Exhibit 10.28.1
AGREEMENT
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XXXXXX X. XXXXXX, M.D. (hereafter "Xx. Xxxxxx"), and U.S. BIOSCIENCE,
INC. (hereafter "U.S. Bioscience") desire and agree to enter into this agreement
as of March 10, 1998, pursuant to the following terms and conditions. In
consideration of the mutual covenants and agreements herein contained, and
intending to be legally bound, the parties hereto agree as follows:
1. Xx. Xxxxxx hereby resigns as Chairman and Chief Executive Officer
("CEO") of U.S. Bioscience and from all other capacities including, but not
limited to, his membership on the Board of Directors of U.S. Bioscience and as a
Trustee of the U.S. Bioscience, Inc. Savings Plan and the U..S. Bioscience, Inc.
Money Purchase Pension Plan, and terminates his employment effective March 10,
1998, and accepts a position as a consultant as specified herein.
2. For and in consideration of the undertakings of Xx. Xxxxxx as set
forth herein, U.S. Bioscience shall retain Xx. Xxxxxx as a consultant for a two
year period commencing March 10, 1998 and continuing through March 10, 2000
("Term"), and provide Xx. Xxxxxx the following compensation and benefits:
(a) Consulting fees to be paid as salary during the Term of
$15,496.27 per bi-weekly pay period, less normal withholding and payroll
taxes and any other deductions as may be authorized by Xx. Xxxxxx, to be
paid on a bi-weekly pay schedule.
(b) Company-paid medical benefits (including health, dental and
prescription drug), less dependent cost on the same basis as is provided to
senior
executives and other employees of U.S. Bioscience throughout the Term, or
until other substantially equivalent employer-provided medical insurance is
available, whichever occurs first, subject to Xx. Xxxxxx'x right to
continue such coverage under COBRA. In the event that Xx. Xxxxxx obtains
other employment and medical coverage, he will promptly advise U.S.
Bioscience and health care coverage pursuant to this subsection 2(b) shall
cease.
(c) Group life insurance benefit during the Term, on the same
basis as is provided to senior executives and other employees of U.S.
Bioscience. It is agreed and understood that as of March 10, 1998, Xx.
Xxxxxx will no longer be entitled to participate in U.S. Bioscience's
benefit plans for (i) Supplemental Long Term Disability, (ii) Supplemental
Life Insurance, (iii) SERP, (iv) 401(k), and (v) Money Purchase Pension
Plan; provided that Xx. Xxxxxx shall continue to be entitled to all
benefits available or accrued under such plans through March 10, 1998.
(d) The right to continue to vest non-statutory stock options
during the Term and the right during the Term and for a period of three
months following the Term to a cashless exercise of such vested options.
(e) The rights to indemnification and advancement of expenses
presently provided pursuant to U.S. Bioscience's certificate of
incorporation and bylaws, or such greater rights as subsequently may be
adopted by amendment thereto, in respect of service as an officer and/or
director of U.S. Bioscience. In addition, U.S. Bioscience shall, to the
fullest extent not prohibited by law,
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indemnify Xx. Xxxxxx for all actions and services provided by him within
the scope of his duties as a consultant.
3. Separate and apart from the foregoing, U.S. Bioscience shall pay
Xx. Xxxxxx $19,732.00, which represents unused accrued vacation hours, accrued
through March 10, 1998, less normal withholding and payroll taxes. After March
10, 1998, Xx. Xxxxxx shall not accrue additional vacation benefits.
4. It is expressly agreed and understood that U.S. Bioscience does
not have and will not have any obligation to provide Xx. Xxxxxx at any time in
the future with any payments, benefits or considerations other than those
recited herein.
5. (a) In consideration for the payments, benefits and agreements
of U.S. Bioscience contained herein, Xx. Xxxxxx releases and discharges U.S.
Bioscience and its past, present and future officers, directors, attorneys,
employees, agents, successors and assigns, jointly and severally, from any and
all actions, charges, causes of action or claims of any kind, known or unknown,
which against any of them, he, his heirs, agents, successors or assigns ever
had, now have or hereafter may have arising out of any matter, occurrence or
event existing or occurring prior to the execution hereof, including, without
limitation: any claims relating to or arising out of his employment with U.S.
