EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this 11th day of January, 1999, by and
between Vion Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and
▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Executive is acting as President and Chief Executive
Officer of the Company pursuant to an agreement dated January 11, 1999 (the
"January 1999 Agreement"); and
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the Executive's long-term contribution to the growth and success of the
Company is essential and the Board desires to provide for the long-term
employment of the Executive on terms which the Board has determined will
reinforce and encourage the attention and dedication to the Company of the
Executive as a member of the Company's management, in the best interests of the
Company and its shareholders; and
WHEREAS, the Executive is willing to commit himself to serve the
Company, on the terms and conditions herein provided.
NOW THEREFORE, in order to effect the foregoing, the Company and the
Executive wish to enter into a new employment agreement on the terms and
conditions set forth below. Accordingly, in consideration of premises and the
respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and
the Executive hereby agrees to serve the Company, on the terms and conditions
set forth herein.
2. Term. The employment of the Executive by the Company as provided in
Section 1 will end on December 31, 2003.
3. Position and Duties. The Executive shall serve as President and
Chief Executive Officer of the Company reporting only to the Board, shall have
supervision and control over, and responsibility for, the general management of
the affairs of the Company and shall have all of the responsibilities, duties
and authority usually incident to the office of chief executive officer and such
responsibilities, duties and authority as he may have as of the date hereof and
as may reasonably from time to time be assigned to him by the Board, provided
that the nature of the Executive's responsibilities, duties and authority shall
at all times be those of chief executive officer of the Company in charge of the
general management of the Company.
The Executive agrees to devote substantially all his working time,
efforts and skills to the business and affairs of the Company during the
Company's normal business hours, but nothing in this Agreement shall preclude
the Executive, with the approval of the Board of Directors, from devoting
reasonable periods required for: (i) participating in charitable and community
activities, and (ii) serving as a director or member of an advisory committee of
any corporation not in competition with the Company, or as an officer, trustee
or director of any charitable, educational, philanthropic or social entities,
provided that the performance of his duties and responsibilities in any of such
capacities does not interfere with the regular performance of his duties and
responsibilities hereunder.
4. Place of Performance. In connection with the Executive's employment
by the Company, the Executive shall perform the duties of his employment at the
principal executive offices of the Company in New Haven, Connecticut (the
"Headquarters"), except for required travel on Company business. The Company and
the Executive agree that the Company's principal executive offices shall at all
times during the term of this Agreement be located in New Haven, Connecticut or
in such other location within either a 25 mile radius of the current
Headquarters or within a ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
▇. Compensation and Related Matters.
(a) Salary. During the period of the Executive's employment, the
Company shall pay to the Executive an annual base salary at a rate equal to
$400,000 commencing on the date hereof, or, effective from time to time from and
after January 1, 2001, at such greater rate as the Board shall from time to time
determine based upon the Executive's job performance (hereinafter referred to as
the "Base Salary") payable in substantially equal installments in accordance
with the Company's normal salary payment procedures. Any increase in the Base
Salary or other compensation shall in no way limit or reduce any other
obligation of the Company hereunder and, once established at an increased
specified rate, the Base Salary hereunder shall not thereafter be reduced
without the Executive's written consent, except for across-the-board salary
reductions similarly affecting all management personnel of the Company.
(b) Bonuses. The Executive will be eligible for an annual bonus based
on the achievement of specified Company goals (as determined by the Board with
input from the Executive), with a maximum bonus of 50% of Base Salary during the
fiscal year with respect to which such bonus is awarded.
(c) Expenses. During the term of the Executive's employment hereunder,
the Executive shall be entitled to receive reimbursement for all reasonable and
customary out-of-pocket expenses incurred by the Executive in performing
services hereunder, including all expenses of travel and similar expenses while
away from home on business or at the request of and in the service of the
Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company from time
to time.
