EXHIBIT 10.1(d)
EMPLOYMENT AGREEMENT
--------------------
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND AMERICAN BIOGENETIC SCIENCES, INC.
------------------------------------------------------------
AGREEMENT, dated as of the 3rd day of February, 1997, by and between
AMERICAN BIOGENETIC SCIENCES, INC., a Delaware corporation, having a place of
business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter designated
and referred to as "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D. of ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter designated and referred to as "Employee").
WHEREAS, the Company desires to employ the Employee in the capacity of
Senior Vice President Research and Development of the Company; and
WHEREAS, Employee is willing to accept such employment by the Company, all
in accordance with provisions hereinafter set forth.
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties hereto agree as follows:
1. Term: The term of this Agreement shall be for a period of five (5) years
commencing February 3, 1997 and automatically terminating on February 3, 2002
subject to earlier termination as provided herein or unless extended by mutual
consent of both parties in writing sixty (60) days prior to the end of the term
of this Agreement or any extension thereof, but nothing herein shall require the
Company to agree to any specific term or condition or to any continuation of
your employment beyond February 3, 2002.
2. Employment: Subject to the terms and conditions and for the compensation
hereinafter set forth, the Company employs the Employee for and during the term
of this Agreement. Employee is hereby employed by the Company as its Senior Vice
President - Research and Development, his powers and duties of an executive
nature which are appropriate for an Senior Vice President - Research and
Development shall be determined only by the Chairman of the Board or the Board
of Directors or their duly authorized designee, from time to time; and the
Employee does hereby accept such employment and agrees to use his best efforts
and to devote all his normal business time, during the term of this Agreement,
to the performance of his duties faithfully, diligently and to the best of his
abilities upon the conditions hereinafter set forth. Employee shall report to
the Chairman of the Board and Board of Directors (collectively hereinafter
referred to as the "Board") of the Company.
3. Compensation: During the term of this Agreement, the Company agrees to
pay Employee, and Employee agrees to accept, an annual salary of One Hundred and
Fifty Thousand Dollars ($150,000.00) per year less all applicable taxes, payable
every two weeks, for all services rendered by Employee hereunder including being
a Director of the Company if elected to the Board of Directors. The Employee
shall be entitled to an annual bonus of up to twenty percent (20%) of his annual
salary based on goals mutually agreed to between the parties.
4. Expenses: The Company shall reimburse Employee, not less often than
monthly, for all reasonable and actual business expenses incurred by him in
connection with his service to the Company, upon
1
submission by him of appropriate vouchers and expense account reports.
Specially, but without limitation, Employee shall be paid his reasonable
expenses on trips to Long Island, New York.
5. Benefits: In addition to the salary to be paid to Employee hereunder,
the Company shall provide medical and dental insurance and any disability,
pension, retirement or other qualified plans adopted for the benefit of its
employees, and in accordance with the Company's Plan(s). The Employee shall be
entitled to a two (2) weeks annual vacation.
6. Extent of Service: The Employee during the term of this Agreement shall
devote his full normal business time, attention and energy and render his best
efforts and skill to the business of the Company, but employee shall be
permitted all reasonable time necessary to perform his obligations under an
existing contract with the Memorial Hospital of Rhode Island.
7. Restrictive Covenant: (A) Employee acknowledges that (i) the business in
which the Company is engaged is intensely competitive and that his employment by
the Company will require that he have access to and knowledge of confidential
information of the Company, including, but not limited to, certain of the
Company's confidential plans for the creation, acquisition or disposition of
products, expansion plans, product development plans, financial status, and
plans and personnel information and trade secrets, which are of vital importance
to the success of the Company's business; (ii) the direct or indirect disclosure
of any such confidential information to existing or potential competitors of the
Company would place the Company at a competitive disadvantage and would to
damage, financial and otherwise, to the Company's business; and (iii) by his
training, experience and expertise, some of his services to the Company will be
special and unique. (B) Employee agrees that, during the term of this Agreement
and if the Agreement is terminated by the Company for cause, for a period of one
(1) year after the termination of this Agreement, he will not directly or
indirectly become affiliated as an officer, director, employee or consultant or
as a substantial security holder with any other company or entity whose business
is directly competitive with any business then being conducted by the Company or
its subsidiaries within the Continental United States or in countries abroad
participating in the Company's Global Network. For the purpose hereof,
"substantial security holder" shall mean ownership, directly or indirectly, of
more than 5% of any class of securities of a company or partnership interest in
any partnership other than the existing patent contract between the employee and
the Memorial Hospital of Rhode Island.
