EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement, effective as of December 23, 2002, by and between Keryx
Biopharmaceuticals, Inc. ("Keryx" or the "Corporation"), a Delaware corporation
having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇, an
individual residing at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇").
WITNESSETH:
WHEREAS, the Corporation desires to employ ▇▇▇▇▇ as Chairman and Chief
Executive Officer of Keryx and ▇▇▇▇▇ desires to be employed by Keryx as Chairman
and Chief Executive Officer of Keryx, all pursuant to the terms and conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT DUTIES
(a) Keryx hereby engages and employs ▇▇▇▇▇, and ▇▇▇▇▇ accepts engagement
and employment, as Chairman and Chief Executive Officer of Keryx. As such he
shall be responsible for the overall management, direction and leadership of the
Corporation. He shall report directly to the Board of Directors. The description
of responsibilities set forth herein shall serve as a general statement of the
duties, responsibilities and authority of ▇▇▇▇▇. Additional duties,
responsibilities and authority consistent with that of Chairman and CEO may be
assigned to ▇▇▇▇▇ by the Board of Directors of the Corporation from time to time
in its reasonable discretion.
(b) ▇▇▇▇▇ will devote substantially all of his gainful time to the
discharge of his duties and responsibilities under this Agreement.
Notwithstanding the above, the Company acknowledges that ▇▇▇▇▇ continues to be
active in several ventures and companies and nothing contained herein will serve
to limit his current or future involvement in such or similar ventures or
companies, provided that such activities do not interfere in his ability to
fulfill the requirements of the position of Chairman and Chief Executive Officer
of Keryx.
(c) ▇▇▇▇▇ acknowledges and agrees that the performance by ▇▇▇▇▇ of his
duties hereunder may require significant domestic and international travel by
▇▇▇▇▇.
2. TERM
▇▇▇▇▇'▇ employment hereunder shall commence on December 23, 2002, and
shall continue until such employment is terminated as hereinafter provided in
Paragraph 8 (the "Term").
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3. COMPENSATION
(a) As compensation for the performance of his duties on behalf of Keryx,
▇▇▇▇▇ shall be compensated as follows:
(i) Base Salary and Annual Increases. ▇▇▇▇▇ shall receive a salary
at the annualized rate of two hundred and fifty thousand dollars ($250,000),
less applicable state and federal withholdings, (as may be adjusted from time to
time in accordance with this Agreement, the "Base Salary"), payable in
accordance with the Corporation's payroll policies and subject to standard
payroll deductions and withholdings. ▇▇▇▇▇ shall be entitled to annual salary
increases the amount of which shall be subject to the sole discretion of the
Corporation's Board of Directors.
(ii) Bonuses. ▇▇▇▇▇ shall be eligible to receive an annual bonus at
the end of each calendar year of up to 100% of his annual base salary, less
applicable state and federal withholdings, (the "Target Bonus") based upon his
achievement of corporate goals and objectives ("Corporate G&Os"), agreed to with
the Board of Directors at the beginning of each calendar year, to the
satisfaction of the Board of Directors. In addition, ▇▇▇▇▇ shall be entitled to
receive two (2) one-time only bonuses ("Special Bonuses") upon the achievement
of each of the First Milestone Event and the Second Milestone Event (each as
defined below), in the amount of $1,000,000 and $2,000,000 (less applicable
state and federal withholdings), respectively, provided that ▇▇▇▇▇ may only
receive each Special Bonus if, on the date the relevant Milestone Event is
achieved, he is employed by the Corporation as an officer or director.
(iii) Equity. The Corporation will ▇▇▇▇▇ ▇▇▇▇▇ options (the
"Options") to purchase a total of 4,050,000 shares of the common stock of the
Corporation (the "Initial Grant") at an exercise price equal to the closing
price of the Corporation's Common Stock on Nasdaq on the trading day prior to
the start of ▇▇▇▇▇'▇ employment (the "Exercise Price"), which options shall be
exercisable for a period of ten (10) years from the date of issuance. ▇▇▇▇▇'▇
Options will be granted under the Corporation's 1999 and 2000 Stock Option Plans
and the 2002 CEO Incentive Stock Option Plan (the "Plans") and will be subject
to the terms and conditions thereof, including any stock option agreement
entered into by ▇▇▇▇▇ and the Corporation thereunder; provided, however, that if
any provisions of this Agreement that are inconsistent with the terms and
conditions of the Plans and any such stock option agreement, the terms of this
Agreement shall control. In accordance with the Plans, should any change be made
to the Common Stock by reason of any stock split, stock dividend, extraordinary
cash dividend, recapitalization, combination of shares, exchange of shares or
other change affecting the outstanding Common Stock as a class without the
Corporation's receipt of consideration, appropriate adjustments shall be made to
(A) the total number and/or class of securities subject to such options and (B)
the Exercise Price in order to reflect such change and thereby preclude a
dilution or enlargement under such options. The Initial Grant shall vest as
follows:
(A) 450,000 after twelve months of employment;
(B) 112,500 after fifteen months of employment;
(C) 112,500 after eighteen months of employment;
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(D) 112,500 after twenty one months of employment;
(E) 112,500 after twenty four months of employment;
(F) 112,500 after twenty seven months of employment;
(G) 112,500 after thirty months of employment;
(H) 112,500 after thirty three months of employment;
(I) 112,500 after thirty six months of employment;
(J) 1,350,000 after seven (7) years, provided that he
is employed on that date as Chairman and/or Chief
Executive Officer and/or a director of the
Corporation. The exercisability of these options
shall be accelerated in full upon the occurrence
of the earlier of:
a. the Corporation achieving a total market
capitalization on a fully diluted basis of
more than $500 million, as determined
utilizing the following formula (the "Market
Capitalization Formula"): fully diluted
shares (including shares attributable to all
options, warrants, other purchase rights and
convertible securities, and including shares
held by affiliates (collectively "market
capitalization shares")) multiplied by the
three consecutive trading day average of the
closing price of its common stock as
reported by Nasdaq (or such other exchange
as such shares are then listed or in the
good-faith determination of the board, if
not then listed or quoted) plus long-term
debt (as set forth in the most recent
financial statements of the Corporation)
minus Working Capital (as defined below) and
minus the aggregate exercise price of all
options and warrants included in the market
capitalization shares; or
b. the Corporation possessing at least $100
million in Working Capital (which shall mean
as of any date, (1) the current assets plus
investment securities or similar asset which
have maturities in excess of 12 months minus
(2) current liabilities) (the occurrence of
either of the items in (J)a. and b. being
referred to as the "First Milestone Event").
