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Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 21,
2000, by and between Alteon Inc., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇▇▇ ▇. O'Dell (the "Employee").
WHEREAS, the Company wishes to employ the Employee as Vice President,
Finance and Administration; and
WHEREAS, the Employee wishes to enter into the employ of the Company as
its Vice President; Finance and Administration; Treasurer and Secretary;
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 Vice President, Finance and Administration, for a
period beginning on the date hereof and terminating December 31,
2003, 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
Vice President, Finance and Administration, 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
Employee's ability, and will, consistent with the dignity of Vice
President, Finance and Administration of the Company, hold, in
addition to the offices of Vice President, Finance and
Administration of the Company, such other offices in the Company
to which Employee 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 business time to the
performance of the duties hereunder.
3. Compensation. During the Term of Employment, the Company will pay
to the Employee as compensation for the performance of Employee's
duties and obligations hereunder a base salary at the rate of
$145,000 per annum until December 31, 2000 and at the rate of
$150,800 per annum for the calendar year 2001 ("Salary"), payable
in equal semi-monthly installments. For periods after calendar
year 2001, such Salary shall be reviewed annually by the Board of
Directors of the Company in 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 cash bonus of up to $5,000, to be awarded at the sole discretion
of the Board of Directors of the Company. 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 Employee shall be entitled during the Term of Employment
to participate in employee benefit plans and programs of the
Company to the extent that Employee's position, tenure,
salary, age, health and other qualifications make Employee
eligible to participate.
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Employment Agreement Page 2
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 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.
B. The Employee shall be entitled to five 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 all travel and other reasonable
business expenses incident to the rendering of services by the
Employee under this Agreement, 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
Employee's 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 with respect to 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 months after the
termination of employment, and any bonus to which the Employee
would have been entitled for the year in which Employee's
death occurs shall be pro rated to the date of Employee's
death and paid not later than three 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 Employee's 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 Employee 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
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Employment Agreement Page 3
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 Employee's 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 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 Employee's 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 crosslinking 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, Employee's 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 one percent 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
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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 Employee's 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 Employee's duties with the
Company (other than any such failure resulting from Employee's
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 Agreement.
Notwithstanding any termination of this Agreement pursuant to this
Section 11, the Employee, in consideration of Employee's
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 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 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 six months if the effective date of such termination
occurs prior to the first anniversary of this Agreement, and for a
period of six 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
Employee's 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 to deliver
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.
14. Data. Upon termination of the Term of Employment or termination
pursuant to Sections 6, 11 or 12 hereof, the Employee or
Employee's personal representative shall promptly deliver to
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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 Employee's 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:
If to the Employee:
▇▇▇▇▇▇▇▇▇ ▇. O'Dell
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Alteon Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Smith, Stratton, Wise, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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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 any Stock Option Grant Agreements
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.
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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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
/s/ ▇▇▇▇▇▇▇▇▇ ▇. O'Dell
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▇▇▇▇▇▇▇▇▇ ▇. O'Dell