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EXHIBIT 10.85
AXYS PHARMACEUTICALS
KEY EMPLOYEE AGREEMENT
FOR
XXX XXXXXX
This Employment Agreement ("Agreement") is entered into as of the 8th
day of January 1998, by and between Xxx Xxxxxx ("Executive") and AxyS
Pharmaceuticals (the "Company").
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company, and wishes to provide Executive with certain
compensation and benefits in return for his services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 Subject to terms set forth herein, the Company agrees to employ
Executive in the position of Senior Vice President of Research and Development,
La Jolla, and Executive hereby accepts such employment effective as of January
8, 1998 (the "Employment Date"). During the term of his employment with the
Company, Executive will devote his best efforts and substantially all of his
business time and attention (except for vacation periods as set forth herein and
reasonable periods of illness or other incapacities permitted by the Company's
general employment policies) to the business of the Company.
1.2 Executive shall serve in an executive capacity and shall perform
such duties as are customarily associated with his then current title,
consistent with the Bylaws of the Company and as required by the Company.
1.3 The employment relationship between the parties shall also be
governed by the general employment policies and practices of the Company,
including those relating to protection of confidential information and
assignment of inventions, except that when the terms of this Agreement differ
from or are in conflict with the Company's general employment policies or
practices, this Agreement shall control.
2. COMPENSATION.
2.1 SALARY. Executive shall receive for services to be rendered
hereunder a minimum annualized base salary of $235,000, payable in accordance
with the company's normal payroll practices.
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2.2 DISCRETIONARY BONUS. Executive will be eligible for a discretionary
bonus one year from the Employment Date, in an amount equal to up to one year's
base salary earned as follows:
(a) Up to fifty percent (50%) of annual base salary if
Executive meets both of the following criteria:
(i) RETENTION OF KEY STAFF. As of the first anniversary of
the Employment Date, the Company must have retained eighty percent (80%) or
better of the key research and development staff, a list of whom shall be agreed
upon between Executive and the Company prior to the Employment Date. For
purposes of calculating this percentage, the parties agree that any identified
key member of the research and development staff who is terminated for any
reason by the Company shall be counted as if he or she had remained employed by
the Company.
(ii) INTEGRATION. Executive must have performed a strongly
constructive role in causing the successful integration of Arris and Sequana as
determined in the sole discretion of the Company.
(b) Fifty percent (50%) of annual base salary if
Executive remains an active employee for a one year period after the Employment
Date.
2.3 STANDARD COMPANY BENEFITS. Executive shall be entitled to all rights
and benefits for which he is eligible under the terms and conditions of the
standard Company benefits and compensation practices which may be in effect from
time to time and provided by the Company to its employees generally.
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 AGREEMENT. Executive agrees to execute and abide by the Company's
standard Proprietary Information and Inventions Agreement.
3.2 REMEDIES. Executive's duties under the Proprietary Information and
Inventions Agreement shall survive termination of his employment with the
Company. Executive acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Proprietary Information and
Inventions Agreement would be inadequate, and he therefore agrees that the
Company shall be entitled to injunctive relief in case of any such breach or
threatened breach.
4. OUTSIDE ACTIVITIES.
4.1 Except with the prior written consent of the Company, Executive will
not during the term of this Agreement undertake or engage in any other
employment, occupation or business enterprise, other than ones in which
Executive is a passive investor. Executive may engage in civic and
not-for-profit activities so long as such activities do not materially interfere
with the performance of his duties hereunder.
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4.2 Except as permitted by Section 4.3, Executive agrees not to acquire,
assume or participate in, directly or indirectly, any position, investment or
interest known by him to be adverse or antagonistic to the Company, its business
or prospects, financial or otherwise.
4.3 During the term of his employment by the Company, except on behalf
of the Company, Executive will not directly or indirectly, whether as an
officer, director, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any other
person, corporation, firm, partnership or other entity whatsoever which were
known by him to compete directly with the Company, throughout the world, in any
line of business engaged in (or planned to be engaged in) by the Company;
provided, however, that anything above to the contrary notwithstanding, he may
own, as a passive investor, securities of any competitor corporation, so long as
his direct holdings in any one such corporation shall not in the aggregate
constitute more than 2% of the voting stock of such corporation.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION WITHOUT CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time without cause (the "Termination Date").
(b) In the event Executive's employment is terminated without
cause before one year has elapsed from the Employment Date, and the Executive
signs the general release of claims set forth hereto as Exhibit A, the Company
shall provide Executive with the following compensation:
(i) Continuation of his base salary from the Termination
Date until one year has elapsed from the Employment Date;
(ii) The entire Discretionary Bonus set forth in Paragraph
2.2 herein, which shall be paid on the Termination Date;
(iii) Should Executive elect continued health care
coverage under COBRA, the Company will reimburse him for his COBRA coverage
costs from the Termination Date until one year has elapsed from the Employment
Date; and
(iv) The Company will accelerate the vesting of any stock
options which would vest during the period from the Termination Date until one
year has elapsed from the Employment Date such that all such options would be
vested as of the Termination Date. Executive understands and agrees that no
stock options will continue to vest after the Termination Date. Executive may
exercise these options in accordance with the terms of his stock option
agreements and the governing stock option plan.
(c) In the event Executive's employment is terminated without cause on
or after one year after the Employment Date, he will not be entitled to
severance pay, pay in
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lieu of notice or any other such compensation, except as provided in the
Company's Severance Benefit Plan, if any, in effect on the Termination Date.
