EMPLOYMENT AGREEMENT
Exhibit 10.8
This
Agreement (this "Agreement") dated as of January 19, 2007 (the
"Effective Date"), by and between Pacific Beach Biosciences, Inc. with offices
at 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the
"Company"), and Xxxxx Rock residing at 0000 Xxxxxx Xxxxxx, Xx Xxxxx, XX
00000 (the
"Employee").
WITNESSETH:
WHEREAS,
the Company desires to employ the Employee as Director of New Product
Development for the Company, and the Employee desires to serve the Company in
those capacities, upon the terms and subject to the conditions contained in this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Employment.
(a) Services. The
Employee will be employed by the Company as Director of New
Product Development. The Employee will report to the Chief Executive Officer of
the Company
and shall perform such duties as are consistent with his position as Director of
New Product
Development (the "Services"). The Employee agrees to perform the Services
faithfully, to devote
all of his working time, attention and energies to the business of the Company,
and while he
remains employed, not to engage in any other business activity that is in
conflict with his
duties and obligations to the Company.
(b) Acceptance. The
Employee hereby accepts such employment and agrees to render
the Services.
2. Term.
Employee's
employment shall commence on the Effective Date and shall be on an at-will
basis. Notwithstanding anything to the contrary contained herein, the provisions
of this Agreement governing protection of Confidential Information and
Inventions and Non-Competition, Non-Solicitation and Non-Disparagement shall
continue in effect as specified in Sections 7 and 8, respectively, hereof and
shall survive the expiration or termination hereof.
3.
Best Efforts;
Place of Performance.
(a) The
Employee shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company and shall use his best
efforts to advance the best interests of the Company and shall not during the
Term be actively engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage, that
will interfere with the performance by the Employee of his duties hereunder or
the Employee's availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company.
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(b) The
duties to be performed by the Employee hereunder shall be performed primarily at
the office of the Company in San Diego, California, subject to reasonable travel
requirements on behalf of the Company, or such other place as the Company may
reasonably designate.
4. Compensation. As full
compensation for the performance by the Employee of his duties under this
Agreement, the Company shall pay the Employee as follows:
(a) Base Salary. The
Company shall pay the Employee a salary (the "Base Salary") equal to One Hundred
Thirty Five Thousand Dollars ($135,000) per year. Payment of the Base Salary
shall be made in accordance with the Company's normal payroll
practices.
(b) Discretionary Bonus.
At the sole discretion of the Company, the Employee shall receive an additional
annual bonus (the "Discretionary Bonus") in an amount equal to up to fifteen
percent (15%) of his Base Salary, based upon corporate and the Employee's
individual performance on behalf of the Company during the prior year, as
determined solely in the discretion of the Chief Executive Officer of the
Company. The Discretionary Bonus shall be payable either as a lump-sum payment
or in installments as determined by the Company in its sole discretion. In
addition, the Company shall annually review the Bonus to determine whether an
increase in the amount thereof is warranted.
(c) Withholding. The
Company shall withhold all applicable federal, state and local taxes and social
security and such other amounts as may be required by law from all amounts
payable to the Employee under this Section 4.
(d) Restricted Shares. As
additional compensation for the Services to be rendered by the Employee pursuant
to this Agreement, the Company shall issue and sell to the Employee a number of
restricted shares of common stock, par value $0.001 (the "Common Stock"), of
the Company (the "Restricted Shares")
representing one percent (1%) of the outstanding Common Stock of the Company.
The Restricted Shares shall be held in escrow at Paramount BioSciences LLC. On
each anniversary of this Agreement, one-third of the Restricted Shares shall
vest, subject to the terms of this Agreement, and all vested shares will be
released from the escrow account to the Employee. No Restricted Shares shall
vest until the first anniversary of this Agreement. In connection with such
grant, the Employee shall enter into the Company's standard restricted stock
agreement attached hereto as Exhibit A which will
incorporate the foregoing provisions regarding the lapsing of the risk of
forfeiture with respect to the Restricted Shares. No Restricted Shares granted
hereunder shall vest unless the Employee is a current employee of the Company,
unless specifically stated herein. However, upon change of control of the
Company, as by merger, acquisition, or other such event, all restricted shares
will vest as of the date of the event. Upon the termination of Employee's
employment with the Company, all Restricted Shares that have not vested pursuant
to this Section 4(d) as of the date of Employee's termination shall be forfeited
to the Company.
