AMENDED AND RESTATED EMPLOYMENT AGREEMENT WITH ALIMERA SCIENCES, INC.
Exhibit 10.4.A
This Amended and Restated Employment Agreement (this “Employment Agreement”) entered into
between Alimera Sciences, Inc., a Delaware corporation (the “Company”), and Xxxxx Xxxxxxx
(“Executive”), as of the latest date set forth on the signature page hereto.
RECITALS:
WHEREAS, the Company is engaged in the business of developing, marketing and selling
ophthalmic pharmaceuticals in the United States and throughout the world;
WHEREAS, Company and Executive desire that Executive continue to provide the Company
employment services upon the terms and conditions set forth below;
WHEREAS, the Company and Executive previously entered into that certain Employment Agreement,
dated as of June 29, 2004 (the “Original Agreement”); and
WHEREAS, pursuant to the terms of the Original Agreement, the Company and Executive desire to
amend and restate the Original Agreement, effective as of the date hereof (the “Amendment Date”)
to, among other things, reflect new acceleration provisions and to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the
parties, intending to be legally bound, agree as follows:
AGREEMENT:
SECTION 1. EFFECTIVE DATE
Subject to the terms and conditions set forth in this Employment Agreement, the Company agrees
to continue to employ Executive, and Executive agrees to continue to be employed by the Company as
of the date hereto (the “Effective Date”).
SECTION 2. DEFINITIONS
“Cause” means
(1) Executive’s gross negligence or willful misconduct with respect to the business and
affairs of the Company, including violation of any material policy of the Company that is
not cured within 30 days after written notice thereof is given to Executive by the Company;
(2) Executive’s conviction of, or entering a guilty plea or plea of no contest with
respect to, a felony; or
(3) Executive engages in any material breach of the terms of this Employment Agreement
or fails to fulfill his responsibilities under this Employment Agreement and such breach or
failure, as the case may be, is not cured, or is not capable of being cured, within 30 days
after written notice thereof is given to Executive by the Company.
“Change in Control” means (i) the consummation of a merger or consolidation of the Company
with or into another entity or any other corporate reorganization, if persons who were not
stockholders of the Company immediately prior to such merger, consolidation or other reorganization
own immediately after such merger, consolidation or other reorganization 50% or more of the voting
power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any
direct or indirect parent corporation of such continuing or surviving entity or (ii) the sale,
transfer or other disposition of all or substantially all of the Company’s assets. A transaction
shall not constitute a Change in Control if its sole purpose is to change the state of the
Company’s incorporation or to create a holding company that will be owned in substantially the same
proportions by the persons who held the Company’s securities immediately before such transaction.
Competing Business” means any business which develops, sells or markets ophthalmic
pharmaceuticals.
“Disability” means a condition which renders Executive unable (as determined by the Board of
Directors of the Company in good faith after consultation with a physician mutually selected by the
Executive and the Board of Directors of the Company) to regularly perform his duties hereunder by
reason of illness or injury for a period of more than six consecutive months with or without
reasonable accommodation.
“Earned Bonus” means the bonus, determined based on the actual performance of the Company for
the full fiscal year in which Executive’s employment terminates, that Executive would have earned
for the year in which his employment terminates had he remained employed for the entire year,
prorated based on the ratio of the number of days during such year that Executive was employed to
365. Such Earned Bonus will be determined and paid to Executive no later than 21/2 months after the
close of the fiscal year in which the Earned Bonus was earned.
“Equity” means (i) all shares of Stock; (ii) all options and other rights to purchase shares
of Stock; (iii) all stock units, performance units or phantom shares whose value is measured by the
value of shares of Stock; and (iv) all stock appreciation rights whose value is measured by
increases in the value of shares of Stock.