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(d) Company Benefits. The Executive shall be entitled to participate in
and enjoy, all of the employee compensation and benefit plans and arrangements
and all of the perquisites in which executive officers of the Company
participate (including without limitation, from time to time as applicable, each
retirement and bonus plan, stock option plan, group life, medical and
hospitalization insurance plans, and disability plan). The Executive shall be
entitled to participate in or receive benefits under any employee benefit plan,
arrangement or perquisite made available by the Company in the future to its
executive officers, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans, arrangements and
perquisites. Any payments or benefits payable to the Executive under this
Section 5 in respect of any calendar year during which the Executive is employed
by the Company for less than the entire such year shall, unless otherwise
provided in the applicable plan or arrangement, be prorated in accordance with
the number of days in such calendar year during which he is so employed.
Notwithstanding the foregoing, the Executive shall be entitled, at no additional
cost to the Executive, to $1 million in term life insurance coverage (and shall
be entitled to select the beneficiary thereof) pursuant to the Company's group
policy, in lieu of the amount to which the Executive would otherwise be entitled
pursuant to the Company's standard benefits practices.
(e) Vacations. The Executive shall be entitled in each calendar year to
the greater of (i) four weeks of paid vacation or (ii) the maximum amount of
paid vacation provided to any executive of the Company, such amount to be
prorated for any partial years. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its executive officers.
(f) Special Benefits. The Company shall make payments on behalf of the
Executive for the following personal insurance policies (the "Personal Insurance
Policies") at levels currently in effect as follows:
(i) Whole-Life Policy. The Company shall pay the $11,500
annual cost of the Executive's current whole-life insurance policy and
the Executive shall reimburse the Company for $2,500 of such amount, or
shall reimburse the Company based upon the same ratio in the event of a
change in the annual premium;
(ii) AD&D Policy. The Company shall pay the entire annual cost
of the Executive's current accidental death and dismemberment insurance
policy; and
(iii) Long-Term Disability Policy. The Company shall pay the
$9,000 annual cost of the Executive's current personal long-term
disability insurance policy with and the Executive shall reimburse the
Company for $1,000 of such amount, or shall reimburse the Company based
upon the same ratio in the event of a change in the annual premium.
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Reimbursement of amounts due from the Executive to the Company pursuant
to this Section 5(f) may be made through automatic withholding of salary amounts
otherwise payable to the Executive pursuant to this Agreement.
(g) Stock Options. Subject to approval by the Board and based upon the
satisfactory job performance of the Executive, it is the parties' intention that
the Executive will be granted stock options from time to time in order to
achieve ownership upon exercise of all options held by the Executive of
approximately 3-5% of the Company's common stock, but the making of any such
grant or award and all terms and conditions of such future grants or awards
shall be entirely within the discretion of the Board.
(h) Tax Adjustment Payment. Within thirty (30) days after the Executive
exercises a previously granted stock option to purchase 220,000 shares of
Company common stock at a price of $5.25 per share and within thirty (30) days
after the Executive notifies the Company of the subsequent sale or transfer of
such underlying shares, the Company shall make payment to the Executive in the
amount necessary to pay any taxes due upon exercise of such option and upon the
subsequent sale or transfer thereof (the "Tax Payment Amount"). In addition, the
Company shall pay to the Executive at the time of payment of the Tax Payment
Amount, the amount necessary to pay Federal and state income tax with respect to
the Executive's receipt of the Tax Payment Amount using the highest marginal
individual rate (the "Gross-Up Amount").
6. Termination. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If: (i)(A), as a result of the Executive's incapacity
due to accident or physical or mental illness, the Executive shall not have
substantially performed his duties hereunder on a full-time basis for the entire
period of six consecutive months, or (B) the Executive suffers a substantial
impairment of his mental or physical functions that renders him incapable of
performing his duties hereunder and such impairment is reasonably expected to
continue for at least six months, and (ii) within thirty (30) days after written
notice of termination is given the Executive shall not have returned to the
performance of his duties hereunder on a full-time basis, the Company may
terminate the Executive's employment hereunder.
