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EXHIBIT 10.30
AGREEMENT
This AGREEMENT (the "Agreement") is entered into as of October
31, 1996 (the "Effective Date") by and between Connective Therapeutics, Inc., a
Delaware corporation, its predecessors, successors, subsidiaries, officers,
directors, agents, attorneys, employees and assigns, (hereafter collectively
referred to as the "Company"), on the one hand, and Xx. Xxxxxx Xxxxxx (hereafter
"Xx. Xxxxxx"), on the other hand.
WITNESSETH:
WHEREAS, Xx. Xxxxxx began employment at the Company on or
about November 17, 1993 pursuant to the terms of an employment agreement entered
into as of that date;
WHEREAS, the Company and Xx. Xxxxxx desire to terminate Xx.
Xxxxxx'x employment relationship and create a consultancy relationship; and
WHEREAS, the parties wish to set forth herein their consulting
and other relationships and preserve the good will which exists between them and
settle any and all disputes which may exist between them.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and for other good and sufficient consideration, receipt of
which is hereby acknowledged, the parties agree as follows:
A. The Company agrees as follows:
1. That as of the Effective Date, the Company hereby hires Xx. Xxxxxx
as a consultant on the following terms:
a. Consultancy:
(1) During the initial nine (9) month consulting
period, i.e. through nine months after the Effective Date, Xx. Xxxxxx shall make
himself available to the Company for at least one day per week, provided that
such availability shall be coordinated with Xx. Xxxxxx'x other responsibilities.
Payment for the initial nine (9) month period shall be made to Xx. Xxxxxx on a
monthly basis as a 1099 consultant ($18,750 per month for nine (9) months for a
total of $168,750) at the rate of his current salary. Following the initial 9
month period or for consulting services exceeding one day per week during the
initial 9 months and through the end of the Company's funding of directed
research, Xx. Xxxxxx shall, at the Company's request, continue to make himself
available, but subject entirely to his other responsibilities at such time, as a
consultant at the rate of $2,000 per day.
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(2) As a consultant, Xx. Xxxxxx shall (i) serve as a
member of the Company's Scientific Advisory Board; (ii) assist the Company in
its corporate partnering discussions; (iii) consult exclusively with the Company
in the areas of relaxin as a diagnostic and therapeutic agent and TCR peptides
as diagnostics and therapeutics in those areas covered by existing Company
patents and patent applications (the Connective Field"); and (iv) advise and
counsel the Company in other areas on a nonexclusive basis. As an incentive to
participate actively in corporate partnering discussions, the Company shall pay
Xx. Xxxxxx $25,000 for each successfully completed transaction in which his
assistance was requested in writing by the Company and given by Xx. Xxxxxx
pursuant to the terms of this Agreement, including without limitation those
listed on Exhibit A hereto.
(3) During the initial nine (9) month period of Xx.
Xxxxxx'x consultancy:
(a) The Company shall maintain and pay for
Xx. Xxxxxx'x current life and disability coverage and, through COBRA his health
coverage.
(b) All options to acquire shares of the
Company's stock held by Xx. Xxxxxx that are not then vested or exercised subject
to the Company's repurchase option will convert to a Non-Qualified Stock Option
with the change of his status from employee to consultant and will continue to
vest at the rate applicable to full-time employment, while he remains a
consultant to the Company, (the vested option grant will convert to a
Non-Qualified Stock Option with the change of his status from employee to
consultant, unless exercised within ninety (90) days of the date hereof). In
accordance with the terms of the option agreement(s) issued to Xx. Xxxxxx, (i)
to the extent any Option is not vested as provided above, the Option shall
expire and (ii) any such vested Option must be exercised no later than ninety
(90) days after termination of the consultancy and, to the extent any such
Option is not exercised within such ninety-day period, it shall expire.
(c) Xx. Xxxxxx acknowledges and agrees that
he has received all salary, accrued vacation, commissions, bonuses,
compensation, shares of stock or options therefore or other such sums due to him
other than (i) amounts to be paid in accordance with the provisions of this
Agreement or (ii) reimbursements for travel taken on the Company's behalf
submitted within five (5) days of the Effective Date, with the exception of
telephone bills not yet received. In light of the payment by the Company of all
wages due, or to become due to Xx. Xxxxxx, the Parties further acknowledge and
agree that California Labor Code Section 206.5 is not applicable to the Parties
hereto. That section provides in pertinent part as follows:
No employer shall require the execution of any release of any
claim or right on account of wages due, or to become due, or
made as an advance on wages to be earned, unless payment of
such wages has been made.