For purposes of Section 4(e), “Good Reason” shall mean (i) a material diminution of
Executive’s authority, duties or responsibilities; (ii) a geographic relocation of the Company’s
headquarters, or Executive’s primary business location, to a location that is more than 35 miles
from the present location of the Company’s corporate headquarters or Executive’s primary business
location, as the case may be; or (iii) any breach by the Company of the Employment Agreement, which
is material and which is not cured within 30 days after written notice thereof to the Company from
Executive.
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For purposes of Section 5, “Good Reason” shall be mean that Executive resigns within 12 months
after one of the following conditions has come into existence without his consent: (i) a reduction
in Executive’s base salary from the amount set forth in Section 4(a) hereof; (ii) a material
adverse change in Executive’s primary responsibilities or duties; (iii) a geographical relocation
of the Company’s corporate headquarters, or the Executive’s primary business location, to a
location that is more than 35 miles from the present location of the Company’s corporate
headquarters or Executive’s primary business location, as the case may be; (iv) any breach by the
Company of this Employment Agreement which is material and which is not cured, or is not capable of
being cured, within 30 days after written notice thereof to the Company and the Board of Directors
of the Company from Executive. A condition shall not be considered “Good Reason” unless Executive
gives the Company written notice of such condition within 90 days after such condition comes into
existence and the Company fails to remedy such condition within 30 days after receiving Executive’s
written notice.
“ISP” means the Alimera Sciences, Inc. 2004 Incentive Stock Plan as amended from time to time,
the Alimera Sciences, Inc. 2005 Incentive Stock Plan as amended from time to time, and any
successor to such plan.
“Restricted Period” means the 12 month period beginning on and after the Executive’s
employment with the Company is terminated pursuant to the terms of this Employment Agreement.
“Separation” means a “separation from service”, as defined in the regulations under Section
409A of the Code.
SECTION 3. TITLE, POWERS AND RESPONSIBILITIES
(a) Title. Executive shall be Vice President of Marketing.
(b) Powers and Responsibilities.
(1) Executive in fulfilling his responsibilities shall have such powers as are normally
and customarily associated with a Vice President of Marketing in a company of similar size
and operating in a similar industry, including the power to hire and fire employees and
executives of the Company reporting to Executive and such other powers as authorized by the
Board of Directors of the Company.
(2) Executive, as a condition to his employment under this Employment Agreement,
represents and warrants that he can assume and fulfill responsibilities described in
Section 3(b)(1) without any risk of violating any non-compete or other restrictive
covenant or other agreement to which he is a party.
(c) Reporting Relationship. Executive shall report to the Company’s chief executive
officer.
(d) Full Time Basis. Executive shall undertake to perform all his responsibilities
and exercise all his powers in good faith and on a full-time basis.
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SECTION 4. COMPENSATION, BENEFITS, ETC.
(a) Annual Base Salary. Executive’s base salary shall be $210,000 per year, which
amount may be reviewed and increased at the discretion of the Board of Directors of the Company or
any committee of the Board of Directors of the Company duly authorized to take such action.
Executive’s base salary shall be payable in accordance with the Company’s standard payroll
practices and policies for executives and shall be subject to such withholdings as required by law
or as otherwise permissible under such practices or policies.
(b) Annual Bonus. The Company shall pay an annual bonus for a fiscal year to
Executive no later than 21/2 months after the close of such fiscal year, in the amount, and subject
to the terms and conditions of the Company’s Management Cash Incentive Program (or any predecessor
or successor cash incentive plan thereto), which may be reviewed at the discretion of the Board of
Directors of the Company or any committee of the Board of Directors of the Company duly authorized
to take such action. The determinations of the Board or its Compensation Committee with respect to
such bonus shall be final and binding; provided, that Executive’s target annual bonus amount shall
not be reduced to an amount below 25% of the Executive’s then-current base salary.
(c) Employee Benefit Plans. Executive shall be eligible to participate, on terms no
less favorable to Executive than the terms for participation of any other executive of the Company
at the same level within the Company as Executive, in the employee benefit plans, programs and
policies maintained by the Company in accordance with the terms and conditions to participate in
such plans, programs and policies as in effect from time to time.
