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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 14, 2000,
by and between Alteon Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Ph.D. (the "Employee").
WHEREAS, the Company wishes to employ the Employee as Senior Vice
President for Scientific Affairs; and
WHEREAS, the Employee wishes to enter into the employ of the Company as
its Senior Vice President for Scientific Affairs;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereby agree as follows;
1. Term of Employment. Subject to the terms and conditions hereof,
the Company will employ the Employee, and the Employee will serve
the Company, as Senior Vice President for Scientific Affairs for a
period beginning on the date hereof and terminating three (3)
years from such date, subject to extension by mutual agreement of
the Company and the Employee (such term, as it may be extended, is
hereinafter referred to as the "Term of Employment").
2. Duties. During the Term of Employment, the Employee will serve as
Senior Vice President for Scientific Affairs, subject to the terms
of this Agreement and the direction and control of the Board of
Directors and/or the Chief Executive Officer of the Company. The
Employee will, during the Term of Employment, serve the Company
faithfully, diligently and competently and to the best of his
ability, and will, consistent with the dignity of Senior Vice
President for Scientific Affairs of the Company, hold, in addition
to the offices of Senior Vice President of Scientific Affairs of
the Company, such other offices in the Company to which he may be
appointed or assigned from time to time by the Board of Directors
and/or the Chief Executive Officer of the Company and will
discharge such duties in connection therewith. The Employee shall
devote all of his business time to the performance of his duties
hereunder.
3. Compensation. The Company will, during the Term of Employment, pay
to the Employee as compensation for the performance of his duties
and obligations hereunder an initial base salary at the rate of
$200,000 per annum ("Salary"), payable in equal semi-monthly
installments. Such Salary shall be reviewed annually by the Board
of Directors of the Company in
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accordance with the Company's compensation program. In each of the
Company's fiscal years during the Term of Employment, the Employee
shall be eligible to receive a bonus, to be awarded at the sole
discretion of the Board of Directors of the Company, in an amount
of up to $25,000 per year for the term of the employment
agreement. The Board shall use as a basis for determining the
extent of such bonus awards the attainment of stated goals and
objectives for the Employee to be set by the Compensation
Committee of the Board after consultation with the Chief Executive
Officer.
4. Other Benefits. During the Term of Employment:
A. The Company shall grant to the Employee an incentive stock
option, pursuant to the Company's 1995 Stock Option Plan,
to purchase 250,000 shares of Common Stock of the Company
("Common Stock") with an exercise price equal to the
closing price of the Company's Common Stock on March 14,
2000. Such option shall be in the form of and on such terms
and conditions as provided in, the Company's standard form
of Stock Option Grant Agreement in effect as of the date of
this Agreement. Such option grant shall provide, on
condition that the Employee is employed by the Company on
the relevant vesting dates, that such options shall vest as
follows:
(1) 10,000 shares shall vest on hire; and
(2) 25,000 shares shall vest on the first anniversary of
the date of this Agreement and 75,000 shares shall
vest over a thirty-six month period at the rate of
2,083 shares on the first day of each calendar month
commencing on March 14; and
(3) 140,000 shares shall vest upon the accomplishment by
the Employee of specified milestones, as determined
by the Compensation Committee of the Board after
consultation with the Chief Executive Officer; and
B. The Employee shall be entitled during the Term of
Employment to participate in employee benefit plans and
programs of the Company to the extent that his position,
tenure, salary, age, health and other qualifications make
him eligible to participate. The Company does not guarantee
the adoption or continuance of any particular employee
benefit plan or program during the Term of Employment, and
the Employee's participation in any such plan or program
shall be subject to the provisions, rules, regulations and
laws applicable thereto; provided, however, that during the
Term of Employment the Employee shall be entitled to health
and hospital insurance benefits consistent with the past
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practices of the Company in effect with respect to Company
personnel generally; and, further provided, the Employee is
eligible for protection under the Alteon Inc. Change in
Control Severance Benefits Plan, as in effect from time to
time.
C. The Employee shall be entitled to three (3) weeks' vacation
per year while employed hereunder. Such vacation may be
taken by the Employee at such times as do not unreasonably
interfere with the business of the Company. The
accumulation of annual vacation time earned but not taken
will be in accordance with the Company policy guidelines.
Additional vacation will be earned in accordance with
Company policy.
5. Expenses. During the Term of Employment, the Company will
reimburse the Employee for commuting and housing expenses in an
amount of $2,500 per month up to a maximum of $30,000 per year. In
addition, during the Term of Employment, all travel and other
reasonable business expenses incident to the rendering of services
by the Employee under this Agreement will be paid or reimbursed by
the Company subject to the submission of appropriate vouchers and
receipts in accordance with the Company's policy from time to time
in effect.
