EX-10.16 4 dex1016.htm EMPLOYMENT AGREEMENT WITH MARC BEER EMPLOYMENT AGREEMENT
Exhibit 10.16
This Employment Agreement (“Agreement”) is made as of the 19th day of August, 2010, between Aegerion Pharmaceuticals, Inc. a Delaware corporation (the “Company”), and ▇▇▇▇ ▇▇▇▇, an individual who currently resides at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Executive”) (together the “Parties”).
WHEREAS, the Company desires to employ the Executive and the Executive desires to be employed by the Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Commencement Date. Executive shall commence his employment with the Company on August 19, 2010 (the “Commencement Date”).
2. Position and Duties. The Executive shall serve as the Chief Executive Officer (“CEO”) of the Company. In such capacity, Executive shall have supervision and control over and responsibility for the day-to-day business and affairs of the Company and shall have such powers and duties as are customarily assigned to such role, and such other duties and responsibilities as may from time to time be prescribed by the Board of Directors (the “Board”). The Executive shall devote his full working time and efforts to the business and affairs of the Company. Notwithstanding the foregoing, the Executive may manage his personal investments, engage in religious, charitable or other community activities, and, subject to the terms of this Section, serve on corporate or industry boards, as long as such activities do not pose an actual or apparent conflict of interest and do not interfere with the Executive’s performance of his duties to the Company. Executive represents that he has provided the Company with a comprehensive list of all outside professional activities with which he is currently involved or reasonably expects to become involved. In the event that, during his employment by the Company, the Executive desires to engage in other outside professional activities, not already included on such list, Executive will first seek written approval from the Board and such approval will riot be unreasonably withheld, provided however, in any event, commencing with the second quarter of 2011 until the end of the third quarter of 2011, Executive shall not serve on more than three outside for-profit boards while serving as CEO of the Company, and commencing with the fourth quarter of 2011, and thereafter, Executive shall not serve on more than two outside for-profit boards while Serving as CEO of the Company.
3. Board Membership. Subject to nomination, election and removal procedures, Executive shall serve on the Board as long as he is CEO of the Company and shall resign upon the termination of his employment for any reason.
4. Work Location. Executive shall reside and be based in Massachusetts, and, as soon as practicable after the earliest to occur of (i) an initial public offering of the Company, (ii) private and strategic investments in the Company after the Commencement Date totaling $20
million in the aggregate, or (iii) filing of the first new drug application by the Company with the FDA (each a “Triggering Event”), the Company’s corporate headquarters will be based in Massachusetts, provided however, in any case, Executive understands that his job duties will require him to travel regularly, including to the Company’s other offices and locations outside of Massachusetts. For the avoidance of doubt, material matters related to the establishment and maintenance of the Company’s corporate headquarters shall “be subject to the discretion of the Board after consultation with the Executive.
5. Compensation and Related Matters.
(a) Base Salary. The Executive’s initial base salary shall be paid at the rate of $450,000 per year. The Executive’s base salary shall be reviewed annually by the Board or the Compensation Committee of the Board (the “Compensation Committee”) and is subject to increase but not decrease. The base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary shall be payable in a manner that is consistent with the Company’s usual payroll practices for senior executives.
(b) Annual Bonus. The Executive shall be eligible to receive an annual cash bonus as determined by the Board or the Compensation Committee (the ‘Bonus”). The Bonus shall be based on an annual target and the achievement of performance goals. The Executive’s target shall be 50% of his Base Salary, pro-rated in 2010 to reflect his partial year of employment. The Executive’s performance goals shall be established by the Board or the Compensation Committee after consultation with the Executive and the achievement of those goals shall be determined in the sole discretion of the Board or the Compensation Committee. Except as otherwise provided herein, to earn any part of the Bonus, the Executive must be employed by the Company on December 31 of the applicable bonus year and such Bonus shall be paid to Executive on or before March 15 of the immediately following calendar year.