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b. Office Assistance: The Company will additionally provide
Xx. Xxxxxx with $24,000 (paid in six monthly installments of $4,000 per month
from the effective date of this Agreement) to support the costs of maintaining
an office and shall also provide Xx. Xxxxxx with the computer equipment
presently located in his office at the Company and used by him at the Company
for use in such office.
2. Miscellaneous Items:
a. That it fully and forever releases and discharges Xx.
Xxxxxx from any claims and damages and causes of action it may have against him
in his capacities as an employee or officer of the Company and covenants not to
xxx or otherwise institute or cause to be instituted or in any way participate,
except as required by law, in legal or administrative proceedings against Xx.
Xxxxxx with respect to any matter arising out of or connected with Xx. Xxxxxx'x
authorized course and scope of his employment with the Company at any time prior
to and including the date the Company signs the Agreement, including any and all
liabilities, claims, demands, contracts, debts, obligations and causes of action
of every nature, kind and description, in law, equity, or otherwise, whether or
not now known or ascertained, which heretofore do or may exist, with the
exception of any claim arising out of his obligations under this Agreement or
his proprietary information obligations.
b. Legal Expenses. The Company shall reimburse Xx. Xxxxxx for
his legal expenses in connection with the preparation and negotiation of this
Agreement and in connection with the prior negotiations between Xx. Xxxxxx and
the Company regarding a Medical Research Institute in an amount not to exceed
$10,000, less applicable withholdings upon presentation of appropriate
documentation of expenses incurred.
x. Xxxxxxxxx Benefits Unchanged. The Company acknowledges that
Xx. Xxxxxx is entering into this Agreement on the understanding that the terms
and conditions relating to any and all severance benefits granted to Xxxxxx X.
Xxxxxxx are as set forth in that certain Employment Agreement dated June 9, 1994
between the Company and Xx. Xxxxxxx (the "Xxxxxxx Employment Agreement") and
have not been amended or modified orally or in writing since that date and
hereby represents and warrants that such severance terms remain as reflected in
the Xxxxxxx Employment Agreement.
B. Xx. Xxxxxx for himself, his heirs, executors, administrators, assigns, and
successors, agrees as follows:
1. That his employment with the Company is terminated, and his
resignation from all officer positions held by him with the Company is effective
as of the Effective Date.
2. That he shall resign as a director of the Company on or before June
30, 1997.
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3. That during the period of his consultancy it may be necessary for
the Company to disclose certain data and other proprietary information to him,
and/or to provide Xx. Xxxxxx with samples, which together with any information
generated by Xx. Xxxxxx in performing his services for the Company hereunder
(collectively, "Information"), Xx. Xxxxxx agrees to retain in strict confidence
and not to disclose or transfer to any party other than as authorized by the
Company. Xx. Xxxxxx further agrees not to use such Information for any purpose
other than those of this Agreement. Upon completion of Xx. Xxxxxx'x consulting
services hereunder, Xx. Xxxxxx will return all Information, all copies thereof
and any remaining samples to the Company, unless directed otherwise by the
Company. The foregoing obligations of confidentiality and non-use shall not
apply to Information: (a) that was previously known to Xx. Xxxxxx as evidenced
by Xx. Xxxxxx'x written records; (b) that is lawfully obtained by Xx. Xxxxxx
from a source independent of the Company; or (c) that is now or hereafter
becomes public knowledge other than through a breach of this Agreement. These
obligations of confidentiality and non-use shall survive the expiration or
termination of this Agreement.
4. Any and all intellectual property, including inventions or
discoveries, whether patentable or not, made by Xx. Xxxxxx individually or in
conjunction with others, as a result of services rendered under this Agreement,
shall become the absolute property of the Company. Xx. Xxxxxx shall promptly
disclose, and when requested, assign to the Company any and all such
intellectual property (including any patent applications), without further
compensation. Any writings prepared by Xx. Xxxxxx hereunder shall be for the
benefit of the Company. The Company shall have the right to reproduce, modify,
and use such writings and all results generated as the result of services
rendered under this Agreement for any purpose related to its lawful business.
Xx. Xxxxxx shall promptly make, execute and deliver any and all instruments and
documents and perform any and all acts necessary to obtain, maintain and enforce
patents, trademarks and copyrights for such Intellectual Property as the Company
may desire in any and all countries. All costs and expenses of application and
prosecution of such patents, trademarks and copyrights shall be paid by the
Company and Xx. Xxxxxx shall be reimbursed for his time spent on such matters at
the rate of $2,000 per day unless measured against his consulting time
hereunder.
5. Xx. Xxxxxx agrees to supply the Company with a copy of any proposed
publication or disclosure that incorporates any Information, to be reviewed for
potential proprietary information and intellectual property issues, and approved
in writing by the Company prior to submission for publication or disclosure
(such approval shall not be unreasonably delayed or withheld).
