EXHIBIT 10.32
CIMA LABS INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into on
February 19, 2003 by and between Cima Labs Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxx, a resident of Minnesota ("Executive").
A. The Company develops and manufactures prescription and
over-the-counter pharmaceutical products using fast-dissolve drug delivery
technologies for sale around the world.
B. Executive is an experienced business manager.
C. The Company desires to hire Executive as its Vice President, Chief
Financial Officer and Secretary, and Executive desires to be employed by the
Company, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements of the Company and Executive set forth below, the Company
and Executive, intending to be legally bound, agree as follows:
1. Employment. Effective as of March 17, 2003, the Company shall employ
Executive, and Executive shall accept such employment and perform
services for the Company, upon the terms and conditions set forth in
this Agreement.
2. Term of Employment. The term of Executive's employment with the
Company shall be for the period commencing on March 17, 2003 and
continuing until terminated in accordance with Section 9 hereof.
3. Position and Duties.
(a) Employment with the Company. During the term of Executive's
employment with the Company, Executive shall report to the President and Chief
Executive Officer of the Company and shall perform such duties and
responsibilities as the Company shall assign to him from time to time consistent
with his position. Effective as of April 1, 2003 and subject to approval of the
Board of Directors of the Company (the "Board"), Executive shall be an executive
officer of the Company and Executive's title shall be "Vice President, Chief
Financial Officer and Secretary".
(b) Performance of Duties and Responsibilities. Executive shall
serve the Company faithfully and to the best of his ability and shall devote his
full working time, attention and efforts to the business of the Company during
his employment with the Company. Executive hereby represents and confirms that
he is under no contractual or legal commitments that would prevent him from
fulfilling his duties and responsibilities as set forth in this Agreement.
During
his employment with the Company, Executive may participate in charitable
activities and personal investment activities to a reasonable extent, and,
subject to prior Board approval, may serve on boards of directors of other
companies, so long as such activities do not interfere with the performance of
his duties and responsibilities hereunder.
4. Compensation.
(a) Base Salary. While Executive is employed by the Company
hereunder, the Company shall pay to Executive an annual base salary at the rate
of $200,000, less deductions and withholdings, which base salary shall be paid
in accordance with the Company's normal payroll policies and procedures. Annual
performance and salary reviews will be conducted in accordance with Company
policy and practice.
(b) Incentive Bonus. For each full calendar year that Executive is
employed by the Company hereunder, Executive shall be eligible for an incentive
bonus award of up to 50% of Executive's base salary, based on achievement of
objectives established by the Company. For calendar year 2003, Executive shall
be eligible for an incentive bonus award of up to $100,000.
(c) Stock Options. Subject to approval by the Board and the terms
of a definitive stock option agreement to be entered into by the Company and
Executive, the Company shall grant Executive a stock option to purchase 50,000
shares of common stock of the Company.
(d) Employee Benefits. While Executive is employed by the Company
hereunder, Executive shall be entitled to participate in all employee benefit
plans and programs of the Company to the extent that Executive meets the
eligibility requirements for each individual plan or program. The Company
provides no assurance as to the adoption or continuance of any particular
employee benefit plan or program, and Executive's participation in any such plan
or program shall be subject to the provisions, rules and regulations applicable
thereto.
(e) Expenses. While Executive is employed by the Company
hereunder, the Company shall reimburse Executive for all reasonable and
necessary out-of-pocket business, travel and entertainment expenses incurred by
him in the performance of his duties and responsibilities hereunder, subject to
the Company's normal policies and procedures for expense verification and
documentation.
(f) Vacation/Paid Time Off. While Executive is employed by the
Company hereunder, Executive shall accrue paid time off each year in accordance
with the Company's policies and practices in effect from time to time; provided,
however, that Executive shall accrue paid time off each pay period at a rate of
four weeks per year. Paid time off shall be taken at such times so as not to
unduly disrupt the operations of the Company.
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5. Confidential Information. Except as permitted in writing by the
Company's Board, during the term of Executive's employment with the Company and
at all times thereafter, Executive shall not divulge, furnish or make accessible
to anyone or use in any way other than in the ordinary course of the business of
the Company, any confidential, proprietary or secret knowledge or information of
the Company that Executive has acquired or shall acquire during his employment
with the Company, whether developed by himself or by others, concerning (i) any
trade secrets, (ii) any confidential, proprietary or secret designs, processes,
formulae, plans, devices or material (whether or not patented or patentable)
directly or indirectly useful in any aspect of the business of the Company,
(iii) any customer or supplier lists of the Company, (iv) any confidential,
proprietary or secret development or research work of the Company, (v) any
strategic or other business, marketing or sales plans of the Company, (vi) any
financial data or plans respecting the Company, or (vii) any other confidential
or proprietary information or secret aspects of the business of the Company.