(c) Equity Grant. As soon as practicable after the Commencement Date, the Executive and the Company shall enter into a single option agreement, mutually agreeable to both parties and negotiated in good faith, to purchase a fixed number of shares of the Company’s common stock, $0,001 par value per share (the “Common Stock”), it being agreed that the intention is that such option award will as closely as possible represent (based on estimates and assumptions to be mutually agreed) approximately 6.5% of the total number of shares of the Company’s outstanding capital stock, on an as-converted to Common Stock basis, anticipated to be outstanding immediately prior to an initial public offering if such initial public offering were to occur in late 2010 or early 2011 (“IPO”), including for such purposes the following amounts as if they had occurred as of the Commencement Date, solely for purposes of this calculation: (i) the exercise of all options and warrants and the conversion of convertible securities outstanding as of the Commencement Date, (ii) the assumed conversion into capital stock of convertible promissory notes having an aggregate of $10.0 million in original principal amount outstanding as of December 31, 2009 at an assumed conversion price to be mutually agreed by the Company and the Executive solely for purposes of such calculation, (iii) the assumed conversion into capital stock of convertible promissory notes having an aggregate of $6.0 million in original principal amount issued in January, June and August 2010 at an assumed conversion price to be mutually agreed by the Company and the Executive solely for purposes of such calculation, (iv) up to $4.0 million of assumed additional private investment during 2010 (but specifically
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excluding any shares of the Company’s capital stock that would be sold by the Company in connection with any assumed IPO), such amount of assumed additional private investment to be mutually agreed by the Company and the Executive solely for purposes of such calculation, and (y) the amount of stock options and/or restricted stock estimated to be issued prior to the IPO to new or existing employees or consultants, and the assumed exercise of such options (the “Option Award”). The Company and the Executive agree to negotiate in good faith the manner in which to calculate and fix the number of shares that shall be subject to the Option Award, including without limitation any assumptions or estimates that underlie such calculation. It is hereby agreed that once the Option Award is granted and executed, the number of shares that are subject to the Option Award shall be fixed and will not change, and the Company shall have no further obligation to grant subsequent equity awards to Executive pursuant to this Section 5(c), whether or not the estimates and assumptions underlying the above-referenced calculation are ultimately correct. Notwithstanding the foregoing, the Executive shall remain eligible to receive subsequent equity awards from time to time in accordance with the Company’s compensation policies and procedures then in effect, in any such case, as determined by the Board (or Compensation Committee thereof) acting in its sole discretion. The Option Award shall have an exercise price equal to the fair market value of the Common Stock on the date of grant (as determined by the Board or Compensation Committee thereof)) and shall vest in equal monthly installments over the four year period commencing as of the Commencement Date, subject to the terms and conditions set forth in the Aegerion Pharmaceuticals, Inc. 2006 Stock Option and Grant Plan, as amended, associated equity award agreements (collectively the “Equity Award Documents”) and the acceleration provisions set forth below in Sections 7(b)(iii) and 8(a)(ii). The term of the Option shall be ten (10) years after the date the Option is granted.
(d) Expenses. The Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by him in performing services hereunder, in accordance with me policies and procedures then in effect and established by the Company for its senior executive officers.
(e) Other Benefits. The Executive shall be entitled to continue to participate in or receive benefits under the Company’s employee benefit plans as may be adopted and amended from time to time, subject to the terms and conditions of those employee benefit plans.
(f) Vacations. The Executive shall be entitled to accrue up to 20 days of paid vacation days in each year, which shall be accrued ratably, and subject to the Company’s vacation policy in effect, and as may be amended from time to time.
6. Termination. The Executive’s employment hereunder may be terminated without any breach of this Agreement under the following circumstances:
(a) Death. The Executive’s employment hereunder shall terminate upon his death.
(b) Disability. The Company may terminate the Executive’s employment if the Executive incurs a disability and is unable to perform the essential functions of the Executive’s position with or without reasonable accommodation for a period of 180 days (which need not be consecutive) in any 12-month period. If any question shall arise as to whether
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during any period the Executive is disabled so as to be unable to perform the essential functions of the Executive’s then existing position or positions with or without reasonable accommodation, the Executive may, and at the request of the Company shall, submit to the Company a certification in reasonable detail by a physician selected by the Company to whom the Executive or the Executive’s guardian has no reasonable objection as to whether the Executive is so disabled or how long such disability is expected to continue, and such certification shall for the purposes of this Agreement be conclusive of the issue. The Executive shall cooperate with any reasonable request of the physician in connection with such certification. If such question shall arise and the Executive shall fail to submit such certification, the Company’s determination of such issue shall be binding on the Executive. Nothing in this Section 6(b) shall be construed to waive the Executive’s rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.