(c) Cause. The Company may terminate the Executive's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon: (i) the willful
and continued failure by the Executive to substantially perform his duties
hereunder or under any other contractual obligation to the Company (other than
any such failure resulting from the Executive's death or incapacity due to
accident or physical or mental illness or any such actual or anticipated failure
after the issuance of a Notice of Termination, as defined in Section 6(f), by
the Executive for Good Reason, as defined in
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Section 6(d)(ii)), after written demand for substantial performance is delivered
to the Executive by the Board that specifically identifies the manner in which
the Board believes the Executive has not substantially performed his duties,
(ii) the engaging by the Executive in an act or acts of dishonesty constituting
a felony under the laws of the United States or any state thereof and resulting
or intended to result directly or indirectly in gain or personal enrichment at
the expense of the Company, or (iii) the willful engaging by the Executive in
conduct which is materially injurious to the Company, monetarily or otherwise
(which shall include, but shall not be limited to, conduct described in Section
9). For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated for Cause
without a finding that in the good faith opinion of the Board the Executive was
guilty of conduct set forth above in clause (i), (ii) or (iii) hereof.
(d) Termination by the Executive.
(i) The Executive may terminate his employment hereunder (A)
for Good Reason, or (B) in the absence of Good Reason, at any time
after July 1, 2001 by giving ninety (90) days prior written notice of
his intention to terminate.
(ii) For purposes of this Agreement, "Good Reason" shall mean,
without the Executive's express written consent, the occurrence of any
of the following circumstances unless such circumstances are fully
corrected within thirty (30) days after the Executive notifies the
Company of the existence of such circumstances pursuant to subsequent
provisions of this Section 6(d)(ii):
(A) the assignment to the Executive of any duties,
functions or responsibilities other than those contemplated by Section
3 hereof or materially inconsistent with the position with the Company
that the Executive held immediately prior to the assignment of such
duties or responsibilities or a significant adverse alteration in the
nature or status of the Executive's responsibilities or the conditions
of the Executive's employment from those contemplated in Section 3
hereof;
(B) any removal of the Executive from, or any failure to
re-designate or re-elect the Executive to, the position of Chief
Executive Officer as indicated in Section 3 hereof, except in
connection with termination of the Executive's employment hereunder
pursuant to subsection (b) or (c) of Section 6 hereof;
(C) a reduction by the Company in the Executive's Base
Salary as in effect on the date hereof or as it may be increased from
time to time, except for across-the-board salary reductions similarly
affecting all management personnel of the Company;
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(D) the relocation of the Company's Headquarters to a
location more than 25 miles from its current location and more than 25
miles from Stamford, Connecticut, or the Company's requiring the
Executive to be based anywhere other than the Company's offices at such
location, except for required travel on Company business;
(E) the failure by the Company to pay to the Executive
any portion of the Executive's current compensation within the time
guidelines established pursuant to standard Company policy; or
(F) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 9 hereof.
The Executive shall notify the Company that he believes that one or more of the
circumstances described above exists, and of his intention to terminate this
Agreement for Good Reason as a result thereof, within thirty (30) days of the
time that he gains knowledge of such circumstances. The Executive shall not
deliver a Notice of Termination until thirty (30) days after he delivers the
notice described in the preceding sentence and may do so only if the
circumstances described in such notice have not been fully corrected by the
Company. The Executive's right to terminate his employment pursuant to this
subsection shall not be affected by his incapacity due to accident or physical
or mental illness.
(e) Notwithstanding anything to the contrary set forth herein, subject
to the Bylaws of the Company, the Board shall have the right by majority vote to
terminate the Executive's employment for any reason at any time, subject to the
consequences of such termination as set forth in this Agreement.
(f) Any termination of the Executive's employment by the Company or the
Executive (other than termination pursuant to subsection (a) hereof) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 11. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. If any dispute
concerning termination of the Executive's employment under Section (b), (c),
(d)(i)(A) or (d)(i)(B) above results in a final determination as hereinafter
provided that a proper basis for such termination did not exist, the Executive's
employment hereunder shall be treated as having been terminated other than
pursuant to Subsection (b), (c), (d)(i)(A) or (d)(i)(B), as the case may be, by
the party who gave Notice of Termination.
(g) "Date of Termination" shall mean: (i) if the Executive's employment
is terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated pursuant to Subsection (b) above, thirty (30) days
after Notice
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of Termination is given, and (iii) if the Executive's employment is terminated
for any other reason, the date specified in the Notice of Termination (which, in
the case of a termination for Cause shall not be less than thirty (30) days from
the date such Notice of Termination is given, and in the case of a termination
for Good Reason shall not be less than fifteen (15) nor more than sixty (60)
days from the date such Notice of Termination is given).