(K) 1,350,000 after seven (7) years, provided that he
is employed on that date as Chairman and/or Chief
Executive Officer and/or a director of the
Corporation. The exercisability of these options
shall be accelerated in full upon the occurrence
of the earlier of:
a. the Corporation achieving a total market
capitalization on a fully diluted basis of
more than
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$1 billion, as determined utilizing the
Market Capitalization Formula; or
b. the Corporation possessing at least $150
million in Working Capital (the occurrence
of either of the items in (K)a. and b. being
referred to as the "Second Milestone
Event").
These options are intended to qualify as "incentive stock options" under
section 422 of the Internal Revenue Code of 1986, as amended, to the extent
allowable. In the event of a Change of Control or a Reorganization Event, as
those terms are defined in the 2002 CEO Incentive Stock Option Plan, or in the
event that ▇▇▇▇▇ is terminated by the Corporation without Cause (as defined
below) or terminates his employment for Good Reason (as defined below) or dies
or suffers a "Disability" as defined below, the exercisability of any of the
options described in this paragraph 3(a)(iii) that are unexercisable at the time
of such event or termination shall accelerate (and, in the case of a Change of
Control or a Reorganization Event, such acceleration shall occur at a time and
in a manner which allows ▇▇▇▇▇ to participate in such event in respect of the
shares subject to such options in the same manner as other shareholders).
Additionally, the Board of Directors shall have the discretion to accelerate all
or a portion of these options at any time. In addition, at the discretion of the
Board of Directors, the Employee shall be entitled to annual and/or special
grants of subsequent stock options. ▇▇▇▇▇ shall be entitled to pay the exercise
price of any or all of the options described in this paragraph 3(a)(iii) by each
of the methods set forth in the 2002 CEO Incentive Stock Option Plan and shall
be allowed to satisfy any withholding obligations incurred on the exercise of
such options by electing to have option shares withheld upon such exercise. The
Corporation shall use best efforts to cause all of the shares underlying such
options to be fully registered and freely tradable, including for resale without
any limitations or restrictions, provided, however, that while ▇▇▇▇▇ is an
employee or director of the Company, ▇▇▇▇▇ agrees to abide by the trading
restrictions that may be imposed upon him from time to time pursuant to any
laws, statutes, rules or regulations to which the shares underlying the options
may be subject from time to time.
(b) Expenses. Keryx shall reimburse ▇▇▇▇▇ for all normal, usual and
necessary expenses incurred by ▇▇▇▇▇ in furtherance of the business and affairs
of Keryx, including travel and entertainment, provided ▇▇▇▇▇ submits to Keryx
appropriate vouchers, receipts or other proof of ▇▇▇▇▇'▇ expenditures and
otherwise in accordance with such Expense Reimbursement Policy as may from time
to time be adopted by the Board of Directors of Keryx.
(c) Annual Leave and Holidays. ▇▇▇▇▇ shall be entitled during the term of
this Agreement to twenty five (25) business days of paid annual leave per year
as well as Company holidays as outlined in the Company's employee handbook.
▇▇▇▇▇ shall not be allowed to accrue more than thirty (30) business days of
annual leave except in unusual circumstances and with the permission of the
Corporation. Should ▇▇▇▇▇' annual leave balance exceed thirty (30) days at the
end of any calendar year, the excess number of days shall be paid out in
accordance with the Corporation's regular payroll procedures.