(c) Termination by Company for Cause. Subject to the procedures set forth in this paragraph, the Company may terminate the Executive’s employment at any time for Cause. For purposes of this Agreement, “Cause” shall mean any of the following by Executive: (i) dishonesty, embezzlement, misappropriation of assets or property of the Company; (ii) gross negligence, willful misconduct, neglect of duties, theft, fraud, or breach of fiduciary duty to the Company; (iii) violation of federal or state securities laws; or (iv) the conviction of a felony, or any crime involving moral turpitude, including a plea of guilty or nolo contendere; (v) a material breach of any material provision of this Agreement; or (vi) a material breach of any of the Company’s written policies relating to conduct or ethics. A termination of the Executive’s employment for Cause shall be not be effective unless it is accomplished in accordance with the following procedures: The Board shall give the Executive written notice (“Notice of Termination for Cause”) of its intention to terminate the Executive’s employment for Cause, setting forth the specific conduct of or failure to act by the Executive that it considers to constitute Cause and the specific provision(s) of this Agreement on which it relies, and stating the date, time and place of a special meeting of the Company’s Board (the “Special Board Meeting”) called and held specifically and exclusively for the purpose of considering the Executive’s termination for Cause. The Special Board Meeting must take place not less than thirty (30) business days after the Executive receives the Notice of Termination for Cause. The Executive shall be given an opportunity, together with counsel, to be heard at the Special Board Meeting. The Executive’s termination for Cause shall be effective when a resolution is duly adopted at the Special Board Meeting stating that, in the good faith opinion of a majority of the members of the Board (other than the Executive) present at the Special Board Meeting, the Executive engaged in the act or omission referenced in the Notice of Termination for Cause and that such conduct or failure to act constitutes Cause under the applicable provision of this Agreement. A failure of the Company to follow the provisions of this Section in connection with a proposed termination of the Executive’s employment by the Company for Cause shall result in the termination of the Executive’s employment being conclusively deemed to be a termination by the Company without Cause.
(d) Termination by the Company Without Cause. The Company may terminate the Executive’s employment at any time without Cause. Any termination by the Company of the Executive’s employment under this Agreement which does not constitute a termination for Cause under Section 6(c) and does not result from the death or disability of the Executive under Section 6(a) or 6(b) shall be deemed a termination without Cause.
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(e) Termination by the Executive. The Executive may terminate his employment hereunder at any time for any reason, including but not limited to Good Reason. For purposes of this Agreement, “Good Reason” shall mean that the Executive has complied with the “Good Reason Process” (hereinafter defined) following the occurrence of any of the following events: (i) a material diminution in the Executive’s responsibilities, authority or duties; (ii) the Executive is not elected to, or is removed, from the Company’s Board; (Hi) the Executive is made to report to anyone other than the Board; (iv) a material diminution in the Executive’s Base Salary; (v) a requirement by the Company that the Executive relocate without his consent, or the failure of the Company to establish the Company’s corporate headquarters in Massachusetts within three (3) months of a Triggering Event, as defined in Section 4, or thereafter, a relocation of the Company’s corporate headquarters outside of Massachusetts, without Executive’s consent; or (vi)the material breach of a material provision of this Agreement by the Company. “Good Reason Process” shall mean that (i)the Executive reasonably determines in good faith that a “Good Reason” condition has occurred; (ii) the Executive notifies the Company in writing of the first occurrence of the Good Reason condition within 30 days of the first occurrence of such condition; (iii) the Executive cooperates in good faith with the Company’s efforts, for a period not less than 30 days following such notice (the “Cure Period”), to remedy the condition; (iv) notwithstanding such efforts, the Good Reason condition continues to exist; and (v) the Executive terminates his employment within 30 days after the end of me Cure Period. If the Company cures the Good Reason condition during the Cure Period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in Section 6(a), any termination of the Executive’s employment by the Company or any such termination by the Executive shall be communicated by written Notice of Termination to the other party hereto. 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.
(g) Date of Termination. “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 on account of disability under Section 6(b) or by the Company without Cause under Section 6(d) on the date the Notice of Termination is given; (iii) if the Executive’s employment is terminated by the Company for Cause under Section 6(c), the date the resolution of the Special Board Meeting confirms (hat a for “Cause” event has occurred, as referenced in Section 6(c); (iv) if the Executive’s employment is terminated by the Executive under Section 6(e) without Good Reason, 30 days after the date on which a Notice of Termination is given, and (v) if the Executive’s employment is terminated by the Executive under Section 6(e) with Good Reason, the date on which a Notice of Termination is given after the end of the Cure Period. Notwithstanding the foregoing, in the event that the Executive gives a Notice of Termination to the Company, the Company may unilaterally accelerate the Date of Termination and such acceleration shall not result in a termination by the Company for purposes of this Agreement.
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7. Compensation Upon Termination.