7. Compensation Upon Termination.
(a) If the Executive's employment should be terminated by his death or
disability, the Company shall pay any amounts due to the Executive or his
beneficiaries under Section 5 through the Date of Termination in accordance with
Section 10(b), plus accrued vacation pay and all other unpaid amounts (if any)
to which the Executive is entitled under any compensation or bonus plan of the
Company and any deferred compensation (and earnings thereon) credited to the
Executive, in each case at the time such payments are due.
(b) If the Executive's employment should be terminated by the Company
for Cause pursuant to Section 6(c) or by the Executive other than for Good
Reason, the Company shall pay the Executive his Base Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given,
such payment to be made within the time guidelines established pursuant to
standard Company policy, plus accrued vacation pay and all other unpaid amounts
(if any) to which the Executive is entitled under any compensation or bonus plan
of the Company and any deferred compensation and (earnings thereon) credited to
the Executive, in each case at the time such payments are due.
(c) If (A) in breach of this Agreement, the Company shall terminate the
Executive's employment other than for disability pursuant to Section 6(b) or
other than for Cause pursuant to Section 6(c) or (B) the Executive shall
terminate his employment for Good Reason pursuant to clause (A) of Section 6
(d)(i), then:
(i) the Company shall pay the Executive (A) his full Base
Salary through the Date of Termination, at the rate in effect at the
time Notice of Termination is given, no later than the fifth day
following the Date of Termination, plus (B) accrued vacation pay and
all other unpaid amounts (if any) to which the Executive is entitled as
of the Date of Termination under any compensation or bonus plan of the
Company, at the time such vacation pay or other unpaid amounts are due
under such vacation or other compensation plan or program, plus (C) any
deferred compensation (and earnings thereon) credited to the Executive
at the time such amounts are required to be paid to the Executive under
the plan or program pursuant to which such deferred compensation (and
earnings thereon) are held;
(ii) in lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination, the Company shall
pay to the Executive as severance pay or as liquidated damages, or
both, in a lump sum
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within ten (10) days of the Date of Termination an amount equal to, (x)
two times the Executive's then current Base Salary, (y) two times the
average of the annual bonuses paid to the Executive by the Company
during the prior two years, and (z) two times the annual amounts set
forth in Section 5(f) of this Agreement;
(iii) for a period of twenty-four (24) months following the
Date of Termination, the Company shall arrange to provide the Executive
with the Company-sponsored life, disability, accident and health
insurance benefits substantially equivalent to those which he was
receiving immediately prior to the event which led to the termination
of the Executive's employment; provided, however, that the Executive
will no longer be deemed to be an "employee" for purposes of any
qualified or non-qualified retirement plan, any stock option or other
equity incentive compensation arrangement or any successor plans
thereto; and
(iv) if a "change in control of the Company" (as defined
below) shall have occurred on or before the Date of Termination, then,
in lieu of the payments and benefits provided in subsections (ii) and
(iii) above, the Company shall pay as severance pay or as liquidated
damages, or both, to the Executive, no later than the fifth day
following the Date of Termination, a lump sum payment (the "Severance
Payment") equal to 2.50 times his "base amount", as defined in section
280G of the Internal Revenue Code of 1986, as amended (the "Code").
Such base amount shall be determined in accordance with temporary or
final regulations, if any, promulgated under section 280G of the Code
and based upon the advice of the tax counsel referred to below. The
Severance Payment shall be reduced by the amount of any other payment
or the value of any benefit received or to be received by the Executive
in connection with a change in control of the Company or his
termination of employment (whether pursuant to the terms of this
Agreement or any other plan, agreement or arrangement with the Company,
any person whose actions result in a change of control, or any person
affiliated with the Company or such person) unless (i) the Executive
should have effectively waived his receipt or enjoyment of such payment
or benefit prior to the date of payment of the Severance Payment, (ii)
in the opinion of tax counsel selected by the Company's independent
auditors and acceptable to the Executive, such other payment or benefit
does not constitute a "parachute payment" within the meaning of section
280G(b)(2) of the Code (without regard to subsection (A)(ii) thereof),
or (iii) in the opinion of such tax counsel, the Severance Payment (in
its full amount or as partially reduced under this paragraph, as the
case may be) plus all other payments or benefits which constitute
"parachute payments" within the meaning of section 280G(b)(2) of the
Code are reasonable compensation for services actually rendered, within
the meaning of section 280G(b)(4) of the Code or are otherwise not
subject to disallowance as a deduction by reason of section 280G of the
Code. The value of any non-cash benefit or any deferred payment or
benefit shall be determined by the Company's independent auditors in
accordance with the principles of sections 280G(d)(3) and (4) of the
Code.
