EMPLOYMENT AGREEMENT
EXHIBIT 10(ll)
This Agreement (“Agreement”) made as of this 20th day of September, 2006, between DUSA
Pharmaceuticals, Inc., a New Jersey corporation (“DUSA”) and Xxxxxxx Xxxxxxx (“Xxxxxxx”).
WHEREAS, Xxxxxxx has been employed by DUSA since May 2, 2005 and DUSA wishes to promote
Xxxxxxx;
NOW THEREFORE, in consideration of the mutual covenants and promises, the parties agree as
follows:
1. Employment: DUSA hereby employs Xxxxxxx and he hereby accepts such employment as the Vice
President, Controller. Xxxxxxx agrees to work on a full-time basis and to devote his best efforts
and spend as much time and attention as is necessary to manage the financial affairs of DUSA for
which he is responsible. Xxxxxxx shall report to the Chief Financial Officer of DUSA or other
senior management officer as may be determined from time to time.
2. Duties and Responsibilities: Notwithstanding any language contained herein to the
contrary, Xxxxxxx shall be responsible (by way of example and not by way of limitation) for:
| A. | General accounting matters including, but not limited to, monthly corporate financial reporting to management; and | ||
| B. | Preparation and coordination of SEC reporting, federal and state tax obligations both internally with management and externally with auditors and counsel, accounts payable, payroll, general ledger processes and controls, financial system report development and control, accounting policies and procedures, and | ||
| C. | treasury functions including, but not limited to, assist management of banking relationships, manage and report short and long-term cash activities, insurance, stock option administration and management; and | ||
| D. | any additional employment responsibilities as deemed appropriate by the Board of Directors and DUSA’s senior management, from time to time. |
3. Remuneration: DUSA will pay to Xxxxxxx a base salary equal to One Hundred Fifty Thousand
Dollars ($150,000.00) per annum from time to time at intervals consistent with DUSA’s
administrative practices, and a retention bonus of Forty Thousand Dollars ($40,000.00) to be paid
in a lump sum in the payroll period immediately following execution of this Agreement. The base
salary shall be reviewed by the Board of Directors of DUSA from time to time, not less than on an
annual basis, beginning in January 2007. Any salary increases shall be determined by, and shall be
made at the sole discretion of the Board. Following the end of each fiscal year, the Board may
award a cash bonus to Xxxxxxx in an amount up to 30% of his current base salary for such year, as
determined by the Board in its sole discretion. For purposes of awarding the total amount of such
bonus, mutually agreeable performance objectives will be set at the beginning of any calendar year
during Xxxxxxx’x employment. The Board may award annual cash bonuses above 30% of then current
base salary for outstanding performance.
All salary and other payments and allowances outlined in this Agreement shall be subject to
such withholding taxes and deductions as may be required by law.
4. Place of Employment: As Vice President, Controller, Xxxxxxx will operate primarily from
the principal offices of DUSA, currently located in Wilmington, Massachusetts. Xxxxxxx
acknowledges, however, that there may be domestic and international travel required on a periodic
basis. Such travel is understood to be necessary in order to promote the business of DUSA.
5. Benefits: Xxxxxxx will be entitled to participate in the medical, dental, life, disability
and other insurance benefit plans or pension, profit sharing, deferred compensation, or 401K plans
which may be made available to the officers and employees of DUSA from time to time, subject to
applicable eligibility rules thereof.
6. Stock Options: As additional consideration the Company’s Board of Directors has approved a
grant of Fifteen Thousand (15,000) non-qualified stock options for shares of common stock of DUSA
to Xxxxxxx, under the terms of the 2006 Equity Plan, subject to the entry of this Agreement. The
options will be granted on and have an exercise price equal to the closing price of DUSA’s common
stock as listed on the NASDAQ Stock Market on the second business day following the release of
earnings by DUSA for the period ended September 30, 2006 and shall vest at the rate of 25% per year
over four (4) years, commencing on the first anniversary of the grant date. Xxxxxxx shall also be
entitled to participate in any subsequent stock purchase and bonus or incentive plans that DUSA
shall from time to time make available to its officers and employees, subject to applicable
eligibility rules thereof.
7. Vacation: Xxxxxxx shall be entitled to four (4) weeks of vacation during each year of
employment, to be taken at a time or times acceptable to DUSA, having regard to its operations.