(a) Termination Generally. If the Executive’s employment with the Company is terminated for any reason, the Company shall pay or provide to the Executive (or to his authorized representative or estate) any earned but unpaid salary and bonus, if any, unpaid expense reimbursements, accrued but unused vacation and any vested benefits the Executive may have under any employee benefit plan of the Company (the “Accrued Benefit”) on or before the time required by law but in no event more than 30 days after the Executive’s Date of Termination.
(b) Termination by the Company Without Cause or by the Executive with Good Reason. If the Executive’s employment is terminated by the Company without Cause as provided in Section 6(d), or the Executive terminates his employment for Good Reason as provided in Section 6(e), then the Company shall, through the Date of Termination, pay the Executive his Accrued Benefit. In addition, subject to the Executive providing the Company with a fully effective separation agreement that includes a general release of claims in a form and manner reasonably satisfactory to the Company (the “Release”) within the 35-day period following the Date of Termination, Executive shall be entitled to the following payments and benefits (collectively the “Severance Benefits”):
(i) the Company shall pay the Executive severance pay in the form of continuation of Executive’s Base Salary for twelve (12) months in accordance with the Company’s payroll practice, beginning on the Company’s first regular payroll date that occurs 35 days after the Date of Termination. Solely for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), each salary continuation payment is considered a separate payment;
(ii) subject to the Executive’s timely election of COBRA and copayment of premium amounts at the active employees’ rate, the Executive may continue to participate in the Company’s group health and dental program until the earlier of (i) twelve (12) months from the Date of Termination, and (ii) the date the Executive becomes re-employed with benefits substantially comparable to the benefits provided under the corresponding Company plan; and
(iii) notwithstanding anything to the contrary in any Equity Award Documents, (a) 25% of the Executive’s then outstanding unvested equity awards shall vest and become fully exercisable or nonforfeitable as of the Date of Termination, and (b) Executive shall have ninety (90) days from the Date of Termination to exercise vested equity awards.
Notwithstanding the foregoing, the Severance Benefit set forth in Section 7(b)(i) shall be reduced dollar for dollar by any compensation Executive receives from another employer during the period between the Date of Termination and the one year anniversary of the Date of Termination (the “Severance Benefits Period”) if the Executive becomes re-employed during such period. The Executive agrees to give prompt notice of any employment during the Severance Benefits Period and shall respond promptly to any reasonable inquiries concerning his professional activities. If the Company makes any overpayments of Severance Benefits, Executive shall
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promptly return any such overpayments to the Company and/or hereby authorizes deductions from future Severance Benefit amounts. The foregoing shall not create any obligation on the part of the Executive to seek re-employment after the Date of Termination.
8. Change in Control Provisions. The provisions of this Section 8 set forth certain terms of an agreement reached between the Executive and the Company regarding the Executive’s rights and obligations upon the occurrence of a Change in Control of the Company. These provisions are intended to assure and encourage in advance the Executive’s continued attention and dedication to his assigned duties and his objectivity during the pendency and after the occurrence of any such event. Section 8(a) shall apply in lieu of, and expressly supersede, the Severance Benefits set forth in Section 7(b) if such termination of employment occurs within eighteen (18) months after the occurrence of a Change in Control.
(a) Termination of Employment. If within eighteen (18) months after a Change in Control, the Executive’s employment is terminated by the Company without Cause as provided in Section 6(d) or the Executive terminates his employment for Good Reason as provided in Section 6(e), then, subject to Executive providing the Company with a fully effective Release within thirty-five (35) day period following the Date of Termination:
(i) the Company shall pay the Executive a severance payment in an amount equal to 1.5 x the sum of: (A) either (i) the Executive’s Base Salary over the immediately prior twelve months, or (ii) if the Change in Control occurs within twelve months of the Commencement Date; Executive’s full annual Base Salary, plus (B) either (i) the Bonus payment the Executive earned pursuant to Section 5(b) of this Agreement for the bonus period that immediately preceded the Date of Termination (the “Prior Bonus”) or, (ii) if the Prior Bonus was pro rated based on the Executive’s Commencement Date, the Bonus the Executive would have received had the Prior Bonus not been pro-rated (such sum, the “CIC Severance Amount”). The CIC Severance Amount shall be paid out in substantially equal installments in accordance with the Company’s payroll practice over eighteen (18) months beginning on the Company’s first regular payroll date that occurs thirty five (35) days after the Date of Termination. Solely for purposes of Section 409 A of the Code, each installment payment is considered a separate payment”); and
(ii) notwithstanding anything to the contrary in any Equity Award Documents, (a) 100% of Executive’s then outstanding unvested equity shall vest and become fully exercisable or nonforfeitable as of the Date of Termination; and (b) Executive shall have ninety (90) days from the Date of Termination to exercise vested equity awards.
