EXHIBIT 10.1
EMPLOYMENT AGREEMENT FOR DR. XXXX XXXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 30th
day of January, 2001, by and among Xxxxxx Development, Ltd., a Delaware
corporation ("Xxxxxx"), Molichem Medicines, Inc., a North Carolina corporation
("Employer") and Dr. Xxxx Xxxxxx, an individual residing at 0000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("Employee"). Employer and Employee may
be referred to herein collectively as the "Parties" and individually as a
"Party".
RECITALS
A. Pursuant to an Agreement and Plan of Merger (the "Merger
Agreement"), Xxxxxx Acquisition Corporation, a North Carolina corporation (the
"Merger Subsidiary") has been merged into Employer, and Employer has become a
wholly owned subsidiary of Xxxxxx.
X. Xxxxxx has required that Employee enter into this Agreement with
respect to the services he will provide to Employer after the merger.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties agree
as follows:
Section 1. Term. The employment created by this Agreement shall be for
a three (3) year term beginning on the effective date of the Merger Agreement
and ending December 31, 2003 (the "Term"), and automatically renewable at the
option of Employee for an additional two (2) year period, subject, however, to
earlier termination as provided herein.
Section 2. Duties. Employee is initially engaged to act in the capacity
of President and Chief Executive Officer, subject to change as appropriate to
the needs of Employer. Employee's duties and powers as President and Chief
Executive Officer shall be determined from time to time by the Board of
Directors of Employer. Employee shall perform and discharge such duties well and
faithfully.
Section 3. Base Compensation. Subject to the terms and conditions of
this Agreement, as partial compensation for services rendered and Employee's
covenants and agreements under this Agreement, Employer shall pay to Employee a
base salary of one hundred fifty thousand dollars ($150,000) per year, payable
in accordance with Employer's standard practices. Employer and Employee shall
review Employee's performance in accordance with Employer's standard practices,
and at that time Employer shall determine whether Employee's salary should be
increased.
Section 4. Additional Compensation. In addition to the compensation
specified in Section 3 above, Employee shall have the opportunity to earn an
annual bonus in the amount of twenty percent (20%) of base compensation and
shall be eligible for other incentive compensation payments, in accordance with
such plans as may be adopted by the Board of Directors of Employer.
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Section 5. Options. In addition to the compensation under Sections 3
and 4 above, Employee shall be awarded an option for three hundred fifty
thousand (350,000) shares of the common stock of Xxxxxx pursuant to the Option
Agreement in the form of Exhibit A, which agreement provides for vesting of the
options on the following schedule: two hundred thousand (200,000) options
immediately, fifty thousand (50,000) options upon the completion of certain
performance criteria related to the license agreement by and between Employer
and InterMune Pharmaceuticals, Inc as set forth in the Option Agreement, and one
hundred thousand (100,000) options upon establishment of a proof-of-principle
related to the discovery, development or the in- license of new Employer
technology.
Section 6. Benefit Plans. Employer agrees to provide Employee with
health insurance coverage, life insurance coverage, disability income insurance
coverage, participation in a 401(k) plan and all other benefits presently
available for Employer's employees generally.
Section 7. Expenses. Employer shall reimburse Employee for business
expenses directly and reasonably incurred in the performance of his duties
provided that Employee complies with Employer's policies concerning
reimbursement for such expenses.
Section 8. Termination. This Agreement shall terminate prior to the
expiration of its Term upon the occurrence of any one of the following events:
(a) Disability. In the event that (i) Employee is totally and
permanently disabled as determined in accordance with the Employer's long-term
disability plan, if any, as in effect at such time, or (ii) if no such plan is
in effect, Employee is unable to perform his duties and responsibilities
hereunder by reason of illness, injury or incapacity for ninety (90) consecutive
days, this Agreement may be terminated by Employer, and Employer shall have no
further liability or obligation to Employee for compensation hereunder;
provided, however, that Employee shall continue to be compensated as provided in
Section 3 of this Agreement during such 90-day period and until termination
under this section, and provided further, that Employee will be entitled to
receive the payments prescribed under any disability benefits plan in which
Employee was participating.
(b) Death. In the event that Employee dies during the Term,
Employer shall pay to his executors, legal representatives or administrators an
amount equal to the remaining installment of Employee's compensation set forth
in Section 3 hereof for the month in which Employee dies, and thereafter
Employer shall have no further liability or obligation hereunder to Employee's
executors, legal representatives, administrators, heirs or assigns or any other
person claiming under or through Employee; provided, however, that Employee's
heirs, legal representatives or administrators will be entitled to receive the
payments prescribed under any death or disability benefits plan in which
Employee was participating.
(c) Cause. Nothing in this Agreement shall be construed to
prevent Employee's termination by Employer at any time for "cause". For purposes
of this Agreement, "cause" shall mean (i) the failure of Employee to perform or
observe (other than by reason of illness, injury or incapacity) any of the
material terms or provisions of this Agreement, (ii) dishonesty or misconduct on
the part of Employee that is or is reasonably likely to be materially damaging
or materially
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detrimental to the business of Employer, (iii) conviction of a felony, (iv)
failure to comply with the reasonable directions of the Board of Directors or
officers of the Employer in a way that is materially damaging or materially
detrimental to the business of Employer, or (v) failure to perform his material
duties under this Agreement due to abuse of alcohol or drugs. Prior to
terminating this Agreement on account of Employee's failure to perform or
observe any of the material terms and conditions of this Agreement (as described
in clauses (i), (iv) or (v) of the preceding sentence), Employer shall give
Employee thirty (30) days' written notice and an opportunity to cure such
failure to the satisfaction of Employer. Upon termination for cause, Employer
shall pay to Employee all sums due Employee through the date of such
termination. Following such termination, Employer shall have no further duty or
obligation to Employee; provided, however, that Employee shall continue to be
bound by Section 9.