Xxxxxxx shall be entitled to carry over up to 80 hours of any unused vacation from one (1) calendar
year into the following calendar year, so long as such a vacation policy is consistent for all
employees.
8. Expenses: All reasonable travel and other expenses incident to the rendering of services
by Xxxxxxx on behalf of and in promoting the interests of DUSA shall be paid by DUSA, including but
not limited to an automobile allowance in the amount of $6,000 per year and cell phone
reimbursement. If such expenses are paid in the first instance by Xxxxxxx, XXXX agrees that it
will reimburse him therefore upon presentation of appropriate statements, vouchers, bills and
invoices as and when required by DUSA to support the reimbursement request.
9. Confidential Information:
X. Xxxxxxx understands that in the performance of his services hereunder he may obtain
knowledge of “confidential information”, as hereinafter defined, relating to the business of
DUSA. As used herein, “confidential information” means any information (whether clinical,
financial, administrative or otherwise), written or oral, (including without limitation, any
formula, pattern, device, plan, process, or compilation of information) which (i) is, or is
designed to be, used in the business of DUSA or results from its research and/or development
activities, or (ii) is private or confidential in that it is not generally known or
available to the public, or (iii) gives DUSA an opportunity to obtain an advantage over
competitors who do not know or use it. Xxxxxxx shall not, without the written consent of
the Board, either during the term of his employment or thereafter, (a) use or disclose any
such confidential information outside of DUSA (except to consultants or other agents or
representatives of DUSA who are similarly bound to DUSA by confidentiality obligations), (b)
publish any article with respect thereto, (c) except in the performance of his services
hereunder, remove or aid in the removal from
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the premises of DUSA any such confidential information or any property or material
which relates thereto.
B. Upon the termination of his employment with DUSA, all documents, records, notebooks
and similar repositories of or continuing information concerning DUSA, or its products,
services or customers, including any copies thereof, then in Xxxxxxx’x possession or under
his control, whether prepared by Xxxxxxx or others, will be left with or immediately
returned to DUSA by Xxxxxxx.
C. (i) Xxxxxxx shall promptly disclose to DUSA any and all prescription drug products,
devices, machines, methods, inventions, discoveries, improvements, processes, works or the
like (all of which are referred to herein as “inventions”) which he may invent, conceive,
produce, or reduce to practice, either solely or jointly with others, at any time (whether
or not during work hours) during his employment hereunder.
(ii) All such inventions which in any way relate to the products manufactured, sold or
used by DUSA or to any methods, processes or apparatus used in connection with the
manufacture of such products or treatment of disease or conditions, or in either case which
are or may be or may become capable of use in the business of DUSA, shall at all times and
for all purposes be regarded as acquired and held by Xxxxxxx in a fiduciary capacity for,
solely for the benefit of, DUSA.
(iii) With respect to all such inventions, Xxxxxxx shall:
(a) treat all information with respect thereto as confidential
information within the meaning of, and subject to this paragraph 9;
(b) keep complete and accurate records thereof, which records shall be
the property of DUSA;
(c) execute any application for letters patent of the United States and
of any and all other countries covering such inventions, and give to DUSA,
its attorneys and solicitors all reasonable and requested assistance in
preparing such application;
(d) from time to time, upon the request and at the expense of DUSA, but
without charge for services beyond the salary paid to him by DUSA, execute
all assignment or other instruments required to transfer and assign to DUSA
(or as it may direct) all inventions, and all patents and applications for
patents, copyrights or applications for registration of copyrights, covering
such inventions or otherwise required to protect the rights and interests of
DUSA;
(e) testify in any proceedings or litigation as to all such inventions;
and
(f) in case DUSA shall desire to keep secret any such invention, or
shall for any reason decide not to have letters patent applied for thereon,
refrain from applying for letters patent thereon.