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(d) Employee Benefits. During the Term of his employment, ▇▇▇▇▇ shall be
entitled to participate in all employee and fringe benefit plans and programs
generally offered to other members of the Corporation's senior management,
including, without limitation, any pension, profit sharing, incentive,
retirement, insurance, health and disability benefits and plans, to the extent
that ▇▇▇▇▇ is eligible under and subject to the provisions of such plans. The
Corporation reserves its right to modify or terminate any of its employee and
fringe benefit plans and programs at any time. ▇▇▇▇▇ shall also be entitled to
reimbursement for excess life and disability insurance of up to $10,000 in
premiums per year.
4. REPRESENTATIONS AND WARRANTIES BY ▇▇▇▇▇ AND KERYX
(a) ▇▇▇▇▇ hereby represents and warrants to Keryx as follows:
(i) Neither the execution and delivery of this Agreement nor the
performance by ▇▇▇▇▇ of his duties and other obligations hereunder violate any
statute, law, determination or award, or conflict with or constitute a default
under (whether immediately, upon the giving of notice or lapse of time or both)
any prior employment agreement, contract, or other instrument to which ▇▇▇▇▇ is
a party or by which he is bound.
(ii) ▇▇▇▇▇ has the full right, power and legal capacity to enter and
deliver this Agreement and to perform his duties and other obligations
hereunder. This Agreement constitutes the legal, valid and binding obligation of
▇▇▇▇▇ enforceable against him in accordance with its terms. No approvals or
consents of any persons or entities are required for ▇▇▇▇▇ to execute and
deliver this Agreement or perform his duties and other obligations hereunder.
(b) Keryx hereby represents and warrants to ▇▇▇▇▇ as follows:
(i) Keryx is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite corporate power and
authority to own its properties and conduct its business in the manner presently
conducted.
(ii) Keryx has the full power and authority to enter into this
Agreement and to incur and perform its obligations hereunder.
(iii) The execution, delivery and performance by Keryx of this
Agreement does not conflict with or result in a material breach or violation of
or constitute a material default under (whether immediately, or upon the giving
of notice or lapse of time or both) the certificate of incorporation or by-laws
of Keryx, or any agreement or instrument to which Keryx is a party or by which
Keryx or any of its properties may be bound or affected.
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5. CONFIDENTIAL INFORMATION
▇▇▇▇▇ agrees to sign and comply with the Corporation's Proprietary
Information and Inventions Agreement, annexed hereto as Attachment A.
6. NON-COMPETITION
(a) ▇▇▇▇▇ understands and recognizes that his services to Keryx are
special and unique and agrees that, during the Term, and for a period of 12
months from the date of termination of his employment, whether voluntary or
involuntary, he shall not in any manner, directly or indirectly, on behalf of
himself or any person, firm, partnership, joint venture, corporation or other
business entity ("Person"), enter into or engage in any business directly
competitive with Keryx's business, either as an individual for his own account,
or as a partner, joint venturer, treasurer, agent, consultant, advisor,
salesperson, employee, officer, director or shareholder of a Person operating or
intending to operate within the area that Keryx is, at the date of termination,
conducting its business (the "Restricted Businesses"); provided, however, that
nothing herein will preclude ▇▇▇▇▇ from holding one percent (1%) or less of the
stock of any publicly traded corporation. For a business to be "directly
competitive", it would have to be developing a drug in the same class and for
the same indication. For example, a company developing a GAG for Diabetic
Nephropathy would be protected by this clause, however, a company developing a
GAG for another disease or developing a drug other than a GAG for Diabetic
Nephropathy would not be protected. Additionally, all of ▇▇▇▇▇' current ventures
and businesses are hereby excluded.
(b) In the event that ▇▇▇▇▇ breaches any provisions of this Section 6 or
there is a threatened breach, then, in addition to any other rights which Keryx
may have, Keryx shall be entitled, without the posting of a bond or other
security, to injunctive relief to enforce the restrictions contained herein. In
the event that an actual proceeding is brought in equity to enforce the
provisions of this Section 6, ▇▇▇▇▇ shall not argue as a defense that there is
an adequate remedy at law nor shall Keryx be prevented from seeking any other
remedies that may be available.
7. NON-SOLICITATION AND NON-INTERFERENCE
During the Term, and for 12 months from the date of termination of his
employment, whether voluntary or involuntary, ▇▇▇▇▇ shall not, directly or
indirectly, without the prior written consent of Keryx:
(a) solicit or induce any employee of Keryx or any subsidiary, parent,
affiliate or successor ("Affiliate") of Keryx to leave the employ of Keryx or
any Affiliate or hire for any purpose any employee of Keryx or any Affiliate or
any employee who has left the employment of Keryx or any Affiliate within six
months of the termination of said employee's employment with Keryx; or
(b) interfere with or disrupt or attempt to disrupt Keryx's or its
Affiliates' business relationship with any of their partners, service providers,
clients, customers and/or suppliers.