Bioscience, including but not limited to, any claims for unpaid or withheld
wages, benefits, bonuses and/or other compensation of any kind, including
accrued sick pay and vacation; any claims for attorneys' fees, costs or
expenses; any claims of discrimination based on sex, age, race, religion, color,
creed, handicap, citizenship, national origin or any other factor prohibited by
Federal, State or Local law, including but not limited to, any claims under
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act,
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the Pennsylvania Human Relations Act, the Americans With Disabilities Act,
and the Employee Retirement Income Security Act of 1974, as amended; and any and
all common law claims whatsoever, whether existing or hereinafter recognized,
including but not limited to, breach of contract, libel, slander, fraud,
promissory estoppel, breach of covenant of good faith and fair dealing,
equitable estoppel, misrepresentation or wrongful discharge. Excluded from this
Release are only: claims which arise subsequent to the execution of this
Agreement; actions to enforce vested rights under any option agreement, 401(k)
or retirement plan; and actions to enforce this Agreement and/or the Executive
Severance Agreement as described and amended in Section 27, below.
(b) U.S. Bioscience, intending to be legally bound, does hereby
release and discharge Xx. Xxxxxx from any and all manner of actions and causes
of action, suits, debts, claims and demands arising from conduct or actions
undertaken by him in good faith within the scope of his employment and authority
as Chairman and Chief Executive Officer of U.S. Bioscience.
6. Xx. Xxxxxx shall make himself available to U.S. Bioscience for up
to 500 hours of consulting services during the Term with respect to matters
mutually agreed upon in good faith. Such matters may include, but shall not be
limited to (a) preparing and presenting regulatory applications for U.S.
Bioscience products, (b) speaking on behalf of U.S. Bioscience or its products,
(c) assisting in addressing clinical or preclinical questions, (d) assisting in
preparing position papers, (e) contacting potential investigators on behalf of
U.S. Bioscience and assisting in study design, and (f) assisting U.S. Bioscience
in assigning, obtaining, maintaining, and enforcing all proprietary rights
relating to inventions he conceived or reduced to practice during
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his employment with U.S. Bioscience that relate to any of U.S. Bioscience's
products, services or activities of which he is aware. U.S. Bioscience will make
reasonable efforts to provide Xx. Xxxxxx with advance notice when requesting his
services and he will make reasonable efforts to adapt his schedule to comply
with U.S. Bioscience's reasonable requests. Upon the request of Xx. Xxxxxx, in
connection with any U.S. Bioscience request for consulting services hereunder,
U.S. Bioscience shall advise Xx. Xxxxxx if in the reasonable judgment of U. S.
Bioscience a disclosure of material non-public information will be required in
order to render the requested consulting services. In the event Xx. Xxxxxx
chooses to provide such services, U.S. Bioscience shall identify the information
disclosed to Xx. Xxxxxx which U.S. Bioscience considers to be material non-
public information. Such consulting services may be performed by telephone
and/or by written communication and may require Xx. Xxxxxx'x presence at U.S.
Bioscience's facilities or his travel outside of the greater Philadelphia area.
U.S. Bioscience shall advance to Xx. Xxxxxx or reimburse promptly all costs and
expenses related to such consulting services, including but not limited to,
secretarial support services, literature searches, slide preparation, conference
registration, travel and accommodations, and other reasonable expenses
appropriate to Xx. Xxxxxx'x representation of U.S. Bioscience at conferences and
professional meetings. It is understood that such expenses shall be subject to
approval in advance by U.S. Bioscience.
7. Xx. Xxxxxx will not disclose to any other person or company, or
use for his own personal benefit, except as may be necessary in the performance
of his duties as a consultant for U.S. Bioscience, any confidential or
proprietary information disclosed to him or of which he becomes aware by reason
of his employment or consulting association with U.S. Bioscience. Such
confidential and/or proprietary information shall include all data and
information relating to
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the business of U.S. Bioscience, whether or not it constitutes a trade secret,
which is or has been disclosed to Xx. Xxxxxx or of which Xx. Xxxxxx has become
aware or shall become aware as a consequence of his employment or consulting
relationship with U.S. Bioscience and which has value to U.S. Bioscience,
including, but not limited to, information relating to scientific and research
work of U.S. Bioscience, clinical, pharmacological and toxicological data,
regulatory filings, products, methods, processes, licenses, projects,
developments, formulas, and the financial or business affairs of U.S. Bioscience
regarding existing or potential business ventures and/or relationships,
employees or employees' compensation, projections, plans, development,
accounting and marketing studies or analyses and all information, improvements,
invention proposals and patent applications which have been conceived or reduced
to practice including, but not limited to, those conceived by Xx. Xxxxxx during
the Term of his employment by U.S. Bioscience or while performing consulting
services during the term of this Agreement excepting only such information which
shall have become a part of the public domain.