8. Discoveries, etc.:
[A] The Company shall be the owner, without further compensation, of all
rights of every kind in and with respect to any reports, materials, inventions,
processes, discoveries, improvements, modifications, know-how or trade secrets
hereafter made, prepared, invented, discovered, acquired, suggested or reduced
to practice (hereinafter designated and referred to as "Property Rights") by
Employee in connection with Employee's performance of his duties pursuant to
this Agreement, and the Company shall be entitled to utilize and dispose of such
in such manner as it may determine.
[B] The Employee agrees to and shall promptly disclose to the Board all
Property Rights (whether or not patentable) made, discovered or conceived of by
him, alone or with others, at any time during his employment with the Company.
Any such Property Rights will be the sole and exclusive property of the Company,
and Employee will execute any assignments requested by the Company of his right,
title or interest in any such Property Rights. In addition, the Employee will
also provide the Company with any other instruments or documents requested by
the Company, at the Company's expense, as may be necessary or desirable in
applying for and obtaining patents with respect thereto in the United States and
all foreign countries. The Employee also agrees to cooperate with the Company
and to devote reasonable time to the
2
prosecution or defense of any patent claims or litigation or proceedings
involving inventions, trade secrets, trademarks, services marks, secret
processes, discoveries or improvements, whether or not he is employed by the
Company at the time.
9. Confidential Information: Employee recognizes and acknowledges that the
Company, through the expenditure of considerable time and money, will acquire,
has developed and will continue to develop in the future, information, skills,
confidential information, know-how, formulae, technical expertise and methods
relating to or forming part of the Company's services and products and conduct
of its business, and that the same are confidential and proprietary, and are
"trade secrets" of the Company. Employee understands and agrees that such trade
secrets give or may give the Company a significant competitive advantage.
Employee further recognizes that the success of the Company depends on keeping
confidential both the trade secrets already developed or to be acquired and any
future developments of trade secrets. Employee understands that in his capacity
with the Company he will be entrusted with knowledge of such trade secrets and,
in recognition of the importance thereof and in consideration of his employment
by the Company hereunder, agrees that he will not, without the consent of the
Board, make any disclosure of trade secrets now or hereafter possessed by the
Company to any person, partnership, corporation or entity either during or after
the term hereunder, except to such employees of the Company or its subsidiaries
or affiliates, if any, as may be necessary in the regular course of business and
except as may be required pursuant to any court order, judgment or decision from
any court of competent jurisdiction. The provisions of this Section shall
continue in full force and effect notwithstanding any termination of this
Agreement.
10. Irreparable Harm: Employee agrees that any breach or threatened breach
by Employee of provisions set forth in Sections seven (7), eight (8) and nine
(9) of this Agreement, would cause the Company irreparable harm and the Company
may obtain injunctive relief against such actual or threatened conduct and
without the necessity of a bond.
11. Return of Company Property: Employee agrees that following the
termination of his employment for any reason, he shall return all property of
the Company which is then in or thereafter comes into his possession, including,
but not limited to, documents, contracts, agreements, plans, photographs, books,
notes, electronically stored data and all copies of the foregoing as well as any
other materials or equipment supplied by the Company to the Employee.
12. Termination:
[A] Death: In the event of the Employee's death during the term of his
employment, this Agreement shall automatically terminate on the date of death,
and Employee's estate shall be entitled to payment of Employee's salary until
date of death.
[B] Disability: In the event the Employee, by reason of physical or mental
incapacity, shall be disabled for a period of at least two (2) consecutive
months in any of the years of this Agreement or any extension hereof, the
Company shall have the option at any time thereafter, to terminate Employee's
employment and to terminate this Agreement; such termination to be effective ten
(10) days after the Company gives written notice of such termination to the
Employee, and all obligations of the Company hereunder shall cease upon the date
of such termination. "Incapacity" as used herein shall mean the inability of the
Employee to perform his normal duties as Senior Vice President - Research and
Development.