D. Notwithstanding any of the foregoing in this section, information, whether
confidential or proprietary or not, shall be exempt from the above confidentiality
provisions if said information:
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| (i) | is known to Xxxxxxx prior to his employment with DUSA; | ||
| (ii) | is in the public domain on the date of employment; | ||
| (iii) | becomes public at any time through no fault of Xxxxxxx; or | ||
| (iv) | is or becomes readily available from third parties who have no confidentiality obligations to DUSA. |
E. If Xxxxxxx’x employment is terminated by Xxxxxxx, Xxxxxxx shall not, without the
express prior written consent of DUSA, directly, or indirectly, during the term of this
Agreement or for a period of one (1) year after its termination, render services, or engage
in activity including but not limited to, the activities enumerated in Section 2 hereof or
any similar activity, for any company which relates to the development or sale of
photodynamic therapy (“PDT”) or photodetection (“PD”) products directly competitive (i.e.,
medically or therapeutically) with DUSA’s products or compounds or mixtures thereof, whether
alone or as a partner, officer, director, employee or shareholder of any other corporation,
or as a trustee, fiduciary, consultant or other representative of any other activity. This
restriction shall not apply if Xxxxxxx has disclosed to DUSA, in writing, all the known
facts relating to such work or activity and has received a release, in writing from DUSA, to
engage in such work or activity. The making of passive and personal investments and the
conduct of private business affairs shall not be prohibited hereunder. Ownership by Xxxxxxx
of five percent (5%) or less of the outstanding shares of stock of any corporation either
(i) listed on a national securities exchange or (ii) having at least 100 stockholders shall
not make Xxxxxxx a “stockholder” within the meaning of that term as used in this paragraph,
so long as Xxxxxxx has no participation in the management of such corporation.
10. Termination of Employment:
X. XXXX may terminate this Agreement at any time, with or without cause on sixty (60)
days prior written notice. For purposes of this Agreement, cause shall mean (i) Xxxxxxx’x
physical or mental disability or other inability to perform the duties of his job for any
reason for a period in excess of six (6) consecutive months, (ii) Xxxxxxx’x conviction in a
court of law of a crime or offense, which conviction would prevent Xxxxxxx from effective
management of DUSA or materially adversely affect the reputation of DUSA, as determined by
the Board in its sole discretion, exercising its reasonable judgment, or (iii) Xxxxxxx’x
malfeasance or misconduct such as fraud, embezzlement, dishonesty, acts of moral turpitude,
or a felony conviction, or for other good cause materially detrimental to DUSA. In the
event of a termination for cause, Xxxxxxx shall be paid his base salary and unused, accrued
vacation pay, prorated to the date of termination. Nothing contained herein shall be
interpreted to impair or otherwise affect the right of DUSA to terminate Xxxxxxx’x
employment, at will, with or without good cause.
B. If Xxxxxxx’x employment is terminated by DUSA without cause, DUSA shall:
(i) pay to Xxxxxxx a xxxxxxxxx allowance equivalent to twelve (12) months’ then
current base salary, payable as a lump sum, within sixty (60) days following the
date of such termination;
(ii) pay to Xxxxxxx within two (2) weeks of the date of termination all
outstanding vacation pay and any earned but unpaid salary or bonuses to the date
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of such termination and reimburse Xxxxxxx for any business expense incurred by
him up to and including the date of such termination following provision by Xxxxxxx
of all applicable and necessary receipts.
C. Termination upon Death: Xxxxxxx’x employment with DUSA will cease and this
Agreement will terminate without further compensation if Xxxxxxx dies. Upon his death, his
estate will be entitled to any Corporation paid death benefit in force at the time of such
death. In addition, Xxxxxxx’x estate shall be paid any cash bonus to which he would have
been entitled under Paragraph 3 above. Likewise, Xxxxxxx’x beneficiaries as designated by
him to DUSA shall be entitled to receive the benefits, if any, described in Paragraphs 5 and
6 above, and will be entitled to exercise any vested but unexercised stock options that were
held by him at the time of his death, subject to the terms and conditions of such options.
D. Resignation: Xxxxxxx will provide DUSA with two (2) months’ advance notice, in
writing, of his resignation from DUSA. If Xxxxxxx resigns at any time and for any reason
prior to December 31, 2007, Todsico shall refund the entire retention bonus paid to Xxxxxxx
pursuant to Section 3 of this Agreement.