8. Without prior written consent of U.S. Bioscience, while Xx.
Xxxxxx is engaged by U.S. Bioscience as a consultant and continuing through the
period ending one (1) year after the conclusion of the Term, Xx. Xxxxxx will
not solicit or divert, either directly or indirectly, on his own behalf or in
the service of or on behalf of any other, or attempt to solicit or divert or
appropriate any business opportunity related to the pharmaceutical business of
which Xx. Xxxxxx became aware while an employee of U.S. Bioscience or may become
aware in the course of his service as a consultant to U.S. Bioscience during the
Term of this Agreement.
9. Without prior written consent of U.S. Bioscience, during the
Term, Xx. Xxxxxx will not solicit, induce or assist anyone else in soliciting
or inducing any current employee
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of U.S. Bioscience to terminate his/her employment with U.S.Bioscience to accept
employment with Xx. Xxxxxx or in any business with which he is associated.
10. (a) During the Term, Xx. Xxxxxx will not engage in or render any
services to or be employed by any Competing Business (as defined below).
(b) Xx. Xxxxxx agrees that he will not engage in or render any
services to or be employed by any business or enterprise that makes, uses, sells
or seeks regulatory approval for generic substitutes for any of the company's
products that as of the date of this Agreement are approved by the United States
Food and Drug Administration i.e. amifostine, trimetrexate glucuronate and
altretamine.
11. Xx. Xxxxxx acknowledges and agrees that the type and periods of
restrictions imposed in this Agreement are fair and reasonable, and that such
restrictions are intended solely to protect the legitimate interests of U.S.
Bioscience, rather than to prevent Xx. Xxxxxx from earning a livelihood. Xx.
Xxxxxx recognizes that U.S. Bioscience competes on a worldwide basis and that
the access to confidential information that Xx. Xxxxxx had make it necessary for
U.S. Bioscience to restrict Xx. Xxxxxx'x post-employment activities in the
limited market in which U.S. Bioscience competes and in which Xx. Xxxxxx'x
access to confidential information and other proprietary information could be
used to the detriment of U.S. Bioscience.
12. Xx. Xxxxxx acknowledges and agrees that if he should breach any
of the covenants, restrictions and agreements contained herein, irreparable loss
and injury would result to U.S. Bioscience, and that damage arising out of such
a breach may be difficult to ascertain. Xx. Xxxxxx therefore agrees that, in
addition to all other remedies provided at law or at equity, U.S. Bioscience may
petition and obtain from a court of law or equity all necessary temporary,
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preliminary and permanent injunctive relief to prevent a breach by Xx. Xxxxxx of
any covenant contained in this Agreement. Xx. Xxxxxx agrees further, that if it
is determined by a court that he has breached the terms of this Agreement, U.S.
Bioscience shall be entitled to recover from him all costs and attorneys' fees
incurred as a result of its attempt to redress such a breach or to enforce its
rights and protect its legitimate interests.
13. The term "Competing Business" shall mean those businesses whose
products compete directly with U.S. Bioscience Products. U.S. Bioscience
Products means all products in which U.S. Bioscience has rights including,
without limitation, proprietary or commercial rights.
14. All documents, notes and other materials of any nature relating
to any confidential or proprietary information of U.S. Bioscience that are or
have been generated by Xx. Xxxxxx or come into his possession shall be owned
exclusively by U.S. Bioscience. Xx. Xxxxxx will not take any original of the
foregoing and will return the same to U.S. Bioscience upon request. In addition
to the foregoing, Xx. Xxxxxx will not publish any confidential or proprietary
information of U.S. Bioscience without the prior written consent of U.S.
Bioscience.
15. In any action brought by either party for enforcement of the
rights given by this Agreement, the prevailing party shall be entitled to
payment by the other of all reasonable attorneys' fees and costs incurred due to
or resulting from the action.
16. In the event of Xx. Xxxxxx'x death prior to the receipt of all
amounts to which he is entitled hereunder, such amounts (including, without
limitation, all amounts due pursuant to Section 2 hereof) shall be paid to Xx.
Xxxxxx'x spouse, or such other beneficiary as Xx. Xxxxxx may name by written
notice to U.S. Bioscience.
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17. Neither party shall engage in any communications that disparage
or interfere with the other party's existing or prospective business
relationships.
18. This Agreement embodies the complete understanding and agreement
between U.S. Bioscience and Xx. Xxxxxx and supersedes any and all other prior
agreements between them, oral or written, express or implied, except for the
Executive Severance Agreement described below and the option agreements
previously issued to Xx. Xxxxxx and paragraphs 7 and 8 of Xx. Xxxxxx'x
Employment Agreement dated March 1, 1993.
19. This Agreement shall be governed by the law of the Commonwealth
of Pennsylvania and any suit against U.S. Bioscience or Xx. Xxxxxx claiming a
breach hereof shall be maintained in a state or federal court in Pennsylvania.