3
[C] Company's Rights To Terminate This Agreement:
[a] The Company shall have the right, before the expiration of the
term of this Agreement, to terminate this Agreement and to discharge Employee
for cause (hereinafter "Cause"), and all compensation to Employee shall cease to
accrue upon discharge of the Employee for Cause. For the purposes of this
Agreement, the term "Cause" shall mean the Employee's (i) violation of the
Company's written policy or specific written directions of the Chairman of the
Board which directions are consistent with normally acceptable business
practices or the failure to observe, or the failure or refusal to perform any
obligations required to be performed in accordance with this Agreement. (ii)
admission or conviction of a serious crime involving moral turpitude or (iii) if
the Chairman of the Board determines that employee has committed a demonstrable
act (or omission) of malfeasance seriously detrimental to this Company (which
shall not include any exercise of business judgment in good faith).
[b] If the Company, elects to terminate Employee's employment for
Cause, under Section 12 [C] [a](i), the Company shall first give Employee
written notice and a period of thirty (30) days to cure such Cause, and if such
Cause is not cured in said thirty (30) days, such termination shall be effective
five (5) days after the Company gives written notice of such termination to the
Employee. In the event of a termination of the Employee's employment for Cause
in accordance with the provisions of Section 12 [C][a](ii) or (iii), the Company
shall have no further obligation to the Employee, except for the payment of
salary through the date of such termination from employment.
13. Travel: Employee agrees to work out of the offices of the Company in
Boston, Massachusetts and spend so much of his normal business time at the
facilities of the Company at Copiague, New York, as is necessary to properly
fulfill his duties as its Senior Vice President - Research and Development.
Employee agrees to relocate if so required and reasonable relocation expenses
shall be paid by the Company. In addition, the Employee agrees that to the
extent required he shall travel both domestically and internationally for the
Company.
14. Waiver: Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any other breach
or default hereof.
15. Governing Law: The validity of this Agreement or of any of the
provisions hereof shall be determined under and according to the laws of the
State of New York, and this Agreement and its provisions shall be construed
according to the laws of the State of New York without reference to its choice
of law rules.
16. Notice: Any notice required to be given pursuant to the provisions of
this Agreement shall be in writing and by registered or certified mail and
mailed to the following addresses:
Company: American Biogenetic Sciences, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
Employee: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
4
17. Assignment: The Employee's assignment of this Agreement or any interest
herein, or any monies due or to become due by reason of the terms hereof,
without the prior written consent of the Company shall be void. This Agreement
shall be binding upon the Company, its successors (including any transferee of
the good will of the Company) or assigns.
18. Miscellaneous: This Agreement contains the entire understanding between
the parties hereto and supersedes all other oral and written agreements or
understandings between them. No modification or addition hereto or waiver or
cancellation of any provision shall be valid except by a writing signed by the
party to be charged therewith.
19. Obligations of a Continuing Nature: It is expressly understood and
agreed that the covenants, agreements and restrictions undertaken by or imposed
on Employee hereunder, which are stated to exist or continue after termination
of Employee's employment with the Company, shall exist and continue irrespective
of the method or circumstances of such termination from employment or
termination of this Agreement.
20. Severability: Employee agrees that if any of the covenants, agreements
or restrictions on the part of Employee are held to be invalid by any court of
competent jurisdiction, such holding will not invalidate any of the other
covenants, agreements and/or restrictions herein contained and such invalid
provisions shall be severable so that the invalidity of any such provision shall
not invalidate any others. Moreover, if any one or more of the provisions
contained in this Agreement shall be held to be excessively broad as to
duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
21. Representation: Employee represents and warrants that he has the legal
right to enter into this Agreement and to perform all of the obligations on his
part to be performed hereunder in accordance with its terms and that he is not a
party to any agreement or understanding, written or oral, which prevents him
from entering into this Agreement or performing all of his obligations
hereunder. In the event of a breach of such representation or warranty on his
part or if there is any other legal impediment which prevents him from entering
into this Agreement or performing all of his obligations hereunder, the Company
shall have the right to terminate this Agreement in accordance with Section
12[C][a]; in which event the "Cause" shall not be deemed curable under Section
12[C][b], and Employee will save harmless the Company in the event of legal
action by former employers for injunction relief or damages.
22. Stock Option: Employee and the Company agree that a stock option has
been granted to purchase 100,000 shares of Class A Common Stock of the Company
in accordance with the Company's Stock Option Plan ("Plan"), exercisable at the
rate of 25% per year. The options will be subject to all of the terms and
conditions of the Plan and Employee hereby agrees to all such terms and
conditions.
23. Descriptive Headings. The paragraphs headings contained herein are for
reference purposes only and shall not in any affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
5
AMERICAN BIOGENETIC SCIENCES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
Employee
6