(d) Stock Options. Executive shall receive stock options at the discretion of the
Board of Directors of the Company, subject to the terms and conditions set forth in the ISP and any
corresponding option certificate granted to Executive under the ISP. As of the Effective Date,
Executive shall be entitled to a grant of stock options as set forth on Schedule B attached
hereto.
(e) Acceleration. The following terms shall apply to all of Executive’s Equity
outstanding as of the Amendment Date, and to all future grants of Equity:
(1) The vested percentage of Executive’s Equity shall be determined by adding 12 months
to the actual period of service that Executive has completed with the Company if the Company
is subject to a Change in Control before Executive’s service with the Company terminates
(i.e., Executive’s vesting shall be accelerated by an additional 12 months). The remaining
unvested Equity shall vest in the same amount per vesting period as prior to the Change in
Control.
(2) Executive shall vest in 100% of the remaining unvested Equity if (a) the Company is
subject to a Change in Control before Executive’s service with the Company terminates and
(b) within 12 months after the Change in Control, Executive is terminated by the Company (or
its successor) without Cause or Executive terminates his employment for Good Reason.
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(3) In the event that the Company is a party to a merger or consolidation, all
outstanding Equity shall vest in full unless the agreement evidencing the merger or
consolidation provides for one or more of the following:
(A) The continuation of such outstanding Equity by the Company (if the
Company is the surviving corporation).
(B) The assumption of such outstanding Equity by the surviving
corporation or its parent.
(C) The substitution by the surviving corporation or its parent of new
Equity for such outstanding Equity.
(D) Full exercisability of outstanding Equity and full vesting of the
common shares subject to such Equity, followed by the cancellation of such
Equity. The full exercisability of such Equity and full vesting of such
common shares may be contingent on the closing of such merger or
consolidation.
(E) The cancellation of outstanding Equity and a payment to Executive
equal to the excess of (i) the Fair Market Value of the common shares
subject to such Equity (whether or not such Equity is then exercisable or
such common shares are then vested) as of the closing date of such merger or
consolidation over (ii) the exercise price. Such payment shall be made in
the form of cash, cash equivalents, or securities of the surviving
corporation or its parent with a fair market value equal to the required
amount. Such payment may be made in installments and may be deferred until
the date or dates when such Equity would have become exercisable or such
common shares would have vested. Such payment may be subject to vesting
based on Executive’s continuing service, provided that the vesting schedule
shall not be less favorable to Executive than the schedule under which such
Equity would have become exercisable or such common shares would have
vested. This provision is mandatory in the event that the Company is
acquired by a private company for cash.
(f) Vacation. Executive shall have the right to four weeks of vacation during each
successive one year period of his employment by the Company, which vacation time shall be taken at
such time or times in each such one year period so as not to materially and adversely interfere
with the performance of his responsibilities under this Employment Agreement. Executive in
addition shall have the right to the same time off work as other employees of the Company.
(g) Expense Reimbursements. Executive shall have the right to expense reimbursements
in accordance with the Company’s standard policy on expense reimbursements. Any reimbursement
shall (a) be paid promptly but not later than the last day of the calendar year following the year
in which the expense was incurred, (b) not be affected by any other expenses
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that are eligible for reimbursement in any calendar year and (c) not be subject to liquidation
or exchange for another benefit.
(h) Indemnification. The Company shall, to the maximum extent permitted by applicable
law and the Company’s governing documents, indemnify Executive and hold Executive harmless from and
against any claim, loss or cause of action arising from or out of Executive’s performance as an
officer, director, manager or employee of the Company or in any other capacity in which Executive
serves at the request of the Board of Directors of the Company. If any claim is asserted hereunder
against Executive, the Company shall pay Executive’s legal expenses (or cause such expenses to be
paid) on a quarterly basis, provided that Executive shall reimburse the Company, in a timely
manner, for such amounts if Executive shall be found by a final, non-appealable order of a court of
competent jurisdiction not to be entitled to indemnification. The indemnification obligations of
the Company in this paragraph shall survive any termination of this Employment Agreement.