6. That Xx. Xxxxxx hereby waives any and all rights he may have had or
now has to pursue any and all remedies available to him under any cause of
action relating to his employment or his service as an officer of the Company
against the Company, including without limitation, claims of wrongful discharge
of employment; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied, negligent or
intentional infliction of emotional distress; harassment or fraud;
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negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; negligence;
defamation; and violation of the provisions of the California Labor Code, the
Employee Retirement Income Security Act and any other laws and regulations
relating to employment. Xx. Xxxxxx further acknowledges and expressly agrees
that he hereby waives any and all rights he may have had or now has to pursue
any claim of discrimination, including but not limited to, any claim of
discrimination based on sex, age, race, national origin, or any other basis,
under Title VII of the Civil Rights Act of 1964, as amended, the California Fair
Employment and Housing Act, the California Constitution, the Equal Pay Act of
1963, the Age Discrimination in Employment Act of 1967 as amended "ADEA", the
Civil Rights Act of 1866, and all other laws and regulations relating to
employment.
7. Xx. Xxxxxx acknowledges that he is waiving and releasing any rights
he may have under the Age Discrimination in Employment Act of 1967 ("ADEA") and
that this waiver and release is knowing and voluntary. Xx. Xxxxxx and the
Company agree that this waiver and release does not apply to any rights or
claims that may arise under ADEA after the Effective Date of this Agreement. Xx.
Xxxxxx acknowledges that the consideration given for this waiver and release
Agreement is in addition to anything of value to which he was already entitled.
Xx. Xxxxxx further acknowledges that he has been advised by this writing that
(a) he should consult with an attorney prior to executing this Agreement; (b) he
has at least twenty-one (21) days within which to consider this Agreement; (c)
he has at least seven (7) days following the execution of this Agreement by the
parties to revoke the agreement; and (d) this Agreement shall not be effective
until the revocation period has expired.
8. That Xx. Xxxxxx will not, except as may be mandated by statutory or
regulatory requirements or as may be required by legal process, disclose to
others the fact or terms of this settlement, the amounts referred to in the
Agreement, or the fact of the payment of said amounts, except that he may
disclose to his attorneys, accountants or other professional advisors to who the
disclosure is necessary to effectuate the purposes for which he has consulted
with such professional advisors. Xx. Xxxxxx understands that this covenant of
non-disclosure is a material inducement to the Company for the making of this
settlement and that for the breech thereof the Company will be entitled to
pursue its legal and equitable remedies, including, without limitation, the
right to seek injunctive relief.
9. To forever fully release, remise, acquit and discharge the Company
and covenant not to xxx or otherwise institute or cause to be instituted or any
way participate in (except at the request of the Company) legal or
administrative proceedings against the Company with respect to any matter
arising out of or connected with his prior employment with the Company or the
termination of that employment, including any and all liabilities, claims,
demands, contracts, debts, obligations and causes of action of every nature,
kind and description, in law, equity, or otherwise, whether or not known or
ascertained, which heretofore do or may exist.
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10. Xx. Xxxxxx shall return all Company property and confidential
information in his possession to the Company within five (5) business days after
the termination of the consultancy hereunder, except such property and
confidential information as the Company agrees in writing to be necessary for
his continuing consultation which shall be promptly returned upon termination
thereof.
11. The Company makes no representations or warranties with respect to
the tax consequences of the payment of any sums to Xx. Xxxxxx under the terms of
this Agreement. Xx. Xxxxxx agrees and understands that he is responsible for
payment, if any, of local, state and/or federal taxes on the sums paid hereunder
by the Company and any penalties or assessments thereon. Xx. Xxxxxx further
agrees to indemnify and hold the Company harmless from any claims, demands,
deficiencies, penalties, assessments, executions, judgments, or recoveries by
any government agency against the Company for any amounts claimed due on account
of Xx. Xxxxxx'x failure to pay federal or state taxes or damages sustained by
the Company by reason of any such claims, including reasonable attorneys' fees.
C. The Company and Xx. Xxxxxx, for himself, his heirs, executors,
administrators, assigns, and successors, jointly agree as follows:
1. That nothing contained in this Agreement shall constitute or be
treated as an admission by the Company or Xx. Xxxxxx of liability, of any
wrongdoing, or any violation of law.
2. That if any provision of this Agreement is found to be
unenforceable, it shall not affect the enforceability of the remaining
provisions and the court shall enforce all remaining provisions to the extent
permitted by law.
3. That except as expressly provided herein, this Agreement shall
supersede and render null and void the Employment Agreement between Xx. Xxxxxx
and the Company, including the thirty day written notice of paragraph 1 (a).