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8. TERMINATION
(a) Either party may terminate ▇▇▇▇▇'▇ employment with the Corporation
without Cause (in the case of the Corporation) or Good Reason (in the case of
▇▇▇▇▇) (as such terms are defined herein) at any time upon ninety (90) days'
notice. The Corporation shall have the right, in its sole discretion, to require
▇▇▇▇▇ to continue working for the Corporation during the notice period. For
purposes of this Agreement, ▇▇▇▇▇ shall have "Good Reason" upon the occurrence
of: (A) A failure to elect or reelect ▇▇▇▇▇ to the office of Chief Executive
Officer and Chairman of the Board of Directors of the Company or other change by
the Corporation of ▇▇▇▇▇' function, duties or responsibilities such that ▇▇▇▇▇
is no longer the highest ranking officer of the Corporation, or any other
materially adverse change in such functions, duties or responsibilities, without
▇▇▇▇▇' written consent; (B) a reduction of ▇▇▇▇▇'▇ base salary (as set forth in
paragraph 3(a)(i)) by more than ten percent (10%), except where the Corporation
has made reductions in the base salary of other senior management throughout the
Corporation; or (C) the Corporation's breach of any material term of this
Agreement; (D) a Change in Control or Reorganization Event or (E) the relocation
of ▇▇▇▇▇' principal office, without his prior consent, to a facility or location
that is more than fifty (50) miles away from ▇▇▇▇▇' then present location. "Good
Reason" shall not exist unless the Corporation has not cured the basis for
▇▇▇▇▇' resignation within fifteen (15) days following ▇▇▇▇▇' written notice to
the Corporation specifying the basis of his resignation. For purposes of this
Agreement, "Cause" shall mean: (F) material breach by ▇▇▇▇▇ of the
confidentiality, non-compete, ownership of inventions and non-solicitation
covenants contained in this Employment Agreement; (G) the willful and continual
failure or refusal by ▇▇▇▇▇ to perform his duties under this Employment
Agreement (other than by reason of death or Disability (as defined below), or
other reasons beyond ▇▇▇▇▇' control), provided such failure or refusal continues
for a period of 30 days after receipt of written notice thereof from the Board
of Directors in reasonable detail of such failure or refusal; (H) any action by
▇▇▇▇▇ constituting willful misconduct in respect of ▇▇▇▇▇' obligation to the
Corporation that results in material, economic damage to the Corporation; (I)
conviction of a felony . Notwithstanding the foregoing, the following shall not
constitute Cause for the termination of the employment of ▇▇▇▇▇ or the
modification or diminution of any of his authority hereunder: any personal or
policy disagreement between the Corporation and ▇▇▇▇▇, or ▇▇▇▇▇ and any member
of the Board of Directors of the Corporation; or any action taken by ▇▇▇▇▇ in
connection with his duties hereunder if ▇▇▇▇▇ acted in good faith and in a
manner he reasonably believed to be in, and not opposed to, the best interest of
the Corporation.
(b) If the Corporation terminates ▇▇▇▇▇ without Cause or ▇▇▇▇▇ terminates
his employment for Good Reason, the Board of Directors shall take the necessary
steps so that (i) any outstanding, but unvested, options granted to ▇▇▇▇▇ in
accordance with paragraph 3(a)(iii), above, shall vest upon the effective date
of his termination; and (ii) the period during which ▇▇▇▇▇ shall be permitted to
exercise such options shall be extended to the earlier of (A) two (2) years from
the effective date of his termination and (B) December 23, 2012. In addition, in
the event of a termination of ▇▇▇▇▇' employment pursuant to this subsection,
provided that ▇▇▇▇▇ executes a waiver and release of claims in a form similar to
the form attached to this
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Agreement promptly upon the expiration of any revocation period contained in
such waiver and release (without ▇▇▇▇▇ having revoked such waiver and release)
as Attachment B, ▇▇▇▇▇ shall be entitled to receive (I) a lump sum severance
payment promptly upon the expiration of any revocation period contained in such
waiver and release (without ▇▇▇▇▇ having revoked such waiver and release) equal
to one year's annual gross base salary and (II) a lump-sum payment equal to the
product obtained by multiplying (A) the Bonus to which ▇▇▇▇▇ would have been
entitled for the calendar year of termination (based on the achievement of
Corporate G&Os) if ▇▇▇▇▇ had remained employed hereunder throughout such
calendar year times (B) a fraction whose numerator equals the number of days
▇▇▇▇▇ was employed hereunder during such calendar year and whose denominator is
365, such payment to be due to ▇▇▇▇▇ at the time ▇▇▇▇▇' Bonus for such calendar
year would have been due if ▇▇▇▇▇ had remained employed hereunder. Such payment
shall be less applicable state and federal withholdings. The one-year severance
payment shall be in addition to his salary during the notice period.
(c) In the event of a Change of Control Event or a Reorganization Event,
as those terms are defined in the 2002 CEO Incentive Stock Option Plan, ▇▇▇▇▇
shall be entitled to (i) the immediate acceleration of any outstanding, but
unvested options granted to him in accordance with paragraph 3(a)(iii), above,
and (ii) the extension of the period during which ▇▇▇▇▇ shall be permitted to
exercise such options to the earlier of two (2) years from the effective date of
his termination (if applicable) and December 23, 2012. In addition, in the event
of a termination of ▇▇▇▇▇' employment in anticipation of a Change of Control or
a Reorganization Event or within 12 months thereafter, provided that ▇▇▇▇▇
executes a waiver and release of claims in a form similar to the form attached
to this Agreement as Attachment B, ▇▇▇▇▇ shall be entitled to receive a lump sum
severance payment promptly upon the expiration of any revocation period
contained in such waiver and release (without ▇▇▇▇▇ having revoked such waiver
and release) equal to the product of (x) one years' annual gross Base Salary
plus the Target Bonus for the year in which the termination occurred and (y) 2,
less applicable state and federal withholdings. This payment shall be in
addition to his salary during the notice period if ▇▇▇▇▇ is terminated in
connection with such Change of Control Event or Reorganization Event.