(iii) subject to the Executive’s timely election of COBRA and copayment of premium amounts at the active employees’ rate, the Executive may continue to participate in the Company’s group health and dental program until the earlier of (i) eighteen (18) months from the Date of Termination, and (ii) the date Executive becomes re-employed with benefits substantially comparable to the benefits provided under the corresponding Company plan,
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(b) Definitions. For purposes of this Section 8, the following terms shall have the following meanings:
“Change in Control” shall mean any of the following:
(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 “Act”) (other than the Company, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Act) of such person, shall become the “beneficial owner” (as such term is defined in Rule l3d-3 under the Act), directly or indirectly, of securities of the Company representing 50 percent or more of the combined voting power of the Company’s then outstanding securities having the right to vote in an election of the Board (“Voting Securities”) (in such case other man as a result of an acquisition of securities directly from the Company); or
(ii) the date a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the incumbent Board before the date of the appointment or election, provided, further that directors whose initial assumption of office is in connection with an actual or threatened election contest related to the election of directors of the Company will not be considered as members of the incumbent Board for purposes of this paragraph for a period of twelve months following such initial assumption; or
(iii) the consummation of (A) any consolidation or merger of the Company where the stockholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate more than 50 percent of the voting shares of the Company issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any,), or (B) any sale or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company.
A Change in Control shall not be deemed to have occurred for purposes of Section 8(b)(i) hereof unless such Change in Control also constitutes a “change in ownership,” “change in effective control” or “change in the ownership of a substantial portion of the Company’s assets, as such terms are defined in Section 409A of the Code. Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the Company which, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of Voting Securities beneficially owned by any person to 50 percent or more of the combined voting power of all of the then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result
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of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns 50 percent or more of the combined voting power of all of the men outstanding Voting Securities, then a “Change in Control” shall be deemed to have occurred for purposes of the foregoing clause (i).
9. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.
(b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-l(h).
(d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
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(e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
10. Confidential Information, Noncompetition and Cooperation; Nondisparagement
(a) Restrictive Covenant. As a condition of Executive’s employment and as a material term of this Agreement, the Executive agrees to comply with the Employee Confidentiality, Assignment and Noncompetition Agreement attached hereto as Exhibit 1, the terms of which are hereby incorporated by reference into Section 10 of this Agreement.
(b) Litigation and Regulatory Cooperation. During and after the Executive’s employment, the Executive shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive was employed by the Company, provided, that the Executive will not have an obligation under this paragraph with respect to any Claim in which the Executive has filed directly against the Company or related persons or entities. The Executive’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Executive’s employment, the Executive also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Executive was employed by the Company, provided the Executive will not have any obligation under this paragraph with respect to any claim in which the Executive has filed directly against the Company or related persons or entities. The Company shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection with the Executive’s performance of obligations pursuant to this Section 10(b).
(c) Injunction: Termination of Post-employment Payments. The Executive agrees that it would be difficult to measure any damages caused to the Company which might result from any breach by the Executive of the promises set forth in this Section 10, including without limitation, any provision of Exhibit 1, and that in any event money damages would be an inadequate remedy for any such breach. Accordingly, the Executive agrees that if the Executive breaches, or proposes to breach, any portion of this Agreement, the Company shall be entitled, in addition to all other remedies that it may have, to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to the Company. In addition to the foregoing, if the Executive breaches any of the provisions contained in Section 10 of this Agreement, the Company shall, in addition to all other rights and remedies, have the right to cease paying any payments or benefits pursuant to Section 7(b) and/or 8(a) of this Agreement. Any such termination of payment or benefits shall have no effect on the Release or any of Executive’s post-employment obligations to the Company.
11. Indemnification. The Company and the Executive shall enter into an indemnification agreement in a form approved by the Board for the Company’s senior executives.
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12. Consent to Jurisdiction. To the extent that any court action is initiated to enforce this Agreement, the parties hereby consent to the jurisdiction of the state and federal courts of the Commonwealth of Massachusetts. Accordingly, with respect to any such court action, the Executive (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.
13. Integration. This Agreement, including Exhibit 1, and the Equity Award Documents, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties concerning such subject matter herein.