4. That this Agreement extends to all claims of every nature and kind,
known or unknown, suspected or unsuspected, past or present, arising from or
attributable to Xx. Xxxxxx'x employment with the Company or the termination of
that employment, and that any and all rights granted to the Company and Xx.
Xxxxxx under Section 1542 of the California Civil Code or any analogous state
law or federal law or regulation are hereby expressly waived. Said Section 1542
of the California Civil Code reads as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
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5. That this Agreement shall bind and benefit Xx. Xxxxxx'x heirs,
executors, administrators, successors, assigns, and each of them; it shall also
bind and benefit the Company and its successors and assigns.
6. That this Agreement shall be deemed to have been entered into in the
State of California and shall be construed and interpreted in accordance with
the laws of that state.
7. That should there hereafter be any litigation between or among any
of the parties to this Agreement alleging a breach of this Agreement or seeking
enforcement of this Agreement, the prevailing party in such litigation shall be
entitled to recover his or its reasonable attorneys' fees and costs of such
litigation from the other party.
8. That, except for the facts assumed in Paragraph A. 2(c), each party
hereby agrees to accept and assume the risk that any fact with respect to any
matter covered by this Agreement may hereafter by found to be other than or
different from the facts it believes at the time of this Agreement to be true,
and agrees that this Agreement shall be and will remain effective
notwithstanding any such difference in fact.
9. Each party agrees to refrain from any disparagement, criticism,
defamation, slander of the other, or tortious interference with the contracts
and relationships of the other.
10. That Xx. Xxxxxx hereby acknowledges and understands and he agrees
that:
a. he has at least 21 days after receipt of this Agreement
within which he may review and consider, discuss with an attorney of his own
choosing, and decide to execute or not execute this Agreement;
b. he has seven days after the execution of this Agreement
within which he may revoke this Agreement;
c. in order to revoke this Agreement, Xx. Xxxxxx must deliver
to Xx. Xxxxxx Xxxxxxx, the Company's President and Chief Executive Officer, on
or before seven days after the execution of this Agreement, a letter stating
that he is revoking this Agreement, and;
d. that this Agreement shall not become effective or
enforceable until after the expiration of the seven days following the date Xx.
Xxxxxx executes this Agreement.
11. No Verbal Modification. This Agreement may only be amended in
writing signed by Xx. Xxxxxx and the President of Connective Therapeutics, Inc.
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12. Arbitration. That any controversy between the parties hereto shall
be submitted to and settled by final and binding arbitration in Santa Xxxxx
County under the Commercial Rules of the American Arbitration Association then
in effect. This includes any controversy involving the construction or
application of any terms or conditions of this Agreement, or any claims arising
out of or relating to this Agreement, or any breach thereof. In any arbitration
pursuant to this paragraph C. 12, the award shall be rendered by a majority of
the members of a board of arbitration consisting of three members, one being
appointed by each party and the third being appointed by mutual agreement of the
two arbitrators appointed by the parties.
13. Independent Contractor. Notwithstanding anything herein to the
contrary, Xx. Xxxxxx'x consulting status with the Company shall be, at all times
during the term of this Agreement, that of an independent contractor. It is
further understood that Xx. Xxxxxx is not a Company employee and does not
participate in any Company benefit programs, except as provided in paragraph
A.1.(3)(a). Nothing in this Agreement shall be construed to give Xx. Xxxxxx the
power or the authority to act or make representations for, or on behalf of, or
to bind the Company.
14. Entire Agreement. This Agreement represents the entire agreement
and understanding between the Company and Xx. Xxxxxx concerning Amento's
separation from the Company, and supersedes and replaces any and all prior
agreements and understandings to the extent they may be inconsistent herewith.
This Agreement is being entered into concurrently with a Laboratory Services
Agreement between the Company and Xx. Xxxxxx on behalf of an independent
research laboratory to be established and the effectiveness hereof shall be
contingent upon the execution thereof.
15. That they have read and understand the foregoing Agreement and that
they affix their signatures hereto voluntarily and without coercion. Xx. Xxxxxx
further acknowledges that he has at least 21 days within which to consider this
Agreement, that he was advised by the Company to consult an attorney of his own
choosing concerning the waivers contained in and the
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terms of this Agreement, and that the waivers he has made and the terms he has
agreed to herein are knowing, conscious and with full appreciation that he is
forever foreclosed from pursuing any of the rights so waived.
Dated:_____________________, 1996 _____________________________________
XX. XXXXXX XXXXXX
CONNECTIVE THERAPEUTICS, INC.
Dated:_____________________, 1996 _____________________________________
Xxxxxx X. Xxxxxxx, President and
Chief Executive Officer
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