11. Change of Control: If Xxxxxxx’x employment is terminated by DUSA without cause upon the
consummation of a “change in control” as defined herein, Xxxxxxx shall receive, within five (5)
days after such termination from DUSA or its successor, a lump sum payment equal to three (3) times
his base salary during the last fiscal year in which Xxxxxxx is associated with DUSA (including any
amounts due as severance under Paragraph 10B.(i) of this Agreement). For the purposes hereof,
“change in control” shall mean a change in control of a nature that would be required to be
reported in response to Item 5 of Schedule 14D promulgated pursuant to section 14 of the Securities
Exchange Act of 1934, as amended (the 1934 Act”), whether or not DUSA is then subject to such
reporting requirements; provided that, without limitations, such a change in control shall be
deemed to have occurred if (i) any person other than a trustee or other fiduciary holding
securities under an employee benefit plan of DUSA is or becomes the beneficial owner, directly or
indirectly, of securities of DUSA representing twenty percent (20%) or more of the combined voting
power of DUSA’s then outstanding securities and thereafter the Board adopts a resolution to the
effect that, for the purposes of this Agreement, a change in control of DUSA has occurred; such
ownership shall be defined pursuant to Rule 13d-3 of the 1934 Act and includes mergers or
acquisitions whereby an outside party has in excess of twenty percent (20%) of the combined voting
power; (ii) when DUSA merges or consolidates with any other person or, entity other than a
subsidiary and, upon consummation of such transaction own less than fifty percent (50%) of the
equity securities of the surviving or consolidated entity; or (iii) a substantial portion of the
assets of DUSA are sold or transferred to another person or entity.
12. Indemnification: DUSA will, to the extent permitted by the laws of the State of New
Jersey, indemnify Xxxxxxx against any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative, that arises as a consequence of his duties as an
employer and officer of DUSA. Such indemnification will include such expenses as attorneys fees,
judgments, fines and amounts awarded or agreed to in settlement, provided that Xxxxxxx acted
legally and in good faith, or reasonably believed that his actions were legal and performed in good
faith. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendre shall not, of itself, create a presumption that his
actions were illegal or not performed in good faith.
13. Representation Concerning Prior Employment: Xxxxxxx represents and warrants to DUSA that
none of the duties or obligations for which he is responsible under this
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Employment Agreement breaches, or will cause him to breach in the future, any restrictive
covenant or confidentiality obligation under any former employment agreement.
14. Provisions Operating Following Termination: Notwithstanding any termination of Xxxxxxx’x
employment with or without cause, any provision of this Agreement necessary to give it efficacy
shall continue in full force and effect following such termination.
15. Notices: Any notice to be given in connection with this Agreement shall be given in
writing and may be given by personal delivery, by certified mail, postage prepaid, or by facsimile
transmission, so long as receipt of such transmission is available, addressed to the recipient as
follows:
| To: | Xxxxxxx Xxxxxxx, Vice President, Controller DUSA Pharmaceuticals, Inc. 00 Xxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 |
| To: | D. Xxxxxxxx Xxxxxxx, MD, FRCPC, President and CEO DUSA Pharmaceuticals, Inc. 00 Xxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 |
or to such other address or individual as may be designated by notice by either party to the other.
Any notice given by personal delivery shall be deemed to have been given on the day of actual
delivery and, if made or given by certified mail, on the third day, other than a Saturday or Sunday
following the deposit thereof with the U.S. Postal Service.
16. Governing Law: This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey.
17. Benefit of Agreement: This Agreement shall inure to the benefit of and be binding upon
the heirs, executives, administrators and legal personal representatives of Xxxxxxx and to and upon
the successors and assigns of DUSA, respectively.
18. Entire Agreement: This Agreement constitutes the entire agreement between the parties
hereto with respect to the terms and conditions of employment of Xxxxxxx and cancels and supersedes
any prior understandings and agreements between the parties to this Agreement. There are no
representations, warranties, forms, conditions, undertakings or collateral agreements expressed,
implied or statutory between the parties hereto other than as expressly set forth in this
Agreement.
19. Severability: Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision of any other jurisdiction but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been
contained herein.
20. Amendments and Waivers: Any provision of this Agreement may be amended or waived only
with prior written consent of DUSA and Xxxxxxx.
*****
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IN WITNESS WHEREOF, the parties have duly executed this Agreement.
| ATTEST: | DUSA PHARMACEUTICALS, INC. | |||||||
/s/ Xxxxxxxx Xxxxxx
|
By: | /s/ Xxxxxx X. Xxxxx
|
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| Dated: 9/20/06 | ||||||||
| WITNESS: | EMPLOYEE: | |||||||
| /s/ Xxxxxxx X. Xxxxxxxxxxx | /s/ Xxxxxxx Xxxxxxx | |||||||
| Xxxxxxx Xxxxxxx | ||||||||
| Dated: 9/20/06 | ||||||||
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