6. Death or Disability.
A. This Agreement shall be terminated by the death of the
Employee. In addition, this Agreement may be terminated by
the Board of Directors of the Company if the Employee shall
be rendered incapable by illness or any other disability
from complying with the terms, conditions and provisions on
his part to be kept, observed and performed for a period in
excess of 180 days (whether or not consecutive) or 90 days
consecutively, as the case may be, during a 12-month period
during the Term of Employment ("Disability"). If this
Agreement is terminated by reason of Disability of the
Employee, the Company shall give written notice to that
effect to the Employee in the manner provided herein. In
the event that the Employee receives disability insurance
benefits paid for by the Company during any period prior to
termination of this Agreement pursuant to this Section
6(a), the Employee's Salary shall be reduced by an amount
equal to such disability insurance benefits during such
period.
B. In addition to and not in substitution for any other
benefits which may be payable by the Company in respect of
the death or Disability of the Employee, in the event of
such death or Disability, the Salary payable hereunder
shall continue to be paid at the then current rate for
three (3) months after the termination of employment, and
any bonus to which the Employee would have been entitled
for the year in which his death occurs
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shall be pro rated to the date of his death and paid not
later than three (3) months after the termination of
employment. In the event of the death of the Employee
during the Term of this Agreement, the sums payable
hereunder shall be paid to his personal representative.
7. Disclosure of Information, Inventions and Discoveries. The
Employee shall promptly disclose to the Company all processes,
trademarks, inventions, improvements discoveries and other
information related to the business of the Company (collectively,
"Developments") conceived, developed or acquired by him alone or
with others during the Term of Employment or during any earlier
period of employment by the Company or any predecessor of the
Company, whether or not during regular working hours or through
the use of materials or facilities of the Company. All such
Developments shall be the sole and exclusive property of the
Company, and, upon request, the Employee shall promptly deliver to
the Company all drawings, sketches, models and other data and
records relating to such Developments. In the event any such
Development shall be deemed by the Company to be patentable, the
Employee shall, at the expense of the Company, assist the Company
in obtaining a patent or patents thereon and execute all documents
and do all such other acts and things necessary or proper to
obtain letters of patents and to invest in the Company full right,
title and interest in and to such Developments.
8. Non-Disclosure. The Employee shall not, at any time during or
after the Term of Employment, divulge, furnish or make accessible
to anyone (otherwise than in the regular course of business of the
Company) or use for his own account or for the account of any
person any knowledge or information with respect to confidential
or secret processes, inventions, discoveries, improvements,
formulae, plans, materials, devices or ideas or other know-how,
whether patentable or not, with respect to any confidential or
secret development or research work or with respect to any other
confidential or secret aspects of the Company's business
(including, without limitation, customer lists, supplier lists and
pricing arrangements with customers or suppliers).
9. Non-Competition. The Company and the Employee agree that the
services rendered by the Employee hereunder are unique and
irreplaceable. The Employee hereby agrees that, during the Term of
Employment and for a period of one (1) year thereafter, the
Employee shall not (i) in any geographical area in the United
States or in those foreign countries where the Company, during the
Term of Employment, conducts or proposes to conduct business or
initiates activities, engage or participate in, directly or
indirectly (whether as an officer, director, employee, partner,
consultant, holder of an equity or debt investment, lender or in
any other manner or capacity), or lend
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his name (or any part or variant thereof) to any business which
is, or as a result of the Employee's engagement or participation
would become, competitive with any aspect of the business of the
Company, such business being the commercialization of the
measurement, prevention therapy or reversal of glucose-mediated
non-enzymatic cross-linking of macro-molecules, and such other
specific technologies in which the Company has, during the Term of
Employment, initiated significant plans to develop products, (ii)
deal, directly or indirectly, in a competitive manner with any
customers doing business with the Company during the Term of
Employment (except in connection with the performance of the
duties and obligations of the Employee during the Term of
Employment), (iii) solicit any officer, director, employee,
consultant or agent of the Company to become an officer, director,
employee, consultant or agent of the Employee, his respective
affiliates or anyone else, and (iv) engage in or participate in,
directly or indirectly, any business conducted under any name that
shall be the same as or similar to the name of the Company or any
trade name used by it. Ownership, in the aggregate, of less than
1% of the outstanding shares of capital stock of any corporation
with one or more classes of its capital stock listed on a national
securities exchange or publicly traded in the over-the-counter
market shall not constitute a violation of the foregoing
provision.
10. Remedies. The Employee acknowledges that irreparable damage would
result to the Company if the provisions of Section 7, 8, 9 or 14
were not specifically enforced, and agrees that the Company shall
be entitled to any appropriate legal, equitable or other remedy,
including injunctive relief, in respect to any failure to comply
with the provisions of Section 7, 8, 9 or 14.
11. Termination for Cause. In addition to any other remedy available
to the Company, either at law or in equity, the Employee's
employment with the Company may be terminated by the Board of
Directors for cause, which shall include (i) the Employee's
conviction for, or plea of nolo contendere to, a felony or a crime
involving moral turpitude, (ii) the Employee's commission of an
act of personal dishonesty or a breach of fiduciary duty involving
personal profit in connection with the Employee's employment by
the Company, (iii) the Employee's commission of an act which the
Board of Directors shall reasonably have found to have involved
willful misconduct or gross negligence on the part of the
Employee, in the conduct of his duties under this Agreement, (iv)
habitual absenteeism, (v) the Employee's material breach of any
material provision of this Agreement, or (vii) the willful and
continued failure by the Employee to perform substantially his
duties with the Company (other than any such failure resulting
from his incapacity due to physical or mental illness). In the
event of termination under this Section 11, the Company's
obligations under this Agreement shall cease and the Employee
shall forfeit all rights to receive any future compensation under
this
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Agreement. Notwithstanding any termination of this Agreement
pursuant to this Section 11, the Employee, in consideration of his
employment hereunder to the date of such termination, shall remain
bound by the provisions of Section 7, 8, 9 and 14 hereof.