Section 9. Confidential Information. Employee may gain access to or
knowledge of information about Employer that is not generally known or available
to the public ("Confidential Information"). Such information may include trade
secrets, research, development, client information, marketing plans, contractual
arrangements, personnel records, finances, and clients lists. Employee will not
disclose any Confidential Information during or after the term of this Agreement
to any person, firm, corporation, association or other entity for any reason or
purpose whatsoever or use such information except as directed or authorized by
Employer. All Confidential Information remains the property of Employer and no
license or other rights to Confidential Information is granted hereby. On demand
of Employer, at any time, Employee shall immediately deliver all printed or
written Confidential Information to Employer. Confidential Information includes
any such information of Employer prior to the merger of Merger Sub into
Employer.
The following information shall not be deemed part of the Confidential
Information: (1) that was in the public domain at the time of disclosure by
Employer to the Employee; or (2) that entered the public domain through no fault
of Employee subsequent to the time of disclosure by the Employer to Employee; or
(3) that was in the Employee's possession free of any obligation of confidence
at the time of disclosure by the Employer; or (4) that was rightfully
communicated by a third party to Employee free of any obligation of confidence
subsequent to the time of disclosure by the Employer to Employee; or (5) that is
deemed not confidential by the Board of Directors of Employer or is not
confidential under any confidentiality policies adopted by the Board of
Directors of Employer.
Section 10. Ownership of Confidential Information and Work Product.
Except as limited by this Section, Employee agrees that all Confidential
Information and all other work product of any type or nature created by Employee
or resulting from work performed by Employee for the Employer, using the
Employer's facilities, equipment, supplies or other property, during business
hours, or related to the Employer's Business, even if not Confidential
Information (such Confidential Information and work product being defined as
"Work Product"), shall belong to the Employer exclusively and without any
additional compensation to Employee. Employee agrees that any original
copyrightable Work Product shall be considered as "works made for hire," and
that the Employer shall be deemed the author thereof, provided that to the
extent such Work Product is determined not to constitute "works made for hire"
as a matter of law, Employee hereby irrevocably assigns and transfers to the
Employer all rights in and to such Work Product.
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Upon request Employee will execute any instrument required to vest in
the Employer complete title and ownership to all Work Product, and will, at the
request and expense of the Employer, execute any instruments necessary to obtain
legal protection in the United States and foreign countries for all Work Product
and for the purpose of vesting title thereto in the Employer, or its nominee,
all without any additional compensation of any kind to Employee.
Section 11. Notices. Any notices to be given hereunder by either Party
to the other may be effected in writing either by personal delivery, via
telefacsimile or by mail, registered or certified, postage prepaid with return
receipt requested:
If to Employer: MoliChem Medicines, Inc.
000 Xxxxx Xxxxxx Xxxx, XXX #000
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
with a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxxx, P.A.
P. O. Box 12218
Research Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000
If to Employee: Dr. Xxxx Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Mailed notices shall be addressed to the Parties at the addresses set forth
above, but each Party may change the address by written notice in accordance
with this Section 11. Notices delivered personally or by telecopier (with
answerback received) shall be deemed communicated as of actual receipt mailed
notices shall be deemed communicated as of three days after mailing.
Section 12. Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the Parties hereto with
respect to the employment of Employee by Employer, and contains all of the
covenants and agreements between the Parties with respect to such employment in
any manner whatsoever.
Section 13. Headings. The headings or titles to sections in this
Agreement are intended solely for convenience and no provision of this Agreement
is to be construed by reference to the heading or title of any section.
Section 14. Amendment or Modification; Waiver. No provision of this
Agreement may be amended, modified or waived unless such amendment, modification
or waiver is authorized by Employer and is agreed to in writing, signed by
Employee and by an officer of Employer (other than Employee) thereunto duly
authorized. Except as otherwise specifically provided in this Agreement, no
waiver by any Party hereto of any breach by any other Party hereto of any
condition or provision of this Agreement to be performed by such other Party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or at any prior or subsequent time nor shall the receipt or acceptance
of Employee's employment be deemed a waiver of any condition or provision
hereof.
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Section 15. Assignability. Employee shall not assign, pledge or
encumber any interest in this Agreement or any part thereof without the express
written consent of Employer, this Agreement being personal to Employee. This
Agreement shall, however, inure to the benefit of Employee's estate, dependents,
beneficiaries and legal representatives. This Agreement shall not be assignable
by Employer without the written consent of Employee, but if Employer shall merge
or consolidate with or into, or transfer substantially all of its assets to,
another corporation or other form of business organization, then this Agreement
shall bind, and inure to the benefit of, the successor of Employer resulting
from such merger, consolidation or transfer. No such merger, consolidation or
transfer, however, shall relieve the Parties from liability and responsibility
for the performance of their respective duties and obligations hereunder.
Section 16. Governing Law. This Agreement shall be interpreted,
construed and governed by and in accordance with the internal substantive law of
the State of North Carolina.
Section 17. Severability. Each provision of this Agreement constitutes
a separate and distinct undertaking, covenant and/or provision hereof. In the
event that any provision of this Agreement shall finally be deemed severed from
this Agreement, but every other provision of this Agreement shall remain in full
force and effect, and in substitution for any such provision held unlawful,
there shall be substituted a provision of similar import reflecting the original
intent of the Parties hereto to the extent permissible under law.
EMPLOYER:
MOLICHEM MEDICINES, INC.
By: ______________________________
Its:
EMPLOYEE:
----------------------------------
Dr. Xxxx Xxxxxx
XXXXXX DEVELOPMENT, LTD.
By:_______________________________
Its:
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