(e) Expenses. The Company
shall reimburse the Employee for all normal, usual and necessary expenses
incurred by the Employee in furtherance of the business and affairs of the
Company, including reasonable travel and entertainment, upon timely receipt by
the Company of appropriate vouchers or other proof of the Employee's
expenditures and otherwise in accordance with any expense reimbursement policy
as may from time to time be adopted by the Company.
(f) Other Benefits, The
Employee shall be entitled to all rights and benefits for which he shall be
eligible under any benefit or other plans (including, without limitation,
dental, medical, medical reimbursement and hospital plans, pension plans,
employee stock purchase plans, profit sharing plans, bonus plans and other
so-called "fringe" benefits) as the Company shall make available to its
employees from time to time. Prior to the Company's adoption of a benefits plan,
the Company shall bear all costs associated with continuation of the Employee's
current health insurance coverage pursuant to the Federal Consolidated Omnibus
Budget Reconciliation Act or COBRA.
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(g) Vacation. The
Employee shall, during the Term, be entitled to a vacation of three (3)
non-consecutive weeks per annum, in addition to holidays observed by the
Company.
5.
Confidential
Information and Inventions.
The
Employee recognizes and acknowledges that in the course of his duties he is
likely to receive confidential or proprietary information owned by the Company,
its affiliates or third parties with whom the Company or any such affiliates has
an obligation of confidentiality. Accordingly, during and for a period of five
years after the date of the disclosure of such Confidential and Proprietary
Information (as defined below) on a disclosure-by-disclosure basis, the
Executive agrees to keep confidential and not disclose or make accessible to any
other person or use for any other purpose other than in connection with the
fulfillment of his duties under this Agreement, any Confidential and Proprietary
Information (as defined below) owned by, or received by or on behalf of, the
Company or any of its affiliates. "Confidential and Proprietary
Information" shall include, but shall not be limited to, in-licensing,
acquisition and other business opportunities, confidential or proprietary
scientific or technical information, data, formulas and related concepts,
business plans (both current and under development), client lists, promotion and
marketing programs, trade secrets, or any other confidential or proprietary
business information relating to in-licensing, acquisition and other business
opportunities, development programs, costs, revenues, marketing, investments,
sales activities, promotions, credit and financial data, manufacturing
processes, financing methods, plans or the business and affairs of the Company
or of any affiliate or client of the Company. Confidential and Proprietary
information shall not include any information that is available to the public or
the general skills, knowledge and experience acquired by the Employee before the
term. The Employee expressly acknowledges the trade secret status of the
Confidential and Proprietary Information and that the Confidential and
Proprietary Information constitutes a protectable business interest of the
Company. Notwithstanding the foregoing, the Employee may disclose Confidential
and Proprietary information if legally required to do so. The Employee agrees:
(i) not to use any such Confidential and Proprietary Information for himself or
others; and (ii) not to take any Company material or reproductions (including
but not limited to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof from the
Company's offices at any time during his employment by the Company, except as
required in the execution of the Employee's duties to the Company. The Employee
agrees to return immediately all Company material and reproductions (including
but not limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to the Company upon request and in any event immediately upon
termination of employment.
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(a) Except
with prior written authorization by the Company, the Employee agrees not to
disclose or publish any of the Confidential and Proprietary Information, or any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after his employment with the Company.
(b) The
Employee agrees that all inventions, discoveries, improvements and patentable or
copyrightable works ("Inventions") initiated, conceived, reduced to practice or
made by his, either alone or in conjunction with others, during the Term shall
be the sole property of the Company to the maximum extent permitted by
applicable law and, with respect to subject matter for which copyright
protection is available, to the extent permitted by law, shall be "works made
for hire" as that term is defined in the United States Copyright Act (17
U.S.C.A., Section 101). The Company shall be the sole owner of all patents,
copyrights, trade secret rights, and other intellectual property or other rights
in connection therewith. The Employee hereby assigns to the Company all right,
title and interest he may have or acquire in all such Inventions; provided,
however, that the Company may in its sole discretion agree to waive the
Company's rights pursuant to this Section 5(c) with respect to any Invention
that is not directly or indirectly related to the Company's business. The
Employee further agrees to assist the Company in every proper way (but at the
Company's expense) to obtain and from time to time enforce patents, copyrights
or other rights on such Inventions in any and all countries, and to that end the
Employee will execute all documents necessary:
(i) to
apply for, obtain and vest in the name of the Company alone (unless
the Company otherwise directs) letters patent, copyrights or other analogous
protection in any
country throughout the world and when so obtained or vested to renew and restore
the same; and
(ii) to
defend any opposition proceedings in respect of such applications
and any opposition proceedings or petitions or applications for revocation of
such letters
patent, copyright or other analogous protection.