12. Termination Without Cause. Each of the Company and Employee may
terminate this Agreement at any time for any reasons whatsoever,
without any further liability or obligation of the Company to the
Employee or of the Employee to the Company from and after the date
of such termination (other than liabilities or obligations accrued
but unsatisfied on, or surviving, the date of such termination),
by sending thirty (30) days prior written notice to the other
party. In the event (a) the Company elects to terminate this
Agreement prior to the end of the Term of Employment or (b) the
Company gives Employee notice of its election not to extend the
Term of Employment beyond the expiration of the then current Term
of Employment, or (c) by the date which is four (4) months prior
to the end of the then current Term of Employment, the Company has
not offered to extend the then current Term of Employment, the
Company shall continue to pay the Employee the full Salary
(exclusive of bonuses, if any) as such Salary would have otherwise
accrued for a period of three (3) months if the effective date of
such termination occurs prior to the first anniversary of this
Agreement and for a period of six (6) months if the effective date
of such termination occurs thereafter. In the event the Employee
elects to terminate prior to the end of the Term of Employment,
the Company's obligation to pay Salary shall cease as of the
effective date of termination. Notwithstanding any termination of
this Agreement pursuant to this Section 12, the Employee, in
consideration of his employment hereunder to the date of such
termination, shall remain bound by the provisions of Section 7, 8,
9 and 14 hereof. Any termination of this Agreement by the Company
as provided in this Section 12 shall be in addition to, and not in
substitution for, any rights with respect to termination of the
Employee which the Company may have pursuant to Section 11.
13. Resignation. In the event that the Employee's services under this
Agreement are terminated under any of the provisions of this
Agreement (except by death), the Employee agrees that he will
deliver his written resignation from all positions held with the
Company to the Board of Directors, such resignation to become
effective immediately; provided, however, that nothing herein
shall be deemed to affect the provisions of Section 7, 8, 9 and 14
hereof relating to the survival thereof following termination of
the Employee's services hereunder, and provided, further, that
except as expressly provided in this Agreement, the Employee shall
be entitled to no further compensation hereunder.
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14. Data. Upon termination of the Term of Employment or termination
pursuant to Sections 6, 11 or 12 hereof, the Employee or his
personal representative shall promptly deliver to the Company all
books, memoranda, plans, records and written data of every kind
relating to the business and affairs of the Company which are then
in his possession.
15. Insurance. The Company shall have the right, at its own cost and
expense to apply for and to secure in its own name, or otherwise,
life, health or accident insurance or any or all of them covering
the Employee, and the Employee agrees to submit to usual and
customary medical examinations and otherwise to cooperate with the
Company in connection with the procurement of any such insurance,
and any claims thereunder.
16. Waiver of Breach. Any waiver of any breach of this Agreement shall
not be construed to be a continuing waiver or consent to any
subsequent breach on the part either of the Employee or of the
Company.
17. Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company upon any
sale of all or substantially all of the Company's assets, or upon
any merger or consolidation of the Company with or into any other
entity, all as though such successors and assigns of the Company
and their respective successors and assigns were the Company.
Insofar as the Employee is concerned, this Agreement, being
personal, may not be assigned.
18. Severability. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted
therefrom and the remainder of such provision and of this
Agreement shall be unaffected and shall continue in full force and
effect. In furtherance and not in limitation of the foregoing,
should the duration or geographical extent of, or business
activities covered by, any provision of this Agreement be in
excess of that which is valid and enforceable under applicable
law, then such provision shall be construed to cover only that
duration, extent or activities which may be validly and
enforceable covered.
19. Notices. All notices, requests and other communications pursuant
to this Agreement shall be in writing and shall be deemed to have
been duly given, if delivered in person or by courier,
telegraphed, telexed or by facsimile transmission or five business
days after being sent by registered or certified mail, return
receipt requested, postage paid, addressed as follows:
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If to the Employee
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Alteon Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Smith, Stratton, Wise, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any party may, by written notice to the other in accordance with
this Section 19, change the address to which notices to such party
are to be delivered or mailed.
20. General. Except as otherwise provided herein, the terms and
provisions of this Agreement and the Stock Option Grant Agreement
to be entered into between the Employee and the Company shall
constitute the entire agreement by the Company and the Employee
with respect to the subject matter hereof, and shall supersede any
and all prior agreements or understandings between the Employee
and the Company, whether written or oral. This Agreement may be
amended or modified only by a written instrument executed by the
Employee and the Company. This Agreement may be executed in any
number of counterparts, all of which, when executed, shall be
deemed to be an original, and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
ALTEON INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D.