(d) Should ▇▇▇▇▇'▇ employment terminate by his death or disability, he or
his estate, if applicable, shall be entitled to continue to receive his base
salary for three (3) months (less applicable state and federal withholdings)
following his last day of actual employment by the Corporation. (For purposes of
this section, "disability" shall be deemed to have occurred if ▇▇▇▇▇ is unable,
due to any physical or mental disease or condition, to perform his normal duties
of employment for 120 consecutive days or 180 days in any twelve-month period.)
In addition, the Board of Directors shall take the necessary steps so that (i)
any outstanding, but unvested, options granted to him in accordance with
paragraph 3(a)(iii), above, shall vest upon the effective date of his
termination; and (ii) the period during which he shall be permitted to exercise
such options shall be extended to the earlier of two (2) years from the
effective date of his termination and December 24, 2012. Should ▇▇▇▇▇'
employment terminate as a result of his death, the benefits granted herein,
shall be granted instead to his lawful heir or heirs.
(e) Notwithstanding the foregoing, the Corporation may terminate ▇▇▇▇▇
immediately and without prior notice for Cause.
(f) In the event that ▇▇▇▇▇'▇ employment has been terminated in accordance
with Section 8(e), above, ▇▇▇▇▇ shall not be entitled to receive any of the
severance benefits set forth in this Section 8, but he shall be entitled to any
unpaid
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wages, bonuses, and any benefits under the benefit and compensation plans,
policies and arrangements of the Corporation in which in participates, which
have accrued through his date of termination.
(g) If the aggregate of all amounts and benefits due ▇▇▇▇▇, under this
Agreement or any other plan, program, agreement or arrangement of the
Corporation or any of its Affiliates, which, if received by ▇▇▇▇▇ in full, would
constitute "parachute payments" as such term is defined in and under Section
280G of the Code (collectively, "Change in Control Benefits"), reduced by all
Federal, state and local taxes applicable thereto, including the excise tax
imposed pursuant to Section 4999 of the Code, is less than the amount ▇▇▇▇▇
would receive, after taxes, if ▇▇▇▇▇ received aggregate Change in Control
Benefits equal to only three times ▇▇▇▇▇' "base amount", as defined in and under
Section 280G of the Code, less $1.00, then such Change in Control Benefits as
▇▇▇▇▇ shall select shall be reduced or eliminated to the extent necessary so
that the Change in Control Benefits received by ▇▇▇▇▇ will not constitute
parachute payments (provided that reduction in such cash Change in Control
Benefits can achieve this objective). The determinations with respect to this
Section 8(f) shall be made by an independent auditor (the "Auditor") paid by the
Company. The Auditor shall be the Corporation's regular independent auditor
unless ▇▇▇▇▇ reasonably objects to the use of that firm, in which event the
Auditor shall be a nationally recognized United States public accounting firm
chosen by ▇▇▇▇▇ in consultation with the Corporation. For purposes of this
Agreement, the term "Code" shall mean the Internal Revenue Code of 1986, as
amended, and any reference to a particular section of the Code shall include any
provision that modifies, replaces or supersedes such section.
It is possible that after the determinations and selections made pursuant
to this Section 8(g) ▇▇▇▇▇ will receive Change in Control Benefits that are, in
the aggregate, either more or less than the limitations provided in this Section
8(g) above (hereafter referred to as an "Excess Payment" or "Underpayment",
respectively). If it is established, pursuant to a final determination of a
court or an Internal Revenue Service proceeding that has been finally and
conclusively resolved, that an Excess Payment has been made, ▇▇▇▇▇ shall refund
the Corporation on demand such Excess Payment. In the event that it is
determined (x) by arbitration under Section 12 below, (y) by a court of
competent jurisdiction, or (z) by the Auditor upon request by ▇▇▇▇▇ or the
Corporation, that an Underpayment has occurred, the Corporation shall pay an
amount equal to the Underpayment to ▇▇▇▇▇ within 10 days of such determination.
(h) In the event of any termination of ▇▇▇▇▇' employment hereunder, ▇▇▇▇▇
shall have no obligation to seek other employment or otherwise mitigate the
obligations of the Corporation under this Agreement. Any amounts due under this
Section 8 are considered to be reasonable by the Corporation and are not in the
nature of a penalty
9. INDEMNIFICATION
The Corporation shall defend and indemnify ▇▇▇▇▇ in his capacity as Chief
Executive Officer and Chairman of the Board of Directors of the Corporation
against any and all claims, judgments, damages, liabilities, costs and expenses
(including reasonable attorney's fees) arising out of, based upon or related to
▇▇▇▇▇' performance of services hereunder, except to the extent that such claims
arise out of
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▇▇▇▇▇' (a) willful misconduct, (b) bad faith, (c) gross negligence or (d)
reckless disregard of the duties involved in the conduct of ▇▇▇▇▇' position.