(i) Directors and Officers Liability Insurance. The Company shall maintain directors
and officers liability insurance coverage covering Executive in amounts customary for similarly
situated companies in the pharmaceutical industry and with insurers reasonably acceptable to
Executive. All policies for such coverage shall provide for insurance on an “occurrence” basis, or
if on a “claims-made” basis, with sufficient coverage for claims made after the date on which
Executive’s employment with the Company terminates.
SECTION 5. TERMINATION OF EMPLOYMENT
(a) General. Executive’s employment with the Company shall be “at will,” meaning that
either Executive or the Company shall be entitled to terminate Executive’s employment at any time
and for any reason, with or without Cause or Good Reason. Any contrary representations that may
have been made to Executive shall be superseded by this Employment Agreement. This Employment
Agreement shall constitute the full and complete agreement between Executive and the Company on the
“at will” nature of Executive’s employment, which may only be changed in an express written
agreement signed by Executive and a duly authorized officer of the Company
(b) Termination by Board of Directors without Cause or by Executive for Good Reason.
If the Board of Directors terminates Executive’s employment without Cause or Executive resigns for
Good Reason and a Separation occurs, the Company shall pay Executive his earned but unpaid base
salary plus 100% of his current total annual base salary (subject to such withholdings as required
by law) payable in twelve equal monthly installments, and Executive’s Earned Bonus for the fiscal
year of termination that shall be paid in no event later than 21/2 months following the close of such
fiscal year. The salary continuation payments shall commence within 30 days after Executive
returns the release described in Subsection (b)(1) above. This obligation shall remain in effect
even if Executive accepts other employment. In addition, the Company shall make any continuation
coverage premium payments (not only for Executive, but for Executive’s dependents) for continued
health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), for
the one year period following the Separation or, if earlier, until Executive is eligible to be
covered under another substantially equivalent medical insurance plan by a subsequent employer.
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(c) Termination by the Board of Directors for Cause or by Executive without Good
Reason. If the Board of Directors of the Company terminates Executive’s employment for Cause
or Executive resigns without Good Reason, the Company’s only obligation to Executive under this
Employment Agreement shall be to pay Executive his earned but unpaid base salary, if any, up to the
date Executive’s employment terminates, and Executive shall have no right to any Earned Bonus or
any unpaid bonus payment whatsoever. The Company shall only be obligated to make such payments and
provide such benefits under any employee benefit plan, program or policy in which Executive was a
participant as are explicitly required to be paid to Executive by the terms of any such benefit
plan, program or policy following the date on which Executive’s employment terminates.
(d) Termination for Disability. The Board of Directors of the Company shall have the
right to terminate Executive’s employment on or after the date Executive has a Disability, and such
a termination shall not be treated as a termination without Cause under this Employment Agreement.
If Executive’s employment is terminated on account of a Disability and a Separation occurs, the
Company shall:
(1) pay Executive his base salary through the end of the month in which a Separation
occurs as soon as practicable after the Separation,
(2) pay Executive his Earned Bonus for the fiscal year in which such Separation occurs;
provided that the Earned Bonus shall in no event be paid later than 21/2 months after the
close of such fiscal year,
(3) pay or cause the payment of benefits to which Executive is entitled under the terms
of the disability plan of the Company covering Executive at the time of such Disability,
(4) make such payments and provide such benefits as otherwise called for under the
terms of the ISP and each other employee benefit plan, program and policy in which Executive
was a participant; provided no payments made under Section 5(e)(1), Section
5(e)(2), or Section 5(e)(3) shall be taken into account in computing any
payments or benefits described in this Section 5(e)(4), and
(5) make any COBRA continuation coverage premium payments (not only for Executive, but
also for Executive’s dependents), for the 18 month period following the termination of
Executive’s employment or, if earlier, until Executive is eligible to be covered under
another substantially equivalent medical insurance plan by a subsequent employer.