14. Withholding. All payments made by the Company to the Executive under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law. Nothing herein shall be construed to obligate the Company to design or implement any compensation arrangement in a way that minimizes tax consequences for Executive.
15. Successor to the Executive. This Agreement shall inure to the benefit of and be enforceable by die Executive’s personal representatives, executors, administrators, heirs, distributees, devisees and legatees. In the event of the Executive’s death after his termination of employment but prior to the completion by the Company of all payments due him under this Agreement, the Company shall continue such payments to the Executive’s beneficiary designated in writing to the Company prior to his death (or to his estate, if the Executive fails to make such designation).
16. Enforceability. If any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
17. Survival. The provisions of this Agreement shall survive the termination of this Agreement and/or the termination of the Executive’s employment to the extent necessary to effectuate the terms contained herein.
18. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
19. Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to the Executive at the last address the Executive has filed in writing with the Company or, in the case of the Company, at its main offices, attention of the Board.
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20. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Executive and by a duly authorized representative of the Company.
21. Governing Law. This is a Massachusetts contract and shall be construed under and be governed in all respects by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws principles of such state With respect to any disputes concerning federal law, such disputes shall be determined in accordance with the law as it would be interpreted and applied by the United States Court of Appeals for the First Circuit.
22. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute one and the same document.
23. Successor to Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement to the same extent that the Company would be required to perform it if no succession had taken place. Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness of any succession shall be a material breach of this Agreement.
24. Gender Neutral. Wherever used herein, a pronoun in the masculine gender shall be considered as including the feminine gender unless the context clearly indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year first above written.
AGERION PHARMACEUTICALS, INC.
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | August 19, 2010 | |||
| ▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board of Directors, | Date | |||
| Aegerion Pharmaceuticals, Inc. | ||||
| ▇▇▇▇ ▇▇▇▇ | ||||
| /s/ ▇▇▇▇ ▇▇▇▇ | August 19, 2010 | |||
| ▇▇▇▇ ▇▇▇▇ | Date |
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Exhibit 1
AEGERION PHARMACEUTICALS, INC.
Employee Confidentiality, Assignment and Noncompetition Agreement
In consideration and as a condition of my employment or continued employment by Aegerion Pharmaceuticals, Inc. (the “Company”), I agree as follows:
1. Proprietary Information. I agree that all information, whether or not in writing, concerning the Company’s business, technology, business relationships or financial affairs which the Company has not released to the general public (collectively, “Proprietary Information”) is and will be the exclusive property of the Company. By way of illustration, Proprietary Information may include information or material which has not been made generally available to the public, such as: (a) corporate information, including plans, strategies, methods, policies, resolutions,, negotiations or litigation; (b) marketing information, including strategies, methods, customer identities or other information about customers, prospect identities or other information about prospects, or market analyses or projections; (c) financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings, purchasing and sales data and price lists; and (d) operational and technological information, including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions, improvements, concepts and ideas; and (e) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data, compensation structure, performance evaluations and termination arrangements or documents. Proprietary Information also includes information received in confidence by the Company from its customers or suppliers or other third parties.
2. Recognition of Company’s Rights. I will not, at any time, without the Company’s prior written permission, either during or after my employment, disclose any Proprietary Information to anyone outside of the Company, or use or permit to be used any Proprietary Information for any purpose other than the performance of my duties as an employee of the Company. I will cooperate with the Company and use my best efforts to prevent the unauthorized disclosure of all Proprietary Information. I will deliver to the Company all copies of Proprietary Information in my possession or control upon the earlier of a request by the Company or termination of my employment.
3. Rights of Others. I understand that the Company is now and may hereafter be subject to nondisclosure or confidentiality agreements with third persons which require the Company to protect or refrain from use of proprietary information. I agree to be bound by the terms of such agreements in the event I have access to such proprietary information,
4. Commitment to Company; Avoidance of Conflict of Interest. Except for those outside associations permitted under my employment agreement (the “Permitted Arrangements”), while an employee of the Company, I will devote my full-time efforts to the Company’s business and I will not engage in any other business activity that conflicts with my duties to the Company. I will advise the Board of the Company at such time as any activity of either the Company or another business presents me with a conflict of interest or the appearance of a conflict of interest as an employee of the Company. I will take whatever action is requested of me by the Company to resolve any conflict or appearance of conflict which it finds to exist.
