EXHIBIT 10.7
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of ____________, 1997, is made and
entered into by and between DepoMed, Inc., a California corporation (the
"Company") and Xxxx X. Xxxxx, an individual ("Employee").
R E C I T A L S:
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WHEREAS, the Company, desires to employ Employee and Employee desires to
perform the duties and obligations hereinafter described for a period commencing
on the date of this Agreement (the "Effective Date") and ending on the second
anniversary of the Effective Date, upon the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the premises and mutual agreements
herein, the Company and Employee agree as follows:
1. Employment. The Company hereby agrees to employ Employee, and
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Employee agrees to serve the Company in the capacity of Chairman and Chief
Scientific Officer, subject to the terms and conditions of this Agreement.
Employee shall, during the term of this Agreement, in good faith perform his
duties as Chairman and Chief Scientific Officer and shall implement the policies
of the Company.
2. Employment Term. Employment of Employee shall commence on the
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Effective Date and shall continue until two years from the Effective Date,
unless terminated pursuant to Section 6 below.
3. Compensation and Benefits. From and after the Effective Date and so
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long as Employee is employed by the Company, Employee shall be entitled to the
following compensation and benefits:
(a) Salary. Employee shall receive an annual salary of $185,000 to be
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paid in periodic installments, in accordance with the Company's standard payroll
practice.
(b) Vacation. Employee shall receive vacation in accordance with
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Company's standard vacation policy for employees; provided, however, in no event
shall the Employee receive less than three weeks of vacation per year.
(c) Benefits. Employee shall receive health insurance and dental
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insurance equivalent to those benefits accorded the Company's other employees.
Employee shall receive reimbursement for business-related expenses in accordance
with the Company's policies, and shall have the right to contribute to any
401(k) plan or other similar plan established by the Company, on the same terms
as the Company's other employees.
4. Duties. Employee shall (i) faithfully devote full-time attention,
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skill and ability to discharge the duties assigned to him by the Board of
Director, (ii) use best efforts to promote and protect the interests of the
Company, (iii) comply with all reasonable and lawful instructions that the Board
of Directors give from time to time, and (iv) provide information and assistance
as requested by the Board of Directors. During the term of this Agreement,
Employee shall not engage in any work, enterprise or activity which is not in
the best interests of the Company, or contrary to, or detracting from, the due
performance of the business of the Company or the discharge of Employee's duties
to the Company.
5. Non-Competition and Confidentiality.
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(a) Non-Competition. Employee agrees that during the term of his
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employment by the Company, he shall not carry on any business that is directly
or indirectly competitive with or similar to the business conducted by the
Company. For purposes of this Agreement, each of the following activities,
without limitation, shall be deemed to constitute carrying on a business: to
own or control an interest, directly or indirectly, in any enterprise or
endeavor, either individually, in partnership or in conjunction with any person,
firm, association, company or corporation, or act as a director, officer, agent,
employee, consultant, partner or stockholder of a business; provided, however,
that Employee shall not be prohibited from (i) owning less than 5% of the equity
securities of an entity, (ii) serving as a director of an entity, where Employee
served in such capacity as of the Effective Date; or (iii) engaging in advising
or consulting activities approved by the Company's Board of Directors.
(b) Confidentiality.
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(i) Definition of Confidential Information. As used herein, the
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term "Confidential Information" shall mean all information Employee acquired
from any source in the course of his employment by the Company if (A) such
information is not either in the public domain or part of Employee's general
knowledge learned apart from his work for the Company and (B) Employee has
reason to believe that such information is confidential information of the
Company (or an affiliate of the Company). Information shall be "Confidential
Information" even if no legal protection has been obtained or sought for such
information under federal, state or foreign laws and whether or not Employee has
been specifically notified that such information is "Confidential Information."
"Confidential Information" includes, by way of example and without limitation,
the operation methods of the Company (and affiliates of the Company), customer
lists and arrangements with licensees.
(ii) Use of Confidential Information. Without limiting or
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otherwise affecting Employee's obligations under
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Section 5(a) of this Agreement, Employee agrees not to disclose, communicate or
use to the detriment of the Company or for the benefit of any other person
(including himself), or misuse in any way any Confidential Information.
Employee acknowledges and agrees that all Confidential Information received
heretofore or to be received hereafter by him from the Company (or an affiliate
of the Company) was or will be received by him in confidence and as a fiduciary
of the Company. The obligation not to disclose, communicate, use or misuse
Confidential Information shall continue indefinitely after the termination, if
any, of this Agreement.
6. Termination. Employee or the Company may terminate this Agreement at
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any time upon 90 days written notice to the other party.
7. General Provisions.
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(a) Waiver. Failure of either party to enforce any of the provisions
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of this Agreement, or any rights with respect thereto, or failure to exercise
any election provided for herein, shall in no way be considered a waiver of such
provisions, rights or elections, or in any way affect the validity of this
Agreement. The failure of either party to enforce any of said provisions,
rights or elections shall not prejudice such party from later enforcing or
exercising the same or any other provisions, rights or elections which it may
have under this Agreement.
(b) No Assignment. The rights and duties of Employee under this
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Agreement shall not be subject to alienation, assignment or transfer, whether
voluntary or involuntary.
(c) Notices. Any notice or other communication required or permitted
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hereunder shall be in writing and shall be deemed to have been duly given on the
date of service if served personally or by facsimile, or five days after the
date of mailing if mailed by first class mail, registered or certified, postage
prepaid. Notices shall be addressed as follows:
If to Company: DepoMed, Inc.
0000 X Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
ATTENTION: President
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If to Employee: Xxxx X. Xxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxx 00000
(d) Supersedes Prior Agreements. This Agreement supersedes all prior
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employment agreements, understandings, oral or written, between Employee and the
Company (or any affiliate of the Company).
(e) Captions. The captions used in this Agreement are intended solely
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for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the construction or interpretation of any of the
provisions hereof.
(f) Construction. The language used in this Agreement will be deemed
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to be the language chosen by each of the parties hereto to express their mutual
intent, and no rule of strict construction, including the rule that ambiguities
are to be resolved against the drafting party, shall be applied against either
party.
(g) Severability. If any term of this Agreement or any application
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thereof shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining terms contained herein and any
other application of said terms shall not in any way be affected or impaired
thereby.
(h) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
entered into by residents of California and to be performed wholly within the
State of California.
(i) No Third Party Beneficiaries. This Agreement shall not confer any
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rights or remedies upon any person other than the parties and their respective
successors and permitted assigns.
(j) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties pertaining to the subject matter hereof, and no changes in,
additions to, or modifications of this Agreement shall be valid unless set forth
in writing and signed by each of the parties.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
COMPANY: DEPOMED, INC.
By:
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Title:
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EMPLOYEE: ------------------------------------------
Xxxx X. Xxxxx
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