Executive acknowledges that the above-described knowledge and information
constitutes a unique and valuable asset of the Company and represents a
substantial investment of time and expense by the Company, and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of the Company would be wrongful and would cause irreparable harm to the
Company. During the term of Executive's employment with the Company, Executive
shall refrain from any acts or omissions that would reduce the value of such
knowledge or information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that (i) is now
or subsequently becomes generally publicly known in the form in which it was
obtained from the Company, (ii) is independently made available to Executive in
good faith by a third party who has not violated a confidential relationship
with the Company, or (iii) is required to be disclosed by legal process, other
than as a direct or indirect result of the breach of this Agreement by
Executive.
6. Ventures. If, during the term of Executive's employment with the
Company, Executive is engaged in or associated with the planning or implementing
of any project, program or venture involving the Company and a third party or
parties, all rights in such project, program or venture shall belong to the
Company. Except as approved in writing by the Board, Executive shall not be
entitled to any interest in any such project, program or venture or to any
commission, finder's fee or other compensation in connection therewith, other
than the compensation to be paid to Executive by the Company as provided herein.
Executive shall have no interest, direct or indirect, in any customer or
supplier that conducts business with the Company, unless such interest has been
disclosed in writing to and approved by the Board before such customer or
supplier seeks to do business with the Company. Ownership by Executive, as a
passive investment, of less than 2.5% of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section 6.
7. Noncompetition Covenant.
(a) Agreement Not to Compete. During the term of Executive's
employment with the Company and for a period of twelve (12) consecutive months
from the date of the termination of such employment, whether such termination is
with or without Cause (as defined
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below), or whether such termination is at the instance of Executive or the
Company, Executive shall not, directly or indirectly, throughout North America,
engage in any business that the Company has engaged in during the term of
Executive's employment with the Company, or any part of such business, including
without limitation the design, development, manufacture, distribution, marketing
or selling of pharmaceutical products using fast-dissolve drug delivery
technologies, in any manner or capacity, including without limitation as a
proprietor, principal, agent, partner, officer, director, stockholder, employee,
member of any association, consultant or otherwise. Ownership by Executive, as a
passive investment, of less than 2.5% of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section
7(a).
(b) Agreement Not to Hire. During the term of Executive's employment
with the Company and for a period of twelve (12) consecutive months from the
date of the termination of such employment, whether such termination is with or
without Cause (as defined below), or whether such termination is at the instance
of Executive or the Company, Executive shall not, directly or indirectly, hire,
engage or solicit any person who is then an employee of the Company or who was
an employee of the Company at the time of Executive's termination of employment,
in any manner or capacity, including without limitation as a proprietor,
principal, agent, partner, officer, director, stockholder, employee, member of
any association, consultant or otherwise.
(c) Agreement Not to Solicit. During the term of Executive's employment
with the Company and for a period of twelve (12) consecutive months from the
date of the termination of such employment, whether such termination is with or
without Cause (as defined below), or whether such termination is at the instance
of Executive or the Company, Executive shall not, directly or indirectly,
solicit, request, advise or induce any current or potential customer, supplier
or other business contact of the Company on behalf of any entity competing with
the Company or to cancel, curtail or otherwise change its relationship with the
Company, in any manner or capacity, including without limitation as a
proprietor, principal, agent, partner, officer, director, stockholder, employee,
member of any association, consultant or otherwise. A "current customer" is
defined as a customer of the Company as of the Termination Date (as defined
below). A "potential customer" is an entity with which the Company has had
significant and substantive discussions within one year prior to, or is having
significant and substantive discussions as of, the Termination Date.
(d) Acknowledgment. Executive hereby acknowledges that the provisions
of this Section 7 are reasonable and necessary to protect the legitimate
interests of the Company and that any violation of this Section 7 by Executive
shall cause substantial and irreparable harm to the Company to such an extent
that monetary damages alone would be an inadequate remedy therefor. Therefore,
in the event that Executive violates any provision of this Section 7, the
Company shall be entitled to an injunction, in addition to all the other
remedies it may have, restraining Executive from violating or continuing to
violate such provision.