5. Developments. I will make full and prompt disclosure to the Company of all inventions,. discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulae, techniques, trade secrets, graphics or images, and audio or visual works and other works of authorship, whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by me (alone or jointly with others) or under my direction during the period of my employment and that do not arise out of any Permitted Arrangement, as defined in Section 4, (collectively, the “Developments”). I acknowledge that all work performed by me is on a “work for hire” basis, and I hereby do assign and transfer and, to the extent any such assignment cannot be made at present, will assign and transfer, to the Company and its successors and assigns all my right, title and interest in all Developments that (a) relate to the business of the Company or any customer of the Company or any of the products or services being researched, developed, manufactured or sold by the Company or which may be used with such products or services; or (b) result from tasks assigned to me by the Company; or (c) result from the use of premises or personal property (whether tangible or intangible) owned, leased or contracted for by the Company (“Company-Related Developments”), and all related patents, patent applications, trademarks and trademark applications, copyrights and copyright applications, and other intellectual property rights in all countries and territories worldwide and under any international conventions (“Intellectual Property Rights”).
To preclude any possible uncertainty, I have set forth on Exhibit A attached hereto a complete list of Developments that I have, alone or jointly with others, conceived, developed or reduced to practice prior to the commencement of my employment with the Company that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (“Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. I have also listed on Exhibit A all patents and patent applications in which I am named as an inventor, other than those which have been assigned to the Company (“Other Patent Rights”). If no such disclosure is attached, I represent that there are no Prior Inventions or Other Patent Rights. If, in the course of my employment with the Company, I incorporate a Prior Invention into a Company product, process or machine or other work done for the Company, I hereby grant to the Company a nonexclusive, royalty-free, paid-up, irrevocable, worldwide license (with the full right to sublicense) to make, have made, modify, use, sell, offer for sale and import such Prior Invention. Notwithstanding the foregoing, I will not incorporate, or permit to be incorporated, Prior Inventions in any Company-Related Development without the Company’s prior written consent.
This Agreement does not obligate me to assign to the Company any Development which, in the sole judgment of the Company, reasonably exercised, is developed entirely on my own time and does not relate to the business efforts or research and development efforts in which, during the period of my employment, the Company actually is engaged or reasonably would be engaged, and does not result from the use of premises or equipment owned or leased by the
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Company. However, I will also promptly disclose to the Company any such Developments for the purpose of determining whether they qualify for such exclusion. I understand that to the extent this Agreement is required to be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this paragraph 5 will be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. I also hereby waive all claims to any moral rights or other special rights which I may have or accrue in any Company-Related Developments.
6. Documents and Other Materials. I will keep and maintain adequate and current records of all Proprietary Information and Company-Related Developments developed by me during my employment, which records will be available to and remain the sole property of the Company at all times.
All files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, or other written, photographic or other tangible material containing Proprietary Information, whether created by me or others, which come into my custody or possession, are the exclusive property of the Company to be used by me only in the performance of my duties for the Company. Any property situated on the Company’s premises and owned by the Company, including without limitation computers, disks and other storage media, filing cabinets or other work areas, is subject to inspection by the Company at any time with or without notice. In the event of the termination of my employment for any reason, I will deliver to the Company all files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, or other written, photographic or other tangible material containing Proprietary Information, and other materials of any nature pertaining to the Proprietary Information of the Company and to my work, and will not take or keep in my possession any of the foregoing or any copies.
7. Enforcement of Intellectual Property Rights. I will cooperate fully with the Company, both during and after my employment with the Company, with respect to the procurement, maintenance and enforcement of Intellectual Property Rights in Company-Related Developments. I will sign, both during and after the term of this Agreement, all papers, including without limitation copyright applications, patent applications, declarations, oaths, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Company-Related Development. If the Company is unable, after reasonable effort, to secure my signature on any such papers, I hereby irrevocably designate and appoint each officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Company-Related Development.
8. Non-Competition and Non-Solicitation. In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of twelve (12) months following the termination of my employment for any reason (the “Restricted Period”), I will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any
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business activity anywhere in the world that develops, manufactures or markets any products, or performs any services, that are competitive with the products or services of the Company, or products or services that the Company or its affiliates, has under development or that are the subject of active planning at any time during my employment; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company. In addition, during the Restricted Period, I will not, directly or indirectly, in any manner, other than for the benefit of the Company, (a) call upon, solicit, divert, take away, accept or conduct any business from or with any of the customers or prospective customers of the Company or any of its suppliers, and/or (b) solicit, entice, attempt to persuade any other employee or consultant of the Company to leave the Company for any reason. I acknowledge and agree that if I violate any of the provisions of this paragraph 8, the running of the Restricted Period will be extended by the time during which I engage in such violation(s).
