reasonably request.
This Agreement shall be effective as of the first day of my employment
with the Company, namely ____________________.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHTS TO DISCLOSE OR USE THE COMPANY'S
CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Signature:
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Xxxxx Xxxxx
Date:
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ACCEPTED AND AGREED TO:
Keryx Biopharmaceuticals, Inc.
By:
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Signature
Name:
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Title:
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EXHIBIT A
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NONE
APPENDIX C
EMPLOYEE AGREEMENT AND RELEASE
Except as otherwise set forth in this Employee Agreement and Release (the
"Agreement") between the undersigned and Keryx Biopharmaceuticals, Inc. (the
"Corporation"), I hereby release, acquit and forever discharge the Corporation,
its parents, affiliates and subsidiaries, and their officers, directors, agents,
servants, employees, attorneys, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the execution date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Corporation or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Corporation, vacation
pay, fringe benefits, expense reimbursements, severance pay, or any other form
of compensation; claims pursuant to any federal, state or local law, statute, or
cause of action including, but not limited to, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000e ET SEQ., the Age Discrimination in Employment
Act, 29 U.S.C. Section 621 ET SEQ. ("ADEA"), the Americans With Disabilities Act
of 1990, 42 U.S.C. Section 12101 ET SEQ., and the Massachusetts Fair Employment
Practices Act, M.G.L. c.151B, Section 1 ET SEQ., all as amended, and all claims
arising out of the Fair Credit Reporting Act, 15 U.S.C. Section 1681 ET SEQ.,
the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section
1001 ET SEQ., the Massachusetts Civil Rights Act, M.G.L. c.12 Sections 11H and
11I, the Massachusetts Equal Rights Act, M.G.L. c.93 Section 102 and M.G.L.
c.214, Section 1C, the Massachusetts Labor and Industries Act, M.G.L. c.149,
Section 1 ET SEQ., and the Massachusetts Privacy Act, M.G.L. c.214, Section 1B,
all as amended,; tort law; contract law; wrongful discharge; discrimination;
harassment; retaliation; fraud; defamation; emotional distress; and breach of
the implied covenants of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under ADEA. I also acknowledge that the consideration given
for the waiver and release in the preceding paragraph hereof is in addition to
anything of value to which I was already entitled. I further acknowledge that I
have been advised by this writing, as required by the ADEA, that; (a) my waiver
and release do not apply to any rights or claims that may arise after the
execution date of this Agreement; (b) I have been advised hereby that I have the
right to consult with an attorney prior to executing this Agreement; (c) I have
twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily execute this Agreement earlier); (d) I have seven (7) days following
the execution of this Agreement by the parties to revoke the Agreement; and (e)
this Agreement shall not be effective until the date upon which the revocation
period had expired, which shall be the eighth day after this Agreement is
executed by me.
In giving this release, which includes claims that may be unknown to me at
present, I hereby expressly waive and relinquish all rights and benefits under
any law of any jurisdiction with respect to my release of any such presently
unknown claims I may have against the Corporation.
Dated: _______________________ _______________________________________
Xxxxx Xxxxx