In addition, the Corporation shall take whatever steps are necessary to
establish a policy of indemnifying its officers and directors, including, but
not limited to ▇▇▇▇▇, for all actions taken in good faith in pursuit of their
duties and obligations to the Corporation. Such steps shall include, but shall
not necessarily be limited to, the obtaining of an appropriate level of
Directors and Officers Liability coverage and including such provisions in the
Corporations' by-laws or certificate of incorporation, as applicable and
customary. The rights to indemnification shall survive any termination of this
Agreement.
10. NOTICES
Any notice or other communication under this Agreement shall be in writing
and shall be deemed to have been given when delivered personally or via
facsimile against receipt thereof or confirmed in the case of facsimile; two (2)
business days after being sent by Federal Express or similar internationally
recognized courier service; or seven (7) business days after being mailed
registered or certified mail, postage prepaid, return receipt requested, to
either party at the address set forth above, or to such other address as such
party shall give by notice hereunder to the other party.
11. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any other covenant or provision unless so expressed herein.
12. ENTIRE AGREEMENT; MODIFICATION
Other than in respect of the stock options, this Agreement contains the
entire agreement of the parties relating to the subject matter hereof, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement that are not set forth herein. No
modification of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
13. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, Keryx, its successors and assigns, and upon ▇▇▇▇▇
and his legal representatives. This Agreement constitutes a personal service
agreement, and the performance of ▇▇▇▇▇'▇ obligations hereunder may not be
transferred or assigned by ▇▇▇▇▇.
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14. NON-WAIVER
The failure of either party to insist upon the strict performance of any
of the terms, conditions and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
15. GOVERNING LAW; RESOLUTION OF DISPUTES
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law.
Any Claim arising out of or relating to this Agreement, any other
agreement between ▇▇▇▇▇ and the Corporation or any of its Affiliates, ▇▇▇▇▇'
employment with the Corporation, or any termination thereof (a "Covered Claim")
shall (except to the extent otherwise provided in Section 6 or 16 with respect
to certain requests for injunctive relief) be resolved by binding confidential
arbitration, to be held in the Borough of Manhattan in New York City, in
accordance with the Commercial Arbitration Rules (and not the National Rules for
Resolution of Employment Disputes) of the American Arbitration Association and
this Section 15. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The Corporation shall promptly
pay all costs and expenses (including without limitation attorneys' fees and
other charges of counsel) incurred by ▇▇▇▇▇ or ▇▇▇▇▇' beneficiaries in resolving
any Covered Claim, subject to receiving a written undertaking from the recipient
to reimburse any such amounts paid to the extent that it is finally determined
that the Corporation substantially prevailed in respect of such Covered Claim.
Pending the resolution of any Covered Claim, ▇▇▇▇▇ (and ▇▇▇▇▇' beneficiaries)
shall continue to receive all payments and benefits due under this Agreement or
otherwise, unless an arbitrator appointed pursuant to this Section 15 determines
otherwise.
16. REMEDIES FOR BREACH
▇▇▇▇▇ understands and agrees that any breach of Sections) 5 and/or 7 of
this Agreement by him could cause irreparable damage to Keryx and to the
Affiliates, and that monetary damages alone would not be adequate and, in the
event of such breach, Keryx shall have, in addition to any and all remedies of
law, the right to an injunction, specific performance or other equitable relief
to prevent or redress the violation of Keryx's rights under such Sections.
17. HEADINGS
The headings of paragraphs are inserted for convenience and shall not
affect
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any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMPLOYEE:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
KERYX BIOPHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
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ATTACHMENT A
Proprietary Information and Inventions Agreement
In consideration of my employment or continued employment by Keryx
Biopharmaceuticals, Inc. (together with any subsidiary of Keryx
Biopharmaceuticals, Inc., the "Corporation"), and the compensation now and
hereafter paid to me, I hereby agree as follows:
1. Recognition of Corporation's Rights; Nondisclosure. At all times during
the term of my employment and thereafter, I will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the Corporation's
Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Corporation, or
unless an officer of the Corporation expressly authorizes such in writing.
The term "Proprietary Information" shall mean trade secrets, confidential
knowledge, data or any other proprietary information of the Corporation. By way
of illustration but not limitation, "Proprietary Information" includes (a)
inventions, mask works, trade secrets, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter collectively
referred to as "Inventions"); and (b) information regarding plans for research,
development, new products, regulatory matters, marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and information regarding the skills and compensation
of other employees of the Corporation. Notwithstanding the foregoing, the
following shall not be deemed Proprietary Information: (c) was in my possession
or control prior to the date of disclosure; (d) was in the public domain or
enters into the public domain through no improper act on my part; (e) is
approved for public release by written authorization by the Corporation; or (f)
is required to be disclosed by me by legal, administrative or judicial order.
2. Third Party Information. I understand, in addition, that the
Corporation has received, and in the future will receive, from third parties
confidential or proprietary information ("Third Party Information") subject to a
duty on the Corporation's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During the term of
my employment and thereafter, I will hold Third Party Information in the
strictest confidence and will not disclose to anyone (except in connection with
my work for the Corporation), unless expressly authorized by an officer of the
Corporation in writing.