(e) Blue Pencil Doctrine. If the duration of, the scope of or any
business activity covered by any provision of this Section 7 is in excess of
what is valid and enforceable under applicable law, such provision shall be
construed to cover only that duration, scope or
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activity that is valid and enforceable. Executive hereby acknowledges that this
Section 7 shall be given the construction which renders its provisions valid and
enforceable to the maximum extent, not exceeding its express terms, possible
under applicable law.
8. Patents, Copyrights and Related Matters.
(a) Disclosure and Assignment. Executive shall immediately
disclose to the Company any and all improvements, inventions, ideas, and
discoveries that Executive may conceive and/or reduce to practice individually
or jointly or commonly with others while he is employed with the Company with
respect to (i) any methods, processes or apparatus concerned with the
development, use or production of any type of products, goods or services sold
or used by the Company, and (ii) any type of products, goods or services sold or
used by the Company. Executive also shall immediately assign, transfer and set
over to the Company his entire right, title and interest in and to any and all
of such inventions as are specified in this Section 8(a), and in and to any and
all applications for letters patent that may be filed on such inventions, and in
and to any and all letters patent that may issue, or be issued, upon such
applications. In connection therewith and for no additional compensation
therefor, but at no expense to Executive, Executive shall sign any and all
instruments deemed necessary by the Company for:
(i) the filing and prosecution of any applications for
letters patent of the United States or of any foreign
country that the Company may desire to file upon such
inventions as are specified in this Section 8(a);
(ii) the filing and prosecution of any divisional,
continuation, continuation-in-part or reissue
applications that the Company may desire to file upon
such applications for letters patent; and
(iii) the reviving, re-examining or renewing of any of such
applications for letters patent.
This Section 8(a) shall not apply to any invention for which no equipment,
supplies, facilities, confidential, proprietary or secret knowledge or
information, or other trade secret information of the Company was used and that
was developed entirely on Executive's own time, and (i) that does not relate (A)
directly to the business of the Company, or (B) to the Company's actual or
demonstrably anticipated research or development, or (ii) that does not result
from any work performed by Executive for the Company.
(b) Copyrightable Material. All right, title and interest in all
copyrightable material that Executive shall conceive or originate individually
or jointly or commonly with others, and that arise during the term of his
employment with the Company and out of the performance of his duties and
responsibilities under this Agreement, shall be the property of the Company and
are hereby assigned by Executive to the Company, along with ownership of any and
all copyrights in the copyrightable material. Upon request and without further
compensation
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therefor, but at no expense to Executive, Executive shall execute any and all
papers and perform all other acts necessary to assist the Company to obtain and
register copyrights on such materials in any and all countries. Where
applicable, works of authorship created by Executive for the Company in
performing his duties and responsibilities hereunder shall be considered "works
made for hire," as defined in the U.S. Copyright Act.
(c) Know-How and Trade Secrets. All know-how and trade secret
information conceived or originated by Executive that arises during the term of
his employment with the Company and out of the performance of his duties and
responsibilities hereunder or any related material or information shall be the
property of the Company, and all rights therein are hereby assigned by Executive
to the Company.
9. Termination of Employment.
(a) The Executive's employment with the Company shall terminate
immediately upon:
(i) Executive's receipt of written notice from the
Company of the termination of his employment;
(ii) Executive's abandonment of his employment or his
resignation; or
(iii) Executive's death or Disability (as defined below).
(b) The date upon which Executive's termination of employment with
the Company occurs shall be the "Termination Date."
10. Payments upon Termination of Employment.
(a) If Executive's employment with the Company is terminated by
the Company for any reason other than for Cause (as defined below) or by
Executive for Good Reason (as defined below):
(i) (A) if the Termination Date occurs within the first six
(6) months of Executive's employment with the Company,
the Company shall pay to Executive as severance pay an
amount equal to his current base salary for a period
of six (6) consecutive months after the Termination
Date; or
(B) if the Termination Date occurs after six (6) months of
Executive's employment with the Company, the Company
shall pay to Executive as severance pay an amount
equal to his current base salary for a period of
twelve (12) consecutive months after the Termination
Date; and
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(ii) if Executive elects to continue his group health
insurance coverage with the Company following the
termination of his employment with the Company, and if
Executive pays the remaining portion of the health
insurance premium, the Company will continue to pay its
portion of the monthly premiums as if Executive were
still employed and at the same level of coverage that
was in effect as of the Termination Date for the same
period as Executive is receiving severance pay under
Section 10(a)(i) above; and
(iii) the Company shall pay to Executive a pro rata portion
(based on the number of full calendar months of
employment during the calendar year in which the
Termination Date occurs) of any incentive bonus that
would have been payable to him for such year pursuant to
Section 4(b) hereof as if Executive had been in the
employ of the Company for the full calendar year.