9. Government Contracts. I acknowledge that the Company may have from time to time agreements with other persons or with the United States Government or its agencies which impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the confidential nature of such work. I agree to comply with any such obligations or restrictions upon the direction of the Company. In addition to the rights assigned under paragraph 5, I also assign to the Company (or any of its nominees) all rights which I have or acquired in any Developments, full title to which is required to be in the United States under any contract between the Company and the United States or any of its agencies.
10. Prior Agreements. I hereby represent that, except as I have fully disclosed previously in writing to the Company, I am not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from competing, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the terms of this Agreement as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company. I will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others.
11. Remedies Upon Breach. I understand that the restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and I consider them to be reasonable for such purpose. Any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the event of such breach, the Company, in addition to such other remedies which may be available, will be entitled to seek specific performance and other injunctive relief, without the posting of a bond. If I violate this Agreement, in addition to all other remedies available to the Company at law, in equity, and under contract, I agree that I am obligated to pay all the Company’s costs of enforcement of this Agreement, including attorneys’ fees and expenses.
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12. Use of Voice, Image and Likeness. During the period of my employment, I give the Company permission to use any and all of my voice, image and likeness, with or without using my name, in connection with the products and/or services of the Company, for the purposes of advertising and promoting such products and/or services and/or the Company, and/or for other purposes deemed appropriate by the Company in its reasonable discretion, except to the extent expressly prohibited by law.
13. Publications and Public Statements. I will obtain the Company’s written approval before publishing or submitting for publication any material that relates to my work at the Company and/or incorporates any Proprietary Information.
14. No Employment Obligation. I understand that this Agreement does not create an obligation on the Company or any other person to continue my employment. I acknowledge that, unless otherwise agreed in a formal written employment agreement signed on behalf of the Company by an authorized officer, my employment with the Company is at will and therefore may be terminated by the Company or me at any time and for any reason, with or without cause.
15. Survival and Assignment by the Company. I understand that my obligations under this Agreement will continue in accordance with its express terms regardless of any changes in my title, position, duties, salary, compensation or benefits or other terms and conditions of employment I further understand that my obligations under this Agreement will continue following the termination of my employment regardless of the manner of such termination and will be binding upon my heirs, executors and administrators. The Company will have the right to assign this Agreement to its affiliates, successors and assigns. I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate to whose employ I may be transferred without the necessity that this Agreement be resigned at the time of such transfer.
16. Updating Information to the Company; Disclosure to Future Employers. For twelve (12) months following termination of my employment, I will (i) notify the Company of any change in my address and of each subsequent employment or business activity, including the name and address of my employer or other post-Company employment plans and the nature of my activities, and (ii) provide a copy of this Agreement to any prospective employer, partner or coventurer prior to entering into an employment, partnership or other business relationship with such person or entity.
17. Severability. In, case any provisions (or portions thereof) contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
18. Interpretation. This Agreement will be deemed to be made and entered into in the Commonwealth of Massachusetts, and will in all respects be interpreted, enforced and
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governed under the laws of the Commonwealth of Massachusetts. I hereby agree to consent to personal jurisdiction of the state and federal courts situated within Suffolk County, Massachusetts for purposes of enforcing this Agreement, and waive any objection that I might have to personal jurisdiction or venue in those courts.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. BY SIGNING BELOW, I CERTIFY THAT I HAVE READ IT CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
IN WITNESS WHEREOF, the undersigned has executed this agreement as a sealed instrument as of the date set forth below.
| Signed: | /s/ ▇▇▇▇ ▇▇▇▇ | |
| (Employee’s full name) |
Type or print name: ▇▇▇▇ ▇▇▇▇
Date: August 19, 2010
6
EXHIBIT A
| To: | Aegerion Pharmaceuticals, Inc., | |
| From: | ________________________ | |
| Date: | ________________________ |
SUBJECT: Prior Inventions
The following is a complete list of all inventions or improvements relevant to the subject matter of my employment by the Company that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by the Company:
| ¨ | No inventions or improvements | |||
| ¨ | See below: | |||
| ________________________________________________________________ | ||||
| ________________________________________________________________ | ||||
| ________________________________________________________________ | ||||
| ¨ | Additional sheets attached |
The following is a list of all patents and patent applications in which I have been named as an inventor:
| ¨ | None | |||
| ¨ | See below: | |||
| ________________________________________________________________ | ||||
| ________________________________________________________________ | ||||
| ________________________________________________________________ |