(e) Death. If Executive’s employment terminates as a result of his death, the Company
shall:
(1) pay Executive his base salary through the end of the month in which his employment
terminates as soon as practicable after his employment terminates,
(2) pay Executive his Earned Bonus, when actually determined, for the year in which
Executive’s death occurs,
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(3) make such payments and provide such benefits as otherwise called for under the
terms of the ISP and each other employee benefit plan, program and policy in which Executive
was a participant; provided no payments made under Section 5(f)(1) or Section
5(f)(2) shall be taken into account in computing any payments or benefits described in
this Section 5(f)(3), and
(4) make any COBRA continuation coverage premium payments for Executive’s dependents,
for the one year period following Executive’s death or, if earlier, until such dependents
are eligible to be covered under another substantially equivalent medical insurance plan.
SECTION 6. COVENANTS BY EXECUTIVE
(a) Company Property. Executive upon the termination of Executive’s employment for
any reason or, if earlier, upon the Company’s request shall promptly return all Company Property
which had been entrusted or made available to Executive by the Company, where the term “Property”
means all records, files, memoranda, reports, price lists, customer lists, drawings, plans,
sketches, keys, codes, computer hardware and software and other property of any kind or description
prepared, used or possessed by Executive during Executive’s employment by the Company (and any
duplicates of any such Property) together with any and all information, ideas, concepts,
discoveries, and inventions and the like conceived, made, developed or acquired at any time by
Executive individually or, with others during Executive’s employment which relate to the Company or
its products or services.
(b) Trade Secrets. Executive agrees that Executive shall hold in a fiduciary capacity
for the benefit of the Company and its affiliates and shall not directly or indirectly use or
disclose any Trade Secret that Executive may have acquired (whether or not developed or compiled by
Executive and whether or not Executive is authorized to have access to such information) during the
term of Executive’s employment by the Company or any of its predecessors for so long as such
information remains a Trade Secret, where the term “Trade Secret” means information, including, but
not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing or a process that (1) derives economic value, actual or
potential, from not being generally known to, and not being generally readily ascertainable by
proper means by, other persons who can obtain economic value from its disclosure or use and (2) is
the subject of reasonable efforts by the Company and any of its affiliates to maintain its secrecy.
This Section 6(b) is intended to provide rights to the Company and its affiliates which
are in addition to, not in lieu of, those rights the Company and its affiliates have under the
common law or applicable statutes for the protection of trade secrets.
(c) Confidential Information. Executive while employed by the Company or its
affiliates and for the three year period thereafter shall hold in a fiduciary capacity for the
benefit of the Company and its affiliates, and shall not directly or indirectly use or disclose,
any Confidential Information that Executive may have acquired (whether or not developed or compiled
by Executive and whether or not Executive is authorized to have access to such information) during
the term of, and in the course of, or as a result of Executive’s employment by the Company or its
predecessors without the prior written consent of the Board of Directors of the Company unless and
except to the extent that such disclosure is (i) made in the ordinary
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course of Executive’s performance of his duties under this Employment Agreement or (ii)
required by any subpoena or other legal process (in which event Executive will give the Company
prompt notice of such subpoena or other legal process in order to permit the Company to seek
appropriate protective orders). For the purposes of this Employment Agreement, the term
“Confidential Information” means any secret, confidential or proprietary information possessed by
the Company or any of its affiliates, including, without limitation, trade secrets, customer or
supplier lists, details of client or consultant contracts, current and anticipated customer
requirements, pricing policies, price lists, market studies, business plans, operational methods,
marketing plans or strategies, product development techniques or flaws, computer software programs
(including object code and source code), data and documentation data, base technologies, systems,
structures and architectures, inventions and ideas, past current and planned research and
development, compilations, devices, methods, techniques, processes, financial information and data,
business acquisition plans and new personnel acquisition plans (not otherwise included as a Trade
Secret under this Employment Agreement) that has not become generally available to the public, and
the term “Confidential Information” may include, but not be limited to, future business plans,
licensing strategies, advertising campaigns, information regarding customers or suppliers,
executives and independent contractors and the terms and conditions of this Employment Agreement.