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(d) For purposes of this Agreement, a "change in control of the
Company" shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, of any
corporation owned, directly or indirectly, by all stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined
voting power of the Company's then outstanding securities;
(ii) during any period of one year (not including any period
prior to the date of this Agreement), individuals who at the beginning
of such period constitute the Board, and any new director (other than a
director designated by a person who has entered into an agreement with
the Company to effect a transaction described in clause (i), (iii) or
(iv) of this subsection) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at
least two-third (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (a)
a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (b) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
Notwithstanding the foregoing, the events set forth above shall not
constitute a "change in control of the Company" for purposes of this Agreement,
if the applicable event occurs due to the actions of the Executive and/or other
members of the management of the Company (i.e. a management buy-out or similar
transaction).
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(e) The payments provided for in paragraph (iv) of subsection (c) above
shall be made not later than the fifth day following the Date of Termination;
provided, however, that if the amounts of such payments cannot be finally
determined on or before such day, the Company shall pay to the Executive on such
day an estimate, as determined in good faith by the Company, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in section 1274 (b)(2)(B) of the Code) as
soon as the amount thereof can be determined but in no event later than the
thirtieth day after the Date of Termination. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Company to the Executive, payable on
the fifth day after demand by the Company (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code).
(f) The ongoing benefits provided to the Executive pursuant to Section
7(c)(ii)(z) and Section 7(c)(iii) shall terminate upon the full-time employment
of the Executive with another employer.
8. Compensation Upon Non-Renewal.
If the Executive's employment terminates due to the non-renewal of this
Agreement by the Company or the Executive pursuant to Section 2 hereof, then:
(i) the Company shall pay the Executive (A) his full Base
Salary through the termination date of his employment, plus (B) accrued
vacation pay and all other unpaid amounts (if any) to which the
Executive is entitled as of the termination date of his employment
under any compensation or bonus plan of the Company, at the time such
vacation pay or other unpaid amounts are due under such vacation or
other compensation plan or program, plus (C) any deferred compensation
(and earnings thereon) credited to the Executive at the time such
amounts are required to be paid to the Executive under the plan or
program pursuant to which such deferred compensation (and earnings
thereon) are held; and
(ii) the Company shall, for a period of twenty-four (24)
months following the termination date of his employment, make the
payments set forth in Section 5(f) hereof with regard to the Personal
Insurance Policies, arrange to provide the Executive with the
Company-sponsored life, disability, accident and health insurance
benefits substantially equivalent to those which he was receiving
immediately prior to the event which led to the termination of the
Executive's employment; provided, however, that the Executive will no
longer be deemed to be an "employee" for purposes of any qualified or
non-qualified retirement plan, any stock option or other equity
incentive compensation arrangement or any successor plans thereto.
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9. Nondisclosure; Non-Competition.
(a) Except as provided in paragraph (f) of this Section 9, all payments
and other benefits payable under this Agreement shall be forfeitable and shall
be discontinued in the event that the Executive breaches or fails to perform his
obligations under this Section 9 or willfully engages in conduct which is
materially injurious to the Company, monetarily or otherwise.
(b) The executive agrees not to disclose following his Date of
Termination, to any person not employed on a full-time basis by the Company or
not engaged to render services to the Company, any confidential information
obtained by him while in the employ of the Company, provided, however, that this
provision shall not preclude the Executive from the use or disclosure of
information known generally to the public or of information not considered
confidential by persons engaged in the business conducted by the Company or from
disclosure required by law or court order. The agreement made in this Section 9
shall be in addition to, and not in limitation or derogation of, any obligations
otherwise imposed by law or by separate agreement upon the Executive in respect
of confidential information of the Company.