Any amount payable to Executive as severance pay shall be subject to deductions
and withholdings and shall be paid to Executive by the Company in accordance
with the Company regular payroll schedule commencing on the first normal payroll
date of the Company following the expiration of all applicable rescission
provided by law and continuing thereafter. Any amount payable to Executive as
incentive bonus hereunder shall be paid to Executive by the Company in the same
manner and at the same time that incentive bonus payments are made to current
employees of the Company, but no earlier than the first normal payroll date of
the Company following the expiration of all applicable rescission periods
provided by law.
The Company shall be entitled to deduct from any severance pay otherwise payable
to Executive hereunder any amount received by Executive after the Termination
Date under any short-term or long-term disability insurance plan or program
provided to him by the Company. In addition, the Company shall be entitled to
cease making severance payments to Executive if Executive obtains other
employment after the Termination Date and to cease making payments for the cost
of the continuation of his group health insurance coverage with the Company
after the Termination Date if Executive becomes eligible for comparable group
health insurance coverage from any other employer. For purposes of mitigation
and reduction of the Company's financial obligations to Executive under this
Section 10(a), Executive shall within three days promptly and fully disclose to
the Company in writing: (i) the fact of any employment with any other employer,
(ii) the amount of any such disability insurance payments, or (iii) the fact
that he has become eligible for comparable group health insurance coverage from
any other employer, and Executive shall be liable to repay any amounts to the
Company that should have been so mitigated or reduced but for Executive's
failure or unwillingness to make such disclosures.
(b) If Executive's employment with the Company is terminated by reason
of:
(i) Executive's resignation or abandonment of his
employment,
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(ii) termination of Executive's employment by the Company
for Cause (as defined below), or
(iii) Executive's death or Disability,
the Company shall pay to Executive or his beneficiary or his estate, as the case
may be, his base salary through the Termination Date.
(c) "Cause" hereunder shall mean:
(i) an act or acts of dishonesty undertaken by Executive and
intended to result in substantial gain or substantial
personal enrichment of Executive at the expense of the
Company;
(ii) unlawful conduct or gross misconduct that is willful and
deliberate on Executive's part and that, in either
event, is materially injurious to the Company;
(iii) the conviction of Executive of a felony;
(iv) material failure of Executive to perform his duties and
responsibilities hereunder or to satisfy his obligations
as an officer or employee of the Company, which failure
has not been cured by Executive within 30 days after
written notice thereof to Executive from the Company
specifying such material failure; or
(v) material breach of any terms and conditions of this
Agreement by Executive not caused by the Company.
(d) "Disability" hereunder shall mean the inability of Executive to
perform on a full-time basis the duties and responsibilities of his employment
with the Company by reason of his illness or other physical or mental impairment
or condition, if such inability continues for an uninterrupted period of 90
calendar days or more during any 360-day period. A period of inability shall be
"uninterrupted" unless and until Executive returns to full-time work for a
continuous period of at least 30 days.
(e) "Good Reason" hereunder shall mean
(i) any action by the Company that results in a substantial
diminution in Executive's responsibilities as Chief
Financial Officer of the Company (after such appointment
as contemplated by Section 3(a) of this Agreement), other
than for Cause or on account of Disability; or
(ii) a material reduction in Executive's base salary.
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(f) In the event of termination of Executive's employment, the
sole obligation of the Company shall be its obligation to make the payments
called for by Section 10(a) or Section 10(b) hereof, as the case may be, and the
Company shall have no other obligation to Executive or to his beneficiary or his
estate, except as otherwise provided by law, under the terms of any other
applicable agreement between Executive and the Company or under the terms of any
employee benefit plans or programs then maintained by the Company in which
Executive participates.
(g) Notwithstanding the foregoing provisions of this Section 10,
the Company shall not be obligated to make any payments to Executive under
Section 10(a) hereof unless Executive shall have signed a release of claims in
favor of the Company in a form to be prescribed by the Company, all applicable
consideration periods and rescission periods provided by law shall have expired
and Executive is in strict compliance with the terms of this Agreement as of the
dates of the payments.
11. Return of Records and Property. Upon termination of his
employment with the Company, Executive shall promptly deliver to the Company any
and all Company records and any and all Company property in his possession or
under his control, including without limitation manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, printouts, computer
disks, computer tapes, source codes, data, tables or calculations and all copies
thereof, documents that in whole or in part contain any trade secrets or
confidential, proprietary or other secret information of the Company and all
copies thereof, and keys, access cards, access codes, passwords, credit cards,
personal computers, telephones and other electronic equipment belonging to the
Company.