20. Nothing in this Agreement is to be construed as an admission or
concession of liability or wrongdoing by either U.S. Bioscience or Xx. Xxxxxx.
21. Xx. Xxxxxx recognizes and acknowledges that the obligation of
U.S. Bioscience to provide the consideration recited herein is expressly
contingent upon his fulfillment and satisfaction of the obligations set forth
herein and recognizes that if he should fail to comply fully with any of the
provisions set forth herein, U.S. Bioscience may seek any appropriate remedy
including the recovery of damages, including any amounts paid pursuant to this
Agreement for such breach of the Agreement. Notwithstanding the foregoing, any
failure by Xx. Xxxxxx to accept any particular consulting assignments on the
basis that such consulting assignments would require disclosure to Xx. Xxxxxx
of material non-public information shall not constitute a breach of this
Agreement. Notwithstanding the foregoing, any failure or inability of U.S.
Bioscience in
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whole or in part to utilize Xx. Xxxxxx'x consulting services pursuant to Section
6 hereof shall not constitute a failure on the part of Xx. Xxxxxx to comply with
his obligations hereunder.
22. It is agreed and understood that Xx. Xxxxxx will make himself
available and cooperate in any reasonable manner during the Term and thereafter
to provide assistance to U.S. Bioscience as may be reasonably requested with due
notice for the purpose of concluding any matters that may arise in the future
relating to Xx. Xxxxxx'x term of employment or consultant services with U.S.
Bioscience. It is understood that such cooperation and assistance shall be
requested and rendered on a basis not to interfere with any subsequent
employment or enterprise engaged in by Xx. Xxxxxx. It is agreed that, in the
event that Xx. Xxxxxx is requested to provide assistance during the period in
which he is receiving payments from U.S. Bioscience pursuant to paragraph 2, he
shall be reimbursed for reasonable out-of-pocket expenses incurred in providing
such assistance. In the event that such assistance is provided after the
cessation of the payments specified in paragraph 2, Xx. Xxxxxx shall be
reimbursed for reasonable out-of-pocket expenses and shall be compensated at a
rate of $450 per hour for time spent in providing such assistance.
23. Xx. Xxxxxx agrees and represents that:
(a) He has read carefully all of the terms of this Agreement;
(b) He has been encouraged to review this Agreement with an
attorney;
(c) He understands the meaning and effect of the terms of this
Agreement;
(d) He has been advised that he has at least twenty-one (21) days
to determine whether he wishes to enter into this Agreement;
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(e) He understands that he has seven (7) days from the date of
execution of this Agreement to revoke his execution thereof;
(f) The entry into and execution of this Agreement is of his own
free will and a voluntary act without compulsion of any kind; and
(g) No promise or inducement not expressed herein has been made
to him.
24. U.S. Bioscience hereby represents to Xx. Xxxxxx that it has all
requisite corporate power and authority to enter into this Agreement and perform
its obligations hereunder, and that this Agreement has been duly authorized,
executed and delivered by U.S. Bioscience and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
25. If any part or term of this Agreement is subsequently determined
by any court of competent jurisdiction to be unenforceable or illegal, such
determination shall not affect the enforceability, legality or binding nature of
any other term or provision of this Agreement.
26. The parties to this Agreement are parties to an Executive
Severance Agreement dated October 14, 1991 (the "Executive Severance
Agreement"). Xx. Xxxxxx agrees that in the event he becomes eligible to receive
compensation under the Executive Severance Agreement, such compensation shall be
reduced by an amount equal to the amount paid to Xx. Xxxxxx under this
Agreement. The Executive Severance Agreement shall cease to be applicable to
Xx. Xxxxxx in accordance with paragraph 2(b) of the Executive Severance
Agreement.
27. Upon the written request of Xx. Xxxxxx, U.S. Bioscience agrees to
extend for one additional year, the Term of this Agreement as set forth in this
paragraph 27. Such
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approval shall not be unreasonably withheld. During any such extension, U.S.
Bioscience shall not be required to make any payments or provide any benefits or
considerations to Xx. Xxxxxx except as set forth expressly in this paragraph 27.
As consideration for such extension, Xx. Xxxxxx agrees to make himself available
to U.S. Bioscience for up to 50 hours of consulting services with respect to
mutually agreeable matters. During the term of such one year extension and for
three months thereafter, Xx. Xxxxxx shall have the right to continue to vest
non-statutory stock options and the right to a cashless exercise of such vested
options.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, M.D.
residing at 000 Xxx Xxxxx Xxxx
Xxxx Xxxx, XX 00000
U.S. BIOSCIENCE, INC.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Executive Vice President,
Chief Financial Officer and Treasurer
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