3. Assignment of Inventions
3.1 Assignment
(a) I hereby assign to the Corporation all my right, title and
interest in and to any and all Inventions and all patent rights, copyrights,
mask work rights,
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trademarks, trade secret rights, all other rights throughout the world in
connection therewith, and the goodwill associated with all of the foregoing
(collectively, "Proprietary Rights"), whether or not patentable or registrable
under patent, copyright, trademark or similar statutes, made or conceived or
reduced to practice or learned by me, either alone or jointly with others,
during the period of my employment with the Corporation and in connection
therewith. Inventions assigned to, or as directed by, the Corporation under this
Paragraph 3 are hereinafter referred to as "Corporation Inventions". I agree,
upon request, to execute, verify and deliver assignments of the Proprietary
Rights to the Corporation or its designee and I hereby appoint the Corporation
my attorney-in-fact with respect to the Proprietary Rights for the purpose of
effecting any or all of the Corporation's rights to the Proprietary Rights.
3.1 Government. I also agree to assign to or as directed by the
Corporation all my right, title and interest in and to any and all Inventions,
full title to which is required to be assigned to the United States of America
by a contract between the Corporation and United States of America or any of its
agencies.
3.2 Works for hire. I acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works made for
hire", as that term is defined in the United States Copyright Act (17 U.S.C.
Section 101).
4. Enforcement of Proprietary Rights. From time to time, I will assist the
Corporation in every proper way to obtain and enforce United States and foreign
Proprietary Rights relating to Corporation Inventions in any and all countries.
My obligation to assist the Corporation with respect to Proprietary Rights
relating to such Corporation Inventions in any and all countries shall continue
beyond the termination of my employment, but the Corporation shall compensate me
at a reasonable rate after my termination for the time actually spent by me at
the Corporation's request on such assistance.
I hereby waive and quitclaim to the Corporation any and all claims, of any
nature whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Corporation.
5. Obligation to Keep Corporation Informed. During the period of my
employment, I will promptly disclose all Inventions to the Corporation fully and
in writing and will hold such Inventions in trust for the sole right and benefit
of the Corporation. In addition, after termination of my employment, I will
promptly disclose all patent applications filed by me within a year after
termination of employment.
6. Prior Inventions. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Corporation are
excluded from the scope of this Agreement. To preclude any possible uncertainty,
I have set forth in Exhibit A attached hereto a complete list of all Inventions
(i) that I have, alone or jointly with others, conceived, developed or reduced
to practice or
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caused to be conceived, developed or reduced to practice prior to the
commencement of my employment with the Corporation, (ii) that I consider to be
my property or the property of third parties and (iii) that I wish to have
excluded from the scope of this Agreement. If disclosure of any such Invention
on Exhibit A would cause me to violate any prior confidentiality agreement, I
understand that I am not to list such Inventions in Exhibit A but am to inform
the Corporation that all such Inventions have not been listed for that reason.
7. No Improper Use of Materials. During my employment by the Corporation,
I will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Corporation any unpublished documents or any property belonging to any former
employer or any other person to whom I have an obligation of confidentiality
unless consented to in writing by that former employer or person.
8. No Conflicting Obligation. I represent that my performance of all the
terms of this Agreement and my performance of my duties as an employee of the
Corporation do not and will not breach any agreement to keep in confidence
information acquired by me in confidence or in trust prior to my employment by
the Corporation. I have not entered into, and I agree I will not enter into, any
agreement either written or oral in conflict herewith.
9. Return of Corporation Documents. When I leave the employ of the
Corporation, I will deliver to the Corporation any and all drawings, notes,
memoranda, specifications, devices, formulas, molecules, cells, storage media,
including software, documents and computer printouts, together with all copies
thereof, and any other material containing or disclosing any Corporation
Inventions, Third Party Information or Proprietary Information of the
Corporation. I further agree that any property situated on the Corporation's
premises and owned by the Corporation, including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Corporation
personnel at any time with or without notice. Prior to leaving, I will cooperate
with the Corporation in completing and signing the Corporation's termination
statement for technical and management personnel.
10. Legal and Equitable Remedies. Because my services are personal and
unique and because I may have access to and may become acquainted with the
Proprietary Information of the Corporation, the Corporation shall have the right
to enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond, without prejudice to any
other rights and remedies that the Corporation may have for a breach of this
Agreement, and I waive the claim or defense that the Corporation has an adequate
remedy at law. I shall not, in any action or proceeding to enforce any of the
provisions of this Agreement, assert the claim or defense that such an adequate
remedy at law exists.
11. Notices. Any notices required or permitted hereunder shall be given to
me at the address specified below or at such other address as I shall specify in
writing.
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Such notice shall be deemed given upon personal delivery to the appropriate
address or if sent by certified or registered mail, three days after the date of
mailing.
12. General Provisions.
12.1 Governing Law. This Agreement is executed under seal and will
be governed by and construed according to the laws of the State of New York.