5.2 TERMINATION FOR CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time for cause.
(b) "Cause" for termination shall mean:
(i) conviction of a misdemeanor or felony involving
dishonesty, fraud, theft or embezzlement or any other felony, or other crime or
offense involving money or property of the Company (in any case in an amount or
at a value in excess of $1,000);
(ii) failure or refusal in any material respect to follow
reasonable written policies or directives established by the Company; or
(iii) willful and persistent failure or refusal to attend
to Executive's material duties or obligations of employment if such failure or
refusal has continued for at least ten (10) days after the Employee's receipt of
notice from the Company specifying the failure or refusal.
(c) In the event Executive's employment is terminated at any time
with cause, he will not be entitled to severance pay, pay in lieu of notice or
any other such compensation.
5.3 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment with the
Company at any time, after which no further compensation will be paid to
Executive.
(b) In the event Executive voluntarily terminates his employment,
he will not be entitled to severance pay, pay in lieu of notice or any other
such compensation, provided, however, that if within one year of the Employment
Date, Executive resigns from employment solely due to a relocation of
Executive's primary work location to a location which is greater than fifty (50)
miles from his current work location, he shall be entitled to receive the
severance compensation set forth in Paragraph 5.1(b) herein.
6. RESTRICTIVE COVENANT. In the event Executive voluntarily terminates
his employment with the Company, or his employment is terminated for cause, then
for a period of
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six (6) months following the Termination Date, Executive shall not, without
first obtaining the prior written approval of the Company, directly or
indirectly engage or prepare to engage, in any research and/or development
activities on programs which compete with those of the Company in existence at
the time of such termination.
7. NONINTERFERENCE.
While employed by the Company, and for one (1) year immediately
following the Termination Date, Executive agrees not to interfere with the
business of the Company by:
(a) soliciting, attempting to solicit, inducing, or otherwise
causing any employee of the Company to terminate his or her employment in order
to become an employee, consultant or independent contractor to or for any
competitor of the Company; or
(b) directly or indirectly soliciting the business of a customer
or proposed customer of the Company for a research and/or development program or
programs which compete with those of the Company in existence at the time of
such termination. For this purpose, a customer or proposed customer of the
Company shall mean an entity with whom, during the six (6) month period prior to
the date of Executive's termination, the Company has been in contact for the
purpose of attempting to establish a relationship concerning a research and/or
development program which is competitive with the program concerning which
Executive would solicit business.
8. GENERAL PROVISIONS.
8.1 NOTICES. Any notices provided hereunder must be in writing and shall
be deemed effective upon the earlier of personal delivery (including personal
delivery by telex) or the third day after mailing by first class mail, to the
Company at its primary office location and to Executive at his address as listed
on the Company payroll.
8.2 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 or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
8.3 WAIVER. If either party should waive any breach of any provisions of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
8.4 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between Executive and the Company and it is the complete, final, and exclusive
embodiment of their agreement with regard to this subject matter. It is entered
into without reliance on any promise or representation other than those
expressly contained herein, and it cannot be modified or amended except in a
writing signed by an officer of the Company.
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8.5 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
8.6 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
8.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive and the Company, and their
respective successors, assigns, heirs, executors and administrators, except that
Executive may not assign any of his duties hereunder and he may not assign any
of his rights hereunder without the written consent of the Company, which shall
not be withheld unreasonably.
8.8 ATTORNEY FEES. If either party hereto brings any action to enforce
his or its rights hereunder, the prevailing party in any such action shall be
entitled to recover his or its reasonable attorneys' fees and costs incurred in
connection with such action.
8.9 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
AxyS PHARMACEUTICALS
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Date:
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Accepted and agreed this
15th day of May, 1998.
/s/ XXX XXXXXX
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Xxx Xxxxxx
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EXHIBIT A
EMPLOYEE AGREEMENT AND RELEASE
Except as otherwise set forth in this Agreement, I hereby release,
acquit and forever discharge AxyS Pharmaceuticals, its parents and subsidiaries,
and their officers, directors, agents, servants, employees, attorneys,
shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the execution date of this Agreement,
including but not limited to: all such claims and demands directly or indirectly
arising out of or in any way connected with my employment with the Company or
the termination of that employment; claims or demands related to salary,
bonuses, commissions, stock, stock options, or any other ownership interests in
the Company, vacation pay, fringe benefits, expense reimbursements, severance
pay, or any other form of compensation; claims pursuant to any federal, state or
local law, statute, or cause of action including, but not limited to, the
federal Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990; the federal Age Discrimination in Employment Act of
1967, as amended ("ADEA"); the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination; harassment;
fraud; defamation; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under ADEA. I also acknowledge that the consideration
given for the waiver and release in the preceding paragraph hereof is in
addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (1) my waiver and release do not apply to any rights or claims that may
arise after the execution date of this Agreement; (2) I have been advised hereby
that I have the right to consult with an attorney prior to executing this
Agreement; (3) I have twenty-one (21) days to consider this Agreement (although
I may choose to voluntarily execute this Agreement earlier); (4) I have seven
(7) days following the execution of this Agreement by the parties to revoke the
Agreement; and (5) this Agreement shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth day after
this Agreement is executed by me, provided that the Company has also executed
this Agreement by that date ("Effective Date").
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In giving this release, which includes claims which may be unknown to me
at present, I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
By:________________________________
XXX XXXXXX
Date:______________________________
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