EXHIBIT 10.26
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into
as of February 16, 1997 by and between Acute Therapeutics, Inc. a Delaware
corporation (the "Company"), and Xxxx Xxxx, Ph.D. ("Executive").
WHEREAS, the Company and the Executive desire that the
Executive be employed by the Company and that the terms and conditions of such
employment be defined;
NOW, THEREFORE, in consideration of the employment of the
Executive by the Company, the Company and Executive agree as follows:
1. Term of the Agreement. The Company shall employ Executive
and Executive shall accept employment for a period of three (3) years
commencing on February 16, 1997 (the "Commencement Date") and continuing until
February 15, 2000 (the "Employment Period") subject, however, to prior
termination as hereinafter provided in Section 6.
2. Executive's Duties and Obligations.
a. Duties. Executive shall serve as Vice President of
Biometrics. Executive shall be responsible for assistance and design, execution,
analysis and quality of clinical data.
b. Location of Employment . Executive's principal place
of business shall be at Company's office located at 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
c. Proprietary Information and Inventions Agreement.
Upon commencement of employment with the Company, Executive shall execute the
Company's standard form of Intellectual Property and Confidential Information
Agreement (the "Confidentiality Agreement") a copy of which is attached to
this Agreement as Exhibit A.
3. Devotion of Time to Company's Business
a. Full-Time Efforts. During his employment with the
Company, Executive shall devote substantially all of his business time,
attention and efforts to the high quality performance of his duties to the
Company.
b. No Other Employment. During his employment with the
Company, Executive shall not, whether directly or indirectly, render any
services of a commercial or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Company's Executive Committee or Board of Directors.
c. Non-Competition During Employment. During the term
of this Agreement, and for eighteen months after its termination, Executive
shall not, directly or indirectly, either as an employee, employer, consultant,
agent, principal , partner, stockholder, corporate officer, director, or in any
other individual or representative capacity (i) compete with Acute Therapeutics,
Inc. in the business or research areas of surfactant replacement therapy and
other areas which Acute Therapeutics, Inc. may enter while he remains employed,
or (ii)
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directly or indirectly solicit or employ any employees of the Company.
4. Compensation and Benefits.
a. Base Compensation. During the term of this
Agreement, the Company, shall pay to Executive base annual compensation of One
Hundred Forty thousand dollars ($140,000), less all required withholdings.
b. Benefits. During his employment with the Company,
the Company shall provide reasonable disability benefits to Executive while
Executive is a full-time employee of the Company. In addition, the Company will
provide to Executive term life insurance on behalf of Executive's beneficiaries
in the amount of Executive's annual salary for the term of this Agreement.
Executive shall receive an annual payment of $5,000 per year for the length of
this Agreement in lieu of receiving any health care and dental benefits.
c. Stock Option. The Board of Directors of the Company
has granted to Executive, on the date hereof, an incentive stock option to
purchase 16,000 shares of Common Stock, $.001 par value of the Company, at an
exercise price of $0.32 per share, pursuant to the terms of the Notice of Grant
of Stock Option attached hereto as Exhibit B.
d. Incentive Bonus. Executive shall be eligible for an
incentive bonus at the discretion of the Chief Executive Officer of the Company.
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5. Termination of Employment
a. Termination for Good Cause. The Company may
terminate Executive's employment at any time for "Good Cause," as herein
defined. For the purposes of this Agreement, "Good Cause" includes, but is not
limited to, gross misconduct, gross neglect of duties, acts involving moral
turpitude, material breach by Executive of this Agreement or the Confidentiality
Agreement or any act or omission involving fraud, embezzlement, or
misappropriation of any property or proprietary information of the Company by
Executive which is not cured by Executive within fifteen (15) days after receipt
of written notice from the Company.
b. Termination without Good Cause. If
Executive's employment is terminated by the Company without Good Cause, the
following provisions shall apply:
i) Executive shall be entitled to any unpaid
compensation accrued through the last day of Executive's employment;
ii) Executive shall be entitled to receive severance
payments equal to his base compensation, payable on normal Company payroll
dates, for a six month period, subject to setoff for other employment or
consulting income received by Executive.
c. Death or Disability. This Agreement shall terminate
if Executive dies or is mentally or physically "Disabled" as herein defined. For
the purposes of this
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Agreement, "Disabled" shall mean a mental or physical condition that renders
Executive incapable of performing his duties and obligations under this
Agreement for three (3) or more consecutive months or for a total of six (6)
months during any twelve (12) consecutive months; provided, that during such
period the Company shall give Executive at least thirty (30) days' written
notice that it considers the time period for disability to be running. If this
Agreement is terminated under this paragraph 5.d., Executive or his estate
shall be entitled to any unpaid compensation accrued through the last day of
Executive's employment but shall not be entitled to any severance benefits.
6. Miscellaneous
a. Governing Law. This Agreement shall be interpreted,
construed, governed and enforced according to the laws of the State of New York.
b. Amendments. No amendment or modification of the
terms or conditions of this Agreement shall be valid unless in writing and
signed by the parties hereto.
c. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be construed, if possible, so as to be enforceable under applicable law,
else, such provision shall be excluded from this Agreement and the balance of
the Agreement shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
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d. Successors and Assigns. The rights and obligations
of the Company under this Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of the Company. Executive shall not be
entitled to assign any of his rights or obligations under this agreement.
e. Notices. All notices required or permitted
under this Agreement shall be in writing and shall be deemed effective upon
personal delivery or two days after deposit in the United States Post
Office, by registered or certified mail, postage prepaid, addressed to the other
party at the address shown below such party's signature, or at such other
address or addresses as either party shall designate to the other in accordance
with this paragraph 6.e.
f. Entire Agreement. This Agreement, including the
exhibits attached hereto, constitutes the entire agreement between the parties
with respect to the employment of Executive.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
ACUTE THERAPEUTICS, INC .
By: Xxxxxx Xxxxxxxx, Ph. D.
Its: President
Address: 0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
EXECUTIVE:
Xxxx Xxxx Ph.D.
Address: 00 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
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