(c) The
Employee acknowledges that in the course of performing the services under this
Agreement the Employee may locate, identify and/or evaluate patented or
patentable inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which may
be of potential interest to the Company or one of its affiliates (the "Third
Party Inventions"). The Employee understands, acknowledges and agrees that all
rights to, interests in or opportunities regarding, all Third-Party Inventions
identified by the Company, any of its affiliates or either of the foregoing
persons' officers, directors, employees (including the Employee), agents or
consultants during the Employment Term shall be and remain the sole and
exclusive property of the Company or such affiliate and the Employee shall have
no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company.
(d) Employee
agrees that he will promptly disclose to the Company, or any persons designated
by the Company, all improvements, Inventions made or conceived or reduced to
practice or learned by his, either alone or jointly with others, during the
Term.
(e) The
provisions of this Section 5 shall survive any termination of this Agreement.
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6. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) The
Employee understands and recognizes that his services to the Company are special
and unique and that in the course of performing the Services the Employee will
have access to and knowledge of Confidential and Proprietary Information (as
defined in Section 5) and the Employee agrees that, during the Term and for a
period of six (6) months thereafter, he shall not in any manner, directly or
indirectly, on behalf of himself or any person, firm, partnership, joint
venture, corporation or other business entity ("Person"), enter into or engage
in any business which is engaged in any business directly or indirectly
competitive with the business of the Company, either as an individual for his
own account, or as a partner, joint venturer, owner, executive, employee,
independent contractor, principal, agent, consultant, salesperson, officer,
director or shareholder of a Person in a business competitive with the Company
within the geographic area of the Company's business, which is deemed by the
parties hereto to be worldwide. The Employee acknowledges that, due to the
unique nature of the Company's business and its business model, the loss of any
of its clients or business flow, the replication of its business model or the
improper use of its Confidential and Proprietary Information could create
significant instability and cause substantial damage to the Company and its
affiliates and therefore the Company has a strong legitimate business interest
in protecting the continuity of its business interests and the restriction
herein agreed to by the Employee narrowly and fairly serves such an important
and critical business interest of the Company. For the purposes of the
non-competition provisions of this Agreement, the Company shall be deemed to be
actively engaged on the date hereof in the research, development and
commercialization of drugs, therapeutics and vaccines for the treatment of
conditions related to infectious diseases. Notwithstanding the foregoing,
nothing contained in this Section 6(a) shall be deemed to prohibit the Employee
from (i) acquiring or holding, solely for investment, publicly traded securities
of any corporation, some or all of the activities of which are competitive with
the business of the Company so long as such securities do not, in the aggregate,
constitute more than four percent (4%) of any class or series of outstanding
securities of such corporation.
(b) During
the Term and for a period of six (6) months thereafter, the Employee shall not,
directly or indirectly, without the prior written consent of the
Company:
(i) solicit
or induce any employee of the Company or any of its affiliates
to leave the employ of the Company or any such subsidiary or affiliate; or hire
for any purpose
any employee of the Company or any subsidiary or affiliate or any employee who
has left the
employment of the Company or any subsidiary or affiliate within six (6) months
of the termination
of such employee's employment with the Company or any such subsidiary or
affiliate
or at any time in violation of such employee's non-competition agreement with
the Company
or any such subsidiary or affiliate; or
(ii) solicit
or accept employment or be retained by any Person who, at any
time during the term of this Agreement, was an agent, client or customer of the
Company or any of
its subsidiaries or affiliates where his position will be related to the
business of the Company
or any such affiliate; or
(iii)
solicit or accept the business of any agent, client or customer of the Company
or any of its subsidiaries or affiliates with respect to products, services or
investments similar to those provided or supplied by the Company or any of its
subsidiaries or affiliates.
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(c) The
Company and the Employee each agree that both during the Term and at all times
thereafter, neither party shall directly or indirectly disparage, whether or not
true, the name or reputation of the other party or any of its subsidiaries or
affiliates, including but not limited to, any officer, director, employee or
shareholder of the Company or any of its subsidiaries or
affiliates.