12. Remedies.
(a) Remedies. Executive acknowledges that it would be difficult to
fully compensate the Company for monetary damages resulting from any breach by
him of the provisions of Sections 5, 7, 8 and 11 hereof. Accordingly, in the
event of any actual or threatened breach of any such provisions, the Company
shall, in addition to any other remedies it may have, be entitled to injunctive
and other equitable relief to enforce such provisions, and such relief may be
granted without the necessity of proving actual monetary damages.
(b) Arbitration. Except for disputes arising under Sections 5, 7
or 8 hereof, all disputes involving the interpretation, construction,
application or alleged breach of this Agreement and all disputes relating to
Executive's employment with the Company or the termination of such employment
shall be submitted to final and binding arbitration in Minneapolis, Minnesota.
The arbitrator shall be selected and the arbitration shall be conducted pursuant
to the then most recent Employment Dispute Resolution Rules of the American
Arbitration Association. The decision of the arbitrator shall be final and
binding, and any court of competent jurisdiction may enter judgment upon the
award. All fees and expenses of the arbitrator shall be paid by the Company. The
arbitrator shall have jurisdiction and authority to interpret and apply the
provisions of this Agreement and relevant federal, state and local laws,
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rules and regulations insofar as necessary to the determination of the dispute
and to remedy any breaches of the Agreement and/or violations of applicable
laws, but shall not have jurisdiction or authority to alter in any way the
provisions of this Agreement. The arbitrator shall have the authority to award
attorneys' fees and costs to the prevailing party. The parties hereby agree that
this arbitration provision shall be in lieu of any requirement that either party
exhaust such party's administrative remedies under federal, state or local law.
(c) Jurisdiction and Venue. Executive and the Company consent to
jurisdiction of the courts of the State of Minnesota and/or the federal district
courts, District of Minnesota, for the purpose of resolving all issues of law,
equity, or fact arising out of or in connection with Sections 5, 7 or 8 of this
Agreement. Any action involving claims of a breach of such Sections shall be
brought in such courts. Each party consents to personal jurisdiction over such
party in the state and/or federal courts of Minnesota and hereby waives any
defense of lack of personal jurisdiction. Venue, for the purpose of all such
suits, shall be in Hennepin County, State of Minnesota.
13. Miscellaneous.
(a) Governing Law. All matters relating to the interpretation,
construction, application, validity and enforcement of this Agreement shall be
governed by the laws of the State of Minnesota without giving effect to any
choice or conflict of law provision or rule, whether of the State of Minnesota
or any other jurisdiction, that would cause the application of laws of any
jurisdiction other than the State of Minnesota.
(b) Entire Agreement. Except for the stock option agreement
referred to in Section 4(c) hereof, this Agreement contains the entire agreement
of the parties relating to the subject matter of this Agreement and supersedes
all prior agreements and understandings with respect to such subject matter, 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.
(c) Amendments. No amendment or modification of this Agreement
shall be deemed effective unless made in writing and signed by the parties
hereto.
(d) No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. Any written waiver shall not
be deemed a continuing waiver unless specifically stated, shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
(e) Assignment. This Agreement shall not be assignable, in whole
or in party, by either party without the written consent of the other party,
except that the Company may, without the consent of Executive, assign its rights
and obligations under this Agreement to any corporation or other business entity
(i) with which the Company may merge or consolidate, (ii) to which the Company
may sell or transfer all or substantially all of its assets or capital stock, or
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(iii) of which 50% or more of the capital stock or the voting control is owned,
directly or indirectly, by the Company. After assignment by the Company under
clause (i) or (ii) of the preceding sentence, the Company shall be discharged
from all further liability hereunder and such assignee shall thereafter be
deemed to be the "Company" for purposes of all terms and conditions of this
Agreement, including this Section 13.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, and such counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
(g) Severability. Subject to Section 7(e) hereof, to the extent
that any portion of any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full
force and effect.
(h) Captions and Headings. The captions and paragraph headings
used in this Agreement are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement or any of the
provisions hereof.
IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement as of the date set forth in the first paragraph.
CIMA LABS INC.
By /s/Xxxxxx Xxxxxx
----------------
Its Member of the Board of Directors
/s/Xxxxx X. Xxxxxx
------------------
XXXXX X. XXXXXX
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