Notwithstanding the provisions of this Section 6(c) to the contrary, Executive shall be
permitted to furnish this Employment Agreement to a subsequent employer or prospective employer.
(d) Non-solicitation of Customers or Employees.
(1) Executive (i) while employed by the Company or any of its affiliates shall not, on
Executive’s own behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise (other than the Company or one of
its affiliates), solicit business for a Competing Business from customers or suppliers of
the Company or any of its affiliates and (ii) during the Restricted Period shall not, on
Executive’s own behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise, solicit business for a Competing
Business from customers or suppliers of the Company or any of its affiliates with whom
Executive, in the case of both clauses (i) and (ii) above, had or made material business
contact with in the course of Executive’s employment by the Company within the 24 month
period immediately preceding the beginning of the Restricted Period.
(2) Executive (i) while employed by the Company or any of its affiliates shall not,
either directly or indirectly, call on, solicit or attempt to induce any other officer,
employee or independent contractor of the Company or any of its affiliates to terminate his
or her employment with such business and shall not assist any other person or entity in such
a solicitation (regardless of whether any such officer, employee or independent contractor
would commit a breach of contract by terminating his or her employment), and (ii) during the
Restricted Period, shall not, either directly or indirectly, call on, solicit or attempt to
induce any other officer, employee or independent contractor of such business with whom
Executive had contact, knowledge of, or association in the course of Executive’s employment
with the Company or any of its predecessors or affiliates, as the case may be, during the 12
month period immediately preceding the beginning of the Restricted Period, to terminate his
or her employment with the Company or any of its
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affiliates and shall not assist any other person or entity in such a solicitation
(regardless of whether any such officer, employee or independent contractor would commit a
breach of contract by terminating his or her employment). Notwithstanding the foregoing,
nothing shall prohibit any person from contacting Executive about employment or other
engagement during the Restricted Period, provided that Executive does not solicit the
contact.
(e) Non-competition Obligation. Without the prior written consent of the Company,
Executive, while employed by the Company or any of its affiliates and thereafter until the end of
the Restricted Period, will not engage in any of the activities described in Section
3(b)(1) hereof within the geographical area in which the Company or any of its affiliates is
actively engaged in developing, marketing and selling ophthalmic pharmaceuticals, for himself or on
behalf of any other person, partnership, corporation or other business entity which is in a
Competing Business for purposes of competing with the Company. Notwithstanding the preceding
sentence, Executive will not be prohibited from owning less than 5% percent of any publicly traded
corporation, whether or not such corporation is in a Competing Business.
(f) Reasonable and Continuing Obligations. Executive agrees that Executive’s
obligations under this Section 6 are obligations which will continue beyond the date
Executive’s employment terminates and that such obligations are reasonable, fair and equitable in
scope, terms and duration, are necessary to protect the Company’s legitimate business interests and
are a material inducement to the Company to enter into this Employment Agreement.
(g) Remedy for Breach. Executive agrees that the remedies at law of the Company for
any actual or threatened breach by Executive of the covenants in this Section 6 would be
inadequate and that the Company shall be entitled to specific performance of the covenants in this
Section 6, including entry of a temporary restraining order in state or federal court,
preliminary and permanent injunctive relief against activities in violation of this Section
6, or both, or other appropriate judicial remedy, writ or order, in addition to any damages and
legal expenses which the Company may be legally entitled to recover. The Company agrees, however,
to give Executive and, if known, Executive’s attorney reasonable advance notice of any legal
proceeding, including any application for a temporary restraining order, relating to an attempt to
enforce the covenants in this Section 6 against Executive. Executive acknowledges and
agrees that the covenants in this Section 6 shall be construed as agreements independent of
any other provision of this Employment Agreement or any other agreement between the Company and
Executive, and that the existence of any claim or cause of action by Executive against the Company,
whether predicated upon this Employment Agreement or any other agreement, shall not constitute a
defense to the enforcement by the Company of such covenants.