(c) During the term of this Agreement and for a period of twenty-four
months after the Executive's Date of Termination or expiration of this Agreement
in the event of non-renewal of this Agreement pursuant to Section 2 hereof, the
Executive shall not, without the written consent of the Board, (i) directly or
indirectly, whether as principal, agent, stockholder, employee, consultant or in
any other capacity, engage in or have a financial interest in any company or
enterprise which is in substantial competition with any substantial business
actively conducted by the Company or any of its subsidiaries, provided, however,
that this Subsection shall not be deemed to preclude or limit the Executive's
right to own not more than two percent (2%) of the stock or other securities of
any corporation, the shares of which are registered under Section 12 of the
Securities Exchange Act of 1934, or (ii) hire for any personal or business
purpose any person who is an employee of the Company at the date of such hiring
or during the six (6) month period immediately prior thereto.
(d) In the event of the termination of the Executive's employment under
this Agreement by the Company for Cause, as set forth in Subsection 6(c) hereof,
the Executive agrees to be bound by the provisions set forth in this Section 9.
(e) The Executive acknowledges that the services to be rendered by him
are of such a special, unique and extraordinary nature that an action at law for
the collection of damages would not provide adequate relief to the Company for
the enforcement of its rights in the event of an actual or threatened violation
by the Executive of his commitments and obligations hereunder. The Executive
agrees that upon the actual or threatened breach or violation of the commitments
and obligations contained in this Section 9, the Company shall be entitled to
seek both preliminary and permanent injunctive relief, in any action or
proceeding brought in an appropriate court having
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jurisdiction over the Executive, to restrain him from committing any violation
of such commitments and obligations.
(f) The terms of paragraph (c) of this Section 9 shall cease to apply
and shall be null and void, and the Company shall have no power to, and shall
not, enforce paragraphs (a) and (e) of this Section 9 following any activity
described in paragraph (c) of this Section, after termination of the Executive's
employment by the Company other than for disability pursuant to Section 6(b) or
other than for Cause pursuant to Section 6(c) or by the Executive for Good
Reason pursuant to clause (A) of Section 6(d)(i).
10. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason following a change in control of the Company, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 10 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive and his personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
(c) Except as to withholding of any tax under the laws of the United
States or any state or locality, neither this Agreement nor any right or
interest hereunder nor any amount payable at any time hereunder shall be subject
in any manner to alienation, sale, transfer, assignment, pledge, attachment, or
other legal process, or encumbrance of any kind by the Executive or the
beneficiaries of the Executive or by his legal representatives without the
Company's prior written consent; provided, however, that nothing in this
subsection shall preclude the Executive from designating a beneficiary to
receive any benefit payable on his death, or the legal representatives of the
Executive from assigning any rights hereunder to the person or persons entitled
thereto under his will or, in the case of intestacy, to the person or persons
entitled thereto under the laws of intestacy applicable to his estate.
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11. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, or sent by overnight courier service, addressed as
follows:
If to the Executive:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Vion Pharmaceuticals, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Board of Directors
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in a writing signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Connecticut without
regard to its conflicts of laws principles. All references to sections of the
Exchange Act or the Code shall be deemed also to refer to any successor
provisions to such sections. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state or local law.
The obligations of the Company under Sections 7 and 8 and the obligations of the
Executive under Section 9 shall survive the expiration of this term of this
Agreement.
13. Severability. 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, such provision shall be interpreted so as to
remain enforceable to the
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maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions hereof shall nevertheless remain in full
force and effect and shall be enforceable to the extent that they are valid,
legal and enforceable.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes, with respect to such subject matter, all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto,
including, without limitation, the January 1999 Agreement; and any prior
agreement of the parties hereto in respect of the subject mater contained herein
is hereby terminated and cancelled; except that this Agreement shall in no way
adversely affect, alter or amend the rights of the Executive pursuant to
currently outstanding stock options or in the agreements relating thereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
VION PHARMACEUTICALS, INC.
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
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▇▇▇▇ ▇▇▇▇▇▇▇
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