(d) In the
event that the Employee breaches any provisions of Section 5 or this Section 6
or there is a threatened breach, then, in addition to any other rights which the
Company may have, the Company shall (i) be entitled, without the posting of a
bond or other security, to injunctive relief to enforce the restrictions
contained in such Sections and (ii) have the right to require the Employee to
account for all compensation, profits, monies, accruals, increments and other
benefits (collectively "Benefits") derived or received by the Employee as a
result of any transaction constituting a breach of any of the provisions of
Section 5 or this Section 6 and the Employee hereby agrees to account for such
Benefits to the Company. The Employee agrees that in an action pursuant to this
Section 6, that if the Company makes a prima facie showing that the Employee has
violated or intends to violate any of the provisions of this Section 6, the
Company need not prove either damage or irreparable injury in order to obtain
injunctive relief. The Company and the Employee agree that any such action for
injunctive or equitable relief shall be heard in the courts of the State of
California, County of San Diego, or the United States District Court for the
Southern District of California and each of the parties hereto agrees to accept
service of process by registered or certified mail and to otherwise consent to
the jurisdiction of such courts.
(e) Each of
the rights and remedies enumerated in Section 6(d) shall be independent of the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. The Employee hereby
acknowledges and agrees that the covenant against competition provided for
pursuant to Section 6(a) is reasonable with respect to it duration, geographic
area and scope. If, at the time of enforcement of this Section 6, a court holds
that the restrictions stated herein are unreasonable under the circumstances
then existing, the Parties hereto agree that the maximum duration, scope or
geographic area legally permissible under such circumstances will be substituted
for the duration, scope or area state herein. If any of the covenants contained
in this Section 6, or any part of any of them, is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be
given full effect without regard to the invalid portions. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company's right to the relief provided in this Section 6 or otherwise
in the courts of any other state or jurisdiction within the geographical scope
of such covenants as to breaches of such covenants in such other respective
states or jurisdictions, such covenants being, for this purpose, severable into
diverse and independent covenants.
(f) In the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 5 or this Section 6, the Employee shall not urge as a defense that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available.
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(g) The
provisions of this Section 6 shall survive any termination of this Agreement.
7. Representations and
Warranties by the Employee.
The
Employee hereby represents and warrants to the Company as follows:
(i) Neither
the execution or delivery of this Agreement nor the performance
by the Employee of his duties and other obligations hereunder violate or will
violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant
or obligation under (whether immediately, upon the giving of notice or lapse of
time or both) any
prior employment agreement, contract, or other instrument to which the Employee
is a party or
by which he is bound.
(ii) The
Employee has the full right, power and legal capacity to enter and
deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement
constitutes the legal, valid and binding obligation of the Employee enforceable
against
his in accordance with its terms. No approvals or consents of any persons or
entities are required
for the Employee to execute and deliver this Agreement or perform his duties and
other obligations
hereunder.
8. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of California, without giving effect to its principles of
conflicts of laws.
(b) In the
event of any dispute arising out of, or relating to, this Agreement or the
breach thereof (other than Sections 5 or 6 hereof), or regarding the
interpretation thereof, the parties agree to submit any differences to
nonbinding mediation prior to pursuing resolution through the courts. The
parties hereby submit to the exclusive jurisdiction of the Courts of the State
of California, County of San Diego, or the United States District Court for the
Southern District of California, and agree that service of process in such court
proceedings shall be satisfactorily made upon each other if sent by registered
mail addressed to the recipient at the address referred to in Section 8(g)
below.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and
assigns.
(d) This
Agreement, and the Employee's rights and obligations hereunder, may not be
assigned by the Employee. The Company may assign its rights, together with its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing, but
only by a written agreement signed by the parties hereto.
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(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
(g) All
notices, requests, consents and other communications, required or permitted to
be given hereunder, shall be in writing and shall be delivered personally or by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date of
deposit in the United States mails. Either party may designate another address,
for receipt of notices hereunder by giving notice to the other party in
accordance with this Section 8(g).
(h) This
Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements
and understandings, written or oral, relating to the subject matter hereof. No
representation,
promise or inducement has been made by either party that is not embodied in this
Agreement,
and neither party shall be bound by or liable for any alleged representation,
promise or
inducement not so set forth.
(i) As
used in this Agreement, "affiliate" of a specified Person shall mean
and
include any Person controlling, controlled by or under common control with the
specified Person.
(j) The
section headings contained herein are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Agreement.
(k) As
used in this Agreement, the masculine, feminine or neuter gender, and the
singular or plural, shall be deemed to include the others whenever and wherever
the context so requires. Additionally, unless the context requires otherwise,
"or" is not exclusive.
(l) This Agreement may be executed in any
number of counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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PACIFIC
BEACH BIOSCIENCES, INC.
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By:
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/s/ Xxxxxx
X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx, MD, MBA, FIDSA
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Title:
Chief Executive Officer
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EMPLOYEE
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/s/Xxxxx
Rock
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Name:
Xxxxx Rock
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