(h) Termination of Restrictive Covenants. In addition to any other right or remedy
available to Executive, Executive shall no longer be bound by any of the restrictions set forth in
this Section 6 if the Company fails to pay or to provide Executive when due the amounts and
benefits due hereunder or under any agreement ancillary hereto, and Executive’s pursuit of such
remedy shall not relieve the Company from its obligations to pay and to provide such amounts and
benefits to Executive.
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(i) Ownership of Inventions, Discoveries, Improvements, Etc.
(1) Executive shall promptly disclose and describe to the Company all inventions,
improvements, discoveries and technical developments, whether or not patentable, made or
conceived by Executive, either alone or with others, during such time as Executive is
employed with the Company, and within one year after the date upon such employment
terminates, and that (i) are based in whole or in part upon Confidential Information, or
(ii) during such time as Executive is employed with the Company are along the lines of,
useful in or related to the business of the Company, or (iii) result from, or are suggested
by, any work that may be done by Executive for or on behalf of the Company (“Inventions”).
Executive hereby assigns and agrees to assign to the Company Executive’s entire right, title
and interest in and to such Inventions (the “Assigned Inventions”), and agrees to cooperate
with the Company both during and after such time as Executive is employed with the Company
in the procurement and maintenance, at the Company’s expense and at its direction, of
patents, copyright registrations and/or protection of the Company’s rights in such
Inventions. Executive shall keep and maintain adequate and current written records of all
such Inventions, which shall be and remain the property of the Company.
(2) If a patent application, trademark registration or copyright registration is filed
by Executive or on Executive’s behalf, or a copyright notice indicating Executive’s
authorship is used by Executive or on Executive’s behalf, within one year after the date on
which Executive’s employment with the Company terminates, that describes or identifies any
Invention within the scope of Executive’s work for the Company or that otherwise related to
a portion of the Company’s business (or any division thereof) of which Executive had
knowledge such time as Executive was employed with the Company, it is to be conclusively
presumed that the Invention was conceived by Executive during the such time as Executive was
employed with the Company. Executive agrees to notify the Company promptly of any such
application or registration and to assign to the Company Executive’s entire right, title and
interest in such Invention arid in such application or registration.
(3) If (i) Executive uses or discloses any of Executive’s own or any third party’s
confidential information or intellectual property (collectively, “Restricted Materials”)
when acting within the scope of Executive’s employment (or otherwise on behalf of the
Company), or (ii) any Assigned Invention cannot be fully made, used, reproduced or otherwise
exploited without using or violating any Restricted Materials, Executive hereby grants and
agrees to grant to the Company a perpetual, irrevocable, worldwide, royalty-free,
non-exclusive, sublicensable right and license to exploit and exercise all such Restricted
Materials and intellectual property rights therein. Executive will not use or disclose any
Restricted Materials for which Executive is not fully authorized to grant the foregoing
license.
(4) To the extent allowed by applicable law, the terms of this Section 6(i) include all
rights of paternity, integrity, disclosure and withdrawal and any other rights that may be
known as or referred to as moral rights, artist’s rights, droit moral or the like
(collectively, “Moral Rights”). To the extent Executive retains any such Moral Rights
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under applicable law, Executive hereby ratifies and consents to any action that may be
taken with respect to such Moral Rights by or authorized by the Company and agrees not to
assert any Moral Rights with respect thereto. Executive will confirm any such ratification,
consent or agreement from time to time as requested by the Company.
SECTION 7. MISCELLANEOUS
(a) Notices. Notices and all other communications shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed by United States registered
or certified mail. Notices to the Company shall be sent to:
Alimera Sciences, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: 678-990-5744
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: 678-990-5744
Notices and communications to Executive shall be sent to the address Executive most recently
provided to the Company.