12.2 Entire Agreement. This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between us. No modification or
amendment of this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing, signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement. As used in this Agreement, the
period of my employment includes any time during which I may be retained by the
Corporation as a consultant.
12.3 Severability. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then the remaining provisions will
continue in full forced and effect.
12.4 Successors and Assigns. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Corporation, its successors, and its assigns. I may not
assign any of my rights, or delegate any of my obligations, under this
Agreement.
12.5 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the
Corporation to any successor in interest or other assignee.
12.6 Employment. I agree and understand that nothing in this
Agreement shall confer on me any right with respect to continuation of my
employment with the Corporation, or shall it interfere in any way with my right
or the Corporation's right to terminate my employment at any time, with or
without cause.
12.7 Waiver. No waiver by the Corporation of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Corporation of any right under this Agreement shall be construed as a wavier
of any other right. The Corporation shall not be required to give notice to
enforce strict adherence to all terms of this Agreement.
12.8 Counterparts. This Agreement may be executed in counterparts,
all of which together shall for all purposes constitute one Agreement, binding
on each of the parties hereto notwithstanding that each such party shall not
have signed the same counterpart.
12.9 Jurisdiction and Venue; Waiver of Jury Trial. In case of any
dispute hereunder, the parties will submit to the exclusive jurisdiction and
venue of any court of competent jurisdiction sitting in New York County, and
will comply with
16
all requirements necessary to give such court jurisdiction over the parties and
the controversy. EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM
OR RECOVER PUNITIVE DAMAGES.
12.10 Disclosure. I shall disclose the existence and terms of this
Agreement to any employer or other person that I may work for or be engaged by
after the termination of my employment or engagement at the Corporation. I agree
that the Corporation may, after notification to me, provide a copy of this
Agreement to any business or enterprise (i) which I may directly or indirectly
own, manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, or control of, or (ii) with which I may be
connected with as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise, or in connection with which I may use
or permit my name to be used. I will provide the names and addresses of any of
such persons or entities as the Corporation may from time to time reasonably
request.
This Agreement shall be effective as of the first day of my employment
with the Corporation, namely December 23, 2002.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHTS TO DISCLOSE OR USE THE
CORPORATION'S CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
Signature:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED TO:
Keryx Biopharmaceuticals, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Signature
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
17
ATTACHMENT B
Employee Agreement And Release
Except as otherwise set forth in this Employee Agreement and Release (the
"Agreement") between the undersigned and Keryx Biopharmaceuticals, Inc. (the
"Corporation"), I hereby release, acquit and forever discharge the Corporation,
its parents, affiliates 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 Corporation or the termination of that
employment; claims or demands related to stock, stock options, or any other
ownership interests in the Corporation, or expense reimbursements; claims
pursuant to any federal, state or local law, statute, or cause of action
including, but not limited to, Title VII of the Civil Rights Act of 1964, 42
U.S.C. ss. 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C.
ss. 621 et seq. ("ADEA"), the Americans With Disabilities Act of 1990, 42 U.S.C.
ss. 12101 et seq., the Massachusetts Fair Employment Practices Act, M.G.L.
c.151B, ss. 1 et seq., the New York Human Rights Law, N.Y. Exec. Law, Art. 15,
ss.290 et seq. and the New York City Human Rights Law, N.Y.C. Admin. Code
ss.8-101 et seq., all as amended, and all claims arising out of the Fair Credit
Reporting Act, 15 U.S.C. ss. 1681 et seq., and the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C. ss. 1001 et seq., the Massachusetts
Civil Rights Act, M.G.L. c.12 ss ss. 11H and 11I, the Massachusetts Equal Rights
Act, M.G.L. c.93 ss. 102 and M.G.L. c.214, ss.1C, the Massachusetts Labor and
Industries Act, M.G.L. c. 149, ss. 1 et seq., and the Massachusetts Privacy Act,
M.G.L. c.214, ss.1B, all as amended; tort law; contract law; wrongful discharge;
discrimination; harassment; retaliation; fraud; defamation; emotional distress;
and breach of the implied covenants 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; (a) my waiver
and release do not apply to any rights or claims that may arise after the
execution date of this Agreement; (b) I have been advised hereby that I have the
right to consult with an attorney prior to executing this Agreement; (c) I have
twenty-one (21) days to consider this Agreement (although I may choose to
voluntarily execute this Agreement earlier); (d) I have seven (7) days following
the execution of this Agreement by the parties to revoke the Agreement; and (e)
this Agreement shall not be effective until the date upon which the revocation
period had expired, which shall be the eighth day after this Agreement is
executed by me.
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In giving this release, which includes claims that may be unknown to me at
present, I hereby expressly waive and relinquish all rights and benefits under
any law of any jurisdiction with respect to my release of any such presently
unknown claims I may have against the Corporation. Notwithstanding the
foregoing, this release shall not apply to claims I have or may have in the
future for (a) indemnification as provided for in the Employment Agreement which
survive the termination of the Employment Agreement or (b) arising from any
payments or benefits due me following the termination of my employment or (c)
arising from any written document pursuant to which I have been or may in the
future be granted stock options or other equity-based compensation.
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Dated: _______________________
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