(b) No Waiver. Except for the notice described in Section 7(a), no failure by
either the Company or Executive at any time to give notice of any breach by the other of, or to
require compliance with, any condition or provision of this Employment Agreement shall be deemed a
waiver of any provisions or conditions of this Employment Agreement.
(c) Tax Matters.
(1) All payments made under this Employment Agreement shall be subject to reduction to
reflect taxes or other charges required to be withheld by law. For purposes of Section 409A
of the Code, each periodic salary continuation payment under Section 5(b) is hereby
designated as a separate payment. If the Company determines that Executive is a “specified
employee” under Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder at the
time of his Separation, then (i) the salary continuation payments under Section 5(b), to the
extent not exempt from Section 409A of the Code, shall commence during the seventh month
after Executive’s Separation and (ii) the installments that otherwise would have been paid
during the first six months following Executive’s Separation shall be paid in a lump sum
when such salary continuation payments commence. The Company shall not have a duty to
design its compensation policies in a manner that minimizes Executive’s tax liabilities, and
Executive shall not make any claim against the Company or the Board related to tax
liabilities arising from the Executive’s compensation.
(2) Certain payments, distributions and acceleration of vesting for Executive made in
connection with an acquisition of ownership or effective control of the Company or ownership
of a substantial portion of the Company’s assets (within the meaning of section 280G of the
Code and the regulations thereunder, can be subject to certain tax penalties under sections
280G and 4999 of the Code. This includes amounts payable or distributable pursuant to the
terms of this Agreement or otherwise. The excise tax on any
12
such payments, determined under sections 280G and 4999 of the Code, generally applies
if all of Executive’s parachute payments together equal or exceed 300% of his/her average
annual W-2 compensation from the Company.
(d) Georgia Law. This Employment Agreement shall be governed by the law of the State
of Georgia, without regard to its provisions relating to choice of law or conflicts of law. Any
litigation that may be brought by either the Company or Executive involving the enforcement of this
Employment Agreement or any rights, duties, or obligations under this Employment Agreement, shall
be brought exclusively in a Georgia state court or United States District Court in Georgia.
(e) Assignment. This Employment Agreement shall be binding upon and inure to the
benefit of the Company and any successor in interest to the Company. The Company may assign this
Employment Agreement to any affiliate or successor that acquires all or substantially all of the
assets and business of the Company or a majority of the voting interests of the Company, and no
such assignment shall be treated as a termination of Executive’s employment under this Employment
Agreement. Executive’s rights and obligations under this Employment Agreement are personal and
shall not be assigned or transferred.
(f) Other Agreements. This Employment Agreement replaces and merges any and all
previous agreements and understandings regarding all the terms and conditions of Executive’s
employment relationship with the Company, and this Employment Agreement constitutes the entire
agreement between the Company and Executive with respect to such terms and conditions.
(g) Amendment. No amendment to this Employment Agreement shall be effective unless it
is in writing and signed by the Company and by Executive.
(h) Invalidity. If any part of this Employment Agreement is held by a court of
competent jurisdiction to be invalid or otherwise unenforceable, the remaining part shall be
unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable
part shall be deemed not to be part of this Employment Agreement.
(i) Litigation. In the event that either party to this Employment Agreement
institutes litigation against the other party to enforce his or its respective rights under this
Employment Agreement, each party shall pay its own costs and expenses incurred in connection with
such litigation.
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IN WITNESS WHEREOF, the Company and Executive have executed this Employment Agreement in
multiple originals effective as of the Effective Date.
| ALIMERA SCIENCES, INC. | EXECUTIVE | |||||||
By:
|
/s/ C. Xxxxxx Xxxxx | By: | /s/ Xxxxx Xxxxxxx | |||||
Name:
|
C. Xxxxxx Xxxxx | Name: | Xxxxx Xxxxxxx | |||||
Title:
|
President/CEO | Title: | VP Marketing | |||||
Date:
|
August 18, 2008 | Date: | August 18, 2008 | |||||
